[Federal Register Volume 82, Number 49 (Wednesday, March 15, 2017)]
[Rules and Regulations]
[Pages 13765-13777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-04944]



[[Page 13765]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 160929897-7222-02]
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: Final rule.

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SUMMARY: NMFS, upon request from the Sonoma County Water Agency (SCWA), 
issues these regulations pursuant to the Marine Mammal Protection Act 
(MMPA) to govern the incidental taking of marine mammals incidental to 
Russian River estuary management activities in Sonoma County, 
California, over the course of five years (2017-2022). These 
regulations, which allow for the issuance of Letters of Authorization 
(LOA) for the incidental take of marine mammals during the described 
activities and specified timeframes, prescribe the permissible methods 
of taking and other means of effecting the least practicable adverse 
impact on marine mammal species or stocks and their habitat, and 
establish requirements pertaining to the monitoring and reporting of 
such taking.

DATES: Effective from April 21, 2017, through April 20, 2022.

ADDRESSES: A copy of SCWA's application and 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 below (see FOR FURTHER INFORMATION CONTACT).

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

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

    These regulations, issued under the authority of the MMPA (16 
U.S.C. 1361 et seq.), 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 plans 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 is anticipated to occur by Level B harassment incidental 
to estuary management activities due to disturbance of hauled 
pinnipeds. The regulations are valid from 2017 to 2022. Please see 
``Background'' below for definitions of harassment.

Legal Authority for the 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 final rule containing five-year regulations, and for any 
subsequent Letters of Authorization. As directed by this legal 
authority, this final rule contains mitigation, monitoring, and 
reporting requirements.

Summary of Major Provisions Within the Final Rule

    The following provides a summary of some of the major provisions 
within the final rulemaking for SCWA estuary management activities. We 
have determined that SCWA's adherence to the planned mitigation, 
monitoring, and reporting measures listed below will 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 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 
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

[[Page 13766]]

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 plans 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 regulations, which are 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 LOA, we issued seven consecutive incidental harassment 
authorizations (IHAs) 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; April 6, 
2010), and was subsequently issued one-year IHAs for incidental take 
associated with the same activities, effective on April 21, 2011 (76 FR 
23306; April 26, 2011), April 21, 2012 (77 FR 24471; April 24, 2012), 
April 21, 2013 (78 FR 23746; April 22, 2013), April 21, 2014 (79 FR 
20180; April 11, 2014), April 21, 2015 (80 FR 24237; April 30, 2015), 
and April 21, 2016 (81 FR 22050; April 14, 2016).

Description of the Specified Activity

    Additional detail regarding the specified activity was provided in 
our Federal Register notice of proposed rulemaking (81 FR 96415; 
December 30, 2016) and in past notices cited herein; please see those 
documents or SCWA's application for more information.

Overview

    The specified activity 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 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 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. As described in the 
notice of proposed rulemaking, NMFS issued a 2008 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 recent historic practices, were likely to jeopardize 
the continued existence of ESA-listed salmonids and were likely to 
adversely modify critical habitat. In part, therefore, the 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. 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.
    There are three components to SCWA's ongoing estuary management 
activities: (1) Lagoon outlet channel management, during the lagoon 
management period only, required to accomplish the dual purposes of 
flood risk abatement and maintenance of juvenile salmonid habitat; (2) 
traditional artificial breaching, with the sole objective of flood risk 
abatement; and (3) physical and biological monitoring in and near the 
estuary, required under the terms of the BiOp, to understand response 
to water surface elevation management in the estuary-lagoon system. The 
latter category (physical and biological monitoring) includes all 
ancillary beach and/or estuary

[[Page 13767]]

monitoring activities and 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.

