[Federal Register Volume 72, Number 1 (Wednesday, January 3, 2007)]
[Notices]
[Pages 124-127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22483]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 121306A]


Taking of Marine Mammals Incidental to Specified Activities; 
Repair of the South Jetty at the Mouth of the Columbia River, Clatsop 
County, Oregon

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

ACTION: Notice; Proposed authorization for a small take authorization; 
request for comments.

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SUMMARY: NMFS has received a request from the U.S. Army Corps of 
Engineers (ACOE), Portland District for an authorization to take small 
numbers of Steller sea lions, California sea lions, and Pacific harbor 
seals, incidental to repair work on the South Jetty at the Mouth of the 
Columbia River (MCR) in Clatsop County, Oregon. As a result of this 
request, NMFS is proposing to issue a 1-year incidental take 
authorization (IHA) to take marine mammals by Level B harassment 
incidental to this activity. Pursuant to the Marine Mammal Protection 
Act (MMPA), NMFS is requesting comments on ACOE's application and NMFS' 
proposal to issue an authorization to ACOE to incidentally take, by 
harassment, small numbers of these species of marine mammals for a 
period of 1 year.

DATES: Comments and information must be received no later than February 
2, 2007.

ADDRESSES: Comments on the application should be addressed to P. 
Michael Payne, Chief, Permits, Conservation and Education Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910-3225, or by telephoning the 
contact listed here. The mailbox address for providing e-mail comments 
is [email protected]. Comments sent via e-mail, including all 
attachments, must not exceed a 10-megabyte file size. A copy of the 
application and an Environmental Assessment (EA) prepared by ACOE may 
be viewed at http://www.nmfs.noaa.gov/pr/permits/incidental.htm, or by 
writing to this address or by telephoning one of the contacts listed 
here. Other supporting documents related to this proposed project can 
be viewed at ACOE's Web page at https://www.nwp.usace.army.mil/issues/jetty/cms/documents.asp.

FOR FURTHER INFORMATION CONTACT: Shane Guan, NMFS, (301)713-2289, ext 
137, or Bridgette Lohrman, NMFS Oregon State Habitat Office, (503)230-
5422.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and 101(a)(5)(D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce 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, notice of a proposed authorization is 
provided to the public for review.
    An authorization 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

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availability of the species or stock(s) for subsistence uses, and if 
the permissible methods of taking and requirements pertaining to the 
mitigation, monitoring and reporting of such taking 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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
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].
    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny issuance of the 
authorization.

Summary of Request

    On October 23, 2006, NMFS received a request from ACOE Portland 
District for an IHA to take small numbers of Steller sea lions 
(Eumetopias jubatus), California sea lions (Zalophus californianus), 
and Pacific harbor seals (Phoca vitulina richardsi), by Level B 
harassment, incidental to conducting repair work on the MCR South Jetty 
in Clatsop County, Oregon. The propose of the proposed work is to 
ensure the continuing function of the South Jetty by repairing critical 
trunk portions of the jetty. The premise of the jetty repair is to 
repair the most vulnerable areas of the South Jetty, where the 
consequences of jetty failure is high and would rapidly and 
significantly degrade navigation through the MCR. The intent of the 
proposed project is three-fold: (1) Improve the stability of the 
foundation (toe) of the jetty as affected by scour. (2) Improve the 
side slope (above and below water) stability. (3) Improve the dynamic 
stability of the jetty as affected by wave forces impinging on the 
jetty.
    Interim repairs in 2007 at the MCR South Jetty consist of placing 
approximately 70,000 tons of stone on the north and south slopes of the 
jetty. The jetty repair work extends from Station (Sta) 258 to Sta 290 
(3,200 linear ft, or 975 linear m) (each station represent 100 linear 
ft, or 30.5 linear m; Sta 0 being at the farthest landward point of the 
jetty). The stone size ranges from 10 - 40 tons with an average size of 
16 tons. A haul road is required along the top of the jetty for travel 
of heavy equipment to the areas of repair.
    The contractor will rebuild the existing haul road from Sta 183 to 
Sta 245 (6,200 linear ft, or 1,890 linear m) in the reach of the jetty 
that is being repaired in 2006. In addition, a new haul road segment 
will be constructed from Sta 245 to Sta 258 (1,300 linear ft, or 396 
linear m) to access the reach of the 2007 jetty repairs, bringing the 
total haul road length shoreward of actual jetty rehabilitation to 
about 7,500 ft (2,286 m). Haul road materials may consist of 
approximately 50,000 tons of small rock material. New haul road 
construction to Sta 258 is anticipated to begin in April 2007 for 
duration of about 4 to 6 weeks. Haul road construction and concurrent 
jetty interim repairs from Sta 258 to the work terminus at Sta 290 
(3,200 linear ft, or 975 linear m) will occur from May through October 
2007.
    A lattice boom crane and an excavator will be used to place stone. 
Stone placement will occur from the top of the jetty. The crane and 
excavator will use environmentally-friendly hydraulic fluids. Four off-
road dump trucks will be used to haul the rock to the work area on the 
south jetty. The excavator will be used to construct the initial haul 
road to access the repair areas with a dozer used to build the haul 
road over the completed repair areas. The crane, excavator and dozer 
will be stored on the jetty when not in use. Fueling and maintenance 
will be accomplished using the Wiggins closed fueling system.
    The proposed project is planned to occur from April through 
October, 2007. The contractor will work 7 days per week, sunrise to 
sunset depending on weather and wave conditions.

