[Federal Register Volume 77, Number 79 (Tuesday, April 24, 2012)]
[Notices]
[Pages 24471-24479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9863]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XB132


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; issuance of an incidental harassment authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an Incidental Harassment Authorization (IHA) to 
the Sonoma County Water Agency (SCWA) to incidentally harass, by Level 
B harassment only, three species of marine mammals during estuary 
management activities conducted at the mouth of the Russian River, 
Sonoma County, California.

DATES: This authorization is effective for the period of one year, from 
April 21, 2012, through April 20, 2013.

ADDRESSES: A copy of the IHA and related documents are available by 
writing to Tammy Adams, Acting Chief, Permits and Conservation 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910.
    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. Supplemental documents 
provided by SCWA may also be found at the same address: Report of 
Activities and Monitoring Results (July 2009 to December 2011); Russian 
River Estuary Outlet Channel Adaptive Management Plan; and Feasibility 
of Alternatives to the Goat Rock State Beach Jetty for Managing Lagoon 
Water Surface Elevations--A Study Plan. NMFS' Environmental Assessment 
(2010) and associated Finding of No Significant Impact, prepared 
pursuant to the National Environmental Policy Act, are available at the 
same site. Documents cited in this notice, including NMFS' Biological 
Opinion (2008) on the effects of Russian River management activities on 
salmonids, may also be viewed, by appointment, during regular business 
hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 427-8401.

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 
published in the Federal Register to provide public notice and initiate 
a 30-day comment period.
    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 other means of 
effecting the least practicable adverse impact (i.e., mitigation) and 
requirements pertaining to 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 January 27, 2012, from SCWA for 
issuance of an IHA for the taking, by Level B harassment only, of 
marine mammals incidental to ongoing activities conducted in management 
of the Russian River estuary in Sonoma County, California. SCWA was 
first issued an IHA, valid for a period of one year, on April 1, 2010 
(75 FR 17382), and was subsequently issued a second IHA for incidental 
take associated with the same activities on April 21, 2011 (76 FR 
23306). Management activities include management of a naturally-

[[Page 24472]]

formed barrier beach at the mouth of the river in order to minimize 
potential for flooding of properties adjacent to the Russian River 
estuary and enhance habitat for juvenile salmonids, and biological and 
physical monitoring of the estuary. Flood control-related breaching of 
barrier beach at the mouth of the river may include artificial 
breaches, as well as construction and maintenance of a lagoon outlet 
channel. The latter activity, an alternative management technique 
conducted to mitigate impacts of flood control on rearing habitat for 
salmonids listed as threatened and endangered under the Endangered 
Species Act (ESA), occurs only from May 15 through October 15 
(hereafter, the ``lagoon management period''). All estuary management 
activities are conducted by SCWA in accordance with a Reasonable and 
Prudent Alternative (RPA) included in NMFS' Biological Opinion (BiOp) 
for Water Supply, Flood Control Operations, and Channel Maintenance 
conducted in the Russian River watershed (NMFS, 2008). Species known 
from the haul-out at the mouth of the Russian River include the harbor 
seal (Phoca vitulina), California sea lion (Zalophus californianus), 
and northern elephant seal (Mirounga angustirostris).

Description of the Specified Activity

    Breaching of naturally-formed barrier beach at the mouth of the 
Russian River requires the use of heavy equipment (e.g., bulldozer, 
excavator) and increased human presence. As a result, pinnipeds hauled 
out on the beach may exhibit behavioral responses that indicate 
incidental take by Level B harassment under the MMPA. Numbers of harbor 
seals, the species most commonly encountered at the haul-out, have been 
recorded extensively since 1972 at the haul-out near the mouth of the 
Russian River.
    The estuary is located about 97 km (60 mi) northwest of San 
Francisco in Sonoma County, near Jenner, California (see Figure 1 of 
SCWA's application). The Russian River watershed encompasses 3,847 
km\2\ (1,485 mi\2\) in Sonoma, Mendocino, and Lake Counties. The mouth 
of the Russian River is located at Goat Rock State Beach; the estuary 
extends from the mouth upstream approximately 10 to 11 km (6-7 mi) 
between Austin Creek and the community of Duncans Mills (Heckel 1994). 
The proposed action involves management of the estuary to prevent 
flooding while avoiding adverse modification to critical habitat for 
ESA-listed salmonids. During the lagoon management period only, this 
involves construction and maintenance of a lagoon outlet channel that 
would facilitate formation of a perched lagoon, which will reduce 
flooding while maintaining appropriate conditions for juvenile 
salmonids. Additional breaches of barrier beach may be conducted for 
the sole purpose of reducing flood risk.
    There are three components to SCWA's ongoing estuary management 
activities: (1) Lagoon outlet channel management, during the lagoon 
management period only, required to accomplish the dual purposes of 
flood risk abatement and maintenance of juvenile salmonid habitat; (2) 
traditional artificial breaching, with the sole objective of flood risk 
abatement; and (3) physical and biological monitoring in and near the 
estuary, required under the terms of the BiOp, to understand response 
to water surface elevation management in the estuary-lagoon system. In 
addition to these ongoing management activities, SCWA will conduct new 
monitoring work at the mouth of the Russian River during the period of 
this IHA. This additional activity comprises a plan to study the 
effects of a historical, dilapidated jetty on the formation and 
maintenance of the Russian River estuary, as required under RPA 2 of 
the 2008 BiOp. Through several phases from 1929[hyphen]1948, the jetty 
and associated seawall, roadway, and railroad were constructed, 
reinforced and then abandoned by various entities. The plan for study 
of the jetty is described in greater detail in SCWA's `Feasibility of 
Alternatives to the Goat Rock State Beach Jetty for Managing Lagoon 
Water Surface Elevations--A Study Plan' (ESA PWA, 2011a), available 
online (see ADDRESSES).
    SCWA's estuary management activities generally involve the use of 
heavy equipment and increased human presence on the beach, in order to 
excavate and maintain an outlet channel from the lagoon to the ocean or 
to conduct artificial breaching. Pupping season for harbor seals at the 
mouth of the Russian River typically peaks during May. However, pupping 
is known to begin in March and may continue through the end of June; 
pupping season for harbor seals is conservatively defined here as March 
15 to June 30. During pupping season, management events may occur over 
a maximum of two consecutive days per event and all estuary management 
events on the beach must be separated by a minimum no-work period of 
one week. The use of heavy equipment and increased human presence has 
the potential to harass hauled-out marine mammals by causing movement 
or flushing into the water. Mitigation and monitoring measures 
described later in this document are designed to minimize this 
harassment to the lowest practicable level.
    Equipment (e.g., bulldozer, excavator) is off-loaded in the parking 
lot of Goat Rock State Park and driven onto the beach via an existing 
access point. Personnel on the beach will 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 will be two or more additional people on the beach (SCWA staff or 
regulatory agency staff) to observe the activities. SCWA staff will be 
followed by the equipment, which will then be followed by an SCWA 
vehicle (typically a small pickup truck, to be parked at the previously 
posted signs and barriers on the south side of the excavation 
location).

