Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the U.S. Army Corps of Engineers Debris Dock Replacement Project, Sausalito, California (2024)

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

Notice; issuance of renewal incidental harassment authorization.

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 the U.S. Army Corps of Engineers (ACOE) to harass marine mammals incidental to construction activities associated with the debris dock replacement project in Sausalito, California.

This authorization is effective from July 15, 2024, through July 14, 2025.

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/​national/​marine-mammal-protection/​incidental-take-authorizations-construction-activities. In case of problems accessing these documents, please call the contact listed below.

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Summer Owens, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the original application, renewal request, and supporting documents (including 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.

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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 promulgated or, if the taking is limited to harassment, an IHA is issued.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe Start Printed Page 50268 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”). NMFS must also prescribe requirements pertaining to monitoring and reporting of such takings. The definition of key terms such as “take,” “harassment,” and “negligible impact” can be found in the MMPA and the NMFS' implementing regulations (see 16 U.S.C. 1362; 50 CFR 216.103).

NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) indicate that IHAs may be renewed for additional periods of time not to exceed 1 year for each reauthorization. In the notice of proposed IHA for the initial IHA, NMFS described the circ*mstances under which we would consider issuing a renewal for this activity, and requested public comment on a potential renewal under those circ*mstances. Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year renewal of an IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical, or nearly identical, activities as described in the Detailed Description of Specified Activities section of the initial IHA issuance notice is planned or (2) the activities as described in the Description of the Specified Activities and Anticipated Impacts section of the initial IHA issuance notice would not be completed by the time the initial IHA expires and a renewal would allow for completion of the activities beyond that described in the DATES section of the notice of issuance of the initial IHA, provided all of the following conditions are met:

(1) A request for renewal is received no later than 60 days prior to the needed renewal IHA effective date (recognizing that the renewal IHA expiration date cannot extend beyond 1 year from expiration of the initial IHA);

(2) The request for renewal must include the following:

• An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (e.g., reduction in pile size) that the changes do not affect the previous analyses, mitigation and monitoring requirements, or take estimates (with the exception of reducing the type or amount of take); and
• 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: https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​incidental-harassment-authorization-renewals. Any comments received on the potential renewal, along with relevant comments on the initial IHA, have been considered in the development of this proposed IHA renewal, and a summary of agency responses to applicable comments is included in this notice. NMFS will consider any additional public comments prior to making any final decision on the issuance of the requested renewal, and agency responses will be summarized in the final notice of our decision.

Summary of Request

On July 14, 2021, NMFS issued an IHA to the U.S. ACOE to take marine mammals incidental to the Debris Dock Replacement Project in Sausalito, California (86 FR 37124, July 14, 2021) effective September 1, 2021-August 31, 2022. As the planned work was never begun, NMFS reissued this IHA three times on request from the ACOE, effective January 5, 2022-January 4, 2023 (86 FR 73261, December 21, 2021), January 1, 2024-December 31, 2024 (88 FR 16412, March 17, 2023), and most recently, effective July 15, 2023-July 14, 2024 (88 FR 38035, June 12, 2023). On April 4, 2024, NMFS received an application for the renewal of the most recent reissued IHA, referred to herein as the initial IHA. As described in the application for renewal IHA, the activities for which incidental take is requested are identical to those covered in the initial authorization. The notice of the proposed renewal IHA was published on May 13, 2024 (89 FR 41381). There are no changes from the proposed authorization in this final authorization.

Description of the Specified Activities and Anticipated Impacts

The proposed activities (including mitigation, monitoring, and reporting) authorized incidental take, and anticipated impacts on the affected stocks are the same as those analyzed and authorized through the previously issued IHA. No work has yet occurred under the IHA, but the ACOE has informed us that they plan to begin the planned work but not finish it prior to expiration of the currently issued IHA.

The purpose of the ACOE's construction project is to replace the existing decaying dock and other onshore infrastructure used to move marine debris collected from San Francisco Bay onto land for disposal. The location, timing, and nature of the activities, including the types of equipment planned for use, are identical to those described in the initial IHA. The mitigation and monitoring are also as prescribed in the initial IHA.

