2010-17674. Marine Mammals; Incidental Take During Specified Activities

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of receipt of application and proposed incidental harassment authorization; request for comments.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), have received an application from the National Oceanic and Atmospheric Administration Restoration Center, Southwest Region, for authorization to take small numbers of marine mammals by harassment incidental to construction of the Parson's Slough Project, a tidal wetlands restoration project on the Elkhorn Slough National Estuarine Research Reserve in northern Monterey County, California. In accordance with provisions of the Marine Mammal Protection Act of 1972 (MMPA), as amended, we request comments on our proposed authorization for the applicant to incidentally take, by harassment, small numbers of southern sea otters for a period of 6 months beginning on September 1, 2010, and ending on March 1, 2011. We anticipate no take by injury or death and include none in this proposed authorization, which would be for take by harassment only.

DATES:

Comments and information must be received by August 19, 2010.

ADDRESSES:

You may submit comments by any of the following methods:

1. By U.S. mail or hand-delivery to: Diane Noda, Field Supervisor, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003.

2. By fax to: 805-644-3958, attention to Diane Noda, Field Supervisor.

3. By electronic mail (e-mail) to: [e-mail]. Please include your name and return address in your message.

FOR FURTHER INFORMATION CONTACT:

To request copies of the application, the list of references used in this notice, and other supporting materials, contact Lilian Carswell at the address in ADDRESSES, or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Background

Sections 101(a)(5)(A) and (D) of the MMPA, as amended (16 U.S.C. 1371 (a)(5)(A) and (D)), authorize the Secretary of the Interior 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, provided that we make certain findings and either issue regulations or, if the taking is limited to harassment, provide a notice of a proposed authorization to the public for review and comment.

We may grant authorization to incidentally take marine mammals if we find 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. As part of the authorization process, we prescribe permissible methods of taking and other means of affecting the least practicable impact on the species or stock and its habitat, and requirements pertaining to the monitoring and reporting of such takings.

The term “take,” as defined by the MMPA, means to harass, hunt, capture, or kill, or to attempt to harass, hunt, capture, or kill, any marine mammal. Harassment, as defined by the MMPA, means “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [the MMPA calls this 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 [the MMPA calls this Level B harassment].”

The terms “small numbers,” “negligible impact,” and “unmitigable adverse impact” are defined in 50 CFR 18.27, the Service's regulations governing take of small numbers of marine mammals incidental to specified activities. “Small numbers” is defined as “a portion of a marine mammal species or stock whose taking would have a negligible impact on that species or stock.” “Negligible impact” is defined 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.” “Unmitigable adverse impact” is defined as “an impact resulting from the specified activity (1) that is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by (i) causing the marine mammals to abandon or avoid hunting areas, (ii) directly displacing subsistence users, or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.” The subsistence provision does not apply to southern sea otters.

Section 101(a)(5)(D) of the MMPA established an expedited process by which U.S. citizens can apply for an authorization to incidentally take small numbers of marine mammals where the take will be limited to harassment. Section 101(a)(5)(D)(iii) establishes a 45-day time limit for Service review of an application, followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, we must either issue or deny issuance of the authorization. We refer to these authorizations as Incidental Harassment Authorizations (IHAs).

Summary of Request

On April 27, 2010, we received a request from the National Oceanic and Atmospheric Administration Restoration Center, Southwest Region (Applicant) for MMPA authorization to take by harassment southern sea otters (Enhydra lutris nereis) incidental to construction activities associated with the Parson's Slough Project. The Parson's Slough Project is a tidal wetlands restoration project on the Elkhorn Slough National Estuarine Research Reserve in northern Monterey County, California.

