[Federal Register Volume 75, Number 65 (Tuesday, April 6, 2010)]
[Notices]
[Pages 17382-17391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7763]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XQ82


Small Takes of Marine Mammals Incidental to Specified Activities; 
Russian River Estuary Water Level Management Activities, California

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

ACTION:  Notice; issuance of incidental harassment authorization.

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SUMMARY:  In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), notification is hereby given that NMFS 
has issued an Incidental Harassment Authorization (IHA) to the Sonoma 
County Water Agency (herein after ``Agency'') to take small numbers of 
marine mammals, by Level B harassment, incidental to Russian River 
Estuary (Estuary) water level management and monitoring activities at 
the mouth of the Russian River, Jenner, CA.

DATES:  Effective from April 1, 2010, through March 31, 2011.

ADDRESSES:  A copy of the IHA, application and Environmental Assessment 
(EA) prepared for this action are available by writing to Michael 
Payne, Chief, Permits, Conservation, and Education Division, Office of 
Protected Resources (OPR), National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910-3225, by telephoning the 
contact listed here (FOR FURTHER INFORMATION CONTACT) or online at: 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in 
this notice may 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.

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 (Secretary) to allow, upon request, 
the incidental, but not intentional, taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) if certain findings are made and regulations are issued or, if 
the taking is limited to harassment, notice of a proposed authorization 
is provided to the public for review.
    Authorization for incidental takings may 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 certain 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. 
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.
    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

    On September 22, 2009, NMFS received a complete application from 
the Agency requesting a one-year IHA to take, by Level B harassment, up 
to 2,861 harbor seals (Phoca vitulina richardii), 16 California sea 
lions (Zalophus califonianus), and 11 northern elephant seals (Mirounga 
angustirostris) incidental to estuary water level management events and 
monitoring activities. The management events involve the use of heavy 
equipment (e.g., bulldozers, excavators) to either (1) excavate a 
relatively steep, narrow pilot channel directly through the barrier 
beach which naturally forms at the mouth of the Russian River (the 
Agency's current breaching method); or (2) excavate and maintain a 
stable, relatively low velocity lagoon outlet

[[Page 17383]]

channel diagonally across the barrier beach. In addition, physical and 
biological monitoring mandated by the Biological Opinion referenced 
below would be conducted within the action area to determine, among 
other things, water quality dynamics and impacts to harbor seals. The 
purpose of the water level management events is to reduce flooding risk 
to low-lying residential properties built along the estuary; however, 
the lagoon outlet channel is also intended to comply with Reasonable 
and Prudent Alternative (RPA) 2 prescribed NMFS' 2008 Biological 
Opinion (BiOp) on 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. The purpose of the RPA is to preserve beach sands and 
maintain productive rearing habitat for Pacific salmonids listed as 
threatened or endangered pursuant to statutes of the Endangered Species 
Act of 1973, as amended (ESA). All estuary water level management 
events require the use of heavy equipment (e.g., bulldozers, 
excavators) on Goat Rock State Beach, the location of a large harbor 
seal colony. The presence of crew and equipment will result in Level B 
(behavioral) harassment to the aforementioned species. Pinnipeds hauled 
out on the beach may become alert, move to another area of the beach or 
upriver, or flush into the water. Hence, an MMPA authorization is 
warranted.

Specified Activities

    On November 12, 2009, NMFS proposed issuance of an IHA to the 
Agency in the Federal Register (74 FR 58248) for the take of marine 
mammals incidental to Estuary water level management and monitoring 
activities. A detailed description of the specified activities can be 
found in that notice, the IHA application, and NMFS' EA. However, since 
that notice, the Agency has altered its lagoon outlet channel design 
configuration which will require less consecutive days of work. A 
summary of the description of each current method (i.e., breaching or 
lagoon outlet channel creation and maintenance) is provided here.
    When ocean waves build up a barrier beach across the river's mouth, 
the Russian River estuary forms a lagoon that is hydraulically isolated 
from the marine environment, except for occasional wave overwash. 
Freshwater inflow from upstream and rain causes this lagoon to slowly 
gain in volume and depth. Currently, when water levels rise in this 
lagoon to a point which threatens flooding (4.5 - 7 ft ), the Agency 
will mechanically cut a deep, narrow pilot channel through the barrier 
beach, usually down the middle of the beach. This process, referred to 
as ``breaching,'' will cause the lagoon to reconnect to the ocean 
resulting in a tidal system with a nearly marine salinity of 28 parts 
per thousand as far upstream as the mouth of Sheephouse Creek. This 
practice also causes the estuary to become very shallow, subject to 
water quality dynamics that are neither natural nor optimal for the 
survival of large numbers of small, juvenile ESA-listed salmonids, and 
results in 10-20 thousand cubic inches of sand to be blown offshore. 
The size of the resulting pilot channel varies depending on the height 
of the sand bar to be breached, the tide level, and the elevation of 
the estuary at the time of breaching. Typically, breaching will result 
in a pilot channel approximately 100 ft long by 25 ft wide and 6 to 8 
ft deep (Corps and Agency 2004, NMFS 2005).
    During ESA Section 7 consultation, NMFS concluded that breaching 
water management practices, when conducted during salmonid smolting and 
rearing times, was jeopardizing the continued existence of the 
threatened Central California Coast (CCC) steelhead (Oncorhynchus 
mykiss) Distinct Population Segment (DPS) and adversely modifying 
critical habitat for CCC steelhead, endangered California Coast coho 
salmon (O. kisutch), and threatened California Coast Chinook salmon (O. 
tshawytscha). As such, NMFS developed and included an RPA in the 
aforementioned BiOp requiring the Agency to conserve beach sands and 
maintain a more viable productive rearing habitat (i.e., deeper, 
freshwater) for Pacific ESA-listed salmonids. To comply with this RPA, 
the Agency originally proposed creating a shallow, wide outlet channel, 
which could require up to four days of heavy machinery work to 
construct. However, in coordination with NMFS, the Agency has re-
evaluated the engineering design of this channel and has developed a 
configuration which will be more similar to current breaching methods; 
this design will require no more than two consecutive work days and 
little maintenance. NMFS has included appropriate mitigation measures 
in the IHA limiting the number of consecutive work days and allowing 
for adequate seal recovery periods while still controlling flooding and 
maintaining vital fish rearing habitat (see Mitigation section below).
    The Agency will also conduct physical and biological monitoring to 
measure 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. The Agency is required by NMFS' 
2008 BiOp and other state and federal permits to collect biological, 
water quality, and physical habitat data in conjunction with estuary 
management. 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 
RPA-directed monitoring activities occur in the vicinity of river haul 
outs. Table 2 in the Agency's application describes in detail the 
monitoring tasks associated with Russian River estuary management plan.

