[Federal Register Volume 88, Number 90 (Wednesday, May 10, 2023)]
[Notices]
[Pages 30093-30096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09951]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC963]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Port San Luis Breakwater Repairs in 
Avila Beach, California

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

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

-----------------------------------------------------------------------

SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), as amended, notification is hereby given 
that NMFS has issued a renewal incidental harassment authorization 
(IHA) to U.S. Army Corps of Engineers (ACOE) to incidentally harass 
marine mammals incidental to Port San Luis breakwater repairs in Avila 
Beach, California.

DATES: This renewal IHA is valid from the date of issuance through 
March 31, 2024.

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

[[Page 30094]]

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 issued or, if the taking is limited to 
harassment, an incidental harassment authorization is issued.
    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 1 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 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time 1-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, 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 Description 
of the Specified Activities and Anticipated Impacts 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 1 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.

History of Request

    On April 27, 2021, NMFS issued an IHA to the ACOE to take marine 
mammals incidental to Port San Luis breakwater repairs in Avila Beach, 
California (86 FR 22151, April 27, 2021), effective from April 1, 2022 
through March 31, 2023. On March 28, NMFS received an application for 
the renewal of that initial IHA. As described in the application for 
renewal, the activities for which incidental take is requested consist 
of activities that are covered by the initial authorization but were 
not 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-army-corps-engineers-port-san-luis-breakwater-repair-project) 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. The notice of the proposed renewal incidental 
harassment authorization was published on April 14, 2023 (88 FR 23002).

Description of the Specified Activities and Anticipated Impacts

    Port San Luis breakwater is approximately 2,400 feet (730 m) long 
and 20 feet (6 m) wide. Repair identified in the initial IHA was 
designed to focus on the most heavily damaged 1,420 feet (430 m) at the 
seaward end of the breakwater. The footprint of the breakwater would 
not be changed, but the crest elevation would be raised 3 feet (1 m) 
from +13 feet (4 m) Mean Lower Low Water (MLLW) to +16 feet (4.9) MLLW 
for hydraulic stability, to accommodate larger armor stone, to meet 
design criteria, and to account for sea level rise. Repair work could 
potentially extend to the seabed to ensure a stable slope and 
structural stability is maintained.
    The project was initially described as consisting of the repair of 
a deteriorating breakwater at Port San Luis, California. The project is 
required to protect Port San Luis Harbor and maintain safe navigability 
within the port. 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

[[Page 30095]]

(stones range from 5 to 20 tons (4.5-18.1 metric tons) each) would be 
placed to restore the most heavily damaged portion of the breakwater. 
The project was expected to take no more than 174 work days over 7 
months.
    Due to a combination of contracting and weather delays, only a 
subset of the activities in the initial IHA were completed. 
Specifically, under the initial IHA, the ACOE has completed: (1) 
excavation of shoaled sediment adjacent to the leeward side of the 
breakwater to create adequate depths for barges and other vessels to 
access the breakwater for the repair work, and (2) repair of 450 feet 
(137.2 meters) of the breakwater. This renewal request is to cover the 
subset of the activities covered in the initial IHA that will not be 
completed during the effective IHA period due to project delays. The 
remaining breakwater repair work under the renewal IHA would involve 
completing the remaining 970 feet (295.7 meters) of repairs of the 
breakwater and is expected to take no more than 162 workdays.
    The likely or possible impacts of the ACOE's planned activity on 
marine mammals could involve both non-acoustic and acoustic stressors 
and is unchanged from the impacts described in the initial IHA. 
Potential non-acoustic stressors could result from the physical and 
visual presence of the equipment, vessels, and personnel. Acoustic 
stressors include effects of heavy equipment operation, rock setting, 
and sediment movement. The effects of underwater and in-air noise and 
visual disturbance from the ACOE's planned activities have the 
potential to result in Level B harassment of marine mammals in the 
action area.

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is authorized here may be found in the notices of the proposed and 
final IHAs for the initial authorization (86 FR 14579, March 17, 2021; 
86 FR 22151, April 27, 2021). As previously mentioned, this IHA renewal 
is for a subset of the activities authorized in the initial IHA that 
would not be completed prior to its expiration due to project delays. 
The location, timing, and nature of the activities, including the types 
of equipment planned for use, are identical to those described in the 
previous notice for the initial IHA. The renewal IHA would be effective 
from the date of issuance through March 31, 2024.