Under the proposed action, the Applicant would construct a partially submerged tidal barrier (a sill) at the mouth of Parson's Slough Channel. The Parson's Slough Channel leads to the Parson's Slough study area, which consists of the 254-acre (1-square-kilometer) Parson's Slough Complex and the 161-acre (0.7-square-kilometer) South Marsh Area. The sill would be a fixed structure, consisting of steel sheet piles extending 270 feet (82 meters) across the mouth of the channel. A span of 100 feet (30 meters) at the center of the structure would remain submerged more than 99 percent of the time, allowing for the exchange of water between Parson's Slough and Elkhorn Slough. Within this span, a notch 25 feet (7.6 meters) wide would permit the passage of water at all tide levels and allow for the movement of fish and wildlife between Parson's Slough and Elkhorn Slough. The top elevation of the notch would be −5 feet (−1.5 meters) North American Vertical Datum (NAVD), whereas the remainder of the central span would have a top elevation of −2 feet (−0.6 meters) NAVD.

The purpose of the proposed action is to reduce tidal scour within the Elkhorn Slough action area in general and the Parson's Slough study area in particular. Conversion of wetlands to pasture during the 1900s by means of diking and draining caused the subsidence of land to an elevation too low to support marsh vegetation (Elkhorn Slough Tidal Wetland Project Team 2007). Since the mid-20th century, tidal erosion and the inundation of interior marsh areas have caused a reversal of the proportion of salt marsh habitat to mudflat habitat within Elkhorn Slough. The Parson's Slough Complex, historically characterized by tidal marsh and tidal creeks, now consists primarily of mudflats intersected by subtidal channels. The average land elevation in the Parson's Slough Complex is now approximately 2.4 feet (0.7 meters) below the level that can support tidal marsh vegetation. Without intervention, excessive erosion will continue to widen tidal channels and convert salt marsh to mudflat, resulting in a significant loss of habitat function and a decrease in estuarine biodiversity.

A detailed description of the proposed action is contained in a Biological Assessment prepared by Vinnedge Environmental Consulting for the Elkhorn Slough National Estuarine Research Reserve and the Applicant (Vinnedge 2010a). The general impacts associated with the design and construction phases of the Parson's Slough Project are described in the Community-Based Restoration Program (CRP) Programmatic Environmental Assessment (PEA) and the Supplemental Programmatic Environmental Assessment (SPEA). The Applicant will complete a Targeted Supplemental Environmental Assessment (TSEA) to include all project-specific impacts not described in the CRP PEA/SPEA. The Applicant has requested formal consultation with the Service under the Endangered Species Act of 1973 (ESA), as amended (16 U.S.C. 1531 et seq.).

Description of the Activity

Parson's Slough Project, Monterey County, California

a. Timing of Construction

Construction of the sill would commence as early as September 1, 2010, and continue approximately 12-17 weeks.

b. Geographic Location of Action

The site of construction is the mouth of the Parson's Slough Channel, in the vicinity of the Union Pacific Railroad bridge (railroad bridge), milepost 103.27, Coast Subdivision. Parson's Slough is located on the southeast side of the Elkhorn Slough Estuary, which is situated 90 miles (145 kilometers) south of San Francisco and 20 miles (32 kilometers) north of Monterey, in Monterey County, California.

Description of Habitat and Marine Mammals Affected by the Activity

Approximately 100 sea otters currently use Elkhorn Slough for foraging, resting, and other activities. In recent years, sea otters have increasingly utilized protected side channels of the slough and the Parson's Slough Complex. Detailed pre-project monitoring of marine mammal use of the Parson's Slough area was conducted by Okeanis researchers under contract to the Elkhorn Slough National Estuarine Research Reserve from October, 2009, to January, 2010. In the course of 19 daytime counts and 6 nighttime monitoring sessions, during which the number of sea otters entering and exiting the Parson's Slough Complex was counted, researchers observed sea otters using 3 main areas near the site of the proposed sill. One of these areas (used by up to 20 animals) was located within the Parson's Slough Complex. The two other areas (used by approximately 10 animals each) were located on Yampah Island, outside but adjacent to the Parson's Slough Complex. These areas appeared to be centered on three male territories. At least some of the associated females used multiple male territories and the Seal Bend area in the main channel of Elkhorn Slough (Maldini et al. 2010).

