[Federal Register Volume 86, Number 108 (Tuesday, June 8, 2021)]
[Notices]
[Pages 30412-30418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11915]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB129]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Elkhorn Slough Tidal Marsh 
Restoration, Phase II in Monterey County, California

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

ACTION: Notice; request for comments on proposed Renewal incidental 
harassment authorization (IHA).

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SUMMARY: NMFS received a request from the California Department of Fish 
and Wildlife (CDFW) for the Renewal of their currently active 
incidental harassment authorization (IHA) to take marine mammals 
incidental to the Elkhorn Slough Tidal Marsh Restoration Project (Phase 
II) which includes the excavation and movement of soil with heavy 
machinery for marsh restoration in Monterey County, California. These 
activities consist of activities that are covered by the current 
authorization but will not be completed prior to its expiration. 
Pursuant to the Marine Mammal Protection Act, prior to issuing the 
currently active IHA, NMFS requested comments on both the proposed IHA 
and the potential for renewing the initial authorization if certain 
requirements were satisfied. The Renewal requirements have been 
satisfied, and NMFS is now providing an additional 15-day comment 
period to allow for any additional comments on the proposed Renewal not 
previously provided during the initial 30-day comment period.

DATES: Comments and information must be received no later than June 23, 
2021.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Written comments should be submitted 
via email to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to comments will be 
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

FOR FURTHER INFORMATION CONTACT: Kim Corcoran, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, Renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), 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 Marine Mammal Protection Act (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 proposed or, if the taking is limited to 
harassment, a notice of a proposed incidental take authorization is 
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) 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 such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a Renewal for this activity, and 
requested public comment on a potential Renewal under those

[[Page 30413]]

circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time one-year Renewal IHA following notice to the public providing 
an additional 15 days for public comments when (1) up to another year 
of identical or nearly identical, or nearly identical, activities as 
described in the Detailed Description of Specified Activities section 
of the initial IHA issuance notice is planned or (2) the activities as 
described in the Detailed Description of Specified Activities section 
of the initial IHA issuance notice would not be completed by the time 
the initial IHA expires and a Renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    (1) A request for renewal is received no later than 60 days prior 
to the needed Renewal IHA effective date (recognizing that the Renewal 
IHA expiration date cannot extend beyond one year from expiration of 
the initial IHA).
    (2) The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested Renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take).
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    (3) Upon review of the request for Renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed Renewal. A description of the Renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential Renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA Renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested Renewal, and agency responses will be 
summarized in the final notice of our decision.
    The NDAA (Pub. L. 108-136) removed the ``small numbers'' and 
``specified geographical region'' limitations indicated above and 
amended the definition of ``harassment'' as it applies to a ``military 
readiness activity.''

National Environmental Policy Act

    The current 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 preliminarily determined 
that the issuance of the proposed renewal qualifies to be categorically 
excluded from further NEPA review just as the initial IHA did.

History of Request

    On March 13, 2020, NMFS issued an IHA to CDFW to take marine 
mammals incidental to construction activities associated with the 
second phase of the tidal marsh restoration project in Elkhorn Slough, 
California (85 FR 14640; March 13, 2021), effective from June 01, 2020 
through May 31, 2021. On May 11, 2021, NMFS received an application for 
the Renewal of that initial IHA. Although the request was not received 
60 days prior to the expiration date of the initial IHA, the applicant 
has been informed that the Renewal may not be issued until 60 days past 
the May 11, 2021 submission date. As described in the application for 
Renewal IHA, the activities for which incidental take is requested 
consist of activities that are covered by the initial authorization but 
will not be completed prior to its expiration. As required, the 
applicant also provided a preliminary monitoring report (available at 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-tidal-marsh-restoration-project-elkhorn-slough-phase-ii-2020) which 
confirms that the applicant has implemented the required mitigation and 
monitoring, and which also shows that no impacts of a scale or nature 
not previously analyzed or authorized have occurred as a result of the 
activities conducted. However, NMFS did note that there were a few 
instances where work continued during the pupping season during what 
was noted as foggy or hard to see conditions. Despite the low 
visibility, there were no unexpected changes in behavior noted during 
the activity. These instances were rare and CDFW has been reminded to 
shut down activity during times where monitoring cannot be efficiently 
implemented, especially during pupping season (March-July).

