43204 Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 

estimates are conservative and the 

project occurs in a small footprint 

compared to the available habitat in 

Southeast Alaska. For minke whales, in 

the northern part of their range they are 

believed to be migratory and so few 

minke whales have been seen during 

three offshore Gulf of Alaska surveys 

that a population estimate could not be 

determined. With only twelve 

authorized takes for this species, the 

percentage of take in relation to the 

stock abundance is likely to be very 

small. 

Based on the analysis contained 

herein of the planned activity (including 

the mitigation and monitoring 

measures) and the anticipated take of 

marine mammals, NMFS finds that 

small numbers of marine mammals will 

be taken relative to the population size 

of the affected species or stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

In order to issue an IHA, NMFS must 

find that the specified activity will not 

have an ‘‘unmitigable adverse impact’’ 

on the subsistence uses of the affected 

marine mammal species or stocks by 

Alaskan Natives. NMFS has defined 

‘‘unmitigable adverse impact’’ in 50 CFR 

216.103 as an impact resulting from the 

specified activity: (1) That is likely to 

reduce the availability of the species to 

a level insufficient for a harvest to meet 

subsistence needs by: (i) Causing the 

marine mammals to abandon or avoid 

hunting areas; (ii) Directly displacing 

subsistence users; or (iii) Placing 

physical barriers between the marine 

mammals and the subsistence hunters; 

and (2) That cannot be sufficiently 

mitigated by other measures to increase 

the availability of marine mammals to 

allow subsistence needs to be met. 

The project area does not spatially 

overlap any known subsistence hunting. 

The project area is a developed area 

with regular marine vessel traffic. 

Nonetheless, the AKDOT&PF provided 

advanced public notice of construction 

activities to reduce construction impacts 

on local residents, adjacent businesses, 

and other users of Port Chester and 

nearby areas. This included notification 

to nearby Alaska Native tribes that may 

have members who hunt marine 

mammals for subsistence. Currently, the 

Metlakatla Indian Community does not 

authorize the harvest of marine 

mammals for subsistence use (R. Cook, 

personal communication, June 5, 2020 

as cited in the application). 

The planned project is not likely to 

adversely impact the availability of any 

marine mammal species or stocks that 

are commonly used for subsistence 

purposes or to impact subsistence 

harvest of marine mammals in the 

region because construction activities 

are localized and temporary and 

mitigation measures will be 

implemented to minimize disturbance 

of marine mammals in the project area. 

Accordingly, NMFS has determined that 

there will not be an unmitigable adverse 

impact on the availability of any marine 

mammals for taking for subsistence uses 

from the AKDOT&PF’s planned 

activities. 

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, in 

this case with the Alaska Regional 

Office (AKRO). 

NMFS is authorizing take of the 

Central North Pacific stock of humpback 

whales, including individuals from the 

Mexico DPS of humpback whales, 

which are listed under the ESA. The 

Permit and Conservation Division 

completed a Section 7 consultation with 

the AKRO for the issuance of this IHA. 

The AKRO’s biological opinion states 

that the action is not likely to jeopardize 

the continued existence of the Mexico 

DPS of humpback whales. 

Authorization 

As a result of these determinations, 

NMFS authorizes an IHA to the 

AKDOT&PF for conducting for the 

planned pile driving and removal 

activities as well as DTH during 

construction of the Metlakatla Seaplane 

Facility Refurbishment Project, 

Metlakatla, Alaska for one year, 

beginning August 2021, provided the 

previously mentioned mitigation, 

monitoring, and reporting requirements 

are incorporated. 

Dated: August 3, 2021. 

Catherine Marzin, 

Acting Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2021–16861 Filed 8–5–21; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB270] 

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; proposed issuance of an 

incidental harassment authorization; 

request for comments. 

SUMMARY: NMFS has received a request 

from the California Department of Fish 

and Wildlife (CDFW) for authorization 

to take marine mammals incidental to 

the Elkhorn slough Tidal Marsh 

Restoration Project (Phase III) in 

Monterey County, CA. which includes 

the excavation and movement of soil 

with heavy machinery for marsh 

restoration. NMFS is requesting 

comments on its proposal to issue an 

incidental harassment authorization 

(IHA) to incidentally take marine 

mammals during the specified activities. 

NMFS is also requesting comments on 

a possible one-time, one-year renewal 

that could be issued under certain 

circumstances and if all requirements 

are met, as described in Request for 

Public Comments at the end of this 

notice. NMFS will consider public 

comments prior to making any final 

decision on the issuance of the 

requested MMPA authorizations and 

agency responses will be summarized in 

the final notice of our decision. 

DATES: Comments and information must 

be received no later than September 7, 

2021. 

