The National Marine Fisheries Service, an agency within the National Oceanic and Atmospheric Administration under the Department of Commerce, recently announced the issuance of two Incidental Harassment Authorizations to the City of Kodiak, Alaska. These authorizations are for Phase I and Phase II of the St. Herman Harbor Infrastructure Rebuild Project, a significant undertaking aimed at modernizing essential maritime infrastructure in the region. The authorizations permit the incidental harassment of marine mammals that may occur during the construction activities.
This federal action, formalized on June 15, 2026, by a notice in the Federal Register, signifies a careful balancing act between vital economic development and the stringent federal protections afforded to marine life under the Marine Mammal Protection Act.
Understanding the Marine Mammal Protection Act
The Marine Mammal Protection Act of 1972 generally prohibits the 'take' of marine mammals. This broad term includes not only direct harm or killing but also 'harassment,' defined as any act that has the potential to injure a marine mammal in the wild or to disturb a marine mammal by causing disruption of behavioral patterns, including migration, breathing, nursing, breeding, feeding, or sheltering. However, Section 101(a)(5)(D) of the MMPA allows for exceptions. It permits the incidental, non-intentional taking by harassment of small numbers of marine mammals by U.S. citizens engaging in specified activities, provided that certain conditions are met and findings are made by the Secretary of Commerce, or in this case, by NMFS through delegated authority. These conditions mandate that the activities must have a 'negligible impact' on the species or stock and will not have an 'unmitigable adverse impact' on the availability of the species for subsistence uses, where relevant.
The St. Herman Harbor Project and Its Scope
The City of Kodiak's St. Herman Harbor Infrastructure Rebuild Project is designed to enhance the safety and functionality of a critical harbor in Alaska. Such projects often involve activities like pile driving, dredging, and vessel movements, all of which can generate underwater noise and cause temporary disturbances to marine mammals in the vicinity. The IHAs issued by NMFS are intended to cover these potential disturbances during both phases of the project.
NMFS requires the implementation of specific mitigation measures to minimize adverse impacts. These typically include the establishment of exclusion zones around active construction, the use of soft-start procedures for pile driving, and the deployment of marine mammal observers to monitor for animals in the area. The IHAs also mandate rigorous monitoring and reporting protocols to track any incidental takes and assess the effectiveness of mitigation efforts.
The Regulatory Review Process
Before issuing these final authorizations, NMFS followed a prescribed regulatory process. A notice of NMFS' proposal to issue the two IHAs was published in the Federal Register on March 13, 2026. This notice detailed the estimated numbers, types, and methods of incidental take proposed for each species, as well as the mitigation, monitoring, and reporting measures. It also included NMFS' preliminary conclusions and determinations that the proposed IHAs would satisfy the requirements of the MMPA.
Crucially, the public was provided an opportunity to comment on the proposed IHAs. According to the Federal Register notice, no comments were received during this period. This absence of public feedback meant that no new information became available that would alter NMFS' preliminary analyses, conclusions, or determinations. Consequently, the initial assessments became the final decisions.
One minor adjustment was made between the proposed and final IHAs. The City of Kodiak requested additional flexibility regarding the effective period of the Phase II IHA due to uncertainties in funding and construction scheduling. NMFS accommodated this request, modifying the Phase II IHA to become effective upon written notification from the applicant, rather than automatically upon the expiration of the Phase I IHA, though it must commence within one year of Phase I's expiration.
Environmental and Species Act Compliance
Beyond the MMPA, NMFS also ensured compliance with other critical environmental statutes. Under the National Environmental Policy Act, NMFS determined that the issuance of these IHAs qualified for a categorical exclusion from further review. This determination is made when an action falls into categories that do not individually or cumulatively have the potential for significant impacts on the quality of the human environment, and no extraordinary circumstances preclude such an exclusion.
Furthermore, NMFS addressed compliance with the Endangered Species Act. Section 7(a)(2) of the ESA requires federal agencies to ensure that any action they authorize 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. The Kodiak project area is home to several ESA-listed marine mammal populations.
NMFS' Alaska Regional Office conducted an internal consultation and issued a Biological Opinion. This opinion specifically considered the potential impacts on endangered or threatened species including humpback whales (Mexico-North Pacific and Western North Pacific distinct population segments), fin whales (Northeast Pacific stock), and Steller sea lions (Western distinct population segment). The Biological Opinion concluded that the issuance of these two IHAs, and any potential renewal IHAs, is not likely to jeopardize the continued existence of these ESA-listed species.
Authorization and Future Implications
With all statutory requirements met and comprehensive reviews completed, NMFS formally issued the two incidental harassment authorizations. This decision, signed by Kimberly Damon-Randall, Director of the Office of Protected Resources, allows the City of Kodiak to proceed with its critical infrastructure development while adhering to federal environmental mandates. The IHAs are a testament to the complex regulatory environment surrounding development in ecologically sensitive areas, requiring detailed scientific assessment and robust mitigation strategies.
