[Federal Register Volume 74, Number 195 (Friday, October 9, 2009)]
[Rules and Regulations]
[Pages 52300-52351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24067]
[[Page 52299]]
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Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 226
Endangered and Threatened Wildlife and Plants: Final Rulemaking To
Designate Critical Habitat for the Threatened Southern Distinct
Population Segment of North American Green Sturgeon; Final Rule
Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules
and Regulations
[[Page 52300]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 080730953-91263-02]
RIN 0648-AX04
Endangered and Threatened Wildlife and Plants: Final Rulemaking
To Designate Critical Habitat for the Threatened Southern Distinct
Population Segment of North American Green Sturgeon
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), designate
critical habitat for the threatened Southern distinct population
segment of North American green sturgeon (Southern DPS of green
sturgeon) pursuant to section 4 of the Endangered Species Act (ESA).
Specific areas proposed for designation include: Coastal U.S. marine
waters within 60 fathoms (fm) depth from Monterey Bay, California
(including Monterey Bay), north to Cape Flattery, Washington, including
the Strait of Juan de Fuca, Washington, to its United States boundary;
the Sacramento River, lower Feather River, and lower Yuba River in
California; the Sacramento-San Joaquin Delta and Suisun, San Pablo, and
San Francisco bays in California; the lower Columbia River estuary; and
certain coastal bays and estuaries in California (Humboldt Bay), Oregon
(Coos Bay, Winchester Bay, Yaquina Bay, and Nehalem Bay), and
Washington (Willapa Bay and Grays Harbor). This rule designates
approximately 515 kilometer (km) (320 miles (mi)) of freshwater river
habitat, 2,323 km\2\ (897 mi\2\) of estuarine habitat, 29,581 km\2\
(11,421 mi\2\) of marine habitat, 784 km (487 mi) of habitat in the
Sacramento-San Joaquin Delta, and 350 km\2\ (135 mi\2\) of habitat
within the Yolo and Sutter bypasses (Sacramento River, CA) as critical
habitat for the Southern DPS of green sturgeon.
This rule excludes the following areas from designation because the
economic benefits of exclusion outweigh the benefits of inclusion and
exclusion will not result in the extinction of the species: Coastal
U.S. marine waters within 60 fm depth from the California/Mexico border
north to Monterey Bay, CA, and from the Alaska/Canada border northwest
to the Bering Strait; the lower Columbia River from river kilometer
(RKM) 74 to the Bonneville Dam; and certain coastal bays and estuaries
in California (Elkhorn Slough, Tomales Bay, Noyo Harbor, and the
estuaries to the head of the tide in the Eel and Klamath/Trinity
rivers), Oregon (Tillamook Bay and the estuaries to the head of the
tide in the Rogue, Siuslaw, and Alsea rivers), and Washington (Puget
Sound). Particular areas are also excluded based on impacts on national
security and impacts on Indian lands. The areas excluded from the
designation comprise approximately 0.2 km (0.1 mi) of freshwater
habitat, 2,945 km\2\ (1,137 mi\2\) of estuarine habitat and 1,034,935
km\2\ (399,590 mi\2\) of marine habitat.
This final rule responds to and incorporates public comments
received on the proposed rule and supporting documents, as well as peer
reviewer comments received on the draft biological report and draft ESA
section 4(b)(2) report.
DATES: This rule will take effect on November 9, 2009.
ADDRESSES: Reference materials regarding this determination can be
obtained via the Internet at: http://www.nmfs.noaa.gov or by submitting
a request to the Assistant Regional Administrator, Protected Resources
Division, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200,
Long Beach, CA 90802-4213.
FOR FURTHER INFORMATION CONTACT: Melissa Neuman, NMFS, Southwest Region
(562) 980-4115; Steve Stone, NMFS, Northwest Region (503) 231-2317; or
Lisa Manning, NMFS, Office of Protected Resources (301) 713-1401.
SUPPLEMENTARY INFORMATION:
Background
Under the ESA, we are responsible for determining whether certain
species, subspecies, or distinct population segments (DPS) are
threatened or endangered, and designating critical habitat for them (16
U.S.C. 1533). On April 7, 2006, we determined that the Southern DPS of
green sturgeon is likely to become endangered in the foreseeable future
throughout all or a significant portion of its range and listed the
species as threatened under the ESA (71 FR 17757). A proposed critical
habitat rule for the Southern DPS was published in the Federal Register
on September 8, 2008 (73 FR 52084), with a technical correction and
notification of a public workshop published on October 7, 2008 (73 FR
58527). Pursuant to a court-ordered settlement agreement, NMFS agreed
to make a final critical habitat designation for the Southern DPS by
June 30, 2009. However, an extension was requested and granted, with a
new deadline of October 1, 2009. This rule describes the final critical
habitat designation, including responses to public comments and peer
reviewer comments, a summary of changes from the proposed rule, and
supporting information on green sturgeon biology, distribution, and
habitat use, and the methods used to develop the final designation.
We considered various alternatives to the critical habitat
designation for the green sturgeon. The alternative of not designating
critical habitat for the green sturgeon would impose no economic,
national security, or other relevant impacts, but would not provide any
conservation benefit to the species. This alternative was considered
and rejected because such an approach does not meet the legal
requirements of the ESA and would not provide for the conservation of
green sturgeon. The alternative of designating all potential critical
habitat areas (i.e., no areas excluded) also was considered and
rejected because, for a number of areas, the economic benefits of
exclusion outweighed the benefits of inclusion, and NMFS did not
determine that exclusion of these areas would significantly impede
conservation of the species or result in extinction of the species. The
total estimated annualized economic impact associated with the
designation of all potential critical habitat areas would be $64
million to $578 million (discounted at 7 percent) or $63.9 million to
$578 million (discounted at 3 percent).
An alternative to designating critical habitat within all of the
units considered for designation is the designation of critical habitat
within a subset of these units. Under section 4(b)(2) of the ESA, NMFS
must consider the economic impacts, impacts to national security, and
other relevant impacts of designating any particular area as critical
habitat. NMFS has the discretion to exclude an area from designation as
critical habitat if the benefits of exclusion (i.e., the impacts that
would be avoided if an area were excluded from the designation)
outweigh the benefits of designation (i.e., the conservation benefits
to the Southern DPS if an area were designated), so long as exclusion
of the area will not result in extinction of the species. Exclusion
under section 4(b)(2) of the ESA of one or more of the units considered
for designation would reduce the total impacts of designation. The
determination of which units and how many to exclude depends on NMFS'
ESA 4(b)(2) analysis, which is conducted for each unit and described
[[Page 52301]]
in detail in the ESA 4(b)(2) analysis report. Under this preferred
alternative, NMFS originally proposed to exclude 13 out of 40 units
considered. The total estimated economic impact associated with the
proposed rule was $22.5 million to $76.4 million (discounted at 7
percent) or $22.5 million to $76.3 million (discounted at 3 percent).
In response to public comments and additional information received,
this final rule excludes 14 units out of 41 units considered where the
economic benefits of exclusion outweighed the conservation benefits of
designation. NMFS determined that the exclusion of these 14 units would
not significantly impede the conservation of the Southern DPS. The
total estimated economic impact associated with this final rule is
$20.2 million to $74.1 million (discounted at 7 percent) or $20.1
million to $74 million (discounted at 3 percent). NMFS selected this
alternative because it results in a critical habitat designation that
provides for the conservation of the Southern DPS while reducing the
economic impacts on entities. This alternative also meets the
requirements under the ESA and our joint NMFS-USFWS regulations
concerning critical habitat.
Green Sturgeon Natural History
The green sturgeon (Acipenser medirostris) is an anadromous fish
species that is long-lived and among the most marine oriented sturgeon
species in the family Acipenseridae. Green sturgeon is one of two
sturgeon species occurring on the U.S. west coast, the other being
white sturgeon (Acipenser transmontanus). Green sturgeon range from the
Bering Sea, Alaska, to Ensenada, Mexico, with abundance increasing
north of Point Conception, CA (Moyle et al. 1995). Green sturgeon
occupy freshwater rivers from the Sacramento River up through British
Columbia (Moyle 2002), but spawning has been confirmed in only three
rivers, the Rogue River in Oregon and the Klamath and Sacramento rivers
in California. Based on genetic analyses and spawning site fidelity
(Adams et al. 2002; Israel et al. 2004), NMFS has determined green
sturgeon are comprised of at least two distinct population segments
(DPSs): (1) A Northern DPS consisting of populations originating from
coastal watersheds northward of and including the Eel River (i.e., the
Klamath and Rogue rivers) (``Northern DPS''); and (2) a southern DPS
consisting of populations originating from coastal watersheds south of
the Eel River, with the only known spawning population in the
Sacramento River (``Southern DPS''). The Northern DPS and Southern DPS
are distinguished based on genetic data and spawning locations, but
their distribution outside of natal waters generally overlap with one
another (Chadwick 1959; Miller 1972; California Department of Fish and
Game (CDFG) 2002; Israel et al. 2004; Moser and Lindley 2007; Erickson
and Hightower 2007; Lindley et al. 2008.). Both Northern DPS and
Southern DPS green sturgeon occupy coastal estuaries and coastal marine
waters from southern California to Alaska, including Humboldt Bay, the
lower Columbia river estuary, Willapa Bay, Grays Harbor, and coastal
waters between Vancouver Island, BC, and southeast Alaska (Israel et
al. 2004; Moser and Lindley 2007; Lindley et al. 2008).
Spawning frequency is not well known, but the best information
suggests adult green sturgeon spawn every 2--4 years (pers. comm. with
Steve Lindley, NMFS, and Mary Moser, NMFS, 2004, cited in 70 FR 17386,
April 6, 2005; Erickson and Webb 2007). Beginning in late February,
adult green sturgeon migrate from the ocean into fresh water to begin
their spawning migrations (Moyle et al. 1995). Spawning occurs from
March to July, with peak activity from mid-April to mid-June (Emmett et
al. 1991; Poytress et al. 2009). Spawning in the Sacramento River
occurs in fast, deep water over gravel, cobble, or boulder substrates
(Emmett et al. 1991; Moyle et al. 1995; Poytress et al. 2009). Eggs and
larvae develop in freshwater, likely near the spawning site (Kynard et
al. 2005). Development of early life stages is affected by water flow
and temperature (optimal temperatures from 11 to 17-18 [deg]C; Cech et
al. 2000, cited in COSEWIC 2004; Van Eenennaam et al. 2005). Juvenile
green sturgeon rear and feed in fresh and estuarine waters from 1 to 4
years prior to dispersing into marine waters as subadults (Nakamoto et
al. 1995).
