3262 Federal Register / Vol. 87, No. 14 / Friday, January 21, 2022 / Proposed Rules 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed 

rulemaking, proposing to approve 

Delaware’s base year inventory SIP for 

the 2015 ozone NAAQS, does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

oxides, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: January 3, 2022. 

Diana Esher, 

Acting Regional Administrator, Region III. 

[FR Doc. 2022–00248 Filed 1–20–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 220113–0013] 

RIN 0648–BK97 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to Russian River Estuary 

Management Activities 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS has received a request 

from the Sonoma County Water Agency 

(SCWA) for authorization to take marine 

mammals incidental to Russian River 

estuary management activities in 

Sonoma County, California, over the 

course of five years (2022–2027). As 

required by the Marine Mammal 

Protection Act (MMPA), NMFS is 

proposing regulations to govern that 

take and requests comments on the 

proposed regulations. 

DATES: Comments and information must 

be received no later than February 22, 

2022. 

ADDRESSES: Submit all electronic public 

comments via the Federal e-Rulemaking 

Portal. Go to www.regulations.gov and 

enter NOAA–NMFS–2021–0124 in the 

Search box. Click on the ‘‘Comment’’ 

icon, complete the required fields, and 

enter or attach your comments. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter 

‘‘N/A’’ in the required fields if you wish 

to remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, or Adobe PDF 

file formats only. 

FOR FURTHER INFORMATION CONTACT: Ben 

Laws, Office of Protected Resources, 

NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of SCWA’s application and 

any supporting documents, as well as a 

list of the references cited in this 

document, may be obtained online at: 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-constructionactivities. In case of problems accessing 

these documents, please call the contact 

listed above (see FOR FURTHER

INFORMATION CONTACT). 

Purpose and Need for Regulatory 

Action 

We received an application from 

SCWA requesting 5-year regulations and 

authorization to take multiple species of 

marine mammals. This proposed rule 

would establish a framework under the 

authority of the MMPA (16 U.S.C. 1361 

et seq.) to allow for the authorization of 

take by Level B harassment of marine 

mammals incidental to SCWA’s estuary 

management activities at the mouth of 

the Russian River in Sonoma County, 

CA. Please see ‘‘Background’’ below for 

definitions of harassment. 

Legal Authority for the Proposed Action 

Section 101(a)(5)(A) of the MMPA (16 

U.S.C. 1371(a)(5)(A)) directs the 

Secretary of Commerce to allow, upon 

request, the incidental, but not 

intentional taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region for up to five years 

if, after notice and public comment, the 

agency makes certain findings and 

issues regulations that set forth 

permissible methods of taking pursuant 

to that activity and other means of 

effecting the ‘‘least practicable adverse 

impact’’ on the affected species or 

stocks and their habitat (see the 

discussion below in the Proposed 

Mitigation section), as well as 

monitoring and reporting requirements. 

Section 101(a)(5)(A) of the MMPA and 

the implementing regulations at 50 CFR 

part 216, subpart I provide the legal 

basis for issuing this proposed rule 

containing five-year regulations, and for 

any subsequent LOAs. As directed by 

this legal authority, this proposed rule 

contains mitigation, monitoring, and 

reporting requirements. 


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Summary of Major Provisions Within 

the Proposed Rule 

Following is a summary of the major 

provisions of this proposed rule 

regarding SCWA’s estuary management 

activities. These measures include: 

• Measures to minimize the number 

and intensity of incidental takes during 

sensitive times of year and to minimize 

the duration of disturbances. 

• Measures designed to eliminate 

startling reactions. 

• Eliminating or altering management 

activities on the beach when pups are 

present, and by setting limits on the 

frequency and duration of events during 

pupping season. 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. Sections 101(a)(5)(A) and 

(D) of the MMPA (16 U.S.C. 1361 et 

seq.) direct the Secretary of Commerce 

(as delegated to NMFS) to allow, upon 

request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

incidental take authorization may be 

provided to the public for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of the species or stocks for 

taking for certain subsistence uses 

(referred to as ‘‘mitigation’’); and 

requirements pertaining to the 

mitigation, monitoring and reporting of 

the takings are set forth. The definitions 

of all applicable MMPA statutory terms 

cited above are included in the relevant 

sections below. 

National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

(NEPA; 42 U.S.C. 4321 et seq.) and 

NOAA Administrative Order (NAO) 

216–6A, NMFS must evaluate our 

proposed action (i.e., the promulgation 

of regulations and subsequent issuance 

of incidental take authorization) and 

alternatives with respect to potential 

impacts on the human environment. 

This action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 of the 

Companion Manual for NAO 216–6A, 

which do not individually or 

cumulatively have the potential for 

significant impacts on the quality of the 

human environment and for which we 

have not identified any extraordinary 

circumstances that would preclude this 

categorical exclusion. Accordingly, 

NMFS has preliminarily determined 

that the proposed action qualifies to be 

categorically excluded from further 

NEPA review. 

Information in SCWA’s application 

and this notice collectively provide the 

environmental information related to 

proposed issuance of these regulations 

and subsequent incidental take 

authorization for public review and 

comment. We will review all comments 

submitted in response to this notice 

prior to concluding our NEPA process 

or making a final decision on the 

request for incidental take 

authorization. 

Summary of Request 

On September 2, 2021, we received an 

adequate and complete request from 

SCWA for authorization to take marine 

mammals incidental to estuary 

management activities. SCWA provided 

a final version of the application 

incorporating minor corrections on 

September 22, 2021. On September 29, 

2021 (86 FR 53950), we published a 

notice of receipt of SCWA’s application 

in the Federal Register, requesting 

comments and information related to 

the request for 30 days. We received one 

supportive comment from a private 

citizen. 

SCWA proposes to manage the 

naturally-formed barrier beach at the 

mouth of the Russian River in order to 

minimize potential for flooding adjacent 

to the estuary and to enhance habitat for 

juvenile salmonids, as well as to 

conduct biological and physical 

monitoring of the barrier beach and 

estuary. Flood control-related breaching 

of the barrier beach at the mouth of the 

river may include artificial breaches, as 

well as construction and maintenance of 

a lagoon outlet channel. The latter 

activity, an alternative management 

technique conducted to mitigate 

impacts of flood control on rearing 

habitat for Endangered Species Act 

(ESA)-listed salmonids, occurs only 

from May 15 through October 15 

(hereafter, the ‘‘lagoon management 

period’’). Artificial breaching and 

monitoring activities may occur at any 

time during the period of validity of the 

proposed regulations. The requested 

regulations would be valid for 5 years, 

from April 21, 2022, through April 20, 

2027. 

Breaching of the naturally-formed 

barrier beach at the mouth of the 

Russian River requires the use of heavy 

equipment (e.g., bulldozer, excavator) 

and increased human presence, and 

monitoring in the estuary requires the 

use of small boats. As a result, 

pinnipeds hauled out on the beach or at 

peripheral haul-outs in the estuary may 

exhibit behavioral responses that 

indicate incidental take by Level B 

harassment under the MMPA. Species 

known from the haul-out at the mouth 

of the Russian River or from peripheral 

haul-outs, and therefore anticipated to 

be taken incidental to the specified 

activity, include the harbor seal (Phoca 

vitulina), California sea lion (Zalophus 

californianus), and northern elephant 

seal (Mirounga angustirostris). 

This request for incidental take 

regulations (ITR) and a subsequent 

Letter of Authorization (LOA) follows 

issuance of previous 5-year ITR (2017– 

2022) (82 FR 13765; March 15, 2017). 

Prior to issuance of that initial ITR, 

NMFS issued seven consecutive 

incidental harassment authorizations 

(IHA) to SCWA for incidental take 

associated with the same ongoing 

activities, between 2010–2016. 

Description of the Specified Activity 

Overview 

The proposed action involves 

management of the estuary to prevent 

flooding while preventing adverse 

modification to critical habitat for ESAlisted salmonids. Requirements related 

to the ESA are described in further 

detail below. During the lagoon 

management period, this involves 

construction and maintenance of a 

lagoon outlet channel that would 

facilitate formation of a perched lagoon. 

A perched lagoon, which is an estuary 

closed to tidal influence in which water 

surface elevation is above mean high 

tide, would reduce flooding while 

maintaining beneficial conditions for 

juvenile salmonids. Additional breaches 

of the barrier beach may be conducted 

for the sole purpose of reducing flood 

risk. SCWA’s proposed activity was 

described in detail in our notice of 

proposed authorization prior to the 2011 

IHA (76 FR 14924; March 18, 2011). 

SCWA’s estuary management activities 

have not changed (aside from minor 

changes to SCWA’s biological and 

physical estuary monitoring measures); 


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please see that document for a detailed 

description. 

Dates and Duration 

The specified activity may occur at 

any time during the five-year period of 

validity for these proposed regulations 

(2022–2027), although construction and 

maintenance of a lagoon outlet channel 

would occur only during the lagoon 

management period. In addition, there 

are certain restrictions placed on SCWA 

during the harbor seal pupping season. 

