[Federal Register Volume 86, Number 79 (Tuesday, April 27, 2021)]
[Notices]
[Pages 22151-22160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08671]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB032]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Army Corps of Engineers Port San 
Luis Breakwater Repair Project, Avila Beach, California

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 Army Corps of Engineers (ACOE) to incidentally harass, by Level B 
harassment only, marine mammals during construction activities 
associated with the Port San Luis Breakwater Repair Project in Avila 
Beach, California.

DATES: This Authorization is effective from April 1, 2022 through March 
31, 2023.

FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, Ph.D., Office of 
Protected Resources, NMFS, (301) 427-8401. Electronic copies of the 
application and supporting documents, as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the 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 incidental take authorization may be provided to the public 
for review.

[[Page 22152]]

    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

Summary of Request

    On March 13, 2020, NMFS received an application from the ACOE 
requesting an IHA to take small numbers of three species of pinnipeds 
incidental to resetting and replacing stone and dredging associated 
with the San Luis Breakwater Repair Project. ACOE subsequently notified 
us that funding, workload and other issues led them to delay the 
project 1 year. A revised application was sent on February 18, 2021 and 
the application process was reinitiated. The application was deemed 
adequate and complete on March 1, 2021. ACOE's request is for take of a 
small number of three species of marine mammals by Level B harassment. 
Neither the ACOE nor NMFS expects serious injury or mortality to result 
from this activity and, therefore, an IHA is appropriate.

Description of Specified Activity

Overview

    The project consists of the repair of a deteriorating breakwater at 
Port San Luis, California. Repair work includes minor excavation of 
shoaled sediment (~ 15,000 cubic yards (11,470 cubic meters)) adjacent 
to the leeward side of the breakwater to create adequate depths for 
barges and support boats to access the breakwater for the repair. 
Approximately 29,000 tons (26,310 metric tons) of existing stone would 
need to be reset and 60,000 tons (54,430 metric tons) of new stone 
would be placed to restore the most heavily damaged portion of the 
breakwater. The project is expected to take no more than 174 work days 
over 7 months. The sounds and visual disturbance from the work can 
result in take of marine mammals through behavioral harassment and/or 
auditory injury. A detailed description of the planned project is 
provided in the Federal Register notice for the proposed IHA (86 FR 
14579; March 17, 2021). Since that time, no changes have been made to 
the planned activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
description of the specific activity.

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to the ACOE was 
published in the Federal Register on March 17, 2021 (86 FR 14579). That 
notice described, in detail, the ACOE'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 public comment from one commenter. The U.S. Geological 
Survey noted they have ``no comment at this time''.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is expected and 
authorized for this action, and summarizes information related to the 
population or stock, including regulatory status under the MMPA and ESA 
and potential biological removal (PBR), where known. For taxonomy, we 
follow Committee on Taxonomy (2019). PBR is 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 (as described in 
NMFS's SARs). While no mortality is anticipated or authorized here, PBR 
and annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Pacific SARs and draft SARs (e.g., Carretta et al. 2019, 
2020).

                    Table 1--Species That Spatially Co-Occur With the Activity to the Degree That Take Is Reasonably Likely To Occur
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      ESA/MMPA status;   Stock abundance (CV,
            Common name                  Scientific name              Stock           strategic (Y/N)      Nmin, most recent        PBR      Annual M/SI
                                                                                            \1\          abundance survey) \2\                   \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    California Sea Lion............  Zalophus californianus  United States.........  -, -, N            257,606 (N/A, 233,515,       14,011         >321
                                                                                                         2014).
    Steller Sea Lion...............  Eumetopias jubatus....  Eastern DPS...........  -, -, N            43,210 (N/A, 43,201,          2,592          113
                                                                                                         2017).
Family Phocidae (earless seals):

[[Page 22153]]

 
    Harbor seal....................  Phoca vitulina........  California............  -, -, N            30,968 (N/A, 27,348,          1,641           43
                                                                                                         2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 Potential Biological Removal (PBR) 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\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual mortality/serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a
  minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.

