Taking of Marine Mammals Incidental to Specified Activities; Central California Seabird Research Operations

AGENCY:

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

ACTION:

Notice of issuance of an incidental harassment authorization.

SUMMARY:

In accordance with provisions of the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to conducting seabird research in central California, have been issued to PRBO Conservation Science (PRBO) for a period of one year.

DATES:

The authorization of the IHA is effective from December 12, 2007, until December 11, 2008.

ADDRESSES:

A copy of the application, IHA, Environmental Assessment (EA), and a list of references used in this document may be obtained by writing to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, or by telephoning one of the contacts listed here (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT:

Shane Guan, Office of Protected Resources, NMFS, (301) 713-2289, ext 137, or Monica DeAngelis, Southwest Regional Office, NMFS, (562) 980-3232.

SUPPLEMENTARY INFORMATION:

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, notice of a proposed authorization is provided to the public for review.

An authorization shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for certain subsistence uses and the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as ”...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:

any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].

Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.

Summary of Request

On December 15, 2006, PRBO submitted an application to NMFS requesting an Incidental Harassment Authorization (IHA) for the possible harassment of small numbers of California sea lions (Zalophus californianus), Pacific harbor seals (Phoca vitulina richardsi), northern elephant seals (Mirounga angustirostris), and Steller sea lions (Eumetopias jubatus) incidental to central California seabird research operations on Southeast Farallon Island, Ano Nuevo Island, and Point Reyes NS. A detailed description of the proposed activity is provided in the July 27, 2007, Federal Register notice (72 FR 41294), therefore, it is not repeated here.

Comments and Responses

A notice of receipt and request for 30-day public comment on the applications and proposed authorizations was published on July 27, 2007 (72 FR 41294). During the 30-day public comment period, NMFS received comments from the Marine Mammal Commission (Commission).

Comment: The Commission recommends that NMFS issue the IHAs subject to the mitigation measures proposed by the applicant. The Commission further recommends that any authorization issued specify that, if a mortality or serious injury of a marine mammal occurs that appears to be related to the research, activities will be suspended while NMFS determines whether steps can be taken to avoid further injuries or mortalities or until such taking can be authorized by regulations promulgated under section 101(a)(5)(A) of the MMPA.

Response: NMFS agrees with the Commission's comments and recommendation that the applicant must institute monitoring and mitigation measures sufficient to afford the potentially affected marine mammal species adequate protection from sources of disturbance, including disturbance of behavior.

NMFS further agrees with the Commission that research activities must be suspended immediately if a dead or injured marine mammal is found in the vicinity of the project area and the death or injury of the animal could be attributable to the applicant's activities. This requirement is a condition in the IHA.

Description of the Marine Mammals Potentially Affected by the Activity

The marine mammals most likely to be found in the proposed seabird research areas are the California sea lions, Pacific harbor seals, Steller sea lions, and northern elephant seals. General information of these species can be found in Caretta et al. (2007), which is available at the following URL: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2006.pdf . Additional information on these species is provided in the July 27, 2007, Federal Register notice (72 FR 41294). Refer to these documents for information on these species.

Potential Effects on Marine Mammals and Their Habitat

The only anticipated impacts would be temporary disturbances caused by the appearance of researchers near the pinnipeds. The potential disturbance might alter pinniped behavior and cause animals to flush from the area. Animals may return to the same site once researchers have left or go to an alternate haul out site, which usually occurs within 30 minutes (Allen et al., 1985). Long term effects of this disturbance are unlikely, as very few breeding animals will be present in the vicinity of the proposed seabird research areas. The proposed seabird research would not result in the physical altering of marine mammal habitat. No marine mammal habitat is expected to be affected by the proposed action. No marine mammal critical habitat is found within the proposed research area.

There is no subsistence harvest of marine mammals in the proposed research area, therefore, there will be no impact of the activity on the availability of the species or stocks of marine mammals for subsistence uses.

Number of Marine Mammals Estimated to Be Taken

It is estimated that approximately 2,422 California sea lions, 500 harbor seals, 273 northern elephant seals, and 14 Steller sea lions could be potentially taken by Level B harassment. This estimate is based on previous research experiences, with the same activities conducted in the proposed research area, and on marine mammal research activities in these areas. These incidental harassment take numbers represent approximately 1 percent of the U.S. stock of California sea lion, 1.5 percent of the California stock of Pacific harbor seal, 0.3 percent of the California breeding stock of northern elephant seal, and 0.03 percent of the eastern U.S. stock of Steller sea lion. All of the potential takes are expected to be Level B behavioral harassment only. No injury or mortality to pinnipeds is expected or requested.

Mitigation, Monitoring, and Reporting

The researchers would take all possible measures to reduce marine mammal disturbance for the activities described above. Researchers would keep their voices hushed and bodies low in the visual presence of pinnipeds. Seabird observations at North Landing on Southeast Farallon Island would be conducted in an observation blind where researchers are shielded from the view of hauled out pinnipeds. Beach landings on Ano Nuevo Island would only occur after any pinnipeds that might be present on the landing beach have entered the water. Researchers accessing seabird nest boxes would crawl slowly if pinnipeds are within view.

Visits to intertidal areas of Southeast Farallon Island during research activities would be coordinated to reduce potential take. All research goals on Ano Nuevo Island would be coordinated to minimize the necessary number of trips to the island. Once on Ano Nuevo Island, researchers would coordinate monitoring schedules so areas near any pinnipeds would be accessed only once per visit.

Researchers would take notes of sea lions and seals observed within the proposed research area during studies. The notes would provide dates, time, tidal height, species, numbers of sea lions and seals present, and any behavior changes. PRBO will submit a final report, including these notes, to NMFS within 90 days after the expiration of the IHA, if it is issued.

National Environmental Policy Act (NEPA)

In July 2007, NMFS prepared a draft EA on the issuance of an IHA to PRBO to take marine mammals by Level B harassment incidental to conducting seabird research in central California. The draft EA was released for public review and comment along with the application and the proposed IHA. All comments are addressed in full in the Comments and Responses section. Subsequently, NMFS finalized the draft EA and on December 4, 2007, issued a Finding of No Significant Impact on the proposed project. No environmental impact statement was prepared.

ESA

A section 7 consultation under the ESA was conducted with NMFS Headquarters Office of Protected Resources' Endangered Species Division. On October 19, 2007, NMFS issued a Biological Opinion and concluded that the issuance of an IHA to PRBO is likely to affect, but not likely to jeopardize the continued existence of Steller sea lions. An incidental take statement is included in the Biological Opinion.

Determinations

For the reasons discussed in this document and in the identified supporting documents, NMFS has determined that the impact of seabird research on Southeast Farallon Island, Ano Nuevo Island, and Point Reyes NS would result, at worst, in the Level B harassment of small numbers of California sea lions, Pacific harbor seals, northern elephant seals, and Steller sea lions hauled out in the vicinity of the proposed research area. While behavioral modifications, including temporarily vacating the area during the survey period, may be made by these species, this action will have a negligible impact on California sea lions, Pacific harbor seals, northern elephant seals, and Steller sea lions.

In addition, no take by Level A harassment (injury) or death is anticipated and harassment takes should be at the lowest level practicable due to incorporation of the mitigation measures described in this document.

Authorization

NMFS has issued an IHA to PRBO for the potential harassment of small numbers of California sea lions, harbor seals, northern elephant seals, and Steller sea lions incidental to conducting of seabird research on Southeast Farallon Island, Ano Nuevo Island, and Point Reyes NS, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.