[Federal Register Volume 82, Number 65 (Thursday, April 6, 2017)]
[Notices]
[Pages 16800-16808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06791]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE687


Takes of Marine Mammals Incidental To Specified Activities; 
Taking Marine Mammals Incidental to a Tidal Marsh Restoration Project

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
the California Department of Fish and Wildlife--Central Region (CADFW) 
to incidentally harass, by Level B harassment only, marine mammals 
during construction activities associated with the tidal marsh 
restoration project within the Minhoto-Hester Marsh in Elkhorn Slough 
(Monterey, CA).

DATES: This Authorization is in effect for one year beginning August 1, 
2017.

FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Availability

    An electronic copy of the CADFW's application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please 
call the contact listed above.

National Environmental Policy Act

    In accordance with the National Environmental Policy Act (NEPA) (42 
U.S.C. 4321 et seq.), NMFS prepared a Supplemental Environmental 
Assessment (SEA) titled ``Final Supplemental Environmental Assessment 
for the Minhoto-Hester Marsh Restoration Project, Elkhorn Slough, 
Monterey County, California.'' A Finding of No Significant Impact 
(FONSI) was signed on November 15, 2016. NMFS considered comments 
submitted in response to our Federal Register notice of the proposed 
IHA (81 FR 67297; September 30, 2016) and CADFW's application as part 
of the process. All documents are available at the aforementioned Web 
site.

Background

    Sections 101(a)(5)(D) of the MMPA (16 U.S.C. 1361 et seq.) direct 
the Secretary of Commerce to allow, upon request by U.S. citizens who 
engage in a specified activity (other than commercial fishing) within a 
specified geographical region if certain findings are made and either 
regulations are issued or, if the taking is limited to harassment, a 
notice of a proposed authorization was provided to the public for 
review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``. . . an impact resulting from the specified activity that cannot 
be reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of 
an application followed by a 30-day public notice and comment period on 
any proposed authorizations for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization. Except with respect to certain 
activities not pertinent here, the MMPA defines ``harassment'' as ``any 
act of pursuit, torment, or annoyance which (i) has the potential to 
injure a marine mammal or marine mammal stock in the wild (Level A 
harassment); or (ii) has the potential to disturb a marine mammal or 
marine mammal stock in the wild by causing disruption of behavioral 
patterns, including, but not limited to, migration, breathing, nursing, 
breeding, feeding, or sheltering (Level B harassment).''

Summary of Requests

    On June 2, 2016, we received an application from the CADFW for 
authorization to take marine mammals incidental to construction 
activities associated with a 47-acre tidal marsh restoration project 
within the Minhoto-Hester Marsh in Elkhorn Slough (Monterey, CA) (Phase 
1). The overall Elkhorn Slough Tidal Marsh Restoration Project will 
restore a total of 147 acres, however, future phases are not part of 
this application as they are currently unfunded and present some 
additional technical challenges. Another IHA request will be made prior 
to implementation of any proposed future phases. The CADFW submitted 
revised versions of the application on July 13, 2016, August 2, 2016, 
August 29, 2016, and a final application on September 6, 2016 which we 
deemed adequate and complete.
    The activity will begin August 1, 2017 and last approximately 11 
months with built in buffers for adverse weather and other conditions 
when work is not possible. Pacific harbor seal (Phoca vitulina 
richardii) and southern sea otters (Enhydra lutris nereis) are expected 
to be present during the work. Southern sea otters are managed by the 
U.S. Fish and Wildlife Service and will

[[Page 16801]]

not be considered further in this IHA. Construction activities are 
expected to produce noise and visual disturbance that have the 
potential to result in behavioral harassment of harbor seals.

Description of the Specified Activities

    A detailed description of the project is provided in the Federal 
Register notice for the proposed IHA (81 FR 67297; September 30, 2016). 
Since that time, no changes have been made to the planned construction 
activities. Therefore, a detailed description is not provided here. 
Please refer to that Federal Register notice for the description of the 
specific activity.
    The CADFW proposes to restore approximately 47 acres of tidal marsh 
within the Minhoto-Hester Marsh in Elkhorn Slough (Monterey, CA) and 
additional tidal marsh, upland ecotone, native grasslands restoration 
within a buffer area (Phase 1). The CADFW intends to restore tidal 
marsh to reduce tidal erosion, improve water quality, provide sea-level 
rise resilience, increase carbon sequestration, and improve ecosystem 
function that have been altered by past land use practices. Under the 
planned action, 132 days of construction activities and four days of 
vibratory pile driving (total 136 days of project activities) related 
to the tidal marsh restoration will occur over an 11-month period.

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to CADFW was published 
in the Federal Register on September 30, 2016 (81 FR 67297). That 
notice described, in detail, CADFW's activity, the marine mammal 
species that may be affected by the activity, and the anticipated 
effects on marine mammals. During the 30-day public comment period, 
NMFS received comments from the Marine Mammal Commission. The Marine 
Mammal Commission recommended that NMFS issue the IHA, and concurred 
with the planned mitigation, monitoring, and reporting measures.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS jurisdiction occurring in the 
project area is the Pacific harbor seal (see Table 1).

