Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the North Jetty Maintenance and Repairs Project in Coos Bay, Oregon

AGENCY:

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

ACTION:

Notice; issuance of incidental harassment authorization.

SUMMARY:

NMFS has received a request from the U.S. Army Corps of Engineers (USACE) for the re-issuance of a previously issued incidental harassment authorization (IHA) with the only change being effective dates. The initial IHA authorized take of seven species of marine mammals, by Level B harassment only, incidental to construction associated with the Coos Bay North Jetty maintenance and repairs project in Coos Bay, Oregon. The project has been delayed and none of the work covered in the initial IHA has been conducted. The initial IHA was effective from September 1, 2020, through August 31, 2021. The USACE has requested re-issuance with new effective dates of September 1, 2021, through August 31, 2022. The scope of the activities and anticipated effects remain the same, authorized take numbers are not changed, and the required mitigation, monitoring, and reporting remains the same as included in the initial IHA. NMFS is, therefore, issuing a second identical IHA to cover the incidental take analyzed and authorized in the initial IHA.

DATES:

This authorization is effective from September 1, 2021 through August 31, 2022.

ADDRESSES:

An electronic copy of the final 2020 IHA previously issued to the USACE, the USACE's application, and the Federal Register notices proposing and issuing the initial IHA may be obtained by visiting https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-army-corps-engineers-north-jetty-maintenance-and-repairs. In case of problems accessing these documents, please call the contact listed below (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT:

Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

NMFS has defined “negligible impact” in 50 CFR 216.103 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 MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.

Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (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 (Level B harassment).

Summary of Request

On March 18, 2019, NMFS received a request from USACE for two IHAs to take marine mammals incidental to vibratory pile driving and removal associated with the North Jetty maintenance and repairs project, Coos Bay, Oregon over the course of two years with pile installation occurring during Year 1 and pile removal occurring during Year 2. The application was deemed adequate and complete on September 10, 2019. The USACE's request was for take of a small number of seven species of marine mammals by Level B harassment only. Neither USACE nor NMFS expects injury, serious injury or mortality to result from this activity and, therefore, IHAs are appropriate. The USACE, in coordination with the Oregon Department of Fish and Wildlife (ODFW) and NMFS' Northwest Region, plans to conduct pile driving and removal October 1st through February 15th and June 1st and July 31st to minimize effects to listed salmonids. Adherence to the in-water work window is part of USACE's Endangered Species Act (ESA) consultation under Standard Local Operating Procedures for Endangered Species (SLOPES) to administer actions authorized or carried out by the USACE in Oregon (SLOPES IV In-water Over-water Structures). The ODFW will make the final determination of the in-water work window. On January 3, 2020, NMFS issued the two IHAs to the USACE. The Year 1 IHA was effective from September 1, 2020 through August 31, 2021 and the Year 2 IHA was effective July 1, 2022 through June 30, 2023. On February 20, 2021, the USACE notified NMFS that the project had been delayed. None of the work identified in the year 1 IHA (e.g., pile installation) has occurred. The USACE submitted a request for a new identical IHA for Year 1 of construction that would be effective from September 1, 2021 through August 31, 2022, in order to conduct the construction work that was analyzed and authorized through the previously issued IHA (hereafter referred to as the initial IHA). Therefore, re-issuance of the IHA is appropriate.

Summary of Specified Activity and Anticipated Impacts

The planned activities (including mitigation, monitoring, and reporting), authorized incidental take, and anticipated impacts on the affected stocks are the same as those analyzed and authorized through the previously issued IHA.

The purpose of the USACE's construction project is to repair critically damaged sections of the Coos Bay North Jetty, monitor erosion, and to maintain stable deep-draft navigation through the entrance into Coos Bay. Repair activities completed now will reduce the risk of jetty failure or a potential breach of the Coos Bay North Spit (CBNS). The USACE maintains this jetty system and navigational channels, and is planning on conducting major repairs and rehabilitation of the North Jetty. The location, timing, and nature of the activities, including the types of equipment planned for use, are identical to those described in the initial IHA. The mitigation and monitoring are also as prescribed in the initial IHA.

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

We refer to the documents related to the initial IHA, which include the Federal Register notice of the issuance of the initial Year 1 and Year 2 IHAs for the USACE's construction work (85 FR 1140; January 9, 2020), the USACE's application, the Federal Register notice of the proposed IHAs (84 FR 56781; October 23, 2019), and all associated references and documents.

Determinations

The USACE will conduct activities as analyzed in the initial IHA. As described above, the number of authorized takes of the same species and stocks of marine mammals are identical to the numbers that were found to meet the negligible impact and small numbers standards and authorized under the initial IHA and no new information has emerged that would change those findings. The re-issued Year 1 IHA includes identical required mitigation, monitoring, and reporting measures as the initial IHA, and there is no new information suggesting that our analysis or findings should change.

Based on the information contained here and in the referenced documents, NMFS has determined the following: (1) The required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; and (4) the USACE's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action with respect to environmental consequences on the human environment.

Accordingly, NMFS has determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review. This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion.

Endangered Species Act (ESA)

Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally whenever we propose to authorize take for endangered or threatened species.

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

Authorization

NMFS has issued an IHA to the USACE for in-water construction activities associated with the specified activity from September 1, 2021 through August 31, 2022. All previously described mitigation, monitoring, and reporting requirements from the initial Year 1 IHA are incorporated.