Adults are defined as sexually mature fish, subadults as sexually
immature fish that have entered into coastal marine waters (usually at
3 years of age), and juveniles as fish that have not yet made their
first entry into marine waters. Green sturgeon spend a large portion of
their lives in coastal marine waters as subadults and adults. Subadult
male and female green sturgeon spend at least approximately 6 and 10
years, respectively, at sea before reaching reproductive maturity and
returning to freshwater to spawn for the first time (Nakamoto et al.
1995). Adult green sturgeon spend as many as 2-4 years at sea between
spawning events (pers. comm. with Steve Lindley, NMFS, and Mary Moser,
NMFS, cited in 70 FR 17386, April 6, 2005; Erickson and Webb 2007).
Prior to reaching sexual maturity and between spawning years, subadults
and adults occupy coastal estuaries adjacent to their natal rivers, as
well as throughout the West coast, and coastal marine waters within 110
meters (m) depth. Green sturgeon inhabit certain estuaries on the
northern California, Oregon, and Washington coasts during the summer,
and inhabit coastal marine waters along the central California coast
and between Vancouver Island, British Columbia, and southeast Alaska
over the winter (Lindley et al. 2008). Green sturgeon likely inhabit
these estuarine and marine waters to feed and to optimize growth (Moser
and Lindley 2007). Particularly large aggregations of green sturgeon
occur in the Columbia River estuary and Washington estuaries and
include green sturgeon from all known spawning populations (Moser and
Lindley 2007). Although adult and subadult green sturgeon occur in
coastal marine waters as far north as the Bering Sea, green sturgeon
have not been observed in freshwater rivers or coastal bays and
estuaries in Alaska.
Detailed information on the natural history of green sturgeon is
provided in the proposed rule to designate critical habitat (73 FR
52084; September 8, 2008) and in the final biological report (NMFS
2009a) prepared in support of this final rule.
Summary of Comments and Responses
We requested comments on the proposed rule to designate critical
habitat for the Southern DPS of green sturgeon (73 FR 52084; September
8, 2008) and on the supporting documents (i.e., the draft biological
report, draft economic analysis report, and draft ESA section 4(b)(2)
report). To facilitate public participation, the proposed rule and
supporting documents were made available on our Southwest Region Web
site (http://swr.nmfs.noaa.gov) and on the Federal eRulemaking Portal
Web site (http://www.regulations.gov). Public comments were accepted
via standard mail, fax, or through the Federal eRulemaking Portal. In
response to requests from the public, the original 60-day public
comment period was extended an additional 45 days (73 FR 65283;
November 3, 2008), ending on December 22, 2008. A public workshop was
held in Sacramento, CA, on October 16, 2008, and attended by 21
participants, including researchers and representatives from industries
and Federal, State, and local agencies. The draft biological report and
draft
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economic analysis report were also each reviewed by three peer
reviewers.
Thirty-nine written public comments were received on the proposed
rule and supporting documents from Federal agencies, State agencies,
local entities, non-governmental organizations, Tribes, and industry
representatives. Seven comments generally supported the proposed rule,
29 comments did not agree with the designation of critical habitat in
particular areas, and 3 comments provided additional information but
did not support or oppose the proposed rule. Several commenters
requested that certain particular areas or specific areas be considered
ineligible for designation because they do not meet the definition of
critical habitat. Several commenters also requested exclusion of areas
based on economic impacts, impacts on national security, or impacts on
Indian lands. Additional data were provided to inform the biological
and economic analyses, as well as comments regarding the methods used
in these analyses. NMFS considered all public and peer reviewer
comments. A summary of the comments by major issue categories and the
responses thereto are presented here. Similar comments are combined
where appropriate.
Physical or Biological Features Essential for Conservation
Comment 1: Several commenters felt that the critical habitat
designation is not supported by the relatively sparse data and that the
physical or biological habitat features or primary constituent elements
(PCE) identified for green sturgeon are too general and vague, such
that no habitat would exist without them. One commenter noted that the
level of detail provided on the PCEs in the supplementary information
section of the proposed rule is greater than the level of detail
provided in the regulatory text section of the proposed rule.
Response: The critical habitat designation was developed using the
best available scientific data, as required by the ESA. We recognize
that uncertainties exist and have noted where they occur in the final
rule and supporting documents. When appropriate, we incorporated
additional data provided by the public comments regarding the PCEs, the
biological evaluation, and the economic analysis. The level of
specificity of the PCEs was consistent with that provided in previous
critical habitat designations (e.g., for West coast salmon and
steelhead evolutionarily significant units (ESU) and Southern Resident
killer whales). In addition, specific ranges of values for the PCEs
cannot be provided (e.g., water flow levels, adequately low contaminant
levels), because the data are not currently available and because these
values may vary based on the location, time of year, and other factors
specific to an area. The level of detail provided in different sections
of the proposed rule differs because the regulatory text section
typically provides a more brief description of the PCEs, whereas the
supplementary information section typically provides a more thorough
description. The supplementary information section and the supporting
documents provide additional details to describe the process of the
critical habitat designation and the biological and economic analyses
that were conducted in support of the designation, whereas the
regulatory text reports the final designation.
Comment 2: One commenter requested clarification regarding how
acceptably low levels of contaminants would be determined on a case-by-
case basis (as it pertains to the water quality and sediment quality
PCEs). Specifically, the commenter asked whether case-by-case meant
that this would be determined for each Permittee/Project (and if so,
what would be the basis for differentiation) or by contaminant (and if
so, how this would be determined and disseminated to the public).
Response: Consultations under section 7 of the ESA on contaminants
may be conducted on a case-by-case basis for each project or by
contaminant, depending on the scope of the consultation. NMFS has
typically dealt with consultations for contaminants, such as
pesticides, on a project-by-project basis. These consultations have
generally resulted in recommended measures to avoid exposure of the
listed species to the contaminants in question, for example, by
spatially or temporally limiting the introduction of the contaminant
into waterways occupied by the species. However, the recommended
measures are site-specific and will vary depending on the site, the
contaminant(s) in question, the type of use, the purpose of the
project, and the species potentially affected. NMFS recently conducted
two consultations on the national level with the Environmental
Protection Agency (EPA) addressing the registration of pesticides
containing carbaryl, carbofuran, and methomyl (NMFS 2009b) and
pesticides containing chlorpyrifos, diazinon, and malathion (NMFS
2008a). In both consultations, NMFS issued a biological opinion finding
that the registration of these pesticides would jeopardize the
continued existence of most listed salmonids and adversely modify
critical habitat. The reasonable and prudent alternatives provided to
the EPA recommended labeling requirements that specify criteria for the
use and application of the pesticides, including no-application buffer
zones adjacent to salmonid habitat, restrictions on application during
high wind speeds and when a rain storm is predicted, reporting of any
fish mortalities within four days, and implementation of a monitoring
plan for off-channel habitats. To the extent the alternatives minimize
entry of pesticides into water bodies and result in better information,
green sturgeon and other aquatic species will benefit.
Comment 3: One commenter provided additional information from
recent studies indicating that green sturgeon are more sensitive to
methylmercury and selenium (two contaminants found in sediments) than
white sturgeon (Kaufman et al. 2008). The commenter noted that the
studies were unable to determine a ``no effect'' concentration for
selenomethionine for green sturgeon, a contaminant found in bays
including the San Francisco, San Pablo, and Suisun bays and the
Sacramento-San Joaquin Delta (hereafter, the Delta). The commenter
stated that it may be unlikely that many areas will qualify as having
the sediment quality PCE as it is described in the proposed rule.
Response: We appreciate the updated information regarding the
sensitivity of green sturgeon to contaminants and have incorporated
this information into the final rule and biological report. We
recognize the concern expressed by the commenter that few, if any,
areas have sediments free of elevated levels of contaminants (i.e.,
levels at which green sturgeon are not negatively affected). This
brings up two issues. First, whether this affects the eligibility of
the specific areas considered for designation. Because all of the
proposed areas containing the sediment quality PCE also contained at
least one other PCE, the eligibility of the specific areas is not
affected. Related to this is the question of whether a PCE can be
considered to exist within an area if it has been altered and degraded
by past, current, or ongoing activities. The ESA's definition of
critical habitat focuses on PCEs that may require special management
considerations or protection. Thus, the ESA recognizes that the PCEs
may exist at varying levels of quality and allows for the consideration
of PCEs that have been or may be altered or degraded. Second, this
brings up the question of how this PCE will be addressed in
consultations under section 7 of the ESA. The
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specifics of each consultation would vary depending on each project,
but would likely focus on measures to control the introduction of
selenium into the environment. The Sacramento River basin is naturally
very low in selenium and little selenium enters the watercourses from
the surrounding watershed. Conversely, the San Joaquin River basin, due
to the geology of the west side of the valley and the human
agricultural practices conducted in this region, create conditions of
elevated selenium in the waters of the basin draining the west side and
running through the valley floor towards the Delta. It should also be
recognized that selenium is a micronutrient which is necessary for
life, though toxic at levels above trace amounts. Continued monitoring
of selenium levels in sediments and research on the sensitivity of
green sturgeon to this and other contaminants would be supported.
Geographical Area Occupied by the Species
Comment 4: One commenter stated that the range of the Southern DPS
needs to be clarified as previous publications in the Federal Register
do not clearly define the range. Another commenter stated that the
final decision to list the Southern DPS as threatened under the ESA
only applied the listing to the population in California and that,
although Southern DPS green sturgeon move into the Northern DPS' range
outside California, the protections under the listing do not apply to
Southern DPS fish once they enter the Northern DPS' range. The
commenter felt that NMFS should not designate Oregon and Washington
rivers and marine waters as critical habitat if the species is not
listed in these areas.
Response: We acknowledge that in the final listing rule and the
corresponding regulatory language at 50 CFR 223.102(a)(23), it is
stated, ``Where listed: USA, CA. The southern DPS includes all spawning
populations of green sturgeon south of the Eel River (exclusive),
principally including the Sacramento River green sturgeon spawning
population.'' This statement limits the listing to the Southern DPS of
green sturgeon, but does not limit the geographic range to which the
listing applies. A Southern DPS green sturgeon is defined to originate
from spawning populations south of the Eel River (i.e., from the
Sacramento River). Each individual Southern DPS fish carries the
listing, and the protections afforded to it under the ESA, wherever it
goes. In other words, a Southern DPS green sturgeon is listed as
threatened and protected under the ESA no matter where that individual
is found. Thus, Southern DPS green sturgeon are listed throughout their
range, including waters north of California within the range of the
Northern DPS.
