82_FR_6639 82 FR 6627 - Marine Mammals; Incidental Take During Specified Activities; Proposed Incidental Harassment Authorization

82 FR 6627 - Marine Mammals; Incidental Take During Specified Activities; Proposed Incidental Harassment Authorization

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Federal Register Volume 82, Issue 12 (January 19, 2017)

Page Range6627-6634
FR Document2017-01271

We, the U.S. Fish and Wildlife Service (Service), have received an application from the California Department of Fish and Wildlife, Central Region, for authorization to take small numbers of marine mammals by harassment incidental to construction activities as part of a tidal marsh restoration project within the Minhoto-Hester Marsh in Elkhorn Slough, Monterey County, California. In accordance with provisions of the Marine Mammal Protection Act of 1972, as amended, we request comments on our proposed authorization for the applicant to take incidentally, by harassment, small numbers of southern sea otters (Enhydra lutris nereis) over the course of approximately 11 months beginning between January 2017 and June 2017. We anticipate no take by injury or death and include none in this proposed authorization, which would be for take by harassment only.

Federal Register, Volume 82 Issue 12 (Thursday, January 19, 2017)
[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Notices]
[Pages 6627-6634]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-01271]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R8-ES-2016-N187; FXES111608M0000]


Marine Mammals; Incidental Take During Specified Activities; 
Proposed Incidental Harassment Authorization

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of receipt of application and proposed incidental 
harassment authorization; request for comments.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
received an application from the California Department of Fish and 
Wildlife, Central Region, for authorization to take small numbers of 
marine mammals by harassment incidental to construction activities as 
part of a tidal marsh restoration project within the Minhoto-Hester 
Marsh in Elkhorn Slough, Monterey County, California. In accordance 
with provisions of the Marine Mammal Protection Act of 1972,

[[Page 6628]]

as amended, we request comments on our proposed authorization for the 
applicant to take incidentally, by harassment, small numbers of 
southern sea otters (Enhydra lutris nereis) over the course of 
approximately 11 months beginning between January 2017 and June 2017. 
We anticipate no take by injury or death and include none in this 
proposed authorization, which would be for take by harassment only.

DATES: Comments and information must be received by February 21, 2017.

ADDRESSES: Comment submission: You may submit comments by any one of 
the following methods:
    1. U.S. mail or hand-delivery: Steve Henry, Field Supervisor, 
Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, 
CA 93003.
    2. Fax: 805-644-3958, attention to Steve Henry, Field Supervisor.
    3. Electronic mail (email): [email protected]. Please 
include your name and U.S. mail address in your message.
    Document availability: Electronic copies of the incidental 
harassment authorization request, the Marine Mammal Monitoring Plan, 
and other supporting materials, such as the list of references used in 
this notice, may be obtained by writing to the address specified above, 
telephoning the contact listed in FOR FURTHER INFORMATION CONTACT, or 
visiting the Internet at http://www.fws.gov/ventura/endangered/species/info/sso.html. Documents cited in this notice may also be viewed, by 
appointment, during regular business hours, at the aforementioned U.S. 
mail address.

FOR FURTHER INFORMATION CONTACT: Lilian Carswell, Southern Sea Otter 
Recovery & Marine Conservation Coordinator, (805) 612-2793, or by email 
at [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act 
of 1972, as amended, (MMPA; 16 U.S.C. 1371 (a)(5)(A) and (D)), 
authorize the Secretary of the Interior 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, provided 
that we make certain findings and either issue regulations or, if the 
taking is limited to harassment, provide a notice of a proposed 
authorization to the public for review and comment.
    We may grant authorization to incidentally take marine mammals if 
we find 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 subsistence uses. As part 
of the authorization process, we prescribe permissible methods of 
taking and other means of effecting the least practicable impact on the 
species or stock and its habitat, and requirements pertaining to the 
monitoring and reporting of such takings.
    The term ``take,'' as defined by the MMPA, means to harass, hunt, 
capture, or kill, or to attempt to harass, hunt, capture, or kill, any 
marine mammal. Harassment, as defined by the MMPA, means ``any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild [the MMPA calls this 
Level A harassment], or (ii) has the potential to disturb a marine 
mammal or marine mammal stock in the wild by causing disruption of 
behavioral patterns, including, but not limited to, migration, 
breathing, nursing, breeding, feeding, or sheltering [the MMPA calls 
this Level B harassment].''
    The terms ``negligible impact,'' ``small numbers,'' and 
``unmitigable adverse impact'' are defined in title 50 of the Code of 
Federal Regulations at 50 CFR 18.27, the Service's regulations 
governing take of small numbers of marine mammals incidental to 
specified activities. ``Negligible impact'' is defined 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.'' The term ``small numbers'' is also defined in the 
regulations as ``a portion of a marine mammal species or stock whose 
taking would have a negligible impact on that species or stock.'' 
However, we do not rely on that definition here, as it conflates the 
terms ``small numbers'' and ``negligible impact,'' which we recognize 
as two separate and distinct requirements. Instead, in our small 
numbers determination, we evaluate whether the number of marine mammals 
likely to be taken is small relative to the size of the overall 
population. ``Unmitigable adverse impact'' is defined 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 subsistence provision applies to 
northern sea otters (Enhydra lutris kenyoni) in Alaska but not to 
southern sea otters.

Summary of Request

    On May 23, 2016, we received an application from the California 
Department of Fish and Wildlife, Central Region (CDFW), for 
authorization to take southern sea otters incidental to construction 
activities associated with a 47-acre tidal marsh restoration project 
within the Minhoto-Hester Marsh in Elkhorn Slough, Monterey County, 
California. The project would reduce tidal prism in Elkhorn Slough, 
reducing the potential for ongoing tidal scour and associated marsh 
loss. It would also improve marsh sustainability with sea level rise, 
as the restored marsh would be higher in the tidal frame and further 
from the drowning threshold, and marsh vegetation in the restored areas 
would accrete organic material that would help the restored marsh plain 
rise with sea level. The full Elkhorn Slough Tidal Marsh Restoration 
Project includes the anticipated restoration of 147 acres, but future 
phases are not part of this application because they would not likely 
occur for several years. If any future phase of the project would 
result in harassment of southern sea otters, another IHA would have to 
be requested and received prior to its implementation.
    A detailed description of the proposed project is contained in the 
incidental harassment authorization request submitted to us by CDFW 
(ESA/ESNERR 2016). CDFW submitted revised versions of the application 
on July 26, 2016, August 24, 2016, August 29, 2016, and September 6, 
2016. A final version, submitted on September 15, 2016, was determined 
to be adequate and complete. Work would begin between January 2017 and 
June 2017 and require approximately 11 months to complete. This period 
includes buffers for adverse weather and other conditions when work is 
not possible. Construction activities are expected to produce noise and 
visual disturbance that have the potential to result in behavioral 
harassment of southern sea otters. We are proposing to authorize take, 
by Level B harassment only, of southern sea otters as a result of the 
specified activity.

[[Page 6629]]

Description of the Activity

    The proposed project would restore approximately 47 acres of tidal 
marsh within the Minhoto-Hester Marsh area and additional tidal marsh, 
upland ecotone, and native grassland in a buffer area, intended to 
absorb upland sediment and contaminants, between the remnant marsh and 
agricultural fields. Approximately 170,000 cubic yards of fill would be 
required to raise the marsh plain an average height of 2.4 feet, or 1.9 
feet after 1 year of soil consolidation. The entire remnant marsh plain 
would be raised to an elevation that would allow emergent wetland 
vegetation to reestablish naturally and persist.
    The buffer area would be graded to increase marsh area and to 
create a gently sloping ecotone band along the edge of the restored 
marsh. Excavation would widen the existing marsh by up to 150 feet and 
create a band of gentle slope on the hillside, fostering creation of a 
wider ecotone habitat. A 35-acre portion of the buffer area would be 
restored to native-dominated perennial grassland. A weed-resistant 
border of rhizomatous perennial plants would be planted between the 
grassland and ecotone. The remaining 6-acre portion of the buffer area 
would be used as a stockpile location for future restoration phases and 
would be revegetated with annual barley until future phases were 
complete, at which time it would be restored to native-dominated 
perennial grassland.
    Remnant historic channels onsite would generally be left in place 
or filled and re-excavated in the same place. Smaller channels would be 
filled as needed for marsh access. As much of the existing tidal 
channel network would be maintained as feasible, and the post-project 
channel alignments would be similar to those under existing conditions. 
The density of channels (length of channel per acre of marsh) after 
restoration would be comparable to the density in natural reference 
marshes.
    Low levees (less than 0.5 feet above the marsh plain) composed of 
fill material would be constructed along the larger channels to 
simulate natural channel levees. The project would re-create natural 
levee features along the sides of the main channel into the Minhoto-
Hester area. Fill would be placed as close to the edge of the channel 
as possible to simulate the form and function of a natural channel 
bank. Borrow ditches that date from the times of historical wetland 
reclamation in these areas would be blocked or filled completely if 
fill is available after raising the marsh plain. Blocking borrow 
ditches would route more flow through the natural channels and slightly 
increase hydraulic resistance, which may achieve benefits from reducing 
tidal prism and associated scour in the Elkhorn Slough system.
    Construction sequencing would begin with water management and/or 
turbidity control measures constructed around the work areas prior to 
placing material on the marsh. Work areas on the remnant marsh plain 
would for the most part be isolated from the tides and dewatered to 
allow construction to occur in non-tidal conditions. Water control 
structures such as temporary berms would be utilized to isolate the 
fill placement area during the construction period. Existing berms 
would be used where possible. It is likely that the mouth of the 
restoration area could be closed with an earthen dam or an inflatable 
dam; however, a sheet pile wall at the mouth of the restoration area 
could be installed using vibratory hammering if the earthen and 
inflatable dam options proved to be infeasible. Tidal channels into 
work areas would be blocked. The isolated work areas would be drained 
using a combination of gravity and pumps. Water levels within the 
blocked areas would be managed to keep them mostly free of water (with 
some ponded areas remaining) to allow fill placement at all stages of 
the tides. Blocking of tidal channels would occur at low tide. Upon 
completion of sediment placement, the berms would be lowered to the 
target marsh elevation, reintroducing tidal inundation. Any blocked 
tidal channels would be re-excavated. After fill placement on the 
marsh, any temporary features, such as water management berms, sheet 
piles, and culverts, would be removed.
    All material needed for the current phase of the project is onsite. 
Additional material may be delivered to the restoration areas by trucks 
if it becomes available. Construction crews and equipment would access 
the existing stockpile area and Minhoto Marsh from Dolan Road via 
existing roadways that were used for delivery of the existing sediment 
stockpile, located alongside existing agricultural fields. The Hester 
Marsh staging area may be accessed from Via Tanques Road.
    Construction equipment would include haul trucks, heavy earthmoving 
equipment (such as bulldozers, backhoes, and loaders), and excavators 
to transport dry material out onto the marsh. A conveyor system could 
be used to transport material from a stockpile out to the marsh in lieu 
of bulldozers. In such cases, timber matting would be temporarily 
placed on the marsh to provide a stable footing for the conveyors. A 
mobile radial stacker at the end of the conveyor belt would be rotated 
to spread the material.

a. Timing of Activity

    Construction is anticipated to require approximately 11 months. The 
11-month window would include 132 days of construction activity and (if 
needed) 4 days of vibratory pile driving, totaling 136 days of project 
activity. The 11-month window includes the time required for ecotone 
and grassland restoration work. Most work on the marsh plane would 
likely be completed within 6 to 8 months. The length of the 
construction period is based on the assumption that construction 
contractors would work between the hours of 5:00 a.m. to 6:00 p.m., 
Monday through Friday. However, some construction activity could also 
be required during these times on Saturdays. The proposed IHA would be 
valid for 1 year from the date of issuance, with project activities 
beginning between January 2017 and June 2017.

b. Geographic Location of Activity

    The proposed project is located in the Elkhorn Slough estuary, a 
network of intertidal marshes, mudflats, and subtidal channels 90 miles 
south of San Francisco and 20 miles north of Monterey (see Figure 1-1 
of ESA/ESNERR 2016). The Minhoto-Hester Marsh, where the proposed 
restoration work would occur, is a low-lying area within Elkhorn Slough 
consisting of subsided pickleweed (Salicornia pacifica) marsh, 
intertidal mudflats, tidal channels, and remnant levees. The project 
area is on land owned and managed by CDFW as part of the Elkhorn Slough 
National Estuarine Research Reserve (ESNERR) (see Figure 1-2 of ESA/
ESNERR 2016). One Marine Protected Area (MPA), a State Marine Reserve, 
partially overlaps with the project area. Two additional MPAs are 
located within 1 mile of the project area. The Minhoto-Hester Marsh has 
multiple cross-levees and both natural and dredged channels, with a 
major dredged channel (exceeding 100 feet in width in some locations) 
that runs north to south through the remnant marsh.

