[Federal Register Volume 81, Number 251 (Friday, December 30, 2016)]
[Proposed Rules]
[Pages 96415-96432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31592]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 160929897-6897-01]
RIN 0648-BG37


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Russian River Estuary Management Activities

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

ACTION: Proposed rule.

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SUMMARY: NMFS has received a request from the Sonoma County Water 
Agency (SCWA) for authorization to take marine mammals incidental to 
Russian River estuary management activities in Sonoma County, 
California, over the course of five years (2017-2022). As required by 
the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations 
to govern that

[[Page 96416]]

take and requests comments on the proposed regulations.

DATES: Comments and information must be received no later than January 
30, 2017.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2016-0163, by any of the following methods:
     Electronic submission: Submit all electronic public 
comments via the federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0163, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East West Highway, Silver 
Spring, MD 20910.
    Comments regarding any aspect of the collection of information 
requirement contained in this proposed rule should be sent to NMFS via 
one of the means provided here and to the Office of Information and 
Regulatory Affairs, NEOB-10202, Office of Management and Budget, Attn: 
Desk Office, Washington, DC 20503, [email protected].
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only.

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

SUPPLEMENTARY INFORMATION: 

Availability

    A copy of SCWA's application and any supporting documents, as well 
as a list of the references cited in this document, may be obtained 
online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In 
case of problems accessing these documents, please call the contact 
listed above (see FOR FURTHER INFORMATION CONTACT).

National Environmental Policy Act (NEPA)

    NMFS prepared an Environmental Assessment (EA; 2010) and associated 
Finding of No Significant Impact (FONSI) in accordance with NEPA and 
the regulations published by the Council on Environmental Quality. 
These documents are posted at the aforementioned Internet address. 
Information in SCWA's application, NMFS's EA (2010), and this notice 
collectively provide the environmental information related to proposed 
issuance of these regulations for public review and comment. We will 
review all comments submitted in response to this notice as we complete 
the NEPA process, including a decision of whether the existing EA and 
FONSI provide adequate analysis related to the potential environmental 
effects of issuing an incidental take authorization to SCWA, prior to a 
final decision on the request.

Purpose and Need for Regulatory Action

    This proposed rule, to be issued under the authority of the Marine 
Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.), would establish 
a framework for authorizing the take of marine mammals incidental to 
SCWA's estuary management activities at the mouth of the Russian River 
in Sonoma County, CA. SCWA proposes to manage the naturally-formed 
barrier beach at the mouth of the Russian River in order to minimize 
potential for flooding adjacent to the estuary and to enhance habitat 
for juvenile salmonids, as well as to conduct biological and physical 
monitoring of the barrier beach and estuary. Breaching of the 
naturally-formed barrier beach at the mouth of the Russian River 
requires the use of heavy equipment and increased human presence, and 
monitoring in the estuary requires the use of small boats.
    We received an application from SCWA requesting five-year 
regulations and authorization to take multiple species of marine 
mammals. Take would occur by Level B harassment incidental to estuary 
management activities due to disturbance of hauled pinnipeds. The 
regulations would be valid from 2017 to 2022. Please see ``Background'' 
below for definitions of harassment.

Legal Authority for the Proposed Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
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 for up to five years 
if, after notice and public comment, the agency makes certain findings 
and issues regulations that set forth permissible methods of taking 
pursuant to that activity, as well as monitoring and reporting 
requirements. Section 101(a)(5)(A) of the MMPA and the implementing 
regulations at 50 CFR part 216, subpart I provide the legal basis for 
issuing this proposed rule containing five-year regulations, and for 
any subsequent Letters of Authorization. As directed by this legal 
authority, this proposed rule contains mitigation, monitoring, and 
reporting requirements.

Summary of Major Provisions Within the Proposed Rule

    The following provides a summary of some of the major provisions 
within the proposed rulemaking for SCWA estuary management activities. 
We have preliminarily determined that SCWA's adherence to the proposed 
mitigation, monitoring, and reporting measures listed below would 
achieve the least practicable adverse impact on the affected marine 
mammals. They include:
     Measures to minimize the number and intensity of 
incidental takes during sensitive times of year and to minimize the 
duration of disturbances.
     Measures designed to eliminate startling reactions.
     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.

Background

    Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1371 
(a)(5)(A) and (D)) direct the Secretary of Commerce to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s); will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant); and if the permissible methods of taking and requirements

[[Page 96417]]

pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    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 2, 2016, we received an adequate and complete request 
from SCWA for authorization to take marine mammals incidental to 
estuary management activities. On September 20, 2016 (81 FR 64440), we 
published a notice of receipt of SCWA's application in the Federal 
Register, requesting comments and information related to the request 
for 30 days. We did not receive any comments. SCWA provided a revised 
draft incorporating minor revisions on November 1, 2016.
    SCWA proposes to manage the naturally-formed barrier beach at the 
mouth of the Russian River in order to minimize potential for flooding 
adjacent to the estuary and to enhance habitat for juvenile salmonids, 
as well as to conduct biological and physical monitoring of the barrier 
beach and estuary. Flood control-related breaching of the 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 Endangered Species Act 
(ESA)-listed salmonids, occurs only from May 15 through October 15 
(hereafter, the ``lagoon management period''). Artificial breaching and 
monitoring activities may occur at any time during the period of 
validity of the proposed regulations. The requested regulations would 
be valid for 5 years, from April 21, 2017, through April 20, 2022.
    Breaching of the 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, and monitoring in the estuary 
requires the use of small boats. As a result, pinnipeds hauled out on 
the beach or at peripheral haul-outs in the estuary may exhibit 
behavioral responses that indicate incidental take by Level B 
harassment under the MMPA. Species known from the haul-out at the mouth 
of the Russian River or from peripheral haul-outs, and therefore 
anticipated to be taken incidental to the specified activity, include 
the harbor seal (Phoca vitulina richardii), California sea lion 
(Zalophus californianus), and northern elephant seal (Mirounga 
angustirostris).
    Prior to this request for incidental take regulations and a 
subsequent Letter of Authorization (LOA), we issued seven consecutive 
incidental harassment authorizations (IHA) to SCWA for incidental take 
associated with the same ongoing activities. SCWA was first issued an 
IHA, valid for a period of one year, effective on April 1, 2010 (75 FR 
17382), and was subsequently issued one-year IHAs for incidental take 
associated with the same activities, effective on April 21, 2011 (76 FR 
23306), April 21, 2012 (77 FR 24471), April 21, 2013 (78 FR 23746), 
April 21, 2014 (79 FR 20180), April 21, 2015 (80 FR 24237), and April 
21, 2016 (81 FR 22050).

Description of the Specified Activity

Overview

    The proposed action involves management of the estuary to prevent 
flooding while preventing adverse modification to critical habitat for 
ESA-listed salmonids. Requirements related to the ESA are described in 
further detail below. During the lagoon management period, this 
involves construction and maintenance of a lagoon outlet channel that 
would facilitate formation of a perched lagoon. A perched lagoon, which 
is an estuary closed to tidal influence in which water surface 
elevation is above mean high tide, would reduce flooding while 
maintaining beneficial conditions for juvenile salmonids. Additional 
breaches of the barrier beach may be conducted for the sole purpose of 
reducing flood risk. SCWA's proposed activity was described in detail 
in our notice of proposed authorization prior to the 2011 IHA (76 FR 
14924; March 18, 2011); please see that document for a detailed 
description of SCWA's estuary management activities. Aside from minor 
additions to SCWA's biological and physical estuary monitoring 
measures, the specified activity remains the same as that described in 
the 2011 document.

Dates and Duration

    The specified activity may occur at any time during the five-year 
period of validity for these proposed regulations (April 21, 2017 
through April 20, 2022), although construction and maintenance of a 
lagoon outlet channel would occur only during the lagoon management 
period. In addition, there are certain restrictions placed on SCWA 
during the harbor seal pupping season. These, as well as periodicity 
and frequency of the specified activities, are described in further 
detail below.

Specified Geographical Region

    The estuary is located about 97 kilometers (km) (60 miles (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 (see Figure 2 of SCWA's application); 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 and McIver, 1994).