                                                         Table 1--Harbor Seal Status Information
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                     Relative occurrence
                                                          ES)/MMPA status;    Stock abundance (CV, Nmin,                Annual M/SI   in Elkhorn Slough;
             Species                      Stock         strategic (Y/N) \1\      most recent abundance       PBR \3\        \4\           season of
                                                                                      survey) \2\                                         occurrence
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal......................  California.........  -; N...............    30,968 (n/a; 27,348; 2012)        1,641         42.8  Common; year-round
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
  or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks of
  pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from knowledge
  of the species (or similar species) life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the
  minimum abundance may represent actual counts of all animals ashore. The most recent abundance survey that is reflected in the abundance estimate is
  presented; there may be more recent surveys that have not yet been incorporated into the estimate.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
  marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All
  values presented here are from the final 2015 Pacific SAR. (http://www.nmfs.noaa.gov/pr/sars/region.htm).

    A detailed description of the harbor seal likely to be affected by 
the restoration project, including a brief introduction to the species 
and relevant stock as well as available information regarding 
population trends and threats, and information regarding local 
occurrence, were provided in the Federal Register notice for the 
proposed IHA (81 FR 67297; September 30, 2016); since that time, we are 
not aware of any changes in the status of this species and stock; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions. Please also refer 
to NMFS' Web site (http://www.fisheries.noaa.gov/pr/species/mammals/seals/harbor-seal.html) for the generalized harbor seal account and see 
NMFS' Stock Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars, for more detailed accounts of the harbor seal stocks' status 
and abundance. The harbor seal is assessed in the Pacific SAR (Carretta 
et al., 2016).

Potential Effects of the Specified Activity on Marine Mammals

    The effects of noise and visual disturbance from construction 
activities for the project have the potential to result in behavioral 
harassment of marine mammals in the vicinity of the action area. The 
Federal Register notice for the proposed IHA (81 FR 67297; September 
30, 2016) included a discussion of the effects of anthropogenic noise 
on marine mammals; therefore, that information is not repeated here.
    In summary, harbor seals that use the four haul out sites, just 
beyond the footprint of the construction, area and in other nearby 
areas may potentially experience behavioral disruption rising to the 
level of harassment (Level B) from construction activities, which may 
include visual disturbance due to the presence and activity of heavy 
equipment and construction workers, airborne noise from the equipment, 
and from underwater noise during the brief period of sheet pile 
installation. Disturbed seals are likely to experience any or all of 
these stimuli, and take may occur due to any of these in isolation or 
in combination with the others.

Anticipated Potential Effects on Marine Mammal Habitat

    The main impact to marine mammal habitat associated with the 
CADFW's restoration project is the temporary exclusion from the 
accustomed haul out areas. During the restoration, the inability of 
seals to use suitable habitat within the footprint of the construction 
area will temporarily remove less than two percent of the potential 
haul out areas in the Slough (see Figure 4-4 of the application). 
Although the action will permanently alter habitat within the footprint 
of the construction area, harbor seals haul out in many locations 
throughout the estuary, and the activities are not expected to have any 
habitat-related effects that could cause

[[Page 16802]]

significant or long-term consequences for individual harbor seals or 
their population. Potential effects to marine mammal habitat are 
discussed in detail in the Federal Register notice for the proposed IHA 
(81 FR 67297; September 30, 2016), therefore that information is not 
repeated here; please refer to that Federal Register notice for that 
information.

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable impact on 
such species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking for certain 
subsistence uses (where relevant). CADFW shall implement the following 
mitigation measures:

Timing Restrictions

    Construction work shall occur only during daylight hours when 
visual monitoring of marine mammals can be implemented. No in-water 
work will be conducted at night.

Construction Activities

    After sheet piles are installed, it will be unlikely that harbor 
seals will be able to access the construction area and will temporarily 
be displaced from using the four haul outs within the footprint of the 
construction area. Should seals attempt to enter the construction area, 
they will need to traverse a minimum 7ft high berm into an area without 
water. If a seal enters the construction area after installation of 
barriers, CADFW shall use a government official to flush any such seals 
from the area for purposes of protection/welfare of the animals (as 
allowed through section 109(h) of the MMPA). The NMFS' West Coast 
Regional Office and The Marine Mammal Center (Rescue and Response) will 
be available should this occur. In addition, to reduce the risk of 
potentially startling marine mammals with a sudden intensive sound, the 
contractor shall begin construction activities gradually each day by 
moving around the project area and starting heavy equipment one at a 
time.

Pupping Season

    While CADFW does not anticipate any pupping within the project 
area, should a pup less than one week old (neonate) come within 20 m of 
where heavy machinery is working, construction activities in that area 
will be delayed until the pup has left the area. In the event that a 
pup less than one week old remains within those 20 m, NMFS will be 
consulted to determine the appropriate course of action.

Vibratory Pile Driving

    An exclusion zone of 15 m shall be established during the 4 days of 
pile driving to prevent the unlikely potential for physical injury of 
harbor seals due to close approach to construction equipment. Pile 
extraction or driving shall not commence (or re-commence following a 
shutdown) until marine mammals are not sighted within the exclusion 
zone for a 15-minute period. If a marine mammal enters the exclusion 
zone during sheet pile work, work shall stop until the animal leaves 
the exclusion zone or is not observed for a minimum of 15 minutes.
    Based on our evaluation of the mitigation measures, as well as any 
other potential measures that may be relevant to the specified 
activity, we have determined that the mitigation measures provide the 
means of effecting the least practicable impact on marine mammal 
species or stocks and their habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
incidental take authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the action area.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:

     Occurrence of marine mammal species in the action area 
(e.g., presence, abundance, distribution, density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
Affected species (e.g., life history, dive patterns); (3) Co-occurrence 
of marine mammal species with the action; or (4) Biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological).
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of an individual; or (2) Population, 
species, or stock.
     Effects on marine mammal habitat and resultant impacts to 
marine mammals.
     Mitigation and monitoring effectiveness.