These, as well as periodicity and 

frequency of the specified activities, are 

described in further detail below. 

Specified Geographical Region 

The estuary is located about 97 

kilometers (km) (60 miles (mi)) 

northwest of San Francisco in Sonoma 

County, near Jenner, California (see 

Figure 1 of SCWA’s application). The 

Russian River watershed encompasses 

3,847 km2 (1,485 mi2) in Sonoma, 

Mendocino, and Lake Counties. The 

mouth of the Russian River is located at 

Goat Rock State Beach (see Figure 2 of 

SCWA’s application); the estuary 

extends from the mouth upstream 

approximately 10 to 11 km (6–7 mi) 

between Austin Creek and the 

community of Duncans Mills (Heckel 

and McIver, 1994). 

Detailed Description of Activities 

Within the Russian River watershed, 

the U.S. Army Corps of Engineers 

(Corps), SCWA, and the Mendocino 

County Russian River Flood Control and 

Water Conservation Improvement 

District (District) operate and maintain 

Federal facilities and conduct activities 

in addition to the estuary management, 

including flood control, water diversion 

and storage, instream flow releases, 

hydroelectric power generation, channel 

maintenance, and fish hatchery 

production. The Corps, SCWA, and the 

District conducted these activities for 

many years before salmonid species in 

the Russian River were protected under 

the ESA. Upon determination that these 

actions were likely to affect ESA-listed 

salmonids, as well as designated critical 

habitat for these species, formal 

consultation under section 7 of the ESA 

was initiated. In 2008, NMFS issued a 

Biological Opinion (BiOp) for Water 

Supply, Flood Control Operations, and 

Channel Maintenance conducted by the 

Corps, SCWA, and the District in the 

Russian River watershed (NMFS, 2008). 

This BiOp found that the activities— 

including SCWA’s estuary management 

activities—authorized by the Corps and 

undertaken by SCWA and the District, 

if continued in a manner similar to 

recent historic practices, were likely to 

jeopardize the continued existence of 

ESA-listed salmonids and were likely to 

adversely modify critical habitat. 

If a project is found to jeopardize a 

species or adversely modify its critical 

habitat, NMFS must develop and 

recommend a non-jeopardizing 

Reasonable and Prudent Alternative 

(RPA) to the proposed project, in 

coordination with the federal action 

agency and any applicant. A component 

of the RPA described in the 2008 BiOp 

requires SCWA to collaborate with 

NMFS and modify their estuary water 

level management in order to reduce 

marine influence (i.e., high salinity and 

tidal inflow) and promote a higher water 

surface elevation in the estuary in order 

to enhance the quality of rearing habitat 

for juvenile salmonids. A program of 

potential incremental steps prescribed 

to reach that goal includes adaptive 

management of the outlet channel. 

SCWA is also required to monitor the 

response of water quality, invertebrate 

production, and salmonids in and near 

the estuary to water surface elevation 

management in the estuary-lagoon 

system. 

The analysis contained in the BiOp 

found that maintenance of lagoon 

conditions was necessary only for the 

lagoon management period. See NMFS’ 

BiOp (2008) for details of that analysis. 

As a result of that determination, there 

are three components to SCWA’s 

estuary management activities: (1) 

Lagoon outlet channel management, 

during the lagoon management period 

only, required to accomplish the dual 

purposes of flood risk abatement and 

maintenance of juvenile salmonid 

habitat; (2) traditional artificial 

breaching, with the sole goal of flood 

risk abatement; and (3) physical and 

biological monitoring. Monitoring is 

conducted to measure changes in the 

beach and channel elevation, lengths, 

and widths, as well as flow velocities 

and observations of the bed structure in 

the channel. SCWA is also required 

through the BiOp to collect biological, 

water quality, and physical habitat data 

in conjunction with estuary 

management. These monitoring 

activities include fisheries sampling, 

water quality monitoring, invertebrate 

sampling, and physical habitat 

measurements requiring the use of boats 

in the estuary. Please see the previously 

referenced Federal Register notice (76 

FR 14924; March 18, 2011) for detailed 

discussion of lagoon outlet channel 

management, artificial breaching, and 

other monitoring activities. Please see 

Table 3 for more details regarding the 

specific activities. 

NMFS’ BiOp determined that 

salmonid estuarine habitat may be 

improved by managing the Russian 

River estuary as a perched, freshwater 

lagoon and, therefore, stipulates as an 

RPA to existing conditions that the 

estuary be managed to achieve such 

conditions between May 15th and 

October 15th. In recognition of the 

complexity and uncertainty inherent in 

attempting to manage conditions in a 

dynamic beach environment, the BiOp 

stipulates that the estuarine water 

surface elevation RPA be managed 

adaptively, meaning that it should be 

planned, implemented, and then 

iteratively refined based on experience 

gained from implementation. 

The estuary closes throughout the 

year as a result of a sandbar forming at 

the mouth of the Russian River. To 

facilitate summer lagoon management, 

SCWA would construct the lagoon 

outlet channel after the first natural 

barrier beach closure, but the lagoon 

would generally be managed during the 

lagoon management period. It is 

anticipated that the outlet channel 

implementation would be a 2-day event 

with initial construction of the lagoon 

outlet channel taking one day of work, 

and subsequent adjustments to the 

outlet channel on the second day. 

Subsequent maintenance would occur 

approximately weekly until the end of 

the lagoon management period. 

Artificial breaching activities would 

generally occur at any time of year 

outside the lagoon management period. 

Biological and physical habitat 

monitoring can occur at any time of 

year, but generally occurs from midApril through December, with the 

exception of topographic beach surveys 

that occur year round. 

Description of Marine Mammals in the 

Area of the Specified Activity 

Harbor seals are the most common 

species inhabiting the haul-out at the 

mouth of the Russian River (Jenner 

haul-out) and fine-scale local abundance 

data for harbor seals have been recorded 

extensively since 1972. California sea 

lions and northern elephant seals have 

also been observed infrequently in the 

project area. In addition to the primary 

Jenner haul-out, there are eight 

peripheral haul-outs nearby (see Figure 

1 of SCWA’s application). These include 

North Jenner and Odin Cove to the 

north; Pocked Rock, Kabemali, and Rock 

Point to the south; and Penny Logs, 

Patty’s Rock, and Chalanchawi 

upstream within the estuary. 

This section provides summary 

information regarding local occurrence 

of these species. We have reviewed 

SCWA’s detailed species descriptions, 

including life history information, for 

accuracy and completeness and refer the 


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reader to Sections 3 and 4 of SCWA’s 

application instead of reprinting the 

information here. Please also see NMFS 

Stock Assessment Reports, which may 

be accessed online at 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessments. 

Harbor Seals 

Harbor seals inhabit coastal and 

estuarine waters and shoreline areas of 

the Northern Hemisphere from 

temperate to polar regions. The eastern 

North Pacific subspecies is found from 

Baja California north to the Aleutian 

Islands and into the Bering Sea. 

Multiple lines of evidence support the 

existence of geographic structure among 

harbor seal populations from California 

to Alaska (Carretta et al., 2016). 

However, because stock boundaries are 

difficult to meaningfully draw from a 

biological perspective, three separate 

harbor seal stocks are recognized for 

management purposes along the west 

coast of the continental U.S.: (1) Inland 

waters of Washington, (2) outer coast of 

Oregon and Washington, and (3) 

California (Carretta et al., 2016). 

Placement of a stock boundary at the 

California-Oregon border is not based on 

biology but is considered a political and 

jurisdictional convenience (Carretta et 

al., 2016). In addition, harbor seals may 

occur in Mexican waters, but these 

animals are not considered part of the 

California stock. Only the California 

stock is expected to be found in the 

project area. 

California harbor seals are not 

protected under the ESA or listed as 

depleted under the MMPA, and are not 

considered a strategic stock under the 

MMPA because annual human-caused 

mortality (43) is significantly less than 

the calculated potential biological 

removal (PBR; 1,641) (Carretta et al., 

2016). The population appears to be 

stabilizing at what may be its carrying 

capacity and the fishery mortality is 

declining. The best abundance estimate 

of the California stock of harbor seals is 

30,968 and the minimum population 

size of this stock is 27,348 individuals 

(Carretta et al., 2016). 

Harbor seal pupping normally occurs 

at the Russian River beginning in March 

and continuing into May, and pups are 

counted during surveys through June, 

after which time it becomes difficult to 

distinguish pups from sub-adult seals. 

The Jenner haul-out is the largest in 

Sonoma County. A substantial amount 

of monitoring effort has been conducted 

at the Jenner haul-out and surrounding 

areas. Concerned local residents formed 

the Stewards’ Seal Watch Public 

Education Program in 1985 to educate 

beach visitors and monitor seal 

populations. State Parks Volunteer 

Docents continue this effort towards 

safeguarding local harbor seal habitat. 