Description of the Marine Mammals Potentially Affected by the Activity

    The marine mammals most likely to be found in MCR area are the 
Eastern U.S. stock of Steller sea lions, California sea lions, and 
Pacific harbor seals. The Steller sea lion eastern stock is listed as 
threatened under the Endangered Species Act (ESA) and is designated as 
``depleted'' under MMPA. The California sea lions and harbor seals are 
not ESA-listed, nor are they depleted. General information of these 
species can be found in Caretta et al. (2006) and Angliss and Outlaw 
(2005), which is available at the following URL: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2005.pdf and http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2005.pdf, respectively. Refer to those documents for 
information on these species. Additional information on these species 
is presented below.

Steller sea lion

    The eastern stock of Steller sea lions breeds on rookeries located 
in southeast Alaska, British Columbia, Oregon, and California; there 
are no rookeries located in Washington (Angliss and Outlaw, 2005). 
While Steller sea lions breed in Oregon, they use the MCR South Jetty 
solely as a haul out area, not a rookery.
    In the vicinity of the proposed project area, Steller sea lions are 
present all year round, but are more numerous in the winter. The 
breeding season of Steller sea lions occur from late May to early July, 
therefore, abundance is typically lowest during this period as many of 
the adults are at the breeding rookeries (Hodder, 2005). Only non-
breeding individuals are found on the jetty during this time, and a 
greater percentage of juveniles are present. Abundance increases 
following the breeding season. Minimum population estimate for the 
eastern U.S. stock of Steller sea lion is 43,728 (Angliss and Outlaw, 
2005). Average numbers of Steller sea lion recorded on the MCR South 
Jetty area from 1995 - 2004 vary from 168 in October to 1,106 in 
December (Hodder, 2005).

California sea lion

    The U.S. stock of California sea lion occurs from northern 
Washington to southern California. Major rookeries are found in waters 
of southern California and Baja California, Mexico. Only male 
California occur at the MCR South Jetty, as post-breeding dispersers 
from the south (Hodder, 2005). Like Steller sea lions, California sea 
lions also present in the vicinity of the proposed project area year 
round, and are also more numerous in winter. The total population size 
of the U.S. stock of California sea lions is estimated from 244,000 to 
237,000 (Carretta et al., 2006). Average numbers of California sea 
lions recorded on the MCR South Jetty area from 1995 - 2004 vary from 
18 in January to 725 in December (Hodder, 2005).

Pacific harbor seal

    The Oregon/Washington coastal stock of Pacific harbor seal occurs 
from northern Washington to southern

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Oregon and are generally non-migratory. Harbor seals breed and pup 
throughout their range, including the vicinity of the Columbia River. 
They use the Columbia River extensively throughout the year but are 
rarely noted on the MCR South Jetty. An average of 1 - 2 harbor seals 
were recorded on MCR South Jetty from April to June between 1995 and 
2004. No harbor seal have been sighted during the rest of the months 
(Hodder, 2005).