Lagoon Outlet Channel Management

    Active management of estuarine/lagoon water levels commences 
following the first closure of the barrier beach during this period. 
When this happens, SCWA monitors lagoon water surface elevation and 
creates an outlet channel when water levels in the estuary are between 
4.5 and 7.0 ft (1.4-2.1 m) in elevation. Management practices will be 
incrementally modified over the course of the lagoon management period 
in an effort to improve performance in meeting the goals of the BiOp 
while preventing flooding.
    Ideally, initial implementation of the outlet channel would produce 
a stable channel for the duration of the lagoon management period. 
However, the sheer number of variables and lack of past site-specific 
experience likely preclude this outcome, and succeeding excavation 
attempts may be required. The precise number of excavations would 
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. Based on lagoon 
management operations under similar conditions at Carmel River, and 
expectations regarding how wave action and sand deposition may increase 
beach height or result in closure, it is predicted that up to three 
successive outlet channel excavation events, at increasingly higher 
beach elevations, may be necessary to produce

[[Page 24473]]

a successful outlet channel. In the event that an outlet channel fails 
through breaching (i.e., erodes the barrier beach and forms a tidal 
inlet), SCWA would resume adaptive management of the outlet channel's 
width, slope, and alignment in consultation with NMFS and the 
California Department of Fish and Game (CDFG), only after ocean wave 
action naturally reforms a barrier beach and closes the river's mouth 
during the lagoon management period.
    Implementation and Maintenance--Upon successful construction of an 
outlet channel, adaptive management, or maintenance, may be required 
for the channel to continue achieving performance criteria. In order to 
reduce disturbance to seals and other wildlife, as well as beach 
visitors, the amount and frequency of mechanical intervention will be 
minimized. As technical staff and maintenance crews gain more 
experience with implementing the outlet channel and observing its 
response, maintenance is anticipated to be less frequent, with events 
of lesser intensity. During pupping season, machinery may only operate 
on up to two consecutive working days, including during initial 
construction of the outlet channel. In addition, SCWA must maintain a 
one week no-work period between management events during pupping 
season, unless flooding is a threat, to allow for adequate disturbance 
recovery period. During the no-work period, equipment must be removed 
from the beach. SCWA seeks to avoid conducting management activities on 
weekends (Friday-Sunday) in order to reduce disturbance of beach 
visitors. In addition, activities are to be conducted in such a manner 
as to effect the least practicable adverse impacts to pinnipeds and 
their habitat as described later in this document (see ``Mitigation'').

Artificial Breaching

    The estuary may close naturally throughout the year as a result of 
barrier beach formation at the mouth of the Russian River. Although 
closures may occur at any time of the year, the mouth usually closes 
during the spring, summer, and fall (Heckel 1994; Merritt Smith 
Consulting 1997, 1998, 1999, 2000; SCWA and Merritt Smith Consulting 
2001). Closures result in lagoon formation in the estuary and, as water 
surface levels rise, flooding may occur. For decades, artificial 
breaching has been performed in the absence of natural breaching, in 
order to alleviate potential flooding of low-lying shoreline properties 
near the town of Jenner. Artificial breaching, as defined here, is 
conducted for the sole purpose of reducing flood risk, and thus is a 
different type of event, from an engineering perspective, than are the 
previously described lagoon management events. Artificial breaching 
activities occur in accordance with the BiOp, and primarily occur 
outside the lagoon management period (i.e., artificial breaching would 
primarily occur from October 16 to May 14). However, if conditions 
present unacceptable risk of flooding during the lagoon management 
period, SCWA may artificially breach the sandbar a maximum of two times 
during that period. Implementation protocol would follow that described 
previously for lagoon outlet channel management events, with the 
exception that only one piece of heavy equipment is likely to be 
required per event, rather than two.

