[Federal Register Volume 83, Number 106 (Friday, June 1, 2018)]
[Notices]
[Pages 25438-25440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11785]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF985


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Coast Boulevard Improvements 
Project, La Jolla, California

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

ACTION: Notice; issuance of incidental harassment authorization (IHA).

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SUMMARY: NMFS has received a request from the City of San Diego (the 
City) for an incidental harassment authorization (IHA) to take three 
species of marine mammals, by Level B harassment only, incidental to 
Coast Boulevard improvements in La Jolla, California. The project has 
been delayed, such that none of the work covered in the identical IHA 
issued in 2017 was initiated and, therefore, the City requested that an 
identical IHA be issued to cover the same work in 2018. NMFS is, 
therefore, issuing a second IHA to cover the incidental take analyzed 
and authorized in the initial IHA. The scope of the activities and 
anticipated effects remain the same, authorized take numbers would not 
change, and the required mitigation, monitoring, and reporting would 
remain the same as authorized in the 2017 IHA referenced above. NMFS is 
therefore notifying the public about the issuance of an IHA to the City 
to incidentally take marine mammals, by Level B harassment only, during 
the City's Coast Boulevard improvements.

DATES: Valid June 1, 2018 through May 31, 2019.

ADDRESSES: An electronic copy of the final 2017 IHA previously issued 
to the City, the City's application, and the Federal Register notices 
proposing and issuing the 2017 IHA may be obtained by visiting https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems 
accessing these documents, please call the contact listed below (see 
FOR FURTHER INFORMATION CONTACT).

[[Page 25439]]


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

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act 
(MMPA; 16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as 
delegated to NMFS) to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals 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 is provided to the 
public for review.
    An 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.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    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).

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action with respect to environmental 
consequences on the human environment.
    Accordingly, NMFS has determined that the issuance of the IHA 
qualifies to be categorically excluded from further NEPA review. This 
action is consistent with categories of activities identified in CE B4 
of the Companion Manual for NOAA Administrative Order 216-6A, which do 
not individually or cumulatively have the potential for significant 
impacts on the quality of the human environment and for which we have 
not identified any extraordinary circumstances that would preclude this 
categorical exclusion.

History of Request

    NMFS received a request from the City for authorization to take 
marine mammals incidental to Coast Boulevard improvements in La Jolla, 
California on December 16, 2016. On March 1, 2017, we deemed the City's 
application for authorization to be adequate and complete. We published 
a notice of a proposed IHA and request for comments on April 26, 2017 
(82 FR 19221), and subsequently issued an IHA to the City on May 31, 
2017, and published final notice of our issuance of the IHA on June 29, 
2017 (82 FR 29511).
    On October 19, 2017, the City informed NMFS that while some 
structural integrity testing of the existing concrete at the project 
location had occurred over 4 days in July, none of the work identified 
in the IHA that was expected to result in the take of marine mammals 
(i.e., construction or demolition work) had occurred and no take of any 
marine mammals had occurred.
    On January 4, 2018, the City submitted a formal request for a new 
identical IHA that would be effective from June 1, 2018 through 
December 14, 2018, in order to conduct the construction and demolition 
work that was analyzed and authorized through the previously issued 
IHA.
    The planned activities are the same as those proposed in the 
previous IHA application and the potential incidental take the same as 
that authorized through the previously issued IHA, and include 
improvements to an existing public parking lot, sidewalk, and 
landscaping areas located on the bluff tops above Children's Pool, a 
public beach located in La Jolla, California. Species that are expected 
to be taken by the planned activity include harbor seal (Phoca 
vitulina), California sea lion (Zalophus californianus), and northern 
elephant seal (Mirounga angustirostris). The City's request was for 
harassment only and NMFS concurs that mortality is not expected to 
result from this activity. Therefore, an IHA is appropriate.