On weekends during the pupping and 

molting season (approximately March– 

August), volunteers conduct public 

outreach and record the numbers of 

visitors and seals on the beach, other 

marine mammals observed, and the 

number of boats and kayaks present. 

Ongoing monthly seal counts at the 

Jenner haul-out were begun by J. 

Mortenson in January 1987, with 

additional nearby haul-outs added to 

the counts thereafter. In addition, local 

resident E. Twohy began daily 

observations of seals and people at the 

Jenner haul-out in November 1989. 

These datasets note whether the mouth 

at the Jenner haul-out was opened or 

closed at each observation, as well as 

various other daily and annual patterns 

of haul-out usage (Mortenson and 

Twohy, 1994). In 2009, SCWA began 

regular baseline monitoring of the haulout as a component of its estuary 

management activity. 

The number of harbor seals at the 

Russian River varies throughout the 

year, with peak seal abundance 

typically during the summer molting 

period (Figure 4). Abundance of seals on 

the Jenner haul-out declines in the fall 

after the molting season is complete, but 

seals are present at Jenner and locally 

year round. The number of harbor seals 

at this haul-out has fluctuated from year 

to year. See Figures 4 and 5 in SCWA’s 

application for additional detail. 

The number of seals present at the 

Jenner haul-out generally declines 

during bar-closed conditions 

(Mortenson, 1996). SCWA’s pinniped 

monitoring efforts from 1996 to 2000 

focused on artificial breaching activities 

and their effects on the Jenner haul-out. 

Seal counts and disturbances were 

recorded from one to two days prior to 

breaching, the day of breaching, and the 

day after breaching (MSC, 1997, 1998, 

1999, 2000; SCWA and MSC, 2001). In 

each year, the trend observed was that 

harbor seal numbers generally declined 

during a beach closure and increased 

the day following an artificial breaching 

event. Heckel and McIver (1994) 

speculated that the loss of easy access 

to the haul-out and ready escape to the 

sea during bar-closed conditions may 

account for the lower numbers. SCWA’s 

pinniped monitoring program since 

2009 has included observations from 

water level management activities (i.e., 

artificial breaching and lagoon outlet 

channel implementation) and its effects 

on the Jenner haul-out. Seal counts and 

disturbances were recorded from 1 to 2 

days prior to a breaching or channel 

implementation event, the day of an 

event, and the day after an event. During 

most events the trend observed was that 

harbor seal numbers declined during a 

beach closure (occasionally, the 

numbers rose again and then declined 

again during a closure) and increased 

the day following an artificial breaching 

event. For more information, see 

SCWA’s monitoring reports (available 

online at: www.fisheries.noaa.gov/ 

action/incidental-take-authorizationsonoma-county-water-agencys-estuarymanagement-activities). 

Mortenson (1996) observed that pups 

were first seen at the Jenner haul-out in 

late March, with maximum counts in 

May. In this study, pups were not 

counted separately from other age 

classes at the haul-out after August due 

to the difficulty in discriminating pups 

from small yearlings. From 1989 to 

1991, Hanson (1993) observed that 

pupping began at the Jenner haul-out in 

mid-April, with a maximum number of 

pups observed during the first two 

weeks of May. This corresponds with 

the peaks observed at Point Reyes, 

where the first viable pups are born in 

March and the peak is the last week of 

April to early May (SCWA, 2014). Based 

on this information, pupping season at 

the Jenner haul-out is conservatively 

defined here as March 15 to June 30. 

California Sea Lions 

California sea lions range from the 

Gulf of California north to the Gulf of 

Alaska, with breeding areas located in 

the Gulf of California, western Baja 

California, and southern California. Five 

genetically distinct geographic 

populations have been identified: (1) 

Pacific Temperate, (2) Pacific 

Subtropical, (3) Southern Gulf of 

California, (4) Central Gulf of California 

and (5) Northern Gulf of California 

(Schramm et al., 2009). Rookeries for 

the Pacific Temperate population are 

found within U.S. waters and just south 

of the U.S.-Mexico border, and animals 

belonging to this population may be 

found from the Gulf of Alaska to 

Mexican waters off Baja California. 

Animals belonging to other populations 

(e.g., Pacific Subtropical) may range into 

U.S. waters during non-breeding 

periods. For management purposes, a 

stock of California sea lions comprising 

those animals at rookeries within the 

U.S. is defined (i.e., the U.S. stock of 

California sea lions) (Carretta et al., 

2019). Pup production at the Coronado 

Islands rookery in Mexican waters is 

considered an insignificant contribution 

to the overall size of the Pacific 

Temperate population (Lowry and 

Maravilla-Chavez, 2005). 


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California sea lions are not protected 

under the ESA or listed as depleted 

under the MMPA. Total annual humancaused mortality (≥321) is substantially 

less than the PBR (estimated at 14,011); 

therefore, California sea lions are not 

considered a strategic stock under the 

MMPA. The best abundance estimate of 

the U.S. stock of California sea lions is 

257,606 and the minimum population 

size of this stock is 233,515 individuals 

(Carretta et al., 2019). 

Solitary California sea lions have 

occasionally been observed at or in the 

vicinity of the Russian River estuary 

(MSC, 1999, 2000), in all months of the 

year except June. Male California sea 

lions are occasionally observed hauled 

out at or near the Russian River mouth 

in most years, including 2016–2018 and 

2020. Other individuals were observed 

in the surf at the mouth of the river or 

swimming inside the estuary. Juvenile 

sea lions have also been observed 

during monitoring of peripheral haulouts. The occurrence of individual 

California sea lions in the action area 

may occur year-round, but is infrequent 

and sporadic. 

Northern Elephant Seals 

Northern elephant seals gather at 

breeding areas, located primarily on 

offshore islands of Baja California and 

California, from approximately 

December to March before dispersing for 

feeding. Males feed near the eastern 

Aleutian Islands and in the Gulf of 

Alaska, while females feed at sea south 

of 45° N (Stewart and Huber, 1993; Le 

Boeuf et al., 1993). Adults then return 

to land between March and August to 

molt, with males returning later than 

females, before dispersing again to their 

respective feeding areas between 

molting and the winter breeding season. 

Populations of northern elephant seals 

in the U.S. and Mexico are derived from 

a few tens or hundreds of individuals 

surviving in Mexico after being nearly 

hunted to extinction (Stewart et al., 

1994). Given the recent derivation of 

most rookeries, no genetic 

differentiation would be expected. 

Although movement and genetic 

exchange continues between rookeries, 

most elephant seals return to their natal 

rookeries when they start breeding 

(Huber et al., 1991). The California 

breeding population is now 

demographically isolated from the Baja 

California population and is considered 

to be a separate stock. 

Northern elephant seals are not 

protected under the ESA or listed as 

depleted under the MMPA. Total annual 

human-caused mortality (5.3) is 

substantially less than the PBR 

(estimated at 5,122); therefore, northern 

elephant seals are not considered a 

strategic stock under the MMPA. The 

best abundance estimate of the 

California breeding population of 

northern elephant seals is 187,386 and 

the minimum population size of this 

stock is 85,369 individuals (Carretta et 

al., 2021). 

Censuses of pinnipeds at the mouth of 

the Russian River have been taken at 

least semi-monthly since 1987. Elephant 

seals were noted from 1987–95, with 

one or two elephant seals typically 

counted during May censuses, and 

occasional records during the fall and 

winter (Mortenson and Follis, 1997). A 

single, tagged northern elephant seal 

sub-adult was present at the Jenner 

haul-out from 2002–07. This individual 

seal, which was observed harassing 

harbor seals also present at the haul-out, 

was generally present during molt and 

again from late December through 

March. In recent years individual subadult elephant seals have been observed 

on a few occasions hauled out at the 

Russian River in the late summer and 

early fall. The occurrence of individual 

northern elephant seals in the action 

area has generally been infrequent and 

sporadic. 

Potential Effects of the Specified 

Activity on Marine Mammals and Their 

Habitat 

This section includes a summary and 

discussion of the ways that components 

of the specified activity may impact 

marine mammals and their habitat. The 

Estimated Take section later in this 

document will include a quantitative 

analysis of the number of incidents of 

take expected to occur incidental to this 

activity. The Negligible Impact Analysis 

and Determination section will include 

an analysis of how this specific activity 

will impact marine mammals and will 

consider the content of this section, the 

Estimated Take section, and the 

Proposed Mitigation section, to draw 

conclusions regarding the likely impacts 

of these activities on the reproductive 

success or survivorship of individuals 

and from that on the affected marine 

mammal populations or stocks. 

A significant body of monitoring data 

exists for pinnipeds at the mouth of the 

Russian River. In addition, pinnipeds 

have co-existed with regular estuary 

management activity for decades, as 

well as with regular human use activity 

at the beach, and are likely habituated 

to human presence and activity. 