NMFS recognizes that previous publications in the Federal Register
have defined the range of Southern DPS green sturgeon with varying
levels of specificity and that this may have resulted in confusion. The
range of the Southern DPS is more clearly defined in the proposed
critical habitat rule and in the draft biological report (NMFS 2008b).
We restate this definition here to further clarify the definition and
range of the Southern DPS of green sturgeon. The proposed critical
habitat rule (73 FR 52084, September 8, 2008) and the draft biological
report (NMFS 2008b) define the Southern DPS as consisting of
populations originating from coastal watersheds south of the Eel River,
with the only confirmed spawning population in the Sacramento River.
The Northern DPS consists of populations originating from coastal
watersheds northward of and including the Eel River, with the only
confirmed spawning populations in the Klamath and Rogue rivers. Thus,
the Northern DPS and the Southern DPS of green sturgeon are defined
based on their natal streams. However, the ranges of the Northern DPS
and Southern DPS are defined by the distribution of each DPS including
and beyond their natal waters. Based on genetic information and
telemetry data from tagged Southern DPS green sturgeon, the occupied
geographic range of the Southern DPS extends from Monterey Bay, CA, to
Graves Harbor, AK. Within this geographic range, the presence of
Southern DPS green sturgeon has been confirmed in the following areas:
Sacramento River, CA; lower Feather River, CA; lower Yuba River, CA;
the Sacramento-San Joaquin Delta, CA; Suisun Bay, CA; San Pablo Bay,
CA; San Francisco Bay, CA; Monterey Bay, CA; Humboldt Bay, CA; Coos
Bay, OR; Winchester Bay, OR; Yaquina Bay, OR; the lower Columbia River
and estuary; Willapa Bay, WA; Grays Harbor, WA; the Strait of Juan de
Fuca, WA; Puget Sound, WA; and Graves Harbor, AK (see final biological
report (NMFS 2009a) for references for each area). Northern DPS and
Southern DPS green sturgeon co-occur across much of their occupied
ranges, are not morphologically distinguishable, and, based on the best
available data at this time, do not appear to differ in temporal or
spatial distribution within areas where their ranges overlap. Thus,
within areas where the Southern DPS has been confirmed, protections for
the Southern DPS would apply to all green sturgeon based on similarity
of appearance. The critical habitat designation recognizes not only the
importance of natal habitats, but of habitats throughout their range
for the conservation of Southern DPS green sturgeon.
Comment 5: One commenter stated that the genetic analysis does not
provide sufficient information to determine the presence or absence of
Southern DPS green sturgeon in the bays and estuaries on the Oregon
coast.
Response: To determine the presence of Southern DPS green sturgeon
in an area, a critical habitat review team (CHRT), comprised of 9
Federal biologists from various agencies, primarily relied on the best
available information from tagging studies. Monitoring of tagged
Southern DPS green sturgeon has confirmed their use of several coastal
bays and estuaries from Monterey Bay, California, north to Puget Sound,
Washington (Moser and Lindley 2007; Lindley et al. 2008; pers. comm.
with Steve Lindley, NMFS, and Mary Moser, NMFS, February 24-25, 2008).
Therefore, presence has already generally been established based on the
tagging data. The available genetic data supports the tagging data by
assigning or confirming the DPS of individuals (e.g., assigning
individuals caught in non-natal waters to the Northern DPS or Southern
DPS) and has also been useful in estimating what proportion of green
sturgeon observed in non-natal estuaries belong to the Southern DPS. In
addition, the genetic data would provide supplemental presence
information once the data set is large enough to ensure detection of
Southern DPS fish, particularly if the estuary or bay has a low
frequency of use.
Comment 6: One commenter requested that additional telemetry data
regarding green sturgeon use of coastal marine waters at Siletz Reef
and Seal Rock Reef off the coast of Oregon be incorporated into the
final biological report and considered in the final critical habitat
designation. The commenter also requested that additional information
be included to support the designation of coastal marine waters from 0
to 20 m depth and from 90 to 110 m depth.
Response: NMFS is currently analyzing the data on green sturgeon
detections off the Oregon coast. Preliminary results indicate that
green sturgeon use deeper depths (between 40 to 80 m) more than
shallower depths, but reasons for this observation are not known.
Detection data for shallower depths may be affected by noise. However,
because these data represent
[[Page 52304]]
only two areas along the Oregon coast, it may not be appropriate to
extrapolate these observations to other areas along the West coast.
Other available data indicate that green sturgeon occur throughout all
depths from 0 to 110 m depth. Some green sturgeon have been caught
deeper than 110 m depth, but the majority occur in waters shallower
than 110 m depth (Erickson and Hightower 2007).
Specific Areas
Comment 7: Two commenters felt that the areas proposed for
designation as critical habitat were too broad. One commenter stated
that NMFS failed to show that the areas are essential for conservation
of the Southern DPS. Another commenter suggested that the areas be
refined based on the spatial and temporal presence of the PCEs. For
example, the commenter stated that riverine areas designated as
critical habitat for spawning purposes should be designated only if
actually used for spawning and only during the time of year that
spawning occurs, because areas spatially or temporally outside of this
would not contain the PCEs for spawning. The commenter stated that such
refinement would help ensure that the designation is not applied in an
overly restrictive manner to activities that occur in areas where no
green sturgeon spawn and that this reasoning can be applied to other
PCEs and habitat uses.
Response: The joint NMFS/U.S. Fish and Wildlife Service (USFWS)
regulations regarding the designation of critical habitat focus on the
primary biological or physical constituent elements (PCEs) that are
essential to the conservation of the species. The ESA states that an
area qualifies as critical habitat if it is occupied and has one or
more PCE(s) that may require special management considerations or
protection. Specific areas are eligible for designation if they meet
these criteria. Neither the ESA definition of critical habitat nor the
joint NMFS/USFWS regulations require that critical habitat be
designated only within the most important core habitats of the species.
In addition, the ESA focuses on the spatial presence of the PCEs,
but does not mention the temporal presence of the PCEs. The level of
refinement described by the commenter is typically considered during
the consultation process under section 7 of the ESA, not during the
critical habitat designation process. Consistent with ESA section 7
consultation practices, spatial and temporal considerations are
commonly assessed during the impact analysis of the proposed action.
While temporal considerations generally look at impacts to individual
fish (i.e., avoidance of exposure as inferred by work windows), actions
can, and often do, affect the habitat that fish use or occupy after the
action is completed. The commenter's example of spawning areas does not
address what potential impacts the ``action'' may have on the quality
of the spawning area after the action is completed. Actions that
temporally avoid areas of use (i.e., spawning activities on the
spawning grounds) during the implementation of the action may still
impact the use of the area after the action is completed. For example,
installing bridge piers upstream of a spawning area still impacts the
spawning area after-the-fact through road runoff entering the river
channel from the bridge, traffic vibrations being transmitted through
the column into the substrate of the river channel during ``normal
use,'' and sedimentation from roadway runoff and altered riparian
habitat. Furthermore, actions that do not occur exactly in the same
place as the area of concern may nonetheless still affect the area of
concern. For example, wastewater discharge upstream of a spawning area
can generate an effluent plume that travels downstream to spawning
areas, and reservoir releases occurring upstream may affect water flow,
velocity, and temperature in the area of concern. Thus, details such as
the specific activities being conducted, the location, and the spatial
and temporal scale are considered in order to determine the potential
effects of the activity on critical habitat and, ultimately, whether
the activity is likely to destroy or adversely modify critical habitat.
Then a determination is made of what, if any, additional actions or
modifications to the proposed action will need to be implemented to
provide protection to the species and their designated critical
habitat. The section 7 consultation process allows NMFS to address the
action's impacts on a case-by-case basis and incorporate the
appropriate level of analysis as needed. A categorical exemption would
not allow this level of review to occur and in fact would diminish the
ability to consistently and accurately assess action impacts and adjust
actions to fit the current status of the species and the condition of
the critical habitat used by the species.
Comment 8: One commenter suggested that the shoreward boundary for
coastal marine habitats should extend to the line of mean lower low
water (MLLW) instead of extreme high tide, and that the seaward
boundary of 110 m depth should be rounded to the 60 fm contour line.
Response: The CHRT, a team of Federal biologists who conducted the
biological analysis, considered and agreed with the recommendations.
The area between the MLLW line and the extreme high tide line along the
coast is small and likely not occupied by green sturgeon. Whereas
studies indicate that intertidal zones within estuaries and protected
bays are important habitat for green sturgeon, green sturgeon likely do
not occupy shallow intertidal areas or high energy surf zones along the
open coast. The CHRT compared the MLLW line along the coast with the
extreme high tide line and found that the area that would be excluded
by defining the shoreward boundary using the MLLW line would be small
and would not contain any areas identified to be important for green
sturgeon. Thus, the CHRT agreed to extend the coastal marine areas to
the area inundated by mean lower low water, rather than to the extreme
high tide. The CHRT also agreed to round the 110 m depth contour line
to the 60 fm contour line, because the 60-fm contour is already
described in Federal regulations for the West Coast groundfish bottom
trawl fishery and is approximately equal to 110 m (60 fm = 109.7 m).
Comment 9: Several comments were received regarding the proposed
designation of the lower Columbia River estuary. The commenters felt
that the geographic definition of the estuary used was too broad and
that the boundary for the estuary in the lower Columbia River should be
defined by the maximum extent of saltwater intrusion, which was defined
by one commenter to occur at RKM 64 and another commenter to occur at
RKM 74. The commenters recommended that the Willamette River and the
lower Columbia River from RKM 64 or RKM 74 to Bonneville Dam should be
excluded from the designation. One commenter asserted that there are no
data indicating that green sturgeon captured above Columbia RKM 64 are
part of the Southern DPS, and that because recent green sturgeon
tagging data indicate that Northern DPS green sturgeon occupy more
interior habitats in the Columbia River estuary than Southern DPS green
sturgeon, a smaller critical habitat area for the Columbia River
estuary is justified.