Physical and Biological Monitoring

    SCWA is required by the BiOp and other state and federal permits to 
collect biological and physical habitat data in conjunction with 
estuary management. Monitoring requires the use of boats and nets in 
the estuary, among other activities, and will require activities to 
occur in the vicinity of beach and river haul-outs (see Figure 4 of 
SCWA's application); these monitoring activities have the potential to 
disturb pinnipeds. The majority of monitoring is required under the 
BiOp and occurs approximately during the lagoon management period (mid-
May through October or November), depending on river dynamics. Beach 
topographic surveys occur year-round.

Jetty Study

    The jetty study will analyze the effects of the jetty on beach 
permeability and sand storage and transport. These physical processes 
are affected by the jetty, and, in turn, may affect seasonal water 
surface elevations and flood risk. Evaluating and quantifying these 
linkages will inform the development and evaluation of management 
alternatives for the jetty. The study involves delineation of two study 
transects perpendicular to the beach barrier (see Figure 5 of SCWA's 
application), with six water seepage monitoring wells constructed 
(three per transect). In addition, geophysical surveys will be 
conducted in order to better understand the characteristics of the 
barrier beach substrate and the location and composition of buried 
portions of the jetty and associated structures. Once the initial 
geophysical surveys have been completed, additional surface 
electromagnetic profiles will be collected along the barrier beach in 
order to explore how the jetty impacts beach seepage relative to the 
natural beach berm.

Comments and Responses

    NMFS published a notice of receipt of SCWA's application and 
proposed IHA in the Federal Register on March 16, 2012 (77 FR 15722). 
During the 30-day comment period, NMFS received a letter from the 
Marine Mammal Commission (MMC). The MMC recommended that NMFS issue the 
requested authorization, subject to inclusion of the proposed 
mitigation and monitoring measures as described in NMFS' notice of 
proposed IHA and the application. All measures proposed in the initial 
Federal Register notice are included within the authorization and NMFS 
has determined that they will effect the least practicable impact on 
the species or stocks and their habitats.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species that may be harassed incidental to 
estuary management activities are the harbor seal, California sea lion, 
and the northern elephant seal. None of these species are listed as 
threatened or endangered under the ESA, nor are they categorized as 
depleted under the MMPA. NMFS presented a more detailed discussion of 
the status of these stocks and their occurrence in the action area in 
the notice of the proposed IHA (77 FR 15722, March 16, 2012).

Potential Effects of the Specified Activity on Marine Mammals

    NMFS provided a detailed discussion of the potential effects of the 
specified activity on marine mammals in the notice of the proposed IHA 
(77 FR 15722, March 16, 2012). A summary of anticipated effects is 
provided below.
    A significant body of monitoring data exists for pinnipeds at the 
mouth of the Russian River. Pinnipeds have co-existed with regular 
estuary management activity for decades, as well as with regular human 
use activity at the beach, and are likely habituated to human presence 
and activity. Nevertheless, SCWA's estuary management activities have 
the potential to harass pinnipeds present on the beach. During 
breaching operations, past monitoring has revealed that some or all of 
the seals present typically move or flush from the beach in response to 
the presence of crew and equipment, though some may remain hauled-out. 
No stampeding of seals--a potentially dangerous occurrence in which 
large numbers of animals succumb to mass panic and rush away from a 
stimulus--

[[Page 24474]]