Detailed Description of Activities

    Within the Russian River watershed, the U.S. Army Corps of 
Engineers (Corps), SCWA, and the Mendocino County Russian River Flood 
Control and Water Conservation Improvement District (District) operate 
and maintain Federal facilities and conduct activities in addition to 
the estuary management, including flood control, water diversion and 
storage, instream flow releases, hydroelectric power generation, 
channel maintenance, and fish hatchery production. The Corps, SCWA, and 
the District conducted these activities for many years before salmonid 
species in the Russian River were protected under the ESA. Upon 
determination that these actions were likely to affect ESA-listed 
salmonids, as well as designated critical habitat for these species, 
formal consultation under section 7 of the ESA was initiated. In 2008, 
NMFS issued a Biological Opinion (BiOp) for Water Supply, Flood Control 
Operations, and Channel Maintenance conducted by the Corps, SCWA, and 
the District in the Russian River watershed (NMFS, 2008). This BiOp 
found that the activities--including SCWA's estuary management 
activities--authorized by the Corps and undertaken by SCWA and the 
District, if continued in a manner similar to

[[Page 96418]]

recent historic practices, were likely to jeopardize the continued 
existence of ESA-listed salmonids and were likely to adversely modify 
critical habitat.
    If a project is found to jeopardize a species or adversely modify 
its critical habitat, NMFS must develop and recommend a non-
jeopardizing Reasonable and Prudent Alternative (RPA) to the proposed 
project, in coordination with the federal action agency and any 
applicant. A component of the RPA described in the 2008 BiOp requires 
SCWA to collaborate with NMFS and modify their estuary water level 
management in order to reduce marine influence (i.e., high salinity and 
tidal inflow) and promote a higher water surface elevation in the 
estuary in order to enhance the quality of rearing habitat for juvenile 
salmonids. A program of potential incremental steps prescribed to reach 
that goal includes adaptive management of the outlet channel. SCWA is 
also required to monitor the response of water quality, invertebrate 
production, and salmonids in and near the estuary to water surface 
elevation management in the estuary-lagoon system.
    The analysis contained in the BiOp found that maintenance of lagoon 
conditions was necessary only for the lagoon management period. See 
NMFS's BiOp (2008) for details of that analysis. As a result of that 
determination, there are three components to SCWA's 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 goal of flood risk 
abatement; and (3) physical and biological monitoring. The latter 
activity, physical and biological monitoring, will remain the same as 
in past years and as described in our 2015 notice of proposed 
authorization (80 FR 14073; March 18, 2015). Please see the previously 
referenced Federal Register notice (76 FR 14924; March 18, 2011) for 
detailed discussion of lagoon outlet channel management, artificial 
breaching, and other monitoring activities.
    NMFS's BiOp determined that salmonid estuarine habitat may be 
improved by managing the Russian River estuary as a perched, freshwater 
lagoon and, therefore, stipulates as an RPA to existing conditions that 
the estuary be managed to achieve such conditions between May 15th and 
October 15th. In recognition of the complexity and uncertainty inherent 
in attempting to manage conditions in a dynamic beach environment, the 
BiOp stipulates that the estuarine water surface elevation RPA be 
managed adaptively, meaning that it should be planned, implemented, and 
then iteratively refined based on experience gained from 
implementation. The first phase of adaptive management, which has been 
implemented since 2010, is limited to outlet channel management (ESA, 
2015).

Proposed Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(A) 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 subsistence uses.'' NMFS's implementing 
regulations require applicants for ITAs to include information about 
the availability and feasibility (economic and technological) of 
equipment, methods, and manner of conducting such activity or other 
means of effecting the least practicable adverse impact upon the 
affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
    SCWA has proposed to continue the following mitigation measures, as 
implemented during the previous ITAs, designed to minimize impact to 
affected species and stocks:
     SCWA crews would cautiously approach (e.g., walking slowly 
with limited arm movement and minimal sound) 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 would avoid walking or driving equipment 
through the seal haul-out.
     Crews on foot would make an effort to be seen by seals 
from a distance, if possible, rather than appearing suddenly, again 
preventing sudden flushes.
     During breaching events, all monitoring would 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 proposes to continue mitigation measures specific 
to pupping season (March 15-June 30), as implemented in the previous 
ITAs:
     SCWA will maintain a one 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 one week old is on the beach where 
heavy machinery would 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 would 
consult with NMFS 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 one week old are 
on the beach prior to a breaching event.
     Physical and biological monitoring will not be conducted 
if a pup less than one week old is present at the monitoring site or on 
a path to the site.
    For all activities, personnel on the beach would include up to two 
equipment operators, three safety team members on the beach (one on 
each side of the channel observing the equipment operators, and one at 
the barrier to warn beach visitors away from the activities), and one 
safety team member at the overlook on Highway 1 above the beach. 
Occasionally, there would be two or more additional people (SCWA staff 
or regulatory agency staff) on the beach to observe the activities. 
SCWA staff would be followed by the equipment, which would then be 
followed by an SCWA vehicle (typically a small pickup truck, the 
vehicle would be parked at the previously posted signs and barriers on 
the south side of the excavation location). Equipment would be driven 
slowly on the beach and care would be taken to minimize the number of 
shut-downs and start-ups when the equipment is on the beach. All work 
would 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 would 
be kept within posted speed limits and driven as far from the haul-outs 
as safely possible to minimize flushing seals.
    We have carefully evaluated SCWA's proposed mitigation measures and 
considered a range of other measures in the context of ensuring that we 
prescribed the means of effecting the least practicable adverse impact 
on the affected marine mammal species and

[[Page 96419]]

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; and (3) the 
practicability of the measure for applicant implementation.
    Any mitigation measure(s) we prescribe should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the number (total number or number at 
biologically important time or location) of individual marine mammals 
exposed to stimuli expected to result in incidental take (this goal may 
contribute to 1, above, or to reducing takes by behavioral harassment 
only).
    (3) A reduction in the number (total number or number at a 
biologically important time or location) of times any individual marine 
mammal would be exposed to stimuli expected to result in incidental 
take (this goal may contribute to 1, above, or to reducing takes by 
behavioral harassment only).
    (4) A reduction in the intensity of exposure to stimuli expected to 
result in incidental take (this goal may contribute to 1, above, or to 
reducing the severity of behavioral harassment only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying particular attention to the prey base, blockage or 
limitation of passage to or from biologically important areas, 
permanent destruction of habitat, or temporary disturbance of habitat 
during a biologically important time.
    (6) For monitoring directly related to mitigation, an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of SCWA's proposed measures, we have 
preliminarily determined that the proposed mitigation measures provide 
the means of effecting the least practicable adverse impact on marine 
mammal species or stocks and their habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance.

Description of Marine Mammals in the Area of the Specified Activity

    Harbor seals are the most common species inhabiting the haul-out at 
the mouth of the Russian River (Jenner haul-out) and fine-scale local 
abundance data for harbor seals have been recorded extensively since 
1972. California sea lions and northern elephant seals have also been 
observed infrequently in the project area. In addition to the primary 
Jenner haul-out, there are eight peripheral haul-outs nearby (see 
Figure 1 of SCWA's application). These include North Jenner and Odin 
Cove to the north; Pocked Rock, Kabemali, and Rock Point to the south; 
and Penny Logs, Patty's Rock, and Chalanchawi upstream within the 
estuary.
    This section provides summary information regarding local 
occurrence of these species. We have reviewed SCWA's detailed species 
descriptions, including life history information, for accuracy and 
completeness and refer the reader to Sections 3 and 4 of SCWA's 
application instead of reprinting the information here. Please also see 
NMFS Stock Assessment Reports, which may be accessed online at 
www.nmfs.noaa.gov/pr/sars/species.htm.

Harbor Seals

    Harbor seals inhabit coastal and estuarine waters and shoreline 
areas of the Northern Hemisphere from temperate to polar regions. The 
eastern North Pacific subspecies is found from Baja California north to 
the Aleutian Islands and into the Bering Sea. Multiple lines of 
evidence support the existence of geographic structure among harbor 
seal populations from California to Alaska (Carretta et al., 2016). 
However, because stock boundaries are difficult to meaningfully draw 
from a biological perspective, three separate harbor seal stocks are 
recognized for management purposes along the west coast of the 
continental U.S.: (1) Inland waters of Washington, (2) outer coast of 
Oregon and Washington, and (3) California (Carretta et al., 2016). 
Placement of a stock boundary at the California-Oregon border is not 
based on biology but is considered a political and jurisdictional 
convenience (Carretta et al., 2016). In addition, harbor seals may 
occur in Mexican waters, but these animals are not considered part of 
the California stock. Only the California stock is expected to be found 
in the project area.
    California harbor seals are not protected under the ESA or listed 
as depleted under the MMPA, and are not considered a strategic stock 
under the MMPA because annual human-caused mortality (43) is 
significantly less than the calculated potential biological removal 
(PBR; 1,641) (Carretta et al., 2016). The population appears to be 
stabilizing at what may be its carrying capacity and the fishery 
mortality is declining. The best abundance estimate of the California 
stock of harbor seals is 30,968 and the minimum population size of this 
stock is 27,348 individuals (Carretta et al., 2016).
    Harbor seal pupping normally occurs at the Russian River from March 
until late June, and sometimes into early July. The Jenner haul-out is 
the largest in Sonoma County. A substantial amount of monitoring effort 
has been conducted at the Jenner haul-out and surrounding areas. 
Concerned local residents formed the Stewards' Seal Watch Public 
Education Program in 1985 to educate beach visitors and monitor seal 
populations. State Parks Volunteer Docents continue this effort towards 
safeguarding local harbor seal habitat. On weekends during the pupping 
and molting season (approximately March-August), volunteers conduct 
public outreach and record the numbers of visitors and seals on the 
beach, other marine mammals observed, and the number of boats and 
kayaks present.
    Ongoing monthly seal counts at the Jenner haul-out were begun by J. 
Mortenson in January 1987, with additional nearby haul-outs added to 
the counts thereafter. In addition, local resident E. Twohy began daily 
observations of seals and people at the Jenner haul-out in November 
1989. These datasets note whether the mouth at the Jenner haul-out was 
opened or closed at each observation, as well as various other daily 
and annual patterns of haul-out usage (Mortenson and Twohy, 1994). In 
2009, SCWA began regular baseline monitoring of the haul-out as a 
component of its estuary management activity. Table 1 shows average 
daily numbers of seals observed at the mouth of the Russian River from 
1993-2005 and from 2009-15.

