Federal Register / Vol. 87, No. 75 / Tuesday, April 19, 2022 / Rules and Regulations 23111 

FOR FURTHER INFORMATION CONTACT: For 

further information you may contact Ms. 

Callie Roach, telephone 202–597–1312, 

Callie.Roach@dot.gov; Mr. Daniel 

Koblenz, telephone 202–366–5329, 

Daniel.Koblenz@dot.gov; Office of the 

Chief Counsel. The mailing address of 

these officials is: National Highway 

Traffic Safety Administration, 1200 New 

Jersey Avenue SE, West Building, 

Washington, DC 20590. 

SUPPLEMENTARY INFORMATION: This 

document makes a correction to final 

regulatory text that was published in the 

Federal Register on March 9, 2022 (87 

FR 13209). 

List of Subjects in 49 CFR Part 586 

Labeling, Motor vehicle safety, 

Replica motor vehicles, Reporting and 

recordkeeping requirements. 

In consideration of the foregoing, 

NHTSA corrects 49 CFR part 586 as 

follows: 

PART 586—REPLICA MOTOR 

VEHICLES 

■ 1. The authority citation for part 586 

continues to read as follows: 

Authority: 49 U.S.C. 30112 and 30114; 

delegation of authority at 49 CFR 1.95. 

§ 586.11 [Amended] 

■ 2. In § 586.11, redesignate paragraph 

(b)(3) as paragraph (c). 

Issued under authority delegated in 49 CFR 

part 1.95 and 49 CFR 501.8. 

Raymond R. Posten, 

Associate Administrator for Rulemaking. 

[FR Doc. 2022–08289 Filed 4–18–22; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 220413–0096] 

RIN 0648–BK97 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to Russian River Estuary 

Management Activities 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; notification of 

issuance of Letter of Authorization. 

SUMMARY: NMFS, upon request from the 

Sonoma County Water Agency (SCWA), 

hereby issues regulations to govern the 

unintentional taking of marine 

mammals incidental to Russian River 

estuary management activities in 

Sonoma County, California, over the 

course of five years (2022–2027). These 

regulations, which allow for the 

issuance of Letters of Authorization 

(LOA) for the incidental take of marine 

mammals during the described activities 

and specified timeframes, prescribe the 

permissible methods of taking and other 

means of effecting the least practicable 

adverse impact on marine mammal 

species or stocks and their habitat, as 

well as requirements pertaining to the 

monitoring and reporting of such taking. 

DATES: Effective from April 21, 2022, 

through April 20, 2027. 

ADDRESSES: A copy of SCWA’s 

application and supporting documents, 

as well as a list of the references cited 

in this document, may be obtained 

online at: www.fisheries.noaa.gov/ 

action/sonoma-county-water-agencysestuary-management-activities-sonomacounty-california-2022. In case of 

problems accessing these documents, 

please call the contact listed below. 

FOR FURTHER INFORMATION CONTACT: Ben 

Laws, Office of Protected Resources, 

NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Purpose and Need for Regulatory 

Action 

We received an application from 

SCWA requesting 5-year regulations and 

authorization to take multiple species of 

marine mammals. This rule establishes 

a framework under the authority of the 

MMPA (16 U.S.C. 1361 et seq.) to allow 

for the authorization of take by Level B 

harassment of marine mammals 

incidental to SCWA’s estuary 

management activities at the mouth of 

the Russian River in Sonoma County, 

CA. Please see ‘‘Background’’ below for 

definitions of harassment. 

Legal Authority for the Proposed Action 

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

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

Secretary of Commerce to allow, upon 

request, the incidental, but not 

intentional taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region for up to five years 

if, after notice and public comment, the 

agency makes certain findings and 

issues regulations that set forth 

permissible methods of taking pursuant 

to that activity and other means of 

effecting the ‘‘least practicable adverse 

impact’’ on the affected species or 

stocks and their habitat (see the 

discussion below in the Mitigation 

section), as well as monitoring and 

reporting requirements. Section 

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

implementing regulations at 50 CFR part 

216, subpart I provide the legal basis for 

issuing this rule containing five-year 

regulations, and for any subsequent 

LOAs. As directed by this legal 

authority, this rule contains mitigation, 

monitoring, and reporting requirements. 

Summary of Major Provisions Within 

the Regulations 

Following is a summary of the major 

provisions of this rule regarding 

SCWA’s estuary management activities. 

These measures include: 

• 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 


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of all applicable MMPA statutory terms 

cited above are included in the relevant 

sections below. 

Summary of Request 

On September 2, 2021, we received an 

adequate and complete request from 

SCWA for authorization to take marine 

mammals incidental to estuary 

management activities. SCWA provided 

a final version of the application 

incorporating minor corrections on 

September 22, 2021. On September 29, 

2021 (86 FR 53950), we published a 

notice of receipt of SCWA’s application 

in the Federal Register, requesting 

comments and information related to 

the request for 30 days. We received one 

supportive comment from a private 

citizen. We published a notice of 

proposed rulemaking in the Federal 

Register on January 21, 2022 (87 FR 

3262) and requested comments and 

information from the public. Please see 

Comments and Responses, below. 