ADDRESSES: Comments should be 

addressed to Jolie Harrison, Chief, 

Permits and Conservation Division, 

Office of Protected Resources, National 

Marine Fisheries Service. Written 

comments should be submitted via 

email to ITP.Corcoran@noaa.gov. 

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:// 


jbell on DSKJLSW7X2PROD with NOTICES
Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 43205 

www.fisheries.noaa.gov/permit/ 

incidental-take-authorizations-undermarine-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. 

FOR FURTHER INFORMATION CONTACT: Kim 

Corcoran, Office of Protected Resources, 

NMFS, (301) 427–8401. Electronic 

copies of the original application and 

supporting documents (including NMFS 

FR notices of the prior authorizations), 

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-undermarine-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 

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. 

The definitions of all applicable 

MMPA statutory terms cited above are 

included in the relevant sections below. 

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. 

The current action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 (incidental 

harassment 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 has 

preliminarily determined that the 

issuance of the proposed renewal 

qualifies to be categorically excluded 

from further NEPA review just as the 

initial IHA did. 

We will review all comments 

submitted in response to this notice 

prior to concluding our NEPA process 

or making a final decision on the IHA 

request. 

Summary of Request 

On June 14, 2021, NMFS received a 

request from CDFW for an IHA to take 

marine mammals incidental to the 

Elkhorn Slough Restoration Project, 

Phase III, at the Seal Bend Restoration 

Area in Monterey Country, CA. The 

application was deemed adequate and 

complete on July 27, 2021. CDFW’s 

request is for take of a small number of 

Pacific harbor seals (Phoca vitulina) by 

Level B harassment only. Neither CDFW 

nor NMFS expects serious injury or 

mortality to result from this activity 

and, therefore, an IHA is appropriate. 

NMFS previously issued an IHA to 

CDFW for Phase I (82 FR 16800; April 

6, 2017) and Phase II (85 FR 14640; 

March 13, 2020) of the Elkhorn Slough 

Restoration Project. Restoration work 

under the 2020 IHA at the MinhotoHester and Seal Bend restoration areas 

was expected to be completed within 

180 days within the one-year timeframe 

of the IHA. However, on May 3, 2021 

CDFW informed NMFS that the 

estimated 180 days of construction for 

both the Minhoto-Hester and Seal Bend 

Restoration Areas would not be enough 

to complete the project. This 

preliminary estimate did not adequately 

account for variable weather conditions 

experienced during construction (e.g., 

wet weather and soils required 

extensive reworking of fill), the amount 

of time to haul material from the borrow 

area to the fill location, or contractor 

availability which resulted in a smaller 

crew than initially expected. Therefore, 

only 118 days of construction occurred 

under the initial IHA. To cover the 

remaining work at the Minhoto-Hester 

Restoration Area, CDFW requested an 

IHA Renewal. NMFS published a notice 

of a proposed IHA Renewal and request 

for comments in the Federal Register on 

June 8, 2021 to complete the remaining 

62 days of work (86 FR 30412; June 8, 

2021) (Hereafter referred to as the 2021 

Renewal). We subsequently published 

the final notice of our issuance of the 

IHA Renewal on July 7, 2021 (86 FR 

35751). 

As work at the Seal Bend Restoration 

Area had not begun and could not be 

covered by the IHA Renewal, CDFW 

requested that a new IHA be issued that 

would be valid for one year from the 

date of issuance. Under this proposed 

IHA, CDFW would conduct 240 days of 

work to restore 28.6 acres (11.57 

hectares) of tidal marsh habitat in the 

Seal Bend Restoration Area. The project 

would include the use of haul trucks 

and heavy earthmoving equipment to 

transport dry material out onto the 

marsh. The proposed project activities 

will not differ from the 2020 IHA other 

than the number of construction days, 

and the means of calculating take. 

Description of the Proposed Activity 

Overview 

Over the past 150 years, human 

activities have altered the tidal, 

freshwater, and sediment processes, 

which are essential to support and 

sustain Elkhorn Slough’s estuarine 

habitats. In response to years of 

anthropogenic degradation (e.g., diking 

and marsh draining), the Elkhorn 

Slough Tidal Marsh Restoration Project 

(project) plans to restore approximately 

122 acres (49.37 hectares) of tidal marsh 

across three phases, all of which are 

located in Monterey County, California 

(Figure 1). Phase I of the project, 

completed in 2018, restored 61 acres 

(24.69 hectares) of tidal marsh within 

the Minhoto-Hester Marsh in Elkhorn 

Slough (Monterey, CA) (Figure 2) (82 FR 

16800; April 06, 2017) (Hereafter 

referred to as the 2017 IHA). Phase II of 

the project, planned for completion in 

September 2021, plans to restore 29.4 

acres (11.90 hectares) of tidal marsh at 

the Minhoto-Hester Restoration Area 

adjacent to the Phase I Restoration Area 

(see Figure 2). As the remainder of the 


jbell on DSKJLSW7X2PROD with NOTICES
43206 Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 

work associated with the project has not 

been completed and could not be 

covered by the 2021 Renewal, CDFW 

requests that this proposed IHA cover 

take incidental to Phase III of the 

project, which will restore 28.6 acres 

(11.57 hectares) at the Seal Bend 

Restoration Area shown in Figure 2. 