    A detailed description of the species likely to be affected by the 
project, including brief introductions to the species and relevant 
stocks 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 (86 FR 14579; March 
17, 2021); since that time, we are not aware of any changes in the 
status of these species and stocks; therefore, detailed descriptions 
are not provided here. Please refer to that Federal Register notice for 
these descriptions. Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the ACOE's construction 
activities have the potential to result in behavioral harassment of 
marine mammals in the vicinity of the project area. The notice of 
proposed IHA (86 FR 14579; March 17, 2021) included a discussion of the 
effects of anthropogenic noise on marine mammals and the potential 
effects of underwater noise from the ACOE's construction on marine 
mammals and their habitat. That information and analysis is 
incorporated by reference into this final IHA determination and is not 
repeated here; please refer to the notice of proposed IHA (86 FR 14579; 
March 17, 2021).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. 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).
    Authorized takes would primarily be by Level B harassment, as use 
of the acoustic source (i.e., rock setting) and visual disturbance has 
the potential to result in disruption of behavioral patterns for 
individual marine mammals. Based on the nature of the activity, Level A 
harassment is neither anticipated nor authorized. The mitigation and 
monitoring measures are expected to minimize the severity of the taking 
to the extent practicable.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Due to the lack of marine 
mammal density for some species, NMFS relied on local occurrence data 
and group size to estimate take. For activities like this with visual 
disturbance impacts we must also estimate the area or space within 
which harassment is likely to occur. Below, we describe the factors 
considered here in more detail and present the take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment). Thresholds have also 
been developed identifying the received level of in-air sound above 
which exposed pinnipeds would likely be behaviorally harassed.
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 decibel (dB) re 1 microPascal ([mu]Pa) (root 
mean square (rms)) for continuous (e.g., vibratory pile-driving) and 
above 160 dB re 1 [mu]Pa (rms) for non-explosive impulsive (e.g., 
impact pile driving) or intermittent (e.g., scientific sonar) sources. 
The ACOE's

[[Page 22154]]

proposed activity includes the use of continuous (general construction 
equipment and machinery) and impulsive (rock setting) sources, and 
therefore the 120 and 160 dB re 1 [mu]Pa (rms) thresholds are 
applicable.
    For in-air sounds, NMFS predicts that harbor seals exposed above 
received levels of 90 dB re 20 [mu]Pa (rms) will be behaviorally 
harassed, and other pinnipeds will be harassed when exposed above 100 
dB re 20 [mu]Pa (rms).
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual 
criteria to assess auditory injury (Level A harassment) to five 
different marine mammal groups (based on hearing sensitivity) as a 
result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). The ACOE's activity includes the use of 
impulsive (rock setting) and non-impulsive (general construction) 
sources.
    These thresholds are provided in Table 2. The references, analysis, 
and methodology used in the development of the thresholds are described 
in NMFS 2018 Technical Guidance, which may be accessed at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                    PTS onset acoustic thresholds *  (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB    Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
  National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
  incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
  ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
  generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
  the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
  be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
  it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    The sound field in the project area is the existing background 
noise plus additional construction noise from the proposed project. 
Marine mammals are expected to be affected via sound generated by the 
primary components of the project (i.e., rock setting and sediment 
removal).