has been documented since SCWA developed protocols to prevent such 
events in 1999. While it is likely impossible to conduct required 
estuary management activities without provoking some response in 
hauled-out animals, precautionary mitigation measures, described later 
in this document, ensure that animals are gradually apprised of human 
approach. Under these conditions, seals typically exhibit a continuum 
of responses, beginning with alert movements (e.g., raising the head), 
which may then escalate to movement away from the stimulus and possible 
flushing into the water. Flushed seals typically re-occupy the haul-out 
within minutes to hours of the stimulus. In addition, eight other haul-
outs exist nearby that may accommodate flushed seals. In the absence of 
appropriate mitigation measures, it is possible that pinnipeds could be 
subject to injury, serious injury, or mortality, likely through 
stampeding or abandonment of pups.
    California sea lions and northern elephant seals, which have been 
noted only infrequently in the action area, have been observed as less 
sensitive to stimulus than harbor seals during monitoring at numerous 
other sites. For example, monitoring of pinniped disturbance as a 
result of abalone research in the Channel Islands showed that while 
harbor seals flushed at a rate of 69 percent, California sea lions 
flushed at a rate of only 21 percent. The rate for elephant seals 
declined to 0.1 percent (VanBlaricom, 2011). In the unlikely event that 
either of these species is present during management activities, they 
would be expected to display a minimal reaction to maintenance 
activities--less than that expected of harbor seals.
    Although the Jenner haul-out is not known as a primary pupping 
beach, harbor seal pups have been observed during the pupping season; 
therefore, NMFS has evaluated the potential for injury, serious injury 
or mortality to pups. There is a lack of published data regarding 
pupping at the mouth of the Russian River, but SCWA monitors have 
observed pups on the beach. No births were observed during monitoring 
in 2010-11, but were inferred based on signs indicating pupping (e.g., 
blood spots on the sand, birds consuming possible placental remains). 
Pup injury or mortality would be most likely to occur in the event of 
extended separation of a mother and pup, or trampling in a stampede. As 
discussed previously, no stampedes have been recorded since development 
of appropriate protocols in 1999. Any California sea lions or northern 
elephant seals present would be independent juveniles or adults; 
therefore, analysis of impacts on pups is not relevant for those 
species. Pups less than one week old are characterized by being up to 
15 kg, thin for their body length, or having an umbilicus or natal 
pelage.
    Similarly, the period of mother-pup bonding, critical time needed 
to ensure pup survival and maximize pup health, is not expected to be 
impacted by estuary management activities. 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 Renouf, 1985; 
Cottrell et al., 2002; Burns et al., 2005). Lawson and Renouf (1987) 
investigated harbor seal mother-pup bonding in response to natural and 
anthropogenic disturbance. In summary, they found that the most 
critical bonding time is within minutes after birth. Although pupping 
season is defined as March 15-June 30, the peak of pupping season is 
typically concluded by mid-May, when the lagoon management period 
begins. As such, it is expected that most mother-pup bonding would 
likely be concluded as well. The number of management events during the 
months of March and April has been relatively low in the past, and the 
breaching activities occur in a single day over several hours. In 
addition, mitigation measures described later in this document further 
reduce the likelihood of any impacts to pups, whether through injury or 
mortality or interruption of mother-pup bonding.
    Therefore, based on a significant body of site-specific monitoring 
data, harbor seals are unlikely to sustain any harassment that may be 
considered biologically significant. Individual animals would, at most, 
flush into the water in response to maintenance activities but may also 
simply become alert or move across the beach away from equipment and 
crews. NMFS has determined that impacts to hauled-out pinnipeds during 
estuary management activities would be behavioral harassment of limited 
duration (i.e., less than one day) and limited intensity (i.e., 
temporary flushing at most). Stampeding, and therefore injury or 
mortality, is not expected--nor been documented--in the years since 
appropriate protocols were established (see ``Mitigation'' for more 
details). Further, the continued, and increasingly heavy, use of the 
haul-out despite decades of breaching events indicates that abandonment 
of the haul-out is unlikely.

Anticipated Effects on Habitat

    NMFS provided a detailed discussion of the potential effects of 
this action on marine mammal habitat in the notice of the proposed IHA 
(77 FR 15722, March 16, 2012). SCWA's estuary management activities 
will result in temporary physical alteration of the Jenner haul-out. 
With barrier beach closure, seal usage of the beach haul-out declines, 
and the three nearby river haul-outs may not be available for usage due 
to rising water surface elevations. Breaching of the barrier beach, 
subsequent to the temporary habitat disturbance, will likely increase 
suitability and availability of habitat for pinnipeds. Biological and 
water quality monitoring will not physically alter pinniped habitat. In 
summary, there will be temporary physical alteration of the beach. 
However, natural opening and closure of the beach results 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.

Summary of Previous Monitoring

    SCWA complied with the mitigation and monitoring required under the 
previous authorization. In accordance with the 2011 IHA, SCWA submitted 
a Report of Activities and Monitoring Results, covering the period of 
July 2009 through December 2011. Under the 2011 IHA, SCWA did not 
conduct any estuary management events, but did conduct associated 
biological and physical monitoring. During the course of these 
activities, SCWA did not exceed the take levels authorized under the 
2011 IHA. NMFS provided a detailed description of previous monitoring 
results in the notice of the proposed IHA (77 FR 15722, March 16, 
2012).

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.
    SCWA will continue the following mitigation measures, as 
implemented during the previous IHA, designed to minimize impact to 
affected species and stocks:

[[Page 24475]]