Monitoring--Visual Marine Mammal Observations

    Qualified Protected Species Observers (PSO) (a NMFS approved 
biologist) shall be used to detect, document, and minimize impacts to 
marine mammals. Monitoring shall be conducted before, during, and after 
construction activities. In addition, PSOs shall record all incidents 
of marine mammal occurrence, regardless of distance from activity, and 
document any behavioral reactions in concert with distance from 
construction activities.
    Important qualifications for PSOs for visual monitoring include:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of harbor seals on land or in the water with 
ability to estimate target size and distance; use of binoculars may be 
necessary to correctly identify the target;
     Advanced education in biological science or related field 
(undergraduate degree or higher required);
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when construction activities 
were conducted; dates and times when construction activities were 
suspended, if necessary; and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.

[[Page 16803]]

    PSOs shall be placed at the best vantage point(s) (e.g., Yampah 
Island, see Figure 2 of the monitoring plan in the application) 
practicable to monitor for marine mammals. PSOs shall also conduct 
mandatory biological resources awareness training for construction 
personnel. The awareness training shall be provided to brief 
construction personnel on marine mammals (inclusive of identification 
as needed, e.g., neonates) and the need to avoid and minimize impacts 
to marine mammals. If new construction personnel are added to the 
project, the contractor shall ensure that the personnel receive the 
mandatory training before starting work. The PSO shall have the 
authority to stop construction if marine mammals appear distressed 
(evasive maneuvers, rapid breathing, inability to flush) or in danger 
of injury.
    CADFW developed a monitoring plan based on discussions between the 
CADFW and NMFS. CADFW shall collect sighting data and behavioral 
responses to construction activities for marine mammal species observed 
in the region of activity during the period of activity. All PSOs shall 
be trained in marine mammal identification and behaviors and are 
required to have no other construction-related tasks while conducting 
monitoring.
    The monitoring plan involves PSOs surveying and conducting visual 
counts beginning prior to construction activities (beginning at least 
30 minutes prior to construction activities), hourly monitoring during 
construction activities, and post-activity monitoring (continuing for 
at least 30 minutes after construction activities have ended). PSOs 
shall conduct monitoring from a vantage point in the marsh (e.g., 
Yampah Island) such that all seal haul outs (see Figure 2 of the 
monitoring plan in the application) are in full view. During 
construction activities, monitoring shall assess behavior and potential 
behavioral responses to noise and visual disturbance due to the 
activities. To document disturbance and possible incidental take during 
construction activities, the monitoring protocols shall be implemented 
at all times when work is occurring either (1) in-water, (2) north of a 
line starting at 36[deg]48'38.91 N. 121[deg]45'08.03 W. and ending 
36[deg]48'38.91 N. 121 [deg]45'27.11 W. (see Figure 1 of the monitoring 
plan in the application), or (3) within 30.5 m (100 ft) of tidal 
waters. When work is occurring in other areas, monitoring shall occur 
for the first three days of construction and anytime there is a 
significant change in activities or location of construction activities 
within the project area. If disturbance is noted at any time, then 
monitoring shall continue until there are three successive days of no 
disturbance. If there is a gap in construction activities of more than 
one week, the monitoring protocols shall again be implemented for the 
first three days that construction resumes.
    Counts shall be performed for harbor seals hauled out and observed 
in the water. Total counts, sex, and age (adult, juvenile, pup) shall 
be recorded. Behavioral monitoring shall be conducted for the duration 
of the construction activities to document any behavioral responses to 
visual (or other) disturbance, according to the disturbance scale shown 
in Table 2 below. When responses are observed, the degree of response 
(i.e., alert and flush, movement of more than one m, or change in 
direction of movement) and the assumed cause (whether related to 
construction activities or not) will be noted. Only responses at Level 
2 and 3 are considered to be take under the MMPA.

                  Table 2--Seal Response to Disturbance
------------------------------------------------------------------------
         Level            Type of response            Definition
------------------------------------------------------------------------
1......................  Alert.............  Seal head orientation or
                                              brief movement in response
                                              to disturbance, which may
                                              include turning head
                                              towards the disturbance,
                                              craning head and neck
                                              while holding the body
                                              rigid in a u-shaped
                                              position, changing from a
                                              lying to a sitting
                                              position, or brief
                                              movement of less than
                                              twice the animal's body
                                              length. Alerts will be
                                              recorded, but not counted
                                              as a `take'.
2......................  Movement..........  Movements away from the
                                              source of disturbance,
                                              ranging from short
                                              withdrawals at least twice
                                              the animal's body length
                                              to longer retreats, or if
                                              already moving a change of
                                              direction of greater than
                                              90 degrees. These
                                              movements will be recorded
                                              and counted as a `take'.
3......................  Flush.............  All retreats (flushes) to
                                              the water. Flushing into
                                              the water will be recorded
                                              and counted as a `take'.
------------------------------------------------------------------------