Nevertheless, SCWA’s estuary 

management activities have the 

potential to disturb pinnipeds present 

on the beach or at peripheral haul-outs 

in the estuary. During breaching 

operations, past monitoring has revealed 

that some or all of the seals present 

typically move or flush from the beach 

in response to the presence of crew and 

equipment, though some may remain 

hauled-out. No stampeding of seals—a 

potentially dangerous occurrence in 

which large numbers of animals 

succumb to mass panic and rush away 

from a stimulus—has been documented 

since SCWA developed protocols to 

prevent such events in 1999. While it is 

likely impossible to conduct required 

estuary management activities without 

provoking some response in hauled-out 

animals, precautionary mitigation 

measures, described later in this 

document, ensure that animals are 

gradually apprised of human approach. 

Under these conditions, seals typically 

exhibit a continuum of responses, 

beginning with alert movements (e.g., 

raising the head), which may then 

escalate to movement away from the 

stimulus and possible flushing into the 

water. Flushed seals typically re-occupy 

the haul-out within minutes to hours of 

the stimulus. 

In the absence of appropriate 

mitigation measures, it is possible that 

pinnipeds could be subject to injury, 

serious injury, or mortality, likely 

through stampeding or abandonment of 

pups. However, based on a significant 

body of site-specific data, harbor seals 

are unlikely to sustain any harassment 

that may be considered biologically 

significant. Individual animals would, 

at most, flush into the water in response 

to maintenance activities but may also 

simply become alert or move across the 

beach away from equipment and crews. 

SCWA has observed that harbor seals 

are generally less likely to flush from 

the beach when the primary aggregation 

of seals is north of the breaching activity 

(please refer to Figure 2 of SCWA’s 

application), meaning that personnel 

and equipment are not required to pass 

the seals. 

California sea lions and northern 

elephant seals have been observed as 

less sensitive to stimulus than harbor 

seals during monitoring at numerous 

other sites. For example, monitoring of 

pinniped disturbance as a result of 

abalone research in the Channel Islands 

showed that while harbor seals flushed 

at a rate of 69 percent, California sea 

lions flushed at a rate of only 21 

percent. The rate for elephant seals 

declined to 0.1 percent (VanBlaricom, 

2010). In the event that either of these 

species is present during management 

activities, they would be expected to 

display a minimal reaction to 

maintenance activities—less than that 

expected of harbor seals. 

Although the Jenner haul-out is not 

known as a primary pupping beach, 


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pups have been observed during the 

pupping season; therefore, we have 

evaluated the potential for injury, 

serious injury, or mortality to pups. 

There is a lack of published data 

regarding pupping at the mouth of the 

Russian River, but SCWA monitors have 

observed pups on the beach. No births 

were observed during recent 

monitoring, but may be inferred based 

on signs indicating pupping (e.g., blood 

spots on the sand, birds consuming 

possible placental remains). Pup injury 

or mortality would be most likely to 

occur in the event of extended 

separation of a mother and pup, or 

trampling in a stampede. As discussed 

previously, no stampedes have been 

recorded since development of 

appropriate protocols in 1999. Any 

California sea lions or northern elephant 

seals present would be independent 

juveniles or adults; therefore, analysis of 

impacts on pups is not relevant for 

those species. 

Similarly, the period of mother-pup 

bonding, critical time needed to ensure 

pup survival and maximize pup health, 

is not expected to be impacted by 

estuary management activities. Harbor 

seal pups are extremely precocious, 

swimming and diving immediately after 

birth and throughout the lactation 

period, unlike most other phocids 

which normally enter the sea only after 

weaning (Lawson and Renouf, 1985; 

Cottrell et al., 2002; Burns et al., 2005). 

Lawson and Renouf (1987) investigated 

harbor seal mother-pup bonding in 

response to natural and anthropogenic 

disturbance. In summary, they found 

that the most critical bonding time is 

within minutes after birth. As described 

previously, the peak of pupping season 

is typically concluded by mid-May, 

when the lagoon management period 

begins. As such, it is expected that 

mother-pup bonding would likely be 

concluded as well. The number of 

management events during the months 

of March and April has been relatively 

low in the past, and the breaching 

activities occur in a single day over 

several hours. In addition, mitigation 

measures described later in this 

document further reduce the likelihood 

of any impacts to pups, whether through 

injury or mortality or interruption of 

mother-pup bonding (which may lead to 

abandonment). 

In summary, and based on extensive 

monitoring data, we believe that 

impacts to hauled-out pinnipeds during 

estuary management activities would be 

behavioral harassment of limited 

duration (i.e., less than one day) and 

limited intensity (i.e., temporary 

flushing at most). Stampeding, and 

therefore injury or mortality, is not 

expected—nor been documented—in 

the years since appropriate protocols 

were established (see Proposed 

Mitigation for more details). Further, the 

continued, and increasingly heavy (see 

SCWA’s monitoring reports), use of the 

haul-out despite decades of breaching 

events indicates that abandonment of 

the haul-out is unlikely. 

Anticipated Effects on Marine Mammal 

Habitat 

The purposes of the estuary 

management activities are to improve 

summer rearing habitat for juvenile 

salmonids in the Russian River estuary 

and/or to minimize potential flood risk 

to properties adjacent to the estuary. 

These activities would result in 

temporary physical alteration of the 

Jenner haul-out, but are essential to 

conserving and recovering endangered 

salmonid species, as prescribed by the 

BiOp. These salmonids are themselves 

prey for pinnipeds. In addition, with 

barrier beach closure, seal usage of the 

beach haul-out declines, and the three 

nearby river haul-outs may not be 

available for usage due to rising water 

surface elevations. Breaching of the 

barrier beach, subsequent to the 

temporary habitat disturbance, likely 

increases suitability and availability of 

habitat for pinnipeds. Biological and 

water quality monitoring would not 

physically alter pinniped habitat. Please 

see the previously referenced Federal 

Register notice (76 FR 14924; March 18, 

2011) for a more detailed discussion of 

anticipated effects on habitat. 

During SCWA’s pinniped monitoring 

associated with artificial breaching 

activities from 1996 to 2000, the number 

of harbor seals hauled out declined 

when the barrier beach closed and then 

increased the day following an artificial 

breaching event (MSC, 1997, 1998, 

1999, and 2000; SCWA and MSC, 2001). 

This response to barrier beach closure 

followed by artificial breaching has 

remained consistent in recent years and 

is anticipated to continue. However, it 

is possible that the number of pinnipeds 

using the haul-out could decline during 

the extended lagoon management 

period, when SCWA would seek to 

maintain a shallow outlet channel rather 

than the deeper channel associated with 

artificial breaching. Collection of 

baseline information during the lagoon 

management period is included in the 

monitoring requirements described later 

in this document. SCWA’s previous 

monitoring indicates that the number of 

seals at the haul-out declines from 

August to October, so management of 

the lagoon outlet channel (and 

managing the sandbar as a summer 

lagoon) would have little effect on haulout use during the latter portion of the 

lagoon management period. The early 

portion of the lagoon management 

period coincides with the pupping 

season. Past monitoring during this 

period, which represents some of the 

longest beach closures in the late spring 

and early summer months, shows that 

the number of pinnipeds at the haul-out 

tends to fluctuate, rather than showing 

the more straightforward declines and 

increases associated with closures and 

openings seen at other times of year 

(MSC, 1998). This may indicate that seal 

haul-out usage during the pupping 

season is less dependent on bar status. 

As such, the number of seals hauled out 

from May through July would be 

expected to fluctuate but is unlikely to 

respond dramatically to the absence of 

artificial breaching events. Regardless, 

any impacts to habitat resulting from 

SCWA’s management of the estuary 

during the lagoon management period 

are not in relation to natural conditions 

but, rather, in relation to conditions 

resulting from SCWA’s discontinued 

approach of artificial breaching during 

this period. 

In summary, there will be temporary 

physical alteration of the beach. 

However, natural opening and closure 

of the beach results in the same impacts 

to habitat. Therefore, seals are likely 

adapted to this cycle. In addition, the 

increase in rearing habitat quality has 

the goal of increasing salmonid 

abundance, ultimately providing more 

food for seals present within the action 

area. Thus, any impacts to marine 

mammal habitat are not expected to 

cause significant or long-term 

consequences for individual marine 

mammals or their populations. 

Estimated Take 

This section provides an estimate of 

the number of incidental takes proposed 

for authorization, which will inform 

both NMFS’s consideration of whether 

the number of takes is ‘‘small’’ and the 

negligible impact determination. 

Except with respect to certain 

activities not pertinent here, section 

3(18) of the MMPA defines 

‘‘harassment’’ as: Any act of pursuit, 

torment, or annoyance which (i) has the 

potential to injure a marine mammal or 

marine mammal stock in the wild (Level 

A harassment); or (ii) has the potential 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, 

including, but not limited to, migration, 

breathing, nursing, breeding, feeding, or 

sheltering (Level B harassment). 