     SCWA crews will cautiously approach the haul-out ahead of 
heavy equipment to minimize the potential for sudden flushes, which may 
result in a stampede--a particular concern during pupping season.
     SCWA staff will avoid walking or driving equipment through 
the seal haul-out.
     Crews on foot will make an effort to be seen by seals from 
a distance, if possible, rather than appearing suddenly at the top of 
the sandbar, again preventing sudden flushes.
     During breaching events, all monitoring will be conducted 
from the overlook on the bluff along Highway 1 adjacent to the haul-out 
in order to minimize potential for harassment.
     A water level management event may not occur for more than 
two consecutive days unless flooding threats cannot be controlled.
    In addition, SCWA will continue mitigation measures specific to 
pupping season (March 15-June 30), as implemented in the previous IHA:
     SCWA will maintain a 1 week no-work period between water 
level management events (unless flooding is an immediate threat) to 
allow for an adequate disturbance recovery period. During the no-work 
period, equipment must be removed from the beach.
     If a pup less than 1 week old is on the beach where heavy 
machinery will be used or on the path used to access the work location, 
the management action will be delayed until the pup has left the site 
or the latest day possible to prevent flooding while still maintaining 
suitable fish rearing habitat. In the event that a pup remains present 
on the beach in the presence of flood risk, SCWA will consult with NMFS 
and CDFG to determine the appropriate course of action. SCWA will 
coordinate with the locally established seal monitoring program 
(Stewards' Seal Watch) to determine if pups less than 1 week old are on 
the beach prior to a breaching event.
     Physical and biological monitoring will not be conducted 
if a pup less than 1 week old is present at the monitoring site or on a 
path to the site.
    Equipment will be driven slowly on the beach and care will be taken 
to minimize the number of shutdowns and start-ups when the equipment is 
on the beach. All work will be completed as efficiently as possible, 
with the smallest amount of heavy equipment possible, to minimize 
disturbance of seals at the haul-out. Boats operating near river haul-
outs during monitoring will be kept within posted speed limits and 
driven as far from the haul-outs as safely possible to minimize 
flushing seals.
    NMFS has carefully evaluated the applicant's mitigation measures as 
proposed and considered their effectiveness in past implementation, to 
determine whether they are likely to effect the least practicable 
adverse impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures includes 
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, and practicality of implementation.
    Injury, serious injury, or mortality to pinnipeds would likely 
result from startling animals inhabiting the haul-out into a stampede 
reaction, or from extended mother-pup separation as a result of such a 
stampede. Long-term impacts to pinniped usage of the haul-out could 
result from significantly increased presence of humans and equipment on 
the beach. To avoid these possibilities, NMFS and SCWA have developed 
the previously described mitigation measures. These are designed to 
reduce the possibility of startling pinnipeds, by gradually apprising 
them of the presence of humans and equipment on the beach, and to 
reduce the possibility of impacts to pups by eliminating or altering 
management activities on the beach when pups are present and by setting 
limits on the frequency and duration of events during pupping season. 
During the past twelve years of flood control management, 
implementation of similar mitigation measures has resulted in no known 
stampede events and no known injury, serious injury, or mortality. Over 
the course of that time period, management events have generally been 
infrequent and of limited duration. Based upon the SCWA's record of 
management at the mouth of the Russian River, as well as information 
from monitoring SCWA's implementation of the improved mitigation 
measures as prescribed under the previous IHA, NMFS has determined that 
the mitigation measures included in the final IHA provide the means of 
effecting the least practicable adverse impacts on marine mammal 
species or stocks and their habitat.

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 populations of marine 
mammals that are expected to be present.
    The applicant has developed a Pinniped Monitoring Plan which 
describes the proposed monitoring efforts. The purpose of this 
monitoring plan, which is carried out collaboratively with the Stewards 
of the Coasts and Redwoods (Stewards) organization, is to detect the 
response of pinnipeds to estuary management activities at the Russian 
River estuary. SCWA has designed the plan both to satisfy the 
requirements of the IHA, and to address the following questions of 
interest:
    1. Under what conditions do pinnipeds haul out at the Russian River 
estuary mouth at Jenner?
    2. How do seals at the Jenner haul-out respond to activities 
associated with the construction and maintenance of the lagoon outlet 
channel and artificial breaching activities?
    3. Does the number of seals at the Jenner haul-out significantly 
differ from historic averages with formation of a summer (May 15 to 
October 15) lagoon in the Russian River estuary?
    4. Are seals at the Jenner haul-out displaced to nearby river and 
coastal haul-outs when the mouth remains closed in the summer?
    In summary, monitoring includes the following:

Baseline Monitoring

    Seals at the Jenner haul-out are counted twice monthly for the term 
of the IHA. This baseline information will provide SCWA with details 
that may help to plan estuary management activities in the future to 
minimize pinniped interaction. This census begins at local dawn and 
continues for 8 hours. All seals hauled out on the beach are counted 
every 30 minutes from the overlook on the bluff along Highway 1 
adjacent to the haul-out using high powered spotting scopes. Monitoring 
may conclude for the day if weather conditions affect visibility (e.g., 
heavy fog in the afternoon). Counts are scheduled for 2 days out of 
each month, with the intention of capturing a low and high tide each in 
the morning and afternoon. Depending on how the sandbar is formed, 
seals may haul out in multiple groups at the mouth. At each

[[Page 24476]]

30-minute count, the observer indicates where groups of seals are 
hauled out on the sandbar and provides a total count for each group. If 
possible, adults and pups are counted separately.
    In addition to the census data, disturbances of the haul-out are 
recorded. The method for recording disturbances follows those in 
Mortenson (1996). Disturbances will be recorded on a three-point scale 
that represents an increasing seal response to the disturbance. The 
time, source, and duration of the disturbance, as well as an estimated 
distance between the source and haul-out, are recorded. It should be 
noted that only responses falling into Mortenson's Levels 2 and 3 
(i.e., movement or flight) will be considered as harassment under the 
MMPA. Weather conditions are recorded at the beginning of each census. 
These include temperature, percent cloud cover, and wind speed 
(Beaufort scale). Tide levels and estuary water surface elevations are 
correlated to the monitoring start and end times.
    In an effort towards understanding possible relationships between 
use of the Jenner haul-out and nearby coastal and river haul-outs, 
several other haul-outs on the coast and in the Russian River estuary 
are monitored as well. The peripheral haul-outs are visited for 10-
minute counts twice during each baseline monitoring day. All pinnipeds 
hauled out were counted from the same vantage point(s) at each haul-out 
using a high-powered spotting scope or binoculars.

