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 Department of Commerce National Oceanic and Atmospheric Administration [RTID 0648-XE353]
 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
 ACTION: Notice; issuance of a modified incidental harassment authorization.
 SUMMARY: In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued a modified incidental harassment authorization (IHA) to U.S. Army Corps of Engineers (USACE) to incidentally harass marine mammals during construction associated with Sand Island Pile Dikes Repairs on the Columbia River.
 DATES: This modified IHA is effective through July 31, 2025.
 ADDRESSES: Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: 
                        *https://www.fisheries.noaa.gov/​action/​incidental-take-authorization-army-corps-engineers-sand-island-pile-dikes-repairs-columbia.*
                         In case of problems accessing these documents, please call the contact listed below.
 FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401.


SUPPLEMENTARY INFORMATION: Background The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
                    *et seq.*) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be provided to the public for review. 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 in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. History of Request On March 4, 2022, NMFS received a request from the USACE for two consecutive IHAs to take marine mammals incidental to the Sand Island Pile Dikes Repairs Project on the Columbia River over the course of 2 years. The USACE's request was for take of seven species of marine mammals by Level B harassment and, for a subset of these species (harbor seal (
                    *Phoca vitulina*) and harbor porpoise (
                    *Phocoena phocoena*)), Level A harassment. On August 22, 2023, NMFS published a 
                    **Federal Register**
                     notice (87 FR 51346) announcing the issuance of the IHAs, which were valid for year 1 from August 1, 2023 through July 31, 2024 and for year 2 from August 1, 2024 through July 31, 2025. On August 19, 2024, NMFS received a request from the USACE to modify the year 2 IHA. Following receipt of additional information, NMFS accepted the request on September 11, 2024. The original year 2 IHA authorized, by Level B harassment only, six takes of humpback whale (from the California/Oregon/Washington stock designated at the time; 
                    *Megaptera novaeangliae*) and two takes from the West Coast Transient stock of killer whale (
                    *Orcinus orca*). Sightings of humpback whales have increased in the work area from previous years. Humpback whale feeding groups have begun utilizing the mouth of the Columbia River as foraging ground. The USACE had recorded four potential takes of humpback whale by Level B harassment as of September 11, 2024 after 24 days of in-water pile driving work, with 80 in-water days remaining. In addition, there have been several recent sightings of transient killer whales in the area. These sightings represent a change to occurrence data considered by NMFS and which informed the original take estimates. Therefore, the USACE is requesting a modification to the year 2 authorization to increase the authorized take of humpback whale and killer whale, by Level B harassment only. Description of the Activity and Anticipated Impacts There are no changes to the specified activity or to the mitigation, monitoring, and reporting requirements as described for the original year 2 IHA (87 FR 39481, July 1, 2022). Please see the additional relevant documents related to the issuance of the initial IHA, including the USACE's application and the notice of issuance of the IHA (87 FR 51346, August 22, 2022) (available at 
                    *https://www.fisheries.noaa.gov/​action/​incidental-take-authorization-army-corps-engineers-sand-island-pile-dikes-repairs-columbia*) for more detailed descriptions. Detailed Description of the Action A detailed description of the construction activities can be found in the aforementioned documents associated with the issuance of the initial year 2 IHA. The location and general nature of the activities are identical to those described in the previous documents. As of September 11, 2024, 24 days in-water work had been completed out of a projected total of 104 days. Description of Marine Mammals A description of the marine mammals in the area of the activities can be found in these previous documents, which remains applicable to this modified IHA as well. In addition, NMFS has reviewed the draft 2023 Stock Assessment Reports (SARs; Young 
                    *et al.,*
                     2023; available at: 
                    *https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​marine-mammal-stock-assessment-reports*), information on relevant Unusual Mortality Events, and recent scientific literature, and incorporated that into table 1 below. Table 1 lists all species or stocks for which take is expected and authorized to be authorized for this activity, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no serious injury or mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species or stocks and other threats. Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in 
                    ( print page 82988)
                    NMFS' Alaska Marine Mammal SARs. All values presented in table 1 are the most recent available at the time of publication (including from the draft 2023 SARs) and are available online at: 
                    *https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​marine-mammal-stock-assessments.*