Level B Harassment Zones

    Transmission loss (TL) is the decrease in acoustic intensity as an 
acoustic pressure wave propagates out from a source. TL parameters vary 
with frequency, temperature, sea conditions, current, source and 
receiver depth, water depth, water chemistry, and bottom composition 
and topography. The general formula for underwater TL is:

TL = B * Log10 (R1/R2),

where,

TL = transmission loss in dB
B = transmission loss coefficient; for practical spreading equals 15
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement

    The recommended TL coefficient for most nearshore environments is 
the, practical spreading value of 15. This value results in an expected 
propagation environment that would lie between spherical and 
cylindrical spreading loss conditions, which is the most appropriate 
assumption for the ACOE's proposed activity.
    In order to calculate distances to the Level A harassment and Level 
B harassment sound thresholds for this project, NMFS used acoustic 
monitoring data collected by the ACOE. In February 2019 a team of 
researchers from the ACOE Los Angeles District and Engineer Research 
and Development Center traveled to a breakwater repair project at the 
Port of Long Beach, CA to collect representative sound data in 
anticipation of the Port San Luis breakwater project. Maintenance 
activities on the Long Beach, CA breakwater provided near identical 
conditions to the proposed work activities at Port San Luis, but the 
Long Beach site has no marine mammals nearby. At Long Beach they 
collected in-air and in-water sound recordings from both the rock 
setting and other construction equipment sounds. They also recorded 
ambient sound data at San Luis Obispo, CA near the breakwater to be 
used as a baseline measurement for proposed repair work. The analysis 
of the sound files provided by the ACOE to determine source levels 
relevant to marine mammal exposures contained some methods that we did 
not entirely concur with, but our acoustics expert (Dr. Shane Guan) was 
able to determine from them that in-water noise would not exceed marine 
mammal thresholds beyond 10 meters (m) (33 feet) from the source. He 
was also able to determine that in-air noise would not exceed the 
pinniped in-air thresholds at a distance greater than 100 m (328 feet) 
from the source.

Visual Disturbance

    During the above-mentioned acoustic surveys of the similar 
breakwater repair work at the Port of Long Beach pinnipeds maintained a 
minimum approximate 150 foot (46 m) distance from construction 
equipment and personnel (Natalie Martinez-Takeshita, ACOE, personal 
communication 2020). Observations on a past breakwater repair project 
in Redondo Harbor, California showed that pinnipeds that

[[Page 22155]]

flushed from distances up to 100 m (Natalie Martinez-Takeshita, ACOE, 
personal communication 2021). As noted above the construction barge 
could be up to 260 feet (80 m) long with activity occurring 
simultaneously at either end as well as the full reach of the crane. 
Based on the above information, we conservatively estimate a 200 m (660 
ft) radius potential effect zone for Level B harassment of pinnipeds by 
visual disturbance. This equals or exceeds any effect radius from in-
air noise. Given the breakwater is 2,400 feet (730 m) long, this means 
large portions of the breakwater should be undisturbed and available 
for animals to re- haulout on any given construction day.

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. Take by Level B harassment is authorized and summarized 
in Table 5.
    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    Merkel and Associates (2019) conducted three marine mammal surveys 
of the breakwater in 2018 as part of the preparation for this project. 
The surveys were in June, July and September. The focus was on other 
taxa besides marine mammals. Their most detailed marine mammal survey 
was in June when pinnipeds were identified to species level. They 
identified California sea lions and Steller sea lions hauled out on the 
breakwater, with 94 percent of the animals being California sea lions. 
Greater densities of pinnipeds were observed hauled out at the south 
eastern end of the breakwater, and the greatest densities were 
consistently observed at the most seaward end of the breakwater.
    In further anticipation of this project, the ACOE conducted 
additional approximately monthly marine mammal surveys, weather 
permitting, in the project area in 2019 to estimate breakwater 
abundance levels to use to estimate take. The 2019 surveys did not 
distinguish between California sea lions and Steller seals and assumed 
the Merkel and Associates (2019) determination that 94 percent of the 
animals were California sea lions and 6 percent were Steller sea lions 
applied during 2019 as well. While harbor seals were not observed 
hauled out on the breakwater, the ACOE did observe them hauled out at 
the low lying rocky benches of Smith Island (approximately 400 m (1,300 
feet) from the nearest repair area). They were also observed in the 
water adjacent to the breakwater on at least one occasion. No other 
marine mammal species were observed in the project area.