Description of Marine Mammals in the Area of the Activity

    Southern sea otters and Pacific harbor seals (Phoca vitulina 
richardii) are present in or near the project site. Pacific harbor 
seals are under the jurisdiction of the National Marine Fisheries 
Service (NMFS) and are

[[Page 6630]]

considered under a separate proposed IHA notice. Therefore, we do not 
address them further here. The only marine mammal species under the 
jurisdiction of the Service that occurs in the proposed project area is 
the southern sea otter.
    Southern sea otters are listed as threatened under the Endangered 
Species Act of 1973, as amended (ESA) (42 FR 2965; January 14, 1977), 
and, because of their threatened status, are considered ``depleted'' 
under the MMPA. The State of California also recognizes the sea otter 
as a fully protected mammal (Fish and Game Code section 4700) and as a 
protected marine mammal (Fish and Game Code section 4500). All members 
of the sea otter population in California are descendants of a small 
group that survived the fur trade and persisted near Big Sur, 
California. Historically ranging from at least as far north as Oregon 
(Valentine et al. 2008) to Punta Abreojos, Baja California, Mexico, in 
the south, sea otters currently occur in only two areas of California. 
The mainland population ranges from San Mateo County to Santa Barbara 
County, and a translocated population exists at San Nicolas Island, 
Ventura County. The most recent (2016) California-wide index of 
abundance is 3,272 individuals (www.werc.usgs.gov/seaottercount). 
Additional general information on status and trends of the southern sea 
otter may be found in the stock assessment report, available at http://www.fws.gov/ventura/endangered/species/info/sso.html.
    Sea otters occur in Elkhorn Slough year round. As many as 150 sea 
otters (mostly male) raft together in the harbor at the mouth of 
Elkhorn Slough, and more than 50 females and pups, and a few 
territorial males, utilize protected tidal creeks and adjacent waters 
further up the slough (Scoles et al. 2012). Sea otters occur in the 
harbor, in tidal channels, and where eelgrass (Zostera marina) is 
present. Seal Bend, which is located approximately 0.8 river miles west 
of the proposed project area, is an important area for sea otter 
activity due to the large patch of eelgrass present there. When not 
disturbed, sea otters also frequently come ashore to rest, interact, 
and groom (Scoles et al. 2012).
    Sea otters use areas within the project footprint minimally (ESA/
ESNERR 2016; USGS, Monterey Bay Aquarium, and ESNERR unpublished data). 
A maximum of two sea otters at any one time were observed within the 
project footprint during pre-project monitoring conducted in 2013 (Beck 
2014). These animals were observed resting in water in area M3 of 
Minhoto Marsh (see Figure 4-2 of ESA/ESNERR 2016) when tidal heights 
were approximately 4 feet or higher. The maximum length of time a sea 
otter was observed in M3 during any monitoring session was 1.5 hours 
(Beck 2014).
    Up to 50 southern sea otters may be present in the area in and 
around Minhoto Marsh, Parsons Slough, Yampah Marsh, and the portion of 
Elkhorn Slough Channel that could be exposed to construction-related 
noise or disturbance (ESA/ESNERR 2016). Three main sea otter resting 
locations occur in these areas: One in the Parsons Slough Complex near 
the Avila Property and two near Yampah Island, southwest of the Union 
Pacific Railroad Bridge (see Figure 4-3 of ESA/ESNERR 2016; note that 
one marker is used to represent the two Yampah Island resting areas, 
which are located immediately to the west and east of its location on 
the map). Each of these areas consists of a territorial male and 
females with or without pups. Up to 35 sea otters were observed within 
the Parsons Slough Complex and Yampah Marsh during monitoring for an 
earlier project (ESNERR 2011). The closest area of concentrated sea 
otter activity to the project footprint is in Yampah Marsh, 
approximately 800 feet to the northeast (ESA/ESNERR 2016). The Yampah 
Marsh area is used heavily by females with and without pups for 
resting, hauling out, grooming, and (for females with pups) nursing 
(ESA 2016; USGS, Monterey Bay Aquarium, and ESNERR unpublished data).

Potential Impacts of the Proposed Action on Sea Otters

    In this section we provide a qualitative discussion of the 
potential impacts of the proposed project. The ``Estimated Take by 
Incidental Harassment'' section later in this document includes a 
quantitative analysis of the number of individuals that may be taken by 
Level B harassment as a result of this activity. Sea otters that have 
been observed to use Minhoto Marsh would be prevented from accessing 
the area and would be displaced to other areas of Elkhorn Slough for 
the duration of the project. Sea otters using the marsh areas adjacent 
to the project site for resting and foraging would be exposed to 
construction noise and activity, which could deter them from using 
these areas and displace them to adjacent areas of Elkhorn Slough. If 
sheet pile (rather than an earthen dam or inflatable dam) is required 
to isolate the construction area from tidal waters, vibratory hammering 
would increase ambient noise levels at the site for 4 days. Noise 
generated by vibratory pile driving could cause sea otters that forage 
or rest in the portion of the main channel adjacent to the restoration 
area to relocate temporarily to nearby areas. Behavioral changes 
resulting from disturbance could include startle responses, the 
interruption of resting behaviors (while in water or hauled out on 
pickleweed), and changes in foraging patterns. Impacts of the proposed 
project are limited to behavioral disturbance that may reach the 
threshold of Level B harassment. These impacts could result from 
airborne noise and visual disturbance caused by the presence of 
construction equipment and workers over a period of 11 months and (if 
sheet pile installation is required) from underwater noise caused by 
vibratory pile driving over a 4-day period.
    Relatively little is known regarding the effects of noise on sea 
otters, but they have not been reported to be particularly sensitive to 
noise disturbance, especially in comparison to other marine mammals 
(Riedman 1983, 1984). Many marine mammals depend on acoustic cues for 
vital biological functions, such as orientation, communication, 
locating prey, and avoiding predators. However, sea otters are not 
known to use acoustic information to orient or to locate prey, nor are 
they known to communicate underwater. Ghoul and Reichmuth (2014) 
obtained aerial and underwater audiograms for a captive adult male sea 
otter and evaluated his hearing in the presence of noise. In air, the 
sea otter's hearing was similar to that of a sea lion (Zalophus 
californianus) but less sensitive to high-frequency (greater than 22 
kHz) and low-frequency (less than 2 kHz) sounds than terrestrial 
mustelids. Underwater, the sea otter's hearing was less sensitive than 
that of sea lions and other pinnipeds, particularly at frequencies 
below 1 kHz. Critical ratios were more than 10 dB above those measured 
in pinnipeds, suggesting that sea otters have a relatively poor 
capacity to detect acoustic signals in noise.
    Observed responses of wild sea otters to disturbance are highly 
variable, probably reflecting the level of noise and activity to which 
they have been exposed and become acclimated over time and the 
particular location and social or behavioral state of that individual 
(G. Bentall pers. comm. 2010). Sea otters appeared to be relatively 
undisturbed by pile driving activities in Elkhorn Slough during the 
construction of the Parsons Slough Sill (adjacent to the Minoto-Hester 
Marsh), with many showing no response to pile driving and generally 
reacting more strongly to passing vessels associated

[[Page 6631]]

with construction than to the sounds of machinery (ESNERR 2011). Sea 
otters in Elkhorn Slough are likely acclimated to loud noises, as they 
occupy an area near an active railroad track, which produces in-air 
sound levels comparable to those produced by the vibratory driving of H 
piles (ESNERR 2011). Approximately 15-20 trains pass through Elkhorn 
Slough each day within 400 feet of the easternmost portion of the 
project area (Vinnedge Environmental Consulting 2010). A vehicle 
dismantling and recycling yard is located approximately 300 feet from 
the project area.
    The proposed construction activity may generate airborne noise 
above ambient levels or create a visual disturbance (during typical 
construction hours/workdays) for a period of 11 months. However, only 
work in the northern and eastern portions of Minhoto Marsh would be 
expected to disturb sea otters due to their proximity to the adjacent 
areas used by sea otters. Work in these portions of the marsh would 
likely be accomplished within approximately 6 months (132 construction 
days). Airborne noise produced by heavy earth-moving equipment such as 
backhoes and front-end loaders may produce sound levels of 80-90 dB re 
20[mu]Pa at 50 feet (Federal Highway Administration 2015). Vibratory 
driving of steel sheet piles, which may occur during 4 of the 136 total 
days of construction, is expected to produce maximum airborne sound 
levels of 97 dBA re 20[mu]Pa at 33 feet and 90 dBA re 20[mu]Pa at 98 
feet (where dBA refers to dB with A-weighting designed to match the 
average frequency response of human hearing, which enables comparison 
of the intensity of noises with different frequency characteristics) 
(ESNERR 2011). Vibratory driving of sheet piles would generate 
underwater noise to which sea otters in the vicinity would be exposed 
while diving or performing other behaviors that cause immersion of the 
ears. However, because of acoustic shadowing due to the winding 
configuration of Elkhorn Slough, underwater sound transmission would be 
relatively limited. The likely extent of transmission of sound 
exceeding 120 dB re 1 [micro]Pa is pictured in Figure 6-4 of ESA/ESNERR 
(2016).
    NMFS employs acoustic exposure criteria to define Level A 
harassment (injury) and Level B harassment (disturbance) resulting from 
sound for the marine mammal species under its jurisdiction. For 
underwater non-impulsive noise (which includes vibratory pile driving 
and removal), NMFS uses 219 dB re 1 [micro]Pa (cumulative 24-hour sound 
exposure level) as the threshold for Level A harassment of otariid 
pinnipeds (e.g., sea lions) (NMFS 2016) and 120 dB re 1 [micro]Pa 
(received level) as the threshold for Level B harassment. For airborne 
noise, NMFS uses 100 dB re 20 [micro]Pa (received level) as a 
guideline, but not formal threshold, for the onset of Level B 
harassment for pinnipeds other than harbor seals (79 FR 13991; March 
12, 2014). NMFS does not have a guideline for the onset of Level A 
harassment of pinnipeds by airborne noise (A. Scholik-Schlomer, Office 
of Protected Resources, Marine Mammal and Sea Turtle Conservation 
Division, pers. comm. 2014). However, Southall et al. (2007) propose an 
injury criterion for sea lions exposed to airborne noise of 172.5 dB re 
20 [micro]Pa.
    In the absence of sufficient data on which to base noise exposure 
thresholds specific to sea otters, but in light of experimental 
evidence suggesting that the hearing sensitivities of sea lions and sea 
otters are generally comparable (although, as noted above, sea otter 
hearing appears to be less sensitive than sea lion hearing underwater), 
we use the thresholds, guidelines, and criteria applicable to sea lions 
as proxies. With regard to underwater noise, we use the thresholds 
adopted by NMFS for sea lions to evaluate whether noise exposure levels 
would constitute Level A or Level B harassment of sea otters. With 
regard to airborne noise, we use the guideline that NMFS uses for 
pinnipeds other than harbor seals to evaluate whether anticipated 
exposure levels resulting from this project would constitute Level B 
harassment of sea otters and the injury criterion proposed in Southall 
et al. (2007) for sea lions to evaluate whether the anticipated 
airborne noise exposures would constitute Level A harassment. 
Specifically, we use 219 dB re 1 [micro]Pa as the threshold for Level A 
harassment underwater and 120 dB re 1 [micro]Pa (for non-impulse 
sources) as the threshold for Level B harassment underwater. Similarly, 
we adopt for sea otters the 100 dB re 20 [micro]Pa guideline that NMFS 
uses for in-air Level B harassment of pinnipeds other than harbor 
seals. We use the Southall et al. (2007) criterion of 172.5 dB re 20 
[micro]Pa for sea lions to approximate the airborne noise levels that 
may cause injury to sea otters. Given that sea otters are not known to 
use sound to communicate underwater, to orient, or to locate prey, and 
given sea otters' decreased sensitivity to underwater noise relative to 
that of sea lions, we acknowledge that these thresholds are likely 
highly conservative. As additional behavioral or other data on sea 
otter responses to sound become available, we may determine that one or 
more of these thresholds are not applicable to sea otters.