Response: In the proposed rule, the specific area in the lower
Columbia River estuary was defined as the area from the river mouth to
the Bonneville Dam (RKM 146). The CHRT considered the comments received
and agreed that this specific area should be divided into
[[Page 52305]]
two specific areas as follows: (1) The lower Columbia River estuary
from the river mouth to RKM 74; and (2) the lower Columbia River from
RKM 74 to the Bonneville Dam (RKM 146). This division was based on
differences in environmental parameters and green sturgeon use and
presence between the lower estuary (river mouth to RKM 74) and the
lower river (RKM 74 to Bonneville Dam). River kilometer 74 marks the
approximate location of the maximum extent of saltwater intrusion into
the lower Columbia River and has been used in other reports as the
location to divide the lower estuary and tidal freshwater (Johnson et
al. 2003). Commercial gillnet harvest data for green sturgeon from
1981-2004 (Washington Department of Fish and Wildlife (WDFW) 2007, ESA
informal consultation) indicate the greatest numbers of green sturgeon
catch in zone 1 (RKM 1-32; 29,124 green sturgeon harvested) and zone 2
(RKM 32-84; 8,082 green sturgeon harvested). Green sturgeon catch
declines sharply upstream of RKM 84, with a total of 290 green sturgeon
caught in zones 3-5 (RKM 84-227) from 1981-2004. Observations by WDFW
and Oregon Department of Fish and Wildlife (ODFW) also indicate
concentrations of green sturgeon in the lower estuary with fewer
numbers moving upstream. Unpublished telemetry data support these
observations, showing greater numbers of detections of both Southern
DPS and Northern DPS green sturgeon in the lower portion of the estuary
compared to the upper portion (pers. comm. with Mary Moser, NMFS,
February 25, 2009). However, because the most upstream monitor location
is at RKM 74, the telemetry data provide data on the distribution of
tagged Southern DPS and Northern DPS fish within the lower estuary but
do not provide data on the movement and distribution of tagged green
sturgeon upstream of RKM 74. Tagged Southern DPS green sturgeon have
been detected at the monitor at RKM 74 and are able to access the lower
Columbia River upstream of RKM 74, though data are not available to
determine the number of Southern DPS green sturgeon moving upstream of
RKM 74 or the relative levels of Southern DPS and Northern DPS fish in
this area. Based on information provided in the public comments
indicating that green sturgeon have not been observed in the lower
Willamette River, the CHRT agreed that the Willamette River should not
be included in the areas considered for designation. Thus, the specific
area delineated in the lower Columbia River from RKM 74 to the
Bonneville Dam does not now include the Willamette River. The CHRT's
evaluation of the two specific areas resulted in a conservation value
rating of High for the lower Columbia River estuary from the river
mouth to RKM 74 and a conservation value rating of Low for the lower
Columbia River from RKM 74 to RKM 146 (see response to Comment 14 and
the section titled ``Methods for Assessment of Specific Areas'' for an
explanation of how the conservation value ratings were determined). The
final biological report (NMFS 2009a) provides additional information
about the CHRT's evaluation of each specific area.
Comment 10: One commenter recommended that South San Francisco Bay
be considered a separate area from Central San Francisco Bay and that
South San Francisco Bay should be excluded from the designation because
use of the area by green sturgeon is moderate and it is not needed for
any life history stage that is not supported by the northern reach of
the Bay.
Response: The CHRT acknowledged that Central San Francisco Bay and
South San Francisco Bay can be distinguished by different environmental
and oceanographic features. However, these differences likely do not
affect green sturgeon use of the areas. The best available catch data
for the San Francisco Bay indicate that comparably low numbers of green
sturgeon have been caught in both Central and South San Francisco Bay.
In 2006, a local sport fishing group reported 2 green sturgeon caught
in Central San Francisco Bay, 3 caught in South-Central San Francisco
Bay, and 4 caught in South San Francisco Bay (pers. comm. with Pete
Davidson, Coastside Fishing Club, May 31, 2006). The total green
sturgeon catch in the sport fishery for 2006 is not known, because
sturgeon report cards were not required in California until March 2007
(Gleason 2007). Low numbers of green sturgeon were caught in CDFG's
otter trawl (1980 to 2004) and midwater trawl (1980 to 2001) surveys in
the bays and the Delta (Delta: n = 19; Suisun Bay/Carquinez Strait: n =
27; San Pablo Bay: n = 9; Central San Francisco Bay: n = 8; South San
Francisco Bay: n = 2) (Jahn 2006). It is important to note that the
surveys and sampling gear were not designed to target green sturgeon,
and thus the data may not be truly representative of the relative
levels of green sturgeon use among the bays and the Delta. For example,
given that all green sturgeon must migrate through Central San
Francisco Bay in their migrations to and from the ocean, much larger
numbers of green sturgeon catch would be expected in this area. In
addition, the catch data do not provide information about the
distribution of juvenile green sturgeon throughout the bays and the
Delta. Based on the best available information, juvenile green sturgeon
are believed to distribute widely throughout the bays and Delta for
feeding and rearing and are present in all months of the year (Ganssle
1966, CDFG 2002, Bay Delta and Tributaries Project 2005). Thus, the
CHRT determined that the best available information does not support
dividing the specific area in San Francisco Bay into Central San
Francisco Bay and South San Francisco Bay, and reconfirmed that this
specific area has a High conservation value for the Southern DPS (see
response to Comment 14 and the section titled ``Methods for Assessment
of Specific Areas'' for an explanation of how the conservation value
ratings were determined). Based on the CHRT's assessment of San
Francisco Bay, NMFS determined that this area should be included in the
final critical habitat designation. Studies focused on green sturgeon,
particularly on the juvenile life stages, would help address the data
gaps and inform ESA section 7 consultations resulting from this
critical habitat designation as well as future revisions to the
designation.
Comment 11: One commenter recommended consideration of Nehalem Bay,
Oregon, as a specific area and designation of critical habitat in
Tillamook Bay, Oregon. Sport fish catch from 1986 to 2007 indicate that
279 green sturgeon were taken in the fishery in Tillamook Bay
(corrected catch data provided via pers. comm. with Mary Hanson, ODFW,
July 16, 2009). The habitat in Tillamook Bay is comparable to other
Oregon Bays and estuaries, and genetic analyses have not excluded the
presence of southern DPS green sturgeon. Nehalem Bay was not considered
in the designation and had a sport fish catch record of 254 green
sturgeon from 1986 to 2007 (corrected catch data provided via pers.
comm. with Mary Hanson, ODFW, July 16, 2009). Another commenter stated
that a tagged Southern DPS green sturgeon was detected in Yaquina Bay,
Oregon, in May 2006 and recommended that the biological report be
revised to state that the presence of the Southern DPS in this area is
confirmed.
Response: Based on the additional green sturgeon catch and
telemetry data provided by the commenters, the CHRT added Nehalem Bay
as a new specific area to be considered and re-evaluated Tillamook Bay
and Yaquina Bay. The
[[Page 52306]]
CHRT assigned Nehalem Bay a Medium conservation value rating based on
the large number of green sturgeon captured from 1986 to 2007 and its
location between Tillamook Bay and the Columbia River. The CHRT also
assigned Tillamook Bay a Medium conservation value rating (compared to
its previous Low conservation value rating), based on the large number
of green sturgeon captured in this bay from 1986 to 2007 and
information indicating that Tillamook Bay contains suitable depths for
green sturgeon. The CHRT assigned Yaquina Bay a Low conservation value
rating, which was the same rating given previously. The CHRT then
considered whether Southern DPS presence has been confirmed within the
areas. If Southern DPS green sturgeon presence is likely, but not yet
confirmed, the conservation value rating was reduced by one level.
Because Southern DPS green sturgeon have not yet been confirmed in
Nehalem Bay and Tillamook Bay, the conservation value ratings were
reduced to Low. Because Southern DPS green sturgeon have been confirmed
in Yaquina Bay, the conservation value rating stayed at Low and was not
reduced to Ultra-Low. These ratings were then used as the final
conservation value ratings for the areas. The final biological report
provides more information about the CHRT's evaluation of Nehalem Bay
and re-evaluation of Tillamook Bay and Yaquina Bay. Ultimately only
Tillamook Bay was excluded because the benefits of exclusion outweigh
the benefits of designation.
Comment 12: Two commenters felt that the Umpqua River may warrant
designation because green sturgeon occur in this river, and it was
identified as a potential spawning river in the 2005 status review.
Response: The CHRT evaluated Winchester Bay, the estuary at the
mouth of the Umpqua River, as a specific area eligible for designation
as critical habitat. The Southern DPS consists of green sturgeon
originating from coastal watersheds south of the Eel River, CA
(currently, the only confirmed spawning river is the Sacramento River,
CA). The Northern DPS consists of green sturgeon originating from
coastal watersheds north of and including the Eel River, CA (confirmed
spawning rivers are the Klamath River, CA, and Rogue River, OR). As
described in the proposed rule and biological report, NMFS defined the
Southern DPS' occupied range to include coastal bays and estuaries
upstream to the head of the tide in areas north of and including the
Eel River. In waters north of and including the Eel River, green
sturgeon occurring upstream of the head of the tide are presumed to
belong to the Northern DPS because it is unlikely that Southern DPS
green sturgeon would venture further into non-natal streams beyond the
head of tide. Thus, green sturgeon observed in the Umpqua River
upstream of the head of tide are presumed to be Northern DPS fish.
Genetic analyses have confirmed the presence of Southern DPS green
sturgeon in Winchester Bay and Umpqua River, but the tissue samples
were collected downstream of the head of tide on the Umpqua River
(between RKM 6.4 and 19.3). Thus, the available genetic data also do
not provide information on the presence of Southern DPS green sturgeon
in the Umpqua River upstream of the head of tide (pers. comm. with Josh
Israel, University of California, Davis (UC Davis), July 10, 2009). The
Umpqua River was therefore not identified as an area occupied by the
Southern DPS.
Comment 13: One commenter felt that Chinook salmon should be used
as a surrogate species in place of white sturgeon, because green
sturgeon do not have populations that are isolated from the sea. The
commenter presented a Chinook salmon-based conceptual model for the
life history of green sturgeon in San Francisco Bay, which indicated
that, like Chinook, juvenile green sturgeon most likely migrate from
the San Francisco Bay as soon as possible to coastal marine waters
where food is abundant for feeding and growth.
