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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - [I.D. 020607A]

# AGENCY:

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

# ACTION:

 Notice of issuance of an incidental harassment authorization.

# 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                               ( print page 20838)                            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                           ( print page 20839)                        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                           ( print page 20840)                        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]

BILLING CODE 3510-22-S