[Federal Register Volume 72, Number 80 (Thursday, April 26, 2007)]
[Notices]
[Pages 20837-20840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8028]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 020607A]


Taking of Marine Mammals Incidental to Specified Activities; 
Repair of the South Jetty at the Mouth of the Columbia River, Clatsop 
County, Oregon

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

ACTION:  Notice of issuance of an incidental harassment authorization.

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SUMMARY:  In accordance with provisions of the Marine Mammal Protection 
Act (MMPA) as amended, notification is hereby given that an Incidental 
Harassment Authorization (IHA) to take marine mammals, by harassment, 
incidental to repair work on the South Jetty at the Mouth of the 
Columbia River (MCR) in Clatsop County, Oregon, has been issued to the 
U.S. Army Corps of Engineers (ACOE), Portland District for a period of 
1 year.

DATES:  This authorization is effective from April 15, 2007 until 
October 31, 2008.

ADDRESSES:  A copy of the application, IHA, Environmental Assessment 
(EA), and/or the Biological Opinions may be obtained by writing to P. 
Michael Payne, Chief, Permits, Conservation and Education Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910-3225, or by

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telephoning the contact listed here (see FOR FURTHER INFORMATION 
CONTACT). The application and its related documents are also available 
at http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

FOR FURTHER INFORMATION CONTACT:  Shane Guan, NMFS, (301)713-2289, ext 
137, or Bridgette Lohrman, NMFS Oregon State Habitat Office, (503)230-
5422.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and 101(a)(5)(D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, notice of a proposed authorization is 
provided to the public for review.
    An authorization 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 subsistence uses, and if the permissible methods of 
taking and requirements pertaining to the mitigation, monitoring and 
reporting of such taking are set forth. NMFS has defined ``negligible 
impact'' in 50 CFR 216.103 as ''...an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Except with respect to certain activities not pertinent here, the MMPA 
defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [Level A harassment]; or (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[Level B harassment].
    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny issuance of the 
authorization.

Summary of Request

    On October 23, 2006, NMFS received a request from the ACOE Portland 
District for an IHA to take small numbers of Steller sea lions 
(Eumetopias jubatus), California sea lions (Zalophus californianus), 
and Pacific harbor seals (Phoca vitulina richardsi), by Level B 
harassment, incidental to conducting repair work on the MCR South Jetty 
in Clatsop County, Oregon. The propose of the proposed work is to 
ensure the continuing function of the South Jetty by repairing critical 
trunk portions of the jetty. The premise of the jetty repair is to 
repair the most vulnerable areas of the South Jetty, where the 
consequences of jetty failure is high and would rapidly and 
significantly degrade navigation through the MCR. The intent of the 
proposed project is three-fold: (1) Improve the stability of the 
foundation (toe) of the jetty as affected by scour, (2) Improve the 
side slope (above and below water) stability, and (3) Improve the 
dynamic stability of the jetty as affected by wave forces impinging on 
the jetty.
    Interim repairs in 2007 at the MCR South Jetty consist of placing 
approximately 70,000 tons of stone on the north and south slopes of the 
jetty. A detailed description of these activities was published in the 
Federal Register on January 3, 2007 (72 FR 124). No change has been 
made to these proposed activities.
    The proposed project is planned to occur from April through 
October, 2007. The contractor will work 7 days per week, sunrise to 
sunset depending on weather and wave conditions.

Comments and Responses

    A notice of receipt and request for 30-day public comment on the 
application and the proposed authorization was published on January 3, 
2007 (72 FR 124). One comment from a private citizen was received 
during the 30-day public comment period. The Marine Mammal Commission 
(the Commission) also provided for comments on the proposed action.
    Comment: One private citizen opposes the project out of concern 
that marine mammals would be killed as a result of the ACOE's activity.
    Response: As described in detail in the Federal Register notice of 
receipt of the application (72 FR 124, January 3, 2007), the request 
submitted by the ACOE only requests authorization to harass a small 
number of marine mammals as a result of planned construction activities 
and does not allow for lethal or Level A takes. No take by mortality, 
injury, or temporary hearing threshold shift of marine mammals is 
expected or authorized for this proposed activity. Incidental taking 
will be limited to a temporary and localized disturbance of animals 
from elevated sound levels and visual stimulus from construction 
activities from rehabilitation of the Columbia River South Jetty.
    The Commission recommends that NMFS issue the IHA to the ACOE, 
provided that the monitoring and mitigation activities proposed in the 
previous notice (72 FR 124, January 3, 2007) are carried out as 
described.