Similar to previous projects, Phase III 

will relocate soil from an upland area 

called ‘‘the borrow’’ through use of 

heavy earth moving equipment, within 

a 12 month period. 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). NMFS is 

proposing to authorize take, by Level B 

Harassment, of Pacfic harbor seals as a 

result of the specified activity. To 

support public review and comment on 

the IHA that NMFS is proposing to issue 

here, we refer to the documents related 

to the previously issued IHA and 

discuss any new or changed information 

here. The previous documents include 

the Federal Register notice of the 

issuance of the 2020 IHA (85 FR 14640; 

March 13, 2020), the Federal Register 

notice of the issuance of the 2021 IHA 

Renewal (86 FR 35751; July 7, 2021), 

and all associated references and 

documents. We also refer the reader to 

CDFW’s previous and current 

applications and monitoring reports 

which can be found at https://

www.fisheries.noaa.gov/node/23111. 

Dates and Duration 

As previously mentioned, the Phase II 

IHA covered restoration work at both 

the Minhoto-Hester Restoration Area 

and the Seal Bend Restoration Area for 

180 total days of construction but the 

work was not able to be completed for 

both locations within the timeframe and 

take estimate constraints of the 2020 

IHA and 2021 Renewal IHA for the 

reasons discussed above. Therefore, 

CDFW is requesting this new 

authorization for 240 construction days 

to account for similar, anticipated 

construction constraints at the Seal 

Bend Restoration Area, such as likely 

wet weather, the distance between the 

borrow area and restoration site, and 

limited contractor availability. CDFW is 

prepared to start the work at Seal Bend 

as soon as they receive authorization, so 

this IHA will be valid for one year from 

the date of issuance. 

Specific Geographic Region 

The project is located in the Elkhorn 

Slough estuary, about 90 miles south of 

San Francisco and 20 miles north of 

Monterey in Monterey Country, 

California (Figure 1). The project sites 

are located on land owned and operated 

by CDFW as part of the Elkhorn Slough 

Ecological and National Estuarine 

Research Reserves. The waters of the 

Elkhorn Slough State Marine Reserve 

and Monterey Bay National Marine 

Sanctuary run north of the Phase III 

project site in Elkhorn Slough’s main 

channel. Two additional Marine 

Protected Areas are located within 

approximately one mile of the project 

site: Elkhorn Slough State Marine 

Conservation Area and Moro Cojo 

Slough State Marine Reserve. 

Phase III would restore the Seal Bend 

Restoration Area which includes about 

28.6 acres (11.57 hectares) of historic 

farmland adjacent to Elkhorn Slough 

and west of the Phase I and II 

restoration areas (Figure 2). The 

proposed project area is low-lying area 

consisting of subsided pickleweed 

(Salicornia) marsh, intertidal mudflats, 

and tidal channels. Fill material for Seal 

Bend will be obtained from a 38 acre 

(15.38 hectare) upland borrow area 

south of the Minhoto-Hester (Phase II) 

Restoration Area (Figure 2). Once 

complete, the slopes of the borrow area 

would be graded to increase marsh area 

and create a gently sloping ecotone band 

along the edge of the Phase I and II sites. 

BILLING CODE 3510–22–P 


jbell on DSKJLSW7X2PROD with NOTICES
Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 43207 


jbell on DSKJLSW7X2PROD with NOTICESEN06AU21.002</GPH>

Figure 1. Location of the proposed restoration project in Monterey County, 

California. 

Figure 2. Map depicting the location of each restoration site for the project for the 

proposed and previous phases 
43208 Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 

BILLING CODE 3510–22–C 

Detailed Description of Specific Activity 

As previously described, the proposed 

project would restore 28.6 acres (11.57 

hectares) of tidal marsh habitat at the 

Seal Bend Restoration Area. As 

described in more detail in the 2020 

IHA, project components to restore 

hydrologic function to the project area 

would include raising the subsided 

marsh plain, maintaining or reexcavating existing tidal channels, and 

restoring marsh plain, ecotone, and 

native grassland habitat within a 

borrow/upland buffer area. 