Potential Effects of the Proposed Action on Sea Otter Habitat

    Habitat within the project footprint would be inaccessible to sea 
otters for the duration of construction. However, these impacts would 
be minimal, as past surveys documented a maximum of two sea otters 
using this area. Construction activity would result in a slight 
increased risk of accidental water contamination from equipment 
refueling, fluid leakage, or maintenance activities within or near 
water bodies. Leaks or spills of petroleum hydrocarbon products found 
in construction equipment could have adverse effects on sea otters by 
contaminating their fur (interfering with thermoregulation) and through 
ingestion during grooming. Vibratory pile driving (if required by the 
project) would not be expected to alter the availability of prey 
species to sea otters in the waters or marshlands adjacent to the 
project site because these species are largely sessile benthic 
invertebrates. The proposed action would permanently alter habitat 
within the footprint of the construction area, but the restoration of 
salt marsh would benefit sea otters over the longer term by providing 
additional high-quality habitat within Elkhorn Slough for hauling out 
and foraging.

Potential Impacts on Subsistence Needs

    The subsistence provision of the MMPA does not apply.

Mitigation Measures

    CDFW has proposed the following measures to prevent Level A 
harassment (injury) and to reduce the extent of potential effects from 
Level B harassment (disturbance) to marine mammals.
    1. A Service- and NMFS-approved biologist would conduct mandatory 
biological resources awareness training for construction personnel. The 
awareness training would be provided to all construction personnel to 
brief them on the need to avoid effects on marine mammals. If new 
construction personnel are added to the project, the contractor would 
ensure that the personnel receive the mandatory training before 
starting work.
    2. A biological monitor approved by the Service and NMFS would 
monitor for marine mammal disturbance. Monitoring would occur at all 
times when work is occurring: (a) In water, (b) north of a line 
starting at 36[deg]48'38.91 N. 121[deg]45'08.03 W. and ending 
36[deg]48'38.91 N. 121[deg]45'27.11 W., or (c) within 100

[[Page 6632]]

feet of tidal waters. When work is occurring in other areas, monitoring 
would be implemented for at least the first 3 days of construction. 
Monitoring would continue until there are 3 successive days of no 
observed disturbance, at which point monitoring would be suspended. 
Monitoring would resume when there is a significant change in 
activities or location of activities within the project area or if 
there is a gap in construction activities of more than 1 week. In these 
cases, monitoring would again be implemented for at least the first 3 
days of construction and would not be suspended until there are 3 
successive days of no observed disturbance. The biological monitor 
would have the authority to stop project activities if marine mammals 
approach or enter the exclusion zone. Biological monitoring would begin 
0.5-hour before work begins and will continue until 0.5-hour after work 
is completed each day. Work would commence only with approval of the 
biological monitor to ensure that no marine mammals are present in the 
exclusion zone.
    3. To reduce the risk of potentially startling marine mammals with 
a sudden intensive sound, the construction contractor would begin 
construction activities gradually each day by moving around the project 
area and starting tractors one at a time.
    4. Biological monitors would have authority to stop construction at 
any time for the safety of any marine mammals.
    5. In-water construction work would occur only during daylight 
hours when visual monitoring of marine mammals can be implemented. No 
in-water work would be conducted at night.
    6. If sheet piles are used to isolate construction activities from 
tidal action, all piles would be installed using a vibratory pile 
driver, and an exclusion zone would be implemented. Because the area 
within which underwater sound pressure levels are expected to reach or 
exceed 190 dB re 1 [mu]Pa is less than a foot, the radius of the 
exclusion zone would be set at a minimum of 49 feet to prevent the 
injury of marine mammals from machinery. Pile extraction or driving 
would not commence (or re-commence following a shutdown) until marine 
mammals are not sighted within the exclusion zone for a 15-minute 
period. If a marine mammal enters the exclusion zone during sheet pile 
work, work would stop until the animal leaves the exclusion zone.
    7. If marine mammals are present within the work area, they would 
be allowed to leave on their own volition. If they are not leaving the 
work area on their own, coordination with NMFS or the Service (as 
appropriate) would occur to ensure a government official be present 
should an animal require flushing from within the footprint of the 
construction area.
    8. Fuel storage and all fueling and equipment maintenance 
activities would be conducted at least 100 feet from subtidal and 
intertidal habitat.

Monitoring and Reporting

    CDFW would follow a detailed monitoring plan developed in 
consultation with the Service and NMFS. A Service- and NMFS-approved 
biological monitor would monitor for marine mammal disturbance. 
Monitoring would occur as described in Mitigation Measure #2 above. 
Throughout construction activities that require a monitor, the 
biological monitor would maintain a log that documents numbers of 
marine mammals present before, during, and at the conclusion of daily 
activities. The monitor would record basic weather conditions and 
marine mammal behavior. A final report would be submitted to the 
Service and NMFS within 90 days of the conclusion of monitoring 
efforts. The report would detail the monitoring protocol, summarize the 
data recorded during monitoring, and contain an estimate of the number 
of marine mammals, by species, that may have been harassed.

Estimated Take by Incidental Harassment

    Based on the proposed construction methodology and mitigation, 
including use of an exclusion zone, no Level A harassment of southern 
sea otters is anticipated as a result of the proposed project. 
Anticipated received noise levels would remain well below the 
thresholds established for Level A harassment. Behavioral harassment 
(Level B) could result from visual disturbance and in-air noise of 100 
dB re 20 [mu]Pa or greater for a period of 132 days and (if pile 
driving is required by the project) visual disturbance, in-air noise of 
100 dB re 20 [mu]Pa or greater, and underwater continuous noise of 120 
dB re 1 [mu]Pa or greater for a period of 4 days.
    In order to quantify take that may occur incidental to the 
specified activity, we determine the area that may be subject to 
project-related disturbance, estimate the number of sea otters likely 
to be present in that area, and multiply the number of sea otters by 
the number of days they could be disturbed during the project. Because 
airborne noise attenuates rapidly, and because of the distance of the 
project site from areas of concentrated sea otter activity (the closest 
such area, Yampah Marsh, is approximately 800 feet away), it is likely 
that few sea otters will be exposed to noise levels exceeding the 100 
dB re 20 [mu]Pa threshold. The area potentially subject to visual 
disturbance from construction activity is larger than and inclusive of 
the area potentially exposed to airborne sound exceeding the threshold 
for Level B harassment. Accordingly, we do not evaluate the number of 
sea otters exposed to airborne noise separately from the number of sea 
otters exposed to visual disturbance.
    Vibratory pile driving (if required) would generate visual 
disturbance and in-air and underwater noise for a period of 4 days. The 
portion of Elkhorn Slough Channel that could be exposed to underwater 
noise of 120 dB re 1 [mu]Pa or greater during pile driving is pictured 
in Figure 6-4 of ESA/ESNERR (2016). An estimated 15 sea otters may use 
this portion of the channel for foraging or traveling from one location 
to another. The area that could potentially be affected by visual 
disturbance and in-air noise of 100 dB re 20 [mu]Pa or greater during 
pile driving includes Minhoto Marsh, Parsons Slough, and Yampah Marsh, 
which are utilized by an average of 35 sea otters (ESA/ESNERR 2016). Up 
to 50 sea otters may be present on land or in water and potentially 
affected by vibratory pile driving for 4 days, resulting in an 
estimated 200 instances of take.
    After sheet piles are installed (or if an earthen dam or an 
inflatable dam is used instead), the project site would be isolated 
from aquatic areas, and sea otters would no longer be able to access 
the work area. At that time, sea otters outside of the work area would 
be subject to reduced levels of disturbance. An average of 10 sea 
otters per day (a subset of the 50 that may be affected by vibratory 
pile driving) could be affected by visual disturbance and in-air noise 
of 100 dB re 20 [mu]Pa or greater during the subsequent 132 days of 
construction work in the northern and eastern portions of the Minhoto 
Marsh, resulting in approximately 1,320 takes.

Findings

    We propose the following findings regarding this action:

Negligible Impact

    We find that any incidental take by harassment that is reasonably 
likely to result from the proposed project would not adversely affect 
the southern sea otter by means of effects on rates of recruitment or 
survival, and would, therefore, have no more than a negligible impact 
on the species or stock

[[Page 6633]]

(all southern sea otters are considered to belong to a single stock). 
In making this finding, we considered the best available scientific 
information, including: (1) The biological and behavioral 
characteristics of the species; (2) information on distribution and 
abundance of sea otters within the area of the proposed activity; (3) 
the potential sources of disturbance during the proposed activity; and 
(4) the potential response of sea otters to disturbance.
    The estimated 200 potential takes (affecting up to 50 sea otters 
per day) during a total of 4 days of vibratory pile driving, if 
required by the project, and 1,320 potential takes (affecting up to 10 
sea otters per day over a period of 132 days) during subsequent 
construction activity are expected to result in negligible impact for 
the following reasons: Received noise levels would remain well below 
the thresholds established for Level A harassment; sea otters do not 
appear to be particularly sensitive to noise (and often do not react 
visibly to it); and any behavioral reactions to noise or visual 
disturbance are expected to be temporary and of short duration. In 
particular, the estimate of the number of sea otters that could be 
harassed by exposure to project-related underwater sound based on the 
120 dB threshold may overstate impacts because this threshold is 
sometimes at or even below the ambient noise level in certain 
locations. Additionally, disturbance resulting from project activities 
would affect only a small portion of the sea otter habitat available to 
and used by sea otters in Elkhorn Slough.
    The mitigation measures outlined above are intended to minimize the 
number of sea otters that could be disturbed by the proposed activity. 
Any impacts to individuals are expected to be limited to Level B 
harassment of short duration. Responses of sea otters to disturbance 
would most likely be common behaviors such as diving and/or swimming 
away from the source of the disturbance. No take by injury or death is 
anticipated. Because any Level B harassment that occurs would be of 
short duration, and because no take by injury or death is anticipated, 
we find that the anticipated harassment caused by the proposed 
activities is not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival.
    Our finding of negligible impact applies to incidental take 
associated with the proposed activity as mitigated through this 
authorization process. This authorization establishes monitoring and 
reporting requirements to evaluate the potential impacts of the 
authorized activities, as well as mitigation measures designed to 
minimize interactions with, and impacts to, sea otters.

Small Numbers

    For small numbers take analysis, the statute and legislative 
history do not expressly require a specific type of numbers analysis, 
leaving the determination of ``small'' to the agency's discretion. The 
sea otter population in California consists of approximately 3,272 
animals. The number of sea otters that could potentially be taken by 
harassment in association with the proposed project, approximately 50 
animals, is 1.5 percent of the population size. We find that the number 
of sea otters utilizing the affected area is small relative to the size 
of the population.

Impact on Subsistence

    The subsistence provision of the MMPA does not apply to southern 
sea otters.

Endangered Species Act

    The proposed activity will occur within the range of the southern 
sea otter, which is listed as threatened under the ESA. CDFW has 
requested a Pre-Construction Notification (PCN) under U.S. Army Corps 
of Engineers' (Corps') Nationwide Permit (NWP) 27 (USACE 2012). The 
Corps has initiated interagency consultation under section 7 of the ESA 
with the Service's Ventura Fish and Wildlife Office. We will also 
complete intra-Service section 7 consultation on our proposed issuance 
of the IHA.

National Environmental Policy Act (NEPA)

    The types of impacts associated with aquatic habitat restoration, 
establishment, and enhancement activities are described in NWP 27. The 
analyses in the NWP and the coordination undertaken prior to its 
issuance fulfill the requirements of NEPA (42 U.S.C. 4321 et seq.). The 
Service will review the Decision Document for NWP 27 and decide either 
to adopt it or to prepare its own NEPA document before making a 
determination on the issuance of an IHA. Our analysis will be completed 
prior to issuance or denial of the IHA and will be available at http://www.fws.gov/ventura/endangered/species/info/sso.html.

Government-To-Government Relations With Native American Tribal 
Governments

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, Secretarial Order 
3206, Department of the Interior Secretarial Order 3317 of December 1, 
2011 (Tribal Consultation and Policy), the Department of the Interior's 
manual at 512 DM 2, and the Native American Policy of the Service, 
January 20, 2016, we readily acknowledge our responsibility to 
communicate meaningfully with federally recognized Tribes on a 
Government-to-Government basis. We have evaluated possible effects on 
federally recognized Indian Tribes and have determined that there are 
no effects.