[[Page 96420]]



                      Table 1--Average Daily Number of Seals Observed at Russian River Mouth for Each Month, 1993-2005 and 2009-15
--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Year                        Jan.     Feb.     Mar.     Apr.     May      Jun.     Jul.     Aug.     Sep.     Oct.     Nov.     Dec.
--------------------------------------------------------------------------------------------------------------------------------------------------------
1993........................................      140      219      269      210      203      238      197       34        8       38       78      163
1994........................................      138      221      243      213      208      212      246       98       26       31      101      162
1995........................................      133      270      254      261      222      182      216       74       37       24       38      148
1996........................................      144      175      261      247      157      104      142       65       17       29       76      139
1997........................................      154      177      209      188      154      119      186       58       20       29       30      112
1998........................................      119      151      192       93      170      213      232       53       33       21       93      147
1999........................................      161      170      215      210      202      128      216       98       57       20       74      123
2000........................................      151      185      240      180      158      245      256       63       46       50       86      127
2001........................................      155      189      161      168      135      212      275       75       64       20      127      185
2002........................................      117       12       20      154      134      213      215       89       43       26       73      126
2003........................................       --        1       26      161      164      222      282      100       43       51      109      116
2004........................................        2        5       39      180      202      318      307       35       40       47       68       61
2005........................................        0        7       42      222      220      233      320      145       --       --       --       --
Mean, 1993-2005.............................      118      137      167      191      179      203      238       76       36       32       79      134
2009........................................       --       --       --       --       --       --      219      117       17       22       96       80
2010........................................       66       84      129      136      109      136      267      111       59       25       89       26
2011........................................      116       92      162      124      128      145      219       98       31       53       92       48
2012........................................      108       74      115      169      164      166      156      128      100       71      137       51
2013........................................       51      108      158      112      162      139      411      175       77       58       34       94
2014........................................       98      209      243      129      145      156      266      134       53       15       27      172
2015........................................      113      171      145      177      153      219      373      120       48       33       49      138
Mean, 2011-15 \1\...........................       99      131      165      141      151      164      282      133       62       48       68       98
--------------------------------------------------------------------------------------------------------------------------------------------------------
Data from 1993-2005 adapted from Mortenson and Twohy (1994) and E. Twohy (unpublished data). Data from 2009-15 collected by SCWA.
Months represented by dash indicate periods where data were missing or incomplete.
\1\ Mean calculated as a weighted average to account for unequal sample sizes between years. See Table 4 of SCWA's application.

    The number of seals present at the Jenner haul-out generally 
declines during bar-closed conditions (Mortenson, 1996). SCWA's 
pinniped monitoring efforts from 1996 to 2000 focused on artificial 
breaching activities and their effects on the Jenner haul-out. Seal 
counts and disturbances were recorded from one to two days prior to 
breaching, the day of breaching, and the day after breaching (MSC, 
1997, 1998, 1999, 2000; SCWA and MSC, 2001). In each year, the trend 
observed was that harbor seal numbers generally declined during a beach 
closure and increased the day following an artificial breaching event. 
Heckel and McIver (1994) speculated that the loss of easy access to the 
haul-out and ready escape to the sea during bar-closed conditions may 
account for the lower numbers. Table 2 shows average daily seal counts 
recorded during SCWA monitoring of breaching events from 2009-15, 
representing bar-closed conditions, when seal numbers decline.

                       Table 2--Average Number of Harbor Seals Observed at the Mouth of the Russian River During Breaching Events
                                                         [i.e., bar-closed conditions--by Month]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Year                        Jan.     Feb.     Mar.     Apr.     May      Jun.     Jul.     Aug.     Sep.     Oct.     Nov.     Dec.
--------------------------------------------------------------------------------------------------------------------------------------------------------
2009-15.....................................       49       75      133       99       80       98      117   17 \1\       30       28       32       59
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ No estuary management events occurred; data from earlier monitoring effort (1996-2000).

    Mortenson (1996) observed that pups were first seen at the Jenner 
haul-out in late March, with maximum counts in May. In this study, pups 
were not counted separately from other age classes at the haul-out 
after August due to the difficulty in discriminating pups from small 
yearlings. From 1989 to 1991, Hanson (1993) observed that pupping began 
at the Jenner haul-out in mid-April, with a maximum number of pups 
observed during the first two weeks of May. This corresponds with the 
peaks observed at Point Reyes, where the first viable pups are born in 
March and the peak is the last week of April to early May (SCWA, 2014). 
Based on this information, pupping season at the Jenner haul-out is 
conservatively defined here as March 15 to June 30.

California Sea Lions

    California sea lions range from the Gulf of California north to the 
Gulf of Alaska, with breeding areas located in the Gulf of California, 
western Baja California, and southern California. Five genetically 
distinct geographic populations have been identified: (1) Pacific 
Temperate, (2) Pacific Subtropical, (3) Southern Gulf of California, 
(4) Central Gulf of California and (5) Northern Gulf of California 
(Schramm et al., 2009). Rookeries for the Pacific Temperate population 
are found within U.S. waters and just south of the U.S.-Mexico border, 
and animals belonging to this population may be found from the Gulf of 
Alaska to Mexican waters off Baja California. Animals belonging to 
other populations (e.g., Pacific Subtropical) may range into U.S. 
waters during non-breeding periods. For management purposes, a stock of 
California sea lions comprising those animals at rookeries within the 
U.S. is defined (i.e., the U.S. stock of California sea lions) 
(Carretta et al., 2016). Pup production at the Coronado Islands rookery 
in Mexican waters is considered an insignificant contribution to the 
overall size of the Pacific Temperate population (Lowry and Maravilla-
Chavez, 2005).
    California sea lions are not protected under the ESA or listed as 
depleted

[[Page 96421]]

under the MMPA. Total annual human-caused mortality (389) is 
substantially less than the PBR (estimated at 9,200); therefore, 
California sea lions are not considered a strategic stock under the 
MMPA. The best abundance estimate of the U.S. stock of California sea 
lions is 296,750 and the minimum population size of this stock is 
153,337 individuals (Carretta et al., 2016).
    Beginning in January 2013, elevated strandings of California sea 
lion pups were observed in southern California, with live sea lion 
strandings nearly three times higher than the historical average. 
Findings to date indicate that a likely contributor to the large number 
of stranded, malnourished pups was a change in the availability of sea 
lion prey for nursing mothers, especially sardines. Although the pups 
showed signs of some viruses and infections, findings indicate that 
this event was not caused by disease or a single infectious agent but 
by the lack of high quality, close-by food sources for nursing mothers. 
Several different kinds of one sort of virus (astroviruses, including 
some new species of astrovirus) were identified in a high percentage of 
the samples; however, the importance of this finding is still under 
investigation. The causes and mechanisms of this remain under 
investigation (www.nmfs.noaa.gov/pr/health/mmume/californiasealions2013.htm; accessed December 6, 2016).
    Solitary California sea lions have occasionally been observed at or 
in the vicinity of the Russian River estuary (MSC, 1999, 2000), in all 
months of the year except June. Male California sea lions are 
occasionally observed hauled out at or near the Russian River mouth in 
most years: August 2009, January and December 2011, January 2012, 
December 2013, February 2014, and February and April 2015. Other 
individuals were observed in the surf at the mouth of the river or 
swimming inside the estuary. Juvenile sea lions were observed during 
the summer of 2009 at the Patty's Rock haul-out, and some sea lions 
were observed during monitoring of peripheral haul-outs in October 
2009. The occurrence of individual California sea lions in the action 
area may occur year-round, but is infrequent and sporadic.

