[Federal Register Volume 74, Number 217 (Thursday, November 12, 2009)]
[Notices]
[Pages 58248-58258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27183]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XQ82


Takes of Marine Mammals Incidental to Specified Activities; 
Russian River Estuary Management Activities

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

ACTION:  Notice; proposed incidental harassment authorization; request 
for comments.

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SUMMARY:  NMFS has received an application from the Sonoma County Water 
Agency (Agency) for an Incidental Harassment Authorization (IHA) to 
take marine mammals, by harassment, incidental to Russian River Estuary 
(Estuary) management activities, specifically construction and 
maintenance of a lagoon outlet channel

[[Page 58249]]

to improve rearing habitat for listed salmonid species and artificially 
breaching the barrier beach at the mouth of the river to minimize 
potential for flooding, as well as conducting a series of biological 
and physical monitoring activities. Pursuant to the Marine Mammal 
Protection Act (MMPA), NMFS is requesting comments on its proposal to 
issue an IHA to the Agency to incidentally harass, by Level B 
Harassment only, a small number of harbor seals (Phoca vitulina 
richardii), California sea lions (Zalophus califonianus), and northern 
elephant seals (Mirounga angustirostris) during the specified activity.

DATES:  Comments and information must be received no later than 
December 14, 2009.

ADDRESSES:  Comments on the application should be addressed to 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. The mailbox address for 
providing email comments is [email protected]. NMFS is not 
responsible for e-mail comments sent to addresses other than the one 
provided here. Comments sent via e-mail, including all attachments, 
must not exceed a 10-megabyte file size.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information 
(for example, name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the address specified 
above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this 
notice may also be viewed, by appointment, during regular business 
hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT:  Jaclyn Daly, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 151.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (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, a notice of a proposed authorization is 
provided to the public for review.
    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.''
    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 Level B 
harassment as defined below. 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 marine mammals. Within 45 days of the close of 
the comment period, NMFS must either issue or deny the authorization. 
If authorized, the IHA would be effective for one year from date of 
issuance.
    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

    NMFS received an application on July 16, 2009 from the Agency for 
the taking, by Level B harassment only, of marine mammals incidental to 
the Agency's Estuary management activities. After receipt of subsequent 
information, NMFS determined the application complete on September 22, 
2009. These activities include construction and maintenance of a lagoon 
outlet channel to improve rearing habitat for listed salmon and 
artificially breaching the barrier beach at the mouth of the river to 
minimize potential for flooding and a series of biological and physical 
monitoring activities. The purpose of these activities is to comply 
with NMFS' Reasonable and Prudent Alternatives (PRAs) outlined in its' 
Biological Opinion (BiOp) for Water Supply, Flood Control Operations, 
and Channel Maintenance conducted by the U.S. Army Corps of Engineers, 
the Sonoma County Water Agency, and the Mendocino County Russian River 
Flood Control and Water Conservation Improvement District in the 
Russian River Watershed (NMFS, 2008) addressing ongoing practices and 
operations at dams and activities related to flood control, water 
diversion and storage, regulation of flows in the Russian River and Dry 
Creek, estuary management, hydroelectric power generation, channel 
maintenance, and fish hatchery production by numerous stakeholders 
including the Agency. NMFS found current water management practices, 
including those at the mouth of the Russian River, were jeopardizing 
the continued existence of some of the steelhead and salmon species and 
adversely modifying their critical habitat. In response, the Agency is 
altering its Estuary management approach to include the activities 
described below.
    The Agency's specified activities include construction and 
maintenance of a lagoon outlet channel, artificial breaching of the 
barrier beach which forms at the Russian River- Pacific Ocean interface 
(the location of the Jenner haulout), and monitoring associated with 
such activities. Due to the necessity of operating heavy equipment 
(e.g., bulldozers, excavators) to carry out the proposed management 
activities, pinnipeds hauled out on the beach may be alerted or flush 
into the water. Therefore, the proposed action may result in Level B 
harassment to seals and sea lions present on the beach. Monitoring of 
harbor seals, the primary species located at the haulout, has been 
conducted by local residents who formed the Stewards Seal Watch Program 
since 1985, the Agency during breaching events from 1996-2000, and more 
recently with the aid of Goat Rock State Park volunteer docents. 
Therefore an extensive data set of harbor seal abundance and presence 
of other species of pinnipeds is available. Based on these monitoring 
data and number of

[[Page 58250]]

events the Agency expects will be necessary to carry out the proposed 
management activities, the Agency is requesting authorization to 
incidentally harass up to 2,861 harbors seals, 16 California sea lions, 
and 11 northern elephant seals under a one-year IHA. Because these 
activities would be on-going beyond one year, NMFS would likely also 
promulgate subsequent incidental take authorizations in the future.