Sea otters using the Parson's Slough Complex regularly transited into and out of the complex via the channel below the railroad bridge to forage in the main channel of Elkhorn Slough. At least two other male sea otters were detected accessing the Parson's Slough Complex via land and using the channel to the northeast of the railroad bridge. Hourly scans of the complex during daylight hours revealed that sea otters using the complex spent most of their time resting in water (62 percent) and the remainder of their time resting on land (10 percent), foraging (15 percent), grooming (3 percent), traveling into and out of the complex (7 percent), and interacting with other sea otters (3 percent). Sea otters using the Yampah Island area tended to access it via land from the main channel of Elkhorn Slough and spent a large proportion of time hauled out on pickleweed (Salicornia virginica) during low tides, dispersing into Elkhorn Slough at high tides (Maldini et al. 2010). A detailed description of the habitat, status, and distribution of southern sea otters in Elkhorn Slough in general and Parson's Slough in particular is included in Vinnedge (2010a) and Maldini et al. (2010).

Status and Distribution of Affected Species

Southern sea otters are listed as threatened under the ESA (42 FR 2965; January 14, 1977) and, because of their threatened status, are automatically considered “depleted” under the MMPA. The State of California also recognizes the southern sea otter as a fully protected mammal (Fish and Game Code section 4700) and as a protected marine mammal (Fish and Game Code section 4500). All members of the southern sea otter population are descendants of a small group that survived the fur trade near Big Sur, California. Historically ranging from at least as far north as Oregon (Valentine et al. 2008) to Punta Abreojos, Baja California, Mexico in the south, southern sea otters currently occur in only two areas of California. The mainland population ranges from San Mateo County to Santa Barbara County and numbers approximately 2,800 animals (the 3-year running average for spring 2009 is 2,813) (http://www.werc.usgs.gov/​Project.aspx?​ProjectID=​91). A small, translocated population occurs at San Nicolas Island, numbering 39 animals as of 2009 (USGS unpublished data). Data from recent years suggest that southern sea otter population numbers are stable or slightly declining.

Potential Impacts of Sill Construction on Sea Otters

The proposed activities have the potential to disturb resting, foraging, and other activities of sea otters in the vicinity of construction activities. Disturbance would be due primarily to construction noise and activity. Construction of the sill would entail driving 2 rows of 7 end-bearing piles to an elevation of approximately −80 feet (−24 meters) and a single row of sheetpile (between the end-bearing piles) using a vibratory hammer and, if necessary, an impact hammer to complete the driving. An additional 14 temporary end-bearing sheet piles would be installed in the main channel of Elkhorn Slough at a staging site near Kirby Park, where sea otter presence has historically been minimal (1 or occasionally 2 animals) and limited to foraging activity (D. Maldini, Okeanis, pers. comm.).

Little is known regarding the effects of sound on sea otters. Sea otters have not been reported as particularly sensitive to sound disturbance, especially in comparison to other marine mammals such as pinnipeds (Riedman 1983; Riedman 1984; Efroymson and Suter 2001). However, observed sea otter responses to disturbance are highly variable, probably reflecting the level of noise and activity to which they have been exposed and become acclimated over time and the particular location and social or behavioral state of that individual (G. Bentall, Monterey Bay Aquarium Sea Otter Research and Conservation Program, pers. comm.). Ambient sound levels within the action area are generally low, with the notable exception of the Union Pacific Railroad tracks, which are located within the project footprint and accommodate approximately 15-10 trains per day (Vinnedge 2010b). Noise and disturbance associated with construction will likely cause sea otters utilizing the Parson's Slough Complex and Yampah Island area to disperse into the main channel of Elkhorn Slough, and may discourage the use of areas near the construction site even when construction activities are not under way. The temporary displacement of sea otters due to construction activity is not expected to result in effects on individual fitness because of the general availability in Elkhorn Slough of suitable habitat for resting, foraging, and other activities.