Northern Elephant Seals

    Northern elephant seals gather at breeding areas, located primarily 
on offshore islands of Baja California and California, from 
approximately December to March before dispersing for feeding. Males 
feed near the eastern Aleutian Islands and in the Gulf of Alaska, while 
females feed at sea south of 45 [deg]N (Stewart and Huber, 1993; Le 
Boeuf et al., 1993). Adults then return to land between March and 
August to molt, with males returning later than females, before 
dispersing again to their respective feeding areas between molting and 
the winter breeding season. Populations of northern elephant seals in 
the U.S. and Mexico are derived from a few tens or hundreds of 
individuals surviving in Mexico after being nearly hunted to extinction 
(Stewart et al., 1994). Given the recent derivation of most rookeries, 
no genetic differentiation would be expected. Although movement and 
genetic exchange continues between rookeries, most elephant seals 
return to their natal rookeries when they start breeding (Huber et al., 
1991). The California breeding population is now demographically 
isolated from the Baja California population and is considered to be a 
separate stock.
    Northern elephant seals are not protected under the ESA or listed 
as depleted under the MMPA. Total annual human-caused mortality (8.8) 
is substantially less than the PBR (estimated at 4,882); therefore, 
northern elephant seals are not considered a strategic stock under the 
MMPA. The best abundance estimate of the California breeding population 
of northern elephant seals is 179,000 and the minimum population size 
of this stock is 81,368 individuals (Carretta et al., 2016).
    Censuses of pinnipeds at the mouth of the Russian River have been 
taken at least semi-monthly since 1987. Elephant seals were noted from 
1987-95, with one or two elephant seals typically counted during May 
censuses, and occasional records during the fall and winter (Mortenson 
and Follis, 1997). A single, tagged northern elephant seal sub-adult 
was present at the Jenner haul-out from 2002-07. This individual seal, 
which was observed harassing harbor seals also present at the haul-out, 
was generally present during molt and again from late December through 
March. A single juvenile elephant seal was observed at the Jenner haul-
out in June 2009 and, in recent years, a sub-adult seal was observed in 
late summer of 2013-14. The occurrence of individual northern elephant 
seals in the action area has generally been infrequent and sporadic in 
the past ten years.

Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The ``Estimated Take by Incidental Harassment'' section 
later in this document will include a quantitative analysis of the 
number of incidents of take expected to occur incidental to this 
activity. The ``Negligible Impact Analysis'' section will include an 
analysis of how this specific activity will impact marine mammals and 
will consider the content of this section, the ``Estimated Take by 
Incidental Harassment'' section, and the ``Proposed Mitigation'' 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and from that on the affected marine mammal populations or stocks.
    A significant body of monitoring data exists for pinnipeds at the 
mouth of the Russian River. In addition, 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 disturb pinnipeds present on the beach 
or at peripheral haul-outs in the estuary. 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--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 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. However, 
based on a significant body of site-specific data, harbor seals are 
unlikely to sustain any harassment that may be considered biologically

[[Page 96422]]

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. During 2013, SCWA 
observed that harbor seals are less likely to flush from the beach when 
the primary aggregation of seals is north of the breaching activity 
(please refer to Figure 2 of SCWA's application), meaning that 
personnel and equipment are not required to pass the seals. Four 
artificial breaching events were implemented in 2013, with two of these 
events occurring north of the primary aggregation and two to the south 
(at approximately 250 and 50 m distance) (SCWA, 2014). In both of the 
former cases, all seals present eventually flushed to the water, but 
when breaching activity remained to the south of the haul-out, only 11 
and 53 percent of seals, respectively, were flushed.
    California sea lions and northern elephant seals 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, 2010). In the 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, pups have been observed during the pupping season; therefore, we 
have 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 recent monitoring, but may be 
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.
    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. As described 
previously, the peak of pupping season is typically concluded by mid-
May, when the lagoon management period begins. As such, it is expected 
that 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 (which may lead to abandonment).
    In summary, and based on extensive monitoring data, we believe 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 (see SCWA's monitoring reports), use 
of the haul-out despite decades of breaching events indicates that 
abandonment of the haul-out is unlikely.

Anticipated Effects on Marine Mammal Habitat

    The purposes of the estuary management activities are to improve 
summer rearing habitat for juvenile salmonids in the Russian River 
estuary and/or to minimize potential flood risk to properties adjacent 
to the estuary. These activities would result in temporary physical 
alteration of the Jenner haul-out, but are essential to conserving and 
recovering endangered salmonid species, as prescribed by the BiOp. 
These salmonids are themselves prey for pinnipeds. In addition, 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, likely increases 
suitability and availability of habitat for pinnipeds. Biological and 
water quality monitoring would not physically alter pinniped habitat. 
Please see the previously referenced Federal Register notice (76 FR 
14924; March 18, 2011) for a more detailed discussion of anticipated 
effects on habitat.
    During SCWA's pinniped monitoring associated with artificial 
breaching activities from 1996 to 2000, the number of harbor seals 
hauled out declined when the barrier beach closed and then increased 
the day following an artificial breaching event (MSC, 1997, 1998, 1999, 
and 2000; SCWA and MSC, 2001). This response to barrier beach closure 
followed by artificial breaching has remained consistent in recent 
years and is anticipated to continue. However, it is possible that the 
number of pinnipeds using the haul-out could decline during the 
extended lagoon management period, when SCWA would seek to maintain a 
shallow outlet channel rather than the deeper channel associated with 
artificial breaching. Collection of baseline information during the 
lagoon management period is included in the monitoring requirements 
described later in this document. SCWA's previous monitoring, as well 
as Twohy's daily counts of seals at the sandbar (Table 1) indicate that 
the number of seals at the haul-out declines from August to October, so 
management of the lagoon outlet channel (and managing the sandbar as a 
summer lagoon) would have little effect on haul-out use during the 
latter portion of the lagoon management period. The early portion of 
the lagoon management period coincides with the pupping season. Past 
monitoring during this period, which represents some of the longest 
beach closures in the late spring and early summer months, shows that 
the number of pinnipeds at the haul-out tends to fluctuate, rather than 
showing the more straightforward declines and increases associated with 
closures and openings seen at other times of year (MSC, 1998). This may 
indicate that seal haul-out usage during the pupping season is less 
dependent on bar status. As such, the number of seals hauled out from 
May through July would be expected to fluctuate but is unlikely to 
respond dramatically to the absence of artificial breaching events. 
Regardless, any impacts to habitat resulting from

[[Page 96423]]

SCWA's management of the estuary during the lagoon management period 
are not in relation to natural conditions but, rather, in relation to 
conditions resulting from SCWA's discontinued approach of artificial 
breaching during this period.
    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 salmonid abundance, ultimately providing more food 
for seals present within the action area. Thus, any impacts to marine 
mammal habitat are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 
section 3(18) of 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).''
    SCWA has requested, and NMFS proposes, authorization 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 disturbance only. In addition, 
monitoring activities prescribed in the BiOp may harass additional 
animals at the Jenner haul-out and at the three haul-outs located in 
the estuary (Penny Logs, Patty's Rock, and Chalanchawi). Estimates of 
the number of harbor seals, California sea lions, and northern elephant 
seals that may be harassed by the proposed activities is based upon the 
number of potential events associated with Russian River estuary 
management activities and the average number of individuals of each 
species that are present during conditions appropriate to the activity. 
As described previously in 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. Table 3 details the 
total number of estimated takes for harbor seals.
    Events associated with lagoon outlet channel management would occur 
only during the lagoon management period and are split into two 
categories: (1) Initial channel implementation, which would likely 
occur between May and September; and (2) maintenance and monitoring of 
the outlet channel, which would continue until October 15. In addition, 
it is possible that the initial outlet channel could close through 
natural processes, requiring additional channel implementation events. 
Based on past experience, SCWA estimates that a maximum of three outlet 
channel implementation events could be required, with each event 
lasting up to two days. Outlet channel implementation events would only 
occur when the bar is closed. Therefore, it is appropriate to use data 
from bar-closed monitoring events in estimating take (Table 2). 
Construction of the outlet channel is designed to produce a perched 
outflow, resulting in conditions that more closely resemble bar-closed 
than bar-open with regard to pinniped haul-out usage. As such, bar-
closed data is appropriate for estimating take during all lagoon 
management period maintenance and monitoring activity. As dates of 
outlet channel implementation cannot be known in advance, the highest 
daily average of seals per month--the March average for 2009-15--is 
used in estimating take. For maintenance and monitoring activities 
associated with the lagoon outlet channel, which would occur on a 
weekly basis following implementation of the outlet channel, the 
average number of harbor seals for each month was used.
    Artificial breaching activities would also occur during bar-closed 
conditions. Data collected specifically during bar-closed conditions 
may be used for estimating take associated with artificial breaching 
(Table 2). The number of estimated artificial breaching events is also 
informed by experience. For those months with more frequent historical 
bar closure events, we assume that two such events could occur in any 
given year. For other months, we assume that only one such event would 
occur in a given year. Please see Table 1 in SCWA's application for 
more information.
    For monthly topographic surveys on the barrier beach, potential 
incidental take of harbor seals is typically calculated as one hundred 
percent of the seals expected to be encountered. The exception is 
during the month of April, when surveyors would avoid seals to reduce 
harassment of pups and/or mothers with neonates. For the monthly 
topographic survey during April, a pinniped monitor is positioned at 
the Highway 1 overlook and would notify the surveyors via radio when 
any seals on the haul-out begin to alert to their presence. This 
enables the surveyors to retreat slowly away from the haul-out, 
typically resulting in no disturbance. For that survey, the assumption 
is therefore that only ten percent of seals present would be harassed. 
The number of seals expected to be encountered is based on the average 
monthly number of seals hauled out as recorded during baseline surveys 
conducted by SCWA in 2011-15 (Table 1).
    For biological and physical habitat monitoring activities in the 
estuary, it was assumed that pinnipeds may be encountered once per 
event and flush from a river haul-out. The potential for harassment 
associated with these events is limited to the three haul-outs located 
in the estuary. In past experience, SCWA typically sees no more than a 
single harbor seal at these haul-outs, which consist of scattered logs 
and rocks that often submerge at high tide.
    As described previously, California sea lions and northern elephant 
seals are occasional visitors to the estuary. Based on limited 
information regarding occurrence of these species at the mouth of the 
Russian River estuary, we assume there is the potential to encounter 
one animal of each species per month throughout the year. Lagoon outlet 
channel activities could potentially occur over six months of the year, 
artificial breaching activities over eight months, topographic surveys 
year-round, and biological and physical monitoring in the estuary over 
eight months. Therefore, we assume that up to 34 incidents of take 
could occur per year for both the California sea lion and northern 
elephant seal. Based on past occurrence records, the proposed take 
authorization for these two species is likely a precautionary 
overestimate.