California Sea Lion and Steller Sea Lion

    The ACOE surveys from 2019 found that pinnipeds were present on the 
breakwater from April through December (Table 3), likely due to lower 
wave energy at those times. The highest number were present from June 
through September. We averaged the three highest surveys (bolded in the 
table) during the likely work period to determine that an average of 
321.33 animals were present daily during the spring to fall 
construction season. Using the results of Merkel and Associates (2019) 
June 2018 survey we estimated those 321.33 animals were comprised of 
302.05 California sea lions and 19.29 Steller sea lions per day. We 
used these numbers to estimate take for these two species for the 
project by multiplying these daily take estimates by the total number 
of work days (174). For California sea lions this is 302.05 x 174 = 
52,557 takes, and for Steller sea lions this is 19.28 x 174 = 3,355 
takes.

    Table 3--ACOE 2019 Breakwater Pinniped Survey Results by Side of
                               Breakwater
------------------------------------------------------------------------
             Survey date                Leeward     Seaward      Total
------------------------------------------------------------------------
1/30/2019...........................           0           0           0
1/31/2019...........................           0           0           0
2/1/2019............................           0           0           0
3/1/2019............................           0         (*)         * 0
3/24/2019...........................           0         (*)         * 0
3/30/2019...........................           0         (*)         * 0
3/31/2019...........................           0         (*)         * 0
4/1/2019............................           0         (*)         * 0
5/1/2019............................           0          18         18+
5/28/2019...........................         188         (*)         188
6/3/2019............................         182         115         297
7/29/2019...........................         166          25         191
8/27/2019...........................           0           1           1
9/25/2019...........................         326         150         476
11/6/2019...........................         398         (*)       * 398
12/5/2019...........................         113         (*)       * 113
12/28/2019..........................           0           0        ** 0
------------------------------------------------------------------------
* Seaward side of breakwater not surveyed because of sea state
  conditions, no pinnipeds expected to be hauled out during these times.
** No pinnipeds hauled out on breakwater, 3 observed swimming near head
  of breakwater.
Bold indicates months survey data was used to calculate the average
  abundance of pinnipeds on the PSL Breakwater per day.

Harbor Seal

    While harbor seals were not observed hauled out on the breakwater, 
they were observed hauled out at the low lying rocky benches of Smith 
Island and in the water near the breakwater during the ACOE 2019 
surveys. Estimated daily abundance for harbor seals was also calculated 
using the three highest abundance surveys from 2019 survey data from 
the likely construction season (late March through September, bolded in 
Table 4). The average abundance in the project area was 10.33 seals per 
day. We used this average and calculated total take for the project by 
multiplying by the total number of work days (174). For harbor seals 
this is 10.33 x 174 = 1,797 takes.

[[Page 22156]]



                                  Table 4--ACOE 2019 Harbor Seal Survey Results
----------------------------------------------------------------------------------------------------------------
                                                 Swimming near    Hauled out at   Swimming near
                  Survey date                      breakwater     Smith Island     Smith Island        Total
----------------------------------------------------------------------------------------------------------------
1/30/19-2/1/19................................                0              13          Several             ~16
3/1/2019......................................                0              15                0              15
3/24/2019.....................................                1              14                3              18
5/1/2019......................................                0              10                0              10
5/28/2019.....................................                0               2                1               3
6/3/2019......................................                0               0                0               0
7/29/2019.....................................                0               0                0               0
8/27/2019.....................................                0               0                0               0
9/25/2019.....................................                0               0                0               0
11/6/2019.....................................                0               0                0               0
12/5/2019.....................................                0              25                0              25
12/28/2019....................................                0               1                1               2
----------------------------------------------------------------------------------------------------------------
Bold indicates months survey data was used to calculate the average abundance per day.