                     Note that the stock abundances of humpback whale, harbor porpoise, and Steller sea lion have updated since the 
                    **Federal Register**
                     notice of issuance was published (87 FR 51346, August 22, 2022). The updates figures are reflected in table 1. Table 1—Species Likely Impacted by the Specified Activities
Common name
Scientific name
Stock
ESA/MMPA status; strategic (Y/N) 1
Stock abundance
                             
                                (CV, N
                                min
                                , most recent
                             
                             
                                abundance survey) 2
PBR
Annual M/SI 3**Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)**Family Balaenopteridae (rorquals):Humpback whale
*Megaptera novaeangliae*
Central America/Southern Mexico—California/Oregon/Washington
E, D, Y
1,494 (0.171, 1,284, 2021)
3.5
14.9Mainland Mexico—CA/OR/WA
T, D, Y
3,477 (0.101, 3,185, 2018)
43
22**Superfamily Odontoceti (toothed whales, dolphins, and porpoises)**Family Delphinidae:Killer Whale
*Orcinus orca*
West Coast Transient
-, -, N
349 4
                             (N/A, 349, 2018)
3.5
0.4Family Phocoenidae (porpoises):Harbor Porpoise
*Phocoena phocoena*
Northern Oregon/Washington Coast
-, -, N
22,074 (0.391, 16,068, 2024)
161
3.2**Order Carnivora—Superfamily Pinnipedia**Family Otariidae (eared seals and sea lions):California Sea Lion
*Zalophus californianus*
U.S.
-, -, N
257,606 (N/A, 233,515, 2014)
14,011
>321Steller Sea Lion
*Eumetopias jubatus*
Eastern
-, -, N
36,308 (N/A, 36,308, 2022) 5
2,592
112Family Phocidae (earless seals):Harbor Seal
*Phoca vitulina*
Oregon/Washington Coast
-, -, N
24,732 6
                             (UNK, UNK, 1999)
UND
10.6Northern Elephant Seal
*Mirounga angustirostris*
California Breeding
-, -, N
187,386 (N/A, 85,369, 2013)
5,122
13.71
                         ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.2
                         NMFS marine mammal stock assessment reports online at:
                        *https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​marine-mammal-stock-assessment-reports-region.*
                         CV is coefficient of variation; N
                        min
                         is the minimum estimate of stock abundance.3
                         These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (
                        *e.g.,*
                         commercial fisheries, ship strike). Annual mortality/serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a minimum value or range.4
                         Based on counts of individual animals identified from photo-identification catalogues. Surveys for abundance estimates of these stocks are conducted infrequently.5
                         Nest is best estimate of counts, which have not been corrected for animals at sea during abundance surveys. Estimates provided are for the U.S. only.6
                         The abundance estimate for this stock is greater than 8 years old and is therefore not considered current. PBR is considered undetermined for this stock, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as these represent the best available information for use in this document.
 Humpback Whales On September 8, 2016, NMFS divided the once single species into 14 distinct population segments (DPS) under the ESA, removed the species-level listing as endangered, and, in its place, listed four DPSs as endangered and one DPS as threatened (81 FR 62259, September 8, 2016). The remaining nine DPSs were not listed. There are four DPSs in the North Pacific, including Western North Pacific and Central America, which are listed as endangered, Mexico, which is listed as threatened, and Hawaii, which is not listed. The 2022 Pacific SARs described a revised stock structure for humpback whales which modifies the previous stocks designated under the MMPA to align more closely with the ESA-designated DPSs (Caretta et al., 2023; Young et al., 2023). Specifically, the three previous North Pacific humpback whale stocks (Central and Western North Pacific stocks and a CA/OR/WA stock; take of humpback whales authorized through the original Year 2 IHA was from the latter stock) were replaced by five stocks, largely corresponding with the ESA-designated DPSs. These include Western North Pacific and Hawaii stocks and a Central America/Southern Mexico-CA/OR/WA stock (which corresponds with the Central America DPS). The remaining two stocks, corresponding with the Mexico DPS, are the Mainland Mexico-CA/OR/WA and Mexico-North Pacific stocks (Caretta et al., 2023; Young et al., 2023). The former stock is expected to occur along the west coast from California to southern British Columbia, while the latter stock may occur across the Pacific, from northern British Columbia through the Gulf of Alaska and Aleutian Islands/Bering Sea region to Russia. Only the Mainland Mexico-CA/OR/WA and Mexico-North Pacific stocks are expected to be affected by the specified activity, and take previously authorized for the CA/OR/WA stock is here reallocated to these two newly designated stocks, as discussed below. We have determined that no new information affects our original analysis of potential impacts under the initial Year 2 IHA. Potential Effects on Marine Mammals and Their Habitat A description of the potential effects of the specified activities on marine mammals and their habitat may be found in the documents supporting the issuance of the original year 2 IHA, which remains applicable to the modification of the IHA. NMFS is not 
