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Proposed Rule2022-00996

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

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Published

January 21, 2022

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

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 (2022-2027). As required by the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to govern that take and requests comments on the proposed regulations.

Full Text

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<title>Federal Register, Volume 87 Issue 14 (Friday, January 21, 2022)</title>
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[Federal Register Volume 87, Number 14 (Friday, January 21, 2022)]
[Proposed Rules]
[Pages 3262-3276]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-00996]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 220113-0013]
RIN 0648-BK97

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; request for comments.

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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 (2022-2027). As required by
the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations
to govern that take and requests comments on the proposed regulations.

DATES: Comments and information must be received no later than February
22, 2022.

ADDRESSES: Submit all electronic public comments via the Federal e-
Rulemaking Portal. Go to <a href="http://www.regulations.gov">www.regulations.gov</a> and enter NOAA-NMFS-2021-
0124 in the Search box. Click on the ``Comment'' icon, complete the
required fields, and enter or attach your comments.
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
<a href="http://www.regulations.gov">www.regulations.gov</a> 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: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>. In case of
problems accessing these documents, please call the contact listed
above (see FOR FURTHER INFORMATION CONTACT).

Purpose and Need for Regulatory Action

We received an application from SCWA requesting 5-year regulations
and authorization to take multiple species of marine mammals. This
proposed rule would establish a framework under the authority of the
MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take by
Level B harassment of marine mammals incidental to SCWA's estuary
management activities at the mouth of the Russian River in Sonoma
County, CA. 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 and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the Proposed Mitigation
section), 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 LOAs. As
directed by this legal authority, this proposed rule contains
mitigation, monitoring, and reporting requirements.

[[Page 3263]]

Summary of Major Provisions Within the Proposed Rule

Following is a summary of the major provisions of this proposed
rule regarding SCWA's estuary management activities. These measures
include:
<bullet> Measures to minimize the number and intensity of
incidental takes during sensitive times of year and to minimize the
duration of disturbances.
<bullet> Measures designed to eliminate startling reactions.
<bullet> 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

The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) 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 incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to as ``mitigation'');
and requirements pertaining to the mitigation, monitoring and reporting
of the takings are set forth. The definitions of all applicable MMPA
statutory terms cited above are included in the relevant sections
below.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must evaluate our proposed action (i.e., the promulgation of
regulations and subsequent issuance of incidental take authorization)
and alternatives with respect to potential impacts on the human
environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A,
which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has
preliminarily determined that the proposed action qualifies to be
categorically excluded from further NEPA review.
Information in SCWA's application and this notice collectively
provide the environmental information related to proposed issuance of
these regulations and subsequent incidental take authorization for
public review and comment. We will review all comments submitted in
response to this notice prior to concluding our NEPA process or making
a final decision on the request for incidental take authorization.

Summary of Request

On September 2, 2021, we received an adequate and complete request
from SCWA for authorization to take marine mammals incidental to
estuary management activities. SCWA provided a final version of the
application incorporating minor corrections on September 22, 2021. On
September 29, 2021 (86 FR 53950), 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 received one
supportive comment from a private citizen.
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, 2022, through April 20, 2027.
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), California sea lion (Zalophus
californianus), and northern elephant seal (Mirounga angustirostris).
This request for incidental take regulations (ITR) and a subsequent
Letter of Authorization (LOA) follows issuance of previous 5-year ITR
(2017-2022) (82 FR 13765; March 15, 2017). Prior to issuance of that
initial ITR, NMFS issued seven consecutive incidental harassment
authorizations (IHA) to SCWA for incidental take associated with the
same ongoing activities, between 2010-2016.

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). SCWA's estuary management activities have not
changed (aside from minor changes to SCWA's biological and physical
estuary monitoring measures);

[[Page 3264]]

please see that document for a detailed description.