    Additional parameters shall be recorded including: Atmospheric 
conditions, cloud cover, visibility conditions, air and water 
temperature, tide height, and any other disturbance (visual or noise) 
that may be noted. We require that PSOs use approved data forms. Among 
other pieces of information, CADFW shall record detailed information 
about any implementation of shutdowns, including the distance of 
animals to construction activities and description of specific actions 
that ensued and resulting behavior of the animal, if any. In addition, 
CADFW shall attempt to distinguish between the number of individual 
animals taken and the number of incidents of take. Additional 
requirements of PSOs include:

    (1) The PSO shall be selected prior to construction activities;
    (2) The PSO shall attend the project site prior to, during, and 
after construction activities cease each day that the construction 
activities occur (as outlined in the monitoring plan);
    (3) The PSO shall search for marine mammals on the seal haul outs, 
other suitable haul out habitat, and within the waters of this area 
from the observation site. PSOs shall use binoculars and the naked eye 
to search continuously for marine mammals;
    (4) The PSO shall be present during construction activities to 
observe for the presence of marine mammals in the vicinity of the 
specified activity (as outlined in the monitoring plan). All such 
activity will occur during daylight hours. If inclement weather limits 
visibility within the area of effect, the PSO will perform visual scans 
to the extent conditions allow. For pile driving activities, if the 15 
m area around the pile driving is obscured by fog or poor lighting 
conditions, pile driving shall not be initiated until that area is 
visible;
    (5) If marine mammals are sighted by the PSO, the PSO shall record 
the number of marine mammals and the duration of their presence while 
the construction activity is occurring. The PSO shall also note whether 
the marine mammals appeared to respond to the noise/visual disturbance 
and, if so, the nature of that response. The PSO shall record the 
following information; date and time of initial sighting, tidal stage, 
weather conditions, species, behavior (e.g., foraging, mating, etc.), 
group cohesiveness, direction and speed of

[[Page 16804]]

travel, etc., number, tagged animals, whether the animal(s) are in the 
water or hauled out, group composition, distance between construction 
activities and marine mammal(s), number of animals impacted, location, 
construction activities occurring at time of sighting (earth moving 
equipment, construction personnel walking/talking, pile driving etc.), 
and monitoring and mitigation measures implemented or not implemented). 
The observations shall be reported to NMFS; and
    (6) A final report shall be submitted summarizing all effects from 
construction activities and marine mammal monitoring during the time of 
the authorization.
    A written log of dates and times of monitoring activity shall be 
kept. The log shall report the following information:

     Time of PSO arrival on site;
     Time of the commencement of construction activities;
     Distances to all marine mammals relative to the 
disturbance;
     Observations, notes on marine mammal behavior during 
construction activities, as described above, and on the number and 
distribution observed in the project vicinity;
     For observations of all other marine mammals (if observed) 
the time and duration of each animal's presence in the project 
vicinity; the number of animals observed; the behavior of each animal, 
including any response to construction activities;
     Time of the cessation of construction activities; and
     Time of PSO departure from site.

    Individuals implementing the monitoring protocol shall assess its 
effectiveness using an adaptive approach. PSOs shall use their best 
professional judgment throughout implementation and seek improvements 
to these methods when deemed appropriate. Any modifications to protocol 
shall be coordinated between NMFS and the CADFW.

Reporting

    A draft report shall be submitted to NMFS within 90 days of the 
completion of marine mammal monitoring, or sixty days prior to the 
issuance of any subsequent IHA for this project (if required), 
whichever comes first. The report shall include marine mammal 
observations pre-activity, during-activity, and post-activity of 
construction, and will also provide descriptions of any behavioral 
responses by marine mammals due to disturbance from construction 
activities and a complete description of total take estimate based on 
the number of marine mammals observed during the course of 
construction. A final report shall be submitted within thirty days 
following resolution of comments on the draft report.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 
section 3(18) of the MMPA defines ``harassment'' as: ``. . . any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).''
    All anticipated takes will be by Level B harassment resulting from 
construction activities involving temporary changes in behavior. It is 
unlikely that injurious or lethal takes will occur even in the absence 
of the planned mitigation and monitoring measures. Further, the 
mitigation and monitoring measures are expected to minimize the 
possibility of take by Level A harassment, such that it is considered 
discountable.
    Given the many uncertainties in predicting the quantity and types 
of impacts of sound or visual disturbance on marine mammals, it is 
common practice to estimate how many animals are likely to be present 
within a particular distance of a given activity, or exposed to a 
particular level of sound or visual disturbance. In practice, depending 
on the amount of information available to characterize daily and 
seasonal movement and distribution of affected marine mammals, it can 
be difficult to distinguish between the number of individuals harassed 
and the instances of harassment and, when duration of the activity is 
considered, it can result in a take estimate that overestimates the 
number of individuals harassed. In particular, for stationary 
activities, it is more likely that some smaller number of individuals 
may accrue a number of incidences of harassment per individual than for 
each incidence to accrue to a new individual, especially if those 
individuals display some degree of residency or site fidelity and the 
impetus to use the site (e.g., because of foraging opportunities) is 
stronger than the deterrence presented by the harassing activity.
    In order to estimate the potential incidents of take that may occur 
incidental to the specified activity, we must first estimate the area 
subject to the disturbance that may be produced by the construction 
activities and then consider in combination information about harbor 
seals present and the number of days animals will be disturbed during 
the project. We then provide information to estimate potential 
incidents of take from disturbance as related to construction 
activities.

