Environmental statements; availability, etc.: Willamette Falls, OR; preventing California sea lion foraging and predation on salmonids,

[Federal Register: January 2, 1998 (Volume 63, Number 1)]

[Notices]

[Page 55-60]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr02ja98-21]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 120497B]

Marine Mammals; Environmental Assessment on Preventing California Sea Lion Foraging and Predation on Salmonids at the Willamette Falls, Oregon

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

ACTION: Notice of availability and finding of no significant impact.

SUMMARY: NMFS announces the availability of an Environmental Assessment (EA) that examines the

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environmental consequences of preventing California sea lion foraging and predation on salmonids at the Willamette Falls in Oregon. The proposed action consists of non-lethal measures that are authorized under the Marine Mammal Protection Act (MMPA). NMFS has evaluated the environmental consequences of the proposed action and has concluded that it is unlikely to result in any significant impacts on the human environment and, therefore, has made a finding of no significant impact (FONSI).

ADDRESSES: A copy of the final EA may be obtained by writing to William Stelle, Jr., Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115.

FOR FURTHER INFORMATION CONTACT: Joe Scordino (206)526-6143, or Tom Eagle (301)713-2322.

SUPPLEMENTARY INFORMATION: The National Marine Fisheries Service, in cooperation with the Oregon State Department of Fish and Wildlife (ODFW), prepared an EA that examines the environmental consequences of three alternatives for preventing sea lion foraging and predation on returning adult salmonids and outmigrating smolts at Willamette Falls: (1) No action; (2) non-lethal removal of California sea lions (proposed action); and (3) lethal removal of sea lions foraging at the Falls. The proposed action is to implement a program of non-lethal measures to prevent sea lion predation at the Willamette Falls while continuing to monitor the resource conflict at this site. The proposed action is authorized under section 109(h)(1)(C) of the MMPA, which allows the non-lethal removal of nuisance marine mammals by local, state, and Federal officials.

A draft EA was made available for a 30-day public comment period. NMFS published a notice in the Federal Register on March 13, 1997 (62 FR 11845), that announced the availability of the draft EA and requested public comments. Seven public comments were received, and the EA was revised in response to the comments. A summary of the comments received and responses to the comments are given here:

Comment 1: The situation at the Willamette Falls does not warrant lethal removal.

Response: Lethal removal of sea lions at Willamette Falls is not proposed because it has not been authorized under section 120 of the MMPA. Section 120 provides a process for a state to obtain authority for lethal removal, but Oregon has not applied for this authority.

Comment 2: The proposed action does not address all of the potential factors causing depletion of salmonids in the system. One commenter suggested that causes of salmonid population decline should be investigated, and another recommended that NMFS and ODFW evaluate and assess predation in comparison to other factors.

Response: The State is addressing other factors that may be affecting the decline of salmonids in the Willamette River basin; however, the principal cause for decline appears to be the reduced ocean survival. The scope of the EA and the proposed action, which complements State efforts to address other factors affecting salmonids, is limited to addressing the increasing presence of California sea lions foraging at the Falls and the prevention of predation from escalating to a point where it may impact salmonids, especially if the salmonid stocks remain low or decline further.

Comment 3: The proposed action is consistent with general state fish and wildlife authorities.

Response: NMFS agrees.

Comment 4: The EA does not show that predation has caused the decline of the runs or is likely to have caused a negative effect on the run. Commenters noted that the decline of steelhead and spring chinook salmon occurred before sea lions could have had any noticeable effect, and, therefore, actions to reduce sea lion predation are unwarranted. One commenter supported the no-action alternative because sea lions are not the cause of the decline.

Response: NMFS agrees that sea lion predation is not the cause of the decline; however, if action is not taken to address increasing foraging by sea lions, predation may increase to a point where predation is impacting salmonid stocks in the Willamette River, especially if the number of returning adults remains low or declines further.

Comment 5: An Environmental Impact Statement (EIS) should be prepared in order to provide a more comprehensive appraisal of this action.

Response: An EIS is not required for this action because the environmental consequences of non-lethally removing a few sea lions from the Willamette Falls area will not result in any significant impact to the environment.