Dates and Duration

The specified activity may occur at any time during the five-year
period of validity for these proposed regulations (2022-2027), 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 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' 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. Monitoring is
conducted to measure changes in the beach and channel elevation,
lengths, and widths, as well as flow velocities and observations of the
bed structure in the channel. SCWA is also required through the BiOp to
collect biological, water quality, and physical habitat data in
conjunction with estuary management. These monitoring activities
include fisheries sampling, water quality monitoring, invertebrate
sampling, and physical habitat measurements requiring the use of boats
in the estuary. 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. Please see Table 3 for more details regarding the specific
activities.
NMFS' 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 estuary closes throughout the year as a result of a sandbar
forming at the mouth of the Russian River. To facilitate summer lagoon
management, SCWA would construct the lagoon outlet channel after the
first natural barrier beach closure, but the lagoon would generally be
managed during the lagoon management period. It is anticipated that the
outlet channel implementation would be a 2-day event with initial
construction of the lagoon outlet channel taking one day of work, and
subsequent adjustments to the outlet channel on the second day.
Subsequent maintenance would occur approximately weekly until the end
of the lagoon management period. Artificial breaching activities would
generally occur at any time of year outside the lagoon management
period. Biological and physical habitat monitoring can occur at any
time of year, but generally occurs from mid-April through December,
with the exception of topographic beach surveys that occur year round.

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

[[Page 3265]]

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 <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>.

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 beginning
in March and continuing into May, and pups are counted during surveys
through June, after which time it becomes difficult to distinguish pups
from sub-adult seals. 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.
The number of harbor seals at the Russian River varies throughout
the year, with peak seal abundance typically during the summer molting
period (Figure 4). Abundance of seals on the Jenner haul-out declines
in the fall after the molting season is complete, but seals are present
at Jenner and locally year round. The number of harbor seals at this
haul-out has fluctuated from year to year. See Figures 4 and 5 in
SCWA's application for additional detail.
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. SCWA's pinniped monitoring program since
2009 has included observations from water level management activities
(i.e., artificial breaching and lagoon outlet channel implementation)
and its effects on the Jenner haul-out. Seal counts and disturbances
were recorded from 1 to 2 days prior to a breaching or channel
implementation event, the day of an event, and the day after an event.
During most events the trend observed was that harbor seal numbers
declined during a beach closure (occasionally, the numbers rose again
and then declined again during a closure) and increased the day
following an artificial breaching event. For more information, see
SCWA's monitoring reports (available online at: <a href="http://www.fisheries.noaa.gov/action/incidental-take-authorization-sonoma-county-water-agencys-estuary-management-activities">www.fisheries.noaa.gov/action/incidental-take-authorization-sonoma-county-water-agencys-estuary-management-activities</a>).
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., 2019). 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).

[[Page 3266]]

California sea lions are not protected under the ESA or listed as
depleted under the MMPA. Total annual human-caused mortality (>=321) is
substantially less than the PBR (estimated at 14,011); 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 257,606 and the minimum population size of this stock is
233,515 individuals (Carretta et al., 2019).
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, including 2016-2018 and 2020. Other individuals were
observed in the surf at the mouth of the river or swimming inside the
estuary. Juvenile sea lions have also been observed during monitoring
of peripheral haul-outs. 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 (5.3)
is substantially less than the PBR (estimated at 5,122); 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 187,386 and the minimum population size
of this stock is 85,369 individuals (Carretta et al., 2021).
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. In recent years individual sub-adult elephant seals have been
observed on a few occasions hauled out at the Russian River in the late
summer and early fall. The occurrence of individual northern elephant
seals in the action area has generally been infrequent and sporadic.

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 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 and Determination 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 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
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. SCWA has observed
that harbor seals are generally 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.
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,

[[Page 3267]]

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 Proposed 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 indicates
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 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

This section provides an estimate of the number of incidental takes
proposed for authorization, which will inform both NMFS's consideration
of whether the number of takes is ``small'' and the negligible impact
determination.
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

[[Page 3268]]

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 that may be
harassed by the proposed management activities are based upon the
number of potential take events associated with lagoon outlet channel
and artificial breaching activities (Table 3) and the average number of
harbor seals that are present at the Jenner haul-out during bar-closed
conditions (Table 2). 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 during the lagoon management period--
the May average for 2010-20--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 during bar-closed conditions was used.
Artificial breaching activities would also occur during bar-closed
conditions, and the average number of harbor seals for each month
during bar-closed conditions was used (Table 2). The number of
estimated artificial breaching events is 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.
The average total number of events from 2000-2020 is 5 per year,
meaning that the estimated take numbers for artificial breaching are
conservative. 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, surveyors would not approach or
retreat slowly away from the haul-out when neonates are present,
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 overall
average monthly number of seals hauled out as recorded during baseline
surveys conducted by SCWA in 2010-20 (Table 2).