Description of the Specified Activities and Anticipated Impacts

    CDFW is unable to complete all of the planned work under the 
initial 2020 IHA for Phase II of the Elkhorn Slough Tidal Marsh 
Restoration Project. The initial IHA planned to restore 58 acres of 
saltmarsh habitat in two areas, Minhoto-Hester Restoration Area 
(subareas M4a-b, M5, and M6) and the Seal Bend Restoration Area (S1-S4) 
(Figure 1). To date, the majority of earthwork at the Minhoto-Hester 
Restoration Area has been completed, including earthwork in subareas 
M4a-b and M5, however outstanding work in subareas M5 and M6 will not 
be completed before the May 31, 2021 IHA expiration date. Therefore, 
CDFW has requested a Renewal IHA to authorize the take of marine 
mammals for a subset of the initially planned work that has not been 
completed which will include the outstanding work in subareas M5 and 
M6. A separate IHA application will be submitted by CDFW for the work 
at the Seal Bend Restoration Area which has not been initiated to date, 
and is expected to start later in the year. Of note, the work in the 
Minhoto-Hester Restoration Area has taken more days to conduct than 
initially expected, but the completion of work in that Area is still 
expected to occur within the total number of workdays contemplated in 
the initial IHA.
    Anticipated impacts would include only Level B harassment of marine 
mammals (though fewer, since the duration of the proposed activity is 
shorter). CDFW's request is for one species of pinniped by Level B 
harassment: Harbor seal (Phoca vitulina richardii). Monitoring results 
from the 2020 restoration activities indicate that observed exposures 
above Level B harassment thresholds were well below the amount 
authorized in associated with the amount of work conducted to

[[Page 30414]]

date (see monitoring report in renewal request letter). Thus, the 
subset of Level B harassment take remaining from that authorized under 
the 2020 IHA will be sufficient to cover the remaining 2021 restoration 
work at the Minhoto-Hester Restoration Area.
[GRAPHIC] [TIFF OMITTED] TN08JN21.014

Detailed Description of the Activity

    As discussed earlier, this is a Renewal to complete the subset of 
the activity not completed under the initial IHA (85 FR 14640; March 
13, 2020). Due to construction delays attributed to severe weather in 
the winter of 2020 which limited the ability for heavy equipment to 
access and mobilize onsite in addition to smaller construction crew 
sizes than anticipated, only 118 days of work occurred between August 
2020 and April 2021 of the 180 days anticipated and authorized for this 
project. The completed work to date includes the majority of earthwork 
at Minhoto-Hester Restoration Area in subareas M4a-b, and M5. As of the 
submission of their Renewal request, 62 days of work remains at the 
Minhoto-Hester Restoration Area which will occur between the time the 
Renewal is issued and September 2021. The applicant requests 
authorization for the work remaining as of June 1, 2021 which includes 
placement of additional fill in subareas M5 and M6 (see Table 1) to 
raise the subsided marsh plain; excavation of tidal channels in all 
subareas; and rerouting tidal flow from the existing tidal channel 
adjacent to Yampah Marsh to the new tidal channel that bisects subareas 
M4b and M5. All of the remaining work is consistent with work described 
in the initial IHA. Table 1 (same as Table 1 from application and 
initial proposed) presents the acreages and extents of proposed fill 
within each marsh subarea, as well as the volume of fill required for 
each marsh subarea to be restored. The upland borrow area, onsite, 
would be used as the fill source. The project would rely primarily on 
natural vegetation recruitment in the restored marsh areas.
    This Renewal request is identical to that of the 2020 IHA, in that 
it is comprised of a subset of the work that was covered in the initial 
IHA. 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. The proposed Renewal would be effective until May 
31, 2022 and does not authorize activities related to restoration work 
in the Seal Bend Restoration Area as a subsequent IHA application will 
be submitted by CDFW for such activities at a later date.
    The mitigation and monitoring will be identical to that of the 2020 
IHA. A detailed description of the restoration activities for which 
take is proposed may be found in the notices of the proposed (84 FR 
72308; December 31, 2019) and the final IHAs (85 FR 14640; March 13, 
2020) for the 2020 authorization. All documented associated with the 
2020 IHA (i.e., the IHA application, proposed IHA, final IHA, public 
comments, monitoring reports, etc.) can be found on NMFS's website, 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-tidal-marsh-restoration-project-elkhorn-slough-phase-ii-2020.