                    ( print page 82989)
                    aware of new information regarding potential effects. Estimated Take A detailed description of the methods and inputs used to estimate authorized take for the specified activities are found in the 
                    **Federal Register**
                     notice of proposed IHAs (87 FR 3948, July 1, 2022). The types and sizes of piles, ensonified areas and source levels, and methods of pile driving remain unchanged from the IHA. The modification addresses USACE's concerns that the ongoing construction activities could result in exceeding levels of authorized take of humpback whale and killer whale. Sightings of humpback whales have increased in the project area from previous years. Humpback whale feeding groups have begun utilizing the mouth of the Columbia River as foraging ground, arriving in the lower Columbia estuary as early as mid-June, and have been observed as late as mid-November with whale peak abundance coinciding with the peak abundance of forage fish in mid-summer. Humpback whales were observed in the immediate vicinity of West and East Sand Islands in late summer and fall of 2015 and 2016. They were also observed in the area in 2017 and 2019, but their presence was not documented in 2018. Under the 2023 year 1 IHA, no humpback whales were detected in 34 days of pile driving. According to Wade 
                    *et al.*
                     (2021), the probabilities that humpback whales encountered in Oregon and California (
                    *i.e.,*
                     south of the Columbia River) belong to various DPSs are as follows: Mexico DPS, 58 percent; and Central America DPS, 42 percent. The probabilities that humpback whales found in Washington and Southern British Columbia waters (
                    *i.e.,*
                     north of the Columbia River) belong to various DPSs are as follows: Hawai'i DPS, 69 percent; Mexico DPS, 25 percent; and Central America DPS, 6 percent (Wade 
                    *et al.,*
                     2021). In this area, these DPSs correspond with the newly designated Mainland Mexico-CA/OR/WA, Central America/Southern Mexico-CA/OR/WA, and Hawaii stocks, respectively. Since the Columbia River is considered the dividing line between these two areas, the correct proportion of humpback whales likely to be encountered is unclear, 
                    *i.e.,*
                     whether the probabilities are closer to those assumed for the regions north or south of the Columbia River. NMFS conservatively assumes here that take of humpback whale would be the same as at a location south of the Columbia River, with 58 percent likely from the Mexico stock and 42 percent from the Central America stock. The USACE has recorded four takes of humpback whale by Level B harassment as of September 11, 2024 after 24 days of in-water pile driving work which equates to a daily take rate of 0.17 animals/day. NMFS had originally authorized six takes by Level B harassment. With 80 days in-water work remaining, the projected take at the rate described above would result in 14 takes in addition to the 4 takes already recorded. NMFS is further authorizing an additional 10 takes by Level B harassment to ensure adequate consideration of likely take in light of the present increased occurrence of humpback whales. Therefore, NMFS has authorized a total of 28 humpback whale takes by Level B harassment. The USACE also requested an increase in authorized take by Level B harassment of killer whales. NMFS had authorized two takes by Level B harassment under the original year 2 IHA. Under the 2023 year 1 IHA, no killer whales were detected in 34 days of pile driving according to the monitoring report submitted by the USACE. Based on recent anecdotal sightings, the USACE was concerned about potentially exceeding authorized take. The USACE felt that killer whales are more likely to enter into the project than previously considered. NMFS agreed with this assessment and modified the original IHA accordingly. The modal group sizes for transient killer whales ranges from three to four (Shields 
                    *et al.*
                     2018). NMFS assumed take of 2 groups of 4 in addition to the 2 already authorized in the year 2 IHA for a total of 10 takes by Level B harassment. Table 2 shows the authorized take of all marine mammals by Level A and Level B harassment including revisions to authorized take of humpback whale and killer whale. Table 2—Authorized Take of Marine Mammals by Level A and Level B Harassment by Year, by Species and Stock and Percent of Take by Stock
Species
Authorized take by Level A harassment
Authorized take by Level B harassment
Total proposed take
Stock
Stock
                             abundance
Percent of stockYear 2:Humpback whale 1
0
12
12
Central America/Southern Mexico—California/Oregon/Washington
1,494
<0.010
16
16
Mainland Mexico—CA/OR/WA
3,477
0.46Killer whale
0
10
10
West Coast Transient
349
0.28Harbor porpoise
27
163
190
Northern Oregon/Washington Coast
22,074
0.86California sea lion
0
23,421
23,421
U.S
257,606
9.09Steller sea lion
0
29,502
29,502
Eastern
36,308
81.25Harbor seal
54
5,361
5,415
Oregon/Washington Coast
24,732
21.89Northern elephant seal
0
6
6
California Breeding
187,363
<0.011
                        Humpback whales from the Central America/Southern Mexico-CA/OR/WA stock and the Mainland Mexico-CA/OR/WA stock are likely to occur in the project area in the respective percentages of 42 and 58 percent (Wade 
                        *et al.*
                         2021).