Comments and Responses

    We published a notice of proposed rulemaking in the Federal 
Register on December 30, 2016 (81 FR 96415). During the 30-day comment 
period, we received a letter from the Marine Mammal Commission 
(Commission) and comments from two private citizens. The Commission 
recommends that we issue the requested authorization, subject to 
inclusion of the proposed mitigation and monitoring measures as 
described in our notice of proposed rulemaking and the application. All 
measures proposed in the initial Federal Register notice are included 
within the final rule. The comments from the two private citizens are 
described below.
    Comment 1: If a project is found to jeopardize a species or 
adversely modify its critical habitat, NMFS must cease activity until a 
non-jeopardizing Reasonable and Prudent Alternative (RPA) to the 
proposed project is in place, in coordination with the Federal action 
agency and any applicant.
    Response: Although this is a general comment not specifically 
relevant to the proposed rulemaking that was the subject of the public 
comment period, the commenter's statement is correct. We refer readers 
to NMFS's 2008 BiOp for details of the relevant ESA section 7 
consultation described previously in this document.
    Comment 2: It is important to leave our environment and the Russian 
River estuary as pristine as possible for future generations. Please 
keep takes allowed from this region to a minimum.
    Response: As required by the MMPA, NMFS has prescribed mitigation 
sufficient to satisfy the MMPA's least practicable adverse impact 
standard and has determined that the level of incidental taking 
proposed for authorization meets the MMPA's negligible impact standard.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species that may be harassed incidental to 
estuary management activities are the harbor seal, California sea lion, 
and the northern elephant seal. We presented a detailed discussion of 
the status of these stocks and their occurrence in the action area in 
the notice of the proposed rulemaking (81 FR 96415; December 30, 2016).
    Ongoing monthly harbor 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). Recently, SCWA began regular baseline monitoring of the haul-out 
as a component of its estuary management activity. In the notice of 
proposed rulemaking, we presented average daily numbers of seals 
observed at the mouth of the Russian River from 1993-2005 and from 
2009-2015 (see Table 1; 81 FR 96415; December 30, 2016).

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

    We provided a detailed discussion of the potential effects of the 
specified activity on marine mammals in the notice of the proposed 
rulemaking (81 FR 96415; December 30, 2016). A summary of anticipated 
effects is provided below.
    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, although 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 addition, eight other haul-
outs exist nearby that may accommodate flushed seals. In the absence of 
appropriate mitigation measures, it is possible that pinnipeds could be 
subject to injury, serious injury, or mortality, likely through 
stampeding or abandonment of pups.
    California sea lions and northern elephant seals, which have been 
noted only infrequently in the action area, have been observed as being 
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 
was 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 mass movement. As 
discussed previously, no such movements 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

[[Page 13768]]

estuary management activities. Harbor seal pups are extremely 
precocious, swimming and diving immediately after birth and throughout 
the lactation period, unlike most other phocids which normally enter 
the sea only after weaning (Lawson and Renouf, 1985; Cottrell et al., 
2002; Burns et al., 2005). Lawson and Renouf (1987) investigated harbor 
seal mother-pup bonding in response to natural and anthropogenic 
disturbance. In summary, they found that the most critical bonding time 
is within minutes after birth. Although pupping season is defined as 
March 15-June 30, the peak of pupping season is typically concluded by 
mid-May, when the lagoon management period begins. As such, it is 
expected that most mother-pup bonding would likely be concluded as 
well. The number of management events during the months of March and 
April has been relatively low in the past, and the breaching activities 
occur in a single day over several hours. In addition, mitigation 
measures described later in this document further reduce the likelihood 
of any impacts to pups, whether through injury or mortality or 
interruption of mother-pup bonding.
    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 has 
it 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

    We provided a detailed discussion of the potential effects of this 
action on marine mammal habitat in the notice of the proposed IHA (81 
FR 96415; December 30, 2016). SCWA's estuary management activities will 
result in temporary physical alteration of the Jenner haul-out. With 
barrier beach closure, seal usage of the beach haul-out declines, and 
the three nearby river haul-outs may not be available for usage due to 
rising water surface elevations. Breaching of the barrier beach, 
subsequent to the temporary habitat disturbance, will likely increase 
suitability and availability of habitat for pinnipeds. Biological and 
water quality monitoring will not physically alter pinniped habitat.
    In summary, there will be temporary physical alteration of the 
beach. However, natural opening and closure of the beach results in the 
same impacts to habitat. Therefore, seals are likely adapted to this 
cycle. In addition, the increase in rearing habitat quality has the 
goal of increasing 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).''
    In accordance with the regulations implemented by this final rule, 
we plan to issue an LOA to SCWA to take harbor seals, California sea 
lions, and northern elephant seals, by Level B harassment only, 
incidental to estuary management activities. These activities, 
involving increased human presence and the use of heavy equipment and 
support vehicles, are expected to harass pinnipeds present at the haul-
out through disturbance. 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 
planned 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. 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. Methodology of take 
estimation was discussed in detail in our notice of proposed rulemaking 
(81 FR 96415; December 30, 2016). Table 1 details the total number of 
estimated takes for harbor seals.
    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 take authorization for 
these two species is likely a precautionary overestimate.

    Table 1--Estimated Number of Harbor Seal Takes Resulting From Russian River Estuary Management Activities
----------------------------------------------------------------------------------------------------------------
                                                                         Potential total number of individual
Number of animals expected to occur \a\     Number of events b c              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....................