Estuary Management Event Monitoring

    Activities associated with artificial breaching or initial 
construction of the outlet channel, as well as the maintenance of the 
channel that may be required, will be monitored for disturbances to the 
seals at the Jenner haul-out. A 1-day pre-event channel survey will be 
made within 1-3 days prior to constructing the outlet channel. The 
haul-out will be monitored on the day the outlet channel is constructed 
and daily for up to the maximum 2 days allowed for channel excavation 
activities. Monitoring will also occur on each day that the outlet 
channel is maintained using heavy equipment for the duration of the 
lagoon management period. Monitoring will correspond with that 
described under the ``Baseline'' section previously, with the exception 
that management activity monitoring duration is defined by event 
duration, rather than being set at 8 hours. On the day of the 
management event, pinniped monitoring begins at least 1 hour prior to 
the crew and equipment accessing the beach work area and continues 
through the duration of the event, until at least 1 hour after the crew 
and equipment leave the beach.
    In an attempt to understand whether seals from the Jenner haul-out 
are displaced to coastal and river haul-outs nearby when management 
events occur, other nearby haul-outs are monitored concurrently with 
event monitoring. This provides an opportunity to qualitatively assess 
whether these haul-outs are being used by seals displaced from the 
Jenner haul-out. This monitoring will not provide definitive results 
regarding displacement to nearby coastal and river haul-outs, as 
individual seals are not marked, but is useful in tracking general 
trends in haul-out use during disturbance. As volunteers are required 
to monitor these peripheral haul-outs, haul-out locations may need to 
be prioritized if there are not enough volunteers available. In that 
case, priority will be assigned to the nearest haul-outs (North Jenner 
and Odin Cove), followed by the Russian River estuary haul-outs, and 
finally the more distant coastal haul-outs.
    For all counts, the following information will be recorded in 
thirty minute intervals: (1) Pinniped counts, by species; (2) behavior; 
(3) time, source and duration of any disturbance; (4) estimated 
distances between source of disturbance and pinnipeds; (5) weather 
conditions (e.g., temperature, wind); and (5) tide levels and estuary 
water surface elevation.
    Monitoring During Pupping Season--As described previously, the 
pupping season is defined as March 15 to June 30. Baseline, lagoon 
outlet channel, and artificial breaching monitoring during the pupping 
season will include records of neonate (pups less than 1 week old) 
observations. Characteristics of a neonate pup include: body weight 
less than 15 kg; thin for their body length; an umbilicus or natal 
pelage present; wrinkled skin; and awkward or jerky movements on land. 
SCWA will coordinate with the Seal Watch monitoring program to 
determine if pups less than 1 week old are on the beach prior to a 
water level management event.
    If, during monitoring, observers sight any pup that might be 
abandoned, SCWA will contact the NMFS stranding response network 
immediately and also report the incident to NMFS' Southwest Regional 
Office and NMFS Office of Protected Resources within 48 hours. 
Observers will not approach or move the pup. Potential indications that 
a pup may be abandoned are no observed contact with adult seals, no 
movement of the pup, and the pup's attempts to nurse are rebuffed.

Reporting

    SCWA is required to submit a report on all activities and marine 
mammal monitoring results to the Office of Protected Resources, NMFS, 
and the Southwest Regional Administrator, NMFS, 90 days prior to the 
expiration of the IHA if a renewal is sought, or within 90 days of the 
expiration of the permit otherwise. This annual report will also be 
distributed to California State Parks and Stewards, and would be 
available to the public on SCWA's Web site. This report will contain 
the following information:
     The number of seals taken, by species and age class (if 
possible);
     Behavior prior to and during water level management 
events;
     Start and end time of activity;
     Estimated distances between source and seals when 
disturbance occurs;
     Weather conditions (e.g., temperature, wind, etc.);
     Haul-out reoccupation time of any seals based on post 
activity monitoring;
     Tide levels and estuary water surface elevation; and
     Seal census from bi-monthly and nearby haul-out 
monitoring.
    The annual report includes descriptions of monitoring methodology, 
tabulation of estuary management events, summary of monitoring results, 
and discussion of problems noted and proposed remedial measures. SCWA 
will report any injured or dead marine mammals to NMFS' Southwest 
Regional Office and NMFS Office of Protected Resources.

Estimated Take by Incidental Harassment

    NMFS is authorizing SCWA to take harbor seals, California sea 
lions, and northern elephant seals, by Level B harassment only, 
incidental to estuary management activities. These activities, 
involving increased human presence and the use of heavy equipment and 
support vehicles, are expected to harass pinnipeds present at the haul-
out through behavioral disturbance only. In addition, monitoring 
activities prescribed in the BiOp may result in harassment of 
additional individuals at the Jenner haul-out and at the three haul-
outs located in the estuary. Estimates of the number of harbor seals, 
California sea lions, and northern elephant seals that may be harassed 
by the activities is based upon the number of potential events 
associated with Russian River estuary management activities and the 
average number of individuals of each species that are present during 
conditions appropriate to the activity. As described previously in

[[Page 24477]]

this document, monitoring effort at the mouth of the Russian River has 
shown that the number of seals utilizing the haul-out declines during 
bar-closed conditions. Tables 1 and 2 detail the total number of 
authorized takes. Methodology of take estimation was discussed in 
detail in NMFS' notice of proposed IHA (77 FR 15722, March 16, 2012). 
Please note that the take estimates provided in NMFS' notice of 
proposed IHA (Tables 5-6 in that document) contained several errors, 
which are corrected here.