SCWA has requested, and NMFS 

proposes, authorization to take harbor 

seals, California sea lions, and northern 


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elephant seals, by Level B harassment 

only, incidental to estuary management 

activities. These activities, involving 

increased human presence and the use 

of heavy equipment and support 

vehicles, are expected to harass 

pinnipeds present at the haul-out 

through disturbance only. In addition, 

monitoring activities prescribed in the 

BiOp may harass additional animals at 

the Jenner haul-out and at the three 

haul-outs located in the estuary (Penny 

Logs, Patty’s Rock, and Chalanchawi). 

Estimates of the number of harbor seals 

that may be harassed by the proposed 

management activities are based upon 

the number of potential take events 

associated with lagoon outlet channel 

and artificial breaching activities (Table 

3) and the average number of harbor 

seals that are present at the Jenner haulout during bar-closed conditions (Table 

2). Table 3 details the total number of 

estimated takes for harbor seals. 

Events associated with lagoon outlet 

channel management would occur only 

during the lagoon management period 

and are split into two categories: (1) 

Initial channel implementation, which 

would likely occur between May and 

September; and (2) maintenance and 

monitoring of the outlet channel, which 

would continue until October 15. In 

addition, it is possible that the initial 

outlet channel could close through 

natural processes, requiring additional 

channel implementation events. Based 

on past experience, SCWA estimates 

that a maximum of three outlet channel 

implementation events could be 

required, with each event lasting up to 

two days. Outlet channel 

implementation events would only 

occur when the bar is closed. Therefore, 

it is appropriate to use data from barclosed monitoring events in estimating 

take (Table 2). Construction of the outlet 

channel is designed to produce a 

perched outflow, resulting in conditions 

that more closely resemble bar-closed 

than bar-open with regard to pinniped 

haul-out usage. As such, bar-closed data 

is appropriate for estimating take during 

all lagoon management period 

maintenance and monitoring activity. 

As dates of outlet channel 

implementation cannot be known in 

advance, the highest daily average of 

seals per month during the lagoon 

management period—the May average 

for 2010–20—is used in estimating take. 

For maintenance and monitoring 

activities associated with the lagoon 

outlet channel, which would occur on a 

weekly basis following implementation 

of the outlet channel, the average 

number of harbor seals for each month 

during bar-closed conditions was used. 

Artificial breaching activities would 

also occur during bar-closed conditions, 

and the average number of harbor seals 

for each month during bar-closed 

conditions was used (Table 2). The 

number of estimated artificial breaching 

events is informed by experience. For 

those months with more frequent 

historical bar closure events, we assume 

that two such events could occur in any 

given year. For other months, we 

assume that only one such event would 

occur in a given year. The average total 

number of events from 2000–2020 is 5 

per year, meaning that the estimated 

take numbers for artificial breaching are 

conservative. Please see Table 1 in 

SCWA’s application for more 

information. 

For monthly topographic surveys on 

the barrier beach, potential incidental 

take of harbor seals is typically 

calculated as one hundred percent of 

the seals expected to be encountered. 

The exception is during the month of 

April, when surveyors would avoid 

seals to reduce harassment of pups and/ 

or mothers with neonates. For the 

monthly topographic survey during 

April, surveyors would not approach or 

retreat slowly away from the haul-out 

when neonates are present, typically 

resulting in no disturbance. For that 

survey, the assumption is therefore that 

only ten percent of seals present would 

be harassed. The number of seals 

expected to be encountered is based on 

the overall average monthly number of 

seals hauled out as recorded during 

baseline surveys conducted by SCWA in 

2010–20 (Table 2). 

TABLE 2—AVERAGE NUMBER OF HARBOR SEALS OBSERVED BY MONTH AND RIVER MOUTH CONDITION, 2010–2020 

Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 

Closed .............................. 57 88 133 99 118 113 105 44 24 25 26 54 

Open ................................. 121 148 138 165 151 197 260 107 56 59 88 90 

Overall .............................. 106 143 138 159 149 178 227 100 49 38 62 79 

For biological and physical habitat 

monitoring activities in the estuary, it 

was assumed that pinnipeds may be 

encountered once per event and flush 

from a river haul-out. The potential for 

harassment associated with these events 

is limited to the peripheral haul-outs 

located in the estuary. In past 

experience, SCWA typically sees no 

more than a single harbor seal at these 

haul-outs, which consist of scattered 

logs and rocks that often submerge at 

high tide. 

As described previously, California 

sea lions and northern elephant seals 

are occasional visitors to the estuary. 

Based on limited information regarding 

occurrence of these species at the mouth 

of the Russian River estuary, we assume 

there is the potential to encounter one 

animal of each species per month 

throughout the year. Lagoon outlet 

channel activities could potentially 

occur over six months of the year, 

artificial breaching activities over eight 

months, topographic surveys yearround, and biological and physical 

monitoring in the estuary over eight 

months. Therefore, we assume that up 

to 34 incidents of take could occur per 

year for both the California sea lion and 

northern elephant seal. Based on past 

occurrence records, the proposed take 

authorization for these two species is 

likely a precautionary overestimate. 

TABLE 3—ESTIMATED NUMBER OF HARBOR SEAL TAKES RESULTING FROM RUSSIAN RIVER ESTUARY MANAGEMENT

ACTIVITIES

Number of animals expected to occur a Number of events bcd Potential total number of individual animals 

that may be taken 

Lagoon Outlet Channel Management (May 15 to October 15) 

Implementation: 118 e ........................................ Implementation: 3 ............................................. Implementation: 708. 


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TABLE 3—ESTIMATED NUMBER OF HARBOR SEAL TAKES RESULTING FROM RUSSIAN RIVER ESTUARY MANAGEMENT

ACTIVITIES—Continued 

Number of animals expected to occur a Number of events bcd Potential total number of individual animals 

that may be taken 

Maintenance and Monitoring: May: 118, June: 

113, July: 105, Aug: 44, Sept: 24, Oct: 25.

Maintenance: May: 1, June–Sept: 4/month, 

Oct: 1.

Maintenance: 1,287. 

Monitoring: June–Sept: 2/month, Oct: 1 .......... Monitoring: 597. 

Total: 2,592. 

Artificial Breaching 

Oct: 25 ............................................................... Oct: 2 ................................................................ Oct: 50. 

Nov: 26 ............................................................... Nov: 2 ............................................................... Nov: 52. 

Dec: 54 ............................................................... Dec: 1 ............................................................... Dec: 54. 

Jan: 57 ............................................................... Jan: 1 ............................................................... Jan: 57. 

Feb: 88 ............................................................... Feb: 1 ............................................................... Feb: 88. 

Mar: 133 ............................................................. Mar: 1 ............................................................... Mar: 133. 

Apr: 99 ............................................................... Apr: 1 ................................................................ Apr: 99. 

May: 118 ............................................................ May: 1 .............................................................. May: 118. 

10 events maximum ......................................... Total: 651. 

Topographic Beach Surveys 

Jan: 106 .............................................................

Feb: 143 .............................................................

Mar: 138 .............................................................

Apr: 159 .............................................................

May: 149 ............................................................

Jun: 178 .............................................................

Jul: 227 ..............................................................

Aug: 100 .............................................................

Sep: 49 ...............................................................

Oct: 38 ...............................................................

Nov: 62 ...............................................................

Dec: 79 ...............................................................

1 survey/month ................................................. Jan: 106. 

Feb: 143. 

Mar: 138. 

Apr: 16.g

May: 298. 

Jun: 356. 

Jul: 454. 

Aug: 200. 

Sep: 98. 

Oct: 76. 

Nov: 124. 

Dec: 158. 

Total: 2,167. 

Biological and Physical Habitat Monitoring in the Estuary 

1 f ........................................................................ 107 ................................................................... 107. 

Total ............................................................ ........................................................................... 5,517. 

aFor lagoon outlet channel management and artificial breaching events, average daily number of animals corresponds with data from barclosed conditions. For topographic beach surveys, average daily number of animals corresponds with overall monthly average data, as river 

mouth condition cannot be predicted. See Table 2. bFor 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. 

dSee Table 3 of SCWA’s application for total number of estuary monitoring events; note that multiple activities may occur during a single 

event. eAlthough implementation could occur at any time during the lagoon management period, the highest daily average per month from the lagoon 

management period was used. fBased 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. gTen percent of animals present during April surveys are assumed to be taken as a result of enhanced mitigation during period when neonates are most likely to be present. 

The take numbers described in the 

preceding text are annual estimates. 

Therefore, over the course of the 5-year 

period of validity of the proposed 

regulations, we propose to authorize 

through Letter of Authorization a total 

of 27,585 incidents of take for harbor 

seals and 170 such incidents each for 

the California sea lion and northern 

elephant seal. 

Proposed Mitigation 

Under Section 101(a)(5)(A) of the 

MMPA, NMFS must set forth the 

permissible methods of taking pursuant 

to such activity, and other means of 

effecting the least practicable adverse 

impact on such species or stock and its 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of such species or stock for 

taking for certain subsistence uses 

(‘‘least practicable adverse impact’’). 