Summary

    The above-calculated take estimates are likely to be conservative 
as some animals may habituate to the project and regularly haul out on 
the parts of the breakwater where there is no construction activity, 
where construction activity has finished, or they may move to other 
nearby haulout locations. Moreover, because the main area of effect on 
any given day is no more than 300 m of breakwater length, the 
breakwater is much longer than this, most pinnipeds are concentrated at 
the far 200 m of the breakwater, and the project will begin at the 
landward end of the breakwater, far fewer animals will likely be taken 
in the early stages of the project.

  Table 5--Authorized Amount of Taking, by Level A Harassment and Level B Harassment, by Species and Stock and
                                            Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
                                                                      Authorized take
                           Species                           --------------------------------  Percent of stock
                                                                  Level B         Level A
----------------------------------------------------------------------------------------------------------------
Harbor seal (Phoca vitulina) California Stock...............          52,557               0                20.4
California sea lion (Zalophus californianus) U.S. Stock.....           3,355               0                 7.8
Steller sea lion (Eumetopias jubatus) Eastern DPS...........           1,797               0                 6.6
----------------------------------------------------------------------------------------------------------------

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 the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    The following mitigation measures are in the IHA:
     Monitoring must take place from 30 minutes prior to 
initiation of construction activity (i.e., pre-start clearance 
monitoring) through 30 minutes post-completion of construction 
activity.
     The ACOE must avoid direct physical interaction with 
marine mammals during construction activity. If a marine mammal comes 
within 10 m of such activity, operations must cease and vessels must 
reduce speed to the minimum level required to maintain steerage and 
safe working conditions, as necessary to avoid direct physical 
interaction.
     Pre-start clearance monitoring must be conducted during 
periods of visibility sufficient for the lead Protected Species 
Observer (PSO) to determine the shutdown zones clear of marine mammals. 
Construction may commence when the determination is made.
     If construction is delayed or halted due to the presence 
of a marine mammal, the activity may not commence or resume until 
either the animal has voluntarily exited and been visually confirmed 
beyond the

[[Page 22157]]

shutdown zone or 15 minutes have passed without re-detection of the 
animal.
     The Holder must use soft start techniques. Soft start 
requires contractors and equipment to slowly approach the work site 
creating a visual disturbance allowing animals in close proximity to 
construction activities a chance to leave the area prior to stone 
resetting or new stone placement. Contractors shall avoid walking or 
driving equipment through the seal haul-out. A soft start must be 
implemented at the start of each day's construction activity and at any 
time following cessation of activity for a period of 30 minutes or 
longer.
     Vessels would approach the breakwater perpendicular to the 
area they need to be as much as is feasible to minimize interactions 
with pinnipeds on or near the breakwater.
     The Holder must ensure that construction supervisors and 
crews, the monitoring team, and relevant ACOE staff are trained prior 
to the start of construction activity subject to this IHA, so that 
responsibilities, communication procedures, monitoring protocols, and 
operational procedures are clearly understood. New personnel joining 
during the project must be trained prior to commencing work.
     Construction activity must be halted upon observation of 
either a species for which incidental take is not authorized or a 
species for which incidental take has been authorized but the 
authorized number of takes has been met, entering or within a 200 m 
Level B harassment zone.
     Construction work will start at the landward end of the 
breakwater as much as feasible.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means effecting the least practicable 
adverse impact on the affected 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 
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. Effective reporting is critical both to compliance as well 
as ensuring that the most value is obtained from the required 
monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (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 marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Visual Monitoring