Introduction to Acoustic Criteria

    We use generic sound exposure thresholds to determine when an 
activity that produces sound might result in impacts to a marine mammal 
such that a take by harassment might occur. To date, no studies have 
been conducted that explicitly examine impacts to marine mammals from 
pile driving sounds or from which empirical sound thresholds have been 
established. The generic thresholds described below (Table 3) are used 
to estimate when harassment may occur (i.e., when an animal is exposed 
to levels equal to or exceeding the relevant criterion) in specific 
contexts. However, useful contextual information that may inform our 
assessment of effects is typically lacking and we consider these 
thresholds as step functions.

        Table 3--Current Acoustic Exposure Criteria for Pinnipeds
------------------------------------------------------------------------
          Criterion               Definition            Threshold
------------------------------------------------------------------------
Level B harassment             Behavioral        120 dB (non-impulse,
 (underwater).                  disruption.       continuous source,
                                                  i.e., vibratory pile
                                                  driving) (rms)
Level B harassment (airborne)  Behavioral        90 dB (harbor seals)
                                disruption.
------------------------------------------------------------------------


[[Page 16805]]

Sound Produced From Construction Activities

    Any underwater noise produced during pile driving in Minhoto-Hester 
Marsh will attenuate according to the shoreline topography. In a narrow 
and relatively shallow slough, bends and topographic changes in the 
bottom will act to reflect sound and attenuate sound levels. Seals 
within the project area, from the sound source (vibratory pile driving) 
to the north bank of the main channel of Elkhorn Slough (approximately 
525-600 m; see Figure 6-4 in the application), may be impacted by noise 
and were used as the area to define Level B take estimates. Seals may 
be exposed to underwater noise that could cause behavioral harassment 
(i.e., above NMFS' 120-dB (rms re 1 [mu]Pa) behavioral harassment 
criterion) only within a small area (see Figure 6-4 of the 
application). This small section of channel defines the extent of the 
potential Level B harassment zone for underwater noise.
    Restoration activities will produce airborne noise that could 
potentially harass harbor seals that are hauled out near the 
activities. For example, airborne noise produced from earth moving 
equipment (i.e., backhoes, front end loaders) for construction, may 
produce sound levels at 80-90 dB at 15.24 m (Federal Highway 
Administration, 2015). However, disturbance resulting from use of heavy 
equipment or other aspects of the work could occur due to visual 
stimuli or airborne noise, and the likely range within which seals may 
be disturbed will be larger than the range to the 90-dB airborne noise 
disturbance criterion. Therefore, we do not evaluate takes specifically 
due to exposure to airborne noise and do not discuss airborne noise 
further in this document.

Description of Take Calculation

    The following sections are descriptions of how take was determined 
for impacts to harbor seals from noise and visual disturbance related 
to construction activities.
    Incidental take is calculated for each species by estimating the 
likelihood of a marine mammal being present within the project area 
during construction activities. Expected marine mammal presence is 
determined by past observations and general abundance during the 
construction window. For this project, the take requests were estimated 
using local marine mammal data sets, and information from state and 
federal agencies.
    The calculation for marine mammal exposures is estimated by:

    Exposure estimate = N (number of animals in the area) * 132 days of 
construction activities or 4 days of pile driving activity