Up to 133,346 cubic yards (CY) 

(101950.33 cubic meters (CM)) of soil 

will be obtained from the upland 

borrow area to raise the subsided marsh 

plain to an average of 1.9 feet (0.58 m) 

above the current height. This target 

elevation would allow emergent 

wetland vegetation to naturally be 

reestablished. Sediment would be 

placed to a fill elevation slightly higher 

than the target marsh plain elevation to 

allow for settlement and consolidation 

of the underlying soils. After 

construction is complete, the project 

would rely primarily on natural 

vegetation recruitment in the restored 

marsh areas. 

An additional detailed description of 

the proposed restoration project is 

found in the proposed and issued 2020 

IHA. The location and nature of the 

activities, including the types of 

equipment planned for use, are identical 

to those described in the previous 

notices. Differences between the 2020 

IHA and the proposed 2021–2022 IHA 

occur in the number of days restoration 

work would occur, the method for 

calculating take, and visual monitoring 

requirements, all of which are discussed 

in detail below. 

Description of Marine Mammals in the 

Area of Specified Activities 

A description of the marine mammals 

in the area of the activities is found in 

the 2020 IHA, which remains applicable 

to the proposed 2021–2022 IHA as well. 

In addition, NMFS has reviewed recent 

2020 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 this proposed IHA. 

Potential Effects of Specified Activities 

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 

2020 IHA, which remains applicable to 

the issuance of the proposed 2021–2022 

IHA. There is no new information on 

potential effects. 

Estimated Take 

A detailed description of the previous 

methods and inputs used to estimate 

authorized take is found in the 2020 

IHA. The total number of construction 

days and the method of estimating take 

have been modified from the 2020 IHA 

to reflect construction delays as 

discussed above and the monitoring 

data received under the 2020 IHA. The 

source levels and marine mammal 

occurrence and density remain 

unchanged from the 2020 IHA and 

detailed information regarding these 

figures can be found in the proposed 

and issued 2020 IHA. 

Take Calculation and Estimates 

To repeat how take was calculated in 

the 2020 IHA, we used the total number 

of seals taken during Phase I 

construction (i.e., 62 seals) divided by 

the sum of the daily average number of 

seals observed hourly during Phase I. 

That percentage (8.79 percent) was 

rounded to 9 percent and multiplied by 

the sum of the highest daily count of 

seals observed by the Reserve Otter 

Monitoring Projects at all observation 

areas between January 2018 and April 

2019 (i.e., 417). That number was 

multiplied by the total number of 

construction days to arrive at the total 

take estimate that was used. 

For the Phase III project, we have 

additional monitoring data that more 

accurately reflects the amount of take 

that occurs during this type of 

restoration activity. In particular we 

now have data that suggests the 

maximum number of seals taken per day 

within 300 m of construction activity 

has been 8, which occurred on 

September 8, 2020 (Table 1). Therefore, 

we propose to use that maximum 

number of seals taken per day to 

estimate take using the following 

formula: 

Total Take Estimate = Max # of seals 

taken per day * # of Construction Days 

The average total individual takes per 

day for Phase II was 1.33 which is 

considerably lower than the proposed 

maximum number of seals taken per day 

(8) (Table 1). Therefore we believe this 

approach is adequately precautionary 

and reflects likely expected take. Using 

this approach, a summary of estimated 

takes of harbor seals incidental to the 

proposed project activities are provided 

in Table 2. 

TABLE 1—PHASE II HARBOR SEAL DISTURBANCE DATA—NUMBER OF SEALS EXPERIENCING LEVEL B HARASSMENT

Date Distance (m) 

Total 

individuals 

harassed 1

9/2/2020 ...................................................................................... 300m ........................................................................................... 0 

9/8/2020 ...................................................................................... 150m ........................................................................................... 0 

9/8/2020 ...................................................................................... 150m ........................................................................................... 0 

9/9/2020 ...................................................................................... 60m ............................................................................................. 0 

9/10/2020 .................................................................................... 60m ............................................................................................. 0 

9/15/2020 .................................................................................... 60m ............................................................................................. 1 

9/21/2020 .................................................................................... 60m ............................................................................................. 0 

9/21/2020 .................................................................................... 60m ............................................................................................. 2 

11/9/2020 .................................................................................... 300m ........................................................................................... 1 

3/17/2021 .................................................................................... 200m ........................................................................................... 5 

3/24/2021 .................................................................................... 60m ............................................................................................. 1 

3/24/2021 .................................................................................... 60m ............................................................................................. 1 

4/5/2021 ...................................................................................... 80m ............................................................................................. 2 

4/5/2021 ...................................................................................... 60m ............................................................................................. 1 

4/14/2021 .................................................................................... 80m ............................................................................................. 2 

9/2/2020 ...................................................................................... 60m ............................................................................................. 0 

9/3/2020 ...................................................................................... 20m ............................................................................................. 1 