SCWA manages the naturally-formed 

barrier beach at the mouth of the 

Russian River in order to minimize 

potential for flooding adjacent to the 

estuary and to enhance habitat for 

juvenile salmonids, as well as to 

conduct biological and physical 

monitoring of the barrier beach and 

estuary. Flood control-related breaching 

of the barrier beach at the mouth of the 

river may include artificial breaches, as 

well as construction and maintenance of 

a lagoon outlet channel. The latter 

activity, an alternative management 

technique conducted to mitigate 

impacts of flood control on rearing 

habitat for Endangered Species Act 

(ESA)-listed salmonids, occurs only 

from May 15 through October 15 

(hereafter, the ‘‘lagoon management 

period’’). Artificial breaching and 

monitoring activities may occur at any 

time during the period of validity of the 

regulations. The regulations are valid for 

5 years, from April 21, 2022, through 

April 20, 2027. 

Breaching of the naturally-formed 

barrier beach at the mouth of the 

Russian River requires the use of heavy 

equipment (e.g., bulldozer, excavator) 

and increased human presence, and 

monitoring in the estuary requires the 

use of small boats. As a result, 

pinnipeds hauled out on the beach or at 

peripheral haul-outs in the estuary may 

exhibit behavioral responses that 

indicate incidental take by Level B 

harassment under the MMPA. Species 

known from the haul-out at the mouth 

of the Russian River or from peripheral 

haul-outs, and therefore anticipated to 

be taken incidental to the specified 

activity, include the harbor seal (Phoca 

vitulina), California sea lion (Zalophus 

californianus), and northern elephant 

seal (Mirounga angustirostris). 

These regulations are the second 

consecutive five-year incidental take 

regulations issued in response to a 

petition from SCWA, following the 

previous ITR (2017–2022) (82 FR 13765; 

March 15, 2017). Prior to issuance of 

that initial ITR, NMFS issued seven 

consecutive incidental harassment 

authorizations (IHA) to SCWA for 

incidental take associated with the same 

ongoing activities, between 2010–2016. 

Description of the Specified Activity 

Overview 

The action involves management of 

the estuary to prevent flooding while 

preventing adverse modification to 

critical habitat for ESA-listed salmonids. 

During the lagoon management period, 

this involves construction and 

maintenance of a lagoon outlet channel 

that would facilitate formation of a 

perched lagoon. A perched lagoon, 

which is an estuary closed to tidal 

influence in which water surface 

elevation is above mean high tide, 

would reduce flooding while 

maintaining beneficial conditions for 

juvenile salmonids. Additional breaches 

of the barrier beach may be conducted 

for the sole purpose of reducing flood 

risk. Additional detail was provided in 

the notice of proposed rulemaking (87 

FR 3262; January 21, 2022), as well as 

in Table 2 of this notice. There have 

been no changes to the specified 

activity, and full discussion is not 

repeated here. 

Dates and Duration 

The specified activity may occur at 

any time during the five-year period of 

validity for these regulations (2022– 

2027), although construction and 

maintenance of a lagoon outlet channel 

will occur only during the lagoon 

management period. In addition, there 

are certain restrictions placed on SCWA 

during the harbor seal pupping season. 

These, as well as periodicity and 

frequency of the specified activities, are 

described in further detail in the notice 

of proposed rulemaking. 

Specified Geographical Region 

The estuary is located about 97 

kilometers (km) (60 miles (mi)) 

northwest of San Francisco in Sonoma 

County, near Jenner, California (see 

Figure 1 of SCWA’s application). The 

Russian River watershed encompasses 

3,847 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). 

Comments and Responses 

We published a notice of proposed 

rulemaking in the Federal Register on 

January 21, 2022 (87 FR 3262) and 

requested comments and information 

from the public. During the 30-day 

comment period, we received comments 

from 4 private citizens. Of these, one 

comment expressed general opposition 

and two expressed general support. The 

remaining comments and our responses 

are provided here, and the comments 

are available online at: 

www.regulations.gov. 

Comment: The commenter expresses 

general opposition on the basis that the 

intended beneficial effects of the lagoon 

management activities on salmonid 

populations are uncertain, whereas the 

deleterious impacts of the activities on 

the affected marine mammals are 

guaranteed. The commenter goes on to 

describe the importance of marine 

mammals to the ecosystem as a whole 

and asserts that the specified activity 

would permanently alter the ecosystem, 

recommending that alternative options 

to the specified activity be considered. 

The commenter also poses several 

questions related to the specified 

activity, e.g., whether there are 

preferable alternatives to benefit 

salmonids. These questions are not 

relevant to NMFS’ action under the 

MMPA and are outside the scope of 

NMFS’ authority here. 

Response: As described in the notice 

of proposed rulemaking, SCWA is 

required to conduct lagoon management 

activities as a result of a 2008 

Endangered Species Act Biological 

Opinion for Water Supply, Flood 

Control Operations, and Channel 

Maintenance in the Russian River 

watershed. In addition, SCWA conducts 

flood control activities outside the 

lagoon management period. Regardless, 

the MMPA mandates that incidental 

take of small numbers of marine 

mammals be authorized when, among 

other things, a finding is made that the 

effects of the taking represent no greater 

than a negligible impact on the affected 

marine mammal species or stocks. 

NMFS has made the necessary findings 

and, accordingly, issued the regulations 

and associated take authorization 

requested by SCWA. In addition, NMFS 

has appropriately considered the effects 

of the specified activity on marine 

mammal habitat. It is outside the scope 

of NMFS’ responsibility under the 

MMPA to consider unspecified 


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alternatives to SCWA’s specified 

activity. 