 Description of Mitigation, Monitoring and Reporting Measures The mitigation, monitoring and reporting measures are identical to those included in the initial year 2 IHA and remain relevant for this modified IHA. These can be found in the documents supporting the issuance of the two consecutive final IHAs. Determinations With the exception of the revised take numbers for humpback whale and killer whale, by Level B harassment only, the USACE's in-water construction activities as well as mitigation and reporting requirements are unchanged from those in the year 2 IHA. The effects of the activity on the affected species and stocks remain unchanged. The additional takes by Level B harassment would be due to potential behavioral disturbance and potential temporary threshold shift (TTS). No serious injury or mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. The potential for harassment is minimized through the construction 
                    ( print page 82990)
                    method and the implementation of the planned mitigation measures (see 
                    *Description of Mitigation, Monitoring and Reporting Measures*
                     section). The USACE's pile driving project precludes the likelihood of serious injury or mortality. For all species and stocks, take would occur within a limited, confined area of the stock's range. Level A and Level B harassment would be reduced to the level of least practicable adverse impact through use of mitigation measures described herein. The additional authorized takes of humpback whale and killer whale represent a minor increase in the percent of stock taken that was authorized in the initial year 2 IHA, and the anticipated impacts are identical to those described in the 
                    **Federal Register**
                     notice of issuance of final IHA (87 FR 51346, August 22, 2022). The increases in authorized takes by Level B harassment for humpback and killer whale are extremely small when compared to stock abundance. The increase in authorized take of humpback and killer whale by Level B harassment is less than 0.01 percent for the Central America/Southern Mexico DPS and no greater than 0.46 percent for the Mainland Mexico DPS. Therefore, this activity will not cause effects on annual rates of recruitment or survival. We have determined that the impacts resulting from this activity are not expected to adversely affect annual rates of recruitment or survival for humpback whale, killer whale or any other species where NMFS has authorized take. 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; (4) the USACE'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 (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, in this case with the West Coast Regional Office. As part of the original IHA, NMFS authorized incidental take of humpback whales from the California/Oregon/Washington stock that was designated at the time, and which included whales from the ESA-listed Mexico and Central America DPSs. The effects of this Federal action were adequately analyzed in the NMFS West Coast Region's Biological Opinion and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Response for the Sand Island Pile Dike Repair Project, dated June 14, 2022, which concluded that the action is not likely to adversely affect humpback whales from the Mexico and Central America DPSs or their designated critical habitat. This modification of the IHA does not change the existing analysis and, therefore, the prior determination remains unchanged. 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) with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the issuance of the modification of the IHA continues to qualify to be categorically excluded from further NEPA review. Authorization NMFS has issued a modified IHA to the USACE for conducting construction activities associated Sand Island Dikes Repair Project on the Columbia River that includes the previously explained mitigation, monitoring, and reporting requirements. Dated: October 8, 2024. Kimberly Damon-Randall, Director, Office of Protected Resources, National Marine Fisheries Service.


[FR Doc. 2024-23681 Filed 10-11-24; 8:45 am] BILLING CODE 3510-22-P