Description of the Marine Mammals Potentially Affected by the Activity

    The marine mammals most likely to be found in MCR area are the 
Eastern U.S. stock of Steller sea lions, California sea lions, and 
Pacific harbor seals. The Steller sea lion eastern stock is listed as 
threatened under the Endangered Species Act (ESA) and is designated as 
``depleted'' under MMPA. The California sea lions and harbor seals are 
not ESA-listed, nor are they depleted. General information of these 
species and stocks are provided in the January 3, 2007, Federal 
Register (72 FR 124). Therefore, it is not repeated here. More detailed 
information on these species and stocks can be found in Caretta et al. 
(2006) and Angliss and Outlaw (2005), which is available at the 
following URL: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2005.pdf and 
http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2005.pdf, respectively.

Potential Effects on Marine Mammals and Their Habitat

    ACOE and NMFS have determined that the proposed repair work at MCR 
South Jetty has the potential to result in behavioral harassment of 
those Steller sea lions, California sea lions, and Pacific harbor seals 
that may be present in the project vicinity.
    The potential takes of these three marine mammal species will be 
from noise generated by operation of construction equipment and related 
activities, and from the presence of trucks, excavators, construction 
machinery, and personnel in the proximity to the animals.
    The anticipated impact upon the sea lions and harbor seals include 
temporary disturbance and displacement of animals to other parts of the 
jetty or other nearby haul-outs

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until work is discontinued. Other haul-outs are available for harbor 
seals throughout the Columbia River estuary, and for sea lions on other 
parts of the south jetty, the North Jetty, or rocky headlands in 
northern Oregon or southern Washington states. Observations in the past 
have shown that animals that are disturbed into the water did not leave 
the vicinity, instead, they would move to other parts of the jetty.
    It has been observed that Steller sea lions moved into water when 
approached by a boat within 300 ft (91 m) or less, however, in other 
occasions there was no change in Steller sea lion behavior when 
approached within the same distance or less. It is also noted that 
majority of Steller sea lions use the far end of the jetty, which is 
broken off from the main stretch of the jetty and formed an island. It 
is estimated that maximum of 10% Steller sea lions at South Jetty will 
occur within range of disturbance, and none would occur within the 
range of disturbance during the first month. Therefore, the total 
number of Steller sea lion that potentially could be taken, calculated 
from the recorded data of Steller sea lion at South Jetty from 1995 - 
2004, would be 204 animals.
    California sea lions are known to use areas of the jetty more 
shoreward than Steller sea lions. It is assumed that all California sea 
lions and harbor seals hauled out in the vicinity of the proposed 
project would be taken by Level B harassment. Based on the average 
number of pinnipeds recorded on the MCR South Jetty between 1995 and 
2004 (Hodder, 2005), it is estimated that a total of 336 California sea 
lions and 4 Pacific harbor seals would be taken by Level B harassment 
as a result of the proposed jetty repair work.
    Repairing the South Jetty by adding more rocks will not reduce the 
availability or accessibility of habitat for Steller and California sea 
lions and harbor seals, as rock replacement would occur at the existing 
jetty footprint. Seals and sea lions use the existing tip of the jetty 
that is built of concrete blocks, and are easily able to climb up 
several vertical feet from one block to the next. The MCR South Jetty 
is not designated as critical habitat for the Steller sea lion under 
the ESA.
    There is no subsistence harvest of marine mammals in the proposed 
project area, therefore, there will be no impact of the activity on the 
availability of the species or stocks of marine mammals for subsistence 
uses.

Mitigation and Monitoring

    As a mitigation measure to reduce potential Level B harassment to 
marine mammals as a result of the proposed project, NMFS requires that 
during land-based rock placement at South Jetty, the contractor 
vehicles and personnel should avoid direct approach towards pinnipeds 
that are hauled out as much as possible. If it is absolutely necessary 
for the contractor to make movements towards pinnipeds, the contractor 
must approach in a slow and steady manner to reduce the behavioral 
harassment to the animals as much as possible.
    The ACOE will monitor marine mammals before, during, and after the 
proposed South Jetty repair project in the MCR area. Steller and 
California sea lions and harbor seals in the MCR area will be monitored 
for 1 week before, during, and 4 and 8 weeks after the proposed 
construction work. Pinniped species, numbers, behavior, any observed 
disturbances during the jetty repair construction, and recolonization 
by pinnipeds of the project area after the construction activities will 
be noted.