Comment 6: The removal (lethal or non-lethal) of sea lions could result in increased predation. Commenters were concerned that the removed sea lions will be quickly replaced by other animals. One commenter also was opposing the use of underwater firecrackers or other methods which may inadvertently result in an increase of predation in the long term because these methods have not been shown to have lasting effectiveness in other applications.

Response: Because sea lions are opportunistic predators, predation patterns develop relative to animal presence, prey availability, and vulnerability. Based on observations at the Ballard Locks in Washington, different methods of sea lion removal may be more or less effective in reducing sea lion presence or in reducing the vulnerability of fish to predation, depending upon the number of animals involved and the location or circumstances of the predation. NMFS believes that the proposed action will prevent sea lion foraging and predation on salmonids at the Willamette Falls because the number of sea lions to be removed is still small, the patterns of predation do not appear well established, and the area is geographically remote from where sea lions normally occur; thus, inseason replacement is unlikely. In contrast, the alternative of taking no action to prevent foraging and predation will likely result in escalation of the problem because animals already present will become more effective at catching salmonids at the site, and new animals will learn these effective strategies as they arrive.

Comment 7: An additional alternative should be added to investigate the real and primary cause of the fish run declines (e.g., hatchery fish competition, fish passage problems due to construction and operation of the fishway and dam, water, and general habitat degradation) and to implement solutions to mitigate them.

Response: The scope of the proposed action is limited to preventing sea lion predation; measures to address other causes of salmonid declines are underway by the State, and a separate alternative on such actions is unnecessary and outside the scope of this action. Natural production (wild spawning) of spring chinook is low, owing primarily to lost spawning habitat. As mitigation for lost wild production, the majority of the spring chinook are hatchery produced. Hatchery produced spring chinook originate from native stocks and are virtually indistinguishable from wild spawners. Hatchery release practices and harvest regulations for hatchery steelhead are designed to minimize competition for available wild spawning habitat. Ocean productivity over the past several years has been influenced by a multi-year climatic event (El Nino) that has impacted ocean survival of

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salmonid stocks, including those returning to the Willamette. Nonetheless, if numbers remain low or decline further, the potential for sea lion predation to have a significant impact remains real, and non-lethal removal actions are warranted.

Comment 8: No actions should be taken with sea lions until the proposed non-lethal deterrents are tested and an implementation plan is developed. The commenter recommended that an independent group of pinniped and fisheries biologists be established to oversee the development of a monitoring and research plan for evaluating the effectiveness of various non-lethal deterrents.

Response: NMFS has tested and implemented the non-lethal deterrence measures in pinniped interactions elsewhere on the Pacific Coast, with no discernable deleterious affects on California sea lions or serious injuries to personnel. Implementation of the individual measures will be dependent on available resources during a given season. NMFS will continue to request assistance from independent experts when necessary; however, the formation of an oversight committee is not necessary or warranted for actions taken under section 109 of the MMPA.

Comment 9: Non-lethal removal should not be authorized under section 109 (h)(1)(C) because the EA does not specify the numbers of animals to be taken, specify the exact methods to be used, specify the risk of injury or mortality to individual animals, provide evidence that sea lion predation is adversely affecting fish passage, or provide scientific data on the degree of impact of sea lion predation on the affected stocks.

Response: Section 109(h)(1)(C) of the MMPA authorizes the taking of marine mammals by public officials during the performance of their official duties. This authorization does not require the specification of the number of animals to be taken, exact methods, degree of risk, or evidence that the animals to be taken have exceeded some pre-determined behavioral threshold. However, some of these factors would need to be considered for authorization for the lethal removal of individually identifiable pinnipeds under section 120 of the MMPA.

Comment 10: The proposed action does not appear likely to contribute to the enhancement of Willamette River fish runs. One commenter stated that non-lethal removal of sea lions can only give a false hope of salmonid recovery because sea lions have not been determined to be negatively affecting the fish runs.