Table 2--Average Number of Harbor Seals Observed by Month and River Mouth Condition, 2010-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
--------------------------------------------------------------------------------------------------------------------------------------------------------
Closed...................................... 57 88 133 99 118 113 105 44 24 25 26 54
Open........................................ 121 148 138 165 151 197 260 107 56 59 88 90
Overall..................................... 106 143 138 159 149 178 227 100 49 38 62 79
--------------------------------------------------------------------------------------------------------------------------------------------------------

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 peripheral 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.

Table 3--Estimated Number of Harbor Seal Takes Resulting From Russian
River Estuary Management Activities
------------------------------------------------------------------------
Potential total
Number of animals expected to Number of events number of
occur \a\ \b\ \c\ \d\ individual animals
that may be taken
------------------------------------------------------------------------
Lagoon Outlet Channel Management (May 15 to October 15)
------------------------------------------------------------------------
Implementation: 118 \e\......... Implementation: 3. Implementation:
708.
------------------------------------------------------------------------

[[Page 3269]]

Maintenance and Monitoring: May: Maintenance: May: Maintenance:
118, June: 113, July: 105, Aug: 1, June-Sept: 4/ 1,287.
44, Sept: 24, Oct: 25. month, Oct: 1.
---------------------------------------
Monitoring: June- Monitoring: 597.
Sept: 2/month,
Oct: 1.
-------------------
Total: 2,592.
------------------------------------------------------------------------
Artificial Breaching
------------------------------------------------------------------------
Oct: 25......................... Oct: 2............ Oct: 50.
Nov: 26......................... Nov: 2............ Nov: 52.
Dec: 54......................... Dec: 1............ Dec: 54.
Jan: 57......................... Jan: 1............ Jan: 57.
Feb: 88......................... Feb: 1............ Feb: 88.
Mar: 133........................ Mar: 1............ Mar: 133.
Apr: 99......................... Apr: 1............ Apr: 99.
May: 118........................ May: 1............ May: 118.
-------------------
10 events maximum. Total: 651.
------------------------------------------------------------------------
Topographic Beach Surveys
------------------------------------------------------------------------
Jan: 106........................ 1 survey/month.... Jan: 106.
Feb: 143........................ Feb: 143.
Mar: 138........................ Mar: 138.
Apr: 159........................ Apr: 16.\g\
May: 149........................ May: 298.
Jun: 178........................ Jun: 356.
Jul: 227........................ Jul: 454.
Aug: 100........................ Aug: 200.
Sep: 49......................... Sep: 98.
Oct: 38......................... Oct: 76.
Nov: 62......................... Nov: 124.
Dec: 79......................... Dec: 158.
-------------------
Total: 2,167.
------------------------------------------------------------------------
Biological and Physical Habitat Monitoring in the Estuary
------------------------------------------------------------------------
1 \f\........................... 107............... 107.
-------------------
Total....................... .................. 5,517.
------------------------------------------------------------------------
\a\ For lagoon outlet channel management and artificial breaching
events, average daily number of animals corresponds with data from bar-
closed conditions. For topographic beach surveys, average daily number
of animals corresponds with overall monthly average data, as river
mouth condition cannot be predicted. See Table 2.
\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 assumed based on
historical data. See Table 1 of SCWA's application.
\d\ See Table 3 of SCWA's application for total number of estuary
monitoring events; note that multiple activities may occur during a
single event.
\e\ 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.
\f\ Based on past experience, SCWA expects that no more than one seal
may be present, and thus have the potential to be disturbed, at river
haul-outs.
\g\ Ten percent of animals present during April surveys are assumed to
be taken as a result of enhanced mitigation during period when
neonates are most likely to be present.

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 through Letter of
Authorization a total of 27,585 incidents of take for harbor seals and
170 such incidents each for the California sea lion and northern
elephant seal.