Description of the Specified Activity

    The Estuary is located about 97 kilometers (km; 60 miles) northwest 
of San Francisco in Jenner, Sonoma County, California. The Russian 
River watershed encompasses 3,847 square kilometers (km) (1,485 square 
miles) in Sonoma, Mendocino, and Lake counties. The Estuary extends 
from the mouth of the Russian River upstream approximately 10 to 11 km 
(6 to 7 miles) between Austin Creek and the community of Duncans Mills 
(Heckel, 1994). The proposed action includes construction and 
maintenance of a lagoon outlet channel that would facilitate management 
of a barrier beach (closed sandbar) at the mouth of the Russian River 
and creation of a perched, summer lagoon to avoid the likelihood of 
jeopardy to listed steelhead and salmon species and adverse 
modification of critical habitat, as described in the aforementioned 
BiOp (NMFS 2008).
    Since 1995, the Agency has artificially breached the barrier beach 
which forms at the mouth of the Russian River, and hence creates a 
lagoon behind the beach, in accordance with the Russian River Estuary 
Management Plan recommended in the Heckel (1994) study. The purpose of 
artificially breaching the barrier beach is to alleviate potential 
flooding of low-lying properties along the estuary. However, the 
historic method of artificial sandbar breaching, which is done in 
response to rising water levels behind the barrier beach, adversely 
affects the estuary's water quality and depths by transforming a 
natural deep brackish water lagoon to one that is similar to a shallow 
tidal marine environment (i.e., high salinity). Salinity stratification 
contributes to low dissolved oxygen at the bottom in some areas and 
this shallow, high salinity environment is not conducive to ideal 
salmonid rearing habitat.
    The Agency, along with a suite of other stakeholders including the 
U.S. Army Corps of Engineers (Corps), formally consulted with the 
National Marine Fisheries Service (NMFS) under Section 7 of the 
Endangered Species Act (ESA) regarding the potential effects of their 
operations and maintenance activities, including, among other things, 
the Agency's estuary management program, on federally-listed Central 
California Coast (CCC) steelhead (Oncorhynchus mykiss), CCC coho salmon 
(O. kisutch), and California Coastal (CC) Chinook salmon (O. 
tshawytscha). As a result of this consultation, NMFS issued the BiOp 
finding that artificially elevated inflows to the Russian River estuary 
during the low flow season and historic artificial breaching practices 
have significant adverse effects on the Russian River's estuarine 
rearing habitat for steelhead, coho, and Chinook salmon and would 
likely result in jeopardy to listed species and adverse modification or 
destruction of designated critical habitat. NMFS included RPAs in the 
BiOp to avoid jeopardy and adverse modification or destruction of 
critical habitat. These require the Agency to collaborate with NMFS and 
to modify estuary water level management in order to reduce marine 
influence (high salinity and tidal inflow) and promote a higher water 
surface elevation in the estuary (formation of a fresh or brackish 
lagoon) for purposes of enhancing the quality of rearing habitat for 
juvenile (age 0+ and 1+) steelhead from May 15th to October 15th 
(referred to hereafter as the ``lagoon management period''). A program 
of potential, incremental steps are prescribed to accomplish this, 
including adaptive management of a lagoon outlet channel on the barrier 
beach. The Agency will monitor the response of water quality, 
invertebrate production, and salmonids in and near the estuary to water 
surface elevation management in the estuary-lagoon system. In addition, 
the Agency would monitor effects of lagoon maintenance and sandbar 
breaching on pinnipeds and implement mitigation measures to minimize 
any impact.

Lagoon Outlet Channel Management

    To comply with the Russian River Biological Opinion, the Agency, in 
coordination with NMFS, plans to adaptively manage water surface 
elevations during the lagoon management period (May 15 and October 15) 
after a barrier beach forms naturally and creates a lagoon. 
Modifications to the barrier beach would be small departures from the 
existing beach and channel topography at the time of closure, and the 
new channel would be similar to the channel configurations resulting 
from previous breaching practices and consistent with natural 
processes.
    The adaptive lagoon outlet channel management plan seeks to work 
with natural processes and site conditions to maintain an outlet 
channel that reduces tidal inflow of saline water into the estuary 
(PWA, 2009). To avoid tidal inflow and maintain a lagoon system that 
would not flood properties adjacent to the Estuary, the Agency would 
create and maintain a shallow, ``perched'' outlet channel that would 
not be excavated as deeply, narrowly, or with as steep a gradient as 
typical artificial breaching pilot channels, which are designed to 
allow the current velocities to erode a wider and deeper channel and 
downcut into the barrier beach.
    Active management of estuarine/lagoon water levels would commence 
when oceanside wave action pushes sand landward to form a natural 
barrier beach across the river's mouth. When this happens, the Agency 
would monitor lagoon water surface elevation, as river inflow to the 
newly closed lagoon builds up behind the barrier beach, causing water 
surface elevation to rise in the lagoon. The goal is to manage lagoon 
water surface elevations between 4 and 9 ft National Geodetic Vertical 
Datum (NGVD) 3, which is high enough to enhance fish habitat (NMFS, 
2008) while also minimizing flood hazard to low-lying structures 
adjacent to the Estuary (Heckel, 1994). After the lagoon water surface 
elevation rises to 3 to 4 ft NGVD, the Agency would begin to manage 
water levels by excavating a relatively low elevation (bed between 3 
and 4 ft NGVD) outlet channel. Water levels would initially be managed 
at the lower end of this range to reduce the potential for eroding the 
outlet channel and reopening the mouth to tidal exchange. If experience 
managing the outlet channel indicates that higher lagoon water levels 
are feasible, subsequent excavations would approach bed elevations of 7 
ft NGVD.
    The outlet channel, which is approximately 100-400 feet long, would 
be excavated and maintained with one or two pieces of heavy machinery 
(e.g., excavator or bulldozer) to move sand. The outlet channel would 
be excavated with a bed elevation 0.5 to 1.0 ft below the lagoon water 
surface elevation along its entire length to allow outflow from the 
lagoon to pass over the sandbar. The outlet channel would be a notch 
approximately 2 ft deep by 25 to 100 ft wide cut into the top of the 
naturally formed barrier beach. The strategy for outlet channel 
configuration and modifications would be an incremental approach that 
seeks to minimize the risk of uncontrolled breaching which returns the 
estuary to tidal conditions. The precise number of excavations would

[[Page 58251]]

depend on uncontrollable variables such as seasonal ocean wave 
conditions (e.g., wave heights and lengths), river inflows, and the 
success of previous excavations (e.g., the success of selected channel 
widths and meander patterns) in forming an outlet channel that 
effectively maintains lagoon water surface elevations. It is predicted 
that up to three successive outlet channel excavations, at increasingly 
higher beach elevations, may be necessary, with the result being a 
``perched'' lagoon. The goal is to develop an outlet channel that 
supports a stable ``perched'' lagoon with water surface elevations at 
approximately 7 ft NGVD for several months.
    At the start of the management period, when configuring the outlet 
channel for the first time that year, machinery may operate on up to 4 
consecutive working days. As technical staff and maintenance crews gain 
more experience with implementing the outlet channel and observing its 
response, it may be possible to reduce the frequency of maintenance 
during the remainder of the management season, i.e., 1-3 days of 
intervention typically one to two weeks apart. In consideration of the 
beach environment, effort would be made to minimize the amount and 
frequency of mechanical intervention, thereby reducing disturbances to 
seals and other wildlife, as well as State Park's visitors on the 
beach. In addition, activities would be conducted in a manner to effect 
the least practicable adverse impacts to pinnipeds and their habitat as 
described in the Mitigation section below (e.g., crews on foot approach 
first, machinery driven slow on beach, etc.).

