Rule2022-08346
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Russian River Estuary Management Activities
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 19, 2022
Effective
April 21, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS, upon request from the Sonoma County Water Agency (SCWA), hereby issues regulations to govern the unintentional taking of marine mammals incidental to Russian River estuary management activities in Sonoma County, California, over the course of five years (2022-2027). These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
Full Text
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<title>Federal Register, Volume 87 Issue 75 (Tuesday, April 19, 2022)</title>
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[Federal Register Volume 87, Number 75 (Tuesday, April 19, 2022)]
[Rules and Regulations]
[Pages 23111-23122]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08346]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 220413-0096]
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: Final rule; notification of issuance of Letter of
Authorization.
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SUMMARY: NMFS, upon request from the Sonoma County Water Agency (SCWA),
hereby issues regulations to govern the unintentional taking of marine
mammals incidental to Russian River estuary management activities in
Sonoma County, California, over the course of five years (2022-2027).
These regulations, which allow for the issuance of Letters of
Authorization (LOA) for the incidental take of marine mammals during
the described activities and specified timeframes, prescribe the
permissible methods of taking and other means of effecting the least
practicable adverse impact on marine mammal species or stocks and their
habitat, as well as requirements pertaining to the monitoring and
reporting of such taking.
DATES: Effective from April 21, 2022, through April 20, 2027.
ADDRESSES: A copy of SCWA's application and supporting documents, as
well as a list of the references cited in this document, may be
obtained online at: <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>. In
case of problems accessing these documents, please call the contact
listed below.
FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
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 rule
establishes 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 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 rule containing five-year
regulations, and for any subsequent LOAs. As directed by this legal
authority, this rule contains mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within the Regulations
Following is a summary of the major provisions of this 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
[[Page 23112]]
of all applicable MMPA statutory terms cited above are included in the
relevant sections below.
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. We published a notice of
proposed rulemaking in the Federal Register on January 21, 2022 (87 FR
3262) and requested comments and information from the public. Please
see Comments and Responses, below.
SCWA manages the naturally-formed barrier beach at the mouth of the
Russian River in order to minimize potential for flooding adjacent to
the estuary and to enhance habitat for juvenile salmonids, as well as
to conduct biological and physical monitoring of the barrier beach and
estuary. Flood control-related breaching of the barrier beach at the
mouth of the river may include artificial breaches, as well as
construction and maintenance of a lagoon outlet channel. The latter
activity, an alternative management technique conducted to mitigate
impacts of flood control on rearing habitat for Endangered Species Act
(ESA)-listed salmonids, occurs only from May 15 through October 15
(hereafter, the ``lagoon management period''). Artificial breaching and
monitoring activities may occur at any time during the period of
validity of the regulations. The regulations are 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).
These regulations are the second consecutive five-year incidental
take regulations issued in response to a petition from SCWA, following
the previous 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 action involves management of the estuary to prevent flooding
while preventing adverse modification to critical habitat for ESA-
listed salmonids. 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. Additional detail was provided in the notice of proposed
rulemaking (87 FR 3262; January 21, 2022), as well as in Table 2 of
this notice. There have been no changes to the specified activity, and
full discussion is not repeated here.
Dates and Duration
The specified activity may occur at any time during the five-year
period of validity for these regulations (2022-2027), although
construction and maintenance of a lagoon outlet channel will 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 in the notice of proposed
rulemaking.
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).
Comments and Responses
We published a notice of proposed rulemaking in the Federal
Register on January 21, 2022 (87 FR 3262) and requested comments and
information from the public. During the 30-day comment period, we
received comments from 4 private citizens. Of these, one comment
expressed general opposition and two expressed general support. The
remaining comments and our responses are provided here, and the
comments are available online at: <a href="http://www.regulations.gov">www.regulations.gov</a>.
Comment: The commenter expresses general opposition on the basis
that the intended beneficial effects of the lagoon management
activities on salmonid populations are uncertain, whereas the
deleterious impacts of the activities on the affected marine mammals
are guaranteed. The commenter goes on to describe the importance of
marine mammals to the ecosystem as a whole and asserts that the
specified activity would permanently alter the ecosystem, recommending
that alternative options to the specified activity be considered. The
commenter also poses several questions related to the specified
activity, e.g., whether there are preferable alternatives to benefit
salmonids. These questions are not relevant to NMFS' action under the
MMPA and are outside the scope of NMFS' authority here.