Proposed Mitigation

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 taking for certain
subsistence uses (``least practicable adverse impact''). NMFS does not
have a regulatory definition for ``least practicable adverse impact.''
However, NMFS' implementing regulations require applicants for
incidental take authorizations to include information about the
availability and feasibility (economic and technological) of equipment,
methods, and manner of

[[Page 3270]]

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)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, implementation of
the measure(s) is expected to reduce impacts to marine mammal species
or stocks, their habitat, and their availability for subsistence uses.
This analysis will consider such things as the nature of the potential
adverse impact (such as likelihood, scope, and range), the likelihood
that the measure will be effective if implemented, and the likelihood
of successful implementation.
(2) The practicability of the measure for applicant implementation.
Practicability of implementation may consider such things as cost,
impact on operations, personnel safety, and practicality of
implementation.
SCWA has proposed to continue the following mitigation measures, as
implemented during the previous ITAs, designed to minimize impact to
affected species and stocks:
<bullet> SCWA crews would cautiously approach (e.g., slowly and
with minimal sound) the haul-out ahead of heavy equipment to minimize
the potential for sudden flushes, which may result in a stampede.
<bullet> SCWA staff would avoid walking or driving equipment
through the seal haul-out.
<bullet> 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.
<bullet> 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 to reduce disturbance of seals from loud
noises following a relatively quiet period.
In addition, SCWA proposes to continue mitigation measures specific
to pupping season (March 15-June 30), as implemented in the previous
ITAs:
<bullet> 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.
<bullet> A water level management event may not occur for more than
two consecutive days unless flooding threats cannot be controlled.
<bullet> 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.
<bullet> 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 equipment
operators and safety team members. Occasionally, there would be
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 stocks and their habitat.
Based on our evaluation of these 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, and on the
availability of such species or stock for subsistence uses.

Proposed Monitoring and Reporting

In order to issue an LOA 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 the authorized taking. NMFS's MMPA
implementing regulations further describe the information that an
applicant should provide when requesting an authorization (50 CFR
216.104(a)(13)), including the means of accomplishing the necessary
monitoring and reporting that will result in increased knowledge of the
species and the level of taking or impacts on populations of marine
mammals.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of significant interactions with marine mammal
species in action area (e.g., animals that came close to the vessel,
contacted the gear, or are otherwise rare or displaying unusual
behavior).
<bullet> 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).
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors.
<bullet> How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks.
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or important physical components of marine
mammal habitat).
<bullet> Mitigation and monitoring effectiveness.
SCWA submitted a marine mammal monitoring plan as part of the ITA
application. It can be found online at <a href="http://www.fisheries.noaa.gov/action/sonoma-county-water-agencys-estuary-management-activities-sonoma-county-california-2022">www.fisheries.noaa.gov/action/sonoma-county-water-agencys-estuary-management-activities-sonoma-county-california-2022</a>. The plan, which has been successfully
implemented (in

[[Page 3271]]

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 will continue
to collect data on annual abundance of harbor seals at the Jenner haul-
out to monitor trends in population size and annual pup production.
Observations of seal behavior will be recorded and reported to monitor
any impacts resulting from estuary management and monitoring
activities.

Proposed Monitoring Measures

Baseline Monitoring--Baseline data on conditions associated with
seal presence at the Jenner haul-out would be collected each year from
March 15 through October 15. Generally, monitoring associated with
implementation and maintenance of the lagoon outlet channel would occur
between May 15 and October 15. Monitoring of artificial breaching
activities would occur with each event, generally outside the lagoon
management period. Should the mouth remain open during the lagoon
management period, monitoring of the Jenner haul-out would continue as
described below.
Baseline monitoring will occur at the Jenner overlook from March 15
to October 15. This schedule would capture the pupping and molting
seasons, and extend to the end of the beach management period, when
management activities are more likely to occur. Surveys would be
conducted twice monthly, except for the pupping season (April-May) when
surveys would be conducted weekly in order to record the presence of
neonate harbor seals. The haul-out will be monitored for 4 hours,
scheduled for any consecutive block between the hours of 0800 and 1600.
An effort will be made to avoid periods of high tide when scheduling
baseline surveys.
All seals hauled out on the beach will be counted every 30 minutes
from the overlook on the bluff along Highway 1 adjacent to the haul-out
using a high powered spotting scope. 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 thirty minute count, the
observer indicates where groups of seals are hauled out on the sandbar
and provides a total count for each group. When possible, adults and
pups will be counted separately. The observer will provide a sketch of
where the seals are hauled out on the back of the data sheet.
In addition to the count data, disturbances of the haul-out will be
recorded. The methods for recording disturbances would follow a three-
point scale adopted by NMFS that represents an increasing seal response
to the disturbance (Table 4). For each disturbance event the
disturbance source and seal response will be recorded and tallied.
Disturbance events corresponding with Levels 2-3 are considered to be
harassment. Weather conditions will also be recorded at the beginning
of each survey.

