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Federal Register / Vol. 86, No. 181 / Wednesday, September 22, 2021 / Notices 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
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 2021 Renewal, CDFW
requested that a new IHA be issued that would be valid for one year from the date of issuance. Under this new 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 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 Specified Activity The Elkhorn Slough Tidal Marsh Restoration Project project plans to restore approximately 122 acres 49.37
of tidal marsh across three phases, all of which are located in Monterey County, California. This IHA covers take incidental to Phase III of the project, which will restore 28.6 acres 11.57
hectares at the Seal Bend Restoration Area. Similar to previous project phases, 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 authorizing take, by Level B
Harassment, of Pacific harbor seals as a result of the specified activity.

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A detailed description of the planned restoration project is provided in the Federal Register notice for the proposed IHA 86 FR 43204; August 6, 2021.
Since that time, no changes have been made to the planned restoration activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity.
Comments and Responses A notice of NMFSs proposal to issue an IHA to CDFW was published in the Federal Register on August 6, 2021 86
FR 43204. That notice described, in detail, CDFWs activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. During the 30-day public comment period, NMFS received no comments.
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 20212022 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 IHA. Please refer to the previous Federal Register notices for the 2020 IHA for these descriptions.
Please also refer to NMFS website www.nmfs.noaa.gov/pr/species/
mammals/ for generalized species accounts.
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 20212022 IHA. The effects of CDFWs activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the project area. The notice of proposed IHA 86 FR 43204; August 6, 2021 included a discussion of the effects of anthropogenic activity on marine mammals and their habitat. That information and analysis is incorporated by reference into this final IHA
determination and is not repeated here;
please refer to the notice of proposed IHA 86 FR 43204; August 6, 2021.

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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 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 project activities are provided in Table 2.

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