Artificial Sandbar Breaching

    The Estuary may close naturally throughout the year as a result of 
a barrier beach forming across the mouth of the Russian River. The 
mouth of the Russian River is located at Goat Rock State Beach 
(California Department of Parks and Recreation). Although closures may 
occur at anytime of the year, the mouth usually closes during the 
spring, summer, and fall (Heckel 1994; Merritt Smith Consulting 1997, 
1998, 1999, 2000; Sonoma County Water Agency and Merritt Smith 
Consulting, 2001). Closures result in ponding of the Russian River 
behind the barrier beach and, as water surface levels rise in the 
Estuary, flooding may occur. Natural breaching events occur when 
estuary water surface levels exceed the height of the barrier beach and 
overtop it, scouring an outlet channel that reconnects the Russian 
River to the Pacific Ocean.
    In addition to natural breaching, the Agency, for decades, has also 
mechanically breached the sandbar to alleviate potential flooding of 
low-lying shoreline properties near the town of Jenner. These 
artificial breaching activities would typically be conducted on 
outgoing tides to maximize the elevation head difference between the 
estuary water surface and the ocean. A cut in the barrier beach would 
be created at a sufficient depth to allow river flows to begin 
transporting sand to the ocean. The sand would be placed onto the beach 
adjacent to the pilot channel. After the pilot channel is dug, the last 
upstream portion of the sandbar would be removed, allowing river water 
to flow to the ocean. The size of the pilot channel varies depending on 
the height of the sandbar to be breached, the tide level, and the water 
surface elevation in the Estuary. A typical channel would be 
approximately 100 feet long, 25 feet wide, and 6 feet deep. The amount 
of sand moved would range from less than 100 cubic yards to 
approximately 1,000 cubic yards.
    The Agency anticipates that artificial breaching activities would 
occur in accordance with the Russian River Biological Opinion and that 
they would primarily occur from October 16, 2009, to May 14, 2010. 
However, if estuary water surface elevations rise above 7.0 feet (at 
the Jenner gage) during the lagoon management period (May 15 through 
October 15), the Agency would artificially breach the sandbar to 
alleviate potential flooding, as discussed in the Biological Opinion. 
The Biological Opinion incidental take statement estimates that the 
Agency may need to artificially breach the sandbar ``twice per year 
between May 15 and October 15 during the first three years covered by 
the opinion, and once per year between May 15 and October 15 during 
years 4-15 covered by this opinion'' (NMFS, 2008). Because the IHA is 
only valid for the first year of this new management strategy, NMFS has 
analyzed the impacts from the proposed action based on two breaching 
events during the lagoon management period.

Monitoring of Lagoon Outlet Channel Adaptive Management Plan

    To monitor the effectiveness of the new Estuary management plan, 
and abide by RPAs in NMFS' Biological Opinion, the Agency must monitor 
the response of water quality, invertebrate production, and salmonids 
in and near the estuary to water surface elevation management in the 
estuary-lagoon system. In addition, the Agency must monitor the changes 
in the bar and channel elevation, lengths, and widths, as well as flow 
velocities and observations of the bed structure (to identify bed forms 
and depth-dependent grain size distribution indicative of armoring) in 
the channel. Fisheries seining and trapping, water quality monitoring, 
invertebrate/sediment sampling, and physical habitat measurements 
require the use of boats and nets in the Estuary. Boating and other 
monitoring activities occur in the vicinity of river haul outs and 
hence, may result in harassment to pinnipeds. A summary of the 
monitoring tasks and the frequency of their implementation are 
presented in Table 2 of the application.

Description of Marine Mammals in the Area of the Specified Activity

    Marine mammals present within the action area would be harassed 
from crews and equipment on the beach during Estuary maintenance and 
monitoring activities. The primary species inhabiting the Jenner 
haulout is a portion of the California stock of harbor seals; however, 
rogue California sea lions and northern elephant seals have also been 
observed at the harbor seal haulout.

Harbor Seals

    California harbor seals are not listed under the ESA or considered 
strategic under the Marine MMPA. Based on the most recent harbor seal 
counts (26,333 in May-July 2004; Lowry et al., 2005) and Hanan's 
revised correction factor, the harbor seal population in California is 
estimated to number 34,233 with a minimum population estimate of 31,600 
(Caretta et al., 2005). Counts of harbor seals in California showed a 
rapid increase from approximately 1972 (when the MMPA was passed) to 
1990. Net production rates appeared to decline from 1982 to 1994. 
Although earlier analyses were equivocal (Hanan, 1996) and there has 
been no formal determination that the California stock has reached its 
Optimal Sustainable Population (OSP) level (defined in the MMPA), the 
decrease in population growth rate has occurred at the same time as a 
decrease in human-caused mortality and may be an indication that the 
population is reaching its environmental carrying capacity.
    On land, harbor seals haul out on rocky outcrops, mudflats, 
sandbars and sandy beaches with unrestricted access to water and with 
minimal human presence. In California, approximately 400-500 harbor 
seal haul out sites are widely distributed along the mainland and on 
offshore islands, including intertidal sandbars, rocky shores and 
beaches (Hanan, 1996). The Russian

[[Page 58252]]