    All estimates by the applicant and accepted by NMFS, are considered 
conservative. Construction activities will occur in sections, and some 
sections (e.g., M1) are further away from seal haul outs (approximately 
420 m and greater). Noise from construction activities in more southern 
sections of the footprint of the construction area may cause fewer 
disturbances to seals. Not all seals that previously used the haul outs 
within the footprint of the construction area will use the haul outs 
just outside the project. The channel is small and the available 
habitat will likely not be able to support all 100 seals of the 
Minhoto-Hester Marsh Complex. Some seals may seek alternative haul out 
habitat in other parts of Elkhorn Slough. Pile driving will only occur 
for a short duration (four days) and will not be continuous during the 
day (daylight hours only). Using this approach, a summary of estimated 
takes of harbor seals incidental the project activities are provided in 
Table 4. Estimates include Level B harassment as a result of exposure 
to noise and visual disturbance during construction activities.
    The best scientific information available was considered for use in 
the harbor seal take assessment calculations. It is difficult to 
estimate the number of harbor seals that could be affected by 
construction activities because the animals are mainly either in the 
project area or venture near the project area to haul out during the 
day when the tide is low. Once the tidal channel is blocked and four 
haul out sites (Small Island, M2 North, M3 North and M3 East) are 
inaccessible, some seals will be able to use the alternative four hauls 
outs (M5 Northeast, M5 Southeast, Yampah Northwest and Yampah 
Southwest). Seals that use these alternative four haul outs may be 
potentially impacted from noise and visual disturbance from 
construction activities of the tidal marsh restoration, but seals that 
normally use areas in the interior tidal channel may use haul outs that 
are outside the expected area of influence of the construction 
activity.
    Various types of construction equipment (in addition to pile 
drivers) will be utilized for project activities such as dozers, 
loaders, and backhoes that may generate sound that can cause both noise 
and visual disturbance to harbor seals. Although the exact distance of 
all noise disturbances from construction activities is unknown, it is 
anticipated that the disturbance area for airborne noise will be small 
as earth moving equipment (i.e., backhoes, front end loaders) produce 
sound levels at 80-90 dB at 15.24 m and vibratory driving of sheet 
piles at 90 dBA at 30 m (dBA can be defined as dB with A-weighting 
designed to match the average frequency response of human hearing and 
enables comparison of the intensity of noise with different frequency 
characteristics). The closest haul outs that will be available to seals 
are 43-131 m outside the footprint of the construction area. If seals 
are in the water near the project or on available haul outs there is a 
chance that seals could be exposed to noise and/or visual disturbance 
from the construction activities. Construction activities may impact 
seals using haul outs M5 Northeast, M5 Southeast, Yampah Northwest and 
Yampah Southwest.
    We assume that an average of 50 harbor seals will potentially 
occupy the alternate haul outs based on the size of the haul out 
habitat that is available. Four haul outs (out of eight) will be 
temporarily inaccessible during the construction; therefore, half of 
the seals (approximately 50 out of the 100 seals) of the Minhoto-Hester 
Marsh Complex will likely use the alternate four haul outs and 
experience disturbance from construction activities. It is presumed 
that the other half of the seals (50 seals) of the Minhoto-Hester March 
Complex will utilize other suitable haul out habitat within Elkhorn 
Slough and are not considered available to be ``taken'' during 
construction activities (Monique Fountain, Elkhorn Slough National 
Estuarine Research Reserve, pers. comm. 2016). We multiply this 
estimate of the number of harbor seals potentially available to be 
taken by the total number of days (132 days) the applicant expects 
construction activities to occur. Therefore, NMFS authorizes 132 
instances of takes for 50 harbor seals (total of 6,600 instances) by 
Level B harassment incidental to construction activities (airborne 
noise and visual disturbance) over the course of the action if all of 
the estimated harbor seals present are taken by incidental harassment 
each day (Table 4). Note: NMFS does not assume that the 50 seals will 
be the same individuals taken during each of the 132 days of 
construction; rather some seals in the area may be taken more times 
than others if they stay in the area and do not utilize other parts of 
the Slough.
    While the pile driving activities are planned to take place during 
slack tide to the extent possible (when harbor seals are less likely to 
be present), and only for a short duration, there may still

[[Page 16806]]

be animals exposed to disturbance from pile driving even if the number 
of individual harbor seals expected to be encountered is very low. 
There are approximately 100 harbor seals that utilize Minhoto-Hester 
Marsh Complex that may be disturbed during pile driving activities. 
Additionally, there is some potential that an additional 100 harbor 
seals that occur in the adjacent Parson's Slough Complex and Yampah 
Marsh and 50 harbor seals that may be present in the main channel of 
Elkhorn Slough could also be disturbed. NMFS authorizes four instances 
of take for 250 harbor seals (total of 1,000 instances) by Level B 
harassment incidental to pile driving activities over the course of the 
action if all of the estimated harbor seals present are taken by 
incidental harassment each day. This is an estimate based on the 
average number of harbor seals that potentially occupy the project area 
(and surrounding areas) (250 seals) multiplied by the total number of 
days (four days) the applicant expects pile driving activities to occur 
(Table 4). Note: NMFS does not assume that the 250 seals will be the 
same individuals taken during each of the four days of construction; 
rather some seals in the area may be taken more times than others if 
they stay in the area and do not utilize other parts of the Slough. 
This is a very conservative estimate, as not all the seals are likely 
in or near the project area at the same time, some of which are due to 
environmental variables such as tide level and the time of day. In the 
Minhoto-Hester Marsh Complex, a maximum daily average of 40 seals were 
present in the project area (on Small Island, M2 North, M3 North, and 
M3 East haul out sites) and 41 seals outside the project area (on M5 
Northeast, M5 Southeast, Yampah Northwest and Yampah Southwest haul out 
sites) during the 2013 surveys, which is slightly less than the 100 
seals that may be taken. In addition, noise attenuates quickly due to 
shallow water, tidal influence and sinewy channels of Elkhorn Slough. 
NMFS considers this to be an conservative estimate by the applicant for 
the following reasons: (1) It will be unlikely that all 250 seals will 
be in the vicinity of the project area daily as there are other areas 
of the Slough that they likely use to haul out (see Figure 4-4 of the 
application); (2) as mentioned above, the haul out sites within the 
footprint of the construction area will be inaccessible to harbor seals 
and NMFS do not expect harbor seals to be affected by pile driving 
activities during the days/times when pile driving and high tide events 
co-occur; (3) harbor seals begin to leave the project area at night 
when they are likely foraging in Monterey Bay and will not be exposed 
to sound generated during pile driving that may take place during early 
evening hours; and, (4) based on previous survey effort conducted for 
the adjacent Parson's Slough project, some harbor seals moved out of 
the disturbance area when construction activities were initiated and 
moved west (downstream) towards Seal Bend or other areas of suitable 
habitat along the main channel of Elkhorn Slough (see Figure 4-4 of the 
application).