NMFS does not have a regulatory 

definition for ‘‘least practicable adverse 

impact.’’ However, NMFS’ 

implementing regulations require 

applicants for incidental take 

authorizations to include information 

about the availability and feasibility 

(economic and technological) of 

equipment, methods, and manner of 


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conducting such activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, we 

carefully consider two primary factors: 

(1) The manner in which, and the 

degree to which, implementation of the 

measure(s) is expected to reduce 

impacts to marine mammal species or 

stocks, their habitat, and their 

availability for subsistence uses. This 

analysis will consider such things as the 

nature of the potential adverse impact 

(such as likelihood, scope, and range), 

the likelihood that the measure will be 

effective if implemented, and the 

likelihood of successful 

implementation. 

(2) The practicability of the measure 

for applicant implementation. 

Practicability of implementation may 

consider such things as cost, impact on 

operations, personnel safety, and 

practicality of implementation. 

SCWA has proposed to continue the 

following mitigation measures, as 

implemented during the previous ITAs, 

designed to minimize impact to affected 

species and stocks: 

• 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. 

• SCWA staff would avoid walking or 

driving equipment through the seal 

haul-out. 

• 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. 

• Equipment would be driven slowly 

on the beach and care would be taken 

to minimize the number of shut-downs 

and start-ups when the equipment is on 

the beach to reduce disturbance of seals 

from loud noises following a relatively 

quiet period. 

In addition, SCWA proposes to 

continue mitigation measures specific to 

pupping season (March 15–June 30), as 

implemented in the previous ITAs: 

• 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. 

• A water level management event 

may not occur for more than two 

consecutive days unless flooding threats 

cannot be controlled. 

• 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. 

• 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 shutdowns and start-ups when the 

equipment is on the beach. All work 

would be completed as efficiently as 

possible, with the smallest amount of 

heavy equipment possible, to minimize 

disturbance of seals at the haul-out. 

Boats operating near river haul-outs 

during monitoring would be kept within 

posted speed limits and driven as far 

from the haul-outs as safely possible to 

minimize flushing seals. 

We have carefully evaluated SCWA’s 

proposed mitigation measures and 

considered a range of other measures in 

the context of ensuring that we 

prescribed the means of effecting the 

least practicable adverse impact on the 

affected marine mammal species and 

stocks and their habitat. Based on our 

evaluation of these measures, we have 

preliminarily determined that the 

proposed mitigation measures provide 

the means of effecting the least 

practicable adverse impact on marine 

mammal species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of such species or stock for 

subsistence uses. 

Proposed Monitoring and Reporting 

In order to issue an LOA for an 

activity, Section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of the 

authorized taking. NMFS’s MMPA 

implementing regulations further 

describe the information that an 

applicant should provide when 

requesting an authorization (50 CFR 

216.104(a)(13)), including the means of 

accomplishing the necessary monitoring 

and reporting that will result in 

increased knowledge of the species and 

the level of taking or impacts on 

populations of marine mammals. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• 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). 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) Action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

action; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas). 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors. 

• How anticipated responses to 

stressors impact either: (1) Long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks. 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or important physical 

components of marine mammal habitat). 

• Mitigation and monitoring 

effectiveness. 

SCWA submitted a marine mammal 

monitoring plan as part of the ITA 

application. It can be found online at 

www.fisheries.noaa.gov/action/sonomacounty-water-agencys-estuarymanagement-activities-sonoma-countycalifornia-2022. The plan, which has 

been successfully implemented (in 


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slightly different form from the 

currently proposed plan) by SCWA 

under previous ITAs, may be modified 

or supplemented based on comments or 

new information received from the 

public during the public comment 

period. The purpose of this monitoring 

plan, which is carried out 

collaboratively with the Stewards of the 

Coasts and Redwoods (Stewards) 

organization, is to detect the response of 

pinnipeds to estuary management 

activities at the Russian River estuary. 

SCWA will continue to collect data on 

annual abundance of harbor seals at the 

Jenner haul-out to monitor trends in 

population size and annual pup 

production. Observations of seal 

behavior will be recorded and reported 

to monitor any impacts resulting from 

estuary management and monitoring 

activities. 

Proposed Monitoring Measures 

Baseline Monitoring—Baseline data 

on conditions associated with seal 

presence at the Jenner haul-out would 

be collected each year from March 15 

through October 15. Generally, 

monitoring associated with 

implementation and maintenance of the 

lagoon outlet channel would occur 

between May 15 and October 15. 

Monitoring of artificial breaching 

activities would occur with each event, 

generally outside the lagoon 

management period. Should the mouth 

remain open during the lagoon 

management period, monitoring of the 

Jenner haul-out would continue as 

described below. 

Baseline monitoring will occur at the 

Jenner overlook from March 15 to 

October 15. This schedule would 

capture the pupping and molting 

seasons, and extend to the end of the 

beach management period, when 

management activities are more likely to 

occur. Surveys would be conducted 

twice monthly, except for the pupping 

season (April–May) when surveys 

would be conducted weekly in order to 

record the presence of neonate harbor 

seals. The haul-out will be monitored 

for 4 hours, scheduled for any 

consecutive block between the hours of 

0800 and 1600. An effort will be made 

to avoid periods of high tide when 

scheduling baseline surveys. 

All seals hauled out on the beach will 

be counted every 30 minutes from the 

overlook on the bluff along Highway 1 

adjacent to the haul-out using a high 

powered spotting scope. Monitoring 

may conclude for the day if weather 

conditions affect visibility (e.g., heavy 

fog in the afternoon). Depending on how 

the sandbar is formed, seals may haul 

out in multiple groups at the mouth. At 

each thirty minute count, the observer 

indicates where groups of seals are 

hauled out on the sandbar and provides 

a total count for each group. When 

possible, adults and pups will be 

counted separately. The observer will 

provide a sketch of where the seals are 

hauled out on the back of the data sheet. 

In addition to the count data, 

disturbances of the haul-out will be 

recorded. The methods for recording 

disturbances would follow a three-point 

scale adopted by NMFS that represents 

an increasing seal response to the 

disturbance (Table 4). For each 

disturbance event the disturbance 

source and seal response will be 

recorded and tallied. Disturbance events 

corresponding with Levels 2–3 are 

considered to be harassment. Weather 

conditions will also be recorded at the 

beginning of each survey. 

TABLE 4—SEAL RESPONSE TO DISTURBANCE

Level Type of response Definition 

1 ........................ Alert ............................... Seal head orientation or brief movement in response to disturbance, which may include turning 

head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped 

position, changing from a lying to a sitting position, or brief movement of less than twice the animal’s body length. 

2 ........................ Movement ...................... Movements in response to the source of disturbance, ranging from short withdrawals at least twice 

the animal’s body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 degrees. 

3 ........................ Flight .............................. All retreats (flushes) to the water. 

Estuary Management Event 

Monitoring, Lagoon Outlet Channel— 

Should the mouth close during the 

lagoon management period, SCWA 

would construct a lagoon outlet channel 

as required by the BiOp. Activities 

associated with the initial construction 

of the outlet channel, as well as the 

maintenance of the channel that may be 

required, would be monitored for 

disturbances to the seals at the Jenner 

haul-out. 

A 1-day pre-outlet channel survey 

would be made within 1 to 3 days prior 

to constructing the outlet channel. The 

haul-out would be monitored on the day 

the outlet channel is constructed and 

daily for up to 2 days during channel 

excavation activities. Monitoring would 

also occur on each day that the outlet 

channel is maintained using heavy 

equipment for the duration of the lagoon 

management period. 

Monitoring of outlet channel 

maintenance would correspond with the 

monitoring described under the 

‘‘Baseline Monitoring’’ section above. 

Methods would follow the count and 

disturbance monitoring protocols 

described in the ‘‘Baseline Monitoring’’ 

section. 

Estuary Management Event 

Monitoring, Artificial Breaching 

Events—In accordance with the BiOp, 

SCWA may artificially breach the 

barrier beach outside of the summer 

lagoon management period, and may 

conduct a maximum of two such 

breachings during the lagoon 

management period, when estuary water 

surface elevations rise above seven feet. 

In that case, NMFS may be consulted 

regarding potential scheduling of an 

artificial breaching event to open the 

barrier beach and reduce flooding risk. 

Pinniped response to artificial 

breaching will be monitored at each 

such event during the period of validity 

of these proposed regulations. Methods 

would follow the census and 

disturbance monitoring protocols 

described in the ‘‘Baseline Monitoring’’ 

section, which were also used for the 

1996 to 2000 monitoring events and 

since 2009. The exception, as for lagoon 

management events, is that duration of 

monitoring is dependent upon duration 

of the event. On the day of the 

management event, pinniped 

monitoring begins at least one hour 

prior to the crew and equipment 

accessing the beach work area and 

continues through the duration of the 

event, until at least one hour after the 

crew and equipment leave the beach. 