River haul out is the largest in Sonoma County, comprising of 
approximately 18 percent of the harbor seal population found there (M. 
DeAngelis, pers. comm.). There are also several known haulouts in the 
Russian River estuary at logs and rock outcroppings in the river. 
Haulout sites are important as resting sites for harbor seals. Harbor 
seals feed opportunistically in shallow waters on fish, crustaceans, 
and cephalopods. Foraging occurs in shallow littoral waters, and common 
prey items include flounder, sole, hake, codfish, sculpin, anchovy and 
herring (California Department of Fish and Game, 2005). Harbor seals 
are typically solitary while foraging, although small groups have been 
observed.
    Although the Jenner haul-out is not a designated pupping beach, 
Mortenson (1996) observed pups were first seen at the Jenner haulout in 
late March, with maximum counts in May. In this study, pups were not 
counted separately from other age-classes at the haulout after August 
due to the difficulty in discriminating pups from small yearlings 
(Mortenson, 1996). From August 1989 to July 1991, Hanson (1993) 
observed that pupping began at the Jenner haulout in mid-April, with a 
maximum number of pups observed during the first two weeks of May. This 
corresponds with the peaks observed at Point Reyes, where the first 
viable pups are born around the first to second week of March and the 
peak is the last week of April to early May.
    As described above, the Jenner haulout has been exclusively 
monitoring since 1985. Local residents also began monthly seal counts 
in 1987, with nearby haulouts added to the counts thereafter. The 
monthly average number of harbor seals recorded by E. Twohy during 
daily counts of seals at the Jenner haulout from 1993 to 2005 is 
presented in Table 4a of the application. During these counts, diurnal 
patterns were discovered and it was noted whether the mouth of the 
River was open or closed off to the Pacific Ocean. The information that 
has emerged from these data sets is that the Jenner haulout is atypical 
in terms of the time of year and time of day that the peck numbers of 
harbor seals are present.
    The numbers of seals at the Jenner haulout peaks in the late winter 
(February and March); at other harbor seal haulouts, peaks are 
typically observed during the pupping and molting season (spring and 
summer; Mortenson and Twohy, 1993). The number of harbor seals 
significantly declines in August and remains low until November. This 
trend corresponds to monitoring conducted by the Agency during 
breaching events between 1996-2000. The Jenner haulout is also atypical 
in terms of the time of day seal count peaks are observed. At other 
harbor seal haulouts, daily peaks are typically observed at mid-
afternoon low tides regardless of the season. Although daily harbor 
seal numbers at the Jenner haulout do peak at midday during the winter 
(November 16th to March 30th) and in the pupping and molting seasons 
(April/May and June/July/August, respectively), a midday peak is not 
observed during the fall (Mortenson and Twohy, 1994). Mortenson and 
Twohy (1994) identified the peak in harbor seal abundance at the Jenner 
haulout as occurring in February and March, with high abundance 
continuing through July. On a daily scale, in general, harbor seal 
abundance peaks during the morning hours at the Jenner haulout when the 
barrier beach is closed (Meritt Smith Consulting 1997, 1998, 1999, 
2001). However, daily harbor seal numbers peak at midday tides during 
the winter (November 16- March 30 as defined in Mortenson and Twohy 
(1994)).

California Sea Lions

    California Sea Lions are not listed under the ESA and is not 
``depleted'' or listed as ``strategic'' stock under the MMPA. The 
entire U.S. population has been estimated at 238,000 and growing at a 
rate of approximately 6.52 percent annually between 1975 and 2005 
(Carretta et al., 2007) with an estimated annual growth rate of 
approximately 6 percent since at least 1975. On land, the sea lions are 
found resting and breeding in groups of various sizes, and haul out on 
rocky surfaces and outcroppings and beaches, as well as manmade 
structures such as jetties and beaches. Sea lions prefer haul out sites 
and rookeries near abundant food supplies, with easy access to water; 
although sea lions occasionally travel up rivers and bays in search of 
food. They feed on fish and cephalopods, including Pacific whiting, 
rockfish, anchovy, hake, flat-fish, small sharks, squid, and octopus 
(California Department of Fish and Game, 1990). Although solitary 
feeders, sea lions often hunt in groups, which can vary in size 
according to the abundance of prey (California Department of Fish and 
Game, 1990).
    Sea lions exhibit seasonal migration patterns organized around 
their breeding patterns. California sea lions breed at large rookeries 
on the Channel Islands in southern California, and on both sides of the 
Baja California peninsula, typically from May to August. Females tend 
to remain close to the rookeries throughout the year, while males 
migrate north after the breeding season in the late summer, and then 
migrate back south to the breeding grounds in the spring (California 
Department of Fish and Game, 1990). No established rookeries are known 
north of Point Reyes, California, but large numbers of subadult and 
non-breeding or post-breeding male California sea lions are found 
throughout the Pacific Northwest.
    During harbor seal counts, solitary California sea lions were 
occasionally observed between the river mouth and the Jenner visitor's 
center during bar-open conditions in the Russian River estuary (Merritt 
Smith Consulting, 1999 and 2000). A single sea lion was hauled out 
during post-breaching monitoring on September 6, 2000 (Sonoma County 
Water Agency and Merritt Smith Consulting, 2001).

Northern Elephant Seals

    Northern elephant seals are not listed under the ESA and is not 
``depleted'' or listed as ``strategic'' stock under the MMPA. Based on 
the estimated 35,549 pups born in California in 2005, the California 
stock was approximately 124,000 in 2005 (Carretta et al., 2007). Based 
on trends in pup counts, northern elephant seal colonies were 
continuing to grow in California through 2005 (Carretta et al., 2009), 
but appear to be stable or slowly decreasing in Mexico (Stewart et al., 
1994). Northern elephant seals range along the entire California coast 
(California Department of Fish and Game, 2009). Adult male elephant 
seals breed with harems of females in from mid-December through March 
in dense rookeries on the San Miguel Island, Santa Barbara Island, San 
Nicolas Islands, San Simeon Island, Southeast Farallon Island, Ano 
Nuevo Island, on the mainland at Ano Nuevo (San Mateo Co.), and the 
Point Reyes Peninsula (California Department of Fish and Game, 2001). 
From April to November, they feed at sea or haul out to molt at 
rookeries.
    Censuses of pinnipeds at the mouth of the Russian River have been 
taken at least semimonthly since 1987. Elephant seals were noted from 
1987 to 1991. From 1992-1995, one or two elephant seals were counted 
during the censuses conducted in May, with occasional records during 
the fall and winter (Mortenson and Follis, 1997). For the past several 
years, a single male northern elephant seal has been present at the 
mouth of the Russian River harbor seal haul out site, during the late 
winter and spring of each year. The elephant seal was believed to be a 
juvenile or sub-adult male when it first began using the area as a haul 
out site. It was

[[Page 58253]]

observed harassing harbor seals hauled out at the mouth of the Russian 
River.