Proposed Authorization

    The Service proposes to issue CDFW an IHA for the nonlethal, 
incidental, unintentional take by level B harassment of small numbers 
of southern sea otters while the applicant is completing the Minhoto-
Hester Marsh Restoration Project in Elkhorn Slough, Monterey County, 
California. The 1-year authorization would begin on the date of 
issuance, with an anticipated project start date between January 2017 
and June 2017. Authorization for incidental take beyond the 1-year 
period would require a request for renewal.
    The final IHA would incorporate the mitigation, monitoring, and 
reporting requirements discussed in this proposal. The applicant would 
be responsible for following those requirements. This authorization 
would not allow the intentional taking of sea otters, nor take by 
injury or death.
    If the level of activity exceeded that described by the applicant, 
or the level or nature of take exceeded those projected here, the 
Service would reevaluate its findings. The Secretary may modify, 
suspend, or revoke an authorization if the findings are not accurate or 
the mitigation, monitoring, and reporting requirements described in 
this notice are not being met.

Request for Public Comments

    The Service requests that interested persons submit comments and 
information concerning this proposed IHA. For information on the 
references cited in this notice, see ADDRESSES.
    Consistent with section 101(a)(5)(D)(iii) of the MMPA, we are 
opening the comment period on this proposed authorization for 30 days 
(see

[[Page 6634]]

DATES). We intend any final action resulting from this proposal to be 
as accurate and as effective as possible. Therefore, we request 
comments or suggestions on this proposed authorization.
    We particularly seek comments concerning:
     Whether the proposed authorization, including the proposed 
activities, will have a negligible impact on the species or stock of 
the southern sea otter.
     Whether there are any additional provisions we may wish to 
consider for ensuring the conservation of the southern sea otter.
    You may submit your comments and materials concerning this proposed 
authorization by one of the methods listed in ADDRESSES. Before 
including your address, phone number, email address, or other personal 
identifying information in your comment, you should be aware that your 
entire comment--including your personal identifying information--may be 
made publicly available at any time. While you can ask us in your 
comment to withhold your personal identifying information from public 
review, we cannot guarantee that we will be able to do so.

    Authority:  We issue this notice under the authority of the MMPA 
(16 U.S.C. 1371 et seq.).

    Dated: January 6, 2017.
Paul Souza,
Regional Director, Pacific Southwest Region.
[FR Doc. 2017-01271 Filed 1-18-17; 8:45 am]
 BILLING CODE 4333-15-P



                                                                               Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices                                                  6627

                                                  Clean Water Act permit, authorization,                  avoid take. These species and their legal              Other Alternatives
                                                  or funding exists), AEP may receive take                status include:                                           We seek information regarding other
                                                  coverage through a biological opinion                      • American alligator (Alligator                     reasonable alternatives during this
                                                  issued by the Service to the Federal                    mississippiensis)—Threatened                           scoping period and will evaluate the
                                                  action agency. If there is no Federal                   (Similarity of Appearance)                             impacts associated with such
                                                  involvement in the project, AEP can                        • Arkansas fatmucket (Lampsilis                     alternatives in the draft EIS.
                                                  apply for an incidental take permit from                powellii)—Threatened
                                                  the Service. This approach is more time                    • Arkansas River shiner (Notropis                   Public Availability of Comments
                                                  consuming and less efficient, because                   girardi)—Threatened, Arkansas R. Basin                   Written comments we receive become
                                                  permits would need to be considered                     population, with Critical Habitat                      part of the public record associated with
                                                  and processed one project at a time,                       • Gray bat (Myotis grisescens)—                     this action. Before including your
                                                  which could result in an isolated,                      Endangered                                             address, phone number, email address,
                                                  independent mitigation approach.                           • Harperella (Ptilimnium nodosum)—                  or other personal identifying
                                                  Proposed Alternative                                    Endangered                                             information in your comment, you
                                                                                                             • Indiana bat (Myotis sodalis)—                     should be aware that the entire
                                                     The proposed action is issuance of an                Endangered                                             comment—including your personal
                                                  incidental take permit for the covered                     • Least tern (Sterna antillarum [now                identifying information—may be made
                                                  species during construction, operation,                 recognized as a subspecies                             publicly available at any time. While
                                                  and/or maintenance of electric                          athalassos])—Endangered, interior                      you can ask us in your comment to
                                                  transmission and distribution lines or                  population                                             withhold your personal identifying
                                                  other associated infrastructure. The                       • Leopard darter (Percina                           information from public review, we
                                                  proposed HCP, which must meet the                       pantherina)—Threatened with Critical                   cannot guarantee that we will be able to
                                                  requirements in section 10(a)(2)(A) of                  Habitat                                                do so.
                                                  the Act, would be developed in                             • Neosho madtom (Noturus                              Comments and materials we receive,
                                                  coordination with the Service and                       placidus)—Threatened                                   as well as supporting documentation we
                                                  implemented by AEP. This alternative                       • Neosho mucket (Lampsilis                          use in preparing the EIS, will be
                                                  will allow for a comprehensive                          rafinesqueana)—Endangered with                         available for public inspection, by
                                                  mitigation approach for authorized                      Critical Habitat                                       appointment, during normal business
                                                  impacts and result in a more efficient                                                                         hours at the Service’s Oklahoma
                                                                                                             • Northern long-eared bat (Myotis
                                                  and timely permit processing effort for                                                                        Ecological Services Field Office in
                                                                                                          septentrionalis)—Threatened
                                                  the Service and AEP. Actions covered                                                                           Tulsa, Oklahoma, (see ADDRESSES,
                                                                                                             • Ouachita Rock pocketbook
                                                  under the requested incidental take                                                                            above).
                                                                                                          (Arkansia wheeleri)—Endangered
                                                  permit may include possible take of
                                                  covered species associated with                            • Ozark big-eared bat (Corynorhinus                 Benjamin N. Tuggle,
                                                  activities including, but not limited to,               townsendii ingens)—Endangered                          Regional Director, Southwest Region, U.S.
                                                  construction, operation, and/or                            • Ozark cavefish (Amblyopsis                        Fish and Wildlife Service.
                                                  maintenance of electric transmission                    rosae)—Threatened                                      [FR Doc. 2017–01176 Filed 1–18–17; 8:45 am]
                                                  and distribution lines or other                            • Pink mucket (Lampsilis abrupta)—                  BILLING CODE 4333–15–P
                                                  associated infrastructure. The proposed                 Endangered
                                                  permit submitted by American Energy                        • Piping plover (Charadrius
                                                  Power provides coverage for a period of                 melodus)—Threatened; except Great                      DEPARTMENT OF THE INTERIOR
                                                  30 years.                                               Lakes watershed population
                                                                                                             • Rabbitsfoot (Quadrula cylindrica                  Fish and Wildlife Service
                                                     Sixty-two counties are in the
                                                  proposed permit area, including Adair,                  cylindrica)—Threatened with Critical                   [FWS–R8–ES–2016–N187;
                                                  Atoka, Bryan, Carter, Cherokee,                         Habitat                                                FXES111608M0000]
                                                  Choctaw, Cleveland, Coal, Craig, Creek,                    • Red-cockaded woodpecker
                                                                                                          (Picoides borealis)—Endangered                         Marine Mammals; Incidental Take
                                                  Delaware, Garvin, Haskell, Hughes,
                                                  Johnston, Kay, Latimer, Le Flore,                          • Scaleshell mussel (Leptodea                       During Specified Activities; Proposed
                                                                                                          leptodon)—Endangered                                   Incidental Harassment Authorization
                                                  Lincoln, Logan, Love, Marshall, Mayes,
                                                  McClain, McCurtain, McIntosh, Murray,                      • Spectaclecase (Cumberlandia                       AGENCY:   Fish and Wildlife Service,
                                                  Muskogee, Noble, Nowata, Okfuskee,                      monodonta)—Endangered                                  Interior.
                                                  Oklahoma, Okmulgee, Osage, Ottawa,                         • Whooping crane (Grus                              ACTION: Notice of receipt of application
                                                  Pawnee, Payne, Pittsburg, Pontotoc,                     americana)—Endangered; except in the                   and proposed incidental harassment
                                                  Pottawatomie, Pushmataha, Rogers,                       experimental population area                           authorization; request for comments.
                                                  Seminole, Sequoyah, Tulsa, Wagoner,                        • Winged mapleleaf (Quadrula
                                                  and Washington Counties in Oklahoma;                    fragosa)—Endangered; except where                      SUMMARY:    We, the U.S. Fish and
                                                  Clark, Crawford, Franklin, Hempstead,                   listed as experimental populations                     Wildlife Service (Service), have received
                                                  Johnson, Little River, Logan, Miller,                      We do not anticipate that covered                   an application from the California
                                                  Sebastian, Scott, and Yell Counties in                  activities will result in take of all these            Department of Fish and Wildlife,
                                                  Arkansas; and Bowie, Fannin, Lamar,                     species, but we seek comments to help                  Central Region, for authorization to take
                                                  and Red River Counties in Texas. The                    inform our evaluation.                                 small numbers of marine mammals by
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                                                  species covered under the requested                        We also will evaluate whether                       harassment incidental to construction
                                                  incidental take permit is the ABB. We                   covered activities are likely to impact                activities as part of a tidal marsh
                                                  will be evaluating whether the covered                  the bald eagle (Haliaeetus                             restoration project within the Minhoto-
                                                  activities will impact other species and                leucocephalus) and golden eagle (Aquila                Hester Marsh in Elkhorn Slough,
                                                  whether they should be included on the                  chrysaetos), protected under the Bald                  Monterey County, California. In
                                                  permit or if management practices can                   and Golden Eagle Protection Act (16                    accordance with provisions of the
                                                  be implemented that are sufficient to                   U.S.C. 668 et seq.).                                   Marine Mammal Protection Act of 1972,


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                                                  6628                         Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices

                                                  as amended, we request comments on                      find that the taking will have a                       mammals and the subsistence hunters;
                                                  our proposed authorization for the                      negligible impact on the species or                    and (2) that cannot be sufficiently
                                                  applicant to take incidentally, by                      stock(s) and will not have an                          mitigated by other measures to increase
                                                  harassment, small numbers of southern                   unmitigable adverse impact on the                      the availability of marine mammals to
                                                  sea otters (Enhydra lutris nereis) over                 availability of the species or stock(s) for            allow subsistence needs to be met.’’ The
                                                  the course of approximately 11 months                   subsistence uses. As part of the                       subsistence provision applies to
                                                  beginning between January 2017 and                      authorization process, we prescribe                    northern sea otters (Enhydra lutris
                                                  June 2017. We anticipate no take by                     permissible methods of taking and other                kenyoni) in Alaska but not to southern
                                                  injury or death and include none in this                means of effecting the least practicable               sea otters.
                                                  proposed authorization, which would                     impact on the species or stock and its
                                                  be for take by harassment only.                         habitat, and requirements pertaining to                Summary of Request
                                                  DATES: Comments and information must                    the monitoring and reporting of such
                                                                                                                                                                    On May 23, 2016, we received an
                                                  be received by February 21, 2017.                       takings.
                                                                                                             The term ‘‘take,’’ as defined by the                application from the California
                                                  ADDRESSES: Comment submission: You                                                                             Department of Fish and Wildlife,
                                                                                                          MMPA, means to harass, hunt, capture,
                                                  may submit comments by any one of the                                                                          Central Region (CDFW), for
                                                                                                          or kill, or to attempt to harass, hunt,
                                                  following methods:                                                                                             authorization to take southern sea otters
                                                                                                          capture, or kill, any marine mammal.
                                                     1. U.S. mail or hand-delivery: Steve                                                                        incidental to construction activities
                                                                                                          Harassment, as defined by the MMPA,
                                                  Henry, Field Supervisor, Ventura Fish                                                                          associated with a 47-acre tidal marsh
                                                                                                          means ‘‘any act of pursuit, torment, or
                                                  and Wildlife Office, 2493 Portola Road,                                                                        restoration project within the Minhoto-
                                                                                                          annoyance which (i) has the potential to
                                                  Suite B, Ventura, CA 93003.                                                                                    Hester Marsh in Elkhorn Slough,
                                                                                                          injure a marine mammal or marine
                                                     2. Fax: 805–644–3958, attention to                                                                          Monterey County, California. The
                                                                                                          mammal stock in the wild [the MMPA
                                                  Steve Henry, Field Supervisor.                                                                                 project would reduce tidal prism in
                                                     3. Electronic mail (email): R8_SSO-                  calls this Level A harassment], or (ii)
                                                                                                          has the potential to disturb a marine                  Elkhorn Slough, reducing the potential
                                                  IHA_Comment@fws.gov. Please include                                                                            for ongoing tidal scour and associated
                                                                                                          mammal or marine mammal stock in the
                                                  your name and U.S. mail address in                                                                             marsh loss. It would also improve marsh
                                                                                                          wild by causing disruption of behavioral
                                                  your message.                                                                                                  sustainability with sea level rise, as the
                                                     Document availability: Electronic                    patterns, including, but not limited to,
                                                                                                          migration, breathing, nursing, breeding,               restored marsh would be higher in the
                                                  copies of the incidental harassment                                                                            tidal frame and further from the
                                                                                                          feeding, or sheltering [the MMPA calls
                                                  authorization request, the Marine                                                                              drowning threshold, and marsh
                                                                                                          this Level B harassment].’’
                                                  Mammal Monitoring Plan, and other
                                                                                                             The terms ‘‘negligible impact,’’ ‘‘small            vegetation in the restored areas would
                                                  supporting materials, such as the list of               numbers,’’ and ‘‘unmitigable adverse                   accrete organic material that would help
                                                  references used in this notice, may be                  impact’’ are defined in title 50 of the                the restored marsh plain rise with sea
                                                  obtained by writing to the address                      Code of Federal Regulations at 50 CFR                  level. The full Elkhorn Slough Tidal
                                                  specified above, telephoning the contact                18.27, the Service’s regulations                       Marsh Restoration Project includes the
                                                  listed in FOR FURTHER INFORMATION                       governing take of small numbers of                     anticipated restoration of 147 acres, but
                                                  CONTACT, or visiting the Internet at
                                                                                                          marine mammals incidental to specified                 future phases are not part of this
                                                  http://www.fws.gov/ventura/                             activities. ‘‘Negligible impact’’ is                   application because they would not
                                                  endangered/species/info/sso.html.                       defined as ‘‘an impact resulting from the              likely occur for several years. If any
                                                  Documents cited in this notice may also                 specified activity that cannot be                      future phase of the project would result
                                                  be viewed, by appointment, during                       reasonably expected to, and is not
                                                  regular business hours, at the                                                                                 in harassment of southern sea otters,
                                                                                                          reasonably likely to, adversely affect the             another IHA would have to be requested
                                                  aforementioned U.S. mail address.                       species or stock through effects on                    and received prior to its
                                                  FOR FURTHER INFORMATION CONTACT:                        annual rates of recruitment or survival.’’             implementation.
                                                  Lilian Carswell, Southern Sea Otter                     The term ‘‘small numbers’’ is also
                                                  Recovery & Marine Conservation                          defined in the regulations as ‘‘a portion                 A detailed description of the
                                                  Coordinator, (805) 612–2793, or by                      of a marine mammal species or stock                    proposed project is contained in the
                                                  email at Lilian_Carswell@fws.gov.                       whose taking would have a negligible                   incidental harassment authorization
                                                  SUPPLEMENTARY INFORMATION:                              impact on that species or stock.’’                     request submitted to us by CDFW (ESA/
                                                                                                          However, we do not rely on that                        ESNERR 2016). CDFW submitted
                                                  Background                                                                                                     revised versions of the application on
                                                                                                          definition here, as it conflates the terms
                                                     Sections 101(a)(5)(A) and (D) of the                 ‘‘small numbers’’ and ‘‘negligible                     July 26, 2016, August 24, 2016, August
                                                  Marine Mammal Protection Act of 1972,                   impact,’’ which we recognize as two                    29, 2016, and September 6, 2016. A final
                                                  as amended, (MMPA; 16 U.S.C. 1371                       separate and distinct requirements.                    version, submitted on September 15,
                                                  (a)(5)(A) and (D)), authorize the                       Instead, in our small numbers                          2016, was determined to be adequate
                                                  Secretary of the Interior to allow, upon                determination, we evaluate whether the                 and complete. Work would begin
                                                  request, the incidental, but not                        number of marine mammals likely to be                  between January 2017 and June 2017
                                                  intentional, taking of small numbers of                 taken is small relative to the size of the             and require approximately 11 months to
                                                  marine mammals by U.S. citizens who                     overall population. ‘‘Unmitigable                      complete. This period includes buffers
                                                  engage in a specified activity (other than              adverse impact’’ is defined as ‘‘an                    for adverse weather and other
                                                  commercial fishing) within a specified                  impact resulting from the specified                    conditions when work is not possible.
                                                  geographical region, provided that we                   activity (1) that is likely to reduce the              Construction activities are expected to
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                                                  make certain findings and either issue                  availability of the species to a level                 produce noise and visual disturbance
                                                  regulations or, if the taking is limited to             insufficient for a harvest to meet                     that have the potential to result in
                                                  harassment, provide a notice of a                       subsistence needs by (i) causing the                   behavioral harassment of southern sea
                                                  proposed authorization to the public for                marine mammals to abandon or avoid                     otters. We are proposing to authorize
                                                  review and comment.                                     hunting areas, (ii) directly displacing                take, by Level B harassment only, of
                                                     We may grant authorization to                        subsistence users, or (iii) placing                    southern sea otters as a result of the
                                                  incidentally take marine mammals if we                  physical barriers between the marine                   specified activity.


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                                                                               Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices                                             6629

                                                  Description of the Activity                             raising the marsh plain. Blocking                      matting would be temporarily placed on
                                                     The proposed project would restore                   borrow ditches would route more flow                   the marsh to provide a stable footing for
                                                  approximately 47 acres of tidal marsh                   through the natural channels and                       the conveyors. A mobile radial stacker
                                                  within the Minhoto-Hester Marsh area                    slightly increase hydraulic resistance,                at the end of the conveyor belt would be
                                                  and additional tidal marsh, upland                      which may achieve benefits from                        rotated to spread the material.
                                                  ecotone, and native grassland in a buffer               reducing tidal prism and associated
                                                                                                                                                                 a. Timing of Activity
                                                  area, intended to absorb upland                         scour in the Elkhorn Slough system.
                                                                                                             Construction sequencing would begin                    Construction is anticipated to require
                                                  sediment and contaminants, between                                                                             approximately 11 months. The 11-
                                                                                                          with water management and/or
                                                  the remnant marsh and agricultural                                                                             month window would include 132 days
                                                                                                          turbidity control measures constructed
                                                  fields. Approximately 170,000 cubic                                                                            of construction activity and (if needed)
                                                                                                          around the work areas prior to placing
                                                  yards of fill would be required to raise                                                                       4 days of vibratory pile driving, totaling
                                                                                                          material on the marsh. Work areas on
                                                  the marsh plain an average height of 2.4                                                                       136 days of project activity. The 11-
                                                                                                          the remnant marsh plain would for the
                                                  feet, or 1.9 feet after 1 year of soil                  most part be isolated from the tides and               month window includes the time
                                                  consolidation. The entire remnant                       dewatered to allow construction to                     required for ecotone and grassland
                                                  marsh plain would be raised to an                       occur in non-tidal conditions. Water                   restoration work. Most work on the
                                                  elevation that would allow emergent                     control structures such as temporary                   marsh plane would likely be completed
                                                  wetland vegetation to reestablish                       berms would be utilized to isolate the                 within 6 to 8 months. The length of the
                                                  naturally and persist.                                  fill placement area during the                         construction period is based on the
                                                     The buffer area would be graded to                   construction period. Existing berms                    assumption that construction
                                                  increase marsh area and to create a                     would be used where possible. It is                    contractors would work between the
                                                  gently sloping ecotone band along the                   likely that the mouth of the restoration               hours of 5:00 a.m. to 6:00 p.m., Monday
                                                  edge of the restored marsh. Excavation                  area could be closed with an earthen                   through Friday. However, some
                                                  would widen the existing marsh by up                    dam or an inflatable dam; however, a                   construction activity could also be
                                                  to 150 feet and create a band of gentle                 sheet pile wall at the mouth of the                    required during these times on
                                                  slope on the hillside, fostering creation               restoration area could be installed using              Saturdays. The proposed IHA would be
                                                  of a wider ecotone habitat. A 35-acre                   vibratory hammering if the earthen and                 valid for 1 year from the date of
                                                  portion of the buffer area would be                     inflatable dam options proved to be                    issuance, with project activities
                                                  restored to native-dominated perennial                  infeasible. Tidal channels into work                   beginning between January 2017 and
                                                  grassland. A weed-resistant border of                   areas would be blocked. The isolated                   June 2017.
                                                  rhizomatous perennial plants would be                   work areas would be drained using a
                                                  planted between the grassland and                                                                              b. Geographic Location of Activity
                                                                                                          combination of gravity and pumps.
                                                  ecotone. The remaining 6-acre portion                   Water levels within the blocked areas                     The proposed project is located in the
                                                  of the buffer area would be used as a                   would be managed to keep them mostly                   Elkhorn Slough estuary, a network of
                                                  stockpile location for future restoration               free of water (with some ponded areas                  intertidal marshes, mudflats, and
                                                  phases and would be revegetated with                    remaining) to allow fill placement at all              subtidal channels 90 miles south of San
                                                  annual barley until future phases were                  stages of the tides. Blocking of tidal                 Francisco and 20 miles north of
                                                  complete, at which time it would be                     channels would occur at low tide. Upon                 Monterey (see Figure 1–1 of ESA/
                                                  restored to native-dominated perennial                  completion of sediment placement, the                  ESNERR 2016). The Minhoto-Hester
                                                  grassland.                                              berms would be lowered to the target                   Marsh, where the proposed restoration
                                                     Remnant historic channels onsite                     marsh elevation, reintroducing tidal                   work would occur, is a low-lying area
                                                  would generally be left in place or filled              inundation. Any blocked tidal channels                 within Elkhorn Slough consisting of
                                                  and re-excavated in the same place.                     would be re-excavated. After fill                      subsided pickleweed (Salicornia
                                                  Smaller channels would be filled as                     placement on the marsh, any temporary                  pacifica) marsh, intertidal mudflats,
                                                  needed for marsh access. As much of                     features, such as water management                     tidal channels, and remnant levees. The
                                                  the existing tidal channel network                      berms, sheet piles, and culverts, would                project area is on land owned and
                                                  would be maintained as feasible, and                    be removed.                                            managed by CDFW as part of the
                                                  the post-project channel alignments                        All material needed for the current                 Elkhorn Slough National Estuarine
                                                  would be similar to those under existing                phase of the project is onsite. Additional             Research Reserve (ESNERR) (see Figure
                                                  conditions. The density of channels                     material may be delivered to the                       1–2 of ESA/ESNERR 2016). One Marine
                                                  (length of channel per acre of marsh)                   restoration areas by trucks if it becomes              Protected Area (MPA), a State Marine
                                                  after restoration would be comparable to                available. Construction crews and                      Reserve, partially overlaps with the
                                                  the density in natural reference                        equipment would access the existing                    project area. Two additional MPAs are
                                                  marshes.                                                stockpile area and Minhoto Marsh from                  located within 1 mile of the project area.
                                                     Low levees (less than 0.5 feet above                 Dolan Road via existing roadways that                  The Minhoto-Hester Marsh has multiple
                                                  the marsh plain) composed of fill                       were used for delivery of the existing                 cross-levees and both natural and
                                                  material would be constructed along the                 sediment stockpile, located alongside                  dredged channels, with a major dredged
                                                  larger channels to simulate natural                     existing agricultural fields. The Hester               channel (exceeding 100 feet in width in
                                                  channel levees. The project would re-                   Marsh staging area may be accessed                     some locations) that runs north to south
                                                  create natural levee features along the                 from Via Tanques Road.                                 through the remnant marsh.
                                                  sides of the main channel into the                         Construction equipment would
                                                  Minhoto-Hester area. Fill would be                      include haul trucks, heavy earthmoving                 Description of Marine Mammals in the
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                                                  placed as close to the edge of the                      equipment (such as bulldozers,                         Area of the Activity
                                                  channel as possible to simulate the form                backhoes, and loaders), and excavators                   Southern sea otters and Pacific harbor
                                                  and function of a natural channel bank.                 to transport dry material out onto the                 seals (Phoca vitulina richardii) are
                                                  Borrow ditches that date from the times                 marsh. A conveyor system could be                      present in or near the project site.
                                                  of historical wetland reclamation in                    used to transport material from a                      Pacific harbor seals are under the
                                                  these areas would be blocked or filled                  stockpile out to the marsh in lieu of                  jurisdiction of the National Marine
                                                  completely if fill is available after                   bulldozers. In such cases, timber                      Fisheries Service (NMFS) and are


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                                                  6630                         Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices

                                                  considered under a separate proposed                    Figure 4–2 of ESA/ESNERR 2016) when                    could cause sea otters that forage or rest
                                                  IHA notice. Therefore, we do not                        tidal heights were approximately 4 feet                in the portion of the main channel
                                                  address them further here. The only                     or higher. The maximum length of time                  adjacent to the restoration area to
                                                  marine mammal species under the                         a sea otter was observed in M3 during                  relocate temporarily to nearby areas.
                                                  jurisdiction of the Service that occurs in              any monitoring session was 1.5 hours                   Behavioral changes resulting from
                                                  the proposed project area is the                        (Beck 2014).                                           disturbance could include startle
                                                  southern sea otter.                                        Up to 50 southern sea otters may be                 responses, the interruption of resting
                                                     Southern sea otters are listed as                    present in the area in and around                      behaviors (while in water or hauled out
                                                  threatened under the Endangered                         Minhoto Marsh, Parsons Slough,                         on pickleweed), and changes in foraging
                                                  Species Act of 1973, as amended (ESA)                   Yampah Marsh, and the portion of                       patterns. Impacts of the proposed
                                                  (42 FR 2965; January 14, 1977), and,                    Elkhorn Slough Channel that could be                   project are limited to behavioral
                                                  because of their threatened status, are                 exposed to construction-related noise or               disturbance that may reach the
                                                  considered ‘‘depleted’’ under the                       disturbance (ESA/ESNERR 2016). Three                   threshold of Level B harassment. These
                                                  MMPA. The State of California also                      main sea otter resting locations occur in              impacts could result from airborne noise
                                                  recognizes the sea otter as a fully                     these areas: One in the Parsons Slough                 and visual disturbance caused by the
                                                  protected mammal (Fish and Game                         Complex near the Avila Property and                    presence of construction equipment and
                                                  Code section 4700) and as a protected                   two near Yampah Island, southwest of                   workers over a period of 11 months and
                                                  marine mammal (Fish and Game Code                       the Union Pacific Railroad Bridge (see                 (if sheet pile installation is required)
                                                  section 4500). All members of the sea                   Figure 4–3 of ESA/ESNERR 2016; note                    from underwater noise caused by
                                                  otter population in California are                      that one marker is used to represent the               vibratory pile driving over a 4-day
                                                  descendants of a small group that                       two Yampah Island resting areas, which                 period.
                                                  survived the fur trade and persisted near               are located immediately to the west and                   Relatively little is known regarding
                                                  Big Sur, California. Historically ranging               east of its location on the map). Each of              the effects of noise on sea otters, but
                                                  from at least as far north as Oregon                    these areas consists of a territorial male             they have not been reported to be
                                                  (Valentine et al. 2008) to Punta                        and females with or without pups. Up                   particularly sensitive to noise
                                                  Abreojos, Baja California, Mexico, in the               to 35 sea otters were observed within                  disturbance, especially in comparison to
                                                  south, sea otters currently occur in only               the Parsons Slough Complex and                         other marine mammals (Riedman 1983,
                                                  two areas of California. The mainland                   Yampah Marsh during monitoring for an                  1984). Many marine mammals depend
                                                  population ranges from San Mateo                        earlier project (ESNERR 2011). The                     on acoustic cues for vital biological
                                                  County to Santa Barbara County, and a                   closest area of concentrated sea otter                 functions, such as orientation,
                                                  translocated population exists at San                   activity to the project footprint is in                communication, locating prey, and
                                                  Nicolas Island, Ventura County. The                     Yampah Marsh, approximately 800 feet                   avoiding predators. However, sea otters
                                                  most recent (2016) California-wide                      to the northeast (ESA/ESNERR 2016).                    are not known to use acoustic
                                                  index of abundance is 3,272 individuals                 The Yampah Marsh area is used heavily                  information to orient or to locate prey,
                                                  (www.werc.usgs.gov/seaottercount).                      by females with and without pups for                   nor are they known to communicate
                                                  Additional general information on                       resting, hauling out, grooming, and (for               underwater. Ghoul and Reichmuth
                                                  status and trends of the southern sea                   females with pups) nursing (ESA 2016;                  (2014) obtained aerial and underwater
                                                  otter may be found in the stock                         USGS, Monterey Bay Aquarium, and                       audiograms for a captive adult male sea
                                                  assessment report, available at http://                 ESNERR unpublished data).                              otter and evaluated his hearing in the
                                                  www.fws.gov/ventura/endangered/                                                                                presence of noise. In air, the sea otter’s
                                                                                                          Potential Impacts of the Proposed
                                                  species/info/sso.html.                                                                                         hearing was similar to that of a sea lion
                                                     Sea otters occur in Elkhorn Slough                   Action on Sea Otters
                                                                                                                                                                 (Zalophus californianus) but less
                                                  year round. As many as 150 sea otters                      In this section we provide a                        sensitive to high-frequency (greater than
                                                  (mostly male) raft together in the harbor               qualitative discussion of the potential                22 kHz) and low-frequency (less than 2
                                                  at the mouth of Elkhorn Slough, and                     impacts of the proposed project. The                   kHz) sounds than terrestrial mustelids.
                                                  more than 50 females and pups, and a                    ‘‘Estimated Take by Incidental                         Underwater, the sea otter’s hearing was
                                                  few territorial males, utilize protected                Harassment’’ section later in this                     less sensitive than that of sea lions and
                                                  tidal creeks and adjacent waters further                document includes a quantitative                       other pinnipeds, particularly at
                                                  up the slough (Scoles et al. 2012). Sea                 analysis of the number of individuals                  frequencies below 1 kHz. Critical ratios
                                                  otters occur in the harbor, in tidal                    that may be taken by Level B                           were more than 10 dB above those
                                                  channels, and where eelgrass (Zostera                   harassment as a result of this activity.               measured in pinnipeds, suggesting that
                                                  marina) is present. Seal Bend, which is                 Sea otters that have been observed to                  sea otters have a relatively poor capacity
                                                  located approximately 0.8 river miles                   use Minhoto Marsh would be prevented                   to detect acoustic signals in noise.
                                                  west of the proposed project area, is an                from accessing the area and would be                      Observed responses of wild sea otters
                                                  important area for sea otter activity due               displaced to other areas of Elkhorn                    to disturbance are highly variable,
                                                  to the large patch of eelgrass present                  Slough for the duration of the project.                probably reflecting the level of noise
                                                  there. When not disturbed, sea otters                   Sea otters using the marsh areas                       and activity to which they have been
                                                  also frequently come ashore to rest,                    adjacent to the project site for resting               exposed and become acclimated over
                                                  interact, and groom (Scoles et al. 2012).               and foraging would be exposed to                       time and the particular location and
                                                     Sea otters use areas within the project              construction noise and activity, which                 social or behavioral state of that
                                                  footprint minimally (ESA/ESNERR                         could deter them from using these areas                individual (G. Bentall pers. comm.
                                                  2016; USGS, Monterey Bay Aquarium,                      and displace them to adjacent areas of                 2010). Sea otters appeared to be
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                                                  and ESNERR unpublished data). A                         Elkhorn Slough. If sheet pile (rather                  relatively undisturbed by pile driving
                                                  maximum of two sea otters at any one                    than an earthen dam or inflatable dam)                 activities in Elkhorn Slough during the
                                                  time were observed within the project                   is required to isolate the construction                construction of the Parsons Slough Sill
                                                  footprint during pre-project monitoring                 area from tidal waters, vibratory                      (adjacent to the Minoto-Hester Marsh),
                                                  conducted in 2013 (Beck 2014). These                    hammering would increase ambient                       with many showing no response to pile
                                                  animals were observed resting in water                  noise levels at the site for 4 days. Noise             driving and generally reacting more
                                                  in area M3 of Minhoto Marsh (see                        generated by vibratory pile driving                    strongly to passing vessels associated


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                                                                               Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices                                             6631

                                                  with construction than to the sounds of                 otariid pinnipeds (e.g., sea lions) (NMFS              determine that one or more of these
                                                  machinery (ESNERR 2011). Sea otters in                  2016) and 120 dB re 1 mPa (received                    thresholds are not applicable to sea
                                                  Elkhorn Slough are likely acclimated to                 level) as the threshold for Level B                    otters.
                                                  loud noises, as they occupy an area near                harassment. For airborne noise, NMFS
                                                                                                                                                                 Potential Effects of the Proposed Action
                                                  an active railroad track, which produces                uses 100 dB re 20 mPa (received level)                 on Sea Otter Habitat
                                                  in-air sound levels comparable to those                 as a guideline, but not formal threshold,
                                                  produced by the vibratory driving of H                  for the onset of Level B harassment for                   Habitat within the project footprint
                                                  piles (ESNERR 2011). Approximately                      pinnipeds other than harbor seals (79                  would be inaccessible to sea otters for
                                                  15–20 trains pass through Elkhorn                       FR 13991; March 12, 2014). NMFS does                   the duration of construction. However,
                                                  Slough each day within 400 feet of the                  not have a guideline for the onset of                  these impacts would be minimal, as past
                                                  easternmost portion of the project area                 Level A harassment of pinnipeds by                     surveys documented a maximum of two
                                                  (Vinnedge Environmental Consulting                      airborne noise (A. Scholik-Schlomer,                   sea otters using this area. Construction
                                                  2010). A vehicle dismantling and                        Office of Protected Resources, Marine                  activity would result in a slight
                                                  recycling yard is located approximately                 Mammal and Sea Turtle Conservation                     increased risk of accidental water
                                                  300 feet from the project area.                         Division, pers. comm. 2014). However,                  contamination from equipment
                                                     The proposed construction activity                   Southall et al. (2007) propose an injury               refueling, fluid leakage, or maintenance
                                                  may generate airborne noise above                       criterion for sea lions exposed to                     activities within or near water bodies.
                                                  ambient levels or create a visual                       airborne noise of 172.5 dB re 20 mPa.                  Leaks or spills of petroleum
                                                  disturbance (during typical construction                   In the absence of sufficient data on                hydrocarbon products found in
                                                  hours/workdays) for a period of 11                                                                             construction equipment could have
                                                                                                          which to base noise exposure thresholds
                                                  months. However, only work in the                                                                              adverse effects on sea otters by
                                                                                                          specific to sea otters, but in light of
                                                  northern and eastern portions of                                                                               contaminating their fur (interfering with
                                                                                                          experimental evidence suggesting that
                                                  Minhoto Marsh would be expected to                                                                             thermoregulation) and through ingestion
                                                                                                          the hearing sensitivities of sea lions and
                                                  disturb sea otters due to their proximity                                                                      during grooming. Vibratory pile driving
                                                                                                          sea otters are generally comparable
                                                  to the adjacent areas used by sea otters.                                                                      (if required by the project) would not be
                                                                                                          (although, as noted above, sea otter
                                                  Work in these portions of the marsh                                                                            expected to alter the availability of prey
                                                                                                          hearing appears to be less sensitive than
                                                  would likely be accomplished within                                                                            species to sea otters in the waters or
                                                                                                          sea lion hearing underwater), we use the
                                                  approximately 6 months (132                                                                                    marshlands adjacent to the project site
                                                                                                          thresholds, guidelines, and criteria
                                                  construction days). Airborne noise                                                                             because these species are largely sessile
                                                  produced by heavy earth-moving                          applicable to sea lions as proxies. With
                                                                                                          regard to underwater noise, we use the                 benthic invertebrates. The proposed
                                                  equipment such as backhoes and front-                                                                          action would permanently alter habitat
                                                  end loaders may produce sound levels                    thresholds adopted by NMFS for sea
                                                                                                          lions to evaluate whether noise                        within the footprint of the construction
                                                  of 80–90 dB re 20mPa at 50 feet (Federal                                                                       area, but the restoration of salt marsh
                                                  Highway Administration 2015).                           exposure levels would constitute Level
                                                                                                          A or Level B harassment of sea otters.                 would benefit sea otters over the longer
                                                  Vibratory driving of steel sheet piles,                                                                        term by providing additional high-
                                                  which may occur during 4 of the 136                     With regard to airborne noise, we use
                                                                                                          the guideline that NMFS uses for                       quality habitat within Elkhorn Slough
                                                  total days of construction, is expected to                                                                     for hauling out and foraging.
                                                  produce maximum airborne sound                          pinnipeds other than harbor seals to
                                                  levels of 97 dBA re 20mPa at 33 feet and                evaluate whether anticipated exposure                  Potential Impacts on Subsistence Needs
                                                  90 dBA re 20mPa at 98 feet (where dBA                   levels resulting from this project would                 The subsistence provision of the
                                                  refers to dB with A-weighting designed                  constitute Level B harassment of sea                   MMPA does not apply.
                                                  to match the average frequency response                 otters and the injury criterion proposed
                                                                                                          in Southall et al. (2007) for sea lions to             Mitigation Measures
                                                  of human hearing, which enables
                                                  comparison of the intensity of noises                   evaluate whether the anticipated                          CDFW has proposed the following
                                                  with different frequency characteristics)               airborne noise exposures would                         measures to prevent Level A harassment
                                                  (ESNERR 2011). Vibratory driving of                     constitute Level A harassment.                         (injury) and to reduce the extent of
                                                  sheet piles would generate underwater                   Specifically, we use 219 dB re 1 mPa as                potential effects from Level B
                                                  noise to which sea otters in the vicinity               the threshold for Level A harassment                   harassment (disturbance) to marine
                                                  would be exposed while diving or                        underwater and 120 dB re 1 mPa (for                    mammals.
                                                  performing other behaviors that cause                   non-impulse sources) as the threshold                     1. A Service- and NMFS-approved
                                                  immersion of the ears. However,                         for Level B harassment underwater.                     biologist would conduct mandatory
                                                  because of acoustic shadowing due to                    Similarly, we adopt for sea otters the                 biological resources awareness training
                                                  the winding configuration of Elkhorn                    100 dB re 20 mPa guideline that NMFS                   for construction personnel. The
                                                  Slough, underwater sound transmission                   uses for in-air Level B harassment of                  awareness training would be provided
                                                  would be relatively limited. The likely                 pinnipeds other than harbor seals. We                  to all construction personnel to brief
                                                  extent of transmission of sound                         use the Southall et al. (2007) criterion of            them on the need to avoid effects on
                                                  exceeding 120 dB re 1 mPa is pictured                   172.5 dB re 20 mPa for sea lions to                    marine mammals. If new construction
                                                  in Figure 6–4 of ESA/ESNERR (2016).                     approximate the airborne noise levels                  personnel are added to the project, the
                                                     NMFS employs acoustic exposure                       that may cause injury to sea otters.                   contractor would ensure that the
                                                  criteria to define Level A harassment                   Given that sea otters are not known to                 personnel receive the mandatory
                                                  (injury) and Level B harassment                         use sound to communicate underwater,                   training before starting work.
                                                  (disturbance) resulting from sound for                  to orient, or to locate prey, and given sea               2. A biological monitor approved by
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                                                  the marine mammal species under its                     otters’ decreased sensitivity to                       the Service and NMFS would monitor
                                                  jurisdiction. For underwater non-                       underwater noise relative to that of sea               for marine mammal disturbance.
                                                  impulsive noise (which includes                         lions, we acknowledge that these                       Monitoring would occur at all times
                                                  vibratory pile driving and removal),                    thresholds are likely highly                           when work is occurring: (a) In water, (b)
                                                  NMFS uses 219 dB re 1 mPa (cumulative                   conservative. As additional behavioral                 north of a line starting at 36°48′38.91 N.
                                                  24-hour sound exposure level) as the                    or other data on sea otter responses to                121°45′08.03 W. and ending 36°48′38.91
                                                  threshold for Level A harassment of                     sound become available, we may                         N. 121°45′27.11 W., or (c) within 100