Response: As described in the notice of proposed rulemaking, SCWA
is required to conduct lagoon management activities as a result of a
2008 Endangered Species Act Biological Opinion for Water Supply, Flood
Control Operations, and Channel Maintenance in the Russian River
watershed. In addition, SCWA conducts flood control activities outside
the lagoon management period. Regardless, the MMPA mandates that
incidental take of small numbers of marine mammals be authorized when,
among other things, a finding is made that the effects of the taking
represent no greater than a negligible impact on the affected marine
mammal species or stocks. NMFS has made the necessary findings and,
accordingly, issued the regulations and associated take authorization
requested by SCWA. In addition, NMFS has appropriately considered the
effects of the specified activity on marine mammal habitat. It is
outside the scope of NMFS' responsibility under the MMPA to consider
unspecified
[[Page 23113]]
alternatives to SCWA's specified activity.
Comment: The commenter questions the adequacy of SCWA's monitoring
plan, with specific reference to SCWA's ability to detect changing
occurrence patterns or issues related to impacts to pups, and to SCWA's
ability to monitor for species for which take is not authorized.
Response: SCWA has successfully implemented a robust monitoring
program at the barrier beach, within the estuary, and at peripheral
areas for over 10 years, as described in annual monitoring reports
available online. The current plan was determined sufficient by NMFS
and described in detail in the notice of proposed rulemaking, and was
provided for public review online. The commenter offers neither
analysis to support concerns regarding the plan's efficacy nor specific
recommendations.
Comment: The commenter states that ``. . . <a href="http://sonomawater.org">sonomawater.org</a>
considers [fur seals] to be abundant near the Russian River Estuary,''
asking what the affects to this species would be. The commenter does
not provide a more specific reference for this alleged statement.
Response: Available scientific evidence does not support the idea
that fur seals are ``abundant'' near the estuary, and no species of fur
seal is expected to be impacted by the specified activity.
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. Additional detail regarding the affected species was provided
in the notice of proposed rulemaking (87 FR 3262; January 21, 2022). No
new information is available, and full discussion is not repeated here.
Potential Effects of the Specified Activity on Marine Mammals and Their
Habitat
This section in the notice of proposed rulemaking (87 FR 3262;
January 21, 2022) included a summary and discussion of the ways that
components of the specified activity may impact marine mammals and
their habitat, which is not repeated here. Please refer to that
document for additional information. 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 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.
Estimated Take
This section provides an estimate of the number of incidental takes
authorized under the rule, which will inform both NMFS' 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 has authorized, take of harbor seals,
California sea lions, and northern elephant seals, by Level B
harassment only, incidental to estuary management activities. These
activities, involving increased human presence and the use of heavy
equipment and support vehicles, are expected to harass pinnipeds
present at the haul-out through disturbance only. In addition,
monitoring activities prescribed in the BiOp may harass additional
animals at the Jenner haul-out and at the three haul-outs located in
the estuary (Penny Logs, Patty's Rock, and Chalanchawi). Estimates of
the number of harbor seals that may be harassed by the management
activities are based upon the number of potential take events
associated with lagoon outlet channel and artificial breaching
activities (Table 2) and the average number of harbor seals that are
present at the Jenner haul-out during bar-closed conditions (Table 1).
Table 2 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 1).
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 1). 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
[[Page 23114]]
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 1).
Table 1--Average Number of Harbor Seals Observed by Month and River Mouth Condition, 2010-2020
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Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
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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
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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 take authorization
for these two species is likely a precautionary overestimate.
Table 2--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.
------------------------------------------------------------------------
Maintenance and Monitoring: Maintenance: Maintenance:
1,287.
May: 118........................ May: 1
June: 113....................... June-Sept: 4/month
July: 105....................... Oct: 1
---------------------------------------
Aug: 44
Sept: 24........................