[[Page 30415]]



              Table 1--Volume of Fill Required in Each Sub-Area in Minhoto-Hester Restoration Area
----------------------------------------------------------------------------------------------------------------
                                                                                                     Estimated
                             Subarea                               Area (acres)      Fill area      fill volume
                                                                                      (acres)          (CY)
----------------------------------------------------------------------------------------------------------------
Sub-area M4a....................................................             2.5             1.0          46,880
Sub-area M4b....................................................             9.7             7.3          44,516
Sub-area M5.....................................................            10.2             7.8          57,466
Sub-area H6.....................................................             6.8             5.5          33,792
                                                                 -----------------------------------------------
    Total.......................................................            29.2            21.6         182,654
----------------------------------------------------------------------------------------------------------------
Source: ESA 2014a.
\1\ Volumes are mid-range estimates; actual volumes may be higher or lower.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
notices of the proposed and final IHAs for the initial authorization. 
NMFS has reviewed the monitoring data from the initial IHA, recent 
draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, and other scientific literature, and determined that 
neither this nor any other new information affects which species or 
stocks have the potential to be affected or the pertinent information 
in the Description of the Marine Mammals in the Area of Specified 
Activities contained in the supporting documents for the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the notices of the proposed and final 
IHAs for the initial authorization. NMFS has reviewed the monitoring 
data from the initial IHA, recent draft Stock Assessment Reports, 
information on relevant Unusual Mortality Events, and other scientific 
literature, and determined that neither this nor any other new 
information affects our initial analysis of impacts on marine mammals 
and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the final IHA notice for 
the initial authorization. Specifically, the activity, days of 
operation, and marine mammal density data applicable to this 
authorization remain unchanged from the previously issued IHA. 
Similarly, the stock taken, method of take, and type of take remain 
unchanged from the previously issued IHA. The number of Level B 
harassment takes will be fewer since the proposed Renewal is for a 
subset of the days which can be seen in Table 2. The authorized take 
was determined by multiplying the daily take estimate (37.53) by the 
number of construction days remaining (62 days) at Minhoto-Hester 
Restoration Area and rounding up (Table 2).

                            Table 2--Calculated Take and Percentage of Stock Exposed
----------------------------------------------------------------------------------------------------------------
                                                               Authorized take
                  Species                   -----------------------------------------------------  % population
                                                           Level B                    Level A           \4\
----------------------------------------------------------------------------------------------------------------
Pacific Harbor Seal........................  417 \1\ max seals/day (9 percent                  0             1.3
                                              \2\) (62 days \3\) = 2,327.
----------------------------------------------------------------------------------------------------------------
\1\ Maximum number of seals observed/day between January 2018 and April 2019 by Reserve Otter Monitoring
  Project.
\2\ % Take from Phase I.
\3\ Number of construction days remaining in Minhoto-Hester Restoration Area.
\4\ Data from U.S. Pacific Marine Mammal Stock Assessments: 2015 (Carretta et al., 2015).