Response: The proposed action is to reduce or eliminate sea lion predation on salmonids and to prevent it from escalating to a point where it may negatively impact salmonid runs at this site. Predation is one of the factors affecting survival of adult spawners, and reduction or elimination of this mortality factor should, therefore, contribute to the enhancement and recovery of the involved salmonid runs.

Comment 11: Neither the regulations nor the statute provides a definition of what constitutes a ``nuisance animal,'' and, lacking a definition, the commenter found it difficult to evaluate whether sea lions at Willamette Falls are a nuisance animal.

Response: NMFS acknowledges that neither the statute nor the implementing regulations provide a specific definition for ``nuisance'' marine mammal. However, the legislative history of the MMPA includes removal of seals from a fish ladder as an appropriate interpretation of the nuisance animal provision. Sea lions constitute a nuisance at the Falls because their foraging and predatory behavior is contrary to the purpose of the fishway to pass fish upstream, and uncontrolled predation at freshwater sites outside the normal habitat of sea lions, especially where fish are congregated and vulnerable to predation, is contrary to conservation efforts for recovering depressed and declining fish stocks.

Comment 12: The EA incorrectly states that Willamette Falls is outside the normal range of California sea lions.

Response: As the California sea lion population has increased since the early 1970s, reports of animals occurring in areas previously not documented have also increased. NMFS is not aware of any documented historical occurrence of California sea lions at the Willamette Falls other than the sightings noted in the EA and, therefore, considers the occurrence of sea lions far upriver at the Falls in a freshwater environment to be beyond the normal range.

Comment 13: The nuisance determination is not appropriate because the effect of sea lions on fish runs may be only negligible.

Response: Section 109 of the MMPA does not establish a threshold of damage that must be exceeded in order for a determination to be made on whether an animal is a nuisance. The non-lethal removal measures proposed are to reduce or eliminate sea lion predation on salmonids and to prevent it from escalating to a point where it may negatively impact the fish runs. If lethal removal were to be used under section 120 of the MMPA, then it would be necessary to show that individual pinnipeds are having a significant negative impact on the status or recovery of salmonid populations that are listed under the Endangered Species Act (ESA) or approaching listing.

Comment 14: To effectively recover the salmonid populations, additional restrictions should be placed on commercial and recreational fisheries, barriers to passage should be removed, spawning habitat should be restored, hatchery operations should be improved, and power generating operations should be evaluated. The commenter recommended that the burden to conserve fish stocks should be distributed proportionately among all human causes before penalizing sea lions for eating fish.

Response: The State is addressing factors affecting the status of salmonid populations, including restricting commercial and recreational fisheries. Reducing or eliminating sea lion predation will be complementary to other State efforts to enhance and restore salmonid runs. In regard to barriers to passage, the Willamette Falls is a natural barrier to fish passage and the fishway was constructed to enhance adult passage to spawning habitat.

Comment 15: The design and construction of existing fishways should be re-evaluated to devise ways for salmonid species to avoid sea lion predation.

Response: Plans are underway to modify the fishway to improve fish passage. An engineering evaluation of the fishway was completed in 1992, and that report is now referenced in the EA. Fishway design and alteration information were not included in the draft EA because contract work and planning processes for fishway maintenance and modification are proceeding separately and are outside the scope of the EA. The area of focus for preventing sea lion foraging and predation on salmonids is outside the fishway in adjacent areas including below the Falls.

Comment 16: The monitoring program should have been implemented before an EA was considered, rather than basing the proposed action on undocumented observations.

Response: The proposed action is based on results of observations by biologists in 1995 as well as on ODFW-conducted monitoring programs in 1996 and 1997 (as described in the EA), which documented sea lion predation on steelhead and spring chinook.

Comment 17: Introduced salmonid runs do not warrant the conservation protection of native runs.

Response: Introduced salmonid runs in the Willamette basin, such as summer

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steelhead, have been made possible by the improved fish passage conditions afforded by the construction of the fish passage facility. These fish have been added to increase and support fishing opportunities in response to public demand. Sport fishing for salmonids is a popular and economically significant industry in the Willamette River basin. The introduced runs have been maintained over several decades without detrimental effect to native Willamette River basin salmonid runs because of hatchery release practices and harvest regulations. Timing of the two steelhead stocks overlap below the Falls, and sea lions are, therefore, likely to intercept both native and non-native stocks when foraging.