Other potential impacts on sea otters include disturbance due to light during periods of nighttime construction and the risk of oiling/ingesting oil in the event of a spill of petroleum hydrocarbon products used in construction equipment. Disturbance due to artificial light is not expected to cause additional effects beyond those caused by construction noise and activity. The risk of accidental release of construction-related fluids will be minimized by means of measures outlined in “Mitigation Measures” below.

Potential Effects on Habitat

Construction of the Parson's Slough Project would entail the placement of approximately 2,000 cubic yards (1,529 cubic meters) of rock and sheetpile and would result in the loss of approximately 0.75 acres (4047 square meters) of subtidal habitat within the project footprint. However, operation of the proposed sill is expected to result in the conversion of approximately 11 acres (0.045 square kilometers) of intertidal mudflat habitat to subtidal habitat. The increase in soft sediments within the Parson's Slough Complex resulting from reduced tidal scour would likely result in a beneficial effect on sea otters by increasing the availability of soft sediment habitat for burrowing prey. However, muted tidal flows could also result in a small (5-percent) increase in hypoxic (lack of oxygen) conditions, which may decrease habitat suitability for benthic (bottom-dwelling) invertebrates.

Other potential effects on habitat include the introduction of a barrier to movement into and out of the Parson's Slough Complex (either by direct physical means or by means of increased water velocities flowing over the sill during ebb and flood tides) and changes in concentrations of pathogens and contaminants. Noise and activity may deter animals from entering the Parson's Slough Complex during sill construction, but in the long term the sill would not likely present a physical barrier to sea otter movement, because a central span of 100 feet (30 meters) would remain submerged more than 99 percent of the time, within which a notch of 25 feet (7.6 meters) would remain submerged at all times. Water flows across the sill would not prevent access to the Parson's Slough Complex, because the modeled peak tidal velocities across the sill—7-12 feet/second (2.1-3.7 meters/second) (Ducks Unlimited et al. 2010)—are much slower than average wave velocities in the turbulent waters regularly negotiated by sea otters, and because most sea otter movements into and out of the complex occur during slack tides (Maldini et al. 2010), during which flows across the sill would remain unchanged from current conditions.

Effects of the proposed sill on levels of pathogens or contaminants in Parson's Slough or Elkhorn Slough are unclear because their sources and transport are not well understood. If pathogens or contaminants are entering the Elkhorn Slough system by means of Parson's Slough, then the sill would tend to concentrate them by means of decreased flushing in the upper slough. However, if they are entering Elkhorn Slough by means of the Gabilan/Tembladero watershed or the Old Salinas River channel, then construction of the sill would lead to lower concentrations of pathogens and contaminants within the Parson's Slough Complex (McCarthy 2009). Levels of exposure of sea otters to pathogens and contaminants may not be appreciably different under either scenario, because animals using the Parson's Slough Complex also regularly enter and utilize Elkhorn Slough proper.

Potential Impacts on Subsistence Needs

The subsistence provision of the MMPA does not apply to southern sea otters.

Mitigation Measures

As described in Vinnedge (2010) and in correspondence between the Applicant and the Service, the following measures would be implemented to avoid, minimize, and mitigate the effects of the proposed action on southern sea otters:

a. Timing of Construction Must Avoid the Birth Peak for Sea Otters in Elkhorn Slough

Construction activities will be timed to avoid peak pupping periods for marine mammals. A birth peak generally occurs in California from late February to early April, although sea otters may reproduce at any time of year (Siniff and Ralls 1991), and the birth peak may not be synchronous in all parts of California (Riedman et al. 1994). In Elkhorn Slough, the birth peak appears to occur in March and April (Maldini 2010). Construction activities will begin as early as September 1, 2010, and cease on or before March 1, 2011.

b. Elkhorn Slough National Estuarine Research Reserve Must Provide Construction Awareness Training Specific to Marine Mammals for All Personnel