    All estimates are considered conservative. Construction activities 
will occur in sections. Noise from construction activities in more 
southern sections may thus cause fewer disturbances to seals given 
their distance from seal haul outs (approximately 100 m and greater). 
There are unlikely to be 417 animals in the project area on any given 
day. Not all seals that previously used the haul outs within the 
footprint of the construction are expected use the haul outs just 
outside the project based on observations from Phase I of the project. 
Some seals may seek alternative haul out habitat in other parts of 
Elkhorn Slough.

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the Federal Register notice announcing the issuance of the 
initial IHA, and the discussion of the least practicable adverse impact 
included in that document and the notice of the proposed IHA (84 FR 
72308; December 31, 2019) remains accurate. The following measures are 
proposed for this renewal:
    Timing Restrictions--All work must be conducted during daylight 
hours when visual monitoring of marine mammals can be implemented. If 
environmental conditions deteriorate such that marine mammals within 
the entire shutdown zone would not be visible (e.g., fog, heavy rain), 
construction must be delayed until the PSO is confident marine mammals 
within the shutdown zone could be detected.
    Visual Monitoring--Required monitoring must be conducted by 
dedicated, trained, NMFS-approved PSO(s). PSOs shall establish a Level 
B harassment zone within 300 m of all construction activities. When 
construction activities occur either, (1) in water or (2); within the 
boundaries of the two tidal restoration areas, Minhoto-Hester and Seal 
Bend identified in

[[Page 30416]]

Figure 1, monitoring must occur every other day when work is occurring.
    When construction activities occur near the ``borrow'' areas where 
marsh fill material is gathered, monitoring must occur every fifth day 
when work is occurring, unless the borrow area is more than 300 m from 
any area where marine mammals have been observed. Occurrence of marine 
mammals within the Level B harassment zone must be communicated to the 
construction lead to prepare for the potential shutdown when required.
    Pre-construction clearance and Ramp-up--A 30-minute pre-clearance 
observation period must occur prior to the start of ramp-up and 
construction activities. CDFW must adhere to the following pre-
clearance and ramp-up requirements: (i) Construction activities must 
not be initiated if any marine mammal is within 10 m of planned 
operations. If a marine mammal is observed within 10 m of planned 
operations during the 30-minute pre-clearance period, ramp-up must not 
begin until the animal(s) has been observed exiting the zones or until 
an additional time period has elapsed with no further sightings (15 
minutes for small odontocetes and pinnipeds and 30 minutes for all 
other species), (ii) The construction contractor must begin 
construction activities gradually each day (e.g., ramp up by moving 
around the project area and starting equipment sequentially).
    Shutdown Requirements--For heavy machinery work, if a marine mammal 
comes within 10 m of such operations, operations must cease and vessels 
shall reduce speed to the minimum level required to maintain steerage 
and safe working conditions.
    Pupping Season--Construction activities may not be initiated: (1) 
Within 300 m of a mom/pup pair that is hauled out, or (2) within 100 m 
of a mom/pup pair in the water. If there is a gap in construction 
activities of more than an hour or if construction moves to a different 
area, this initiation protocol must again be implemented. During site 
containment activities that are underway, heavy machinery must not 
approach closer than 100 m of where mothers and pups are actively 
hauled out. If a pup less than one week old (neonate) comes within 20 m 
of where heavy machinery is working, construction activities in that 
area must be shutdown or 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.
    Activities must cease if a marine mammal species for which take was 
not authorized, or a species for which authorization was granted but 
the authorized number of takes have been met, is observed by Protected 
Species Observers (PSOs) approaching or within the Level B harassment 
zone. Activities must not resume until the animal is confirmed to have 
left the area.
    Construction Activities--A NMFS approved PSO must conduct 
biological resources awareness training for construction personnel. The 
awareness training will be provided to brief construction personnel on 
identification of marine mammals (including 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.
    Construction activities must not be initiated if any marine mammal 
is within 10 m of planned operations. If a marine mammal is observed 
within 10 m of planned operations during the 30-minute pre-clearance 
period, ramp-up must not begin until the animal(s) has been observed 
exiting the zones or until an additional time period has elapsed with 
no further sightings (15 minutes for small odontocetes and pinnipeds 
and 30 minutes for all other species). Furthermore, the PSO will have 
the authority to stop project activities if marine mammals approach or 
enter the Level B Harassment Zone and/or at any time for the safety of 
any marine mammals. Work will commence only with approval of the PSO to 
ensure that no marine mammals are present in the Level B Harassment 
Zone.
    Ramp Up--To reduce the risk of potentially startling marine mammals 
with a sudden intensive sound, the construction contractor must begin 
construction activities gradually each day by moving around the project 
area and starting machinery one at a time.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the authorized mitigation measures provide the means 
effecting the least practicable 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

