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

AGENCY:

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

ACTION:

Notice; Proposed authorization for a small take authorization; request for comments.

SUMMARY:

NMFS has received a request from the U.S. Army Corps of Engineers (ACOE), Portland District for an authorization to take small numbers of Steller sea lions, California sea lions, and Pacific harbor seals, incidental to repair work on the South Jetty at the Mouth of the Columbia River (MCR) in Clatsop County, Oregon. As a result of this request, NMFS is proposing to issue a 1-year incidental take authorization (IHA) to take marine mammals by Level B harassment incidental to this activity. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on ACOE's application and NMFS' proposal to issue an authorization to ACOE to incidentally take, by harassment, small numbers of these species of marine mammals for a period of 1 year.

DATES:

Comments and information must be received no later than February 2, 2007.

ADDRESSES:

Comments on the application should be addressed 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 the contact listed here. The mailbox address for providing e-mail comments is PR1.121306A@noaa.gov. Comments sent via e-mail, including all attachments, must not exceed a 10-megabyte file size. A copy of the application and an Environmental Assessment (EA) prepared by ACOE may be viewed at http://www.nmfs.noaa.gov/pr/permits/incidental.htm , or by writing to this address or by telephoning one of the contacts listed here. Other supporting documents related to this proposed project can be viewed at ACOE's Web page at https://www.nwp.usace.army.mil/issues/jetty/cms/documents.asp .

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Background

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

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

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

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

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

Summary of Request

On October 23, 2006, NMFS received a request from ACOE Portland District for an IHA to take small numbers of Steller sea lions (Eumetopias jubatus), California sea lions (Zalophus californianus), and Pacific harbor seals (Phoca vitulina richardsi), by Level B harassment, incidental to conducting repair work on the MCR South Jetty in Clatsop County, Oregon. The propose of the proposed work is to ensure the continuing function of the South Jetty by repairing critical trunk portions of the jetty. The premise of the jetty repair is to repair the most vulnerable areas of the South Jetty, where the consequences of jetty failure is high and would rapidly and significantly degrade navigation through the MCR. The intent of the proposed project is three-fold: (1) Improve the stability of the foundation (toe) of the jetty as affected by scour. (2) Improve the side slope (above and below water) stability. (3) Improve the dynamic stability of the jetty as affected by wave forces impinging on the jetty.

Interim repairs in 2007 at the MCR South Jetty consist of placing approximately 70,000 tons of stone on the north and south slopes of the jetty. The jetty repair work extends from Station (Sta) 258 to Sta 290 (3,200 linear ft, or 975 linear m) (each station represent 100 linear ft, or 30.5 linear m; Sta 0 being at the farthest landward point of the jetty). The stone size ranges from 10 - 40 tons with an average size of 16 tons. A haul road is required along the top of the jetty for travel of heavy equipment to the areas of repair.

The contractor will rebuild the existing haul road from Sta 183 to Sta 245 (6,200 linear ft, or 1,890 linear m) in the reach of the jetty that is being repaired in 2006. In addition, a new haul road segment will be constructed from Sta 245 to Sta 258 (1,300 linear ft, or 396 linear m) to access the reach of the 2007 jetty repairs, bringing the total haul road length shoreward of actual jetty rehabilitation to about 7,500 ft (2,286 m). Haul road materials may consist of approximately 50,000 tons of small rock material. New haul road construction to Sta 258 is anticipated to begin in April 2007 for duration of about 4 to 6 weeks. Haul road construction and concurrent jetty interim repairs from Sta 258 to the work terminus at Sta 290 (3,200 linear ft, or 975 linear m) will occur from May through October 2007.

A lattice boom crane and an excavator will be used to place stone. Stone placement will occur from the top of the jetty. The crane and excavator will use environmentally-friendly hydraulic fluids. Four off-road dump trucks will be used to haul the rock to the work area on the south jetty. The excavator will be used to construct the initial haul road to access the repair areas with a dozer used to build the haul road over the completed repair areas. The crane, excavator and dozer will be stored on the jetty when not in use. Fueling and maintenance will be accomplished using the Wiggins closed fueling system.

The proposed project is planned to occur from April through October, 2007. The contractor will work 7 days per week, sunrise to sunset depending on weather and wave conditions.

Description of the Marine Mammals Potentially Affected by the Activity

The marine mammals most likely to be found in MCR area are the Eastern U.S. stock of Steller sea lions, California sea lions, and Pacific harbor seals. The Steller sea lion eastern stock is listed as threatened under the Endangered Species Act (ESA) and is designated as “depleted” under MMPA. The California sea lions and harbor seals are not ESA-listed, nor are they depleted. General information of these species can be found in Caretta et al. (2006) and Angliss and Outlaw (2005), which is available at the following URL: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2005.pdf and http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2005.pdf , respectively. Refer to those documents for information on these species. Additional information on these species is presented below.