Description of Proposed Activity and Anticipated Impacts

    The 2017 IHA covered improvements to an existing public parking 
lot, sidewalk, and landscaping areas located on the bluff tops above 
Children's Pool to upgrade public access and safety. Planned demolition 
activities included the removal of existing parking lot paving; 
concrete curb, gutter, and sidewalk; and the removal of existing 
irrigation and plant materials. Planned construction activities 
included subgrade preparation, asphalt paving, and marking of parking 
stalls; pouring of concrete curb, gutter, and sidewalk; construction of 
rock walls, installation of fencing, placement of landscape boulders, 
installation of landscaping and irrigation; and finishing and clean up. 
The 2017 IHA authorized the Level B harassment of 1,620 harbor seals, 
36 California sea lions and 14 northern elephant seals. The City did 
not conduct any demolition or construction activities, and no takes of 
marine mammals occurred, and now requests that this second IHA cover 
all demolition and construction activities as those proposed in the 
2017 IHA application and authorized via the 2017 IHA.
    We refer to the documents related to the previously issued IHA, 
which include the Federal Register notice of the issuance of the 2017 
IHA for the City's construction and demolition work (82 FR 29511), the 
City's application, the Federal Register notice of the proposed IHA (82 
FR 19221), and all associated references and documents.
    Detailed Description of the Action--A detailed description of the 
proposed demolition and construction activities is found in these 
previous documents. The location, timing, and nature of the activities, 
including the types of equipment planned for use, are identical to 
those described in the previous notices.
    Description of Marine Mammals--A description of the marine mammals 
in the area of the activities is found in these previous documents, 
which remains applicable to this IHA as well. In addition, NMFS has 
reviewed recent draft Stock Assessment Reports, information on relevant 
Unusual Mortality Events, and recent scientific literature, and 
determined that no new information affects our original analysis of 
impacts under the current IHA. Since issuing the 2017 IHA, NMFS 
published draft Stock Assessment Reports (SARs) (82 FR 60181; 19 
December 2017). The abundance estimates reported in the draft SARs did 
not change for any of

[[Page 25440]]

three species proposed to be taken in this authorization.
    Potential Effects on Marine Mammals--A description of the potential 
effects of the specified activities on marine mammals and their habitat 
is found in these previous documents, which remains applicable to this 
IHA. There is no new information on potential effects.
    Estimated Take--A description of the methods and inputs used to 
estimate take anticipated to occur and, ultimately, the take that was 
authorized is found in these previous documents. The methods of 
estimating take are identical to those used in the previous IHA, as is 
the density of marine mammals. The number of takes authorized is the 
same as the number of takes authorized via the previous IHA. Level A 
incidental take is not expected to occur for the same reasons discussed 
in the previous documents and none is authorized.
    Description of Mitigation, Monitoring and Reporting Measures--A 
description of mitigation, monitoring, and reporting measures is found 
in the previous documents, which are identical in this IHA. In summary, 
mitigation will include limiting construction to outside of the harbor 
seal pupping season (December 15 to May 15), limiting construction to 
daylight hours only, using the loudest equipment only between 8:30 a.m. 
and 3:30 p.m., and monitoring both airborne noise and marine mammals. 
One trained protected species observer will monitor the proposed 
activities to collect information of responses of marine mammals to the 
activities.
    On October 19, 2017, the City submitted a monitoring report for the 
minimal work that had been completed on the existing concrete under the 
2017 IHA (work that was not expected to result in take of marine 
mammals, but which was part of the overarching activity). The City 
complied with all mitigation, monitoring, and reporting protocols. No 
marine mammal takes were expected, authorized, or recorded. The 
monitoring report can be viewed on NMFS's website: 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

Determinations

    The City will conduct activities identical to those analyzed in the 
previous 2017 IHA. As described above, the number of authorized takes 
of the same species and stocks of marine mammals are identical to the 
numbers that were found to meet the negligible impact and small numbers 
standards and authorized under the 2017 IHA. This 2018 IHA includes 
identical required mitigation, monitoring, and reporting measures as 
the 2017 IHA, and there is no new information suggesting that our 
analysis or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has determined the following: (1) The required 
mitigation measures will effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; and (4) the City's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    However, no incidental take of ESA-listed species is authorized or 
expected to result from this activity. Therefore, NMFS has determined 
that formal consultation under section 7 of the ESA is not required for 
this action.

Authorization

    NMFS has issued an IHA to the City of San Diego for Coast Boulevard 
improvements in La Jolla, CA from June 1, 2018 through May 31, 2019. 
All previously described mitigation, monitoring, and reporting 
requirements from the 2017-2018 IHA are incorporated.

    Dated: May 25, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-11785 Filed 5-31-18; 8:45 am]
 BILLING CODE 3510-22-P