    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).
     Mitigation and monitoring effectiveness.
    PSOs--PSOs shall be used to detect, document, and minimize impacts 
to marine mammals, as well as, communicate with and instruct relevant 
construction crew with regard to the presence of marine mammals and 
mitigation requirements. Independent PSOs (i.e., not construction 
personnel) who have no other assigned tasks during monitoring periods 
must be used. Biological monitoring will begin 30 minutes before work 
begins and will continue until 30 minutes after work is completed each 
day.
    PSOs will be placed at the best vantage point(s) practicable to 
monitor for marine mammals within the Level B harassment zone, defined 
above. If multiple construction activities occur simultaneously, enough 
PSOs must be on duty to monitor all Level B Harassment zones.
    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.
     Successfully attained a bachelor's degree from an 
accredited college or university with a major in one of the

[[Page 30417]]

natural sciences and a minimum of 30 semester hours or equivalent in 
the biological sciences and at least one undergraduate course in math 
or statistics. The educational requirements may be waived if the PSO 
has acquired the relevant skills through alternate experience. Requests 
for such a waiver must include written justification. Alternate 
experience that may be considered includes, but is not limited to (1) 
secondary education and/or experience comparable to PSO duties; (2) 
previous work experience conducting academic, commercial, or 
government-sponsored marine mammal surveys; or (3) previous work 
experience as a PSO; the PSO should demonstrate good standing and 
consistently good performance of PSO duties.
     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 to avoid potential incidental injury from construction sound 
or visual disturbance of marine mammals observed; and marine mammal 
behavior.
     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.
    (a) PSOs must be provided with the equipment necessary to 
effectively monitor for marine mammals in order to record species, the 
distance from species' location to the construction activities, 
behaviors, and responses to construction activities.
    (b) The PSO must also conduct biological resources awareness 
training for construction personnel. The awareness training will be 
provided to brief construction personnel on identification of marine 
mammals (including 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. Monitoring requirements also 
include:
    Pre-Activity Monitoring--Pre and post construction daily censuses--
A census of marine mammals in the project area and the area surrounding 
the project must be conducted 30 minutes prior to the beginning of 
construction on monitoring days, and again 30 minutes after the 
completion of construction activities. The following data will be 
collected:

 Environmental conditions (weather condition, tidal conditions, 
visibility, cloud cover, air temperature and wind speed
 Numbers of each marine mammal species spotted
 Location of each species spotted, including distance from 
construction activity
 Status (in water or hauled out)
 Behavior

    Hourly Counts--Conduct hourly counts of animals hauled out and in 
the water within, at least, the Level B harassment zone.
    Data collected must include:

 Numbers of each species
 Location, including whether inside the Level B harassment 
zone; whether hauled out or in the water; and distance from 
construction activities (+/-10 m)
 Time
 Tidal conditions
 Time construction activities start and end
 Primary construction activities occurring during the past hour
 Any noise or visual disturbance
 Number of mom/pup pairs and neonates observed
 Notable behaviors, including foraging, grooming, resting, 
aggression, mating activity, and others


    Notes should include any of the following information to the extent 
it is feasible to record:

 Age-class
 Sex
 Unusual activity or signs of stress
 Any other information worth noting