Potential Effects on Marine Mammals

    In addition to local resident and state park monitoring efforts, 
the Agency also conducted pinniped monitoring during its artificial 
breaching activities from 1996-2000. In all five years of monitoring, 
the number of seals hauled out on the barrier beach was generally low 
when it was and then quickly increased once the barrier beach was 
artificially breached (Merritt Smith Consulting, 1997, 1998, 1999, 
2000, Sonoma County Water Agency and Merritt Smith Consulting, 2001). 
According to Heckel (1994), ``the loss of easy access to the haulout 
and ready escape to the sea when the river mouth is closed may account 
for the lower number of harbor seals seen at that time.'' The mouth of 
the Russian River is typically open during the winter months, but 
intermittently closes during the late spring through fall.
    The Agency's pinniped monitoring from 1996 to 2000 focused on the 
barrier beach artificial breaching activities and its effects on the 
Jenner haulout. Seal counts and disturbances were recorded from 1 to 2 
days prior to breaching, the day of breaching, and the day after 
breaching (Merritt Smith Consulting, 1997, 1998, 1999, 2000; Sonoma 
County Water Agency and Merritt Smith Consulting 2001). In each year, 
the trend observed was that harbor seal numbers were lower when the 
beach was closed (i.e., the sandbar was present) and increased the day 
following an artificial breaching event. According to Heckel (1994), 
the loss of easy access to the haulout and ready escape to the sea when 
the river mouth is closed may account for the lower number of harbor 
seals seen at that time. In addition, while seals often alerted to 
distance sources of disturbance (e.g., the sound of trucks braking on 
nearby Highway 1), seals primarily fled the haulout as a result of 
presence of people on or near the beach which is possibly when the 
beach is closed (i.e., people have access to the beach). The number of 
seals declined during the day due to disturbances by people on the 
beach or kayakers/boaters approaching the haulout. Disturbances on the 
beach typically increased as the morning progressed (greater number of 
visitors on the beach in the late mornings and early afternoons). 
Therefore, although the Agency's operations may harass pinnipeds 
present on the beach, it is likely many have left due to the presence 
of people. During actual breaching activities, monitoring has revealed 
that some or all of the seals flush from the beach in response to crew 
on the beach or equipment. In 2000, all seals flushed from the beach; 
however, more recently, the trend is that not all seals flush and some 
will remain hauled-out on the beach while the equipment is in 
operation. Therefore, harbor seals, at most, would flush into the water 
in response to maintenance activities but may also simply become alert 
or make small movement across the beach away from equipment and crews. 
Harbor seals are considered more skidish than other species of 
pinnipeds; therefore, California sea lions or northern elephant seals, 
if present, are not expected to display a more adverse reaction to 
maintenance activities that those of harbor seals. No stampeding has 
been documented since the Agency began monitoring in 1999 and this 
reaction is not expected from any pinniped species present on the 
haulout.
    Although the Jenner haulout is not a designated pupping beach, pups 
have been observed during the pupping season; therefore, NMFS has 
evaluated the potential for injury or mortality to pups should an 
management event occur when pups are present. To do so, NMFS has 
inquired about pups from monitoring data. Since monitoring began in 
1987, there are records of only two stampedes, both of which occurred 
prior to 1999 when equipment entered the beach before crews. Under the 
proposed mitigation, equipment would not enter onto the beach before 
crews. Stampeding or dead pups have not been observed during monitoring 
of the Agency's artificial breaching activities since those events. 
Implementation of the lagoon outlet channel, as required by NMFS' 
Russian River Biological Opinion, has not yet begun, but the potential 
direct effects on harbor seals and their pups would be expected to be 
similar to artificial breaching activities as construction methods 
would be very similar. Any Stellar sea lions or California sea lions on 
the beach are expected to be juveniles or adults; therefore, there 
would be no impact to the survival of pups of these species.
    The opportunity for mother/pup bonding at the Jenner haulout is not 
expected to be impacted by implementation of the lagoon outlet channel 
or artificial breaching activities. The peak of pupping season is 
likely by mid-May in most years, and implementation of the lagoon 
outlet channel would begin around May 15th (as required by the Russian 
River Biological Opinion). By this time, it is expected that 
``bonding'' between mothers and pups would have likely occurred. The 
number of artificial breaching activities during the months of March, 
April and May has been relatively low in the past (see Table 1 of the 
Agency's IHA application), and the breaching activities occur in a 
single day over several hours. Artificial breaching activities are not 
expected to impact mother/pup bonding.
    Based on the extensive monitoring data, NMFS has preliminary 
determined that impact to pinnipeds on the beach during Estuary 
management activities would be limited to short-term (i.e., one day or 
less) behavioral harassment in the form of alertness or flushing. 
Because crews would approach the beach slowly and cautiously, 
stampeding, and therefore injury or mortality, is not expected nor is 
it documented in the years of monitoring data as a result of breaching 
activities. Further, the lack of evidence of permanent abandonment of 
the haulout despite the Agency breaching the beach for years indicates 
long term or permanent abandonment of the haulout is unlikely.

