Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Duckabush Estuary Restoration Project in Washington

DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 217</CFR> <DEPDOC>[Docket No. 250813-0139]</DEPDOC> <RIN>RIN 0648-BN42</RIN> <SUBJECT>Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Duckabush Estuary Restoration Project in Washington</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Proposed rule, request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS has received a request from the U.S. Army Corps of Engineers (USACE) for incidental take regulations (ITR) and a Letter of Authorization (LOA) pursuant to the Marine Mammal Protection Act. The requested regulations would govern the authorization of take of small numbers of marine mammals over 5 years (2026-2031) incidental to the Duckabush Estuary Restoration Project (DERP) in Hood Canal, Washington. NMFS requests public comments and will consider them prior to making any final decision on the requested ITR and issuance of the LOA; agency responses to comments will be summarized in the final rule, if issued. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments and information must be received no later than September 15, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> A plain language summary of this proposed rule is available at: <E T="03">https://www.regulations.gov/docket/NOAA-NMFS-2025-0636.</E> • <E T="03">Electronic Submissions:</E> Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to <E T="03">https://www.regulations.gov</E> and enter NOAA-NMFS-2025-0636 in the Search box (note: copying and pasting the FDMS Docket Number directly from this document may not yield search results). Click on the “Comment” icon, complete the required fields, and enter or attach your comments. <E T="03">Instructions:</E> Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing at: <E T="03">https://www.regulations.gov</E> without change. All personal identifying information ( <E T="03">e.g.,</E> name, address, <E T="03">etc.</E> ), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> A copy of the USACE's application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: <E T="03">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-army-corps-engineers-duckabush-estuary-restoration-project.</E> In case of problems accessing these documents, please call the contact listed above (see <E T="02">FOR FURTHER INFORMATION CONTACT</E> ). <HD SOURCE="HD1">Purpose and Need for Regulatory Action</HD> This proposed rule, if adopted, would establish a framework under the authority of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 <E T="03">et seq.</E> ) to authorize, for a 5-year period (2026-2031), take of marine mammals incidental to the USACE's construction activities associated with the DERP. NMFS received an application (the application) from the USACE requesting 5-year regulations and an LOA to take a single species of marine mammals. Take would occur by Level B harassment only incidental to construction activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “Level B harassment” as any act of pursuit, torment, or annoyance, which 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. Take by Level A harassment is not anticipated or proposed for authorization. Similarly, no mortality or serious injury is anticipated or proposed. <HD SOURCE="HD1">Legal Authority for the Proposed Action</HD> The 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 <E T="03">et seq.</E> ) 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, regulations are promulgated, and public notice and an opportunity for public comment are provided. 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 the species or stocks for taking for certain subsistence uses (referred to as “mitigation”). The MMPA sets forth requirements pertaining to the mitigation, monitoring and reporting of the takings. The definitions of all applicable MMPA statutory terms cited above are included in the discussion below. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for proposing and, if appropriate, issuing 5-year regulations and an associated LOA. This proposed rule also establishes required mitigation, monitoring, and reporting requirements for the USACE's activities. <HD SOURCE="HD1">Summary of Major Provisions Within the Proposed Rule</HD> The following is a summary of the major provisions of this proposed rule regarding USACE construction activities. These provisions include measures requiring: • Performance of construction work only during daylight hours when visual monitoring of marine mammals can be implemented; • Gradually increasing time periods dedicated to construction activities each day throughout the day to reduce the risk of potentially startling marine mammals; • Conducting 30 minutes of pre- and post-activity monitoring associated with pile installation or removal activities; • Establishment and monitoring by protected species observers (PSOs) of a 300-meter observation zone for all construction activities; • Halting construction activity: (1) if a marine mammal comes within 10 meters of operations of heavy equipment; or (2) a pup less than one week old comes within 20 meters of where heavy machinery is operating; and • Not initiating construction activities within 300 meters of a mother-pup pair that is hauled out, or within 100 meters of a mother-pup pair in the water. <HD SOURCE="HD1">National Environmental Policy Act</HD> To comply with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 <E T="03">et seq.</E> ) and NOAA Administrative Order (NAO) 216-6A, NMFS must evaluate the proposed action ( <E T="03">i.e.,</E> promulgation of regulations and subsequent issuance of a 5-year LOA) and alternatives with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in Categorical Exclusion B4 (Incidental Harassment Authorizations (IHAs)) with no anticipated serious injury or mortality) of the Companion Manual for NAO 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 has preliminarily determined that issuance of the proposed rule qualifies to be categorically excluded from further NEPA review. Information in the USACE's application and this document collectively provide the environmental information related to proposed issuance of these proposed regulations and subsequent incidental take authorization for public review and comment. We will review all comments submitted in response to this notice of proposed rulemaking prior to concluding our NEPA process and prior to making a final decision on the request for incidental take authorization. <HD SOURCE="HD1">Summary of Request</HD> On April 17, 2024 NMFS received an application from the USACE requesting authorization for the take of marine mammals incidental to construction activities associated with the DERP in Washington. A revised application was submitted on September 27, 2024. We determined the application was adequate and complete on November 19, 2024. On November 25, 2024, we published a notice of receipt of the USACE's application in the <E T="04">Federal Register</E> , requesting comments and information related to the request for 30 days (89 FR 92907). We received no public comments. The USACE requests authorization to take harbor seal ( <E T="03">Phoca vitulina</E> ), by Level B harassment only. The proposed regulations would be valid for 5 years (2026-2031). <HD SOURCE="HD1">Description of Proposed Activity</HD> <HD SOURCE="HD2">Overview</HD> The USACE would be working with the Washington Department of Fish and Wildlife (WDFW) and the Wa ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 95k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━