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.
------------------------------------------------------------------------

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 disturbances to the seals at the Jenner haul-out.
A 1-day pre-outlet channel survey would be made within 1 to 3 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 2 days during 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 maintenance would correspond with the
monitoring described under the ``Baseline Monitoring'' section above.
Methods would follow the count and disturbance monitoring protocols
described in the ``Baseline Monitoring'' section.
Estuary Management Event Monitoring, Artificial Breaching Events--
In accordance with the 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 and since 2009. 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 30-
minute intervals: (1) Pinniped counts, by species; (2) behavior; (3)
time, source and duration of any disturbance; (4)

[[Page 3272]]

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' 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 would be conducted by qualified individuals.
Generally, these individuals would include professional biologists
employed by SCWA or volunteers trained by the Stewards and SCWA. All
volunteer monitors would be required to attend a classroom-style
training and on site mentoring by an experienced observer. Training
would cover the MMPA and conditions of the LOA, SCWA's Pinniped
Monitoring Program, 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 would
include harbor seal, California sea lion, and northern elephant seal,
as well as other pinniped species with potential to occur in the area
(i.e., northern fur seals, Guadalupe fur seals, Steller sea lions).
Generally, volunteers would collect baseline data on Jenner haul-
out use during the bi-weekly monitoring events. A schedule for this
monitoring would be established with Stewards once volunteers are
available for the monitoring effort. SCWA staff would monitor lagoon
outlet channel excavation, maintenance activities, artificial breaching
events, and biological or physical monitoring activities at the Jenner
haul-out.

Reporting

SCWA is required to submit an annual report on all activities and
marine mammal monitoring results to NMFS within 90 days following the
end of the monitoring period. These reports would contain the following
information:
<bullet> The number of pinnipeds taken, by species and age class
(if possible);
<bullet> Behavior prior to and during water level management
events;
<bullet> Start and end time of activity;
<bullet> Estimated distances between source and pinnipeds when
disturbance occurs;
<bullet> Weather conditions (e.g., temperature, wind, etc.);
<bullet> Haul-out reoccupation time of any pinnipeds based on post-
activity monitoring;
<bullet> Tide levels and estuary water surface elevation; and
<bullet> 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.

Summary of Previous Monitoring

SCWA complied with the mitigation and monitoring required under
previous authorizations. Previous monitoring reports are available
online at <a href="http://www.fisheries.noaa.gov/action/incidental-take-authorization-sonoma-county-water-agencys-estuary-management-activities">www.fisheries.noaa.gov/action/incidental-take-authorization-sonoma-county-water-agencys-estuary-management-activities</a>.
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) for the same activities
in 2022-27.
Since 2009 SCWA has been conducting baseline monitoring of the
Jenner haul-out and several nearby coastal and estuary sites (as
described in the 2016 Monitoring Plan, available online at
<a href="http://www.fisheries.noaa.gov/action/incidental-take-authorization-sonoma-county-water-agencys-estuary-management-activities">www.fisheries.noaa.gov/action/incidental-take-authorization-sonoma-county-water-agencys-estuary-management-activities</a>). The purpose of
baseline monitoring was to describe the conditions under which harbor
seals haul out and how seals respond to implementation of the estuary
management program. Monitoring data illustrate a strong seasonal
pattern in most years where seals are most abundant during the spring
and summer months (see Figure 2 of SCWA's 2021 Monitoring Plan).
Seasonal variation in the abundance of harbor seals is commonly
observed throughout their range. Seal abundance at the Jenner haul-out
was shown to increase throughout the day, but only during the spring
and winter months (see Figure 3 of SCWA's 2021 Monitoring Plan). Seal
abundance was weakly affected by tide height with higher tides shown to
reduce seal abundance (see Figure 4 of SCWA's 2021 Monitoring Plan),
based on direct observations, this is likely due to waves washing over
the haul-out during these high tides. Seal abundance was also greater
when the river mouth was open to the ocean (see Figure 5 of SCWA's 2021
Monitoring Plan).
In addition to baseline monitoring, monitoring during water level
management activities (breaching and lagoon outlet implementation) has
been ongoing since 2009. Recent observations of seals during breaching
activities indicate that seals leave the Jenner haul-out as safety
crews approach their haul-out ahead of equipment. Depending on the
location of their haul-out seals have also remained on the beach during
breaching activities. The number of harbor seals hauled out at the
mouth of the estuary declined when the barrier beach was closed and
increased soon after it was breached. Seals that left the haul-out just
prior to breaching have returned to the beach within hours of
completion of activities and typically return prior to the next morning
(see prior SCWA monitoring reports, available online at
<a href="http://www.fisheries.noaa.gov/action/incidental-take-authorization-sonoma-county-water-agencys-estuary-management-activities">www.fisheries.noaa.gov/action/incidental-take-authorization-sonoma-county-water-agencys-estuary-management-activities</a>).