Marine Mammals Affected by the Activity

    Marine mammals present within the action area will be disturbed by 
Agency personnel and equipment on the beach during estuary water level 
management activities. Historic visual monitoring of harbor seals at 
the Jenner haulout has been conducted by local residents since 1985, 
the Agency during breaching events from 1996-2000, and more recently by 
Seal Watch (a monitoring program formed by volunteers of the Stewards 
of the Coast and Redwoods). Therefore, extensive data sets of pinniped 
abundance are available. A complete description of marine mammals 
affected by the proposed action, including monitoring data summaries, 
may be found in the proposed IHA Federal Register notice (74 FR 58248). 
In summary, harbor seals are the most abundant marine mammal found at 
the mouth of the Russian River and use the haulout for resting, 
pupping, and molting. Pupping season is March 15 - June 30. California 
sea lions and northern elephant seals are occasionally present and 
therefore also have the potential to be harassed from water level 
management and monitoring activities.

Potential Effects of Specified Activities on Marine Mammals

    In addition to Seal Watch and local resident seal census data 
collection, the Agency conducted extensive monitoring during breaching 
activities from 1996-2000. In all five years of monitoring, no 
stampedes were recorded; however, most seals will flush off the beach 
in

[[Page 17384]]

response to approaching personnel. Agency crew walk the beach slowly 
ahead of heavy machinery to avoid major startle responses. The number 
of seals hauled out on the barrier beach was generally low when it was 
closed 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). 
Data from Seal Watch and local residents also indicate that seals are 
less abundant when the barrier beach is closed. Locals speculate that 
because people can access the beach more readily when the barrier beach 
is closed; they disturb the seals causing a decline in abundance. 
However, 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 any 
case, there are less seals present when the barrier beach is closed, 
the time when the Agency will begin a water level management event.
    Monitoring data indicate that seals react to Agency crew 
approaching the beach and their equipment in similar manners as they do 
to beachgoers, kayakers, and unusually loud local traffic from adjacent 
Hwy 1 (e.g., motorcycles). That is, seals will become alert, flush into 
the water, or move some distance down the beach from approaching crew 
and equipment. Seals generally return to the beach within one hour to 
one day of equipment leaving the beach. 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. Since 1999, and 
under the IHA, personnel will slowly walk the beach ahead of equipment, 
alleviating the risk of stampeding. Agency personnel conducting 
physical and biological would also abide by these procedures.
    As stated previously, the Agency has altered its specified activity 
such that the configuration of the lagoon outlet channel is more 
similar to current breaching methods, resulting in less consecutive 
work days. NMFS expects the immediate impacts from presence of crew and 
heavy machinery on the beach to continue to be short-term changes in 
seal behavior (e.g., alertness, flushing). No long-term impacts to 
haulout use at the Jenner haulout as been identified from current 
breaching methods. An analysis of variance (ANOVA) test showed no 
significant difference in average monthly seal counts between 1993-2002 
(p= 0.743), despite the Agency breaching the barrier beach since 1995. 
However, because machinery would not be on the beach for more than 2 
consecutive days, impacts will be minimized.
    NMFS has included additional mitigation measures for water level 
management activities during the pupping season in the final IHA. The 
measures prevent, to the maximum extent possible, avoiding work if 
young pups are on the beach, reduce the consecutive number of days 
equipment may work during this time, and establish a ``recovery 
period'' between events (see Mitigation and Monitoring below). For 
these reasons and those explained in the response to comments below, 
NMFS has determined that the Agency's breaching activities, whatever 
the outlet design, will result in, at most, short-term Level B 
(behavioral) harassment.

Effects on Marine Mammal Habitat

    In addition to natural breaching, the Agency has mechanically 
breached the barrier beach at the mouth of the Russian River since 
1995. Prior to 1995, artificial breaching was done by the County of 
Sonoma Public Works Department and by local citizens. The Jenner 
haulout is currently the largest harbor seal haulout in Sonoma County 
despite year-round breaching events. The proposed outlet design during 
the lagoon management period will deviate from the current design (it 
will be wider and cut diagonally); however, this change in 
configuration is not expected to impact pinniped use of the haulout as 
an opening from the lagoon to the ocean will still be created.

Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on November 12, 
2009 (74 FR 58248). During the 30-day public comment period, six 
members of the public and the Marine Mammal Commission (Commission) 
provided comments.
    Comment 1: Based on its review of the application and Federal 
Register notice, the Marine Mammal Commission (Commission) concurs with 
NMFS' determination that the proposed activities will result, at most, 
in the temporary modification of pinniped behavior and will have a 
negligible impact on the stocks. The Commission's concurrence is 
contingent upon implementation of the proposed mitigation and 
monitoring measures described in the proposed IHA notice.
    Response: The IHA contains all mitigation and monitoring measures 
identified in the proposed IHA notice and additional mitigation as 
described in this notice to further ensure impact to pinnipeds is at 
the lowest level practical.
    Comment 2: The Agency provided four comments clarifying text in the 
Federal Register notice pertaining to: (1) to which organization seal 
monitoring volunteers belong; (2) a correction on CC Chinook salmon and 
their critical habitat not being part of the NMFS BiOp jeopardy 
opinion; (3) information on who breached the barrier beach before the 
Agency was responsible for this activity; and (4) a single sentence 
structure correction.
    Response: NMFS has noted the information provided in these 
comments; however, they do not provide any substantial input which will 
affect NMFS' decision making process and therefore will not be 
discussed further.
    Comment 3: Four members of public expressed concern with the 
overall health and general management activities of the entire Russian 
River ecosystem, including, but not limited to, presence and operation 
of dams upriver, wastewater issues, water diversion practices upriver, 
that the Russian River should no longer be considered a ``naturally'' 
flowing stream due to these and other man made influences, and the 
presence of a jetty which was constructed by the U.S. Army Corps of 
Engineers (Corps) nearly seven decades ago near the mouth of the river. 
Many comments received requested NFMS to consider impacts to the entire 
ecosystem from issuance of the IHA, not just marine mammals.
    Response: An IHA solely authorizes harassment to marine mammals. 
The permit to actually conduct the activity is distributed by the 
Corps. For example, if no marine mammals will be harassed by the 
activity (e.g., no seals were on the beach), the Agency will be able to 
move forward with the activity and not be in violation of the MMPA. 
However, because seals are often on the beach, and therefore, there is 
potential for harassment, an IHA under the MMPA is warranted.
    For purposes of issuing an IHA, NMFS must consider the applicant's 
specified activities and how those activities impact affected marine 
mammal species and stocks. The activities specified by the Agency are 
limited to either breaching the barrier beach (i.e., the current 
practice of creating a deep, narrow cut in the sandbar resulting in a 
tidally influenced estuary) or creating a lagoon outlet channel (i.e., 
excavating a channel across the beach allowing the river to flow to the 
ocean yet minimizing tidal inflow). Both methods use heavy