[[Page 96424]]



  Table 3--Estimated Number of Harbor Seal Takes Resulting From Russian
                   River Estuary Management Activities
------------------------------------------------------------------------
                                                       Potential total
 Number of animals expected   Number of events b c  number of individual
         to occur a                                  animals that may be
                                                            taken
------------------------------------------------------------------------
         Lagoon Outlet Channel Management (May 15 to October 15)
------------------------------------------------------------------------
Implementation: 117 d.......  Implementation: 3     Implementation: 702
------------------------------------------------------------------------
Maintenance and Monitoring:   Maintenance:          Maintenance: 1,156
May: 80                       May: 1..............  ....................
June: 98                      June-Sept: 4/month..  ....................
July: 117                     Oct: 1..............  ....................
Aug: 17                       Monitoring:.........  Monitoring: 552
Sept: 30                      June-Sept: 2/month..  ....................
Oct: 28                       Oct: 1..............  Total: 2,410
------------------------------------------------------------------------
                          Artificial Breaching
------------------------------------------------------------------------
Oct: 28.....................  Oct: 2..............  Oct: 56
Nov: 32.....................  Nov: 2..............  Nov: 64
Dec: 59.....................  Dec: 2..............  Dec: 118
Jan: 49.....................  Jan: 1..............  Jan: 49
Feb: 75.....................  Feb: 1..............  Feb: 75
Mar: 133....................  Mar: 1..............  Mar: 133
Apr: 99.....................  Apr: 1..............  Apr: 99
May: 80.....................  May: 2..............  May: 160
                              12 events maximum...  Total: 754
------------------------------------------------------------------------
                Topographic and Geophysical Beach Surveys
------------------------------------------------------------------------
Jan: 99                       1 topographic survey/ Jan: 99
                               month; 100 percent
                               of animals present
                               Jun-Feb; 10 percent
                               of animals present
                               Mar-May.
Feb: 131....................                        Feb: 131
Mar: 165....................                        Mar: 165
Apr: 141....................                        Apr: 14
May: 151....................                        May: 151
Jun: 164....................                        Jun: 164
Jul: 282....................                        Jul: 282
Aug: 133....................                        Aug: 133
Sep: 62.....................                        Sep: 62
Oct: 48.....................                        Oct: 48
Nov: 68.....................                        Nov: 68
Dec: 98.....................                        Total: 1,415
------------------------------------------------------------------------
        Biological and Physical Habitat Monitoring in the Estuary
------------------------------------------------------------------------
1 e.........................  113.................  113
------------------------------------------------------------------------
Total.......................  ....................  4,692
------------------------------------------------------------------------
a For Lagoon Outlet Channel Management and Artificial Breaching, average
  daily number of animals corresponds with data from Table 2. For
  Topographic and Geophysical Beach Surveys, average daily number of
  animals corresponds with 2011-15 data from Table 1.
b For implementation of the lagoon outlet channel, an event is defined
  as a single, two-day episode. 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. The
  total numbers (12) likely represent an overestimate, as the average
  annual number of events is five.
d Although implementation could occur at any time during the lagoon
  management period, the highest daily average per month from 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 the three
  river haul-outs.

    The take numbers described in the preceding text are annual 
estimates. Therefore, over the course of the 5-year period of validity 
of the proposed regulations, we propose to authorize a total of 23,460 
incidents of take for harbor seals and 170 such incidents each for the 
California sea lion and northern elephant seal.

Analyses and Preliminary Determinations

Negligible Impact Analysis

    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.'' A negligible impact finding is based on the 
lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
takes alone is not enough information on which to base an impact

[[Page 96425]]

determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
we consider other factors, such as the likely nature of any responses 
(e.g., intensity, duration), the context of any such responses (e.g., 
critical reproductive time or location, migration), as well as the 
number and nature of estimated Level A harassment takes (if any), and 
effects on habitat. We also assess the number, intensity, and context 
of estimated takes by evaluating this information relative to 
population status.
    Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into these 
analyses via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, sources of human-caused mortality).
    Although SCWA's estuary management activities may disturb 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. While these impacts can occur year-round, they occur 
sporadically and for limited duration (e.g., a maximum of two 
consecutive days for water level management events). Seals will likely 
become alert or, at most, flush into the water in reaction to the 
presence of crews and equipment on the beach. While disturbance may 
occur during a sensitive time (during the March 15-June 30 pupping 
season), mitigation measures have been specifically designed to further 
minimize harm during this period and eliminate the possibility of pup 
injury or mother-pup separation.
    No injury, serious injury, or mortality is anticipated, nor is the 
proposed action likely to result in long-term impacts such as permanent 
abandonment of the haul-out. 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, we have worked with SCWA to develop 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 fifteen 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.
    No pinniped stocks for which incidental take authorization is 
proposed 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.
    In summary, and based on extensive monitoring data, we believe 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 ``Proposed Mitigation'' for more details). Further, 
the continued, and increasingly heavy (see figures in SCWA documents), 
use of the haul-out despite decades of breaching events indicates that 
abandonment of the haul-out is unlikely. Based on the analysis 
contained herein of the likely effects of the specified activity on 
marine mammals and their habitat, and taking into consideration the 
implementation of the proposed monitoring and mitigation measures, we 
preliminarily find that the total marine mammal take from SCWA's 
estuary management activities will have a negligible impact on the 
affected marine mammal species or stocks.

Small Numbers Analysis

    The proposed number of animals taken for each species of pinniped 
can be considered small relative to the population size. There are an 
estimated 30,968 harbor seals in the California stock, 296,750 
California sea lions, and 179,000 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, we are proposing to authorize annual levels 
of take, by Level B harassment only, of 4,692 incidents of harassment 
for harbor seals, 34 incidents of harassment for California sea lions, 
and 34 incidents of harassment for northern elephant seals, 
representing 15.2, 0.01, and 0.02 percent of the populations, 
respectively. However, this represents an overestimate of the number of 
individuals harassed annually over the duration of the proposed 
regulations, because these totals represent much smaller numbers of 
individuals that may be harassed multiple times. Based on the analysis 
contained herein of the likely effects of the specified activity on 
marine mammals and their habitat, and taking into consideration the 
implementation of the mitigation and monitoring measures, we 
preliminarily find that small numbers of marine mammals will be taken 
relative to the populations of the affected species or stocks.

Proposed Monitoring and Reporting

    In order to issue an incidental take authorization for an activity, 
section 101(a)(5)(A) 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 incidental take authorizations 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 in the proposed action area.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:
     Occurrence of marine mammal species in action area (e.g., 
presence, abundance, distribution, density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving, or feeding areas).

[[Page 96426]]

     Individual responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological).
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of an individual; or (2) population, 
species, or stock.
     Effects on marine mammal habitat and resultant impacts to 
marine mammals.
     Mitigation and monitoring effectiveness.
    SCWA submitted a marine mammal monitoring plan as part of the ITA 
application. It can be found online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. The plan, which has been successfully 
implemented (in slightly different form from the currently proposed 
plan) by SCWA under previous ITAs, may be modified or supplemented 
based on comments or new information received from the public during 
the public comment period. 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?

Proposed Monitoring Measures

    Baseline Monitoring--Seals at the Jenner haul-out would be counted 
for four hours every week, with no more than four baseline surveys each 
month. Two monitoring events each month would occur in the morning and 
two would occur in the afternoon with an effort to schedule a morning 
survey at low and high tide each month and an afternoon survey at low 
and high tide each month. This baseline information will provide SCWA 
with details that may help to plan estuary management activities in the 
future to minimize pinniped interaction. Survey protocols are as 
follows: 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 spotting scopes. Monitoring may conclude for the day if weather 
conditions affect visibility (e.g., heavy fog in the afternoon). 
Depending on how the sandbar is formed, seals may haul out in multiple 
groups at the mouth. At each 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.
    This primary haul-out is where the majority of seals are found and 
where pupping occurs, and SCWA's proposed monitoring would allow 
continued development in understanding the physical and biological 
factors that influence seal abundance and behavior at the site. In 
particular, SCWA notes that the proposed frequency of surveys would 
allow them to be able to observe the influence of physical changes that 
do not persist for more than ten days, like brief periods of barrier 
beach closures or other environmental changes, and would allow for 
assessment of how seals respond to barrier beach closures as well as 
accurate estimation of the number of harbor seal pups born at Jenner 
each year.
    In addition to the census data, disturbances of the haul-out are 
recorded. The method for recording disturbances follows those in 
Mortenson (1996). Disturbances would be recorded on a three-point scale 
that represents an increasing seal response to the disturbance (Table 
4). 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 will be considered as harassment under the MMPA, under the terms 
of these proposed regulations.