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 
notice of the proposed IHA for the initial authorization (86 FR 14579, 
March 17, 2021). 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 (86 FR 14579, March 17, 2021).

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 
authorized here may be found in the Federal Register notice of the 
Proposed IHA for the initial authorization (86 FR 14579, March 17, 
2021). NMFS has reviewed the monitoring data from the initial IHA, 
recent draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, other scientific literature, and the public comments, 
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 notices of the 
proposed and final IHAs for the initial authorization (86 FR 14579, 
March 17, 2021; 86 FR 22151, April 27, 2021). Specifically, days of 
operation, area or space within which harassment is likely to occur, 
and marine mammal occurrence data applicable to this authorization 
remain unchanged from the previously issued IHA. Similarly, the stocks 
taken, methods of take, daily take estimates and types of take remain 
unchanged from the previously issued IHA. The number of takes 
authorized in this renewal are a subset of the initial authorized takes 
that better represent the amount of activity left to complete. These 
takes, which reflect the lower number of remaining days of work (162), 
are indicated below in Table 1.

  Table 1--Proposed Amount of Taking, by Level B Harassment, by Species and Stock and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
                                                                                                    Percent of
                    Species                                   Stock                Proposed take       stock
----------------------------------------------------------------------------------------------------------------
Harbor seal...................................  California......................           1,674             5.4
Steller sea lions.............................  Eastern DPS.....................           3,124             7.2
California sea lion...........................  U.S.............................          48,933              19
----------------------------------------------------------------------------------------------------------------

Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are identical to those included in 
the FR notice announcing the issuance of the initial IHA, and the 
discussion of the least practicable adverse impact included in that 
document remains accurate (86 FR 22151, April 27, 2021). The following 
mitigation, monitoring, and reporting measures are proposed for this 
renewal:
     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

[[Page 30096]]

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 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 haulout. 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.
     The ACOE must employ one protected species observers 
(PSOs) to monitor the shutdown and Level B harassment zones.
     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.
     The ACOE must submit a draft report detailing all 
monitoring within 90 calendar days of the completion of marine mammal 
monitoring or 60 days prior to the issuance of any subsequent IHA for 
this project, whichever comes first.
     The ACOE must prepare and submit final report within 30 
days following resolution of comments on the draft report from NMFS.
     The ACOE must submit all PSO datasheets and/or raw 
sighting data (in a separate file from the Final Report referenced 
immediately above).
     The ACOE must report injured or dead marine mammals.

Comments and Responses

    A notice of NMFS' proposal to issue a renewal IHA to ACOE was 
published in the Federal Register on April 14, 2023 (88 FR 23002). That 
notice either described, or referenced descriptions of, the ACOE's 
activity, the marine mammal species that may be affected by the 
activity, the anticipated effects on marine mammals and their habitat, 
estimated amount and manner of take, and proposed mitigation, 
monitoring and reporting measures. NMFS received no public comments.

Determinations

    The renewal request consists of a subset of activities analyzed 
through the initial authorization described above. In analyzing the 
effects of the activities for the initial IHA, NMFS determined that the 
ACOE's activities would have a negligible impact on the affected 
species or stocks and that authorized take numbers of each species or 
stock were small relative to the relevant stocks (e.g., less than one-
third the abundance of all stocks). The mitigation measures and 
monitoring and reporting requirements as described above are identical 
to the initial IHA.
    NMFS has 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) ACOE'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, and; (5) appropriate 
monitoring and reporting requirements are included.

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 IHA 
renewal) with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take 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 determined that the issuance of the 
initial IHA qualified to be categorically excluded from further NEPA 
review. NMFS has determined that the application of this categorical 
exclusion remains appropriate for this renewal IHA.

Endangered Species Act (ESA)

    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.

Renewal

    NMFS has issued a renewal IHA to ACOE for the take of marine 
mammals incidental to conducting Port San Luis breakwater repairs in 
Avila Beach, CA, through March 31, 2024.

    Dated: May 5, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, Marine Fisheries Service.
[FR Doc. 2023-09951 Filed 5-9-23; 8:45 am]
BILLING CODE 3510-22-P