Steller sea lion

The eastern stock of Steller sea lions breeds on rookeries located in southeast Alaska, British Columbia, Oregon, and California; there are no rookeries located in Washington (Angliss and Outlaw, 2005). While Steller sea lions breed in Oregon, they use the MCR South Jetty solely as a haul out area, not a rookery.

In the vicinity of the proposed project area, Steller sea lions are present all year round, but are more numerous in the winter. The breeding season of Steller sea lions occur from late May to early July, therefore, abundance is typically lowest during this period as many of the adults are at the breeding rookeries (Hodder, 2005). Only non-breeding individuals are found on the jetty during this time, and a greater percentage of juveniles are present. Abundance increases following the breeding season. Minimum population estimate for the eastern U.S. stock of Steller sea lion is 43,728 (Angliss and Outlaw, 2005). Average numbers of Steller sea lion recorded on the MCR South Jetty area from 1995 - 2004 vary from 168 in October to 1,106 in December (Hodder, 2005).

California sea lion

The U.S. stock of California sea lion occurs from northern Washington to southern California. Major rookeries are found in waters of southern California and Baja California, Mexico. Only male California occur at the MCR South Jetty, as post-breeding dispersers from the south (Hodder, 2005). Like Steller sea lions, California sea lions also present in the vicinity of the proposed project area year round, and are also more numerous in winter. The total population size of the U.S. stock of California sea lions is estimated from 244,000 to 237,000 (Carretta et al., 2006). Average numbers of California sea lions recorded on the MCR South Jetty area from 1995 - 2004 vary from 18 in January to 725 in December (Hodder, 2005).

Pacific harbor seal

The Oregon/Washington coastal stock of Pacific harbor seal occurs from northern Washington to southern Oregon and are generally non-migratory. Harbor seals breed and pup throughout their range, including the vicinity of the Columbia River. They use the Columbia River extensively throughout the year but are rarely noted on the MCR South Jetty. An average of 1 - 2 harbor seals were recorded on MCR South Jetty from April to June between 1995 and 2004. No harbor seal have been sighted during the rest of the months (Hodder, 2005).

Potential Effects on Marine Mammals and Their Habitat

ACOE and NMFS have determined that the proposed repair work at MCR South Jetty has the potential to result in behavioral harassment of those Steller sea lions, California sea lions, and Pacific harbor seals that may be present in the project vicinity.

The potential takes of these three marine mammal species will be from noise generated by operation of construction equipment and related activities, and from the presence of trucks, excavators, construction machinery, and personnel in the proximity to the animals.

The anticipated impact upon the sea lions and harbor seals include temporary disturbance and displacement of animals to other parts of the jetty or other nearby haul-outs until work is discontinued. Other haul-outs are available for harbor seals throughout the Columbia River estuary, and for sea lions on other parts of the south jetty, the North Jetty, or rocky headlands in northern Oregon or southern Washington states. Observations in the past have shown that animals that are disturbed into the water did not leave the vicinity, instead, they would move to other parts of the jetty.

It has been observed that Steller sea lions moved into water when approached by a boat within 300 ft (91 m) or less, however, in other occasions there was no change in Steller sea lion behavior when approached within the same distance or less. It is also noted that majority of Steller sea lions use the far end of the jetty, which is broken off from the main stretch of the jetty and formed an island. It is estimated that maximum of 10 percent Steller sea lions at South Jetty will occur within range of disturbance, and none would occur within the range of disturbance during the first month. Therefore, the total number of Steller sea lion that potentially could be taken, calculated from the recorded data of Steller sea lion at South Jetty from 1995 - 2004, would be 204 animals.

California sea lions are known to use areas of the jetty more shoreward than Steller sea lions. It is assumed that all California sea lions and harbor seals hauled out in the vicinity of the proposed project would be taken by Level B harassment. Based on the average number of pinnipeds recorded on the MCR South Jetty between 1995 and 2004 (Hodder, 2005), it is estimated that a total of 336 California sea lions and 4 Pacific harbor seals would be taken by Level B harassment as a result of the proposed jetty repair work.

Repairing the South Jetty by adding more rocks will not reduce the availability or accessibility of habitat for Steller and California sea lions and harbor seals, as rock replacement would occur at the existing jetty footprint. Seals and sea lions use the existing tip of the jetty that is built of concrete blocks, and are easily able to climb up several vertical feet from one block to the next. The MCR South Jetty is not designated as critical habitat for the Steller sea lion under the ESA.

