Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Pacific Gas & Electric Sediment Remediation Project, San Francisco Bay

SUPPLEMENTARY INFORMATION:

Background

The Marine Mammal Protection Act (MMPA) prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the 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 promulgated or, if the taking is limited to harassment, an incidental harassment authorization is issued.

Authorization for incidental takings shall be granted if NMFS finds 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 taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to here as “mitigation measures”). NMFS must also prescribe requirements pertaining to monitoring and reporting of such takings. The definition of key terms such as “take,” “harassment,” and “negligible impact” can be found in the MMPA and the NMFS's implementing regulations (see 16 U.S.C. 1362; 50 CFR 216.103).

NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) indicate that IHAs may be renewed for additional periods of time not to exceed 1 year for each reauthorization. In the notice of proposed IHA for the initial IHA, NMFS described the circumstances under which we would consider issuing a renewal for this activity, and requested public comment on a potential renewal under those circumstances. Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year renewal of an IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical, or nearly identical, activities as described in the Detailed Description of Specified Activities section of the initial IHA issuance notice is planned or (2) the activities as described in the Description of the Specified Activities and Anticipated Impacts section of the initial IHA issuance notice would not be completed by the time the initial IHA expires and a renewal would allow for completion of the activities beyond that described in the DATES section of the notice of issuance of the initial IHA, provided all of the following conditions are met:

1. A request for renewal is received no later than 60 days prior to the needed renewal IHA effective date (recognizing that the renewal IHA expiration date cannot extend beyond 1 year from expiration of the initial IHA).

2. The request for renewal must include the following:

• An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (e.g., reduction in pile size) that the changes do not affect the previous analyses, mitigation and monitoring requirements, or take estimates (with the exception of reducing the type or amount of take); and
• A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.

3. Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.

An additional public comment period of 15 days (for a total of 45 days), with direct notice by email, phone, or postal service to commenters on the initial IHA, is provided to allow for any additional comments on the proposed renewal. A description of the renewal process may be found on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any comments received on the potential renewal, along with relevant comments on the initial IHA, have been considered in the development of this proposed IHA renewal, and a summary of agency responses to applicable comments is included in this notice. NMFS will consider any additional public comments prior to making any final decision on the issuance of the requested renewal, and agency responses will be summarized in the final notice of our decision.

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 ( i.e., the issuance of an IHA) with respect to potential impacts on the human environment.

This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental take authorizations with no anticipated serious injury or mortality) 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. Accordingly, NMFS determined that the issuance of the initial IHA qualified to be categorically excluded from further NEPA review. NMFS has preliminarily determined that the application of this categorical exclusion remains appropriate for this renewal IHA.

History of Request

On January 30, 2024, NMFS issued an IHA to PG&E to take marine mammals incidental to construction associated with sediment remediation in San Francisco Bay, CA (89 FR 5865), effective from May 1, 2024, through April 30, 2025. On September 26, 2024, NMFS received an application for the renewal of that initial IHA. As described in the application for renewal IHA, the activities for which incidental take is requested are nearly identical to those covered in the initial IHA. Although PG&E anticipates that construction will begin during the timeframe of the initial IHA, no work has yet commenced and therefore no preliminary monitoring data are available.

Description of the Specified Activities and Anticipated Impacts

The planned activities are nearly identical to those analyzed in the initial IHA. As the first phase of a 5- to 7-year project to remediate sediments impacted with polycyclic aromatic hydrocarbons (PAHs) in San Francisco Bay, PG&E is planning to install hydroacoustic data collection piles, piles to attach a turbidity curtain, sediment pins to promote slope stability, and install and remove piles to relocate the Red and White Fleet (RWF). A detailed description of these activities can be found in the Notice of the Proposed IHA (88 FR 82836, November 27, 2023). Under the initial IHA, eight 24-inch steel shell piles and eight 36-inch steel shell piles were to be installed and removed for the RWF Relocation. Under the renewal IHA, PG&E proposes to install and remove 10 24-inch piles and 10 36-inch steel shell piles for the RWF Relocation. No more than four of each of these piles would be installed or removed per day. As analyzed in the initial IHA, installation of these piles would be done through primarily vibratory pile driving with impact pile driving only as needed to seat the piles. Removal would be through vibratory methods. The remainder of the work would be identical to that of the initial IHA, and the total proposed number of days of in-water work would be the same.

Under the initial IHA, take by Level B harassment from pile driving was authorized for harbor seal ( Phoca vitulina), northern elephant seal ( Mirounga angustirostris), California sea lion ( Zalophus californianus), northern fur seal ( Callorhinus ursinus), Steller sea lion ( Eumetopias jubatus), bottlenose dolphin ( Tursiops truncatus), and harbor porpoise ( Phocoena phocoena). Under the renewal IHA, NMFS proposes to take, by Level B harassment, the same number of these species as were authorized under the initial IHA.

Documents related to the initial IHA including the Federal Register notices for the proposed IHA (88 FR 82836, November 27, 2023) and final IHA (89 FR 5865, January 30, 2024) and PG&E's application can be found at https://www.fisheries.noaa.gov/action/incidental-take-authorization-pacific-gas-electric-sediment-remediation-project-san.

Detailed Description of the Activity

A detailed description of the pile driving activities for which take is proposed here may be found in the notices of the proposed and final IHAs (88 FR 82836, November 27, 2023; 89 FR 5865, January 30, 2024) for the initial authorization. The location, timing, and nature of the activities, including the types of equipment planned for use, are identical to those described in the previous notices.

The only minor change that PG&E proposes for this renewal IHA is the addition of two 24-inch and two 36-inch steel shell piles in the RWF relocation, which would be installed with vibratory pile driving and impact pile driving only as needed to seat the piles. The piles would be removed with vibratory methods. The addition of these piles would not change the proposed number of in-water work days (50 days; see table 1). The proposed renewal would be effective for a period not exceeding 1 year from the date of expiration of the initial IHA. The effective dates would be from May 1, 2025, to April 30, 2026.