Potential Effects on Marine Mammals and Their Habitat

    ACOE and NMFS have determined that the proposed repair work at MCR 
South Jetty has the potential to result in behavioral harassment of 
those Steller sea lions, California sea lions, and Pacific harbor seals 
that may be present in the project vicinity.
    The potential takes of these three marine mammal species will be 
from noise generated by operation of construction equipment and related 
activities, and from the presence of trucks, excavators, construction 
machinery, and personnel in the proximity to the animals.
    The anticipated impact upon the sea lions and harbor seals include 
temporary disturbance and displacement of animals to other parts of the 
jetty or other nearby haul-outs until work is discontinued. Other haul-
outs are available for harbor seals throughout the Columbia River 
estuary, and for sea lions on other parts of the south jetty, the North 
Jetty, or rocky headlands in northern Oregon or southern Washington 
states. Observations in the past have shown that animals that are 
disturbed into the water did not leave the vicinity, instead, they 
would move to other parts of the jetty.
    It has been observed that Steller sea lions moved into water when 
approached by a boat within 300 ft (91 m) or less, however, in other 
occasions there was no change in Steller sea lion behavior when 
approached within the same distance or less. It is also noted that 
majority of Steller sea lions use the far end of the jetty, which is 
broken off from the main stretch of the jetty and formed an island. It 
is estimated that maximum of 10 percent Steller sea lions at South 
Jetty will occur within range of disturbance, and none would occur 
within the range of disturbance during the first month. Therefore, the 
total number of Steller sea lion that potentially could be taken, 
calculated from the recorded data of Steller sea lion at South Jetty 
from 1995 - 2004, would be 204 animals.
    California sea lions are known to use areas of the jetty more 
shoreward than Steller sea lions. It is assumed that all California sea 
lions and harbor seals hauled out in the vicinity of the proposed 
project would be taken by Level B harassment. Based on the average 
number of pinnipeds recorded on the MCR South Jetty between 1995 and 
2004 (Hodder, 2005), it is estimated that a total of 336 California sea 
lions and 4 Pacific harbor seals would be taken by Level B harassment 
as a result of the proposed jetty repair work.
    Repairing the South Jetty by adding more rocks will not reduce the 
availability or accessibility of habitat for Steller and California sea 
lions and harbor seals, as rock replacement would occur at the existing 
jetty footprint. Seals and sea lions use the existing tip of the jetty 
that is built of concrete blocks, and are easily able to climb up 
several vertical feet from one block to the next. The MCR South Jetty 
is not designated as critical habitat for the Steller sea lion under 
the ESA.
    There is no subsistence harvest of marine mammals in the proposed 
project area, therefore, there will be no impact of the activity on the 
availability of the species or stocks of marine mammals for subsistence 
uses.

Mitigation and Monitoring

    As a mitigation measure to reduce potential Level B harassment to 
marine mammals as a result of the proposed project, NMFS proposes that 
during land-based rock placement at South Jetty, the contractor 
vehicles and personnel should avoid direct approach towards pinnipeds 
that are hauled out as much as possible. If it is absolutely necessary 
for the contractor to make movements towards pinnipeds, the contractor 
will approach in a slow and steady manner to reduce the behavioral 
harassment to the animals as much as possible.
    ACOE would monitor marine mammals before, during, and after the 
proposed South Jetty repair project in the MCR area. Steller and 
California sea lions and harbor seal in the MCR area would be monitored 
for 1 week before, during, and 4 and 8 weeks after the proposed 
construction work. Pinniped species, numbers, behavior, any observed 
disturbances during the jetty repair construction, and recolonization 
by pinnipeds of the project area after the construction activities 
would be noted.

Reporting

    The ACOE will report the number of sea lions and seals present on 
the South Jetty for 1 week before starting work. During construction, 
the ACOE will provide weekly reports to NMFS which will include a 
summary of the previous week's numbers of sea lions and seals that may 
have been disturbed as a result of the jetty repair construction 
activities. These reports will provide dates, time, tidal height, 
maximum number of sea lions and seals on the jetty and any observed 
disturbances. The ACOE also will provide a description of construction 
activities at the time of observation. The ACOE will submit a report to 
NMFS within 90 days of completion of the 2007 phase of the project.