    Marine mammal monitoring must be conducted in accordance with the 
Monitoring section of the application and Section 5 of the IHA. These 
observers must record all observations of marine mammals, regardless of 
distance from the construction activity. Marine mammal monitoring 
during construction activity must be conducted by NMFS-approved PSOs in 
a manner consistent with the following:
     Independent PSOs (i.e., not construction personnel) who 
have no other assigned tasks during monitoring periods must be used;
     At least one PSO must have prior experience performing the 
duties of a PSO during construction activity pursuant to a NMFS-issued 
incidental take authorization;
     Other PSOs may substitute education (degree in biological 
science or related field) or training for experience; and
     The ACOE must submit PSO Curriculum Vitae for approval by 
NMFS prior to the onset of pile driving.
    PSOs must have the following additional qualifications:
     Ability to conduct field observations and collect data 
according to assigned protocols;
     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 in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
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.
    One PSO will be employed. PSO location will provide an unobstructed 
view of all water within the shutdown zone, and as much of the Level B 
harassment zones as possible. PSO location is as follows:
    (1) At the crane barge site or best vantage point practicable to 
monitor the shutdown zones; and
    Monitoring will be conducted 30 minutes before, during, and 30 
minutes after construction activities. In addition, observers shall 
record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from construction activity.

Reporting

    A draft marine mammal monitoring report will be submitted to NMFS 
within 90 calendar days after the completion of pile driving and 
removal activities, or 60 calendar days prior to the requested issuance 
of any subsequent IHAs for construction activity at the same location, 
whichever comes first. A final report must be prepared and submitted 
within 30 days following resolution of any NMFS comments on the draft 
report. The report will include an overall description of work 
completed, a

[[Page 22158]]

narrative regarding marine mammal sightings, and associated PSO data 
sheets. All draft and final marine mammal and acoustic monitoring 
reports must be submitted to [email protected] and 
[email protected]. Specifically, the report must include:
     Dates and times (begin and end) of all marine mammal 
monitoring.
     Construction activities occurring during each daily 
observation period, including how many and what type of rocks were set 
or reset and total duration of rock setting.
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance.
     PSO locations during marine mammal monitoring.
     Upon observation of a marine mammal, the following 
information:
    [cir] PSO who sighted the animal and PSO location and activity at 
time of sighting;
    [cir] Time of sighting;
    [cir] Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified), PSO confidence in 
identification, and the composition of the group if there is a mix of 
species;
    [cir] Distance and bearing of each marine mammal observed to the 
rock setting for each sighting (if rock setting was occurring at time 
of sighting);
    [cir] Estimated number of animals (min/max/best);
    [cir] Estimated number of animals by cohort (adults, juveniles, 
neonates, group composition, etc.);
    [cir] Animal's closest point of approach and estimated time spent 
within the harassment zone;
    [cir] Number of disturbances, by species and age, according to a 
three-point scale of disturbance (see Table 6). Observations of 
disturbance Levels 2 and 3 must be recorded as takes. Description of 
any additional marine mammal behavioral observations (e.g., observed 
behaviors such as feeding or traveling;
     Detailed information about implementation of any 
mitigation (e.g., shutdowns and delays), a description of specific 
actions that ensued, and resulting changes in behavior of the animal, 
if any.
    The ACOE must submit all PSO datasheets and/or raw sighting data. 
If no comments are received from NMFS within 30 days, the draft final 
report will constitute the final report. If comments are received, a 
final report addressing NMFS comments must be submitted within 30 days 
after receipt of comments.

                               Table 6--Levels of Pinniped Behavioral 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.
2....................  Movement...............................  Movements in response to the source of
                                                                 disturbance, ranging from short withdrawals at
                                                                 least twice the animal's body length to longer
                                                                 retreats over the beach, or if already moving a
                                                                 change of direction of greater than 90 degrees.
3....................  Flush..................................  All retreats (flushes) to the water.
----------------------------------------------------------------------------------------------------------------

Reporting Injured or Dead Marine Mammals

    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the ACOE must report the 
incident to the Office of Protected Resources (OPR), NMFS and to the 
regional stranding coordinator as soon as feasible. If the death or 
injury was clearly caused by the specified activity, the ACOE must 
immediately cease the specified activities until NMFS is able to review 
the circumstances of the incident and determine what, if any, 
additional measures are appropriate to ensure compliance with the terms 
of the IHA. The IHA-holder must not resume their activities until 
notified by NMFS. The report must include the following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact 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 (50 CFR 216.103). 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 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 harassment, NMFS considers 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 effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, this introductory discussion of our analyses 
applies to all of the species listed in Table 5, given that many of the 
anticipated effects of this project on different marine mammal stocks 
are expected to be relatively