Negligible Impact Analysis and Determination

NMFS has defined negligible impact 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

[[Page 3273]]

annual rates of recruitment or survival (50 CFR 216.103). 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'' by
mortality, serious injury, and Level A or Level B harassment, we
consider other factors, such as the likely nature of any behavioral
responses (e.g., intensity, duration), the context of any such
responses (e.g., critical reproductive time or location, migration), as
well as effects on habitat, and the likely effectiveness of mitigation.
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 this analysis 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, ongoing 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 were previously considered to be a
potential result of increased presence of humans and equipment on the
beach. However, 10 years of monitoring has not shown any such impacts
to seal usage of the beach. Nevertheless, SCWA will continue to
implement 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 20 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. Existing data
suggest 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 construction activities will have a negligible impact
on the affected marine mammal species or stocks.

Small Numbers

As noted above, only small numbers of incidental take may be
authorized under section 101(a)(5)(A) of the MMPA for specified
activities other than military readiness activities. The MMPA does not
define small numbers and so, in practice, where estimated numbers are
available, NMFS compares the number of individuals taken to the most
appropriate estimation of abundance of the relevant species or stock in
our determination of whether an authorization is limited to small
numbers of marine mammals. When the predicted number of individuals to
be taken is fewer than one third of the species or stock abundance, the
take is considered to be of small numbers. Additionally, other
qualitative factors may be considered in the analysis, such as the
temporal or spatial scale of the activities.
The annual amount of take NMFS proposes to authorize is below one-
third of the estimated stock abundance for all species (see Table 3).
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 proposed activity (including the proposed mitigation and
monitoring measures) and the anticipated take of marine mammals, NMFS
preliminarily finds that small numbers of marine mammals will be taken
relative to the population size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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.

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

[[Page 3274]]

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) 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.

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.

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 authorization. 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
2020 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.

List of Subjects in 50 CFR Part 217

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

Dated: January 13, 2022.
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 [Reserved]
217.10 [Reserved]

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, 2022,
through April 20, 2027.

Sec. 217.3 Permissible methods of taking.

(a) Under LOAs issued pursuant to Sec. Sec. 216.106 of this
chapter and 217.7, 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.
(b) [Reserved]

Sec. 217.4 Prohibitions.

Except for the takings contemplated in Sec. 217.3 and authorized
by an LOA issued under Sec. Sec. 216.106 of this chapter and 217.7, it
is unlawful for any person to do any of the following in connection
with the activities described in Sec. 217.1 of this chapter:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or an LOA issued under Sec. Sec. 216.106
of this chapter and 217.7;
(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

[[Page 3275]]

(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), the
mitigation measures contained in any LOA issued under Sec. Sec.
216.106 of this chapter and 217.7 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) All work shall be completed as efficiently as possible and with
the smallest amount of heavy equipment possible.
(f) 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.
(g) 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) A water level management event may not occur for more than two
consecutive days unless flooding threats cannot be controlled.
(3) 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 determine if pups less
than one week old are on the beach prior to a breaching event.
(4) 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) 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 calendar year. 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; and
(H) Seal census from haul-out monitoring.
(2) [Reserved]
(c) 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 (c)(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 (c)(2-3) 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 (c)(2-3) 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,

[[Page 3276]]

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 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 of this chapter and
217.7 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 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 of this chapter and
217.7 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
of this chapter and 217.7, 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. 217.9 [Reserved]

Sec. 217.10 [Reserved]

[FR Doc. 2022-00996 Filed 1-20-22; 8:45 am]
BILLING CODE 3510-22-P

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