    Table 1--Estimated Number of Harbor Seal Takes Resulting From Russian River Estuary Management Activities
----------------------------------------------------------------------------------------------------------------
 Number of animals expected to occur                                        Potential total number of individual
                 \a\                          Number of events b c                animals that may be taken
----------------------------------------------------------------------------------------------------------------
                             Lagoon Outlet Channel Management (May 15 to October 15)
----------------------------------------------------------------------------------------------------------------
Implementation: 105 \d\               Implementation: 3                     Implementation: 315
----------------------------------------------------------------------------------------------------------------
Maintenance and Monitoring:           Maintenance:                          Maintenance: 1,089
 May: 103                              May: 1                               ....................................
 June: 100                             June-Sept: 4/month                   ....................................
 July: 105                             Oct: 1                               ....................................
 Aug: 17                              Monitoring:                           Monitoring: 504
 Sept: 19                              June-Sept: 2/month                   ....................................
 Oct: 22                               Oct: 1                                Total: 1,908
----------------------------------------------------------------------------------------------------------------
                                              Artificial Breaching
----------------------------------------------------------------------------------------------------------------
 Oct: 22                              Oct: 2                                Oct: 44
 Nov: 11                              Nov: 2                                Nov: 22
 Dec: 45                              Dec: 2                                Dec: 90
 Jan: 96                              Jan: 1                                Jan: 96
 Feb: 89                              Feb: 1                                Feb: 89
 Mar: 146                             Mar: 1                                Mar: 146
 Apr: 173                             Apr: 1                                Apr: 173
 May: 103                             May: 1                                May: 103
                                      11 events maximum                      Total: 763
----------------------------------------------------------------------------------------------------------------
                                    Topographic and Geophysical Beach Surveys
----------------------------------------------------------------------------------------------------------------
 Jan: 96                              1 topographic survey/month            Jan: 20
 Feb: 89                              ....................................  Feb: 18
 Mar: 146                             2 geophysical surveys/month, Sep-     Mar: 15
 Apr: 131                              Dec; 1/month, July-Aug, Jan-Feb      Apr: 13
 May: 119                             ....................................  May: 12
 June: 134                            Surveys considered to have potential  June: 13
 July: 237                             for take of 10 percent of animals    July: 48
 Aug: 108                              present                              Aug: 22
 Sept: 36                                                                   Sept: 12
 Oct: 36                                                                    Oct: 12
 Nov: 90                                                                    Nov: 27
 Dec: 45                                                                    Dec: 15
                                                                             Total: 227
----------------------------------------------------------------------------------------------------------------
                            Biological and Physical Habitat Monitoring in the Estuary
----------------------------------------------------------------------------------------------------------------
1 \e\                                 65                                    65
----------------------------------------------------------------------------------------------------------------
    Total                             ....................................  2,963
----------------------------------------------------------------------------------------------------------------
\a\ For lagoon outlet channel management and artificial breaching events occurring from April through November,
  average daily number of animals is from observations at the mouth of the Russian River during breaching events
  (i.e., bar-closed conditions). For artificial breaching events occurring from December through March, and for
  all topographic and geophysical beach surveys, average daily number of animals is from observations at Russian
  River mouth during bar-open conditions, 2009-11.
\b\ For implementation of the lagoon outlet channel, an event is defined as a single, two-day episode. It is
  assumed that the same individual seals would be hauled out during a single event. For the remaining
  activities, an event is defined as a single day on which an activity occurs. Some events may include multiple
  activities.
\c\ Number of events for artificial breaching derived from historical data. The average number of events for
  each month was rounded up to the nearest whole number; estimated number of events for December was increased
  from one to two because multiple closures resulting from storm events have occurred in recent years during
  that month. These numbers likely represent an overestimate, as the average annual number of events is six.
\d\ Although implementation could occur at any time during the lagoon management period, the highest daily
  average from any month during the lagoon management period was used.
\e\ Based on past experience, SCWA expects that no more than one seal may be present, and thus have the
  potential to be disturbed, at each of the three river haul-outs.


[[Page 24478]]


  Table 2--Estimated Number of California Sea Lion and Elephant Seal Takes Resulting From Russian River Estuary
                                              Management Activities
----------------------------------------------------------------------------------------------------------------
                                                                                                Potential total
                                                                                                   number of
                        Species                          Number of animals   Number of events      individual
                                                         expected to occur                      animals that may
                                                                                                    be taken
----------------------------------------------------------------------------------------------------------------
                             Lagoon Outlet Channel Management (May 15 to October 15)
----------------------------------------------------------------------------------------------------------------
California sea lion (potential to encounter once per                     1                  3                  3
 event)................................................
Northern elephant seal (potential to encounter once per                  1                  3                  3
 event)................................................
----------------------------------------------------------------------------------------------------------------
                                              Artificial Breaching
----------------------------------------------------------------------------------------------------------------
California sea lion (potential to encounter once per                     1                 10                 10
 event, Sept-Apr)......................................
Northern elephant seal (potential to encounter once per                  1                  7                  7
 event, Dec-May).......................................
----------------------------------------------------------------------------------------------------------------
                                    Topographic and Geophysical Beach Surveys
----------------------------------------------------------------------------------------------------------------
California sea lion (potential to encounter once per                     1                 18                 18
 event, Sept-Apr)......................................
Northern elephant seal (potential to encounter once per                  1                 10                 10
 event, Dec-May).......................................
----------------------------------------------------------------------------------------------------------------
                            Biological and Physical Habitat Monitoring in the Estuary
----------------------------------------------------------------------------------------------------------------
California sea lion (potential to encounter once per                     1                  8                  8
 month, Sept-Apr)......................................
----------------------------------------------------------------------------------------------------------------
                                                      Total
----------------------------------------------------------------------------------------------------------------
California sea lion..........................................................................                 37
----------------------------------------------------------------------------------------------------------------
Elephant seal................................................................................                 20
----------------------------------------------------------------------------------------------------------------