[[Page 17385]]

equipment (e.g., bulldozer or excavator) to reduce flooding to low 
lying communities adjacent to the estuary in Jenner, CA; presence of 
crew and equipment on the beach has the potential to harass pinnipeds. 
In addition, the Agency will conduct biological and physical monitoring 
of the estuary which may also result in pinniped harassment. NMFS can 
not make determinations or regulate, through an IHA, any activities not 
identified in the application (e.g., upriver management activities) or 
those by persons other than the applicant (e.g., the Corps).
    Comment 4: Public comments were received regarding the impact the 
specified activities will have on non-listed birds and other wildlife 
and how management activities of the Russian River ecosystem in general 
(e.g., dams, diversion practices) impair ESA-listed salmon survival. 
The public considered the specified estuary management activities to be 
detrimental to these species.
    Response: The purpose of the IHA is to issue the Agency 
authorization to harass marine mammals provided that harassment has a 
negligible impact on the affected species or stock. The IHA process 
does not analyze impacts or regulate harassment to species other than 
marine mammals under NMFS' jurisdiction (e.g., ESA-listed salmon) or 
those species not under NMFS' jurisdiction (e.g., shorebirds). NMFS 
notes that the purpose of modifying the Agency's current breaching 
practice is to enhance and conserve ESA-listed salmonids.
    Comment 5: One commenter implied that modifications to the beach 
from the Agency's lagoon outlet channel creation and maintenance 
activities will not be small departures from the existing beach and 
channel topography, as stated in the proposed IHA notice and Agency's 
application, and that to say so is, among other things, ``undocumented 
and unsupported.''
    Response: Rather than creating an artificial tidal inlet through 
the barrier beach by ripping a deep cut through the center of the 
barrier beach, which happens during current breaching practices, the 
Agency will maintain river outflow to the sea by constructing a cut 
which does not allow the lagoon to become tidal; a result consistent 
with natural processes as observed and documented at unmanaged river 
mouth estuaries of the California Coast (NMFS 2008). As such, 
modifications to the barrier beach will indeed be small departures from 
the existing beach and channel topography at the time of closure.
    Comment 6: One commenter provided factual information that the 
Jenner haulout is not only the largest in Sonoma County, as described 
in the proposed IHA notice and Agency's application, but also the 
largest north of Drakes Estero in Marin County and the Eel River in 
Mendocino County. She also included that local residents, Elaine Twohy 
and Joe Mortenson, Pt. Reyes National Seashore, and NMFS have conducted 
seal counts in the area. The commenter went on to note the roles of 
Seal Watch in monitoring the seals at the Jenner haulout.
    Response: NMFS notes these comments. NMFS has been in contact with 
Ms. Twohy, Mr. Mortenson, and Seal Watch organizers prior to releasing 
the proposed IHA notice and consulted with them for data throughout the 
IHA process. The Agency's application and monitoring plan also notes 
the roles these people and organizations play in monitoring harbor 
seals and people at the Jenner haulout and summarizes data collected by 
the persons mentioned in the comment.
    Comment 7: One commenter, a Seal Watch volunteer, argued that 
``stampedes are not as infrequent as stated. In fact they occur 
often.'' She justifies this comment with her personal account of 
watching ``total flushing of the haulout due to the presence of people 
on the beach, kayakers, sail boats, and motor boats approaching too 
close'' and that when Seal Watch is not present, people ignore posted 
signs warning not to approach too closely. The commenter suggests 
consulting with Elinor Twohy and her data ``will no doubt likewise 
confirm cases of full abandonment of the haulout.''
    Response: The commenter inappropriately uses the terms 
``stampede,'' ``flush,'' and ``full abandonment'' interchangeably. For 
example, all seals may flush into the water, resulting in full 
abandonment; however, that does not mean the seals stampeded (defined 
here as a sudden rush of a group of panic-stricken animals into the 
water which has the potential to result in injury). The commenter 
suggested consulting Ms. Twohy and her data; however, as described in 
the application and proposed Federal Register notice, the Agency and 
NMFS did indeed solicit data from Seal Watch and Ms. Towhy to determine 
if stampeding had occurred from the specified activities. No data sets 
included information on if a stampede or flush was evident. Data 
included only date, time, etc., environmental conditions, number of 
seals on the beach (no pups distinguished), number of people on the 
beach, and which side of the spit seals were sighted. The Agency; 
however, did monitor for stampedes and flushing during its breaching 
events from 1996-2000. No stampedes were recorded. NMFS also consulted 
with Mr. Mortenson, another local resident who has collected 
information on seal abundance and behavior at the Jenner and 
surrounding haulouts since 1987. He indicated that stampedes do not 
occur in response to anthropogenic disturbance; however, total flushing 
of all seals on the beach may occur.
    Under the IHA, the Agency crew will gradually alert seals to their 
presence by approaching the breaching site slowly and cautiously on 
foot ahead of heavy equipment. Crew will also walk the path to the 
breaching site ahead of the equipment should any seals be hauled-out 
along the way. These mitigation measures have been voluntarily carried 
out by the Agency and, as shown in the Agency's 1996-2000 monitoring 
data, are effective at eliminating stampeding. The Agency will continue 
to monitor seal behavior, including if a stampede occurs, as defined 
above, and provide that information to NMFS in a report. Based on 
previous monitoring data and mitigation measures, NFMS does not 
anticipate stampeding will occur in response to the Agency's specified 
activities. Further, Level A harassment (injury), serious injury, or 
mortality is not authorized in the IHA.
    Comment 8: One commenter argued that the statement in the proposed 
IHA notice such as ``[mldr]although the Agency's operations may harass 
pinnipeds present on the beach, it is likely many have left due to the 
presence of people[mldr]'' is ``especially troubling[mldr]because it is 
impossible to unequivocally state that many seals will have left the 
beach due to the presence of people[mldr]and that abandonment/flushing 
does not happen on a daily basis.'' She justifies this argument with 
``When Seal Watch is present, flushing or stampedes from people walking 
on the beach are pretty much eliminated and at times when Seal Watch is 
not present (weekdays), people actually observe the posted warning 
signs, thus flushing of seals does not occur all the time.''
    Response: Comments 7 and 8 were supplied by the same member of the 
public. Therefore, she has supplied two contrary arguments: (1) 
stampeding/flushing occurs often because of people on the beach, 
especially when Seal Watch is not present; and (2) people behave 
appropriately when Seal Watch is not present which reduces flushing 
events. She also states that presence of Seal Watch volunteers, when 
present,