Response: The CHRT considered the Chinook salmon-based conceptual
model. The CHRT noted that, while green sturgeon may share some
similarities with Chinook salmon with regard to habitat use and needs,
the best available data indicate there are several important
differences between the life history and distribution of green sturgeon
and Chinook salmon that limit the application of the Chinook salmon-
based conceptual model to green sturgeon. Unlike Chinook salmon, green
sturgeon will transit through the San Francisco Bay and Delta complex
several times during their lifetime. Laboratory studies indicate that
Chinook salmon juveniles may occupy fresh to brackish waters at any
age, but do not completely transition to salt water until about 1.5
years of age. Studies in the Klamath River show that juvenile green
sturgeon rear in fresh and estuarine waters for 1 to 4 years before
dispersing into salt water, at lengths of about 300 to 750 mm. Although
there have been few studies on juvenile green sturgeon distribution
throughout the San Francisco Bay, the available data indicate that
juvenile green sturgeon also rear in the area's bays and estuaries for
1 to 4 years before migrating out to coastal marine waters as
subadults. Residence times in the Delta appear to be variable, based on
the temporal frequency of juvenile fish recovered at the fish salvage
facilities of the Central Valley Project and State Water Project and
the data collected from both the 2007 and 2008 sturgeon report cards
from CDFG (Gleason 2008). Green sturgeon can be found in any month of
the year, and apparently multiple year classes are present in the Delta
based on the size distribution of catches, although for green sturgeon
few fish were actually measured (sizes ranged from 12 inches to 68
inches, 19 fish measured out of 240 reported caught; Gleason 2008).
Based on the 2008 report cards, adult green sturgeon were caught by
sport fishermen in every season of the year in the Delta and in the
Sacramento River (from Rio Vista to Chipps Island and from Red Bluff to
Colusa). This year-round presence of adult and juvenile green sturgeon
in the Central Valley differs from the typical Chinook salmon life
history as described by the commenter's conceptual model, in which
juveniles rear in freshwater prior to migrating to the San Francisco
Bay estuary, through which they move rapidly to get to marine waters,
where conditions are better for feeding and growth. In addition,
subadult and adult green sturgeon migrate throughout the West coast
from southern California to Alaska, and are known to occupy
oversummering habitats in coastal bays and estuaries from northern
California to Washington (including Humboldt Bay, Coos Bay, Winchester
Bay, the lower Columbia River estuary, Willapa Bay, and Grays Harbor)
for weeks to months to feed during multiple summers over the course of
their lives. In contrast, Chinook salmon generally use estuaries only
at the beginning and end of their ocean residence (Quinn 2005). Unlike
green sturgeon, they spend their summers in the ocean and do not rely
nearly as heavily on estuarine habitats over their lifespans.
Biological Evaluation of Conservation Value
Comment 14: One commenter stated that the qualitative approach used
by the CHRT to assess the biological conservation benefits of
designation was not adequate because the approach did not provide an
objective estimate of the relative conservation benefit of including a
specific area or a clear standard to compare with the estimated
economic impacts. The commenter
[[Page 52307]]
noted that the approach did not contain an estimate of the species'
current population level, the increase in survival or abundance
expected from the designation of critical habitat, or an estimate of
the economic or monetary value of the conservation benefits.
Response: The ESA requires that a critical habitat designation be
based on the best available scientific data. Data are not available
regarding the current absolute population abundance of the Southern DPS
or green sturgeon in general. Data are also not available to estimate
the monetary value of the conservation benefits of designation and
thereby make a direct comparison to the economic impacts of
designation. In the absence of these data, a qualitative conservation
value rating approach was developed to evaluate the conservation
benefits of designation. The approach incorporated the best available
data and allowed for consideration of the best professional judgment of
the CHRT. The conservation value ratings (High, Medium, Low, Ultra-low)
provided a relative measure of the benefits of designation for each
specific area, at a level appropriate for the level of data available.
This approach has been used in critical habitat designations for
salmonids and has been recognized as an appropriate alternative where
data are not available to monetize the benefits of designation.
Comment 15: One commenter recommended that further evaluation of
whether green sturgeon use particular coastal estuaries and their
habitat value be conducted prior to designation of these areas as
critical habitat. The commenter focused on the coastal estuaries
considered for designation in Oregon, stating that the proposed rule
did not provide information regarding the use or extent of use by green
sturgeon in these areas or the habitat value of these areas to green
sturgeon. Specifically, the commenter stated that: (1) The genetic
analyses do not provide sufficient information to determine the
presence of Southern DPS green sturgeon in Winchester Bay and more
sampling is needed; (2) it is not clear whether tissue samples
collected for genetic analyses were taken from green sturgeon in
Winchester Bay or in the Umpqua River and the results regarding the
proportion of Southern DPS green sturgeon in the area may be affected
by sample size; (3) it is not clear why the Rogue River was excluded,
but Coos Bay was not; and (4) reasons for the designation of Yaquina
Bay and the exclusion of Tillamook Bay and the Siuslaw River estuary
are not clear.
Response: We agree that additional studies are needed to address
information gaps regarding the extent of use of coastal estuaries by
Northern DPS and Southern DPS green sturgeon and to better understand
the habitat function and value of these areas for the species. However,
the ESA requires that NMFS use the best available scientific and
commercial data to designate critical habitat within specific statutory
timelines. Thus, in the face of uncertainty and varying levels of
information available for different areas, NMFS relied on the best
available information and used its best professional judgment where
data were lacking or uncertainty was great.
To evaluate specific areas considered for designation as critical
habitat, the CHRT considered both the use of each area by green
sturgeon and the value of the habitat to green sturgeon. Specifically,
the CHRT evaluated the presence and condition of the PCEs, the habitat
functions provided, and the life stages of green sturgeon confirmed or
most likely to occur there. To confirm the presence of the PCEs, the
CHRT used the presence of green sturgeon, along with the best available
habitat data. To evaluate the relative habitat value of each area, the
CHRT considered the abundance of green sturgeon along with the best
available data on the life stages and uses supported, the consistency
of use, and the temporal and spatial distribution of green sturgeon
within an area. To determine the extent to which Southern DPS green
sturgeon used an area, and the relative value of each area to the
Southern DPS, the CHRT used the best available tagging and genetic
data. The CHRT's analyses and the data used are summarized in this
final rule and described in greater detail in the final biological
report (NMFS 2009a). In the following paragraph, we summarize the
relevant information in response to the comments on specific coastal
estuaries in Oregon.
First, the presence of Southern DPS green sturgeon within coastal
estuaries in Oregon was primarily confirmed by telemetry data and
supported by genetic data, where available. For Winchester Bay, genetic
tissue samples were collected between RKM 6.4 and 19.3, which is
downstream of the head of tide in Umpqua River (head of tide = RKM 40)
and within the boundaries of the specific area delineated for the bay
(pers. comm. with Josh Israel, UC Davis, July 10, 2009; pers. comm.
with Pete Baki, ODFW, July 17, 2009). It is possible that the sample
size affected the analysis of the proportion of Southern DPS green
sturgeon in the bay, but that does not negate the use of these data to
confirm the presence of Southern DPS fish in this area. The CHRT
assigned Winchester Bay a Medium conservation value rating based on
high use of the area by green sturgeon and the presence of suitable
habitat features (see final biological report, NMFS 2009a).
Second, certain coastal estuaries in Oregon were excluded from the
designation because the economic benefits of exclusion outweighed the
conservation benefits of designation. Coastal estuaries in Oregon are
primarily occupied by green sturgeon during the summer and contain PCEs
(including prey resources, water quality, and migratory corridors) that
support feeding and aggregation of subadult and adult green sturgeon.
During the public comment period, additional data were provided by the
ODFW regarding green sturgeon sport catch records in coastal Oregon
estuaries. These data were used to update the data reported in the
draft biological report (NMFS 2008b). The data were considered by the
CHRT and incorporated into the final rule and biological report (see
response to Comment 11). The data indicate that from 1986 to 2007, the
largest numbers of green sturgeon were caught in Winchester Bay (n =
1,889), Tillamook Bay (n = 279), and Nehalem Bay (n = 254), followed by
Coos Bay and Yaquina Bay (n = 201) (ODFW 2009a, b). Southern DPS green
sturgeon tagged in the Sacramento River and San Pablo Bay have been
detected in Coos Bay, Winchester Bay, and Yaquina Bay (pers. comm. with
Steve Lindley, NMFS, and Mary Moser, NMFS, February 24-25, 2008; pers.
comm. with Dan Erickson, ODFW, September 3, 2008). The CHRT initially
assigned a Medium conservation value to Winchester Bay, Coos Bay,
Tillamook Bay, and Nehalem Bay, based on data indicating consistent use
by and relatively large numbers of green sturgeon in these estuaries.
However, the conservation value for Tillamook Bay and Nehalem Bay was
reduced by one level to Low, because there was no evidence to confirm
that any green sturgeon in those areas belong to the Southern DPS.
Although Southern DPS presence has been confirmed in Yaquina Bay, the
CHRT assigned the area a Low conservation value (NMFS 2009a). Finally,
the estuaries at the mouths of the Siuslaw and Alsea rivers were
assigned a Low conservation value based on relatively low numbers of
green sturgeon recorded in the sport catch data (sport catch = 50 green
sturgeon in Siuslaw estuary and 30 green sturgeon in Alsea estuary from
1986 to 2007; ODFW 2009a, b). The conservation value was reduced to an
[[Page 52308]]
Ultra-low because we lack data to confirm the presence of Southern DPS
green sturgeon in these estuaries.
Under section 4(b)(2) of the ESA, NMFS has the discretion to
exclude an area from the designation if the benefits of exclusion
outweigh the benefits of designation. Tillamook Bay, Siuslaw River
estuary, Alsea River estuary, Coos Bay, and the Rogue River estuary
were all determined to be potentially eligible for exclusion under ESA
section 4(b)(2) based on economic impacts. All of these, except for
Coos Bay, were excluded based on NMFS' determination that the economic
benefits of exclusion outweighed the conservation benefits of
designation. Although data demonstrate that the Rogue River estuary is
consistently used by large numbers of green sturgeon, the area was
assigned an Ultra-Low conservation value because the best available
data indicate that the green sturgeon observed there belong to the
Northern DPS. Thus, the designation of critical habitat in the Rogue
River estuary would not likely benefit the conservation of the Southern
DPS. Coos Bay was not excluded, because the data indicate consistent
use by relatively large numbers of green sturgeon that include Southern
DPS fish. The CHRT determined that protection of Coos Bay as critical
habitat is important for the conservation of green sturgeon, and
exclusion of Coos Bay would significantly impede conservation. Based on
the CHRT's recommendation, NMFS determined that the economic benefits
of exclusion do not outweigh the conservation benefits of designation
for Coos Bay and included Coos Bay in the final critical habitat
designation. We recognize that the level of data available varies
across areas and may affect the evaluation of these areas. We encourage
additional studies of green sturgeon distribution in, and use of,
coastal estuaries to inform NMFS' consultations under section 7 of the
ESA, recovery planning and implementation, and future revisions to the
critical habitat designation for the Southern DPS.
