[Federal Register Volume 86, Number 127 (Wednesday, July 7, 2021)]
[Notices]
[Pages 35751-35756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14380]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB200]


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; issuance of Renewal 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 Renewal incidental harassment authorization 
(IHA) to California Department of Fish and Wildlife (CDFW) to 
incidentally harass, by Level B harassment only, marine mammals 
incidental to construction activities associated with the second phase 
of the Elkhorn Slough Tidal Marsh Restoration Project in Monterey 
County, California.

DATES: This Renewal IHA is valid from the date of issuance through May 
31, 2022.

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 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 
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 initial IHA issuance, 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:
    <bullet> 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).
    <bullet> 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 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, 2020), effective from June 1, 2020 
through May 31, 2021. On May 11, 2021, NMFS received an application for 
the Renewal of that

[[Page 35752]]

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 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. The notice of the proposed Renewal incidental 
harassment authorization was published on June 8, 2021 (86 FR 30412).

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 was not 
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 stock 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 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] TN07JY21.069

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. This Renewal 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 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

[[Page 35753]]

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.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for take is authorized 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 
authorized 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, 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. Specifically, 
the source levels, days of operation, and marine mammal occurrence data 
applicable to this authorization remain unchanged from the previously 
issued IHA. Similarly, the stocks taken, methods of take, and types of 
take remain unchanged from the initial IHA, as do the number of takes, 
which are indicated below in Table 1.

                            Table 1--Calculated Take and Percentage of Stock Exposed
----------------------------------------------------------------------------------------------------------------
                                                               Authorized take                        Percent
                  Species                   -----------------------------------------------------  population 4
                                                           Level B                    Level A
----------------------------------------------------------------------------------------------------------------
Pacific Harbor Seal........................  417 \1\ max seals/day (9 percent                  0             1.3
                                              \2\) (62 days \3\) = 2327.
----------------------------------------------------------------------------------------------------------------
\1\ Maximum number of seals observed/day between January 2018 and April 2019 by Reserve Otter Monitoring
  Project.
\2\ Percent 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 Mitigation, Monitoring and Reporting Measures

    The 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 in the notice of proposed IHA remains accurate. The 
following measures are included in 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 protected species observer (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 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

[[Page 35754]]

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 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 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:
    <bullet> Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density).
    <bullet> 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).
    <bullet> Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
    <bullet> How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
    <bullet> Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
    <bullet> 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:
    <bullet> 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.
    <bullet> Successfully attained a bachelor's degree from an 
accredited college or university with a major in one of the 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.
    <bullet> Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience).
    <bullet> Experience or training in the field identification of 
marine mammals, including the identification of behaviors.
    <bullet> Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations.
    <bullet> 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

[[Page 35755]]

observed; and marine mammal behavior.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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:
    <bullet> Environmental conditions (weather condition, tidal 
conditions, visibility, cloud cover, air temperature and wind speed);
    <bullet> Numbers of each marine mammal species spotted;
    <bullet> Location of each species spotted, including distance from 
construction activity;
    <bullet> Status (in water or hauled out); and
    <bullet> 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:
    <bullet> Numbers of each species;
    <bullet> Location, including whether inside the Level B harassment 
zone; whether hauled out or in the water; and distance from 
construction activities (+/- 10 m);
    <bullet> Time;
    <bullet> Tidal conditions;
    <bullet> Time construction activities start and end;
    <bullet> Primary construction activities occurring during the past 
hour;
    <bullet> Any noise or visual disturbance;
    <bullet> Number of mom/pup pairs and neonates observed; and
    <bullet> 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:
    <bullet> Age-class;
    <bullet> Sex;
    <bullet> Unusual activity or signs of stress; and
    <bullet> Any other information worth noting.
    Construction Related Reactions--Record reaction observed in 
relation to construction activities including:
    <bullet> Tally of each reaction;
    <bullet> Time of reaction;
    <bullet> Concurrent construction activity;
    <bullet> The assumed cause (whether related to construction 
activities or not) shall be noted;
    <bullet> Disturbance must be recorded according to NMFS' three-
point pinniped disturbance scale (see Table 2);
    <bullet> Location of animal during initial reaction and distance 
from the noted disturbance;
    <bullet> Activity before and after disturbance; and
    <bullet> Status (in water or hauled out) before and after 
disturbance.

                             Table 2--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 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

    A notice of NMFS' proposal to issue a Renewal IHA to CDFW was 
published in the Federal Register on June 8, 2021 (86 FR 30412). That 
notice either described, or referenced descriptions of, the CDFW'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.

[[Page 35756]]

Determinations

    NMFS has determined that the action under this Renewal includes a 
subset of activities that are identical to the previous IHA. NMFS found 
that the previous IHA would have a negligible impact and that 
authorized take would be small relative to the population size. No 
changes in marine mammal information, potential effects, estimated 
take, abundance estimates and the mitigation and monitoring have 
occurred. Therefore, 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) 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.

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 evaluate our proposed action (i.e., the promulgation 
of regulations and subsequent issuance of incidental take 
authorization) and alternatives with respect to potential impacts on 
the human environment. This action is consistent with categories of 
activities identified in Categorical Exclusion B4 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 has determined that the proposed action qualifies to 
be categorically excluded from further NEPA review.

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.

Renewal

    NMFS has issued a Renewal IHA to CDFW for the take of harbor seals 
incidental to the continuation of Phase II of the Elkhorn Slough Tidal 
Marsh Restoration Project in Minhoto-Bay Area located in Monterey 
County, CA from the date of issuance until May 31, 2021.

    Dated: June 30, 2021.
Angela Somma,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-14380 Filed 7-6-21; 8:45 am]
BILLING CODE 3510-22-P