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Federal Register / Vol. 86, No. 181 / Wednesday, September 22, 2021 / Notices
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 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
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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 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 Parsons 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
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specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the 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 101a5A 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 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 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 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.
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
2166A, NMFS must review our action i.e., the issuance of an IHA with
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