[[Page 17386]]

reduce flushing by controlling visitors which contradicts her first 
argument that people flush the seals off the beach ``often.''
    Despite these contrary arguments, NMFS found that Seal Watch, the 
Agency, and other local residents who monitor seals at the Jenner 
haulout agree that the presence of people on the beach often cause 
seals to flush into the water and that fewer seals are present when the 
barrier beach is not breached. Therefore, it is not unreasonable to 
assume that some seals on the beach will be displaced by the public, 
not by the Agency, before a management event.
    As described in the application, the numbers of seals potential 
taken by the specified activities was based the number of construction 
events and the average number of harbor seals hauled out prior to 
artificial breaching events. These counts were taken in the early 
morning hours, before many people came to the beach, by the Agency from 
1996-2000. The approach to calculating take numbers assumed all seals 
will remain on the beach and did not mathematically account for any 
that may be flushed by people prior to an event. However, because seals 
are flushed by visitors on the beach, as described by the commenter, 
take numbers will likely be lower than those proposed as they will not 
be available for disturbance by the Agency. NMFS can not regulate 
beachgoers actions in this IHA; however, encourages Seal Watch and 
local residents to continue and enhance public education on responsible 
marine mammal viewing practices.
    Comment 9: One commenter made available her complete record for the 
harbor seal site and documentation of disturbance/changes due to 
``natural (barrier) or man-made activities showing before and after 
photographs of the disturbance.'' She also stated that ``the hefty 
influence of natural and man-made interference at the seal site (and 
rookery) cannot be overridden.''
    Response: The data to which the commenter refers demonstrate that 
when a barrier beach naturally forms at the mouth of the Russian River, 
seal abundance on the beach declines. However, after the Agency 
conducts its breaching activities, seal numbers rapidly increase. This 
trend has also been confirmed by the Agency who conducted monitoring 
from 1996-2000. Hence, this data clearly show the actions of the Agency 
are resulting in more seals hauling out on Goat Rock State Beach. 
Therefore, based on this data, NMFS has determined that the specified 
activities, as described in the application, will continue to provide a 
resting, pupping, and molting site for harbor seals and potentially 
other pinniped species.
    Comment 10: Numerous comments were received regarding the 
difference in length of time between current breaching practices (1 
day) and lagoon outlet channel creation and maintenance (originally 
proposed as a maximum of 4 days) and its impact on seals. Specifically, 
one commenter was concerned that because lagoon creation and 
maintenance has yet to occur, and due to multiple day activity, 
``comparing the occasional artificial breaching activities, which to 
date for the most part occur on one day, to four solid days of 
machinery and personnel on the beach for hours digging the outlet 
channel is not reasonable, realistic, or an honest comparison. The 
impacts will in no way be similar.'' In general, the public was 
concerned that multiple days of heavy machinery on the beach during the 
pupping season may result in long-term abandonment of the seals from 
the Jenner haulout.
    Response: NMFS disagrees that that impacts to seals from lagoon 
outlet channel creation and maintenance will in no way be similar to be 
breaching events. As described in the Description of the Specified 
Activity section above, the source of disturbance from both breaching 
and lagoon outlet channel creation is the same: presence of crew and 
operation of heavy equipment such as bulldozers and excavators at or 
near the Jenner haulout. It is expected for all events, no matter the 
design of the cut, most seals will flush into the water due to presence 
of crew and equipment on the beach and return when the Agency has left 
the site. Some seals may move to other areas of the beach or upriver 
away from equipment. Seals return within minutes to one day once 
machinery leaves the beach, as they have done so for years; therefore 
there is no data to suggest seals will exhibit ``long-term 
abandonment'' of the haulout from future water level management events.
    Since issuance of the proposed IHA, the Agency, in coordination 
with NMFS Habitat Conservation Office, has redesigned the outlet 
channel configuration such that the number of work days is reduced from 
four to two. In addition, the new design of the cut will likely 
maintain itself more than the Agency's originally proposed shallow cut, 
reducing the number of follow-up maintenance days.
    NMFS has carefully considered the impact of consecutive work days 
during the pupping season (March 15 - June 30), as seals may be more 
sensitive to disturbance during this time. To determine how many of 
these two-day events may be appropriate during the pupping season, NMFS 
referred to the Agency's historic breaching event record vs. seal 
census data. Since 1996, the Agency has conducted 1-6 events during the 
pupping season, annually, with five events conducted during May 2008 
alone. NMFS received no public comments asserting that the level of 
breaching activities currently conducted result in long term 
disturbance to harbor seals, including pups, or in abandonment of the 
haulout. Such concern would contradict all available census data as 
seals are clearly continuing to use the haulout. To address potential 
concerns for disturbance associated with the duration of human 
activities included in the Agency's request, NFMS has included a 
mitigation measure into the IHA which limits the Agency to one 2-day 
water level management event per week during the pupping season. That 
is, the Agency must separate events, which may be up to 2 days each, by 
a one-week ``recovery period'' where no machinery is present on the 
beach. Given this measure, no more than 4 events may occur within any 
given month, a trend similar to previous breaching practices.
    At the Jenner haulout, seals are continually subjected to 
anthropogenic disturbance other than that from the Agency (e.g., 
kayakers, beachgoers) and have not abandoned use of the haulout. These 
seals appear to demonstrate some degree of tolerance and habituation to 
anthropogenic disturbance, as described in Richardson et al. (1995). 
This lack of long-term demonstrable impact to haulout use is among the 
important factors in supporting NMFS' negligible impact determination.
    Comment 11: Comments were received expressing concerns that the 
Jenner haulout is a harbor seal nursery and pupping beach (births have 
been observed here) and that the Agency's action of creating the lagoon 
outlet channel beginning May 15th could result in negative impacts on 
mom/pup relationships and pup mortality. For example, one commenter 
stated ``Mother harbor seals are not adapted to defend offspring from 
land-based dangers and will flush into the water. Pups suddenly flushed 
off the beach by these activities at such a young and vulnerable 
time[mldr]is problematic and could result in higher mortality among the 
pups of the colony'' and ``disturbance by humans or other sources of 
harassment can disrupt feeding, reduce milk intake and subsequent 
weight gain by the pup and ultimately threaten the pup's chance of 
survival after weaning.''