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                                                  6632                         Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices

                                                  feet of tidal waters. When work is                      If they are not leaving the work area on               concentrated sea otter activity (the
                                                  occurring in other areas, monitoring                    their own, coordination with NMFS or                   closest such area, Yampah Marsh, is
                                                  would be implemented for at least the                   the Service (as appropriate) would occur               approximately 800 feet away), it is
                                                  first 3 days of construction. Monitoring                to ensure a government official be                     likely that few sea otters will be exposed
                                                  would continue until there are 3                        present should an animal require                       to noise levels exceeding the 100 dB re
                                                  successive days of no observed                          flushing from within the footprint of the              20 mPa threshold. The area potentially
                                                  disturbance, at which point monitoring                  construction area.                                     subject to visual disturbance from
                                                  would be suspended. Monitoring would                       8. Fuel storage and all fueling and                 construction activity is larger than and
                                                  resume when there is a significant                      equipment maintenance activities                       inclusive of the area potentially exposed
                                                  change in activities or location of                     would be conducted at least 100 feet                   to airborne sound exceeding the
                                                  activities within the project area or if                from subtidal and intertidal habitat.                  threshold for Level B harassment.
                                                  there is a gap in construction activities               Monitoring and Reporting                               Accordingly, we do not evaluate the
                                                  of more than 1 week. In these cases,                                                                           number of sea otters exposed to airborne
                                                  monitoring would again be                                 CDFW would follow a detailed                         noise separately from the number of sea
                                                  implemented for at least the first 3 days               monitoring plan developed in                           otters exposed to visual disturbance.
                                                  of construction and would not be                        consultation with the Service and                         Vibratory pile driving (if required)
                                                  suspended until there are 3 successive                  NMFS. A Service- and NMFS-approved                     would generate visual disturbance and
                                                  days of no observed disturbance. The                    biological monitor would monitor for                   in-air and underwater noise for a period
                                                  biological monitor would have the                       marine mammal disturbance.                             of 4 days. The portion of Elkhorn
                                                  authority to stop project activities if                 Monitoring would occur as described in                 Slough Channel that could be exposed
                                                  marine mammals approach or enter the                    Mitigation Measure #2 above.                           to underwater noise of 120 dB re 1 mPa
                                                  exclusion zone. Biological monitoring                   Throughout construction activities that                or greater during pile driving is pictured
                                                  would begin 0.5-hour before work                        require a monitor, the biological                      in Figure 6–4 of ESA/ESNERR (2016).
                                                  begins and will continue until 0.5-hour                 monitor would maintain a log that                      An estimated 15 sea otters may use this
                                                  after work is completed each day. Work                  documents numbers of marine                            portion of the channel for foraging or
                                                  would commence only with approval of                    mammals present before, during, and at                 traveling from one location to another.
                                                  the biological monitor to ensure that no                the conclusion of daily activities. The                The area that could potentially be
                                                  marine mammals are present in the                       monitor would record basic weather                     affected by visual disturbance and in-air
                                                  exclusion zone.                                         conditions and marine mammal                           noise of 100 dB re 20 mPa or greater
                                                     3. To reduce the risk of potentially                 behavior. A final report would be                      during pile driving includes Minhoto
                                                  startling marine mammals with a                         submitted to the Service and NMFS                      Marsh, Parsons Slough, and Yampah
                                                  sudden intensive sound, the                             within 90 days of the conclusion of                    Marsh, which are utilized by an average
                                                  construction contractor would begin                     monitoring efforts. The report would                   of 35 sea otters (ESA/ESNERR 2016). Up
                                                  construction activities gradually each                  detail the monitoring protocol,                        to 50 sea otters may be present on land
                                                  day by moving around the project area                   summarize the data recorded during                     or in water and potentially affected by
                                                  and starting tractors one at a time.                    monitoring, and contain an estimate of                 vibratory pile driving for 4 days,
                                                     4. Biological monitors would have                    the number of marine mammals, by                       resulting in an estimated 200 instances
                                                  authority to stop construction at any                   species, that may have been harassed.                  of take.
                                                  time for the safety of any marine                                                                                 After sheet piles are installed (or if an
                                                                                                          Estimated Take by Incidental
                                                  mammals.                                                                                                       earthen dam or an inflatable dam is
                                                     5. In-water construction work would                  Harassment
                                                                                                                                                                 used instead), the project site would be
                                                  occur only during daylight hours when                      Based on the proposed construction                  isolated from aquatic areas, and sea
                                                  visual monitoring of marine mammals                     methodology and mitigation, including                  otters would no longer be able to access
                                                  can be implemented. No in-water work                    use of an exclusion zone, no Level A                   the work area. At that time, sea otters
                                                  would be conducted at night.                            harassment of southern sea otters is                   outside of the work area would be
                                                     6. If sheet piles are used to isolate                anticipated as a result of the proposed                subject to reduced levels of disturbance.
                                                  construction activities from tidal action,              project. Anticipated received noise                    An average of 10 sea otters per day (a
                                                  all piles would be installed using a                    levels would remain well below the                     subset of the 50 that may be affected by
                                                  vibratory pile driver, and an exclusion                 thresholds established for Level A                     vibratory pile driving) could be affected
                                                  zone would be implemented. Because                      harassment. Behavioral harassment                      by visual disturbance and in-air noise of
                                                  the area within which underwater                        (Level B) could result from visual                     100 dB re 20 mPa or greater during the
                                                  sound pressure levels are expected to                   disturbance and in-air noise of 100 dB                 subsequent 132 days of construction
                                                  reach or exceed 190 dB re 1 mPa is less                 re 20 mPa or greater for a period of 132               work in the northern and eastern
                                                  than a foot, the radius of the exclusion                days and (if pile driving is required by               portions of the Minhoto Marsh,
                                                  zone would be set at a minimum of 49                    the project) visual disturbance, in-air                resulting in approximately 1,320 takes.
                                                  feet to prevent the injury of marine                    noise of 100 dB re 20 mPa or greater, and
                                                  mammals from machinery. Pile                            underwater continuous noise of 120 dB                  Findings
                                                  extraction or driving would not                         re 1 mPa or greater for a period of 4 days.              We propose the following findings
                                                  commence (or re-commence following a                       In order to quantify take that may                  regarding this action:
                                                  shutdown) until marine mammals are                      occur incidental to the specified
                                                  not sighted within the exclusion zone                   activity, we determine the area that may               Negligible Impact
                                                  for a 15-minute period. If a marine                     be subject to project-related disturbance,               We find that any incidental take by
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                                                  mammal enters the exclusion zone                        estimate the number of sea otters likely               harassment that is reasonably likely to
                                                  during sheet pile work, work would                      to be present in that area, and multiply               result from the proposed project would
                                                  stop until the animal leaves the                        the number of sea otters by the number                 not adversely affect the southern sea
                                                  exclusion zone.                                         of days they could be disturbed during                 otter by means of effects on rates of
                                                     7. If marine mammals are present                     the project. Because airborne noise                    recruitment or survival, and would,
                                                  within the work area, they would be                     attenuates rapidly, and because of the                 therefore, have no more than a
                                                  allowed to leave on their own volition.                 distance of the project site from areas of             negligible impact on the species or stock


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                                                                               Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices                                             6633