 Table 4--Summary of the Authorized Incidental Take by Level B Harassment of Harbor Seals From Pile Driving and
                                             Construction Activities
----------------------------------------------------------------------------------------------------------------
                                                     Take                          Approximate
                                 Estimated      authorization                     percentage of
                                 number of        (number of        Abundance       estimated
           Species              seals taken     exposures from     (California    stock  (takes     Population
                                per day of       construction        stock)        authorized/        trend
                                 activity      activities--132                     population)
                                  (seals)           days)                              (%)
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal.........              50              6,600          30,968           19.37  Increased in
                                                                                                  California
                                                                                                  1981 to 2004.
----------------------------------------------------------------------------------------------------------------
Species                       ..............               Take       Abundance  ..............  Population
                                                  authorization                                   trend
                                                     (number of
                                                 exposures from
                                                pile driving--4
                                                          days)
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal.........             250              1,000          30,968             3.2  Increased in
                                                                                                  California
                                                                                                  1981 to 2004.
                             -------------------------------------------------------------------
    Total...................             300              7,600  ..............           24.54  ...............
----------------------------------------------------------------------------------------------------------------

    No takes by Level A harassment, serious injury, or mortality are 
expected from the disturbance associated with the construction 
activities. It is unlikely adult seals will flush into the water 
injuring or abandoning any pups. No pupping is expected within the 
footprint of the construction area as most pups are found along the 
main channel of Elkhorn Slough. Pacific harbor seals have been hauling 
out in the project area and within the greater Elkhorn Slough 
throughout the year for many years (including during pupping season and 
while females are pregnant) while being exposed to anthropogenic sound 
sources such as recreational vessel traffic, UPRR, and other stimuli 
from human presence. The number of harbor seals disturbed will likely 
also fluctuate depending on time day and tidal stage. Fewer harbor 
seals will be present in the early morning and approaching evening 
hours as seals leave the haul out site to feed and they are also not 
present when the tide is high and the haul out is inundated.
    The following assumptions are made when estimating potential 
incidences of take:

     All marine mammal individuals potentially available are 
assumed to be present within the relevant area, and thus incidentally 
taken;
     An individual can only be taken once during a 24-h period;
     There were will be 136 total days of activity for project 
(four days of pile driving and 132 construction activities); and
     Exposures to sound levels at or above the relevant 
thresholds equate to take, as defined by the MMPA.

Analyses and Determinations

Negligible Impact Analysis

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``. . . 
an

[[Page 16807]]

impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.'' A negligible impact finding is based on the lack of likely 
adverse effects on annual rates of recruitment or survival (i.e., 
population-level effects). An estimate of the number of Level B 
harassment takes alone is not enough information on which to base an 
impact determination. In addition to considering estimates of the 
number of marine mammals that might be ``taken'' through behavioral 
harassment, we consider other factors, such as the likely nature of any 
responses (e.g., intensity, duration), the context of any responses 
(e.g., critical reproductive time or location, migration), as well as 
the number and nature of estimated Level A harassment takes, the number 
of estimated mortalities, and effects on habitat.
    Construction activities associated with this project have the 
potential to disturb or displace marine mammals. No serious injury or 
mortality is expected at all, and with mitigation we expect to avoid 
any potential for Level A harassment as a result of the Minhoto-Hester 
Marsh construction activities, and none are authorized by NMFS. The 
specified activities may result in take, in the form of Level B 
harassment (behavioral disturbance) only, from visual disturbance and/
or noise from construction activities. The project area is within a 
portion of the local habitat for harbor seals of the greater Elkhorn 
Slough and seals are present year-round. Behavioral disturbances that 
could result from anthropogenic sound or visual disturbance associated 
with these activities are expected to affect only a small amount of the 
total population (i.e., likely maximum of 250 seals), although those 
effects could be recurring over the life of the project if the same 
individuals remain in the project vicinity. Harbor seals may avoid the 
area or halt any behaviors (e.g., resting) when exposed to 
anthropogenic noise or visual disturbance. Due to the abundance of 
suitable haul out habitat available in the greater Elkhorn Slough, the 
short-term displacement of resting harbor seals is not expected to 
affect the overall fitness of any individual animal.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
displacement from the area or disturbance during resting. The 
construction activities analyzed here are similar to, or less impactful 
than for Parson's Slough (and other projects) which have taken place 
with no reported injuries or mortality to marine mammals, and no known 
long-term adverse consequences from behavioral harassment. Repeated 
exposures of individuals to levels of noise or visual disturbance that 
may cause Level B harassment are unlikely to result in hearing 
impairment or to significantly disrupt foraging behavior. Many animals 
perform vital functions, such as feeding, resting, traveling, and 
socializing, on a diel cycle (i.e., 24 hour cycle). Behavioral 
reactions (such as disruption of critical life functions, displacement, 
or avoidance of important habitat) are more likely to be significant if 
they last more than one diel cycle or recur on subsequent days 
(Southall et al., 2007). However, Pacific harbor seals have been 
hauling out at Elkhorn Slough during the year for many years (including 
during pupping season and while females are pregnant) while being 
exposed to anthropogenic sound and visual sources such as vessel 
traffic, UPRR trains, and human voices from kayaking. Harbor seals have 
repeatedly hauled out to rest (inside and outside the project area) or 
pup (outside of the project area) despite these potential stimuli. The 
activities are not expected to result in the alteration of reproductive 
or feeding behaviors. No births have been documented in the project 
area and it is not likely that neonates will be in the project area as 
females prefer to keep their pups along the main channel of Elkhorn 
Slough, which is outside the area expected to be impacted by project 
activities. Seals are primarily foraging outside of Elkhorn Slough and 
at night in Monterey Bay, outside the project area, and during times 
when construction activities are not occurring.
    Pacific harbor seals, as the potentially affected marine mammal 
species under NMFS jurisdiction in the action area, are not listed as 
threatened or endangered under the ESA and NMFS SARs for this stock 
have shown that the population is increasing and is considered stable 
(Carretta et al., 2016). Even repeated Level B harassment of some small 
subset of the overall stock is unlikely to result in any significant 
realized decrease in viability for the affected individuals, and thus 
will not result in any adverse impact to the stock as a whole. The 
restoration of the marsh habitat will have no adverse effect on marine 
mammal habitat, but possibly a long-term beneficial effect on harbor 
seals by improving ecological function of the slough, inclusive of 
higher species diversity, increased species abundance, larger fish, and 
improved habitat.
    In summary, this negligible impact analysis is founded on the 
following factors: (1) The possibility of injury, serious injury, or 
mortality may reasonably be considered discountable; (2) the 
anticipated incidents of Level B harassment consist of, at worst, 
temporary modifications in behavior; (3) primary foraging and 
reproductive habitat are outside of the project area and the 
construction activities are not expected to result in the alteration of 
habitat important to these behaviors or substantially impact the 
behaviors themselves; (4) there is alternative haul out habitat just 
outside the footprint of the construction area, along the main channel 
of Elkhorn Slough, and in Parson's Slough that will be available for 
seals while some of the haul outs are inaccessible; (5) restoration of 
the marsh habitat will have no adverse effect on marine mammal habitat, 
but possibly a long-term beneficial effect; (6) and the presumed 
efficacy of the mitigation measures in reducing the effects of the 
specified activity to the level of least practicable impact. In 
addition, these stocks are not listed under the ESA or considered 
depleted under the MMPA. In combination, we believe that these factors, 
as well as the available body of evidence from other similar 
activities, demonstrate that the potential effects of the specified 
activities will have only short-term effects on individuals. The 
specified activities are not expected to impact rates of recruitment or 
survival and will therefore not result in population-level impacts.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, we preliminarily find that the total marine mammal take from 
the construction activities will have a negligible impact on the 
affected marine mammal species or stocks.