Comment: The commenter questions 

the adequacy of SCWA’s monitoring 

plan, with specific reference to SCWA’s 

ability to detect changing occurrence 

patterns or issues related to impacts to 

pups, and to SCWA’s ability to monitor 

for species for which take is not 

authorized. 

Response: SCWA has successfully 

implemented a robust monitoring 

program at the barrier beach, within the 

estuary, and at peripheral areas for over 

10 years, as described in annual 

monitoring reports available online. The 

current plan was determined sufficient 

by NMFS and described in detail in the 

notice of proposed rulemaking, and was 

provided for public review online. The 

commenter offers neither analysis to 

support concerns regarding the plan’s 

efficacy nor specific recommendations. 

Comment: The commenter states that 

‘‘. . . sonomawater.org considers [fur 

seals] to be abundant near the Russian 

River Estuary,’’ asking what the affects 

to this species would be. The 

commenter does not provide a more 

specific reference for this alleged 

statement. 

Response: Available scientific 

evidence does not support the idea that 

fur seals are ‘‘abundant’’ near the 

estuary, and no species of fur seal is 

expected to be impacted by the 

specified activity. 

Description of Marine Mammals in the 

Area of the Specified Activity 

Harbor seals are the most common 

species inhabiting the haul-out at the 

mouth of the Russian River (Jenner 

haul-out) and fine-scale local abundance 

data for harbor seals have been recorded 

extensively since 1972. California sea 

lions and northern elephant seals have 

also been observed infrequently in the 

project area. In addition to the primary 

Jenner haul-out, there are eight 

peripheral haul-outs nearby (see Figure 

1 of SCWA’s application). These include 

North Jenner and Odin Cove to the 

north; Pocked Rock, Kabemali, and Rock 

Point to the south; and Penny Logs, 

Patty’s Rock, and Chalanchawi 

upstream within the estuary. Additional 

detail regarding the affected species was 

provided in the notice of proposed 

rulemaking (87 FR 3262; January 21, 

2022). No new information is available, 

and full discussion is not repeated here. 

Potential Effects of the Specified 

Activity on Marine Mammals and Their 

Habitat 

This section in the notice of proposed 

rulemaking (87 FR 3262; January 21, 

2022) included a summary and 

discussion of the ways that components 

of the specified activity may impact 

marine mammals and their habitat, 

which is not repeated here. Please refer 

to that document for additional 

information. The Estimated Take section 

later in this document will include a 

quantitative analysis of the number of 

incidents of take expected to occur 

incidental to this activity. The 

Negligible Impact Analysis and 

Determination section will include an 

analysis of how this specific activity 

will impact marine mammals and will 

consider the content of this section, the 

Estimated Take section, and the 

Mitigation section, to draw conclusions 

regarding the likely impacts of these 

activities on the reproductive success or 

survivorship of individuals and from 

that on the affected marine mammal 

populations or stocks. 

Estimated Take 

This section provides an estimate of 

the number of incidental takes 

authorized under the rule, which will 

inform both NMFS’ consideration of 

whether the number of takes is ‘‘small’’ 

and the negligible impact 

determination. 

Except with respect to certain 

activities not pertinent here, section 

3(18) of the MMPA defines 

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

torment, or annoyance which (i) has the 

potential to injure a marine mammal or 

marine mammal stock in the wild (Level 

A harassment); or (ii) has the potential 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, 

including, but not limited to, migration, 

breathing, nursing, breeding, feeding, or 

sheltering (Level B harassment). 

SCWA has requested, and NMFS has 

authorized, take of harbor seals, 

California sea lions, and northern 

elephant seals, by Level B harassment 

only, incidental to estuary management 

activities. These activities, involving 

increased human presence and the use 

of heavy equipment and support 

vehicles, are expected to harass 

pinnipeds present at the haul-out 

through disturbance only. In addition, 

monitoring activities prescribed in the 

BiOp may harass additional animals at 

the Jenner haul-out and at the three 

haul-outs located in the estuary (Penny 

Logs, Patty’s Rock, and Chalanchawi). 

Estimates of the number of harbor seals 

that may be harassed by the 

management activities are based upon 

the number of potential take events 

associated with lagoon outlet channel 

and artificial breaching activities (Table 

2) and the average number of harbor 

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

1). Table 2 details the total number of 

estimated takes for harbor seals. 

Events associated with lagoon outlet 

channel management would occur only 

during the lagoon management period 

and are split into two categories: (1) 

Initial channel implementation, which 

would likely occur between May and 

September; and (2) maintenance and 

monitoring of the outlet channel, which 

would continue until October 15. In 

addition, it is possible that the initial 

outlet channel could close through 

natural processes, requiring additional 

channel implementation events. Based 

on past experience, SCWA estimates 

that a maximum of three outlet channel 

implementation events could be 

required, with each event lasting up to 

two days. Outlet channel 

implementation events would only 

occur when the bar is closed. Therefore, 

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

take (Table 1). Construction of the outlet 

channel is designed to produce a 

perched outflow, resulting in conditions 

that more closely resemble bar-closed 

than bar-open with regard to pinniped 

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

is appropriate for estimating take during 

all lagoon management period 

maintenance and monitoring activity. 

As dates of outlet channel 

implementation cannot be known in 

advance, the highest daily average of 

seals per month during the lagoon 

management period—the May average 

for 2010–20—is used in estimating take. 