[[Page 17387]]

    Response: The Agency has conducted one-day breaching events during 
the pupping season for years with five breaching events occurring in 
the month of March alone in 2008. Based on the best available 
monitoring data, although seals have been disturbed by equipment during 
previous breaching events, no measurable negative impact to seals, 
including pup mortality or abandonment, has been observed after 
breaching is complete. In fact, these data suggest seals are more 
abundant on the beach after the barrier beach is breached than when the 
barrier beach is closed. Because a lagoon outlet channel will also open 
the barrier beach, allowing water to flow from the Russian River into 
the ocean, NMFS does not expect that mothers and pups will not utilize 
the beach due to the configuration of the channel.
    Regarding flushing, harbor seal pups are extremely precocious, 
swimming and diving immediately after birth and throughout the 
lactation period, unlike most other phocids which normally enter the 
sea only after weaning (Lawson and Renouff, 1985; Cottrell et al., 
2002; Burns et al., 2005). NMFS recognizes the critical bonding time 
needed between a harbor seal mom and her pup to ensure pup survival and 
maximize pup health. Harbor seals pups are weened from their mother 
within approximately 4 weeks; however, the most critical bonding time 
is immediately (minutes) after birth. Lawson and Renouf (1987) 
conducted an in-depth study to investigate harbor seal mother/pup bonds 
in response to natural and anthropogenic disturbance. In summary, they 
found that a mutual bond is developed within 5 minutes of birth and 
both the mother and pup play a role in maintaining contact with each 
other. The study showed a bilateral bond, both on land and in the 
water, and that mothers will often wait for or return to a pup if it 
did not follow her. Pups would follow or not move away from their 
mother as she approached. Most notably, mothers demonstrated overt 
attention to her pup while in the water and during times of disturbance 
on the nursery. Increased involvement by the mothers in keeping the 
pairs together during disturbances became obvious as they will wait 
for, or return to their young if the pups fell behind.
    In additional to incidental harassment, harbor seal pups in 
California have been the subject of countless research studies 
resulting in direct, intentional harassment. Research activities often 
include capture and handling of very young pups and separating pups 
from their mothers for short periods of time. Scientists report they 
have disturbed seals during capture, then leave the area within 
approximately an hour. Seals return to the haul-out site within minutes 
of the scientists leaving the beach (J. Harvey to M. DeAngelis, pers. 
comm., Jan. 12), further demonstrating harbor seal pup resilience to 
disturbance.
    Harbor seal mother/pup pairs have a characteristic distribution in 
the Russian River. There is a continuum, with a gradual, rather than 
abrupt change in the relative mix of seal age classes along the estuary 
to the mouth of the river with mom and pups picking out coves upriver, 
especially north of Haystack Rock, and juveniles and adults being more 
abundant closer the river mouth (pers. comm., J. Mortenson to M. 
DeAngelis, December 16). One component of the Agency's monitoring plan 
is to assess seal numbers at other nearby haulouts to better understand 
the relationship between upriver haulouts and the Jenner haulout. 
Because mothers and pups tend to inhabit the upriver haulouts more so 
than near the mouth of the river, where machinery will work, many pups 
will not be disturbed by the Agency's action.
    Chronic human disturbance may play a role in reduced fitness and 
survival for any marine or terrestrial animal. Other animals, such as 
the Pier 39 California sea lions, may be immune or so habituated to 
people, human presence has little to no noticeable effect on them. 
Although studies have shown the main factors influencing harbor seal 
pup birth weight and survival is maternal age and body mass with 
younger, thinner moms producing more vulnerable pups (Bowen 1993, 
Coltman, 1998), NMFS considered measures to limit the time machinery is 
working on the beach to limit repetitive disturbance. As stated above, 
NMFS has implemented additional mitigation measures which limit the 
consecutive days machinery may work on the beach (2 days) for an event 
and establishes a one-week recovery period between events. Further, if 
a young pup is on the beach where heavy machinery will be used or on 
the path used to access the breaching location, the event will be 
delayed until the pup has left the site or the latest day possible to 
prevent flooding of the low lying residential community while still 
achieving a lagoon outlet channel. Given that pups are precocious at 
birth, bonds between mothers and pups are known to form within minutes 
of birth and other characteristics of mom/pup bonding, and the quick 
reoccupation time of harbor seals after previous breaching events, NMFS 
has determined that these mitigation measures will be effective at 
avoid disruption any mom/pup bonds. Follow-up seal monitoring at the 
haulout after event activity will provide documentation of seal 
reoccupation.
    Comment 12: Two comments noted when a male elephant seal inhabited 
the Jenner haulout in 2006 and 2007, it ``totally eliminated part of 
the Jenner colony annual cycle, the winter haulout, and then later the 
breeding haulout population when he lingered into breeding season.'' 
Comments linked impacts from the elephant seal to what will happen if 
``sustained harassment by earth moving machinery'' were to occur. In 
summary, comments implied that potential impacts to the harbor seal 
colony should be interpreted from the results of what occurred during 
the elephant seal occupation and not from what occurs during one day 
breaching events.
    Response: NMFS disagrees that impacts from multiple days of heavy 
machinery use on the beach will equate or be similar to those impacts 
caused by the occupation of the male northern elephant seal. The 
elephant seal in question was continually present at the Jenner haulout 
from December 26, 2005, to April 5, 2006, and again from the first week 
of January to the first week of May 2007. The elephant seal was 
aggressive and attempted to mate with harbor seals, pursing them and 
killing some, including pups. Agency crew and machinery will disturb 
nearby animals on the beach; however, they do not present a direct 
threat as did the elephant seal. Seals and other marine mammals are 
known to link a stimulus with some degree of known negative consequence 
and increases responsiveness to that source. For example, seals and 
whales are known to avoid previously encountered vessels involved in 
subsistence hunts (Walker, 1949; Ash 1962; Terhune, 1985). Although 
heavy equipment will initially disturb animals, it is anticipated they 
will return to the haulout shortly after the Agency has left the beach, 
as is the trend from previous breaching activities. There is no 
evidence to suggest long-term abandonment of the haulout would occur 
from the specified activities.
    The commenters are correct that the number of seals on the beach 
was reduced during the 2007 pupping season due to the presence of the 
elephant seal; however, seal counts were not reduced during the 2006 
pupping season when the elephant seal was present. Moreover, in 2008 
(post elephant seal), harbor seal counts were actually higher than 
counts in 2004 and 2005 (pre elephant seal). For example, Ms. Twohy's 
data show that during March of 2004 and 2005, the average

