[Federal Register Volume 88, Number 146 (Tuesday, August 1, 2023)]
[Notices]
[Pages 50113-50117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16286]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD188]


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; request for comments on proposed renewal incidental 
harassment authorization.

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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 restoration activity associated with the Elkhorn Slough 
Tidal Marsh Restoration Project, Phase III, 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 August 
16, 2023.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, and 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. 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 below.

[[Page 50114]]


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

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 (86 FR 43204, August 6, 2021), 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.
     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: https://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.

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 
NAO 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 preliminarily determined that the application of this categorical 
exclusion remains appropriate for this renewal IHA.

History of Request

    On September 16, 2021, NMFS issued an IHA to CDFW to take marine 
mammals incidental to Phase III of the Elkhorn Slough Tidal Marsh 
Restoration Project in Monterey County, CA, effective from September 
16, 2021 through September 15, 2022 (86 FR 52644). On July 12, 2022, 
CDFW informed NMFS that the project was delayed and none of the work 
identified in the initial IHA (i.e., restoration work at the Seal Bend 
Restoration Area) had occurred, and submitted a request for re-issuance 
of the initial IHA with new effective dates of September 16, 2022, 
through September 15, 2023 (87 FR 56631, September 15, 2022). On July 
6, 2023, NMFS received an application for the renewal of the IHA. 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, and reissued, authorization but will not be completed 
prior to its expiration. As required, the applicant also provided 
preliminary monitoring results which confirm that the applicant has 
implemented the required mitigation and monitoring, and which also show 
that no impacts of a scale or nature not previously analyzed or 
authorized have occurred as a result of the activities conducted.

[[Page 50115]]

Description of the Specified Activities and Anticipated Impacts

    Phase III of CDFW's construction Elkhorn Slough Tidal Marsh 
Restoration Project consists of relocating soil from an upland area 
through the use of heavy earth-moving equipment to the Seal Bend 
Restoration Area, and will restore 28.6 acres (11.57 hectares) within a 
12 month period. The planned activities (including mitigation, 
monitoring, and reporting) and anticipated impacts on the affected 
stocks are the same as those analyzed and authorized through the 
initial IHA.
    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 (Phoca vitulina richardii). A 
description of the methods and inputs used to estimate take anticipated 
to occur and, ultimately, the take that was authorized is included 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 under the initial IHA. No work was completed under the initial 
IHA and only 15 days of work have been completed since reissuance of 
the initial IHA.
    This renewal request is to cover a subset of the activities 
described for the initial IHA that will not be completed during the 
effective IHA period. CDFW plans to continue construction activities 
between September 2023 and September 2024. CDFW estimates it will take 
225 days to complete construction necessary to support restoration of 
the Seal Bend Restoration Area, as only 15 days of work out of the 240 
days of planned construction are expected to be completed within the 
effective dates of the currently active IHA.
    The likely or possible impacts of CDFW's proposed 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 
presence of construction equipment and personnel. Acoustic stressors 
include effects of heavy equipment operation during soil excavation, 
transport, and placement. The effects of airborne noise and visual 
disturbance from CDFW's proposed 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 proposed here may be found in the notices of the proposed and 
final IHAs for the initial authorization (86 FR 43204, August 6, 2021; 
86 FR 52644, September 22, 2021). As previously mentioned, this request 
is for a subset of the activities anticipated in the initial, and 
reissued, IHA that would not be completed prior to its expiration. 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. CDFW is requesting a renewal IHA 
for relocating soil from an upland area through the use of heavy earth-
moving equipment. The proposed renewal would be effective for a period 
not exceeding 1 year from the date of expiration of the reissued IHA. 
The proposed renewal IHA would be effective from September 16, 2023 
through September 15, 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 43204, 
August 6, 2021). NMFS has reviewed the preliminary monitoring data from 
the reissued 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 43204, August 6, 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 the 
authorization of take is proposed here may be found in the notice of 
the proposed IHA for the initial authorization (86 FR 43204, August 6, 
2021). NMFS has reviewed the preliminary monitoring data from the 
reissued 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 notice of the proposed 
IHA for the initial authorization (86 FR 43204, August 6, 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 initial IHA. Similarly, 
the stock taken, methods of take, daily take estimates, and types of 
take remain unchanged from the initial IHA. The number of takes 
proposed for authorization in this renewal are a subset of the initial 
authorized takes that represent the amount of activity left to 
complete. These takes, which reflect the lower number of remaining days 
of work (225 days), 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
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                                                                                                    Percent of
              Species                  Scientific name            Stock          Proposed take        stock
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Harbor seal.......................  Phoca vitulina        California..........           1,800              5.8
                                     richardii.
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[[Page 50116]]

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 remains 
accurate. The following measures are proposed for this renewal:
     Construction work must occur only during daylight hours 
and should environmental conditions deteriorate such that marine 
mammals within the entire shutdown zone would not be visible (e.g., 
fog, heavy rain, smoke), construction must be delayed until the 
Protected Species Observer (PSO) is confident marine mammals within the 
shutdown zone could be detected;
     CDFW must fulfill visual monitoring requirements, which 
includes the use of NMFS-approved PSOs and the establishment of a Level 
B harassment zone within 300 meters (m) of all construction activities;
     A 30 minute pre-construction clearance period must occur 
prior to the start of ramp-up (e.g., ramp up by moving around the 
project area and starting equipment sequentially) and construction 
activities;
     CDFW must shutdown heavy machinery work if a marine mammal 
comes within 10 m;
     During harbor seal pupping season (March through July), 
CDFW must not initiate construction activities within 300 m of a mom/
pup pair that is hauled out, or 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 shut down 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;
     Construction activities 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 the 
harassment zone;
     CDFW must conduct a census of marine mammals in the 
project area and the area surrounding the project at least 30 minutes 
prior to the beginning of construction on monitoring days, and again 30 
minutes after the completion of construction activities. CDFW must also 
conduct hourly counts of animals hauled out and in the water within at 
least the Level B harassment zone, as well as reactions observed in 
relation to construction activities;
     CDFW 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;
     CDFW must prepare and submit final report within 30 days 
following resolution of comments on the draft report from NMFS;
     CDFW must submit all PSO datasheets and/or raw sighting 
data (in a separate file (e.g., Microsoft Excel or similar) from the 
Final Report referenced immediately above); and,
     CDFW must report injured or dead marine mammals.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (86 
FR 43204, August 6, 2021) and solicited public comments on both our 
proposal to issue the initial IHA for construction activities 
associated with Phase III of the Elkhorn Slough Tidal Marsh Restoration 
Project and on the potential for a renewal IHA, should certain 
requirements be met. During the 30-day public comment period, NMFS 
received no comments on either the proposal to issue the initial IHA or 
the potential for a renewal IHA.

Preliminary Determinations

    The proposed 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 CDFW's activities would have a negligible impact on 
the affected species or stock 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 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'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.

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. Therefore, NMFS 
has determined that formal consultation under section 7 of the ESA is 
not required for this proposed 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 construction activities 
associated with Phase III of the Elkhorn Slough Tidal Marsh Restoration 
Project in Monterey County, CA, from September 16, 2023, through 
September 15, 2024, 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/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. 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

[[Page 50117]]

help inform our final decision on the request for MMPA authorization.

    Dated: July 27, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-16286 Filed 7-31-23; 8:45 am]
BILLING CODE 3510-22-P