Anticipated Take

    The Agency is requesting, and NMFS is proposing, authorization to 
take harbor seals, California sea lions, and northern elephant seals, 
by Level B harassment only, incidental to beach based construction work 
involving the use of excavators and support vehicles and activities 
required by monitoring set forth in the BiOp. The estimates of the 
number of Pacific harbor seals, California sea lions, and northern 
elephant seals that may be harassed by the proposed activities is based 
upon the number of potential events associated with Russian River 
estuary management activities (see Table 3 in the application) and the 
average number of individuals of each species that are present at the 
Jenner haulout during bar-closed conditions (Table 1).
    The numbers of events associated with lagoon outlet channel 
management are split into two categories: (1) initial channel 
excavation, which would likely occur between May and September, and (2) 
maintenance and monitoring of the outlet channel, which would continue 
until October 15th. The Estuary has not remained closed for extended 
periods of time (greater than 14 days), particularly in the summer 
months, since regular counts of pinnipeds at the Jenner haulout began. 
It is difficult to estimate the numbers of seals that may be hauled out 
on the barrier beach when the lagoon is formed; however, harbor seals 
are regularly observed crossing overland from the Pacific Ocean to haul 
out on the Estuary side of the beach, even in bar-open conditions, so 
it is anticipated

[[Page 58254]]

that seals would continue to use the haulout in bar-closed, lagoon 
conditions. Based on pinniped monitoring from 1996 to 2000 associated 
with artificial breaching events, the average number of harbor seals 
hauled out during barrier beach-closed conditions can be used to 
estimate the number of individuals that may be harassed by both lagoon 
outlet channel and artificial breaching activities. Both activities 
would likely be implemented soon after a beach closure (within 14 
days), so the data presented in Table 1 would be reasonable for the 
take estimates from April to November. Because the lagoon outlet 
channel implementation dates cannot be determined yet (they are 
dependent on when the barrier beach naturally closes after May 15th), 
the highest average number of harbor seals presented in Table 4b in the 
application was used to conservatively estimate the number of seals 
that may be taken during barrier beach-closed conditions and excavation 
of the lagoon outlet channel (Table 1). For maintenance and monitoring 
activities associated with the lagoon outlet channel, the average 
number of harbor seals for each month (see Table 4b in the application) 
was used. Harbor seal numbers presented in Table 4a in the application 
were used to estimate take associated with artificial breaching from 
December to March as this was the best information available for those 
months and overlapped with the peak in harbor seal numbers at the 
Jenner haulout. For biological and physical habitat monitoring 
activities in the Estuary, it was assumed that pinnipeds may be 
encountered once per event and flush from a river haulout.
    The estimated potential total number of individual animals that may 
be taken equates to the maximum number of seals of each species 
anticipated to be encountered per event multiplied by the estimated 
number of events during the term of the IHA (Table 1). The potential 
total number of individual animals that may be taken is likely an 
overestimate because the same seal would likely be taken multiple times 
throughout the season.
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Anticipated Effects on Habitat

    The purposes of the lagoon outlet channel management and artificial 
breaching activities are to manage the sandbar to improve summer 
rearing habitat for juvenile salmonids in the Russian River estuary and 
to minimize potential flood risk to low-lying properties near on the 
Estuary, respectively. These activities would result in physical 
alterations of the Jenner haulout but are essential to conserving and 
recovering endangered salmonid species (which are important prey for 
pinnipeds). When the barrier beach closes, water surface elevations in 
the Estuary rise, resulting in an increase in elevation of the beach 
and flooding of other haulouts in the Russian River. For the summer 
lagoon outlet channel, elevations would be targeted between 4 and 9 ft 
NGVD. For artificial breaching activities, the sandbar would be 
breached when water surface elevations ranged from 4.5 and 7 ft NGVD.
    The lagoon outlet channel would alter the beach by creating a 
shallow outlet channel that would convey river flow to pass over the 
sandbar and minimize or eliminate tidal exchange from 1st to October 
15th. The gentle slope of the outlet channel would allow seals to 
travel through the channel, although the shallow depths (0.5 to 2 ft.) 
would likely not allow for swimming through the channel. Depending on 
the barrier beach height and the location of the river's thalweg when 
the beach closes, part of the outlet channel may be constructed in 
areas where seals typically haul out on the Estuary side. The outlet 
channel would be maintained from May 15 to October 15, annually. After 
October 15th, the closed barrier beach would be artificially breached 
when water surface elevations in the Estuary approach 7.0 feet NGVD as 
read at the Jenner visitor's center gauge. Artificial breaching 
activities alter the habitat by creating a pilot channel through the 
closed sandbar. The location of the pilot channel is dependent on the 
height and width of the sandbar and the location of the river's 
thalweg.
    Changes in haulout elevation regularly occur with the tides at this 
site and any habitat that would be impacted by side cast sand would be 
temporary. Pinnipeds seeking to haul out would still have access to the 
estuary/lagoon waters and would likely continue to naturally flush into 
the water during high water surface elevation periods. Therefore, the 
natural cycle of using the Jenner haulout on a daily basis is not 
expected to change. Modification of habitat resulting from construction 
of the lagoon outlet channel or artificial breaching pilot channel 
would also be temporary in nature. Harbor seals are regularly observed 
crossing overland from the Pacific Ocean to haul out on the Estuary 
side of the beach, even in bar-open conditions, so it is anticipated 
that seals would continue to use the haulout in bar-closed, lagoon 
conditions.
    In summary, there will be physical alteration of the beach and 
potential impacts to other, smaller haulouts located up the Russian 
River. However, the beach opens and closes naturally resulting in the 
same impacts to habitat; therefore, seals are likely adapted to this 
cycle. In addition, the increase in rearing habitat quality has the 
goal of increasing salmon abundance, ultimately providing more food for 
seals present within the action area.