Comment 18: The methods of capturing and relocating sea lions are inadequately described.

Response: The EA has been revised to provide additional information on capture and translocation of sea lions. More detailed information on California sea lion captures and relocation is included in prior EAs prepared by NMFS (referenced in the EA) for non-lethal measures implemented at the Ballard Locks, and these EAs are available to the public.

Comment 19: The non-lethal options should not be considered safe because they have not been adequately tested.

Response: The non-lethal options included in the proposed action have been used previously in other locations and will be implemented under protocols to ensure safety to sea lions as well as personnel involved. The possibility of a sea lion mortality resulting from the proposed measures is very remote.

Comment 20: The use of underwater firecrackers may deafen sea lions.

Response: Observations at the Ballard Locks show that individual sea lions continue to respond to noise stimuli in spite of repeated exposures to firecrackers. Nonetheless, it is possible that a close exposure to an exploding firecracker may cause temporary or possibly permanent deafness, so dispatch of firecrackers should be used with caution.

Comment 21: Aversive conditioning should not be used because this technique did not successfully deter sea lions at the Ballard Locks.

Response: Aversive conditioning was previously found to be ineffective for use at the Ballard Locks because of difficulties in administering repeat treatments, which are necessary to achieve lasting effect. This method has been included in the proposed action because repeat treatment opportunities may be available at Willamette Falls.

Comment 22: The EA incorrectly states that sea lions have negatively affected steelhead at the Ballard Locks.

Response: Based on extensive studies since 1985, NMFS has determined that predation by sea lions is a principal factor affecting the spawning escapement of returning adult winter steelhead in the Lake Washington basin (migrating through the Ballard Locks). The determination is well documented in several EAs prepared by NMFS and by the Washington Department of Fish and Wildlife.

Comment 23: If sea lions are deterred from the area, it should be done in a minimally invasive and humane manner. One commenter recommended that NMFS should limit the study and implementation of sea lion deterrence measures to those that are humane and realistically promising (e.g., alternative barrier designs, expanded acoustic deterrence devices).

Response: Section 109 of the MMPA specifies that the taking of a marine mammal by public officials during the performance of their duties shall be accomplished in a humane manner. The non-lethal measures included in the proposed alternative are not expected to cause mortality or serious injury and are intended to have the desired effect of removing foraging sea lions from the area. Additional use of barrier gates in other entrances to the fish ladder will be considered if observations indicate that sea lions are entering the fishway through those entrances. The use of acoustic deterrent devices is included in the proposed action.

Comment 24: The funds spent on sea lions should be used for such other factors as fish passage, competition with hatchery fish, and habitat concerns.

Response: The State is addressing other factors that may be affecting salmonids in the Willamette River basin, and the removal of sea lions will complement those efforts. Non-lethal removal measures will be combined with the NMFS-funded sea lion monitoring program to minimize costs. Efforts to improve and update the fishway are proceeding under different funding.

Comment 25: The EA should provide more information on why fish use fishway entrance 1 so much less than other ladder entrances.

Response: It is difficult to fully assess passage through entrance 1 in comparison with the other three fishway entrances because of fishway configuration. The different entrances have been constructed to provide passage opportunities for fish under a wide range of flow conditions. Passage conditions during the spring result in greater passage by spring chinook and steelhead through fishway entrance 2, whereas fall chinook more frequently use fishway entrance 1. The EA has been modified to provide this clarification.

Comment 26: The goal of resource managers should be the restoration of native fish runs that have declined rather than reducing sea lion predation.

Response: NMFS and ODFW agree that the restoration and maintenance of native fish populations are important goals, and the State is active in addressing these goals. Prevention of sea lion foraging in locations where declining runs are concentrated and vulnerable does not conflict with this goal.

Comment 27: The construction of dams is the single most likely cause for salmonid declines, not sea lion predation.