For maintenance and monitoring 

activities associated with the lagoon 

outlet channel, which would occur on a 

weekly basis following implementation 

of the outlet channel, the average 

number of harbor seals for each month 

during bar-closed conditions was used. 

Artificial breaching activities would 

also occur during bar-closed conditions, 

and the average number of harbor seals 

for each month during bar-closed 

conditions was used (Table 1). The 

number of estimated artificial breaching 

events is informed by experience. For 

those months with more frequent 

historical bar closure events, we assume 

that two such events could occur in any 

given year. For other months, we 

assume that only one such event would 

occur in a given year. The average total 

number of events from 2000–2020 is 5 

per year, meaning that the estimated 

take numbers for artificial breaching are 

conservative. Please see Table 1 in 

SCWA’s application for more 

information. 

For monthly topographic surveys on 

the barrier beach, potential incidental 

take of harbor seals is typically 


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calculated as one hundred percent of 

the seals expected to be encountered. 

The exception is during the month of 

April, when surveyors would avoid 

seals to reduce harassment of pups and/ 

or mothers with neonates. For the 

monthly topographic survey during 

April, surveyors would not approach or 

retreat slowly away from the haul-out 

when neonates are present, typically 

resulting in no disturbance. For that 

survey, the assumption is therefore that 

only ten percent of seals present would 

be harassed. The number of seals 

expected to be encountered is based on 

the overall average monthly number of 

seals hauled out as recorded during 

baseline surveys conducted by SCWA in 

2010–20 (Table 1). 

TABLE 1—AVERAGE NUMBER OF HARBOR SEALS OBSERVED BY MONTH AND RIVER MOUTH CONDITION, 2010–2020 

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 take 

authorization for these two species is 

likely a precautionary overestimate. 

TABLE 2—ESTIMATED NUMBER OF HARBOR SEAL TAKES RESULTING FROM RUSSIAN RIVER ESTUARY MANAGEMENT

ACTIVITIES

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. 

Maintenance and Monitoring: Maintenance: Maintenance: 1,287. 

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

June: 113 ........................................................... June–Sept: 4/month 

July: 105 ............................................................ Oct: 1 

Aug: 44 

Sept: 24 

Oct: 25 

Monitoring: Monitoring: 597. 

June–Sept: 2/month 

Oct: 1 

Total: 2,592. 

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

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

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

Apr: 159 ............................................................. ........................................................................... Apr: 16 g. 

May: 149 ............................................................ ........................................................................... May: 298. 


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TABLE 2—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 

1 survey/month 

Jun: 178 ............................................................. ........................................................................... Jun: 356. 

Jul: 227 .............................................................. ........................................................................... Jul: 454. 

Aug: 100 ............................................................ ........................................................................... Aug: 200. 

Sep: 49 .............................................................. ........................................................................... Sep: 98. 

Oct: 38 ............................................................... ........................................................................... Oct: 76. 

Nov: 62 .............................................................. ........................................................................... Nov: 124. 

Dec: 79 .............................................................. ........................................................................... Dec: 158. 

Total: 2,167. 

Biological and Physical Habitat Monitoring in the Estuary 

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

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

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 1. 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 regulations, we 

have authorized through Letter of 

Authorization a total of 27,585 incidents 

of take for harbor seals and 170 such 

incidents each for the California sea lion 

and northern elephant seal. 

Mitigation 

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

MMPA, NMFS must set forth the 

permissible methods of taking pursuant 

to such activity, and other means of 

effecting the least practicable adverse 

impact on such species or stock and its 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of such species or stock for 

taking for certain subsistence uses 

(‘‘least practicable adverse impact’’). 

NMFS does not have a regulatory 

definition for ‘‘least practicable adverse 

impact.’’ However, NMFS’ 

implementing regulations require 

applicants for incidental take 

authorizations to include information 

about the availability and feasibility 

(economic and technological) of 

equipment, methods, and manner of 

conducting such activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, we 

carefully consider two primary factors: 

(1) The manner in which, and the 

degree to which, implementation of the 

measure(s) is expected to reduce 

impacts to marine mammal species or 

stocks, their habitat, and their 

availability for subsistence uses. This 

analysis will consider such things as the 

nature of the potential adverse impact 

(such as likelihood, scope, and range), 

the likelihood that the measure will be 

effective if implemented, and the 

likelihood of successful 

implementation. 

(2) The practicability of the measure 

for applicant implementation. 

Practicability of implementation may 

consider such things as cost, impact on 

operations, personnel safety, and 

practicality of implementation. 

SCWA will continue the following 

mitigation measures, as implemented 

during the previous ITAs, designed to 

minimize impact to affected species and 

stocks: 

• 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 will 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. 


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• 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 

planned mitigation measures and 

considered a range of other measures in 

the context of ensuring that we 

prescribed the means of effecting the 

least practicable adverse impact on the 

affected marine mammal species and 

stocks and their habitat. Based on our 

evaluation of these measures, we have 

determined that the mitigation measures 

provide the means of effecting the least 

practicable adverse impact on marine 

mammal species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of such species or stock for 

subsistence uses. 