    Construction Related Reactions--Record reaction observed in 
relation to construction activities including:

 Tally of each reaction
 Time of reaction
 Concurrent construction activity
 The assumed cause (whether related to construction activities 
or not) shall be noted
 Disturbance must be recorded according to NMFS' three-point 
pinniped disturbance scale (see Table 3)
 Location of animal during initial reaction and distance from 
the noted disturbance
 Activity before and after disturbance
 Status (in water or hauled out) before and after disturbance

         Table 3--Pinniped Behavioral Disturbance Code Reactions
------------------------------------------------------------------------
         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

    A draft marine mammal monitoring report would be submitted to NMFS 
within 90 days after the completion of pile driving and removal 
activities, or 60 days prior to a requested date of issuance of any 
future IHAs for projects at the same location, whichever comes first. 
The report must include full documentation of methods, results, and 
interpretation pertaining to all monitoring. It shall also include 
marine mammal observations pre-activity, during-activity, and post-
activity of construction, and shall 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

[[Page 30418]]

mammals observed during the course of construction. The report must 
include an extrapolation of the estimated takes by Level B harassment 
based on the number of observed disturbances within the Level B 
harassment zone and the percentage of time the Level B harassment zone 
was not monitored; i.e., 50 percent of time for the two restoration 
areas and 80 percent of the time for the borrow and other areas. If 
comments are received from the NMFS Office of Protected Resources on 
the draft report, a final report shall be submitted to NMFS within 30 
days thereafter following resolution of comments on the draft report 
from NMFS. If no comments are received from NMFS, the draft report will 
be considered to be the final report. This report must contain the 
informational elements described above.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (84 
FR 72308; December 31, 2019) and solicited public comments on both our 
proposal to issue the initial IHA for CDFW's activity and on the 
potential for a Renewal IHA, should certain requirements be met. All 
public comments were addressed in the notice announcing the issuance of 
the initial IHA (85 FR 14640; March 13, 2020). Below, we describe how 
we have addressed, with updated information where appropriate, any 
comments received that specifically pertain to the Renewal of the 2020 
IHA.
    Comment: The Commission reiterated programmatic recommendations 
regarding NMFS' potential use of the renewal mechanism for 1 year IHAs; 
that NMFS refrain from issuing renewals for any authorization and 
instead use its abbreviated Federal Register notice process.
    Response: In prior responses to comments about IHA Renewals (e.g., 
84 FR 52464; October 02, 2019 and 85 FR 53342, August 28, 2020), NMFS 
has explained how the Renewal process, as implemented, is consistent 
with the statutory requirements contained in section 101(a)(5)(D) of 
the MMPA, provides additional efficiencies beyond the use of 
abbreviated notices, and, further, promotes NMFS' goals of improving 
conservation of marine mammals and increasing efficiency in the MMPA 
compliance process. Therefore, we intend to continue implementing the 
Renewal process.

Preliminary Determinations

    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. Based on the information and analysis 
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; (4) CDFW 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, and; 
(5) appropriate monitoring and reporting requirements are included.

Endangered Species Act

    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.
    No incidental take of ESA-listed species is proposed for 
authorization or expected to result from this activity in the Elkhorn 
Slough Reserve. Therefore, NMFS has determined that formal consultation 
under section 7 of the ESA is not required for this action.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a Renewal IHA to CDFW for conducting Phase II of the Elkhorn 
Slough Tidal Marsh Restoration Project in Elkhorn Slough located in 
Monterey County, California, provided the previously described 
mitigation, monitoring, and reporting requirements are incorporated. A 
draft of the proposed and final initial IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment on our analyses, the 
proposed Renewal IHA, and any other aspect of this notice. Please 
include with your comments any supporting data or literature citations 
to help inform our final decision on the request for MMPA 
authorization.

    Dated: June 2, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-11915 Filed 6-7-21; 8:45 am]
BILLING CODE 3510-22-P