For all counts, the following 

information would be recorded in 30- 

minute intervals: (1) Pinniped counts, 

by species; (2) behavior; (3) time, source 

and duration of any disturbance; (4) 


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estimated distances between source of 

disturbance and pinnipeds; (5) weather 

conditions (e.g., temperature, wind); 

and (5) tide levels and estuary water 

surface elevation. 

Monitoring During Pupping Season— 

The pupping season is defined as March 

15 to June 30. Baseline, lagoon outlet 

channel, and artificial breaching 

monitoring during the pupping season 

will include records of neonate (pups 

less than one week old) observations. 

Characteristics of a neonate pup 

include: Body weight less than 15 kg; 

thin for their body length; an umbilicus 

or natal pelage present; wrinkled skin; 

and awkward or jerky movements on 

land. SCWA will coordinate with the 

Seal Watch monitoring program to 

determine if pups less than one week 

old are on the beach prior to a water 

level management event. 

If, during monitoring, observers sight 

any pup that might be abandoned, 

SCWA would contact the NMFS 

stranding response network 

immediately and also report the 

incident to NMFS’ West Coast Regional 

Office and Office of Protected Resources 

within 48 hours. Observers will not 

approach or move the pup. Potential 

indications that a pup may be 

abandoned are no observed contact with 

adult seals, no movement of the pup, 

and the pup’s attempts to nurse are 

rebuffed. 

Staffing—Monitoring would be 

conducted by qualified individuals. 

Generally, these individuals would 

include professional biologists 

employed by SCWA or volunteers 

trained by the Stewards and SCWA. All 

volunteer monitors would be required to 

attend a classroom-style training and on 

site mentoring by an experienced 

observer. Training would cover the 

MMPA and conditions of the LOA, 

SCWA’s Pinniped Monitoring Program, 

pinniped species identification, age 

class identification (including a specific 

discussion regarding neonates), 

recording of count and disturbance 

observations (including completion of 

datasheets), and use of equipment. 

Pinniped identification would include 

harbor seal, California sea lion, and 

northern elephant seal, as well as other 

pinniped species with potential to occur 

in the area (i.e., northern fur seals, 

Guadalupe fur seals, Steller sea lions). 

Generally, volunteers would collect 

baseline data on Jenner haul-out use 

during the bi-weekly monitoring events. 

A schedule for this monitoring would be 

established with Stewards once 

volunteers are available for the 

monitoring effort. SCWA staff would 

monitor lagoon outlet channel 

excavation, maintenance activities, 

artificial breaching events, and 

biological or physical monitoring 

activities at the Jenner haul-out. 

Reporting 

SCWA is required to submit an 

annual report on all activities and 

marine mammal monitoring results to 

NMFS within 90 days following the end 

of the monitoring period. These reports 

would contain the following 

information: 

• The number of pinnipeds taken, by 

species and age class (if possible); 

• Behavior prior to and during water 

level management events; 

• Start and end time of activity; 

• Estimated distances between source 

and pinnipeds when disturbance 

occurs; 

• Weather conditions (e.g., 

temperature, wind, etc.); 

• Haul-out reoccupation time of any 

pinnipeds based on post-activity 

monitoring; 

• Tide levels and estuary water 

surface elevation; and 

• Pinniped census from bi-monthly 

and nearby haul-out monitoring. 

The annual report includes 

descriptions of monitoring 

methodology, tabulation of estuary 

management events, summary of 

monitoring results, and discussion of 

problems noted and proposed remedial 

measures. 

Summary of Previous Monitoring 

SCWA complied with the mitigation 

and monitoring required under previous 

authorizations. Previous monitoring 

reports are available online at 

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-sonomacounty-water-agencys-estuarymanagement-activities. 

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 haulout, 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 www.fisheries.noaa.gov/ 

action/incidental-take-authorizationsonoma-county-water-agencys-estuarymanagement-activities). 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 haulout as safety crews approach their haulout 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 

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-sonomacounty-water-agencys-estuarymanagement-activities). 

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 


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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., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

by mortality, serious injury, and Level A 

or Level B harassment, we consider 

other factors, such as the likely nature 

of any behavioral responses (e.g., 

intensity, duration), the context of any 

such responses (e.g., critical 

reproductive time or location, 

migration), as well as effects on habitat, 

and the likely effectiveness of 

mitigation. We also assess the number, 

intensity, and context of estimated takes 

by evaluating this information relative 

to population status. Consistent with the 

1989 preamble for NMFS’s 

implementing regulations (54 FR 40338; 

September 29, 1989), the impacts from 

other past and ongoing anthropogenic 

activities are incorporated into this 

analysis via their impacts on the 

environmental baseline (e.g., as 

reflected in the regulatory status of the 

species, population size and growth rate 

where known, ongoing sources of 

human-caused mortality). 

Although SCWA’s estuary 

management activities may disturb 

pinnipeds hauled out at the mouth of 

the Russian River, as well as those 

hauled out at several locations in the 

estuary during recurring monitoring 

activities, impacts are occurring to a 

small, localized group of animals. While 

these impacts can occur year-round, 

they occur sporadically and for limited 

duration (e.g., a maximum of two 

consecutive days for water level 

management events). Seals will likely 

become alert or, at most, flush into the 

water in reaction to the presence of 

crews and equipment on the beach. 

While disturbance may occur during a 

sensitive time (during the March 15– 

June 30 pupping season), mitigation 

measures have been specifically 

designed to further minimize harm 

during this period and eliminate the 

possibility of pup injury or mother-pup 

separation. 

No injury, serious injury, or mortality 

is anticipated, nor is the proposed 

action likely to result in long-term 

impacts such as permanent 

abandonment of the haul-out. Injury, 

serious injury, or mortality to pinnipeds 

would likely result from startling 

animals inhabiting the haul-out into a 

stampede reaction, or from extended 

mother-pup separation as a result of 

such a stampede. Long-term impacts to 

pinniped usage of the haul-out were 

previously considered to be a potential 

result of increased presence of humans 

and equipment on the beach. However, 

10 years of monitoring has not shown 

any such impacts to seal usage of the 

beach. Nevertheless, SCWA will 

continue to implement the previously 

described mitigation measures. These 

are designed to reduce the possibility of 

startling pinnipeds, by gradually 

apprising them of the presence of 

humans and equipment on the beach, 

and to reduce the possibility of impacts 

to pups by eliminating or altering 

management activities on the beach 

when pups are present and by setting 

limits on the frequency and duration of 

events during pupping season. During 

the past 20 years of flood control 

management, implementation of similar 

mitigation measures has resulted in no 

known stampede events and no known 

injury, serious injury, or mortality. Over 

the course of that time period, 

management events have generally been 

infrequent and of limited duration. 

No pinniped stocks for which 

incidental take authorization is 

proposed are listed as threatened or 

endangered under the ESA or 

determined to be strategic or depleted 

under the MMPA. Existing data suggest 

that harbor seal populations have 

reached carrying capacity; populations 

of California sea lions and northern 

elephant seals in California are also 

considered healthy. 

In summary, and based on extensive 

monitoring data, we believe that 

impacts to hauled-out pinnipeds during 

estuary management activities would be 

behavioral harassment of limited 

duration (i.e., less than one day) and 

limited intensity (i.e., temporary 

flushing at most). Stampeding, and 

therefore injury or mortality, is not 

expected—nor been documented—in 

the years since appropriate protocols 

were established (see Proposed 

Mitigation for more details). Further, the 

continued, and increasingly heavy (see 

figures in SCWA documents), use of the 

haul-out despite decades of breaching 

events indicates that abandonment of 

the haul-out is unlikely. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

proposed monitoring and mitigation 

measures, we preliminarily find that the 

total marine mammal take from SCWA’s 

construction activities will have a 

negligible impact on the affected marine 

mammal species or stocks. 

Small Numbers 

As noted above, only small numbers 

of incidental take may be authorized 

under section 101(a)(5)(A) of the MMPA 

for specified activities other than 

military readiness activities. The MMPA 

does not define small numbers and so, 

in practice, where estimated numbers 

are available, NMFS compares the 

number of individuals taken to the most 

appropriate estimation of abundance of 

the relevant species or stock in our 

determination of whether an 

authorization is limited to small 

numbers of marine mammals. When the 

predicted number of individuals to be 

taken is fewer than one third of the 

species or stock abundance, the take is 

considered to be of small numbers. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

The annual amount of take NMFS 

proposes to authorize is below one-third 

of the estimated stock abundance for all 

species (see Table 3). However, this 

represents an overestimate of the 

number of individuals harassed 

annually over the duration of the 

proposed regulations, because these 

totals represent much smaller numbers 

of individuals that may be harassed 

multiple times. Based on the analysis 

contained herein of the proposed 

activity (including the proposed 

mitigation and monitoring measures) 

and the anticipated take of marine 

mammals, NMFS preliminarily finds 

that small numbers of marine mammals 

will be taken relative to the population 

size of the affected species or stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

There are no relevant subsistence uses 

of marine mammals implicated by the 

specified activity. Therefore, we have 

determined that the total taking of 

affected species or stocks would not 

have an unmitigable adverse impact on 

the availability of such species or stocks 

for taking for subsistence purposes. 