Monitoring and Reporting 

In order to issue an LOA for an 

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

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of the 

authorized taking. NMFS’s MMPA 

implementing regulations further 

describe the information that an 

applicant should provide when 

requesting an authorization (50 CFR 

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

accomplishing the necessary monitoring 

and reporting that will result in 

increased knowledge of the species and 

the level of taking or impacts on 

populations of marine mammals. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• 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 has been 

successfully implemented (in slightly 

different form from the current plan) by 

SCWA under previous ITAs. The 

purpose of this monitoring plan, which 

is carried out collaboratively with the 

Stewards of the Coasts and Redwoods 

(Stewards) organization, is to detect the 

response of pinnipeds to estuary 

management activities at the Russian 

River estuary. SCWA will continue to 

collect data on annual abundance of 

harbor seals at the Jenner haul-out to 

monitor trends in population size and 

annual pup production. Observations of 

seal behavior will be recorded and 

reported to monitor any impacts 

resulting from estuary management and 

monitoring activities. 

Proposed Monitoring Measures 

Baseline Monitoring—Baseline data 

on conditions associated with seal 

presence at the Jenner haul-out would 

be collected each year from March 15 

through October 15. Generally, 

monitoring associated with 

implementation and maintenance of the 

lagoon outlet channel would occur 

between May 15 and October 15. 

Monitoring of artificial breaching 

activities would occur with each event, 

generally outside the lagoon 

management period. Should the mouth 

remain open during the lagoon 

management period, monitoring of the 

Jenner haul-out would continue as 

described below. 

Baseline monitoring will occur at the 

Jenner overlook from March 15 to 

October 15. This schedule would 

capture the pupping and molting 

seasons, and extend to the end of the 

beach management period, when 

management activities are more likely to 

occur. Surveys would be conducted 

twice monthly, except for the pupping 

season (April–May) when surveys 

would be conducted weekly in order to 

record the presence of neonate harbor 

seals. The haul-out will be monitored 

for 4 hours, scheduled for any 

consecutive block between the hours of 

0800 and 1600. An effort will be made 

to avoid periods of high tide when 

scheduling baseline surveys. 

All seals hauled out on the beach will 

be counted every 30 minutes from the 

overlook on the bluff along Highway 1 

adjacent to the haul-out using a high 

powered spotting scope. Monitoring 

may conclude for the day if weather 

conditions affect visibility (e.g., heavy 

fog in the afternoon). Depending on how 

the sandbar is formed, seals may haul 

out in multiple groups at the mouth. At 

each thirty minute count, the observer 

indicates where groups of seals are 

hauled out on the sandbar and provides 

a total count for each group. When 

possible, adults and pups will be 

counted separately. The observer will 


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provide a sketch of where the seals are 

hauled out on the back of the data sheet. 

In addition to the count data, 

disturbances of the haul-out will be 

recorded. The methods for recording 

disturbances would follow a three-point 

scale adopted by NMFS that represents 

an increasing seal response to the 

disturbance (Table 3). For each 

disturbance event the disturbance 

source and seal response will be 

recorded and tallied. Disturbance events 

corresponding with Levels 2–3 are 

considered to be harassment. Weather 

conditions will also be recorded at the 

beginning of each survey. 

TABLE 3—SEAL RESPONSE TO DISTURBANCE

Level Type of response Definition 

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

head towards the disturbance, craning head and neck while holding the body rigid in a ushaped position, changing from a lying to a sitting position, or brief movement of less than 

twice the animal’s body length. 

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

twice the animal’s body length to longer retreats over the beach, or if already moving a change 

of direction of greater than 90 degrees. 

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

Estuary Management Event 

Monitoring, Lagoon Outlet Channel— 

Should the mouth close during the 

lagoon management period, SCWA 

would construct a lagoon outlet channel 

as required by the BiOp. Activities 

associated with the initial construction 

of the outlet channel, as well as the 

maintenance of the channel that may be 

required, would be monitored for 

disturbances to the seals at the Jenner 

haul-out. 

A 1-day pre-outlet channel survey 

would be made within 1 to 3 days prior 

to constructing the outlet channel. The 

haul-out would be monitored on the day 

the outlet channel is constructed and 

daily for up to 2 days during channel 

excavation activities. Monitoring would 

also occur on each day that the outlet 

channel is maintained using heavy 

equipment for the duration of the lagoon 

management period. 

Monitoring of outlet channel 

maintenance would correspond with the 

monitoring described under the 

‘‘Baseline Monitoring’’ section above. 

Methods would follow the count and 

disturbance monitoring protocols 

described in the ‘‘Baseline Monitoring’’ 

section. 

Estuary Management Event 

Monitoring, Artificial Breaching 

Events—In accordance with the BiOp, 

SCWA may artificially breach the 

barrier beach outside of the summer 

lagoon management period, and may 

conduct a maximum of two such 

breachings during the lagoon 

management period, when estuary water 

surface elevations rise above seven feet. 

In that case, NMFS may be consulted 

regarding potential scheduling of an 

artificial breaching event to open the 

barrier beach and reduce flooding risk. 

Pinniped response to artificial 

breaching will be monitored at each 

such event during the period of validity 

of these proposed regulations. Methods 

would follow the census and 

disturbance monitoring protocols 

described in the ‘‘Baseline Monitoring’’ 

section, which were also used for the 

1996 to 2000 monitoring events and 

since 2009. The exception, as for lagoon 

management events, is that duration of 

monitoring is dependent upon duration 

of the event. On the day of the 

management event, pinniped 

monitoring begins at least one hour 

prior to the crew and equipment 

accessing the beach work area and 

continues through the duration of the 

event, until at least one hour after the 

crew and equipment leave the beach. 