Before the onset of construction activities, a qualified biologist will conduct an education program for all construction personnel. At a minimum the training will include a description of southern sea otters and their habitat, the occurrence of the species within the project action area, an explanation of the status of the species and its protection under the ESA and MMPA, the measures that are being implemented to minimize disturbance to sea otters and their habitat as they relate to the construction, and the authority given to the biological monitor to stop construction at any point. A fact sheet conveying this information will be prepared for distribution to the construction personnel and other project personnel who may enter the project area. Upon completion of the program, personnel will sign a form stating that they attended the program and understand all the avoidance and minimization measures and requirements of the ESA and MMPA.

c. Construction Activities Causing Noise-Related Disturbance Must Be Conducted at High Tide to the Maximum Extent Practicable

The occurrence of hauled-out sea otters near the proposed construction site is lowest at high tide (Maldini et al. 2010). Construction activities causing noise-related disturbance, such as pile-driving, will be conducted at high tide to the maximum extent practicable.

d. Ramp-Up Procedures Must Be Used

In order to avoid startling animals with sudden loud noises, noise-producing construction activities will begin gradually. Biological monitors will be present 30 minutes before construction begins and will have the authority to halt operations if animals appear unduly harassed or in danger of injury.

e. Fuel Storage and All Fueling and Equipment Maintenance Activities Must Be Conducted at Least 100 Feet (30 Meters) From Subtidal and Intertidal Habitat

Sea otters are susceptible to the adverse effects of oiling due to fuel spills because they depend on the insulation of their dense fur to keep warm. They may also ingest oil during grooming and feeding. Fuel storage and all fueling and equipment maintenance activities will be conducted at least 100 feet (30 meters) from subtidal and intertidal habitat. Implementation of the proposed action will require approval and implementation or a site-specific Storm Water Pollution Prevention Plan, which will include a hazardous spill prevention plan.

Findings

We propose the following findings regarding this action:

Small Numbers Determination and Estimated Take by Incidental Harassment

For small take analysis, the statute and legislative history do not expressly require a specific type of numbers analysis, leaving the determination of “small” to the agency's discretion. Factors considered in our small numbers determination include the following:

(1) The number of southern sea otters utilizing the affected area is small relative to the size of the southern sea otter population. The mainland southern sea otter population numbers approximately 2,800 animals. The number of southern sea otters that could potentially be taken by harassment in association with the proposed project, approximately 40 animals, is less than 1.5 percent of the estimated population size.

(2) Monitoring requirements and mitigation measures are expected to limit the number of incidental takes. Biological monitors would be present 30 minutes before and during all construction activity and would have the authority to stop construction if sea otters appeared to be unduly harassed or in danger of injury. Conducting noise-producing construction activities at high tide, to the maximum extent practicable, would further reduce the number of sea otters that may be harassed.

Negligible Impact

The Service finds that any incidental take by harassment that is reasonably likely to result from the proposed project would not adversely affect the southern sea otter through effects on rates of recruitment or survival, and would, therefore, have no more than a negligible impact on the stock. In making this finding, we considered the best available scientific information, including: (1) The biological and behavioral characteristics of the species; (2) the most recent information on distribution and abundance of sea otters within the area of the proposed activity; (3) the potential sources of disturbance during the proposed activity; and (4) the potential response of southern sea otters to disturbance.

The mitigation measures outlined above are intended to minimize the number of sea otters that may be disturbed by the proposed activity. Any impacts to individuals are expected to be limited to Level B harassment of short-term duration. Response of sea otters to disturbance would most likely be common behaviors such as diving and/or swimming away from the source of the disturbance. No take by injury or death is anticipated. We find that the anticipated harassment caused by the proposed activities is not expected to adversely affect the species or stock through effects on annual rate of recruitment or survival.

Our finding of negligible impact applies to incidental take associated with the proposed activity as mitigated through this authorization process. This authorization establishes monitoring and reporting requirements to evaluate the potential impacts of the authorized activities, as well as mitigation measures designed to minimize interactions with, and impacts to, southern sea otters.

Impact on Subsistence

The subsistence provision of the MMPA does not apply to southern sea otters.