[[Page 13769]]

 
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.
Feb: 131...............................   month; 100 percent of      Feb: 131.
Mar: 165...............................   animals present Jun-Feb;   Mar: 165.
Apr: 141...............................   10 percent of animals      Apr: 14.
May: 151...............................   present Mar-May.           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................................                              Dec: 98.
                                                                    --------------------------------------------
                                                                     Total: 1,415.
----------------------------------------------------------------------------------------------------------------
Biological and Physical Habitat Monitoring in the Estuary.......................................................
----------------------------------------------------------------------------------------------------------------
1 \e\..................................  113.......................  113.
Total..................................  N/A.......................  4,692.
----------------------------------------------------------------------------------------------------------------
\a\ For Lagoon Outlet Channel Management and Artificial Breaching, average daily number of animals corresponds
  with data from Table 2 in our notice of proposed rulemaking. For Topographic and Geophysical Beach Surveys,
  average daily number of animals corresponds with 2011-15 data from Table 1 in our notice of proposed
  rulemaking.
\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 would have the
  potential to be disturbed, in total 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 regulations, we will 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 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 
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

[[Page 13770]]

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 
planned 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 mass movement, or from extended mother-pup separation 
as a result of such movement. 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 15 years of flood 
control management, implementation of similar mitigation measures has 
resulted in no known mass movement or stampede events and no known 
injury, serious injury, or mortality. Over the course of that time, 
management events have generally been infrequent and of limited 
duration.
    No pinniped stocks for which incidental take will be authorized 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 has 
it been documented--in the years since appropriate protocols were 
established (see ``Mitigation'' for more details). Further, the 
continued, and increasingly heavy use of the haul-out (see figures in 
SCWA documents) 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 planned monitoring and mitigation measures, we 
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 number of animals expected to be 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 plan 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 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 find that small numbers of marine mammals will 
be taken relative to the populations of the affected species or stocks.

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 will continue the following mitigation measures, as 
implemented during the previous ITAs, which are designed to minimize 
impact to affected species and stocks:
     SCWA crews will 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 mass movement--a particular concern during pupping season.
     SCWA staff will avoid walking or driving equipment through 
the seal haul-out.
     Crews on foot will make an effort to be seen by seals from 
a distance, if possible, rather than appearing suddenly, in order to 
prevent sudden flushes.
     During breaching events, all monitoring will be conducted 
from the overlook on the bluff along Highway 1 adjacent to the haul-out 
in order to minimize potential for harassment.
     A water level management event may not occur for more than 
two consecutive days unless flooding threats cannot be controlled.
    In addition, SCWA will continue the following mitigation measures 
specific

[[Page 13771]]

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 is on the path used to access the work 
location, the management action will be delayed until the pup has left 
the site or until the latest day possible to prevent flooding while 
still maintaining suitable fish rearing habitat. In the event that a 
pup remains present on the beach in the presence of flood risk, SCWA 
will consult with NMFS 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.
    Equipment will be driven slowly on the beach and care will be taken 
to minimize the number of shut-downs and start-ups when the equipment 
is on the beach. All work will be completed as efficiently as possible, 
with the smallest amount of heavy equipment possible, to minimize 
disturbance of seals at the haul-out. Boats operating near river haul-
outs during monitoring will be kept within posted speed limits and 
driven as far from the haul-outs as safely possible to minimize 
flushing seals.
    We have carefully evaluated SCWA's planned mitigation measures and 
considered their effectiveness in past implementation to determine 
whether they are likely to effect the least practicable adverse impact 
on the affected marine mammal species and stocks and their habitat. Our 
evaluation of potential measures 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 goal 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 goal 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 goal 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 planned measures and on SCWA's 
record of management at the mouth of the Russian River including 
information from monitoring of SCWA's implementation of the mitigation 
measures as prescribed under the previous ITAs, we have determined that 
the planned 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.

Monitoring and Reporting

    In order to issue an ITA 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 ITAs 
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).
     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 has been successfully implemented 
by SCWA under previous ITAs. 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 ITA, 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?

[[Page 13772]]

    4. Are seals at the Jenner haul-out displaced to nearby river and 
coastal haul-outs when the mouth remains closed in the summer?

Monitoring Measures

    Baseline Monitoring--Seals at the Jenner haul-out will be counted 
for four hours every week, with no more than four baseline surveys each 
month. Two monitoring events each month will occur in the morning, and 
two will 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 planned monitoring will 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 planned frequency of surveys will 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 will 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 will be recorded on a three-point scale 
that represents an increasing seal response to the disturbance (Table 
2). 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 final regulations.