                  Table 4--Seal Response to Disturbance
------------------------------------------------------------------------
          Level              Type of response          Definition
------------------------------------------------------------------------
1........................  Alert..............  Seal head orientation or
                                                 brief movement in
                                                 response to
                                                 disturbance, which may
                                                 include turning head
                                                 towards the
                                                 disturbance, craning
                                                 head and neck while
                                                 holding the body rigid
                                                 in a u-shaped position,
                                                 changing from a lying
                                                 to a sitting position,
                                                 or brief movement of
                                                 less than twice the
                                                 animal's body length.
2........................  Movement...........  Movements in response to
                                                 the source of
                                                 disturbance, ranging
                                                 from short withdrawals
                                                 at least twice the
                                                 animal's body length to
                                                 longer retreats over
                                                 the beach, or if
                                                 already moving a change
                                                 of direction of greater
                                                 than 90 degrees.
3........................  Flight.............  All retreats (flushes)
                                                 to the water.
------------------------------------------------------------------------

    Weather conditions are recorded at the beginning of each census. 
These include temperature, Beaufort sea state, precipitation/
visibility, and wind speed. 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 (see Figure 1 of SCWA's application). Peripheral 
site monitoring would occur only in the event of an extended period of 
lagoon conditions (i.e., barrier beach closed with perched outlet 
channel for three weeks or more). Abundance at these sites has been 
observed to generally be very low regardless of river mouth condition. 
These sites are generally very small physically, composed of small 
rocks or outcrops or logs in the river, and therefore could not 
accommodate significant displacement from the main beach haul-out. 
Monitoring of peripheral sites under extended lagoon conditions will 
allow for possible detection of any changed use patterns.
    Estuary Management Event Monitoring, Lagoon Outlet Channel--Should 
the mouth close during the lagoon management period, SCWA would 
construct a lagoon outlet channel as required by the BiOp. Activities 
associated with the initial construction of the outlet channel, as well 
as the maintenance of the channel that may be required, would be 
monitored for

[[Page 96427]]

disturbances to the seals at the Jenner haul-out.
    A one-day pre-event channel survey would be made within one to 
three days prior to constructing the outlet channel. The haul-out would 
be monitored on the day the outlet channel is constructed and daily for 
up to the maximum two days allowed for channel excavation activities. 
Monitoring would also occur on each day that the outlet channel is 
maintained using heavy equipment for the duration of the lagoon 
management period. Monitoring of outlet channel construction and 
maintenance would correspond with that described under the ``Baseline 
Monitoring'' section previously, with the exception that management 
activity monitoring duration is defined by event duration. On the day 
of the management event, pinniped monitoring begins at least one hour 
prior to the crew and equipment accessing the beach work area and 
continues through the duration of the event, until at least one 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 
monitoring of outlet channel construction and maintenance activities. 
This provides an opportunity to qualitatively assess whether these 
haul-outs are being used by seals displaced from the Jenner haul-out 
during lagoon outlet channel excavation and maintenance. This 
monitoring would not provide definitive results regarding displacement 
to nearby coastal and river haul-outs, as individual seals are not 
marked or photo-identified, but is useful in tracking general trends in 
haul-out use during lagoon outlet channel excavation and maintenance. 
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 would 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.
    Estuary Management Event Monitoring, Artificial Breaching Events--
In accordance with the Russian River BiOp, SCWA may artificially breach 
the barrier beach outside of the summer lagoon management period, and 
may conduct a maximum of two such breachings during the lagoon 
management period, when estuary water surface elevations rise above 
seven feet. In that case, NMFS may be consulted regarding potential 
scheduling of an artificial breaching event to open the barrier beach 
and reduce flooding risk.
    Pinniped response to artificial breaching will be monitored at each 
such event during the period of validity of these proposed regulations. 
Methods would follow the census and disturbance monitoring protocols 
described in the ``Baseline Monitoring'' section, which were also used 
for the 1996 to 2000 monitoring events (MSC, 1997, 1998, 1999, 2000; 
SCWA and MSC, 2001). The exception, as for lagoon management events, is 
that duration of monitoring is dependent upon duration of the event. On 
the day of the management event, pinniped monitoring begins at least 
one hour prior to the crew and equipment accessing the beach work area 
and continues through the duration of the event, until at least one 
hour after the crew and equipment leave the beach.
    For all counts, the following information would 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--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 one 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 one 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 would contact the NMFS stranding response network 
immediately and also report the incident to NMFS's West Coast Regional 
Office and 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.
    Staffing--Monitoring is conducted by qualified individuals, which 
may include professional biologists employed by NMFS or SCWA or 
volunteers trained by the Stewards' Seal Watch program (Stewards). All 
volunteer monitors are required to attend classroom-style training and 
field site visits to the haul-outs. Training covers the MMPA and 
conditions of the ITA, SCWA's pinniped monitoring protocols, pinniped 
species identification, age class identification (including a specific 
discussion regarding neonates), recording of count and disturbance 
observations (including completion of datasheets), and use of 
equipment. Pinniped identification includes the harbor seal, California 
sea lion, and northern elephant seal, as well as other pinniped species 
with potential to occur in the area. Generally, SCWA staff and 
volunteers collect baseline data on Jenner haul-out use during the 
twice-monthly monitoring events. A schedule for this monitoring would 
be established with Stewards once volunteers are available for the 
monitoring effort. SCWA staff monitors lagoon outlet channel excavation 
and maintenance activities and artificial breaching events at the 
Jenner haul-out, with assistance from Stewards volunteers as available. 
Stewards volunteers monitor the coastal and river haul-out locations 
during lagoon outlet channel excavation and maintenance activities.
    Training on the MMPA, pinniped identification, and the conditions 
of the ITA is held for staff and contractors assigned to estuary 
management activities. The training includes equipment operators, 
safety crew members, and surveyors. In addition, prior to beginning 
each water surface elevation management event, the biologist monitoring 
the event participates in the onsite safety meeting to discuss the 
location(s) of pinnipeds at the Jenner haul-out that day and methods of 
avoiding and minimizing disturbances to the haul-out as outlined in the 
ITA.

Reporting

    SCWA is required to submit an annual report on all activities and 
marine mammal monitoring results to NMFS within ninety days following 
the end of the monitoring period. These reports would contain the 
following information:
     The number of pinnipeds 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 pinnipeds when 
disturbance occurs;
     Weather conditions (e.g., temperature, wind, etc.);

[[Page 96428]]

     Haul-out reoccupation time of any pinnipeds based on post-
activity monitoring;
     Tide levels and estuary water surface elevation; and
     Pinniped 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 must also submit a comprehensive summary report with any 
future application for renewed regulations and Letters of 
Authorization.

Summary of Previous Monitoring

    SCWA complied with the mitigation and monitoring required under 
previous authorizations. Prior notices of proposed authorization have 
provided summaries of monitoring results from 2009-15; please see those 
documents for more information. Previous monitoring reports are 
available online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.
    While the observed take in all years was significantly lower than 
the level authorized, it is possible that incidental take in future 
years could approach the level authorized. Actual take is dependent 
largely upon the number of water level management events that occur, 
which is unpredictable. Take of species other than harbor seals depends 
upon whether those species, which do not consistently utilize the 
Jenner haul-out, are present. The authorized take, though much higher 
than the actual take, is justified based on conservative estimated 
scenarios for animal presence and necessity of water level management. 
No significant departure from the method of estimation is used for 
these proposed regulations (see ``Estimated Take by Incidental 
Harassment'') for the same activities in 2017-22.
    SCWA has continued to investigate the relative disturbance caused 
by their activities versus that caused by other sources (see Figures 5-
6 of SCWA's 2015 monitoring report as well as the 2014 report). Harbor 
seals are most frequently disturbed by people on foot, with an increase 
in frequency of people present during bar-closed conditions (see Figure 
5 of SCWA's 2015 monitoring report). Kayakers are the next most 
frequent source of disturbance overall, also with an increase during 
bar-closed conditions. For any disturbance event it is often only a 
fraction of the total haul-out that responds. Some sources of 
disturbance, though rare, have a larger disturbing effect when they 
occur. For example, disturbances from dogs occur less frequently, but 
these incidents often disturb over half of the seals hauled out.