For all counts, the following 

information would be recorded in 30- 

minute intervals: (1) Pinniped counts, 

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

and duration of any disturbance; (4) 

estimated distances between source of 

disturbance and pinnipeds; (5) weather 

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

and (5) tide levels and estuary water 

surface elevation. 

Monitoring During Pupping Season— 

The pupping season is defined as March 

15 to June 30. Baseline, lagoon outlet 

channel, and artificial breaching 

monitoring during the pupping season 

will include records of neonate (pups 

less than one week old) observations. 

Characteristics of a neonate pup 

include: Body weight less than 15 kg; 

thin for their body length; an umbilicus 

or natal pelage present; wrinkled skin; 

and awkward or jerky movements on 

land. SCWA will coordinate with the 

Seal Watch monitoring program to 

determine if pups less than one week 

old are on the beach prior to a water 

level management event. 

If, during monitoring, observers sight 

any pup that might be abandoned, 

SCWA would contact the NMFS 

stranding response network 

immediately and also report the 

incident to NMFS’ West Coast Regional 

Office and Office of Protected Resources 

within 48 hours. Observers will not 

approach or move the pup. Potential 

indications that a pup may be 

abandoned are no observed contact with 

adult seals, no movement of the pup, 

and the pup’s attempts to nurse are 

rebuffed. 

Staffing—Monitoring would be 

conducted by qualified individuals. 

Generally, these individuals would 

include professional biologists 

employed by SCWA or volunteers 

trained by the Stewards and SCWA. All 

volunteer monitors would be required to 

attend a classroom-style training and on 

site mentoring by an experienced 

observer. Training would cover the 

MMPA and conditions of the LOA, 

SCWA’s Pinniped Monitoring Program, 

pinniped species identification, age 

class identification (including a specific 

discussion regarding neonates), 

recording of count and disturbance 

observations (including completion of 

datasheets), and use of equipment. 

Pinniped identification would include 

harbor seal, California sea lion, and 

northern elephant seal, as well as other 

pinniped species with potential to occur 

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

Guadalupe fur seals, Steller sea lions). 

Generally, volunteers would collect 

baseline data on Jenner haul-out use 

during the bi-weekly monitoring events. 

A schedule for this monitoring would be 

established with Stewards once 

volunteers are available for the 

monitoring effort. SCWA staff would 

monitor lagoon outlet channel 

excavation, maintenance activities, 

artificial breaching events, and 

biological or physical monitoring 

activities at the Jenner haul-out. 

Reporting 

SCWA is required to submit an 

annual report on all activities and 


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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 

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 action likely to 

result in long-term impacts such as 

permanent abandonment of the haulout. 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 haulout 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 


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continue to implement the previously 

described mitigation measures. These 

are designed to reduce the possibility of 

startling pinnipeds, by gradually 

apprising them of the presence of 

humans and equipment on the beach, 

and to reduce the possibility of impacts 

to pups by eliminating or altering 

management activities on the beach 

when pups are present and by setting 

limits on the frequency and duration of 

events during pupping season. During 

the past 20 years of flood control 

management, implementation of similar 

mitigation measures has resulted in no 

known stampede events and no known 

injury, serious injury, or mortality. Over 

the course of that time period, 

management events have generally been 

infrequent and of limited duration. 

No pinniped stocks for which 

incidental take authorization is 

proposed are listed as threatened or 

endangered under the ESA or 

determined to be strategic or depleted 

under the MMPA. Existing data suggest 

that harbor seal populations have 

reached carrying capacity; populations 

of California sea lions and northern 

elephant seals in California are also 

considered healthy. 

In summary, and based on extensive 

monitoring data, we believe that 

impacts to hauled-out pinnipeds during 

estuary management activities would be 

behavioral harassment of limited 

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

limited intensity (i.e., temporary 

flushing at most). Stampeding, and 

therefore injury or mortality, is not 

expected—nor been documented—in 

the years since appropriate protocols 

were established (see Mitigation for 

more details). Further, the continued, 

and increasingly heavy (see figures in 

SCWA documents), use of the haul-out 

despite decades of breaching events 

indicates that abandonment of the haulout is unlikely. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

proposed monitoring and mitigation 

measures, we find that the total marine 

mammal take from SCWA’s 

construction activities will have a 

negligible impact on the affected marine 

mammal species or stocks. 

Small Numbers 

As noted above, only small numbers 

of incidental take may be authorized 

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

for specified activities other than 

military readiness activities. The MMPA 

does not define small numbers and so, 

in practice, where estimated numbers 

are available, NMFS compares the 

number of individuals taken to the most 

appropriate estimation of abundance of 

the relevant species or stock in our 

determination of whether an 

authorization is limited to small 

numbers of marine mammals. When the 

predicted number of individuals to be 

taken is fewer than one third of the 

species or stock abundance, the take is 

considered to be of small numbers. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

The annual amount of take NMFS 

proposes to authorize is below one-third 

of the estimated stock abundance for all 

species (see Table 2). However, this 

represents an overestimate of the 

number of individuals harassed 

annually over the duration of the 

proposed regulations, because these 

totals represent much smaller numbers 

of individuals that may be harassed 

multiple times. Based on the analysis 

contained herein of the proposed 

activity (including the proposed 

mitigation and monitoring measures) 

and the anticipated take of marine 

mammals, NMFS finds that small 

numbers of marine mammals will be 

taken relative to the population size of 

the affected species or stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

There are no relevant subsistence uses 

of marine mammals implicated by the 

specified activity. Therefore, we have 

determined that the total taking of 

affected species or stocks would not 

have an unmitigable adverse impact on 

the availability of such species or stocks 

for taking for subsistence purposes. 