9/8/2020 ...................................................................................... 80m ............................................................................................. 8 

9/9/2020 ...................................................................................... 40m ............................................................................................. 0 


jbell on DSKJLSW7X2PROD with NOTICES
Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 43209 

TABLE 1—PHASE II HARBOR SEAL DISTURBANCE DATA—NUMBER OF SEALS EXPERIENCING LEVEL B HARASSMENT— 

Continued 

Date Distance (m) 

Total 

individuals 

harassed 1

9/16/2020 .................................................................................... 100m ........................................................................................... 1 

9/22/2020 .................................................................................... 40m ............................................................................................. 0 

10/19/2020 .................................................................................. 40m ............................................................................................. 2 

10/28/2020 .................................................................................. 100m ........................................................................................... 0 

11/5/2020 .................................................................................... 60m ............................................................................................. 0 

12/3/2020 .................................................................................... 80m ............................................................................................. 1 

12/16/2020 .................................................................................. 60m ............................................................................................. 7 

5/4/2021 ...................................................................................... 80m ............................................................................................. 0 

Total ..................................................................................... ..................................................................................................... 36 

1 ‘‘Total Seals Taken’’ = the number of seals that moved or flushed during the incident. Alert responses are not considered to be takes. 

TABLE 2—CALCULATED AND PROPOSED TAKE AND PERCENTAGE OF STOCK EXPOSED

Authorized take 

Species Level B Level A Percent of 

stock 3

Pacific Harbor Seal .. 8 max seals taken per day 1 *(240 days 2) = 1920 .......................................................... 0 6.2 

1 Maximum number of seals harassed/taken in one day during Phase II. 

2 Number of construction days at the Seal Bend Restoration Area. 

3 Data from U.S. Pacific Marine Mammal Stock Assessments: 2014 (Carretta et al., 2015) (Abundance = 30,968). 

Proposed Mitigation, Monitoring and 

Reporting Measures 

In order to issue an IHA under section 

101(a)(5)(D) of the MMPA, NMFS must 

set forth the permissible methods of 

taking pursuant to the activity, and 

other means of effecting the least 

practicable impact on the species or 

stock and its habitat, paying particular 

attention to rookeries, mating grounds, 

and areas of similar significance, and on 

the availability of the species or stock 

for taking for certain subsistence uses 

(latter not applicable for this action). 

NMFS regulations require applicants for 

incidental take authorizations to include 

information about the availability and 

feasibility (economic and technological) 

of equipment, methods, and manner of 

conducting the activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, as 

well as subsistence uses where 

applicable, we carefully consider two 

primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat. This considers 

the nature of the potential adverse 

impact being mitigated (likelihood, 

scope, range). It further considers the 

likelihood that the measure will be 

effective if implemented (probability of 

accomplishing the mitigating result if 

implemented as planned), the 

likelihood of effective implementation 

(probability implemented as planned); 

and 

(2) The practicability of the measures 

for applicant implementation, which 

may consider such things as cost, 

impact on operations, and, in the case 

of a military readiness activity, 

personnel safety, practicality of 

implementation, and impact on the 

effectiveness of the military readiness 

activity. 

Description of Proposed Mitigation 

Some of the proposed mitigation 

measures are identical to those included 

in the Federal Register notification 

announcing the final 2020 IHA and 

detailed descriptions of these 

requirements can be found in that 

document. However, a few requirements 

have been updated to reflect NMFS 

more recent construction requirements 

and those changes are discussed in 

detail below and proposed for this 

project: 

Visual Monitoring—CDFW must 

fulfill monitoring requirements as 

described below. Required monitoring 

must be conducted by dedicated, 

trained, NMFS-approved Protected 

Species Observer(s) (PSO(s)). CDFW 

must monitor the project area to the 

maximum extent possible based on the 

required number of PSOs, required 

monitoring locations, and 

environmental conditions. 

• Level B Harassment Zone—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 Seal Bend Restoration 

Area (Phase III) identified in Figure 2, 

monitoring must occur every other day 

when work is occurring. 

• When construction activities occur 

near the ‘‘borrow’’ area where marsh fill 

material is gathered, monitoring must 

occur every fifth day when work is 

occurring within 300 m from seal 

haulouts or, if outside this area, when 

work is occurring less than 200 m from 

the water. 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. 

Description of Proposed Monitoring and 

Reporting 

In order to issue an IHA for an 

activity, section 101(a)(5)(D) of the 

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of such taking. 

The MMPA implementing regulations at 

50 CFR 216.104(a)(13) indicate that 

requests for authorizations must include 

the suggested means of accomplishing 

the necessary monitoring and reporting 


jbell on DSKJLSW7X2PROD with NOTICES
43210 Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 

that will result in increased knowledge 

of the species and of the level of taking 

or impacts on populations of marine 

mammals that are expected to be 

present in the proposed action area. 