Species that are expected to be taken by the planned activity include harbor porpoise ( Phocoena phocoena), harbor seal ( Phoca vitulina), gray whale ( Eschrichtius robustus), bottlenose dolphin ( Tursiops truncatus), California sea lion ( Zalophus californianus), northern fur seal ( Callorhinus ursinus), and northern elephant seal ( Mirounga angustirostris). A description of the methods and inputs used to estimate take anticipated to occur and, ultimately, the take that was authorized is found in the previous documents referenced above. The data inputs and methods of estimating take are identical to those used in the initial IHA. NMFS has reviewed recent Stock Assessment Reports (SAR), information on relevant Unusual Mortality Events (UME), and recent scientific literature, and determined that no new information affects our original analysis of impacts or take estimates under the initial IHA.

We refer to the documents related to the original IHA, which include the Federal Register notice of the issuance of the 2021 IHA for the ACOE's construction work (86 FR 37124, July 14, 2021), the ACOE's application, the Federal Register notice of the proposed IHA (86 FR 28768, May 28, 2021), all associated references and documents, and Federal Register notices of issuance for the reissued IHAs.

Detailed Description of the Activity

A detailed description of the demolition and construction activities Start Printed Page 50269 for which take is proposed here may be found in the notices of the proposed (86 FR 28768, May 28, 2021) and final IHAs for the 2021 authorization. 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 IHA is effective for a period from July 15, 2024, to July 14, 2025.

Description of Marine Mammals

A description of the marine mammals in the area of the activities for which authorization of take is proposed here, including information on abundance, status, distribution, and hearing, may be found in the notices of the proposed and final IHAs for the 2021 authorization. NMFS has reviewed recent SARs, including the draft 2023 SARs, information on relevant UMEs, and other scientific literature, and determined there is no new information that 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. Two of the authorized stocks have increased slightly in abundance according to the draft 2023 SARs. The San Francisco/Russian River stock of harbor porpoise has increased from 7,524 to 7,777 and the California breeding stock of northern elephant seal has increased from 179,000 to 187,386. However, these new population abundance estimates do not change estimated take numbers, or influence the findings made in support of 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 an authorization of incidental take is proposed here may be found in the notices of the proposed and final IHAs for the 2021 authorization. NMFS has reviewed recent draft SARs, information on relevant UMEs, and other scientific literature, and determined that there is no new information that 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 IHA for the 2021 authorization. Specifically, the source levels, days of operation, and marine mammal density and occurrence data applicable to this authorization remain unchanged from the previously issued IHAs. Similarly, the stocks taken, methods and types of takes, and numbers of takes remain unchanged from the previously issued IHA, as do the number of takes, which are indicated below in table 1.

Description of Mitigation, Monitoring and Reporting Measures

The mitigation, monitoring, and reporting measures included as requirements in the authorization are identical to those included in the Federal Register notice announcing the issuance of the 2021 IHA and subsequently included in the reissued IHAs, and the discussion of the least practicable adverse impact included in the application and the notice of the proposed and final IHA remains accurate.

Comments and Responses

A notice of NMFS' proposal to issue an IHA to ACOE was published in the Federal Register on May 13, 2024 (89 FR 41381). That notice either described, or referenced descriptions of, ACOE's activity, the marine mammal species that may be affected by the activity, the anticipated effects on marine mammals and their habitat, estimated amount and manner of take, and proposed mitigation, monitoring and reporting measures. During the 15-day public comment period, NMFS did not receive any public comments.

Determinations

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 affect 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) U.S. ACOE activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action; and (5) appropriate monitoring and reporting requirements are included.

Endangered Species Act

Section 7(a)(2) of the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.) requires that each Federal agency ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally whenever we propose to authorize take for endangered or threatened species.

No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 Start Printed Page 50270 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order 216-6A, NMFS must review our proposed action ( i.e., the issuance of an IHA) with respect to potential impacts on the human environment.

This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental take authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circ*mstances that would preclude this categorical exclusion. Accordingly, NMFS determined that the issuance of the initial IHA qualified to be categorically excluded from further NEPA review. NMFS has determined that the application of this categorical exclusion remains appropriate for this renewal IHA.

Authorization

NMFS has issued a renewal IHA to ACOE for the take of small numbers of seven marine mammal species incidental to the Debris Dock Replacement Project in Sausalito, CA, valid from July 15, 2024 through July 14, 2025.

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