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 the number, nature, intensity, and duration 
of Level B harassment take that may occur. Although SCWA's estuary 
management activities may harass pinnipeds hauled out at the mouth of 
the Russian River, as well as those hauled out at several locations in 
the estuary during recurring monitoring activities, impacts are 
occurring to a small, localized group of animals. No mortality or 
injury is anticipated, nor will the action result in long-term impacts 
such as permanent abandonment of the haul-out. Seals will likely become 
alert or, at most, flush into the water in reaction to the presence of 
crews and equipment on the beach. However, breaching the sandbar has 
been shown to increase seal abundance on the beach, with seals quickly 
re-inhabiting the haul-out following cessation of activity. In 
addition, the implementation of the lagoon management plan may provide 
increased availability of prey species (salmonids). No impacts are 
expected at the population or stock level.
    No pinniped stocks known from the action area are listed as 
threatened or endangered under the ESA or determined to be strategic or 
depleted under the MMPA. Recent data suggests that harbor seal 
populations have reached carrying capacity; populations of California 
sea lions and northern elephant seals in California are also considered 
healthy.
    The number of animals authorized to be taken for each species of 
pinnipeds can be considered small relative to the population size. 
There are an estimated 34,233 harbor seals in the California stock, 
238,000 California sea lions, and 124,000 northern elephant seals in 
the California breeding population. Based on extensive monitoring 
effort specific to the affected haul-out and historical data on the 
frequency of the specified activity, NMFS is authorizing take, by Level 
B harassment only, of 2,963 harbor seals, 37 California sea lions, and 
20 northern elephant seals, representing 8.7, 0.02, and 0.02 percent of 
the populations, respectively. However, this represents an overestimate 
of the number of individuals harassed over the duration of the proposed 
IHA, because the take estimates include multiple instances of 
harassment to a given individual.
    California sea lion and elephant seal pups are not known to occur 
within the action area and thus will not be affected by the specified 
activity. The action is not likely to cause injury or mortality to any 
harbor seal pup, nor will it impact mother-pup bonding. The peak of 
harbor seal pupping season occurs during May, when few management 
activities are anticipated. However, the pupping season has been 
conservatively defined as March 15-June 30 for mitigation purposes, and 
any management activity that is required during pupping season will be 
delayed in the event that a pup less than one week old is present on 
the beach. As described previously in this document, harbor seal pups 
are precocious, and mother-pup bonding is likely to occur within 
minutes. Delay of events will further ensure that mother-pup bonding is 
not likely to be interfered with.
    Based on the foregoing analysis, behavioral disturbance to 
pinnipeds at the mouth of the Russian River will be of low intensity 
and limited duration. To ensure minimal disturbance, SCWA will 
implement the mitigation measures described previously, which NMFS has 
determined will serve as the means for effecting the least practicable 
adverse effect on marine mammals stocks or populations and their 
habitat. NMFS finds that SCWA's estuary management activities will 
result in the incidental take of small numbers of marine

[[Page 24479]]

mammals, and that the authorized number of takes will have no more than 
a negligible impact on the affected species and 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.

Endangered Species Act (ESA)

    There are no ESA-listed marine mammals found in the action area; 
therefore, no consultation under the ESA is required. As described 
elsewhere in this document, SCWA and the Corps consulted with NMFS 
under section 7 of the ESA regarding the potential effects of their 
operations and maintenance activities, including SCWA's estuary 
management program, on ESA-listed salmonids. As a result of this 
consultation, NMFS issued the Russian River Biological Opinion (NMFS, 
2008) and RPA, which prescribes modifications to SCWA's estuary 
management activities.

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 prepared an Environmental 
Assessment (EA) to consider the direct, indirect and cumulative effects 
to the human environment resulting from issuance of an IHA to SCWA. 
NMFS signed a Finding of No Significant Impact (FONSI) on March 30, 
2010. NMFS has reviewed SCWA's application and determined that there 
are no substantial changes to the proposed action and that there are no 
new direct, indirect, or cumulative effects to the human environment 
resulting from renewal of an IHA to SCWA. Therefore, NMFS has 
determined that a new or supplemental EA or Environmental Impact 
Statement is unnecessary, and reaffirms the existing FONSI for this 
action. The existing EA and FONSI for this action are available for 
review at http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

Determinations

    NMFS has determined that the impact of conducting the specific 
estuary management activities described in this notice and in the IHA 
request in the specific geographic region in Sonoma County, California 
may result, at worst, in a temporary modification in behavior (Level B 
harassment) of small numbers of marine mammals. Further, this activity 
is expected to result in a negligible impact on the affected species or 
stocks of marine mammals. The provision requiring that the activity not 
have an unmitigable impact on the availability of the affected species 
or stock of marine mammals for subsistence uses is not implicated for 
this action.

Authorization

    As a result of these determinations, NMFS has issued an IHA to SCWA 
to conduct estuary management activities in the Russian River from the 
period of April 21, 2012, through April 20, 2013, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: April 17, 2012.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-9863 Filed 4-23-12; 8:45 am]
BILLING CODE 3510-22-P