Oct: 25.........................
Monitoring: Monitoring: 597.
June-Sept: 2/month
Oct: 1
---------------------------------------
Total: 2,592.
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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.
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Topographic Beach Surveys
------------------------------------------------------------------------
Jan: 106........................ .................. Jan: 106.
Feb: 143........................ .................. Feb: 143.
Mar: 138........................ .................. Mar: 138.
Apr: 159........................ .................. Apr: 16 \g\.
May: 149........................ .................. May: 298.
[[Page 23115]]
1 survey/month
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 1.
\b\ For implementation of the lagoon outlet channel, an event is defined
as a single, two-day episode. For the remaining activities, an event
is defined as a single day on which an activity occurs. Some events
may include multiple activities.
\c\ Number of events for artificial breaching 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 regulations, we have authorized 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.
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 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 will 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 will 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.
[[Page 23116]]
<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 planned 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 determined that the
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.
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 has been successfully implemented (in
slightly different form from the current plan) by SCWA under previous
ITAs. The purpose of this monitoring plan, which is carried out
collaboratively with the Stewards of the Coasts and Redwoods (Stewards)
organization, is to detect the response of pinnipeds to estuary
management activities at the Russian River estuary. SCWA 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
[[Page 23117]]
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 3). 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 3--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) 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
[[Page 23118]]
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 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
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
[[Page 23119]]
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 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 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 2).
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
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 contain an adaptive management
component.
The reporting requirements associated with this rule are designed
to provide NMFS with monitoring data from the previous year to allow
consideration of whether any changes are appropriate. The use of
adaptive management allows NMFS to consider new information from
different sources to determine (with input from SCWA regarding
practicability) on an annual or biennial basis if mitigation or
monitoring measures should be modified (including additions or
deletions). Mitigation measures could be modified if new data suggests
that such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
SCWA's monitoring program (see Monitoring and Reporting) will be
managed adaptively. Changes to the monitoring program may be adopted if
they are reasonably likely to better accomplish the MMPA monitoring
goals described previously or may better answer the specific questions
associated with SCWA's monitoring plan.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) Results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) any
information which reveals that marine mammals may have been taken in a
manner, extent, or number not authorized by these regulations or
subsequent LOAs.
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 determined
that the action qualifies to be categorically excluded from further
NEPA review.
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.
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this action will
[[Page 23120]]
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 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. No comments were received regarding this
certification or on the economic impacts of the rule more generally. As
a result, a regulatory flexibility analysis is not required and none
has been prepared.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information 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.
Waiver of Delay in Effective Date
NMFS has determined that there is good cause under the
Administrative Procedure Act (5 U.S.C. 553(d)(3)) to waive the 30-day
delay in the effective date of this final rule. No individual or entity
other than the SCWA is affected by the provisions of these regulations.
The SCWA has requested that this final rule take effect on April 21,
2022, to accommodate the SCWA's LOA expiring on April 20, 2022, so as
to not cause a disruption in estuary management activities. The waiver
of the 30-day delay of the effective date of the final rule will ensure
that the MMPA final rule and LOA are in place by the time the previous
authorization expires. Any delay in finalizing the rule would result in
either: (1) A suspension of planned estuary management activities,
which could result in flood control issues and/or SCWA's failure to
comply with the mandatory lagoon management activities required under
the 2008 BiOp; or (2) the SCWA's procedural non-compliance with the
MMPA (should the SCWA conduct the specified activities without an LOA),
thereby resulting in the potential for unauthorized takes of marine
mammals. Moreover, the SCWA is ready to implement the regulations
immediately and requested the waiver. For these reasons, NMFS finds
good cause to waive the 30-day delay in the effective date. In
addition, the rule authorizes incidental take of marine mammals that
would otherwise be prohibited under the statute. Therefore, by granting
an exception to the SCWA, the rule will relieve restrictions under the
MMPA, which provides a separate basis for waiving the 30-day effective
date for the rule.
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: April 14, 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 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. Revise 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
(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
[[Page 23121]]
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, 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.
[[Page 23122]]
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. 2022-08346 Filed 4-18-22; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on April 19, 2022.
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