Effective reporting is critical both to 

compliance as well as ensuring that the 

most value is obtained from the required 

monitoring. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density); 

• 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); 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors; 

• How anticipated responses to 

stressors impact either: (1) Long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks; 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat); and 

• Mitigation and monitoring 

effectiveness. 

Changes from the 2020 IHA include: 

• 5(g)(v)(10): Notes should include 

any of the following information to the 

extent it is feasible to record: 

Æ Age-class; 

Æ Sex; 

Æ Unusual activity or signs of stress; 

Æ Activity of seals observed within 

hour timeframe (e.g., resting, swimming, 

etc.) and approximate number of seals 

that have arrived or left since last hourly 

count; and 

Æ Any other information worth 

noting; 

• 6(a): The Holder must submit its 

draft report(s) on all monitoring 

conducted under this IHA within 90 

calendar days of the completion of 

monitoring or 60 calendar days prior to 

the requested issuance of any 

subsequent IHA for construction activity 

at the same location, whichever comes 

first. A final report must be prepared 

and submitted within 30 calendar days 

following receipt of any NMFS 

comments on the draft report. If no 

comments are received from NMFS 

within 30 calendar days of receipt of the 

draft report, the report shall be 

considered final. 

The rest of proposed monitoring and 

reporting measures are identical to those 

included in the FR Notice announcing 

the final 2020 IHA and detailed 

descriptions of these requirements can 

be found in that document. 

Negligible Impact Analysis and 

Determination 

NMFS has defined negligible impact 

as an impact resulting from the 

specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival 

(50 CFR 216.103). A negligible impact 

finding is based on the lack of likely 

adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

through harassment, NMFS considers 

other factors, such as the likely nature 

of any responses (e.g., intensity, 

duration), the context of any responses 

(e.g., critical reproductive time or 

location, migration), as well as effects 

on habitat, and the likely effectiveness 

of the mitigation. We also assess the 

number, intensity, and context of 

estimated takes by evaluating this 

information relative to population 

status. Consistent with the 1989 

preamble for NMFS’s implementing 

regulations (54 FR 40338; September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the environmental baseline 

(e.g., as reflected in the regulatory status 

of the species, population size and 

growth rate where known, ongoing 

sources of human-caused mortality, or 

ambient noise levels). 

Construction activities associated 

with this project have the potential to 

disturb or displace marine mammals. 

No serious injury or mortality is 

expected, and with mitigation we expect 

to avoid any potential for Level A 

Harassment as a result of the Seal Bend 

construction activities for Phase III. The 

specified activities may result in take, in 

the form of Level B harassment 

(behavioral disturbance) only, from 

visual disturbance and/or noise from 

construction activities. The project area 

is within a portion of the local, year 

round, habitat for harbor seals of the 

greater Elkhorn Slough. Behavioral 

disturbance associated with these 

activities are expected to affect only a 

small amount of the total population, 

although those effects could be 

recurring over the life of the project if 

the same individuals remain in the 

project vicinity. Harbor seals may avoid 

the area or halt any behaviors (e.g., 

resting) when exposed to anthropogenic 

noise or visual disturbance. Due to the 

abundance of suitable and, in some 

cases, newly restored haulout habitat 

available in the greater Elkhorn Slough, 

the short-term displacement of resting 

harbor seals is not expected to affect the 

overall fitness of any individual animal. 

Effects on individuals that are taken 

by Level B Harassment, on the basis of 

reports in the literature as well as 

monitoring from previous phases and 

other similar activities, will likely be 

limited to reactions such as 

displacement from the area or 

disturbance during resting. The 

construction activities analyzed here, 

such as equipment used, construction 

approach, and turbidity management, 

are the same as those activities 

previously analyzed under the 2017 and 

2020 IHAs. Both Phase I and Phase II of 

the project reported no injuries or 

mortality to marine mammals as a result 

of the construction activities, and no 

known long-term adverse consequences 

from behavioral harassment have been 

documented. Repeated exposures of 

individuals to levels of noise or visual 

disturbance at these levels, though they 

may cause Level B Harassment, are 

unlikely to result in hearing impairment 

or significant disruption of foraging 

behaviors. Many animals perform vital 

functions, such as feeding, resting, 

traveling, and socializing, on a diel 

cycle (i.e., 24 hour cycle), and 

behavioral reactions (such as disruption 

of critical life functions, displacement, 

or avoidance of important habitat) are 

more likely to be significant if they last 

more than one diel cycle or recur on 

subsequent days (Southall et al., 2007). 