[[Page 17388]]

monthly seal count was 39 and 42, respectively. In 2006, when the 
elephant seal was present, the average March count was 75. In 2007, the 
March average dropped to 1 (no seals were sighted on any day except for 
one when 33 seals were counted). In 2008, the average March seal count 
was 135. Therefore, the elephant seal occupation demonstrates harbor 
seals did not react to the elephant seal in 2006 but left the haulout 
in 2007. More importantly, the data show evidence of the harbor seals' 
resilience to chronic sources of disturbance, as evidenced by the 
reoccupation of the haulout by seals in 2008.
    NMFS expects any displacement of seals from the haulout will be 
limited to the time machinery is working on the beach. As described in 
the proposed IHA notice and the Agency's application and monitoring 
plan, seals tend to return to the haulout within one day of breaching 
activity, an event more closely related to the lagoon outlet channel 
creation and maintenance than the chronically present, aggressive 
northern elephant seal. No data is available from nearby coastal 
haulouts and those upstream to determine if those sites saw an increase 
in harbor seal abundance. However, due to the reoccupation of the 
haulout shortly after the northern elephant seal left, it is likely 
seals were using nearby haulouts. The Agency's monitoring program 
includes a component in which nearby haulouts will be included in 
monthly census. NMFS does not consider a redistribution of use from one 
haulout to another to indicate negative impacts to a population as long 
as behavior (e.g., social, pupping, molting), fitness, and survival are 
not affected.
    Comment 13: One commenter was concerned about the noise from the 
machinery and the potential for masking impacts. Specifically, ``The 
heavy equipment is to be put into play on 15 May, when the seals are 
still assembled for breeding, pupping, and nursing ..loud noise from 
the equipment may mask the call of harbor seal pups that keep them 
together with their mothers in the Russian River, if they stay. If 
driven to the sea without their habitual nursery area, maintaining 
contact between mother and young will depend on hearing the calls of 
pups over the sound of the surf. Underwater vibrations from the 
machinery may impact any mating stations of male harbor seals, who 
display acoustically underwater.''
    Response: First, the commenter is mistaken that the Agency is set 
to begin work on May 15. The Agency is permitted by the Corps to 
conduct breaching activities year-round as the potential for flooding 
to the low-lying residential community built along the estuary is ever 
present. In fact, the majority of past breaching events occurred in 
winter during times of large storms and wave action. Under the IHA, the 
Agency is also authorized to harass pinnipeds year-round. Census data 
do not suggest that years of employing heavy equipment on the beach 
have had a long-term impact on seals at the Jenner haulout. Second, 
noise from machinery on the beach is not expected to mask communication 
efforts as harbor seals will likely flush into the water or move down 
the beach, reducing in-air noise exposure.
    NMFS recognizes that males produce underwater vocalizations as a 
function of communicating social status and fitness, maintaining 
underwater territories, or as a direct advertisement to females 
(Nicholson, 1997). Mothers and pups also call to each other. Sound 
levels in water from land based sources can be elevated by noise 
entering through the air-water interface or by vibration. However, 
noise and vibrations from the machinery on the beach are not expected 
to interfere with underwater communication. NMFS does not have any data 
available on underwater noise from bullodzers and excavators working on 
a beach; however, does have information on in-water noise levels from 
impact pile driving on land adjacent to the water's edge; pile driving 
has a much higher sound source level than bulldozing. During the 
Russian River Geyserville emergency bridge repair project, 24-inch 
diameter steel piles were driven on land adjacent to water. Sound 
levels were measured 35 m and 70 m from shore and resulted in noise 
levels approximately 170 and 160dB, respectively. Noise levels in the 
water off the Jenner haulout are expected to be much lower than these 
levels and possibly undetectable because (1) heavy equipment will not 
work directly adjacent to the water's edge; (2) source levels will be 
less than that of impact pile driving; (3) the surf break presents a 
natural source of noise, elevating ambient sound levels in water than 
upriver; and (4) many seals will remain beyond the surf break except 
when coming ashore; therefore, any social behaviors will occur beyond 
this distance, further preventing seals from being exposed to any noise 
which could interfere with these behaviors. For these reasons, NMFS 
does not expect noise or vibration from equipment to interfere with 
underwater seal communication.
    Comment 14: One commenter reiterated a sentence in the Federal 
Register notice which explains that the Agency's effort to minimize the 
amount and frequency of mechanical intervention reduces disturbance to 
seals, other wildlife, and the public. She protests this statement by 
saying ``no clustering of monitoring activities by boat is proposed as 
a mitigation measure.''
    Response: Vessel based monitoring is not related to how frequent 
machinery operates on the beach. Further, monitoring is not a 
mitigation measure, as implied by the commenter. Monitoring is 
conducted to determine take and, if appropriate, implement mitigation 
(e.g., shut down). NMFS is not requiring vessel-based monitoring 
because it will not provide information beyond that able to be 
collected from land. Observers on land are fully capable of monitoring 
seals on the beach, perhaps more effectively than by boat. More 
importantly, vessel presence and movement will contribute a noise 
source in water, potentially resulting in additional harassment of 
animals at sea.
    Comment 15: In general, the public was concerned locals and 
visitors will see machinery at work on the beach instead of nature.
    Response: NMFS acknowledges that seals may become alert or flush 
off the beach in response to Agency personnel and heavy equipment when 
they are on the beach. However, as demonstrated from previous events, 
seals will return within hours to one day of machinery leaving the 
beach. NMFS' responsibility under section 101(a)(5)(D) of the MMPA is 
to ensure that activities involving incidental harassment to marine 
mammals are not having more than a negligible impact to that species or 
stock. NMFS has thoroughly analyzed impacts from the specified 
activities and taken full consideration of comments received during the 
public comment period. As such, NMFS has implemented additional 
mitigation to ensure the Agency's activities will effect the least 
practical adverse impact to the affected species.
    Comment 15: A comment was received on behalf of the Russian River 
Watershed Protection Committee regarding the impact of closing the 
mouth of the river permanently and creating the lagoon in terms of 
water quality/pollution and its impact on the seals. The comment stated 
that there are signs of Ludwigia and other nutrient pollutants in the 
river and ``We wonder how toxicity might accumulate and impact the 
seals if the Estuary is a full time sink for everything happening 
upstream. We are very concerned about endocrine disruptors in 
particular and will like to request studies on those