National Environmental Policy Act (NEPA)

    In January, 2005, ACOE prepared the Final Environmental Assessment 
Repair of North and South Jetties Mouth of the Columbia River, Clatsop 
County, Oregon and Pacific County, Washington (EA) and issued a Finding 
of No Significant Impact on January 24, 2005. NMFS is reviewing this EA 
and will either adopt it or prepare its own NEPA document before making 
a determination on the issuance of an IHA. A copy of ACOE's EA for this 
activity is available upon written request (see ADDRESSES) or at http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

ESA

    The NMFS Northwest Regional Office (NWRO) prepared a Biological 
Opinion (BO) upon conducting a section 7 consultation with the ACOE in 
July 2004. In the BO, NMFS concluded that the proposed action is not 
likely to jeopardize the continued existence of thirteen species of 
ESA-listed salmonid fishes, Snake River (SR) fall-run Chinook salmon, 
SR spring/summer-run Chinook salmon, SR sockeye salmon, SR steelhead, 
Lower Columbia River (LCR) Chinook salmon, Upper Columbia River (UCR) 
spring-run Chinook salmon, Upper Willamette River (UMR) Chinook salmon, 
Columbia River chum salmon, Middle Columbia River steelhead, LCR 
steelhead, UWR steelhead, UCR steelhead, and LCR coho salmon, or 
destroy or adversely modify designated critical habitat.
    On April 2, 2004, NMFS NWRO issued a ``may affect, but not likely 
to adversely affect'' determination for the effects to marine mammals 
and sea turtles listed under the ESA from the rehabilitation of the 
north and south jetties at the MCR area to the ACOE. On October 18, 
2005, ACOE contacted NMFS to discuss new information regarding Steller 
sea lions hauling out on the South Jetty closer to the work site than 
previously observed. The ACOE requested NMFS' concurrence with a 
determination of may affect, but not likely to adversely affect Steller 
sea

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lions with regard to this new information. After conversations with 
NMFS concerning this determination, the ACOE initiated formal 
consultation for the Steller sea lion on November 30, 2005, for 
carrying out the rehabilitation of the South Jetty at the MCR. On 
September 27, 2006, NMFS NWRO issued a BO based on the reinitiation of 
an ESA section 7 consultation on Steller sea lions. In this BO, NMFS 
concluded that the proposed action is not likely to jeopardize the 
continued existence of the Eastern U.S. stock of Steller sea lion. The 
BO also concurred that no Steller sea lion critical habitat exists 
within the proposed action area.

Preliminary Determinations

    For the reasons discussed in this document and in previously 
identified supporting documents, NMFS has preliminarily determined that 
the impact of jetty repair construction at the MCR South Jetty should 
result, at worst, in the Level B harassment of small numbers of Steller 
sea lions, California sea lions, and Pacific harbor seals that haul-out 
in the vicinity of the proposed project area. While behavioral 
modifications, including temporarily vacating the area around the 
construction site, may be made by these species to avoid the resultant 
visual and acoustic disturbance, the availability of alternate areas 
within MCR and haul-out sites has led NMFS to preliminarily determine 
that this action will have a negligible impact on Steller sea lion, 
California sea lion, and Pacific harbor seal populations in the area.
    In addition, no take by Level A harassment (injury) or death is 
anticipated and harassment takes should be at the lowest level 
practicable due to incorporation of the mitigation measures mentioned 
previously in this document.

Proposed Authorization

    NMFS proposes to issue an IHA to ACOE for the potential harassment 
of small numbers of Steller sea lions, California sea lions, and harbor 
seals incidental to repair construction of at the MCR South Jetty in 
Clatsop County, Oregon, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated. NMFS has 
preliminarily determined that the proposed activity would result in the 
harassment of only small numbers of Steller sea lions, California sea 
lions, and harbor seals, and will have no more than a negligible impact 
on these marine mammal species and/or stocks.

Information Solicited

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning this request (see ADDRESSES).

    Dated: December 27, 2006.
P. Michael Payne,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. E6-22483 Filed 12-29-06; 8:45 am]
BILLING CODE 3510-22-S