Proposed Mitigation

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable adverse 
impact on such species or stock and its habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stock for 
taking for certain subsistence uses.
    The Agency has proposed the following mitigation measures designed 
to minimize impact to affected species and stocks: (1) Agency crews 
would slowly and cautiously approach the haulout ahead of the heavy 
equipment to minimize the potential for flushes to result in a 
stampede, a particular concern during pupping season; (2) Agency staff 
would avoid walking or driving equipment through the seal haulout; (3) 
Crews on foot would take caution to approach the haulout slowly and to 
make an effort to be seen by the seals from a distance, if possible, 
rather than appearing suddenly at the top of the sandbar; and (4) 
during breaching events all monitoring would be conducted from the 
overlook on the bluff along Highway 1 adjacent to the haulout in order 
to minimize potential for harassment. Personnel on the beach would 
include up to two equipment operators, three safety team members on the 
beach (one on each side of the channel observing the equipment 
operators, and one at the barrier to warn beach visitors away from the 
activities), and one safety team member at the overlook on Highway 1 
above the beach. Occasionally, there would be two or more additional 
people on the beach (Agency staff or regulatory agency staff) on the 
beach to observe the activities. Agency staff would be followed by the 
equipment, which would then be followed by an Agency vehicle (typically 
a small pickup truck, the vehicle would be parked at the previously 
posted signs and barriers on the south side of the excavation 
location). Equipment would be driven slowly on the beach and care would 
be taken to minimize the number of shut downs and start ups when the 
equipment is on the beach. Channel construction and modifications would 
be initiated during low tide so that after several hours of work, the 
removal of the final portion of the beach berm occurs near high tide. 
This would minimize the head difference between the estuary and ocean, 
reducing the potential for the reconnected channel to scour into a 
fully tidal inlet.
    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of affecting the least 
practicable adverse impact on the affected marine mammal species and 
stocks and their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another: (1) 
the manner in which, and the degree to which, the successful 
implementation of the measure is expected to minimize adverse impacts 
to marine mammals, (2) the proven or likely efficacy of the specific 
measure to minimize adverse impacts as planned; (3) the practicability 
of the measure for applicant implementation, including consideration of 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    NMFS has preliminarily determined that the proposed mitigation 
measures provide the means of effecting the least practicable adverse 
impacts on marine mammals species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance.

Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for IHAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on

[[Page 58257]]

populations of marine mammals that are expected to be present.
    The applicant has developed the Russian River Estuary Management 
Activities Pinniped Monitoring Plan which describes the proposed 
monitoring efforts. This Plan can be found on the NMFS website at 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm. In summary, 
monitoring includes the following:

Lagoon Outlet Channel and Artificial Breaching Event Monitoring

    Should the mouth close during the lagoon management period (May 
15th to October 15th), the Agency would construct a lagoon outlet 
channel as described above. A one-day pre-outlet channel survey would 
be made within 1-3 days prior to constructing the outlet channel and 
the day of construction. Monitoring would also occur on each subsequent 
day the channel is maintained using heavy equipment for the duration of 
the outlet channel period (May 15 to October 15). In addition to pre-
construction and construction/maintenance days, seal counts would also 
be conducted twice monthly for the life of the IHA to gain a better 
understanding about what specific conditions seals may prefer for 
hauling out at the mouth of the river. This baseline information will 
provide the Agency with details so that they may plan Estuary 
management activities around prime seal haulout times in the future. 
These monthly counts would begin at dawn and continue for 8 hours, if 
weather permits, and be scheduled to capture a low and high tide each 
in the morning and afternoon.
    During artificial breaching events, half-hour counts of all 
pinnipeds hauled out on the beach would begin at local dawn the day of 
the breaching event and continue for approximately five hours. 
Monitoring may occasionally last longer than five hours when artificial 
breaching activities occur in late morning or early afternoon. 
Pinnipeds would be monitored from the overlook on the bluff along 
Highway 1 adjacent to the haulout.
    For all counts, the following information would be recorded in 30 
minute intervals from an overlook on a bluff to avoid harassment from 
the monitoring: (1) seal counts, by species; (2) behavior; (3) time, 
source and duration of disturbance; (4) estimated distances between 
source and seals; (5) weather conditions (e.g., temperature, wind, 
etc.); and (5) tide levels and Estuary water surface elevation. The 
method and disturbance behavior would be recorded following Mortenson 
(2006). In summary, Level 1 indicates an alert reaction where the seal 
may turn its head towards the disturbance; Level 2 involves movement 
from short distances to many meters but does not enter water; and a 
Level 3 reaction includes flight or flushing to the water. In an 
attempt to understand possible relationship between use of the Jenner 
haulout and nearby coastal and river haulouts, several other haulouts 
in the Estuary, which were extensively monitored from 1994-1999, would 
also be monitored (see Figure 2 in the IHA application for locations of 
these haulouts).

Long Term Monitoring

    In addition to monitoring on event days, pinnipeds at the Jenner 
haulout would be counted twice monthly for the term of the IHA in the 
same manner as described above. In an attempt to understand if seals 
from the Jenner haulout are displaced to coastal and river haulouts 
nearby when the mouth remains closed in the summer, several other 
haulouts, on the coast and in the Russian River estuary, would be 
monitored (Figure 2 in application). These haulouts include North 
Jenner and Odin Cove to the north, Pocked Rock, Kabemali, and Rock 
Point to the south, and Jenner logs, Patty's Rock, and Chalanchawi in 
the Russian River estuary. Each of these coastal and river haulouts 
would be monitored concurrent with monitoring of outlet channel 
construction and maintenance activities. This would provide an 
opportunity to qualitatively assess if these haulouts are being used by 
seals displaced from the Jenner haulout during lagoon outlet channel 
excavation and maintenance. This monitoring would not provide 
definitive results that individuals from the Jenner haulout are 
displaced to the coastal and river haulouts as individual seals would 
not be marked; however, it would useful to track general trends in 
haulout use during lagoon outlet channel excavation and maintenance.
    An annual report would be prepared and distributed to the NMFS, 
California State Parks, and Stewards of the Coasts and Redwoods. The 
report would also be available to the public on the Agency's website. 
The annual report would include an executive summary, monitoring 
methodology, tabulation of estuary management events, summary of 
monitoring results, and discussion of problems noted and proposed 
remedial measures.

