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Federal Register / Vol. 86, No. 181 / Wednesday, September 22, 2021 / Notices detail below and are required for this project:
Visual MonitoringCDFW must fulfill monitoring requirements as described below. Required monitoring must be conducted by dedicated, trained, NMFS-approved Protected Species Observers PSOs. 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 ZonePSOs 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 Monitoring and Reporting In order to issue an IHA for an activity, section 101a5D 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 a13 indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting 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 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
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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:
5gv10: Notes should include any of the following information to the extent it is feasible to record:
Age-class;
Sex;
Unusual activity or signs of stress;
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 Any other information worth noting; and 6a: The Holder must submit its draft reports 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 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
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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 NMFSs 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
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