Comment 16: One commenter noted that many of the coastal marine and
estuarine areas proposed for designation as critical habitat are
already altered habitats, wanting NMFS to recognize that routine,
regular maintenance activities (including maintenance dredging of
navigation channels) are conducted within these areas by the U.S. Army
Corps of Engineers to support ongoing multi-purpose projects.
Response: NMFS acknowledges that many of the coastal marine and
estuarine areas proposed for designation as critical habitat contain
habitats that have been altered by past and ongoing activities. These
past and ongoing activities have likely affected the PCEs within each
area, but have not degraded the PCEs such that they no longer exist
within the areas. The continued presence and use by green sturgeon of
each area indicate that the PCEs exist and still provide habitat
functions to support the species. In addition, the presence of regular
routine maintenance indicates that the PCEs within the coastal marine
and estuarine areas may require special management considerations or
protection.
Comment 17: One commenter noted that the proposed rule incorrectly
stated that green sturgeon present in estuaries of the Eel, Klamath/
Trinity, and Rogue rivers are believed to belong to the Northern DPS,
based on the fact that these are spawning rivers for the Northern DPS
(73 FR page 52091, bottom of third column). The commenter requested
clarification that green sturgeon spawning has not been confirmed in
the Eel River.
Response: We acknowledge this error in the proposed rule. The final
rule corrects this error and states that green sturgeon present in
estuaries of the Klamath/Trinity and Rogue rivers are presumed to
belong to the Northern DPS because these are spawning rivers for the
Northern DPS and no tagged Southern DPS green sturgeon have ever been
detected in the estuaries. Green sturgeon in the Eel River estuary are
presumed to belong to the Northern DPS based on the definition of the
Northern DPS (which includes the Eel River). In 2008, a hydroacoustic
array was installed in the Eel River estuary and detected one tagged
Northern DPS green sturgeon. More data from tagging and genetics
studies are needed to confirm whether or not Southern DPS green
sturgeon occupy the Eel River estuary.
Comment 18: Commenters requested additional information to be
presented in the biological report, including: A table citing the
references used to determine the presence of green sturgeon in each
specific area; the results from the CHRT's three approaches for
evaluating the conservation value of the species areas; and additional
telemetry data and references provided by reviewers and commenters. Two
commenters also noted an error in Table 5 of the draft biological
report regarding the tally of conservation value rating votes for Grays
Harbor, WA.
Response: The final biological report incorporates the changes
requested and the additional information provided by the peer reviewers
and public comments. First, a table listing each specific area, the
life stages of green sturgeon that are present, and the relevant
references was added to the report. Second, the CHRT had used three
different approaches for assigning conservation values to the specific
areas, but only the results of the final method were reported in the
draft biological report. The final biological report provides the
results for all three approaches for comparison. Third, additional
telemetry data and information regarding green sturgeon spawning in the
Sacramento River were incorporated into the report and considered by
the CHRT. Finally, corrections were made to the conservation value
rating tally for Grays Harbor in Table 7 of the final biological report
(formerly Table 5 in the draft biological report). Specifically, the
draft biological report incorrectly reported 6 votes for Medium and 2
votes for Low conservation values. The correct tally was 6 votes for
High and 2 votes for Medium conservation values.
Special Management Considerations
Comment 19: One commenter stated that most of the 13 types of
activities that potentially require special management are already
regulated under existing environmental regulations that address effects
on the PCEs. The commenter requested additional information to describe
the cause/effect relationship between the PCEs and each of the 13 types
of activities that potentially require special management.
Response: This comment raises the concern of whether the specific
areas considered for designation as critical habitat are eligible for
designation. To be eligible for designation, the specific area must
meet the definition of critical habitat. That is, the specific area
must contain at least one PCE that may require special management
considerations or protection. The focus of this comment is on whether
the ``special management considerations or protection'' criterion is
satisfied. Special management considerations or protection mean ``any
methods or procedures useful in protecting physical and biological
features of the environment for the conservation of listed species''
(50 CFR 424.02). In determining whether a specific area met the
definition of critical habitat, the CHRT was asked to identify whether
any PCE could be found in the specific area, whether there were any
actions (either ongoing or anticipated) occurring in the area that may
threaten the PCE(s), and whether there would be any methods or
procedures useful in protecting the PCE(s). The CHRT based
[[Page 52309]]
their assessment on their knowledge of the areas and the PCEs and their
experience conducting section 7 consultations or field research on
green sturgeon in the areas. The CHRT was not asked to identify
existing protections within each area, nor was the CHRT asked to
evaluate whether existing protections were adequate. The existence of
environmental regulations does not negate the fact that the PCEs within
an area may require special management considerations or protection.
Thus, the existence of environmental regulations that already regulate
the activities of concern was not a factor to be considered by the CHRT
in determining the eligibility of an area for consideration as critical
habitat. Instead, the consideration of existing environmental
regulations and other protections that address the PCEs is a question
to be considered in the ESA 4(b)(2) analysis when weighing the benefits
of exclusion against the benefits of designation. The final biological
report was revised to include a more detailed description of the 13
types of activities that may require special management and how these
types of activities may affect the PCEs.
Comment 20: One commenter recommended that gravel augmentation
should not be under the ``in-water construction or alteration''
category, but should be included in the ``habitat restoration''
category because there will be potential habitat benefits from gravel
augmentation. Otherwise, the commenter noted that a large number of
restoration activities should also be included in the ``in-water
construction or alteration'' category. The commenter requested that in-
water construction or alteration activities and habitat restoration
activities be more clearly defined.
Response: We revised the final rule and supporting documents to
more clearly define in-water construction or alteration activities and
habitat restoration activities. In-water construction or alteration
activities include activities that involve the construction or
maintenance of some physical in-water structure (e.g., breakwaters,
docks, piers, pilings, bulkheads, boat ramps, utility lines) or the
alteration of physical in-water habitat features (e.g., channel
modification/diking, sand and gravel mining), including activities
occurring outside of the water but that may affect in-water habitat
(such as road building and maintenance, forestry, grazing, and
urbanization that may lead to increased erosion and sedimentation).
Habitat restoration activities are activities conducted for the primary
purpose of restoring natural aquatic or riparian habitat conditions or
processes. We agree that gravel augmentation can be included as a
habitat restoration activity and have included it in this category in
addition to the in-water construction or alteration activity category.
We note, however, that gravel augmentation and other habitat
restoration activities may have either positive or negative effects on
critical habitat for green sturgeon, depending on the type of activity,
location, time of year, scale, and other factors. For example, gravel
augmentation could possibly fill in deep pools (greater than 5 meters
in depth) used by green sturgeon for holding and spawning. These
activities would be subject to requirements under section 7 of the ESA
to address potential effects on critical habitat.
Comment 21: Two commenters were concerned about the effect that
invasive submerged aquatic vegetation may have on the physical or
biological features essential for conservation in shallow water
habitats and felt that this should be considered in the designation.
One commenter also requested that the CHRT consider activities that may
result in a large increase of erosion, including logging, gravel
mining, and the use of recreational off-road vehicles near riparian
areas, and their effects on present or future spawning streams.
Response: The CHRT identified the introduction and spread of non-
native species as a potential threat to the PCEs that may result in the
need for special management considerations or protection. We recognize
that invasive submerged aquatic vegetation, such as the Egeria densa
mentioned by one commenter, may affect shallow waters by trapping
sediments, forming thick mats that obstruct passage, and crowding out
native vegetation. Activities that result in increased erosion were
also considered by the CHRT under the ``in-water construction or
alterations'' category. The final rule clarifies that activities that
occur outside of designated critical habitat, including those conducted
upstream, upland, or adjacent to designated critical habitat areas, can
destroy or adversely modify critical habitat and would also be subject
to requirements under section 7 of the ESA with regard to critical
habitat. Therefore, the commenters' concerns have been addressed.
Comment 22: Several commenters provided information on additional
activities that should be considered which occur within the specific
areas and that may threaten the PCEs.
Response: We considered the information provided on additional
activities and incorporated the information into the final rule and
supporting documents. The changes include: (1) Feather River--added
habitat restoration activities; (2) Yolo Bypass--added dams (Lisbon
Weir and Fremont Weir), water diversions, pollution, and habitat
restoration; (3) Sutter Bypass--added dams (weirs located in the toe
drain), water diversions, pollution, habitat restoration, and in-water
construction or alteration activities; (4) Sacramento-San Joaquin
Delta--added dams (locks, weirs, and temporary barriers) and commercial
shipping; (5) lower Columbia River estuary (from RKM 0 to 74)--the two
LNG projects identified by the commenters were already considered in
the proposed rule, however, based on public comments received, we
divided the lower Columbia River and estuary into two specific areas
(the lower Columbia River estuary from RKM 0 to 74 and the lower
Columbia River from RKM 74 to 146; see response to comment 15) and the
LNG projects were assigned to the lower Columbia River estuary specific
area; and (6) coastal marine waters off Oregon--added 5 proposed wave
energy projects.
Potential Effects of the Critical Habitat Designation on Activities
Comment 23: One commenter requested that further clarification be
given whether a Federal nexus exists for the commercial crab and pink
shrimp State-managed fisheries that may trigger section 7 requirements.
The commenter noted that consultation may also be required for bottom
trawl fisheries conducted in coastal marine waters off Oregon.
Response: Based on the information provided by the commenters and
the current management regime at this time, NMFS does not believe that
a Federal nexus exists for the commercial crab and pink shrimp State-
managed fishery off Oregon. However, the fishery may be subject to the
ESA section 4(d) rule for the Southern DPS of green sturgeon (proposed
May 21, 2009, 74 FR 23822) if take of green sturgeon occurs in this
fishery. NMFS is working with the Pacific Fishery Management Council
(PFMC) to prepare for a consultation under section 7 of the ESA on the
groundfish bottom trawl fishery conducted off California, Oregon, and
Washington. The consultation would address impacts on green sturgeon
critical habitat within coastal marine waters.