Negligible Impact and Small Numbers Analysis and Determination

    In determining whether or not authorized incidental take will have 
a negligible impact on affected species stocks, as defined in 
Background section above, NMFS considers a number of criteria regarding 
the impact of the proposed action including the number, nature, 
intensity, and duration of Level B harassment takes will occur. 
Specific to the proposed action, NMFS has preliminarily determined 
that, although the Agency's Estuary Management Activities will impact a 
majority of pinnipeds at the Jenner haulout during construction and 
maintenance of the lagoon outlet channel and sandbar breaching events, 
as well as recurring monitoring activities, impacts are occurring to 
small, localized population. Further, no mortality or injury is 
anticipated, nor will the proposed action result in long-term impacts 
such as permanent abandonment of the haulout. This is evident from 
continued use of the haulout despite the sandbar being artificially 
breached for years and monitoring data indicating the seals generally 
return to the haulout within one day. Seals will likely become alert or 
flush into the water when crews and equipment come on to the beach. 
Further, breaching the sandbar leads to an increase in seal abundance 
on the beach, likely due to fact that humans can not access the haulout 
when the sandbar is breached, thereby limited additional disturbance. 
In addition, the lagoon management plan may provide ideal rearing 
habitat for listed steelhead and thereby increasing the availability of 
this species as prey for the seals.
    No pinniped stocks which may be found within the action area is 
listed as threatened or endangered under the ESA or listed as depleted 
under the MMPA. Harbor seal populations are theorized to have reached 
the environment's carrying capacity and populations of California sea 
lions and northern elephant seals are also considered healthy. The low 
level, acute disturbance to pinnipeds at the Jenner haulout from the 
proposed action is not anticipated to have more than a negligible 
impact to the affected species and stocks. To ensure minimal 
disturbance, crews will, along with other minimization measures 
described above, approach the beach slowly and cautiously before heavy 
equipment to reduce chance of stampeding and will also reduce the 
frequency and stager days of Estuary maintenance and breaching events 
minimizing continued disturbance.
    Marine mammal species and stocks affected by the proposed 
activities are not listed as threatened or endangered under the ESA or 
as depleted under the MMPA. The proposed number of animals taken for 
each species of

[[Page 58258]]

pinnipeds can be considered small relative to the population size. As 
described in the species description section above, the latest stock 
assessments estimate there are 34,233 harbor seals (which may have 
reached OSP levels), 238,000 California sea lions (increasing at 
approximately 6.5 percent per year), and 124,000 northern elephant 
seals (also increasing in number in the U.S.). The applicant has 
requested, based on numerous monitoring data specific to the affected 
haulout, that approximately 2,861 harbor seals (approximately 8 percent 
of the population), 16 California sea lions (approximately 0.006 
percent of the population), and 11 northern elephant seals (0.008 
percent of the population) may be taken each year. However, because it 
is not possible to identify individual animals over the course of the 
year from the proposed monitoring (seals would have to be tagged and 
observed closely to do so), these numbers represents the total number 
of seals observed harassed during monitoring, not individuals. 
Therefore, an even smaller percentage of individuals from each 
population are likely to taken from the proposed activities.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, NMFS preliminarily finds that Estuary management activities 
will result in the incidental take of small numbers of marine mammals 
and that the total taking from will have a negligible impact on the 
affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action as none are present within the action area.

Endangered Species Act (ESA)

    There are no ESA listed marine mammals found in the action area; 
however, there are listed salmon and steelhead species present. The 
Agency and the U.S. Army Corps of Engineers (Corps) consulted with NMFS 
under Section 7 of the Endangered Species Act (ESA) regarding the' 
potential effects of their operations and maintenance activities, 
including the Agency's estuary management program, on federally-listed 
steelhead, coho salmon, and Chinook salmon that resulted in the 
likelihood of jeopardy and adverse modification of critical habitat. As 
a result of this consultation, the NMFS issued the Russian River 
Biological Opinion (NMFS, 2008) finding that artificially elevated 
inflows to the Estuary during the low flow season (May through October) 
and historic artificial breaching practices have significant adverse 
effects on the Russian River's estuarine rearing habitat for steelhead, 
coho salmon, and Chinook salmon. The BiOp's RPA 2 requires the Agency 
to collaborate with NMFS and to modify Estuary water level management 
in order to reduce marine influence (high salinity and tidal inflow) 
and promote a higher water surface elevation in the estuary (i.e., 
formation of a fresh or brackish lagoon) for purposes of enhancing the 
quality of rearing habitat for juvenile (age 0+ and 1+) steelhead from 
May 15th to October 15th (lagoon management period), hence the need for 
the proposed action. The BiOp fully considered the effects to listed 
species in the action area in drawing the conclusion that Estuary 
management activities conducted in accordance with RPAs would not 
result in jeopardy to any species or cause the modification or 
destruction of designated critical habitat. Any potential take of 
listed species associated with Estuary management activities is 
permissible if conducted in accordance with the Incidental Take 
Statement in the BiOp. Again, no listed marine mammals would be 
affected by the action.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), and 
NOAA Administrative Order 216-6, NMFS is preparing an Environmental 
Assessment (EA) to consider the direct, indirect and cumulative effects 
to pinnipeds and other applicable environmental resources resulting 
from issuance of a one-year IHA and the potential issuance of 
additional authorization for incidental harassment for the ongoing 
project. Upon completion, this EA will be available on the NMFS website 
listed in the beginning of this document.

Preliminary Determination

    The applicant has submitted a complete application for incidental 
take of pinnipeds for specified activities in a specified geographic 
region for a period not to exceed one year. NMFS has preliminarily 
determined that the specified activities would result in short-term, 
Level B harassment to pinnipeds located within the action area during 
construction and maintenance of the lagoon outlet channel and during 
sandbar breaching events. Reactions are anticipated to be limited to 
alertness, movement, or flushing in response to crew or equipment 
presence. Seals are expected to return to the beach within one day, as 
shown in the Agency's five years of monitoring data. Due to the 
proposed mitigation measures (e.g., crews approaching on foot slowly 
and cautiously), stampeding is unlikely and therefore mortality, a 
concern during the pupping season, is not expected. All Estuary 
management activities will be monitored by NMFS approved MMOs; thereby, 
documenting the number of pinnipeds, nature of disturbance, and number 
of level of take during each event. For these reasons, NMFS has 
preliminarily determined that the specified activity would result in 
the take of small numbers of marine mammal species or stocks, would 
result in a negligible impact on the affected species and stocks, and 
would not have an unmitigable adverse impact on the availability of 
such species or stock for taking for subsistence uses as there are no 
such uses for these pinniped species in California.

    Dated: November 2, 2009.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E9-27183 Filed 11-10-09; 8:45 am]
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