[[Page 17389]]

when the Estuary is permanently closed.''
    Response: The lagoon will not be a ``full time sink'' as suggested 
by the commenter, but will maintain a low-velocity flow into the ocean 
during the lagoon management period or become completely tidal after an 
event outside of this period. ``Permanent closure'' or the creation of 
``permanently closed conditions'' is not part of the specified 
activities. In fact, the primary purpose of the modification to the 
Agency's current breaching practice is to re-establish and maintain 
continuous river flow to the ocean during fish rearing times. 
Therefore, a build up of pollutants and any disruption such pollutants 
may cause to a seal's endocrine system are not anticipated. Further, 
the RPA in NMFS' BiOp requires constant and extensive monitoring of 
water quality conditions throughout the estuary during the lagoon 
management period.
    Comment 16: One commenter argued that there ``is no scientific 
evidence/proof in the [NMFS'] Biological Opinion that the proposed 
activities are in fact essential to conserving and recovering 
endangered salmonid species'' and implied that to undertake an activity 
in an attempt to save fish at the expense of eliminating the harbor 
seal haulout is not acceptable.
    Response: For the purpose of issuing an IHA, NMFS must consider the 
activities as they are proposed. Here, this includes the Agency's 
method of implementing an RPA in NMFS' BiOp in order to protect ESA-
listed salmonids from risk of extinction and avoid adverse impact to 
their critical habitat. For reasons discussed throughout this document, 
NMFS has found that, due to the implementation of the mitigation 
measures described herein, the Agency's estuary management activities 
on the beach will result in a negligible impact to pinnipeds disturbed 
by estuary water level management events. Hence, issuance of the IHA is 
appropriate.

Mitigation Measures

    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 latter does not apply here as 
no subsistence hunting takes place in California. The following 
summarizes mitigation and monitoring measures set forth in the IHA.

Pupping Season (March 15 - June 30)

    The following mitigation measures apply only during the pupping 
season (March 15 - June 30). Due to the precocious nature of pups at 
birth, formation of harbor seal mother/pup bonds immediately after 
birth, and resilience to direct disturbance (Lawson and Renouf, 1987; 
J. Harvey, pers. comm.), NMFS has determined that by one-week old, pups 
temporarily disturbed from Agency activities will not incur fitness or 
survival consequences. As in any IHA, taking a marine mammal in a 
manner not authorized is prohibited and may result in the modification, 
suspension or revocation of the authorization.
    (1) If a pup less than one week old is on the beach where heavy 
machinery will be used or on the path used to access the work location, 
the breaching event will be delayed until the pup has left the site or 
the latest day possible to prevent flooding while still maintaining an 
outlet channel. Pups less than one week old should be characterized by 
being up to 15kg, thin for their body length, or an umbilicus or natal 
pelage is present.
    (2) A water level management event may not occur for more than two 
consecutive days unless flooding threats can not be controlled.
    (3) The Agency must maintain a one week (7 day) ``no work'' period 
between water level management events (unless flooding is a threat to 
the low-lying residential community) to allow for adequate disturbance 
recovery period. During the ``no-work'' period, equipment must be 
removed from the beach.
    (4) If a marine mammal observer sights any pup that may be 
considered abandoned, the Agency will ensure that the NMFS stranding 
response network is called immediately. The Agency will also ensure 
that observers do not approach or move the pup.
    (5) Physical and biological monitoring of the estuary shall not be 
conducted if a pup less than one week old is present at the monitoring 
site or on a path to the site.

Year-round

    The following mitigation measures apply to all breaching events, no 
matter the time of year.
    (6) Agency crews shall slowly and cautiously approach the haulout 
ahead of the heavy equipment to minimize the potential for flushes to 
result in a stampede.
    (7) Agency staff shall avoid walking or driving equipment through 
the seal haulout;
    (8) Crews on foot will 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 barrier 
beach; and
    (9) Equipment will be driven slowly on the beach and care will be 
taken to minimize the number of shut downs and start ups when the 
equipment is on the beach.
    (10) Physical and biological monitoring shall be conducted in a 
manner which results in the least amount of pinniped harassment 
practical. During monitoring events, Agency personnel shall approach 
the haulout slowly and cautiously to avoid severe startle responses.
    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 finds that the 
foregoing measures constitute the means of effecting the least 
practicable impact on harbor seals, California sea lion, and northern 
elephant seals, paying particular attention impacts on the site value 
as a rookery, mating ground, and area of similar significance.

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) require 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 17390]]

populations of marine mammals that are expected to be present. In 
addition, 50 CFR 216.107(a)(3) directs NMFS to include in an IHA 
requirements for monitoring and reporting incidental take.
    The Agency's Russian River Estuary Management Activities Pinniped 
Monitoring Plan describes the monitoring efforts which the Agency has 
implemented during previous breaching events. NMFS has modified this 
plan slightly to account for pinniped take numbers. In summary, 
monitoring includes the following:

Event Monitoring

    The Agency will conduct a pre-water level management event survey 
one to three days before an event to determine the number of animals on 
the beach and if any pups are present. If any pups less than one week 
old are sighted at the breaching site or on a path to the breaching 
site, breaching activities will be delayed until the pup has left those 
areas or until flooding is imminent. Monitoring will continue for the 
duration of the breaching event to determine how many animals have been 
taken and end one hour after equipment leaves the beach. A post event 
monitoring survey will also take place the day after an event, weather 
permitting, to determine seal reoccupation rates. Pinnipeds will be 
monitored from the overlook on the bluff along Highway 1 adjacent to 
the haulout with high-powered spotting scopes.
    In addition to work days, seal counts will also be conducted twice 
monthly when no machinery is on the beach to determine if any long 
terms impacts are occurring at the haulout. On these days, seals will 
be counted in [frac1s2] hour increments starting early in the morning 
(e.g., dawn) and ending eight hours later, weather permitting. This 
baseline information will also provide the Agency with details so that 
they may plan estuary management activities around prime seal haulout 
times in the future. Census days will be scheduled to capture a low and 
high tide each in the morning and afternoon.
    For all counts, the following information will be recorded from an 
overlook on a bluff to avoid harassment from the monitoring: (1) seal 
counts, by species and age class, if possible; (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. 
Disturbance behavior will 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.