Comment 24: Several commenters requested additional information on
what changes might be recommended
[[Page 52310]]
for the California State Water Project (SWP) and the Central Valley
Project (CVP) operations and how these areas may require special
management.
Response: The effects of the combined CVP and SWP operations on the
Southern DPS were analyzed by NMFS in the recently issued Biological
and Conference Opinion (2009 OCAP BO). The most conspicuous change to
CVP operations is the operations of Red Bluff Diversion Dam (RBDD).
Following the issuance of the 2009 OCAP BO, gates will remain open from
September 1st through June 14th until May of 2012. By May 14th, 2012,
the Red Bluff alternative intake pumps are anticipated to be
operational. This will allow the Tehama-Colusa Canal Authority (TCCA)
to divert sufficient water through screened pumps to meet its
obligations without relying on the operations of the RBDD to back up
water to supply its current gravity fed diversion. The operation of the
screened pumps will allow for the decommissioning and eventual removal
of the RBDD. During the interim period (2009 to 2012), screened pumps
will be installed adjacent to the current location of the RBDD to
divert sufficient volumes of water to meet TCCA needs through June 14th
of each year. After June 14th, the RBDD gates will be lowered to back
up river water and supply the gravity fed diversions. When the gates
are operational, a minimum of 18 inches of clearance will be maintained
beneath the radial gate to allow for downstream passage of adult green
sturgeon. In addition, the TCCA and the Bureau of Reclamation will fund
studies over the next 3 years specifically focused on green sturgeon to
determine population size, movements of fish within the system, and
habitat preferences and usage within the Central Valley. Within the
Delta, reoperation of the Delta Cross Channel gates will result in
closing the gates earlier to prevent emigrating fish from entering the
Delta interior. Although primarily designed for salmonid protection,
the closing of the gates may have some utility in protecting adult and
juvenile green sturgeon emigrating during the same time period (better
conditions in the Sacramento River migratory corridor versus less
hospitable conditions within the Mokelumne River corridor). Likewise,
export curtailments designed to benefit emigrating salmonids are
expected to benefit juvenile green sturgeon and reduce their
entrainment by the pumps during the periods of export reduction.
Modifications to the fish salvage facilities to enhance the efficiency
of the overall salvage will benefit green sturgeon. Increases in
sampling rate/duration at the fish salvage facilities will better
quantify the effects of the export actions on green sturgeon. The
section 7 consultation on the Federal Energy Regulatory Commission
(FERC) relicensing of Oroville Dam is assessing the river temperature
profile downstream of the Thermalito Afterbay outlet to ascertain
whether additional spawning habitat can be gained through modifications
of facilities, and/or operations of dam releases, or reconfiguration of
the Thermalito Afterbay itself.
Economic Analysis
Comment 25: One commenter felt that NMFS cannot adequately estimate
the incremental economic effects of the critical habitat designation,
because NMFS has not yet issued an ESA 4(d) rule for the Southern DPS.
Response: The economic analysis (Industrial Economics Inc.
(Indecon) 2009) complies with the ESA's mandate to use the best
available information, and NMFS believes it provides a sufficient
assessment of the baseline and incremental economic impacts of
designating critical habitat for green sturgeon. The baseline for the
incremental impacts analysis includes the estimated costs attributed to
the listing of the species and the protections under section 7 of the
ESA requiring Federal agencies to ensure their actions do not
jeopardize ESA-listed species. The baseline also includes protections
already provided to green sturgeon critical habitat under existing
protections for other listed species, such as West Coast salmon and
steelhead, delta smelt, and marine mammal species. The incremental
analysis of impacts looks at what is required to avoid adverse
modification of green sturgeon critical habitat, above and beyond what
is already required to avoid jeopardy of listed species and adverse
modification of existing critical habitat, and to comply with other
existing Federal, State, and local protections.
To assess the baseline and incremental impacts, the best available
information was used from the short consultation history for green
sturgeon, as well as information from surrogate species (e.g.,
salmonids) whose distribution and life history traits overlap with the
green sturgeon's, because the protective measures that have been
established for these species are similar to what NMFS would anticipate
for green sturgeon. Uncertainties related to assessing incremental
impacts exist, but this is partly due to the project-specific nature of
the ESA section 7 consultations that NMFS conducts with other Federal
agencies. To address this uncertainty, a conservative approach was
taken to ensure that the analysis adequately represents the potential
impacts and incremental costs associated with the critical habitat
designation. Therefore, promulgation of take prohibitions under an ESA
4(d) rule is not necessary to assess the baseline and incremental
impacts of the critical habitat designation.
Comment 26: Several commenters disagreed with the draft economic
analysis' method for assessing incremental impacts. One commenter also
noted the draft economic analysis did not adequately define the
baseline used in the analysis. Specifically, commenters suggested that
the baseline should not include protections for green sturgeon offered
by conservation measures undertaken for Pacific salmon. One commenter
noted that the economic analysis should consider both incremental and
baseline impacts. In particular, the commenter suggested that baseline
impacts should be considered because if one of the listed salmonids
were delisted, the designation of critical habitat for green sturgeon
could become the primary reason certain conservation measures are
undertaken. Another commenter stated that NMFS' consideration of all
potential project modifications that may be required under section 7 of
the ESA, regardless of whether those changes may also be required under
the jeopardy provision, appears to be contrary to the reasoning of the
Cape Hatteras Access Preservation Alliance v. U.S. Department of
Interior (344 F. Supp. 2d 108 (D.D.C., 2004)) (Cape Hatteras) court
decision that the effects of listing and the jeopardy provision should
not be considered as part of the impacts of a designation in the ESA
4(b)(2) analysis for a critical habitat designation.
Response: As outlined in Section 1.3 of the final economic analysis
report (Indecon 2009), the analysis does not attribute all potential
project modifications required under section 7 to the critical habitat
designation. Rather, it takes an incremental approach, comparing the
state of the world with and without the designation of critical habitat
for green sturgeon. The ``without critical habitat'' scenario
represents the baseline for the analysis, considering habitat
protections already afforded green sturgeon under its Federal listing
or under other Federal, State, and local regulations, including
protections afforded green sturgeon resulting from protections for
other listed species, such as West Coast
[[Page 52311]]
salmon and steelhead, delta smelt, and marine mammal species. The
``with critical habitat'' scenario attempts to describe the incremental
impacts associated specifically with green sturgeon critical habitat
designation. The courts in several cases have held that an incremental
analysis is proper (see for example: Cape Hatteras; Center for
Biological Diversity v. United States Bureau of Land Management, 422 F.
Supp. 2d. 1115 (N.D. Calif. 2006); and Arizona Cattle Growers v.
Kempthorne, 534 F. Supp. 2d 1013 (D. Ariz. 2008)).
Section 1.4 of the final economic analysis report clarifies how the
economic analysis defines its baseline, or ``without critical habitat''
scenario. As described in Section 1.4.5 of the final economic analysis
report, project-specific conservation efforts that benefit green
sturgeon are frequently undertaken due to the joint presence of
multiple anadromous fish species and habitats and may therefore be
implemented regardless of the presence of green sturgeon critical
habitat. This complicates the identification of changes in behavior
associated specifically with the green sturgeon critical habitat. This
analysis employs best professional judgment in calculating the
probability that green sturgeon conservation needs are a primary driver
of the implementation of a joint conservation effort. Thus, this
analysis estimates the likelihood that consideration of green sturgeon
critical habitat will weigh heavily in the implementation of a
conservation effort undertaken due to the presence of multiple species
and habitats. This probability is dependent upon a number of factors,
including the details of the project and conservation effort in
question and the number of sensitive species present. By excluding
impacts for which green sturgeon critical habitat is not a key reason
for a conservation effort implementation, this analysis focuses the
quantification of impacts on those associated specifically with green
sturgeon habitat conservation. Because the probability that any given
conservation effort is being driven by green sturgeon conservation as
opposed to other species is subject to significant uncertainty, the
final economic analysis report presents a sensitivity analysis for
these assumptions. Appendix E of the final economic analysis describes
alternative results assuming the extreme case that green sturgeon is
always a primary driver of the conservation efforts (e.g., that 100
percent of the time fish screens are installed, it is primarily due to
green sturgeon conservation needs).
Comment 27: Several commenters noted that it would be helpful if
the draft economic analysis provided additional, detailed explanations
of the methodology for calculating impacts for specific activities,
including dam projects.
Response: Section 1.4 of the final economic analysis report
provides a revised discussion of how the various cost estimates are
developed and aggregated to develop total annualized impacts per unit.
Every section for a specific economic activity contains exhibits on
these three data points: (1) Number of affected projects by unit; (2)
expected annualized costs of conservation efforts for anadromous fish
species per project; and (3) the probability that green sturgeon drives
the impact for that activity in that unit (for units where listed
salmon and steelhead habitat overlap occurs). The analysis multiplies
the number of affected projects in each unit by the annualized costs
per project and the probability score for each unit to arrive at
projected impacts. For example, costs of fish screens at water
diversions are developed by estimating average costs of fish screens
($80,000 to $130,000), annualizing over 20 years, and multiplying by
the number of water diversions in affected units. For units where
listed salmon and steelhead species are present, the costs are again
multiplied by the probability that green sturgeon will be the driver of
passage costs. Specific costs of fish passage projects in critical
habitat areas provided by public commenters have been incorporated into
the analysis of impacts on dam projects.
Comment 28: One commenter noted that the designation of critical
habitat may result in economic activities not being carried out (e.g.,
dredging, project, in-water construction, development project) or
otherwise lead to time delays. The draft economic analysis should
address losses in consumer surplus resulting from these potential
delays.
Response: As discussed in Section 1.3.2 of the final economic
analysis report, the analysis does consider time delay impacts
associated with the section 7 consultation process and/or compliance
with other laws triggered by designation where applicable. For example,
estimated impacts to dredging projects include impacts associated with
possible work window constraints (see Exhibit 2-4).
Comment 29: One commenter stated that the draft economic analysis
employed a ``cost-effectiveness'' analysis to analyze impacts; however,
the draft economic analysis did not provide sufficient data to
determine which areas would provide the greatest biological benefit for
each dollar of associated impact.
Response: As discussed in Section 1.2.1 of the final economic
analysis report, we used an alternative form of cost-effectiveness
analysis for this rulemaking. This alternative form develops an ordinal
measure of the benefits of critical habitat designation. Although it is
difficult to monetize or quantify benefits of critical habitat
designation, it is possible to differentiate among habitat areas based
on their estimated relative value to the conservation of the species.