Adaptive Management 

The regulations governing the take of 

marine mammals incidental to SCWA 

estuary management activities contain 

an adaptive management component. 

The reporting requirements associated 

with this rule are designed to provide 

NMFS with monitoring data from the 

previous year to allow consideration of 

whether any changes are appropriate. 

The use of adaptive management allows 

NMFS to consider new information 

from different sources to determine 

(with input from SCWA regarding 

practicability) on an annual or biennial 

basis if mitigation or monitoring 

measures should be modified (including 

additions or deletions). Mitigation 

measures could be modified if new data 

suggests that such modifications would 

have a reasonable likelihood of reducing 

adverse effects to marine mammals and 

if the measures are practicable. 

SCWA’s monitoring program (see 

Monitoring and Reporting) will be 

managed adaptively. Changes to the 

monitoring program may be adopted if 

they are reasonably likely to better 

accomplish the MMPA monitoring goals 

described previously or may better 

answer the specific questions associated 

with SCWA’s monitoring plan. 

The following are some of the 

possible sources of applicable data to be 

considered through the adaptive 

management process: (1) Results from 

monitoring reports, as required by 

MMPA authorizations; (2) results from 

general marine mammal and sound 

research; and (3) any information which 

reveals that marine mammals may have 

been taken in a manner, extent, or 

number not authorized by these 

regulations or subsequent LOAs. 

National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

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

NOAA Administrative Order (NAO) 

216–6A, NMFS must evaluate our 

proposed action (i.e., the promulgation 

of regulations and subsequent issuance 

of incidental take authorization) and 

alternatives with respect to potential 

impacts on the human environment. 

This action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 of the 

Companion Manual for NAO 216–6A, 

which do not individually or 

cumulatively have the potential for 

significant impacts on the quality of the 

human environment and for which we 

have not identified any extraordinary 

circumstances that would preclude this 

categorical exclusion. Accordingly, 

NMFS has determined that the action 

qualifies to be categorically excluded 

from further NEPA review. 

Endangered Species Act (ESA) 

No marine mammal species listed 

under the ESA are expected to be 

affected by these activities. Therefore, 

we have determined that section 7 

consultation under the ESA is not 

required. 

Classification 

Pursuant to the procedures 

established to implement Executive 

Order 12866, the Office of Management 

and Budget has determined that this 

rule is not significant. 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (RFA), the 

Chief Counsel for Regulation of the 

Department of Commerce certified to 

the Chief Counsel for Advocacy of the 

Small Business Administration at the 

proposed rule stage that this action will 


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23120 Federal Register / Vol. 87, No. 75 / Tuesday, April 19, 2022 / Rules and Regulations 

not have a significant economic impact 

on a substantial number of small 

entities. SCWA is the sole entity that 

would be subject to the requirements in 

these regulations, and the Sonoma 

County Water Agency is not a small 

governmental jurisdiction, small 

organization, or small business, as 

defined by the RFA. Under the RFA, 

governmental jurisdictions are 

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

governments of cities, counties, towns, 

townships, villages, school districts, or 

special districts, with a population of 

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

census, Sonoma County, CA had a 

population of nearly 500,000 people. No 

comments were received regarding this 

certification or on the economic impacts 

of the rule more generally. As a result, 

a regulatory flexibility analysis is not 

required and none has been prepared. 

Notwithstanding any other provision 

of law, no person is required to respond 

to nor shall a person be subject to a 

penalty for failure to comply with a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act (PRA) unless that 

collection of information displays a 

currently valid OMB control number. 

These requirements have been approved 

by OMB under control number 0648– 

0151 and include applications for 

regulations, subsequent LOAs, and 

reports. 

Waiver of Delay in Effective Date 

NMFS has determined that there is 

good cause under the Administrative 

Procedure Act (5 U.S.C. 553(d)(3)) to 

waive the 30-day delay in the effective 

date of this final rule. No individual or 

entity other than the SCWA is affected 

by the provisions of these regulations. 

The SCWA has requested that this final 

rule take effect on April 21, 2022, to 

accommodate the SCWA’s LOA expiring 

on April 20, 2022, so as to not cause a 

disruption in estuary management 

activities. The waiver of the 30-day 

delay of the effective date of the final 

rule will ensure that the MMPA final 

rule and LOA are in place by the time 

the previous authorization expires. Any 

delay in finalizing the rule would result 

in either: (1) A suspension of planned 

estuary management activities, which 

could result in flood control issues and/ 

or SCWA’s failure to comply with the 

mandatory lagoon management 

activities required under the 2008 BiOp; 

or (2) the SCWA’s procedural noncompliance with the MMPA (should the 

SCWA conduct the specified activities 

without an LOA), thereby resulting in 

the potential for unauthorized takes of 

marine mammals. Moreover, the SCWA 

is ready to implement the regulations 

immediately and requested the waiver. 