Response: Dam construction in the Willamette River basin has been completed for decades, and salmonid stocks have been maintained through successful hatchery practices and fishery regulation. Low ocean survival conditions over an extended period have affected returns in recent years in spite of stable hatchery production.

Comment 28: The capture and relocation of sea lions are unlikely to be successful and will not significantly benefit salmonids passing through the Willamette Falls fishway. The commenters suggested new sea lions would probably replace those that have been removed.

Response: NMFS agrees that previous translocation efforts with California sea lions from the Ballard Locks have not been totally successful. However, due to the distance inland to the Falls and the small numbers of animals found far upriver, other sea lions may not immediately replace animals that have been deterred or removed from the area of the Falls.

Comment 29: Because experience with the use of the partially submerged cage trap is inadequate, raising concerns for the safety of personnel and the possible drowning of sea lions exist.

Response: The trap design maintains open air space above the surface of the water to allow a captured animal to surface and breathe, thereby negating a concern for animals drowning. The trap was successfully used to capture and handle an adult harbor seal without mishap or injury.

Comment 30: Active capture techniques will present high risk to sea lions and humans.

Response: Techniques that involve an elevated level of risk for the animals, such as tangle nets and anesthetizing

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drugs, are not proposed for use at Willamette Falls because protocols for their implementation in the moving river environment have not been developed. The final EA has been modified to clarify that active capture using tangle nets in the river is not proposed.

Comment 31: Non-lethal removal of sea lions should not occur until the salmonid stocks are threatened with extinction by predation.

Response: Section 109 of the MMPA does not require that salmonid stocks must be approaching an endangered status before non-lethal taking of sea lions can occur. The intent of the proposed action is to be proactive and prevent predation from increasing to a point where it may have a negative impact on the salmonid stocks.

Comment 32: The EA should provide more detail on the dams, hatcheries, rivers and tributaries, river flows over time, fluctuations in salmonid populations, numbers of salmonids using the locks, and suitable conditions for passage. The commenters also stated that it would be helpful if the document was expanded to explain the operation of the locks, the paper mill and power generation, and the allocation of water between fish passageways, and to provide more information on genetic relationships of runs, limiting factors on salmonid populations, water quality or industrial outflows, redd counts, habitat considerations, harvest regulation, and hatchery surpluses.

Response: The EA has been modified to address additional background information, and references that provide more details have been incorporated in the EA.

Comment 33: The information on fish runs and passage should be presented in a tabular format for clarification.

Response: The EA has been modified to include tables on spring chinook and steelhead runs and passage. Comment 34: The EA does not demonstrate that sea lions are having a significant, deleterious effect on passage.

Response: Non-lethal removal of sea lions from the fish passage facility are authorized under section 109(h), which does not require a demonstration that a significant, deleterious effect is occuring; however, NMFS and ODFW have investigated fish passage at the Willamette Falls facility. Observations suggested that sea lions were adversely affecting fish passage by foraging at the entrance to the fish ladder and preventing access, and consuming and dispersing adult salmonids that were attempting to enter the fishway to progress upstream. Until a barrier was installed in entrance 1 to the fish ladder, sea lions were foraging on salmonids inside the fish ladder, thereby preventing fish passage.

Comment 35: The EA should describe the possibility that the California sea lion population, with its population growth, may be poised for a population crash.

Response: There is no evidence of density dependent signals to indicate that the sea lion population is approaching carrying capacity. When that occurs, the population will fluctuate in response to factors that limit continued growth.

Comment 36: The EA should explain why Willamette River chinook salmon are candidates for listing under the ESA.

Response: A coastwide status review of chinook salmon on the Pacific coast is in progress to determine the status of chinook salmon populations with respect to the ESA; therefore, until the status review is completed, Willamette River spring chinook are considered candidate species under the ESA. The EA has been modified to include this clarification.

Comment 37: The EA does not specify which run of steelhead was consumed by sea lions.

Response: Winter and summer steelhead are present below the Falls concurrently, and observers are not able to differentiate steelhead when predation is observed.

Comment 38: Summer steelhead are hatchery-produced fish with no shortage of availability; management strategies can provide flexibility for the time being.