Adaptive Management 

The regulations governing the take of 

marine mammals incidental to SCWA 

estuary management activities would 

contain an adaptive management 

component. 

The reporting requirements associated 

with this proposed rule are designed to 

provide NMFS with monitoring data 

from the previous year to allow 

consideration of whether any changes 

are appropriate. The use of adaptive 

management allows NMFS to consider 

new information from different sources 


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to determine (with input from SCWA 

regarding practicability) on an annual or 

biennial basis if mitigation or 

monitoring measures should be 

modified (including additions or 

deletions). Mitigation measures could be 

modified if new data suggests that such 

modifications would have a reasonable 

likelihood of reducing adverse effects to 

marine mammals and if the measures 

are practicable. 

SCWA’s monitoring program (see 

Proposed Monitoring) would be 

managed adaptively. Changes to the 

proposed monitoring program may be 

adopted if they are reasonably likely to 

better accomplish the MMPA 

monitoring goals described previously 

or may better answer the specific 

questions associated with SCWA’s 

monitoring plan. 

The following are some of the 

possible sources of applicable data to be 

considered through the adaptive 

management process: (1) Results from 

monitoring reports, as required by 

MMPA authorizations; (2) results from 

general marine mammal and sound 

research; and (3) any information which 

reveals that marine mammals may have 

been taken in a manner, extent, or 

number not authorized by these 

regulations or subsequent LOAs. 

Endangered Species Act (ESA) 

No marine mammal species listed 

under the ESA are expected to be 

affected by these activities. Therefore, 

we have determined that section 7 

consultation under the ESA is not 

required. 

Request for Information 

NMFS requests interested persons to 

submit comments, information, and 

suggestions concerning SCWA’s request 

and the proposed regulations (see 

ADDRESSES). All comments will be 

reviewed and evaluated as we prepare 

the final rule and make final 

determinations on whether to issue the 

requested authorization. This notice and 

referenced documents provide all 

environmental information relating to 

our proposed action for public review. 

Classification 

Pursuant to the procedures 

established to implement Executive 

Order 12866, the Office of Management 

and Budget has determined that this 

proposed rule is not significant. 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (RFA), the 

Chief Counsel for Regulation of the 

Department of Commerce has certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration that this 

proposed rule, if adopted, would not 

have a significant economic impact on 

a substantial number of small entities. 

SCWA is the sole entity that would be 

subject to the requirements in these 

proposed regulations, and the Sonoma 

County Water Agency is not a small 

governmental jurisdiction, small 

organization, or small business, as 

defined by the RFA. Under the RFA, 

governmental jurisdictions are 

considered to be small if they are ‘‘. . . 

governments of cities, counties, towns, 

townships, villages, school districts, or 

special districts, with a population of 

less than 50,000. . . .’’ As of the 2020 

census, Sonoma County, CA had a 

population of nearly 500,000 people. 

Because of this certification, a 

regulatory flexibility analysis is not 

required and none has been prepared. 

Notwithstanding any other provision 

of law, no person is required to respond 

to nor shall a person be subject to a 

penalty for failure to comply with a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act (PRA) unless that 

collection of information displays a 

currently valid OMB control number. 

These requirements have been approved 

by OMB under control number 0648– 

0151 and include applications for 

regulations, subsequent LOAs, and 

reports. Send comments regarding any 

aspect of this data collection, including 

suggestions for reducing the burden, to 

NMFS. 

List of Subjects in 50 CFR Part 217 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 

Dated: January 13, 2022. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 217 is proposed to be 

amended as follows: 

PART 217—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

■ 1. The authority citation for part 217 

continues to read as follows: 

Authority: 16 U.S.C. 1361 et seq. 

■ 2. Add subpart A to part 217 to read 

as follows: 

Subpart A—Taking Marine Mammals 

Incidental to Russian River Estuary 

Management Activities 

Sec. 

217.1 Specified activity and specified 

geographical region. 

217.2 Effective dates. 

217.3 Permissible methods of taking. 

217.4 Prohibitions. 

217.5 Mitigation requirements. 

217.6 Requirements for monitoring and 

reporting. 

217.7 Letters of Authorization. 

217.8 Renewals and modifications of 

Letters of Authorization. 

217.9 [Reserved] 

217.10 [Reserved] 

§ 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. 

§ 217.2 Effective dates. 

Regulations in this subpart are 

effective from April 21, 2022, through 

April 20, 2027. 

§ 217.3 Permissible methods of taking. 

(a) Under LOAs issued pursuant to 

§§ 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 § 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] 

§ 217.4 Prohibitions. 

Except for the takings contemplated 

in § 217.3 and authorized by an LOA 

issued under §§ 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 § 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 

§§ 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 


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(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. 

§ 217.5 Mitigation requirements. 

When conducting the activities 

identified in § 217.1(a), the mitigation 

measures contained in any LOA issued 

under §§ 216.106 of this chapter and 

217.7 must be implemented. These 

mitigation measures shall include but 

are not limited to: 

(a) General conditions: 

(1) A copy of any issued LOA must be 

in the possession of SCWA, its 

designees, and work crew personnel 

operating under the authority of the 

issued LOA. 

(2) If SCWA observes a pup that may 

be abandoned, it shall contact the 

National Marine Fisheries Service 

(NMFS) West Coast Regional Stranding 

Coordinator immediately and also 

report the incident to NMFS Office of 

Protected Resources within 48 hours. 

Observers shall not approach or move 

the pup. 

(b) SCWA crews shall cautiously 

approach the haul-out ahead of heavy 

equipment. 

(c) SCWA staff shall avoid walking or 

driving equipment through the seal 

haul-out. 

(d) Crews on foot shall make an effort 

to be seen by seals from a distance. 

(e) All work shall be completed as 

efficiently as possible and with the 

smallest amount of heavy equipment 

possible. 

(f) Boats operating near river haulouts 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. 

§ 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 § 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 § 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. 

§ 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, 


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3276 Federal Register / Vol. 87, No. 14 / Friday, January 21, 2022 / Proposed Rules 

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 § 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. 

§ 217.8 Renewals and modifications of 

Letters of Authorization. 

(a) An LOA issued under §§ 216.106 

of this chapter and 217.7 for the activity 

identified in § 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 §§ 216.106 

of this chapter and 217.7 for the activity 

identified in § 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 

§§ 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. 

§ 217.9 [Reserved] 

§ 217.10 [Reserved] 

[FR Doc. 2022–00996 Filed 1–20–22; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 665 

RIN 0648–BK79 

Pacific Island Fisheries; Amendment 5 

to the Fishery Ecosystem Plan for the 

American Samoa Archipelago; 

American Samoa Bottomfish Fishery 

Rebuilding Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Announcement of availability of 

fishery ecosystem plan amendment; 

request for comments. 

SUMMARY: NMFS announces that the 

Western Pacific Fishery Management 

Council (Council) proposes to amend 

the Fishery Ecosystem Plan for the 

American Samoa Archipelago (FEP). If 

approved, Amendment 5 would 

establish a rebuilding plan for the 

American Samoa bottomfish stock 

complex. The Council recommended 

Amendment 5 to rebuild the bottomfish 

stock, which is overfished and 

experiencing overfishing. 

DATES: NMFS must receive comments 

on Amendment 5 by March 22, 2022. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2022–0006, by either of the 

following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

https://www.regulations.gov and enter 

NOAA–NMFS–2022–0006, in the 

Search box. Click on the ‘‘Comment’’ 

icon, complete the required fields, and 

enter or attach your comments. 

• Mail: Send written comments to 

Michael D. Tosatto, Regional 

Administrator, NMFS Pacific Islands 

Region (PIR), 1845 Wasp Blvd., Bldg. 

176, Honolulu, HI 96818. 

• Instructions: NMFS may not 

consider comments sent by any other 

method, to any other address or 

individual, or received after the end of 

the comment period. All comments 

received are a part of the public record, 

and NMFS will generally post them for 

public viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address, etc.), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter ‘‘N/ 

A’’ in the required fields if you wish to 

remain anonymous). 

Amendment 5 includes a draft 

environmental assessment (EA) and 

regulatory impact review (RIR) that 

analyzes the potential impacts of the 

proposed action and alternatives 

considered. Copies of Amendment 5, 

including the EA and RIR, and other 

supporting documents, are available at 

https://www.regulations.gov or the 

Council, 1164 Bishop St., Suite 1400, 

Honolulu, HI 96813, tel 808–522–8220, 

www.wpcouncil.org. 

FOR FURTHER INFORMATION CONTACT: 

Heather Cronin, Sustainable Fisheries, 

NMFS PIR, 808–725–5179. 


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