Long Term Monitoring

    In addition to monitoring on event days, pinnipeds at the Jenner 
haulout will be counted twice monthly for the term of the IHA in the 
same manner as described above. 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, will also be monitored (see 
Figure 2 in the IHA application for locations of these haulouts). 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 will be monitored concurrent with monitoring of outlet 
channel construction and maintenance activities. This will 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 will not provide definitive 
results that individuals from the Jenner haulout are displaced to the 
coastal and river haulouts as individual seals will not be marked; 
however, it will useful to track general trends in haulout use during 
lagoon outlet channel excavation and maintenance.

Reporting

    The Agency will submit an annual report to NMFS 90 days after 
expiration of the IHA. Should the Agency request a future MMPA 
incidental take authorization, it will include in its request to NMFS a 
report summarizing all monitoring activities 120 prior to expiration of 
the IHA to allow NMFS adequate time to assess documented impacts to 
marine mammals. The report will include an executive summary, 
monitoring methodology, tabulation of estuary management events, 
summary of monitoring results, and discussion of problems noted and 
proposed remedial measures. The report will also be available to the 
public on the Agency's website (http://www.scwa.ca.gov/).

Negligible Impact and Small Numbers Analysis and Determination

    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.''
    In determining whether or not authorized incidental take will have 
a negligible impact on affected species stocks, NMFS considers a number 
of criteria regarding the impact of the proposed action including, but 
not limited to, species status; the number, nature, intensity, and 
duration of Level B harassment authorized; and the significance of the 
location for marine mammals where takes will occur.
    None of the marine mammal species authorized to be taken in the IHA 
are listed as endangered or threatened under the ESA or depleted under 
the MMPA. For reasons provided in greater detail in NMFS' November 12, 
2009 (74 FR 58248), Federal Register notice, water level management 
activities could result in the harassment of 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). The take numbers 
authorized in the IHA are based on seal census data (an average of 
monthly counts) collected by the Agency immediately prior to breaching 
events conducted from 1996-2000. These monthly averages were then 
multiplied by the number of anticipated events needed during each 
month. The number of marine mammals authorized to be taken incidental 
to the Agency's water level management activities is considered small 
when compared to the population sizes of the affected stocks (34,233; 
238,000; and 124,000, respectively).
    As stated above, the duration and intensity of harassment, as well 
as the significance of the habitat where take will occur, are also 
important factors in NMFS' negligible impact determination. Due to the 
monitoring efforts by the Agency and local seal watching group, there 
is are extensive data sets on harbor seal abundance, behavior, and use 
of the Jenner haulout. As described in the Agency's application, NMFS 
proposed Federal Register notice for this action, and above, harbor 
seals demonstrate short-term changes in behavior (e.g., alertness, 
flushing) in response to Agency breaching events. However, seals 
reoccupy the beach shortly after the Agency leaves the beach. Seals 
continue to use the Jenner haulout despite daily sources of 
anthropogenic disturbance from beach visitors and intermittent 
disturbance from Agency breaching events. There is no significant

[[Page 17391]]

difference in average monthly seal counts since 1993 and harbor seals 
continue to use the haulout site as a nursery. There is also no data 
demonstrating stampedes occur at the Jenner haulout, thus the potential 
for injury, serious injury or mortality to pups from this action is 
unlikely. Finally, the fact that harbor seals pups are precocious at 
birth and form strong bonds with mom immediately after birth further 
supports the finding that mom/pup bonds will not be jeopardized due to 
Agency activities. Monitoring data suggest that previous breaching 
events have not been the cause of pup abandonment. For these reasons, 
and the mitigation measures set forth in the IHA, NMFS has determined 
that no Level A harassment (injury), serious injury or mortality will 
occur due to Agency activities.
    NMFS compared the Agency's previously documented action of 
breaching the sandbar during one day events intermittently since 1995 
to the possible impacts from limited 2-days events. As described above, 
under the IHA, the Agency would be required to maintain a one-week 
recovery period between management events, something that had not been 
implemented before. Although the management event may last 2 days 
instead of one, NMFS has determined that because seals reoccupy the 
beach soon after equipment leaves the beach, seals show short- and 
long-term resilience to chronic disturbance (e.g., daily exposure to 
non-Agency related human disturbance, the case of the northern elephant 
seal occupation), and the mitigation and monitoring measures set forth 
in the IHA, the short-term Level B harassment caused by the Agency's 
water level management activities will have a negligible impact on 
harbor seals. California sea lions and northern elephant seals are only 
occasionally sighted at the haulout, are usually solitary, and do not 
use the haulout for significant behaviors (e.g., mating); therefore, 
the short-term Level B harassment caused by the Agency's water level 
management activities will also have a negligible impact on these 
species.
    Based on the analysis contained herein on 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 finds that the Agency's water level management events 
will result in the incidental take of small numbers of marine mammals, 
by Level B harassment only, and that the total taking will have a 
negligible impact on the affected species or stocks. There are no 
relevant subsistence uses of marine mammals implicated by this action; 
therefore, no impacts to subsistence use will occur.

Endangered Species Act

    No ESA-listed marine mammals are known to be present within the 
action area; therefore, ESA consultation is not required to issue an 
MMPA authorization for the proposed action. However, as described above 
and in the proposed IHA notice, the purpose of the modified outlet 
channel design during the lagoon management period is an RPA in NMFS' 
BiOp on the Agency's Estuary Management Activities for ESA-listed 
salmonids.

National Environmental Policy Act

    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 has prepared 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. NMFS' EA is separate from but relies upon and incorporates the 
Corps' 2005 EA prepared for permitting the Agency's breaching 
activities.

Determination

    Based on the description of the specified activity, review of 
monitoring data, and the required mitigation and monitoring measures 
described herein, NMFS has determined that the Agency's artificial 
breaching activities will have a negligible impact on affected pinniped 
species or stocks and will not have an adverse impact on their habitat. 
Subsistence use of marine mammals in California does not occur; 
therefore use of marine mammals for subsistence will not be affected.
    As such, NMFS has issued the Agency a one-year IHA. The issuance of 
this IHA is contingent upon adherence to the previously mentioned 
mitigation, monitoring, and reporting requirements.

    Dated: March 30, 2010.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2010-7763 Filed 4-1-10; 4:15 am]
BILLING CODE 3510-22-S