Response: The focus of the proposed action is to prevent predation on winter steelhead and spring chinook, and summer steelhead are present during the same period. Nonetheless, the summer steelhead population also has declined in spite of hatchery production due to reduced ocean survival conditions that are also affecting winter steelhead and spring chinook salmon. If ocean survival conditions do not improve and run numbers continue to decline, management options will continue to erode and hatchery operations could be jeopardized.

Comment 39: The EA incorrectly states that there is no controversy or uncertainty on the effects of the proposed non-lethal removal measures.

Response: The proposed action is to use non-lethal measures that have been used and assessed at the Ballard Locks. These actions have been demonstrated to have no adverse effect on California sea lions, and, therefore, there is no scientific controversy or uncertainty on the effects of the proposed non-lethal removal actions. The final EA includes a complete description of the finding of no significant impact of the proposed action.

Comment 40: The decline in winter steelhead from 1995 to 1996 was reported as 72 percent, but it should be 62 percent.

Response: The steelhead run declined from 4,693 in 1995 to 1,801 in 1996, which is a 62 percent decline. The EA has been corrected.

Comment 41: The total time that sea lions were present in 1995 and an estimate of total predation are not in the EA.

Response: Observations in 1995 were quite limited and no data were collected on the total time spent foraging by sea lions that year; therefore, no extrapolation of predation was attempted. An estimated kill rate for the limited time observed in 1995 is included in the EA.

Comment 42: The EA mischaracterizes animal protection groups' support for the no-action alternative because the benefit is that sea lions would not be disturbed.

Response: NMFS has received comments favoring no action to prevent sea lion foraging and predation, and the EA has been modified to reflect this.

Comment 43: The EA incorrectly states that the no-action alternative will likely result in a negative reaction by a large sector of the public. The commenter suggested that this applies only to the opinions of fishers.

Response: NMFS and ODFW have received numerous telephone calls from members of the public requesting that the resource agencies take some action to remove sea lions from Willamette Falls. The characterization of total representation in comparison to general population has been deleted from the EA.

Comment 44: The EA is not correct that many people would resent their tax dollars being spent on hatchery production that results in food only for sea lions. The commenter felt that many people would resent tax dollars spent on non-lethal removal of sea lions.

Response: NMFS and ODFW have received numerous complaints from members of the public regarding the past lack of action by resource agencies to stop sea lions from feeding on salmonids at Willamette Falls while fisheries are being restricted and fish numbers are low. The EA has been modified to indicate that comments have been received favoring no action as well.

Comment 45: The EA should provide more detailed information on the barrier gate and its effectiveness. One

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commenter noted that observations made at fishway entrance 1 indicate that sea lions commonly forage at the face of the barrier gate, and out to about 10 feet (3.048 meters) below the barrier. One commenter questioned whether the barrier gate could be expanded from riverbank to riverbank to keep sea lions out of area.

Response: The EA has been modified to include additional observations on the barrier gate. The barrier gate prevents predation from occurring within the fish ladder at fishway entrance 1, but it has not stopped sea lions from foraging at the face of the barrier and areas adjacent to the fish ladder entrance. The installation of barrier gates at other fish ladder entrances will be assessed if foraging inside those entrances is noted. A physical barrier across the Willamette River is not feasible or practical.

ACTION: The EA has been modified as described in the responses to the comments. NMFS has evaluated the environmental consequences of the alternatives and has concluded that the proposed action is unlikely to result in any significant impacts on the human environment and, therefore, has made a finding of no significant impact (FONSI). The EA and FONSI have been prepared in accordance with National Environmental Policy Act (NEPA) and with implementing regulations at 40 CFR parts 1500 through 1508 and NOAA guidelines concerning implementation of NEPA found in NOAA Administrative Order 216-6.

Copies of the EA and FONSI are available (See ADDRESSES).

Dated: December 22, 1997. Hilda Diaz-Soltero, Director, Office of Protected Resources, National Marine Fisheries Service.

[FR Doc. 97-34145Filed12-31-97; 8:45 am]

BILLING CODE 3510-22-F