[Federal Register Volume 87, Number 178 (Thursday, September 15, 2022)]
[Notices]
[Pages 56631-56633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19945]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC304]


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

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

ACTION: Notice; issuance of incidental harassment authorization.

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SUMMARY: NMFS has received a request from the California Department of 
Fish and Wildlife (CDFW) for the re-issuance of a previously issued 
incidental harassment authorization (IHA) with the only change being 
effective dates. The initial IHA authorized take of Pacific harbor 
seals (Phoca vitulina), by Level B harassment only, incidental to the 
Elkhorn Slough Restoration Project, Phase III, at the Seal Bend 
Restoration Area in Monterey Country, CA. The project has been delayed 
and none of the work covered in the initial IHA has been conducted. The 
initial IHA was effective from September 16, 2021, through September 
15, 2022. CDFW has requested re-issuance with new effective dates of 
September 16, 2022, through September 15, 2023. The scope of the 
activities and anticipated effects remain the same, authorized take 
numbers are not changed, and the required mitigation, monitoring, and 
reporting remains the same as included in the initial IHA. NMFS is, 
therefore, issuing a second identical IHA to cover the incidental take 
analyzed and authorized in the initial IHA.

DATES: This authorization is effective from September 16, 2022, through 
September 15, 2023.

[[Page 56632]]


ADDRESSES: An electronic copy of the final 2021 IHA previously issued 
to CDFW, CDFW's application, and the Federal Register notices proposing 
and issuing the initial IHA may be obtained by visiting https://www.fisheries.noaa.gov/action/incidental-take-authorization-tidal-marsh-restoration-project-elkhorn-slough-phase-iii-2021. In case of 
problems accessing these documents, please call the contact listed 
below (see FOR FURTHER INFORMATION CONTACT).

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

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act 
(MMPA; 16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as 
delegated to NMFS) to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed authorization is provided to the 
public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

Summary of Request

    On September 22, 2021, NMFS published final notice of our issuance 
of an IHA authorizing take of marine mammals incidental to the Elkhorn 
Slough Tidal Marsh Restoration Project, Phase III (86 FR 52644). The 
effective dates of that IHA were September 16, 2021, through September 
15, 2022. On July 12, 2022, CDFW informed NMFS that the project was 
delayed. None of the work identified in the initial IHA (i.e., 
restoration work at the Seal Bend Restoration Area) has occurred. CDFW 
submitted a request that we reissue an identical IHA that would be 
effective from September 16, 2022, through September 15, 2023, in order 
to conduct the construction work that was analyzed and authorized 
through the previously issued IHA. Therefore, re-issuance of the IHA is 
appropriate.

Summary of Specified Activity and Anticipated Impacts

    The planned activities (including mitigation, monitoring, and 
reporting), authorized incidental take, and anticipated impacts on the 
affected stocks are the same as those analyzed and authorized through 
the previously issued IHA.
    Phase III of the Elkhorn Slough Tidal Marsh Restoration Project 
will restore 28.6 acres (11.57 hectares) at the Seal Bend Restoration 
Area by relocating soil from an upland area called ``the borrow'' 
through use of heavy earth moving equipment, within a 12 month period. 
A detailed description of the planned restoration activities is found 
in the Federal Register notice for the proposed initial IHA (86 FR 
43204, August 6, 2021). The location, timing, and nature of the 
activities, including the types of equipment planned for use, are 
identical to those described in the initial IHA. The mitigation and 
monitoring are also as prescribed in the initial IHA.
    Construction activities are expected to produce airborne noise and 
visual disturbance that have the potential to result in behavioral 
harassment of Pacific harbor seals. A description of the methods and 
inputs used to estimate take anticipated to occur and, ultimately, the 
take that was authorized is found in the previous documents referenced 
above. The data inputs and methods of estimating take are identical to 
those used in the initial IHA. NMFS has reviewed recent Stock 
Assessment Reports, information on relevant Unusual Mortality Events, 
and recent scientific literature, and determined that no new 
information affects our original analysis of impacts or take estimate 
under the initial IHA.
    We refer to the documents related to the previously issued IHA, 
which include the Federal Register notice of the issuance of the 
initial 2021 IHA for Phase III of the Elkhorn Slough Tidal Marsh 
Restoration Project (86 FR 52644, September 22, 2021), CDFW's 
application, the Federal Register notice of the proposed IHA (86 FR 
43204, August 6, 2021), and all associated references and documents.

Determinations

    CDFW will conduct activities as analyzed in the initial 2021 IHA. 
As described above, the number of authorized takes of the same species 
and stocks of marine mammals are identical to the numbers that were 
found to meet the negligible impact and small numbers standards and 
authorized under the initial IHA and no new information has emerged 
that would change those findings. The reissued 2022 IHA includes 
identical required mitigation, monitoring, and reporting measures as 
the initial IHA, and there is no new information suggesting that our 
analysis or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has determined the following: (1) the required 
mitigation measures will effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; and (4) CDFW's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action.

National Environmental Policy Act

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

[[Page 56633]]

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.

Endangered Species Act (ESA)

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

Authorization

    NMFS has issued an IHA to CDFW for restoration activities at the 
Seal Bend Restoration Area in Elkhorn Slough (Monterey County, CA) from 
September 16, 2022, through September 15, 2023. All previously 
described mitigation, monitoring, and reporting requirements from the 
initial 2021 IHA are incorporated.

    Dated: September 9, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-19945 Filed 9-14-22; 8:45 am]
BILLING CODE 3510-22-P