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

Mitigation and Monitoring

As a mitigation measure to reduce potential Level B harassment to marine mammals as a result of the proposed project, NMFS proposes that during land-based rock placement at South Jetty, the contractor vehicles and personnel should avoid direct approach towards pinnipeds that are hauled out as much as possible. If it is absolutely necessary for the contractor to make movements towards pinnipeds, the contractor will approach in a slow and steady manner to reduce the behavioral harassment to the animals as much as possible.

ACOE would monitor marine mammals before, during, and after the proposed South Jetty repair project in the MCR area. Steller and California sea lions and harbor seal in the MCR area would be monitored for 1 week before, during, and 4 and 8 weeks after the proposed construction work. Pinniped species, numbers, behavior, any observed disturbances during the jetty repair construction, and recolonization by pinnipeds of the project area after the construction activities would be noted.

Reporting

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

National Environmental Policy Act (NEPA)

In January, 2005, ACOE prepared the Final Environmental Assessment Repair of North and South Jetties Mouth of the Columbia River, Clatsop County, Oregon and Pacific County, Washington (EA) and issued a Finding of No Significant Impact on January 24, 2005. NMFS is reviewing this EA and will either adopt it or prepare its own NEPA document before making a determination on the issuance of an IHA. A copy of ACOE's EA for this activity is available upon written request (see ADDRESSES) or at http://www.nmfs.noaa.gov/pr/permits/incidental.htm .

ESA

The NMFS Northwest Regional Office (NWRO) prepared a Biological Opinion (BO) upon conducting a section 7 consultation with the ACOE in July 2004. In the BO, NMFS concluded that the proposed action is not likely to jeopardize the continued existence of thirteen species of ESA-listed salmonid fishes, Snake River (SR) fall-run Chinook salmon, SR spring/summer-run Chinook salmon, SR sockeye salmon, SR steelhead, Lower Columbia River (LCR) Chinook salmon, Upper Columbia River (UCR) spring-run Chinook salmon, Upper Willamette River (UMR) Chinook salmon, Columbia River chum salmon, Middle Columbia River steelhead, LCR steelhead, UWR steelhead, UCR steelhead, and LCR coho salmon, or destroy or adversely modify designated critical habitat.

On April 2, 2004, NMFS NWRO issued a “may affect, but not likely to adversely affect” determination for the effects to marine mammals and sea turtles listed under the ESA from the rehabilitation of the north and south jetties at the MCR area to the ACOE. On October 18, 2005, ACOE contacted NMFS to discuss new information regarding Steller sea lions hauling out on the South Jetty closer to the work site than previously observed. The ACOE requested NMFS' concurrence with a determination of may affect, but not likely to adversely affect Steller sea lions with regard to this new information. After conversations with NMFS concerning this determination, the ACOE initiated formal consultation for the Steller sea lion on November 30, 2005, for carrying out the rehabilitation of the South Jetty at the MCR. On September 27, 2006, NMFS NWRO issued a BO based on the reinitiation of an ESA section 7 consultation on Steller sea lions. In this BO, NMFS concluded that the proposed action is not likely to jeopardize the continued existence of the Eastern U.S. stock of Steller sea lion. The BO also concurred that no Steller sea lion critical habitat exists within the proposed action area.

Preliminary Determinations

For the reasons discussed in this document and in previously identified supporting documents, NMFS has preliminarily determined that the impact of jetty repair construction at the MCR South Jetty should result, at worst, in the Level B harassment of small numbers of Steller sea lions, California sea lions, and Pacific harbor seals that haul-out in the vicinity of the proposed project area. While behavioral modifications, including temporarily vacating the area around the construction site, may be made by these species to avoid the resultant visual and acoustic disturbance, the availability of alternate areas within MCR and haul-out sites has led NMFS to preliminarily determine that this action will have a negligible impact on Steller sea lion, California sea lion, and Pacific harbor seal populations in the area.

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

Proposed Authorization

NMFS proposes to issue an IHA to ACOE for the potential harassment of small numbers of Steller sea lions, California sea lions, and harbor seals incidental to repair construction of at the MCR South Jetty in Clatsop County, Oregon, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. NMFS has preliminarily determined that the proposed activity would result in the harassment of only small numbers of Steller sea lions, California sea lions, and harbor seals, and will have no more than a negligible impact on these marine mammal species and/or stocks.

Information Solicited

NMFS requests interested persons to submit comments, information, and suggestions concerning this request (see ADDRESSES).