For these reasons, NMFS finds good 

cause to waive the 30-day delay in the 

effective date. In addition, the rule 

authorizes incidental take of marine 

mammals that would otherwise be 

prohibited under the statute. Therefore, 

by granting an exception to the SCWA, 

the rule will relieve restrictions under 

the MMPA, which provides a separate 

basis for waiving the 30-day effective 

date for the rule. 

List of Subjects in 50 CFR Part 217 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 

Dated: April 14, 2022. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 217 is amended as follows: 

PART 217—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

■ 1. The authority citation for part 217 

continues to read as follows: 

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

■ 2. Revise subpart A to part 217 to read 

as follows: 

Subpart A—Taking Marine Mammals 

Incidental to Russian River Estuary 

Management Activities 

Sec. 

217.1 Specified activity and specified 

geographical region. 

217.2 Effective dates. 

217.3 Permissible methods of taking. 

217.4 Prohibitions. 

217.5 Mitigation requirements. 

217.6 Requirements for monitoring and 

reporting. 

217.7 Letters of Authorization. 

217.8 Renewals and modifications of 

Letters of Authorization. 

217.9 [Reserved] 

217.10 [Reserved] 

§ 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 

(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 


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Federal Register / Vol. 87, No. 75 / Tuesday, April 19, 2022 / Rules and Regulations 23121 

Protected Resources within 48 hours. 

Observers shall not approach or move 

the pup. 

(b) SCWA crews shall cautiously 

approach the haul-out ahead of heavy 

equipment. 

(c) SCWA staff shall avoid walking or 

driving equipment through the seal 

haul-out. 

(d) Crews on foot shall make an effort 

to be seen by seals from a distance. 

(e) All work shall be completed as 

efficiently as possible and with the 

smallest amount of heavy equipment 

possible. 

(f) Boats operating near river 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, 

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. 


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23122 Federal Register / Vol. 87, No. 75 / Tuesday, April 19, 2022 / Rules and Regulations 

§ 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. 2022–08346 Filed 4–18–22; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 220412–0093] 

RIN 0648–BK40 

List of Fisheries for 2022 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: The National Marine 

Fisheries Service (NMFS) publishes its 

final List of Fisheries (LOF) for 2022, as 

required by the Marine Mammal 

Protection Act (MMPA). The LOF for 

2022 reflects new information on 

interactions between commercial 

fisheries and marine mammals. NMFS 

must classify each commercial fishery 

on the LOF into one of three categories 

under the MMPA based upon the level 

of mortality and serious injury of marine 

mammals that occurs incidental to each 

fishery. The classification of a fishery on 

the LOF determines whether 

participants in that fishery are subject to 

certain provisions of the MMPA, such as 

registration, observer coverage, and take 

reduction plan (TRP) requirements. 

DATES: The effective date of this final 

rule is May 19, 2022. 

ADDRESSES: Chief, Marine Mammal and 

Sea Turtle Conservation Division, Office 

of Protected Resources, NMFS, 1315 

East-West Highway, Silver Spring, MD 

20910. 

FOR FURTHER INFORMATION CONTACT: 

Jaclyn Taylor, Office of Protected 

Resources, 301–427–8402; Allison 

Rosner, Greater Atlantic Region, 978– 

281–9328; Jessica Powell, Southeast 

Region, 727–824–5312; Dan Lawson, 

West Coast Region, 206–526–4740; 

Suzie Teerlink, Alaska Region, 907– 

586–7240; Diana Kramer, Pacific Islands 

Region, 808–725–5167. Individuals who 

use a telecommunications device for the 

hearing impaired may call the Federal 

Information Relay Service at 1–800– 

877–8339 between 8 a.m. and 4 p.m. 

Eastern time, Monday through Friday, 

excluding Federal holidays. 

SUPPLEMENTARY INFORMATION: 

What is the List of Fisheries? 

Section 118 of the MMPA requires 

NMFS to place all U.S. commercial 

fisheries into one of three categories 

based on the level of incidental 

mortality and serious injury of marine 

mammals occurring in each fishery (16 

U.S.C. 1387(c)(1)). The classification of 

a fishery on the LOF determines 

whether participants in that fishery may 

be required to comply with certain 

provisions of the MMPA, such as 

registration, observer coverage, and take 

reduction plan requirements. NMFS 

must reexamine the LOF annually, 

considering new information in the 

Marine Mammal Stock Assessment 

Reports (SARs) and other relevant 

sources, and publish in the Federal 

Register any necessary changes to the 

LOF after notice and opportunity for 

public comment (16 U.S.C. 1387 

(c)(1)(C)). 

How does NMFS determine in which 

category a fishery is placed? 

The definitions for the fishery 

classification criteria can be found in 

the implementing regulations for section 

118 of the MMPA (50 CFR 229.2). The 

criteria are also summarized here. 

Fishery Classification Criteria 

The fishery classification criteria 

consist of a two-tiered, stock-specific 

approach that first addresses the total 

impact of all fisheries on each marine 

mammal stock and then addresses the 

impact of individual fisheries on each 

stock. This approach is based on 

consideration of the rate, in numbers of 

animals per year, of incidental 

mortalities and serious injuries of 

marine mammals due to commercial 

fishing operations relative to the 

potential biological removal (PBR) level 

for each marine mammal stock. The 

MMPA (16 U.S.C. 1362 (20)) defines the 

PBR level as the maximum number of 

animals, not including natural 

mortalities, that may be removed from a 

marine mammal stock while allowing 

that stock to reach or maintain its 

optimum sustainable population. This 


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