                  Table 2--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 be generally very low regardless of river mouth condition. 
These sites are generally very small physically, and are 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 of the river 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 disturbances to the seals at the 
Jenner haul-out.
    A one-day pre-event channel survey will be made within one to three 
days prior to constructing the outlet channel. The haul-out will be 
monitored on the day the outlet channel is constructed and daily for up 
to the maximum two days allowed for channel excavation activities. 
Monitoring will also occur on each day that the outlet channel is 
maintained using heavy equipment for the duration of the lagoon 
management period. Monitoring of outlet channel construction and 
maintenance will correspond with that described above in the ``Baseline 
Monitoring'' section, with the exception that management activity 
monitoring duration will be defined by event duration. On the day of 
the management event, pinniped monitoring will begin at least one hour 
prior to the crew and equipment accessing the beach work area, and will 
continue 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 will 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

[[Page 13773]]

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 regulations. 
Monitoring methods will 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 the duration of monitoring is dependent upon 
the duration of the event. On the day of the management event, pinniped 
monitoring begins at least one hour before the crew and equipment 
accesses the beach work area, and monitoring 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 will be recorded in 
thirty-minute intervals: (1) Pinniped counts by species; (2) behavior; 
(3) time, source and duration of any disturbance; (4) estimated 
distances between source of disturbance and pinnipeds; (5) weather 
conditions (e.g., temperature, wind); and (5) tide levels and estuary 
water surface elevation.
    Monitoring During Pupping Season--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 
Stewards' Seal Watch monitoring program (Stewards) 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 will contact the NMFS stranding response network 
immediately, and also will 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: (1) No observed contact with adult seals, 
(2) no movement of the pup, and (3) 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. 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 will 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 available Stewards volunteers. 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 must 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.);
     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 that includes 
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 Federal Register notices of proposed 
yearly authorizations have provided summaries of the monitoring results 
from 2009-2015; please see those documents for more information. 
Previous monitoring reports are available online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. We also provided a detailed 
description of previous monitoring results in the proposed rule for 
this action (81 FR 96415; December 30, 2016).

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
SCWA estuary management activities contain an adaptive management 
component.
    The reporting requirements associated with this final 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

[[Page 13774]]

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 ``Monitoring and Reporting'') will 
be managed adaptively. Changes to the 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

    In compliance with the National Environmental Policy Act (NEPA) of 
1969 (42 U.S.C. 4321 et seq.), as implemented by the regulations 
published by the Council on Environmental Quality (40 CFR parts 1500-
1508), and NOAA Administrative Order 216-6, we prepared an 
Environmental Assessment (EA) to consider the direct, indirect and 
cumulative effects to the human environment resulting from issuance of 
the original IHA to SCWA for the specified activities and found that it 
would not result in any significant impacts to the human environment. 
We signed a Finding of No Significant Impact (FONSI) on March 30, 2010. 
We have reviewed SWCA's application for incidental take regulations and 
an associated LOA for ongoing estuary management activities and the 
2016 monitoring report. Based on that review, we have determined that 
the action follows closely the ITAs issued and implemented in 2010-
2016, and does not present any substantial changes, or significant new 
circumstances or information relevant to environmental concerns which 
would require a supplement to the 2010 EA or preparation of a new NEPA 
document. Therefore, we have determined that a new or supplemental EA 
or Environmental Impact Statement is unnecessary, and we rely on the 
existing EA and FONSI for this action. The 2010 EA and FONSI for this 
action are available for review at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
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 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration at the proposed rule stage that this rule will not have 
a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, 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 (COI) subject to the 
requirements of the Paperwork Reduction Act (PRA) unless that COI 
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.

List of Subjects in 50 CFR Part 217

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

    Dated: March 8, 2017.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
    For reasons set forth in the preamble, NMFS amends 50 CFR part 217 
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., unless otherwise noted.


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 April 21, 2017, 
through April 20, 2022.


Sec.  217.3  Permissible methods of taking.

    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) by Level B harassment associated with

[[Page 13775]]

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 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; and
    (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 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 the reporting period established in any LOA issued under Sec.  
217.7. 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

[[Page 13776]]

    (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 the regulations 
in this subpart, 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 the regulations in 
this subpart.
    (c) If an LOA expires prior to the expiration date of the 
regulations in this subpart, 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.
    (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 the regulations in this subpart.
    (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 anticipated impacts, are the same as 
those described and analyzed for the regulations in this subpart 
(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 the regulations in this 
subpart 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.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA 
are:
    (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 the regulations in this 
subpart 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

[[Page 13777]]

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. 2017-04944 Filed 3-14-17; 8:45 am]
 BILLING CODE 3510-22-P