Small Numbers Analyses

    The number of incidents of take authorized for harbor seals is 
considered small relative to the relevant stock and populations (see 
Table 4) even if each estimated taking occurred to a new individual. 
This is an extremely unlikely scenario as, for pinnipeds in estuarine/
inland waters, there is likely to be some overlap in individuals 
present day-to-day. As noted above, we assume that a maximum of 250 
seals will be impacted during the course of this specified activity. 
While we cannot say that the same 250 individual seals

[[Page 16808]]

would be affected, we believe that there is a minimal exchange of 
individuals over time and that the number of individuals would not be 
appreciably larger than this. We preliminarily find that small numbers 
of marine mammals will be taken relative to the populations of the 
affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by these actions. Therefore, we have determined that the total taking 
of harbor seals will not have an unmitigable adverse impact on the 
availability of such species or stocks for taking for subsistence 
purposes.

Endangered Species Act (ESA)

    No ESA-listed marine mammal species under NMFS' jurisdiction are 
expected to be affected by these activities. Therefore, NMFS has 
determined that a section 7 consultation under the ESA is not required.

National Environmental Policy Act

    NMFS prepared an SEA and analyzed the potential impacts to marine 
mammals that will result from the project. After reviewing the project, 
NMFS determined the Minhoto-Hester Marsh restoration fell within the 
scope and effects of activities analyzed in the NOAA Restoration 
Center, Southwest Region Community-Based Restoration Program's (CRP) 
August 2010 Targeted SEA (TSEA) for the Parson's Slough Project (the 
adjoining salt marsh to the Minhoto-Hester Marsh and also within 
Elkhorn Slough), as well as the February 6, 2002 Programmatic EA (PEA) 
for the CRP Implementation Plan and the June 23, 2006 Supplemental PEA 
the CRP Implementation Plan (SPEA). The impacts to ESA listed species 
and marine mammals under the MMPA were analyzed in the TSEA, PEA, and 
SPEA; however, updated as is relevant for this SEA. The SEA level of 
review was conducted in accordance with the implementation procedures 
described in the SPEA (specifically for Sediment Removal and Materials 
Placement in the tidal wetlands environment) and appropriately focused 
on consideration of effects to species listed under the ESA and 
protected under the MMPA (e.g., noise, displacement, habitat quality/
quantity). Beyond consideration of site-specific effects to these 
species, our review of the action did not reveal any substantial 
changes in the action or new potentially significant adverse effects to 
other elements of the human environment which would require additional 
review in the SEA. NMFS considered comments submitted in response to 
our Federal Register notice of the proposed IHA and the CADFW 
application as part of the process. The FONSI was signed on November 
15, 2016.

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
CADFW for the harassment of small numbers of harbor seals incidental to 
the Minhoto-Hester Marsh restoration project in Elkhorn Slough, 
Monterey, California, effective for one year beginning August 1, 2017, 
provided the previously mentioned mitigation, monitoring and reporting 
requirements are incorporated.

    Dated: March 31, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Services.
[FR Doc. 2017-06791 Filed 4-5-17; 8:45 am]
BILLING CODE 3510-22-P