                                                  (all southern sea otters are considered to              the potential impacts of the authorized                Government-To-Government Relations
                                                  belong to a single stock). In making this               activities, as well as mitigation                      With Native American Tribal
                                                  finding, we considered the best                         measures designed to minimize                          Governments
                                                  available scientific information,                       interactions with, and impacts to, sea                    In accordance with the President’s
                                                  including: (1) The biological and                       otters.                                                memorandum of April 29, 1994,
                                                  behavioral characteristics of the species;
                                                                                                          Small Numbers                                          ‘‘Government-to-Government Relations
                                                  (2) information on distribution and
                                                                                                                                                                 with Native American Tribal
                                                  abundance of sea otters within the area
                                                                                                            For small numbers take analysis, the                 Governments’’ (59 FR 22951), Executive
                                                  of the proposed activity; (3) the
                                                                                                          statute and legislative history do not                 Order 13175, Secretarial Order 3206,
                                                  potential sources of disturbance during
                                                                                                          expressly require a specific type of                   Department of the Interior Secretarial
                                                  the proposed activity; and (4) the
                                                                                                          numbers analysis, leaving the                          Order 3317 of December 1, 2011 (Tribal
                                                  potential response of sea otters to
                                                                                                          determination of ‘‘small’’ to the agency’s             Consultation and Policy), the
                                                  disturbance.
                                                     The estimated 200 potential takes                    discretion. The sea otter population in                Department of the Interior’s manual at
                                                  (affecting up to 50 sea otters per day)                 California consists of approximately                   512 DM 2, and the Native American
                                                  during a total of 4 days of vibratory pile              3,272 animals. The number of sea otters                Policy of the Service, January 20, 2016,
                                                  driving, if required by the project, and                that could potentially be taken by                     we readily acknowledge our
                                                  1,320 potential takes (affecting up to 10               harassment in association with the                     responsibility to communicate
                                                  sea otters per day over a period of 132                 proposed project, approximately 50                     meaningfully with federally recognized
                                                  days) during subsequent construction                                                                           Tribes on a Government-to-Government
                                                                                                          animals, is 1.5 percent of the population
                                                  activity are expected to result in                                                                             basis. We have evaluated possible
                                                                                                          size. We find that the number of sea
                                                  negligible impact for the following                                                                            effects on federally recognized Indian
                                                                                                          otters utilizing the affected area is small            Tribes and have determined that there
                                                  reasons: Received noise levels would                    relative to the size of the population.
                                                  remain well below the thresholds                                                                               are no effects.
                                                  established for Level A harassment; sea                 Impact on Subsistence                                  Proposed Authorization
                                                  otters do not appear to be particularly
                                                  sensitive to noise (and often do not react                The subsistence provision of the                        The Service proposes to issue CDFW
                                                  visibly to it); and any behavioral                      MMPA does not apply to southern sea                    an IHA for the nonlethal, incidental,
                                                  reactions to noise or visual disturbance                otters.                                                unintentional take by level B
                                                  are expected to be temporary and of                                                                            harassment of small numbers of
                                                                                                          Endangered Species Act                                 southern sea otters while the applicant
                                                  short duration. In particular, the
                                                  estimate of the number of sea otters that                 The proposed activity will occur                     is completing the Minhoto-Hester Marsh
                                                  could be harassed by exposure to                        within the range of the southern sea                   Restoration Project in Elkhorn Slough,
                                                  project-related underwater sound based                                                                         Monterey County, California. The 1-year
                                                                                                          otter, which is listed as threatened
                                                  on the 120 dB threshold may overstate                                                                          authorization would begin on the date
                                                                                                          under the ESA. CDFW has requested a
                                                  impacts because this threshold is                                                                              of issuance, with an anticipated project
                                                                                                          Pre-Construction Notification (PCN)                    start date between January 2017 and
                                                  sometimes at or even below the ambient                  under U.S. Army Corps of Engineers’
                                                  noise level in certain locations.                                                                              June 2017. Authorization for incidental
                                                                                                          (Corps’) Nationwide Permit (NWP) 27                    take beyond the 1-year period would
                                                  Additionally, disturbance resulting from                (USACE 2012). The Corps has initiated
                                                  project activities would affect only a                                                                         require a request for renewal.
                                                                                                          interagency consultation under section                    The final IHA would incorporate the
                                                  small portion of the sea otter habitat
                                                                                                          7 of the ESA with the Service’s Ventura                mitigation, monitoring, and reporting
                                                  available to and used by sea otters in
                                                  Elkhorn Slough.                                         Fish and Wildlife Office. We will also                 requirements discussed in this proposal.
                                                     The mitigation measures outlined                     complete intra-Service section 7                       The applicant would be responsible for
                                                  above are intended to minimize the                      consultation on our proposed issuance                  following those requirements. This
                                                  number of sea otters that could be                      of the IHA.                                            authorization would not allow the
                                                  disturbed by the proposed activity. Any                                                                        intentional taking of sea otters, nor take
                                                                                                          National Environmental Policy Act
                                                  impacts to individuals are expected to                                                                         by injury or death.
                                                                                                          (NEPA)
                                                  be limited to Level B harassment of                                                                               If the level of activity exceeded that
                                                  short duration. Responses of sea otters                    The types of impacts associated with                described by the applicant, or the level
                                                  to disturbance would most likely be                     aquatic habitat restoration,                           or nature of take exceeded those
                                                  common behaviors such as diving and/                    establishment, and enhancement                         projected here, the Service would
                                                  or swimming away from the source of                     activities are described in NWP 27. The                reevaluate its findings. The Secretary
                                                  the disturbance. No take by injury or                   analyses in the NWP and the                            may modify, suspend, or revoke an
                                                  death is anticipated. Because any Level                                                                        authorization if the findings are not
                                                                                                          coordination undertaken prior to its
                                                  B harassment that occurs would be of                                                                           accurate or the mitigation, monitoring,
                                                                                                          issuance fulfill the requirements of
                                                  short duration, and because no take by                                                                         and reporting requirements described in
                                                  injury or death is anticipated, we find                 NEPA (42 U.S.C. 4321 et seq.). The
                                                                                                                                                                 this notice are not being met.
                                                  that the anticipated harassment caused                  Service will review the Decision
                                                                                                          Document for NWP 27 and decide either                  Request for Public Comments
                                                  by the proposed activities is not
                                                  expected to adversely affect the species                to adopt it or to prepare its own NEPA                    The Service requests that interested
                                                  or stock through effects on annual rates                document before making a                               persons submit comments and
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                                                  of recruitment or survival.                             determination on the issuance of an                    information concerning this proposed
                                                     Our finding of negligible impact                     IHA. Our analysis will be completed                    IHA. For information on the references
                                                  applies to incidental take associated                   prior to issuance or denial of the IHA                 cited in this notice, see ADDRESSES.
                                                  with the proposed activity as mitigated                 and will be available at http://                          Consistent with section
                                                  through this authorization process. This                www.fws.gov/ventura/endangered/                        101(a)(5)(D)(iii) of the MMPA, we are
                                                  authorization establishes monitoring                    species/info/sso.html.                                 opening the comment period on this
                                                  and reporting requirements to evaluate                                                                         proposed authorization for 30 days (see


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                                                  6634                         Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Notices

                                                  DATES).  We intend any final action                     Proposed Resource Management Plan                      Environmental Impact Statement
                                                  resulting from this proposal to be as                   (PRMP) and Final Environmental                         (referred to hereafter as the PRMP or
                                                  accurate and as effective as possible.                  Impact Statement (FEIS). The BLM                       plan). The Governor’s consistency
                                                  Therefore, we request comments or                       Director determined not to accept the                  review is an important part of the BLM
                                                  suggestions on this proposed                            recommendations of the Alaska                          land use planning process, and we
                                                  authorization.                                          Governor’s consistency review letter.                  appreciate the significant time and
                                                     We particularly seek comments                        FOR FURTHER INFORMATION CONTACT:                       attention that you and your staff have
                                                  concerning:                                             Leah Baker, Division Chief for Decision                committed to this effort.
                                                     • Whether the proposed                               Support, Planning and NEPA, at 202–                       The BLM developed the Eastern
                                                  authorization, including the proposed                   912–7282. Persons who use a                            Interior PRMP with extensive local
                                                  activities, will have a negligible impact               telecommunications device for the deaf                 involvement. As a result of more than
                                                  on the species or stock of the southern                 (TDD) may call the Federal Relay                       15 months of public comment periods,
                                                  sea otter.                                              Service (FRS) at 1–800–877–8339 to                     we received 590 comments, including
                                                     • Whether there are any additional                   contact the above individual during                    those from the State of Alaska,
                                                  provisions we may wish to consider for                  normal business hours. FRS is available                Chalkyitsik Village Council, Gwichyaa
                                                  ensuring the conservation of the                        24 hours a day, 7 days a week, to leave                Zhee Gwich’in Tribal Government,
                                                  southern sea otter.                                     a message or question with the above                   miners from the Fortymile area, and
                                                     You may submit your comments and                     individual. You will receive a reply                   industry groups. Of the total comments,
                                                  materials concerning this proposed                      during normal business hours.                          171 submissions were from rural Alaska
                                                  authorization by one of the methods                                                                            residents who qualify as Federal
                                                                                                          SUPPLEMENTARY INFORMATION: On July
                                                  listed in ADDRESSES. Before including                                                                          subsistence users. All of these
                                                                                                          29, 2016, the BLM released the PRMP                    stakeholder groups provided important
                                                  your address, phone number, email                       and FEIS for the Eastern Interior
                                                  address, or other personal identifying                                                                         information about their current and
                                                                                                          Resource Management Plan in Alaska.                    anticipated future uses of the lands in
                                                  information in your comment, you                        In accordance with the regulations at 43
                                                  should be aware that your entire                                                                               the planning area.
                                                                                                          CFR 1610.3–2(e), the BLM submitted the                    I believe that this effort has led to the
                                                  comment—including your personal                         PRMP and FEIS for a 60-day Governor’s
                                                  identifying information—may be made                                                                            creation of a strong resource
                                                                                                          Consistency Review. On September 28,                   management plan that properly balances
                                                  publicly available at any time. While                   2016, the Governor of Alaska submitted
                                                  you can ask us in your comment to                                                                              responsible development with the
                                                                                                          a Governor’s Consistency Review letter                 protection and conservation of
                                                  withhold your personal identifying                      to the BLM Alaska State Director
                                                  information from public review, we                                                                             subsistence use, important habitats for
                                                                                                          asserting inconsistencies between the                  fish and wildlife, and other special
                                                  cannot guarantee that we will be able to                PRMP and State land use plans,                         values in the planning area. For
                                                  do so.                                                  programs, and policies.                                example, the plan recommends opening
                                                    Authority: We issue this notice under the                After careful consideration of the                  more than one million acres of
                                                  authority of the MMPA (16 U.S.C. 1371 et                concerns raised in the Governor’s                      currently-withdrawn lands to mineral
                                                  seq.).                                                  Consistency Review letter, the State                   location, entry, and leasing, while also
                                                    Dated: January 6, 2017.                               Director decided not to adopt the                      providing protection of priority habitats
                                                  Paul Souza,                                             recommendations made by the                            for caribou, Dall sheep, and other
                                                  Regional Director, Pacific Southwest Region.            Governor. On October 12, 2016, the                     wildlife critical for subsistence use.
                                                  [FR Doc. 2017–01271 Filed 1–18–17; 8:45 am]
                                                                                                          State Director sent a written response to                 The applicable regulations at 43 CFR
                                                                                                          the Governor describing the reasons for                1610.3–2(e) provide you with the
                                                  BILLING CODE 4333–15–P
                                                                                                          which the State Director believes that                 opportunity to appeal the State
                                                                                                          the PRMP is consistent with State land                 Director’s decision to not accept the
                                                  DEPARTMENT OF THE INTERIOR                              use plans, policies, and programs.                     recommendations you made in your
                                                                                                             On November 8, 2016, the Governor                   consistency review letter. These
                                                  Bureau of Land Management                               appealed the BLM Alaska State                          regulations also guide my review of
                                                                                                          Director’s decision to not accept his                  your appeal. In reviewing your appeal,
                                                  [17X.LLAKF02000. L16100000. DR0000.                     recommendations to the BLM Director.                   I must first consider whether you have
                                                  LXSS094L0000]                                           In the Governor’s appeal letter, the State             identified inconsistencies with State or
                                                  BLM Director’s Response to the Alaska                   of Alaska requested the BLM Director to                local plans, policies, or programs. If
                                                  Governor’s Appeal of the BLM Alaska                     reconsider the issues and                              such inconsistencies are identified, I
                                                  State Director’s Governor’s                             recommendations raised in the                          then must consider whether your
                                                  Consistency Review Determination for                    Governor’s Consistency Review letter.                  recommendations both address the
                                                  the Eastern Interior Proposed                           The BLM Director issued a final                        inconsistencies and provide for a
                                                  Resource Management Plan and Final                      response to the Governor that declined                 reasonable balance between the national
                                                  Environmental Impact Statement                          to accept the recommendations of the                   interest and the State’s interest.
                                                                                                          Governor and affirmed the BLM State                       In your consistency review letter, you
                                                  AGENCY:   Bureau of Land Management,                    Director’s decision. Pursuant to 43 CFR                identified three key issues that the
                                                  Interior.                                               1610.3–2(e), the basis for the BLM                     Alaska State Director determined to be
                                                  ACTION: Notice.                                         Director’s determination on the                        outside the scope of the Governor’s
                                                                                                          Governor’s appeal is published verbatim                consistency review: The PRMP is
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                                                  SUMMARY:   This notice contains the                     below.                                                 inconsistent with Federal statutes
                                                  Director of the Bureau of Land                             ‘‘This letter addresses your appeal of              implementing the goals of the Alaska
                                                  Management’s (BLM) response to the                      the response provided by the Bureau of                 Statehood Act that protect the State’s
                                                  Alaska Governor’s appeal of the BLM                     Land Management (BLM) Alaska State                     resource management responsibilities;
                                                  Alaska State Director’s response to the                 Director regarding your consistency                    the PRMP is inconsistent with previous
                                                  State of Alaska’s Governor’s consistency                review of the Eastern Interior Proposed                BLM plans and the BLM’s multiple use
                                                  review letter for the Eastern Interior                  Resource Management Plan and Final                     mandate; and the PRMP frustrates the


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Document Created: 2018-02-01 15:15:26
Document Modified: 2018-02-01 15:15:26
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of receipt of application and proposed incidental harassment authorization; request for comments.
DatesComments and information must be received by February 21, 2017.
ContactLilian Carswell, Southern Sea Otter Recovery & Marine Conservation Coordinator, (805) 612-2793, or by email at [email protected]
FR Citation82 FR 6627 

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