Marine Mammal Monitoring

The Applicant would be required to conduct marine mammal monitoring during construction of the Parson's Slough Project in order to implement the mitigation measures that require real-time monitoring and to satisfy monitoring required under the MMPA. Project personnel would be required to record information regarding location and behavior of all sea otters observed during operations. When conditions permit, information regarding age (pup, adult) and any tagged animals would also be required to be recorded.

Monitoring and Reporting

The Applicant must implement the following monitoring and reporting program to increase knowledge regarding the species, and to assess the level of take caused by the proposed action:

a. Pre-Construction Monitoring

Pre-construction monitoring will begin up to 2 weeks before construction activities begin, and end no sooner than 24 hours before construction activities begin. The purpose of pre-construction monitoring is to document sea otter numbers and distribution in the surrounding areas shortly before the onset of disturbance. Observation methods will be approved by the Service.

b. Construction Monitoring

A biological monitor will be present daily. Monitoring will begin 30 minutes before construction activity begins and continue until construction personnel have left the site. The biological monitor will maintain a log that documents numbers of marine mammals present before, during, and at the conclusion of daily activities. The monitor will record basic weather conditions and marine mammal behavior and will have the authority to stop construction if sea otters appear to be unduly harassed or in danger of injury.

c. Post-Construction Monitoring

Post-construction monitoring will consist of surveys during peak occupational time and tidal cycles for 4 weeks following completion of sill construction. If sea otters demonstrate the ability to move freely across the sill and resume normal behavior, monitoring may end before 4 weeks with concurrence of the Service.

d. Reporting

The applicant will submit a report to the Service within 30 days of the conclusion of monitoring efforts. The report will include a summary of the daily log maintained by the biological monitor during construction and information from pre- and post-construction monitoring.

Endangered Species Act

The proposed activity will occur within the range of the southern sea otter, which is presently listed as threatened under the ESA. The Applicant has initiated consultation under section 7 of the ESA with the Service's Ventura Fish and Wildlife Office. We will complete intra-Service section 7 consultation prior to finalization of the IHA.

National Environmental Policy Act (NEPA)

The design and construction phases of the Parson's Slough Project are described in the CRP PEA and/or SPEA prepared by the Applicant. The Applicant is currently preparing a TSEA to include all project elements not described in the CRP PEA/SPEA. If we find it to be adequate and appropriate, we will adopt the TSEA as the foundation of the Service's Environmental Assessment (EA) of whether issuance of the IHA will have a significant effect on the human environment. These analyses will be completed prior to issuance or denial of the IHA and will be available at http://www.fws.gov/​ventura/​speciesinfo/​so_​sea_​otter/​. To obtain a copy of the CRP PEA or SPEA, contact the individual identified in the FOR FURTHER INFORMATION CONTACT section.

Government-to-Government Relations With Native American Tribal Governments

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, Secretarial Order 3225, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with Federally recognized Tribes on a Government-to-Government basis. We have evaluated possible effects on Federally recognized Indian Tribes and have determined that there are no effects.

Proposed Authorization

The Service proposes to issue an IHA for small numbers of southern sea otters harassed incidentally by the Applicant while the applicant is constructing the Parson's Slough Project, beginning September 1, 2010, and ending March 1, 2011. Authorization for incidental take beyond this period would require a request for renewal.

The final IHA will incorporate the mitigation, monitoring, and reporting requirements discussed in this proposal. The Applicant will be responsible for following those requirements. These authorizations will not allow the intentional taking of southern sea otters.

If the level of activity exceeds that described by the Applicant, or the level or nature of take exceeds those projected here, the Service will reevaluate its findings. The Secretary may modify, suspend, or revoke an authorization if the findings are not accurate or the conditions described in this notice are not being met.

Request for Public Comments

The Service requests interested persons to submit comments and information concerning this proposed IHA. Consistent with section 101(a)(5)(D)(iii) of the MMPA, we are opening the comment period on this proposed authorization for 30 days (see DATES).

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Dated: July 14, 2010.

Ren Lohoefener,

Regional Director, Pacific Southwest Region.