Conclusions

    The following section provides a summary of information available 
in SCWA's 2015 monitoring report. The primary purpose of SCWA's 
pinniped monitoring plan is to detect the response of pinnipeds to 
estuary management activities at the Russian River estuary. However, as 
described previously, the questions listed below are also of specific 
interest. The limited data available thus far precludes drawing 
definitive conclusions regarding the key questions in SCWA's monitoring 
plan, but we discuss preliminary conclusions and available evidence 
below.
    1. Under what conditions do pinnipeds haul out at the Russian River 
estuary mouth at Jenner?
    Although multiple factors likely influence harbor seal presence at 
the haul-out, SCWA has shown that since 2009 harbor seal attendance is 
influenced by hour of day (increasing from morning through early 
afternoon; see Figure 2 in SCWA's monitoring plan), tidal state 
(decrease with higher tides; see Figure 3 of SCWA's monitoring plan), 
month of year (peak in July and decrease in fall; see Figure 4 of 
SCWA's monitoring plan), and river mouth condition (i.e., open or 
closed).
    Daily average abundance of seals was lower during bar-closed 
conditions compared to bar-open conditions. This effect is likely due 
to a combination of factors, including increased human disturbance, 
reduced access to the ocean from the estuary side of the barrier beach, 
and the increased disturbance from wave action when seals utilize the 
ocean side of the barrier beach. Baseline data indicate that the 
highest numbers of seals are observed at the Jenner haul-out in July 
(during the molting season; see Figure 2 of SCWA's 2015 monitoring 
report), as would be expected on the basis of harbor seal biological 
and physiological requirements (Herder, 1986; Allen et al., 1989; 
Stewart and Yochem, 1994; Hanan, 1996; Gemmer, 2002).
    Overall, seals appear to utilize the Jenner haul-out throughout the 
tidal cycle. Seal abundance is significantly lower during the highest 
of tides when the haul-out is subject to an increase in wave overwash. 
Time of day had some effect on seal abundance at the Jenner haul-out, 
as abundance was greater in the afternoon hours compared to the morning 
hours. More analysis exploring the relationship of ambient temperature, 
incidence of disturbance, and season on time of day effects would help 
to explain why these variations in seal abundance occur. It is likely 
that a combination of multiple factors (e.g., season, tides, wave 
heights, level of beach disturbance) influence when the haul-out is 
most utilized.
    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?
    SCWA has, thus far, implemented the lagoon outlet channel only 
once, in 2010. The response of harbor seals at the Jenner haul-out to 
the outlet channel implementation activities was similar to responses 
observed during past artificial breaching events (MSC, 1997, 1998, 
1999, 2000; SCWA and MSC, 2001). The harbor seals typically alert to 
the sound of equipment on the beach and leave the haul-out as the crew 
and equipment approach. Individuals then haul out on the beach while 
equipment is operating, leaving the beach again when equipment and 
staff depart, and typically begin to return to the haul-out within 
thirty minutes of the work ending. Because the barrier beach reformed 
soon after outlet channel implementation and subsequently breached on 
its own following the 2010 event, maintenance of the outlet channel was 
not necessary and monitoring of the continued response of pinnipeds at 
the Jenner haul-out to maintenance of the outlet channel and management 
of the lagoon for the duration of the lagoon management period has not 
yet been possible. As noted previously, when breaching activities were 
conducted south of the haul-out location seals often remained on the 
beach during all or some of the breaching activity. This indicates that 
seals are less disturbed by activities when equipment and crew do not 
pass directly past their haul-out.
    3. Does the number of seals at the Jenner haul-out significantly 
differ from historic averages with formation of a summer lagoon in the 
Russian River estuary?
    The duration of closures in recent years has not generally been 
dissimilar from the duration of closures that have been previously 
observed at the estuary, and lagoon outlet channel implementation has 
occurred only once, meaning that there has been a lack of opportunity 
to study harbor seal response to extended lagoon conditions. A barrier 
beach has formed during the lagoon management period sixteen times 
since SCWA began implementing the lagoon outlet channel adaptive

[[Page 96429]]

management plan, with an average duration of fourteen days. However, 
the sustained river outlet closures observed in 2014-15 during the 
lagoon management period provide some information regarding the 
abundance of seals during the formation of a summer lagoon. While seal 
abundance was lower overall during bar-closed conditions, overall there 
continues to be a slight increasing trend in seal abundance. These 
observations may indicate that, while seal abundance exhibits a short-
term decline following bar closure, the number of seals utilizing the 
Jenner haul-out overall during such conditions is not affected. Short-
term fluctuations in abundance aside, it appears that the general 
trends of increased abundance during summer and decreased abundance 
during fall, which coincide with the annual molt and likely foraging 
dispersal, respectively, are not affected. Such short-term fluctuations 
are likely not an indicator that seals are less likely to use the 
Jenner haul-out at any time.
    4. Are seals at the Jenner haul-out displaced to nearby river and 
coastal haul-outs when the mouth remains closed in the summer?
    Initial comparisons of peripheral (river and coastal) haul-out 
count data to the Jenner haul-out counts have been inconclusive (see 
Table 2 and Figures 6-7 of SCWA's 2015 monitoring report). As noted 
above, SCWA will focus ongoing effort at peripheral sites during 
periods of extended bar-closure and lagoon formation.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
SCWA estuary management activities would contain an adaptive management 
component.
    The reporting requirements associated with this proposed rule are 
designed to provide NMFS with monitoring data from the previous year to 
allow consideration of whether any changes are appropriate. The use of 
adaptive management allows NMFS to consider new information from 
different sources to determine (with input from SCWA regarding 
practicability) on an annual or biennial basis if mitigation or 
monitoring measures should be modified (including additions or 
deletions). Mitigation measures could be modified if new data suggests 
that such modifications would have a reasonable likelihood of reducing 
adverse effects to marine mammals and if the measures are practicable.
    SCWA's monitoring program (see ``Proposed Monitoring and 
Reporting'') would be managed adaptively. Changes to the proposed 
monitoring program may be adopted if they are reasonably likely to 
better accomplish the MMPA monitoring goals described previously or may 
better answer the specific questions associated with SCWA's monitoring 
plan.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from general marine mammal and sound research; and (3) any 
information which reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOAs.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by the specified activity. Therefore, we have determined that the total 
taking of affected species or stocks would not have an unmitigable 
adverse impact on the availability of such species or stocks for taking 
for subsistence purposes.

Endangered Species Act (ESA)

    No marine mammal species listed under the ESA are expected to be 
affected by these activities. Therefore, we have determined that 
section 7 consultation under the ESA is not required.

National Environmental Policy Act

    NMFS prepared an EA (2010) and associated FONSI in accordance with 
NEPA and the regulations published by the Council on Environmental 
Quality. These documents are posted at the aforementioned Internet 
address. Information in SCWA's application, NMFS's EA (2010), and this 
notice collectively provide the environmental information related to 
proposed issuance of these regulations for public review and comment. 
We will review all comments submitted in response to this notice as we 
complete the NEPA process, including a decision of whether the existing 
EA and FONSI provide adequate analysis related to the potential 
environmental effects of issuing an incidental take authorization to 
SCWA, prior to a final decision on the request.

Request for Information

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning SCWA's request and the proposed regulations 
(see ADDRESSES). All comments will be reviewed and evaluated as we 
prepare the final rule and make final determinations on whether to 
issue the requested authorizations. This notice and referenced 
documents provide all environmental information relating to our 
proposed action for public review.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
SCWA is the sole entity that would be subject to the requirements in 
these proposed regulations, and the Sonoma County Water Agency is not a 
small governmental jurisdiction, small organization, or small business, 
as defined by the RFA. Under the RFA, governmental jurisdictions are 
considered to be small if they are ``. . . governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than 50,000 . . . .'' As of the 
2010 census, Sonoma County, CA had a population of nearly 500,000 
people. Because of this certification, a regulatory flexibility 
analysis is not required and none has been prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. These requirements have 
been approved by OMB under control number 0648-0151 and include 
applications for regulations, subsequent LOAs, and reports. Send 
comments regarding any aspect of this data collection, including 
suggestions for reducing the burden, to NMFS and the OMB Desk Officer 
(see ADDRESSES).

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.


[[Page 96430]]


    Dated: December 23, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is proposed 
to be amended as follows:

PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 217 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.

0
2. Add subpart A to part 217 to read as follows:
Subpart A--Taking Marine Mammals Incidental to Russian River Estuary 
Management Activities
Sec.
217.1 Specified activity and specified geographical region.
217.2 Effective dates.
217.3 Permissible methods of taking.
217.4 Prohibitions.
217.5 Mitigation requirements.
217.6 Requirements for monitoring and reporting.
217.7 Letters of Authorization.
217.8 Renewals and modifications of Letters of Authorization.
217.9-217.10 [Reserved]

Subpart A--Taking Marine Mammals Incidental to Russian River 
Estuary Management Activities


Sec.  217.1   Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the Sonoma County 
Water Agency (SCWA) and those persons it authorizes or funds to conduct 
activities on its behalf for the taking of marine mammals that occurs 
in the area outlined in paragraph (b) of this section and that occurs 
incidental to estuary management activities.
    (b) The taking of marine mammals by SCWA may be authorized in a 
Letter of Authorization (LOA) only if it occurs at Goat Rock State 
Beach or in the Russian River estuary in California.


Sec.  217.2   Effective dates.

    Regulations in this subpart are effective from [EFFECTIVE DATE OF 
FINAL RULE] through [DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].