However, Pacific harbor seals have been 

hauling out at Elkhorn slough for 

several years (including during pupping 

season and while females are pregnant), 

despite the presence of anthropogenic 

noise and activities such as vessel 

traffic, Union Pacific Railroad (UPRR) 

trains, and human voices from kayaking 

and recreational activities. Harbor seals 

have repeatedly hauled out to rest 

(inside and outside the project area) or 


jbell on DSKJLSW7X2PROD with NOTICES
Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 43211 

pup (outside of the project area) despite 

these potential stressors. The activities 

are not expected to result in the 

alteration of reproductive or feeding 

behaviors. It is not likely that neonates 

will be in the project area as females 

prefer to keep their pups along the main 

channel of Elkhorn Slough, which is 

outside the area expected to be restored 

by project activities (Figure 2). Seals are 

primarily foraging outside of Elkhorn 

Slough and at night in Monterey Bay, 

outside the project area, and during 

times when construction activities are 

not occurring. 

Pacific harbor seals, as the only 

potentially affected marine mammal 

species under NMFS jurisdiction in the 

action area, are not listed as threatened 

or endangered under the ESA and 

NMFS SARs for this stock has shown to 

be increasing in population size and is 

considered stable (Caretta et al., 2015). 

Even repeated Level B Harassment of 

some small subset of the overall stock is 

unlikely to result in any significant 

decrease in viability for the affected 

individuals, and thus will not result in 

any adverse impacts to the stock as a 

whole. The restoration of the marsh 

habitat will have no adverse effect on 

marine mammal habitat, but possibly a 

long-term beneficial effect on harbor 

seals by improving ecological function 

of the slough, including higher species 

diversity, increase species abundance, 

larger fish, and improved habitat. 

In summary and as described above, 

the following factors primarily support 

our preliminary determination that the 

impacts resulting from this activity are 

not expected to adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival: 

• No mortality is anticipated or 

authorized; 

• No Level A Harassment is 

anticipated or authorized; 

• Anticipated incidents of Level B 

Harassment consist of, at worst, 

temporary modifications in behavior; 

• Primary foraging and reproductive 

habitat are outside of the project area 

and not expected to result in the 

alteration of habitat important to these 

behaviors or substantially impact the 

behaviors themselves. There is 

alternative haulout habitat just outside 

the footprint of the construction area, 

along the main channel of Elkhorn 

Slough, and in Parson’s Slough, often 

the preferred pupping grounds in recent 

years (per comm Jim Harvey 2019), that 

will be available for seals while some of 

the haulouts are inaccessible; 

• Restoration of the marsh habitat 

will have no adverse effect on marine 

mammal habitat, but possibly a longterm beneficial effect; 

• Presumed efficacy of the mitigation 

measures in reducing the effects of the 

specified activity to the level of least 

practicable impact; and 

• These stocks are not listed under 

the ESA or considered depleted under 

the MMPA. 

In combination, we believe that these 

factors, as well as the available body of 

evidence from previous phases of the 

project and other similar activities, 

demonstrate that the potential effects of 

the specified activities will have only 

short-term effects on a relatively small 

portion of the entire California stock. 

The specified activities are not expected 

to impact rates of recruitment or 

survival and will therefore not result in 

population-level impacts. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

proposed monitoring and mitigation 

measures, NMFS preliminarily finds 

that the total marine mammal take from 

the proposed activity will have a 

negligible impact on all affected marine 

mammal species or stocks. 

Small Numbers 

As noted above, only small numbers 

of incidental take may be authorized 

under sections 101(a)(5)(A) and (D) of 

the MMPA for specified activities other 

than military readiness activities. The 

MMPA does not define small numbers 

and so, in practice, where estimated 

numbers are available, NMFS compares 

the number of individuals taken to the 

most appropriate estimation of 

abundance of the relevant species or 

stock in our determination of whether 

an authorization is limited to small 

numbers of marine mammals. When the 

predicted number of individuals to be 

taken is fewer than one third of the 

species or stock abundance, the take is 

considered to be of small numbers. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

For the proposed Phase III of the 

Elkhorn Slough Tidal Marsh Restoration 

Project, the authorized take (if we 

conservatively assume that each take 

occurred to a new animal, which is 

unlikely) comprises approximately 6.2 

percent of the abundance of Pacific 

harbor seals in the California Stock. 

Therefore, based on the analysis herein 

of the proposed activity (including the 

proposed mitigation and monitoring 

measures) and the anticipated take of 

marine mammals, NMFS preliminarily 

finds that small numbers of marine 

mammals will be taken relative to the 

population size of the affected species 

or stock. 

Unmitigable Adverse Impact Analysis 

and Determination 

There are no relevant subsistence uses 

of the affected marine mammal stock or 

species implicated by this action. 