[[Page 22159]]

similar in nature. Construction activities have the potential to 
disturb or displace marine mammals. Specifically, the project 
activities may result in take, in the form of Level B harassment from 
in-air sounds and visual disturbance generated from rock setting and 
sediment removal. Potential takes could occur if individuals are 
present in the ensonified or disturbance zone(s) when these activities 
are underway.
    The takes from Level B harassment would be due to potential 
behavioral disturbance or TTS. No mortality or PTS is anticipated given 
the nature of the activity and measures designed to minimize the 
possibility of injury to marine mammals. The potential for harassment 
is minimized through the construction method and the implementation of 
the planned mitigation measures (see Mitigation section).
    For all species and stocks, take would occur within a very limited, 
confined area (Port San Luis harbor) of any given stock's range. Level 
B harassment will be reduced to the level of least practicable adverse 
impact through use of mitigation measures described herein. Behavioral 
responses of marine mammals to construction at the project site, if 
any, are expected to be mild and temporary. Marine mammals within the 
Level B harassment zone may not show any visual cues they are disturbed 
by activities (as noted during modification to the Kodiak Ferry Dock 
and other construction projects near pinnipeds) or could become alert, 
avoid the area, leave the area, or display other mild responses that 
are not observable such as changes in vocalization patterns. Given the 
short duration of noise-generating activities per day, any harassment 
would be temporary. There are no other areas or times of known 
biological importance for any of the affected species.
    In addition, it is unlikely that minor noise effects in a small, 
localized area of habitat would have any effect on the stocks' ability 
to recover. 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 minor, 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.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality is anticipated or authorized.
     No Level A harassment is anticipated or authorized.
     No biologically important areas have been identified 
within the project area.
     For all species, the harbor is a very small and peripheral 
part of their range.
     The ACOE would implement mitigation measures such as 
vessel avoidance and slow down, proceeding from the low density to high 
density areas to increase habituation, soft-starts, and shut downs; and
     Monitoring reports from similar work have documented 
little to no effect on individuals of the same species impacted by the 
specified activities.
    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, NMFS finds that the total marine mammal take from the 
proposed activity will have a negligible impact on all affected marine 
mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. When the predicted number of individuals to 
be taken is fewer than one third of the species or stock abundance, the 
take is considered to be of small numbers. Additionally, other 
qualitative factors may be considered in the analysis, such as the 
temporal or spatial scale of the activities.
    The amount of take NMFS authorizes of all species or stocks is 
below one third of the estimated stock abundance. These are all likely 
conservative estimates because they assume all takes are of different 
individual animals which is likely not the case as most stocks do not 
move in or out of the area frequently. Some individuals may return 
multiple times in a day, but PSOs would count them as separate takes if 
they cannot be individually identified.
    Based on the analysis contained herein of the proposed activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population size of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

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 (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental harassment authorizations with 
no anticipated serious injury or mortality) 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. Accordingly, NMFS has determined that the issuance of the 
IHA qualifies to be categorically excluded from further NEPA review.

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, in this case with the West Coast Region 
Protected Resources Division Office, whenever we propose to authorize 
take for endangered or threatened species.
    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal

[[Page 22160]]

consultation under section 7 of the ESA is not required for this 
action.

Authorization

    NMFS has issued an IHA to the ACOE for the potential harassment of 
small numbers of three marine mammal species incidental to the Port San 
Luis Breakwater Repair project in Avila Beach, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: April 21, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-08671 Filed 4-26-21; 8:45 am]
BILLING CODE 3510-22-P