Sec.  217.3   Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec. Sec.  216.106 and 217.7 of 
this chapter, the Holder of the LOA (hereinafter ``SCWA'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.1(b) of this chapter by Level B harassment 
associated with estuary management activities, provided the activity is 
in compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA.


Sec.  217.4   Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.1 and authorized 
by an LOA issued under Sec. Sec.  216.106 and 217.7 of this chapter, no 
person in connection with the activities described in Sec.  217.1 of 
this chapter may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. Sec.  216.106 
and 217.7 of this chapter;
    (b) Take any marine mammal not specified in such LOAs;
    (c) Take any marine mammal specified in such LOAs in any manner 
other than as specified;
    (d) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.


Sec.  217.5   Mitigation requirements.

    When conducting the activities identified in Sec.  217.1(a) of this 
chapter, the mitigation measures contained in any LOA issued under 
Sec. Sec.  216.106 and 217.7 of this chapter must be implemented. These 
mitigation measures shall include but are not limited to:
    (a) General conditions: (1) A copy of any issued LOA must be in the 
possession of SCWA, its designees, and work crew personnel operating 
under the authority of the issued LOA.
    (2) If SCWA observes a pup that may be abandoned, it shall contact 
the National Marine Fisheries Service (NMFS) West Coast Regional 
Stranding Coordinator immediately and also report the incident to NMFS 
Office of Protected Resources within 48 hours. Observers shall not 
approach or move the pup.
    (b) SCWA crews shall cautiously approach the haul-out ahead of 
heavy equipment.
    (c) SCWA staff shall avoid walking or driving equipment through the 
seal haul-out.
    (d) Crews on foot shall make an effort to be seen by seals from a 
distance.
    (e) During breaching events, all monitoring shall be conducted from 
the overlook on the bluff along Highway 1 adjacent to the haul-out.
    (f) A water level management event may not occur for more than two 
consecutive days unless flooding threats cannot be controlled.
    (g) All work shall be completed as efficiently as possible and with 
the smallest amount of heavy equipment possible.
    (h) Boats operating near river haul-outs during monitoring shall be 
kept within posted speed limits and driven as far from the haul-outs as 
safely possible.
    (i) SCWA shall implement the following mitigation measures during 
pupping season (March 15-June 30):
    (1) SCWA shall maintain a one 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.
    (2) 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 management action shall 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 shall consult with 
NMFS and the California Department of Fish and Wildlife to determine 
the appropriate course of action. SCWA shall coordinate with the 
locally established seal monitoring program (Stewards of the Coast and 
Redwoods) to determine if pups less than one week old are on the beach 
prior to a breaching event.
    (3) Physical and biological monitoring 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.


Sec.  217.6   Requirements for monitoring and reporting.

    (a) Monitoring and reporting shall be conducted in accordance with 
the approved Pinniped Monitoring Plan.
    (b) Baseline monitoring shall be conducted each week, with two 
events per month occurring in the morning and two per month in the 
afternoon. These censuses shall continue for four hours, weather 
permitting; the census days shall be chosen to ensure that monitoring 
encompasses a low and high tide each in the morning and afternoon. All 
seals hauled out on the beach shall be counted every 30 minutes from 
the overlook on the bluff along Highway 1 adjacent to the haul-out 
using high-powered spotting scopes. Observers shall indicate where 
groups of seals are hauled out on the sandbar and provide

[[Page 96431]]

a total count for each group. If possible, adults and pups shall be 
counted separately.
    (c) Peripheral coastal haul-outs shall be visited concurrently with 
baseline monitoring in the event that a lagoon outlet channel is 
implemented and maintained for a prolonged period of over 21 days.
    (d) During estuary management events, monitoring shall occur on all 
days that activity is occurring using the same protocols as described 
for baseline monitoring, with the difference that monitoring shall 
begin at least one hour prior to the crew and equipment accessing the 
beach work area and continue through the duration of the event, until 
at least one hour after the crew and equipment leave the beach. In 
addition, a one-day pre-event survey of the area shall be made within 
one to three days of the event and a one-day post-event survey shall be 
made after the event, weather permitting.
    (e) For all monitoring, the following information shall be recorded 
in 30-minute intervals:
    (1) Pinniped counts by species;
    (2) Behavior;
    (3) Time, source and duration of any disturbance, with takes 
incidental to SCWA actions recorded only for responses involving 
movement away from the disturbance or responses of greater intensity 
(e.g., not for alerts);
    (4) Estimated distances between source of disturbance and 
pinnipeds;
    (5) Weather conditions (e.g., temperature, percent cloud cover, and 
wind speed); and
    (6) Tide levels and estuary water surface elevation.
    (f) Reporting: (1) Annual reporting: (i) SCWA shall submit an 
annual summary report to NMFS not later than ninety days following the 
end of a given reporting period. SCWA shall provide a final report 
within thirty days following resolution of comments on the draft 
report.
    (ii) These reports shall contain, at minimum, the following:
    (A) The number of seals taken, by species and age class (if 
possible);
    (B) Behavior prior to and during water level management events;
    (C) Start and end time of activity;
    (D) Estimated distances between source and seals when disturbance 
occurs;
    (E) Weather conditions (e.g., temperature, wind, etc.);
    (F) Haul-out reoccupation time of any seals based on post-activity 
monitoring;
    (G) Tide levels and estuary water surface elevation;
    (H) Seal census from bi-monthly and nearby haul-out monitoring; and
    (I) Specific conclusions that may be drawn from the data in 
relation to the four questions of interest in SCWA's Pinniped 
Monitoring Plan, if possible.
    (2) SCWA shall submit a comprehensive summary report to NMFS in 
conjunction with any future submitted request for incidental take 
authorization.
    (g) Reporting of injured or dead marine mammals:
    (1) In the unanticipated event that the activity defined in Sec.  
217.1(a) clearly causes the take of a marine mammal in a prohibited 
manner, SCWA shall immediately cease such activity and report the 
incident to the Office of Protected Resources (OPR), NMFS and the West 
Coast Regional Stranding Coordinator, NMFS. Activities shall not resume 
until NMFS is able to review the circumstances of the prohibited take. 
NMFS will work with SCWA to determine what measures are necessary to 
minimize the likelihood of further prohibited take and ensure MMPA 
compliance. SCWA may not resume their activities until notified by 
NMFS. The report must include the following information:
    (i) Time and date of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions;
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Fate of the animal(s); and
    (vii) Photographs or video footage of the animal(s).
    (2) In the event that SCWA discovers an injured or dead marine 
mammal and determines that the cause of the injury or death is unknown 
and the death is relatively recent (e.g., in less than a moderate state 
of decomposition), SCWA shall immediately report the incident to OPR 
and the West Coast Regional Stranding Coordinator, NMFS. The report 
must include the information identified in paragraph (g)(1) of this 
section. Activities may continue while NMFS reviews the circumstances 
of the incident. NMFS will work with SCWA to determine whether 
additional mitigation measures or modifications to the activities are 
appropriate.
    (3) In the event that SCWA discovers an injured or dead marine 
mammal and determines that the injury or death is not associated with 
or related to the activities defined in Sec.  217.1(a) (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), SCWA shall report the incident to OPR 
and the West Coast Regional Stranding Coordinator, NMFS, within 24 
hours of the discovery. SCWA shall provide photographs or video footage 
or other documentation of the stranded animal sighting to NMFS.
    (4) Pursuant to paragraphs (g)(2) and (3) of this section, SCWA may 
use discretion in determining what injuries (i.e., nature and severity) 
are appropriate for reporting. At minimum, SCWA must report those 
injuries considered to be serious (i.e., will likely result in death) 
or that are likely caused by human interaction (e.g., entanglement, 
gunshot). Also pursuant to sections paragraphs (g)(2) and (3) of this 
section, SCWA may use discretion in determining the appropriate vantage 
point for obtaining photographs of injured/dead marine mammals.


Sec.  217.7   Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, SCWA must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, SCWA may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, SCWA must apply 
for and obtain a modification of the LOA as described in Sec.  217.8 of 
this chapter.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within 30 days of a determination.


Sec.  217.8   Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 and 217.7 of this 
chapter for the activity identified in Sec.  217.1(a) shall be renewed 
or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the

[[Page 96432]]

anticipated impacts, are the same as those described and analyzed for 
these regulations (excluding changes made pursuant to the adaptive 
management provision in paragraph (c)(1) of this section), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For an LOA modification or renewal requests by the applicant 
that include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis of the change, and 
solicit public comment before issuing the LOA.
    (c) An LOA issued under Sec. Sec.  216.106 and 217.7 of this 
chapter for the activity identified in Sec.  217.1(a) may be modified 
by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with SCWA regarding the practicability of the modifications) 
if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of the mitigation and monitoring set forth in 
the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from SCWA's monitoring from the previous year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in LOAs issued pursuant to Sec. Sec.  216.106 
and 217.7 of this chapter, an LOA may be modified without prior notice 
or opportunity for public comment. Notice would be published in the 
Federal Register within thirty days of the action.


Sec. Sec.  217.9-217.10   [Reserved]

[FR Doc. 2016-31592 Filed 12-29-16; 8:45 am]
 BILLING CODE 3510-22-P