Therefore NMFS has determined that 

the total taking of affected species or 

stocks would not have an unmitigable 

adverse impact on the availability of 

such species or stocks for taking for 

subsistence purposes. 

Endangered Species Act (ESA) 

Section 7(a)(2) of the Endangered 

Species Act of 1973 (ESA: 16. U.S.C. 

1531 et seq.) requires that each Federal 

agency insure that any action it 

authorizes, funds, or carries out is not 

likely to jeopardize the continued 

existence of any endangered or 

threatened species or result in the 

destruction or adverse modification of 

designated critical habitat. To ensure 

ESA compliance for the issuance of 

IHAs, NMFS consults internally 

whenever we propose to authorize take 

for endangered or threatened species. 

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. 

Proposed Authorization 

As a result of these preliminary 

determinations, NMFS proposes to issue 

an IHA to CDFW for conducting 

restoration activities at the Seal Bend 

Restoration Area in Elkhorn Slough 

(Monterey County, CA) for 12 months 

from the date of issuance, provided the 

previously mentioned mitigation, 

monitoring, and reporting requirements 

are incorporated. A draft of the 

proposed IHA can be found at https:// 

www.fisheries.noaa.gov/permit/ 

incidental-take-authorizations-undermarine-mammal-protection-act. 

Request for Public Comments 

We request comment on our analyses 

(included in both this document and the 

referenced documents supporting the 

prior IHAs), the proposed authorization, 

and any other aspect of this Notice of 

Proposed IHA for the proposed Elkhorn 

Slough Tidal Marsh Restoration Project, 

Phase III, in Monterey County, CA. We 

also request at this time comment on the 

potential for renewal of this proposed 

IHA as described in the paragraph 

below. Please include with your 

comments any supporting data or 

literature citations to help inform our 


jbell on DSKJLSW7X2PROD with NOTICES
43212 Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 

final decision on the request for MMPA 

authorization. 

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 Specific Activity 

section of this notice is planned or (2) 

the activities as described in the 

Detailed Description of Specific Activity 

section of this notice would not be 

completed by the time the IHA expires 

and a Renewal would allow for 

completion of the activities beyond that 

described in the Dates and Duration 

section of this notice, provided all of the 

following conditions are met: 

• 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); 

• The request for renewal must 

include the following: 

(1) 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); and 

(2) 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; 

and 

• 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. 

Dated: August 2, 2021. 

Catherine Marzin, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2021–16858 Filed 8–5–21; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB227] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Marine Site 

Characterization Surveys, Virginia and 

North Carolina 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of 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 an incidental 

harassment authorization (IHA) to Kitty 

Hawk Wind, LLC (Kitty Hawk Wind) to 

incidentally harass, by Level B 

harassment, marine mammals during 

marine site characterization surveys 

offshore Virginia and North Carolina. 

DATES: The IHA is effective July 15, 

2021 through October 31, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Jaclyn Daly, Office of Protected 

Resources, NMFS, (301) 427–8401. 

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/permit/ 

incidental-take-authorizations-undermarine-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 

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 the 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 the takings are set forth. 

Description of Proposed Activity 

Overview 

On April 27, 2021, NMFS received an 

adequate and complete application from 

Kitty Hawk Wind requesting an IHA 

authorizing the take, by Level B 

harassment only, of nine species of 

marine mammals incidental to marine 

site characterization surveys, 

specifically in association with the use 

of high-resolution geophysical (HRG) 

survey equipment off North Carolina. 

We note surveys will also occur off 

Virginia; however, for reasons described 

below, take of marine mammals 

incidental to use of those surveys is not 

expected to occur. The surveys will 

support offshore wind development in 

40 percent of the lease area (OCS–A 

0508) in the northwest corner closest to 

the North Carolina shoreline 

(approximately 198 square kilometers 

(km2)). Kitty Hawk Wind would use five 

types of survey equipment; however, as 

described below, only the Fugro SRP 

EAH 2D sparker has the potential to 

harass marine mammals. Exposure to 

noise from the surveys may cause 

behavioral changes in marine mammals 

(e.g., avoidance, increased swim speeds, 

etc.) rising to the level of take (Level B 

harassment) as defined under the 

MMPA. NMFS has issued the requested 

IHA. 

Dates and Duration 

Kitty Hawk Wind would commence 

the survey no earlier than July 15, with 

the objective of completing the work by 

September 31, 2021. The surveys would 

cover approximately 3,300 km of survey 

trackline over 25 days, not including 

non-survey days likely needed for 

weather down time. The IHA would be 

effective from July 15 through October 

31, 2021. Although the survey will 

likely be completed by September 31, 

2021, the additional month long 

effective period will allow for any 

unexpected weather delays while still 


jbell on DSKJLSW7X2PROD with NOTICES