Reporting

    The ACOE will report the number of sea lions and seals present on 
the South Jetty for 1 week before starting work. During construction, 
the ACOE will provide weekly reports to NMFS which will include a 
summary of the previous week's numbers of sea lions and seals that may 
have been disturbed as a result of the jetty repair construction 
activities. These reports will provide dates, time, tidal height, 
number of pinnipeds on the haul road to the point of work and as far as 
one can see oceanward from the point of work, any observed 
disturbances, and the type of activities that caused the disturbances. 
The ACOE also will provide a description of construction activities at 
the time of observation. The ACOE will submit a report to NMFS within 
90 days of completion of the 2007 phase of the project.

National Environmental Policy Act (NEPA)

    In January, 2005, ACOE prepared the Final Environmental Assessment 
Repair of North and South Jetties Mouth of the Columbia River, Clatsop 
County, Oregon and Pacific County, Washington (EA). NMFS has reviewed 
this EA and determined that it satisfies the standards for an adequate 
statement under the NMFS regulations and is consistent with the Council 
on Environmental Quality's regulations and NOAA's Administrators Order 
216-6 for implementing the procedural provisions of the NEPA (40 CFR 
sec. 1508.3). NMFS decided to adopt this EA and has issued a Finding of 
No Significant Impact statement. NMFS has determined that preparation 
of an environmental impact statement on this activity is not necessary.

ESA

    The NMFS Northwest Regional Office (NWRO) prepared a Biological 
Opinion (BO) upon conducting a section 7 consultation with the ACOE in 
July 2004. In the BO, NMFS concluded that the proposed action is not 
likely to jeopardize the continued existence of thirteen species of 
ESA-listed salmonid fishes, Snake River (SR) fall-run Chinook salmon, 
SR spring/summer-run Chinook salmon, SR sockeye salmon, SR steelhead, 
Lower Columbia River (LCR) Chinook salmon, Upper Columbia River (UCR) 
spring-run Chinook salmon, Upper Willamette River (UMR) Chinook salmon, 
Columbia River chum salmon, Middle Columbia River steelhead, LCR 
steelhead, UWR steelhead, UCR steelhead, and LCR coho salmon, or 
destroy or adversely modify designated critical habitat.
    On April 2, 2004, NMFS NWRO issued a ``may affect, but not likely 
to adversely affect'' determination for the effects to marine mammals 
and sea turtles listed under the ESA from the rehabilitation of the 
north and south jetties at the MCR area to the ACOE. On October 18, 
2005, ACOE contacted NMFS to discuss new information regarding Steller 
sea lions hauling out on the South Jetty closer to the work site than 
previously observed. The ACOE requested NMFS' concurrence with a 
determination of ``may affect, but not likely to adversely affect'' 
Steller sea lions with regard to this new information. After 
conversations with NMFS concerning this determination, the ACOE 
initiated formal consultation for the Steller sea lion on November 30, 
2005, for carrying out the rehabilitation of the South Jetty at the 
MCR. On September 27, 2006, NMFS NWRO issued a BO based on the 
reinitiation of an ESA section 7 consultation on Steller sea lions. In 
this BO, NMFS concluded that the proposed action is not likely to 
jeopardize the continued existence of the Eastern U.S. stock of Steller 
sea lion. The BO also concurred that no Steller sea lion critical 
habitat exists within the proposed action area.

Determinations

    For the reasons discussed in this document and in previously 
identified supporting documents, NMFS has determined that the impact of 
jetty

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repair construction at the MCR South Jetty should result, at worst, in 
the Level B harassment of small numbers of Steller sea lions, 
California sea lions, and Pacific harbor seals that haul-out in the 
vicinity of the proposed project area. While behavioral modifications, 
including temporarily vacating the area around the construction site, 
may be made by these species to avoid the resultant visual and acoustic 
disturbance, the availability of alternate areas within MCR and haul-
out sites has led NMFS to determine that this action will have a 
negligible impact on Steller sea lion, California sea lion, and Pacific 
harbor seal populations in the area.
    In addition, no take by Level A harassment (injury) or death is 
anticipated and harassment takes should be at the lowest level 
practicable due to incorporation of the mitigation measures mentioned 
previously in this document.

Authorization

    NMFS has issued an IHA, pursuant to section 101(a)(5)(D) of the 
MMPA, to the ACOE for the potential harassment of small numbers of 
Steller sea lions, California sea lions, and harbor seals incidental to 
repair construction at the MCR South Jetty in Clatsop County, Oregon, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: April 17, 2007.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E7-8028 Filed 4-25-07; 8:45 am]
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