For example, habitat areas can be rated as having a high, medium, or
low biological value. The output, a qualitative ordinal ranking, may
better reflect the state of the science for the geographic scale
considered here than a quantified output and can be done with available
information. The final ESA section 4(b)(2) report (NMFS 2009c)
discusses the specific weighing process that we performed for this
rule.
Comment 30: One commenter stated that the cumulative economic
impact of baseline protections was not included in the economic
analysis.
Response: The economic analysis estimates costs associated with
conducting an ESA section 7 consultation to ensure Federal agency
actions are not likely to destroy or adversely modify critical habitat.
We did not have information available to determine the cumulative
economic impacts of baseline protections, nor did the commenter provide
us data that would allow us to make such a determination.
Comment 31: One commenter stated that although little impact is
expected on the part of the Bureau of Land Management, additional
review is needed to ensure that the economic analysis accurately
reflects increased administrative costs associated with section 7
consultation for other Federal agencies.
Response: The final economic analysis report now includes an
overview in section 1.3.2 of the estimated future annual administrative
costs associated with section 7 consultations for green sturgeon. Based
on the consultation history for completed consultations that included
green sturgeon to date (2006-2009), the economic analysis forecasts an
average future annual rate of section 7 consultation for green sturgeon
of 12 formal consultations, 67 informal consultations, and eight
technical assistance efforts. The additional, incremental
administrative effort
[[Page 52312]]
associated with these consultations is estimated to be approximately
$251,000 per year, including efforts by the Service, Action agencies,
and third parties.
Comment 32: Several commenters stated that the economic analysis
failed to consider community level impacts.
Response: We acknowledge that modifications to economic activities
within one unit may affect economic activities in other units. The
analysis also acknowledges that potential impacts could result in
regional economic effects, for example in fishing communities, should
the level of bottom trawl fishing catch be curtailed as a result of
this designation. However, the regional economic effects of the
critical habitat designation are unknown because many uncertainties
exist. For example, potential reductions in fishing effort in critical
habitat areas may or may not lead to reductions in profits, depending
on the availability and quality of alternative sites. Therefore, the
economic analysis report describes the potential regional economic
effects and the uncertainties associated with their analysis, but does
not quantify these effects.
Comment 33: One commenter thought that the draft economic analysis
failed to consider energy impacts resulting from potential changes in
management at the Red Bluff Diversion Dam and other water diversions.
Specifically, the commenter was concerned the farmers may need to seek
out replacement water supplies that may require additional energy
consumption. The commenter also was concerned that permanent crop loss
in some areas could lead to losses of carbon dioxide conversion and
result in widespread changes in energy consumption over a wide
geographic area.
Response: Appendix D of the final economic analysis report now
presents an energy impacts analysis. This energy impacts analysis
assesses whether the green sturgeon critical habitat designation would
result in one of nine outcomes that may constitute ``a significant
adverse effect'' as outlined by the Office of Management and Budget in
their guidance on implementing Executive Order 13211. These include:
(1) Reductions in crude oil supply in excess of 10,000 barrels per day;
(2) reductions in fuel production in excess of 4,000 barrels per day;
(3) reductions in coal production in excess of 5 million tons per year;
(4) reductions in natural gas production in excess of 25 million Mcf
per year; (5) reductions in electricity production in excess of 1
billion kilowatt-hours per year or in excess of 500 megawatts of
installed capacity; (6) increases in energy use required by the
regulatory action that exceed the thresholds above; (7) increases in
the cost of energy production in excess of one percent; (8) increase in
the cost of energy distribution in excess of one percent; or (9) other
similarly adverse outcomes. Of these, the most relevant criteria to
green sturgeon critical habitat are potential changes in natural gas
and electricity production, as well as changes in the cost of energy
production. Possible energy impacts may occur as the result of
requested project modifications to hydropower dams, alternative energy
hydrokinetic projects, and LNG facilities. The potential impacts of
permanent crop loss on carbon dioxide levels in the atmosphere and the
potential changes in climate and energy consumption in affected regions
are unclear at this time due to many uncertainties. For example, it is
uncertain what the effects of crop loss are on atmospheric carbon
dioxide levels and subsequently on climate and on energy consumption by
consumers. Further complicating matters is the uncertainty regarding
how these relationships may be affected by other impacts on atmospheric
carbon dioxide levels from activities related to or outside of this
critical habitat designation. Therefore, these impacts cannot be
analyzed at this time.
Comment 34: One commenter asked how the lost revenue figures
estimated in the small business analysis related to the estimated
impacts calculated in the rest of the economic report. In addition, the
commenter specifically requested that the small business analysis
provide information about the potential revenue losses for farmers as a
share of their total revenues.
Response: The estimated lost revenues per small business included
in the Final Regulatory Flexibility Analysis (Indecon 2009) are
calculated by taking the mid-range scenario impacts presented in
Chapters 3 through 5 of the final economic analysis report, and then
dividing by the estimated number of small entities by activity by unit,
as presented in Exhibit C-3. Average net operational dollar gain per
farm (ignoring government payments) in the study area ($147,000,
average for affected communities) are now included in the analysis for
context.
Comment 35: One commenter stated that impacts to the Yaquina River
unit were underestimated because there are on-going dredging and in-
water construction projects in that area.
Response: The final economic analysis report considers dredging and
in-water construction projects as potential threats to green sturgeon
in the Yaquina River unit. However, the 404 permit data from the U.S.
Army Corps of Engineers used to estimate the level of dredging and in-
water construction activity taking place in the Yaquina River Unit do
not indicate current projects in that area.
Comment 36: One commenter noted that the critical habitat
designation could result in a significant, additional regulatory burden
for the Port of Portland for in-water work activities (e.g., dredging,
wharf construction, and routine dock repairs).
Response: The economic analysis considers potential impacts to the
Port's in-water work activities. The Port of Portland appears to fall
within Unit 24b, the Lower Columbia River. For this unit, the final
economic analysis report forecasts total annualized impacts of between
$106,000 and $413,000 for dredging projects and $151,000 to $1,230,000
for in-water construction in this unit. A discussion of potentially
affected commercial shipping resources is included in Section 4 of the
final economic analysis report, and includes the Port of Portland.
Comment 37: Several commenters thought that the draft economic
analysis failed to consider impacts to shoreline development.
Specifically, the commenters argued that the proposed rule identified
development and upland activities as economic activities that may
adversely modify critical habitat and therefore may need to be altered.
Therefore, the commenters believed that shoreline development should be
addressed in the economic analysis.
Response: Typically the development issue of most concern is the
potential for critical habitat to inhibit the development potential of
affected land parcels, thereby constraining (or reducing) the land
available for future development. In areas that are highly developed,
or where developable land is scarce (for non-critical habitat related
reasons), the reduction in available land due to critical habitat can
impose significant economic impacts. However, the designation of
critical habitat for the green sturgeon is not expected to result in
these types of direct impacts on residential development for multiple
reasons.
First, unlike terrestrial species, habitat for the green sturgeon
is not itself part of the supply of developable land. For this reason,
protection of the aquatic habitat need not take the form of supplanting
development if the impacts of the development can be mitigated. Given
the minimal consultation history for green sturgeon, a review of the
information available for west coast
[[Page 52313]]
salmon and steelhead can provide further insight on this issue. For
salmon and steelhead, NOAA fisheries personnel indicated that
consultations regarding development projects are rare. Review of the
salmon consultation history further supports this assessment, but more
importantly, development consultations only addressed specific
development activities with a Federal nexus, such as stormwater outfall
structures (i.e., consultations did not address the entire residential
project, nor were any mitigation or land offsetting required). Based on
this information, residential development for salmon and steelhead were
not expected to have direct impact on the supply of land or housing for
residential development. However, potential impacts on National
Pollutant Discharge Elimination System (NPDES) permitted facilities
were included.
Following this same approach, the final economic analysis report
similarly does not anticipate any direct impacts to residential
development in the form of reduced developable land. Rather, impacts to
development activities are limited to the additional costs that would
result from NPDES-related activities where a Federal nexus exists. The
estimated number of NPDES-permitted facilities and the costs associated
with these facilities as a result of the rulemaking are provided in
Section 2.3 of the final economic analysis report. Potential threats
from industrial or municipal runoff do not have a clear Federal
connection; therefore, they are assumed to be dealt with primarily
outside of the section 7 consultation realm.
Comment 38: Several commenters stated that the economic analysis
did not consider impacts to specific projects involving dams and water
diversions. One commenter stated that the draft economic analysis
failed to discuss implications of the designation on the operations of
the State Water Project and Central Valley Project. Another commenter
inquired as to why specific discussion of Red Bluff Diversion Dam was
not included in the draft economic analysis, and provided information
on costs of constructing the Red Bluff Pumping Plant. In particular,
the commenter noted that RBDD has undertaken a $165 million screened
pumping plant as part of a Fish passage Improvement Project in the hope
of minimizing impacts resulting from critical habitat designation.
Another commenter provided information on potential costs of fish
passage and dam removal at Daguerre Point Dam.
Response: Because of the large geographic area covered by proposed
green sturgeon critical habitat and the large number of dams and water
diversions located within the study area, Section 2.5 of the final
economic analysis report broadly assumes that all dams do not currently
have, but will require fish passage, and that all water diversions in
affected watersheds do not currently have, but will require fish
screens. For projects that already have fish passage facilities or fish
screens, the analysis may overstate potential impacts. Because the
analysis relies on average ranges of costs of these requirements, this
approach may understate potential impacts for some individual projects.
As a result, where public commenters provided specific cost estimates
associated with potential fish passage issues in green sturgeon
critical habitat areas, these have been incorporated into the final
economic analysis report. Due to the regional importance the State
Water Project and Central Valley Project, the final economic analysis
report incorporates a more detailed discussion of these projects than
was included in the draft economic analysis (also see response to
Comment 24). Particularly relevant to the green sturgeon critical
habitat area are the Red Bluff Diversion Dam and Daguerre Point Dam,
which are now discussed in more detail.
Comment 39: One commenter stated that costs on the Upper and Lower
Sacramento River units appear to be inordinately low. Specifically, the
commenter noted that incremental impacts from possible special
management measures and protections involving releases from dams or
limiting diversions have potential to greatly magnify the economic
impacts of the proposed rule and were not accurately captured in the
economic analysis or proposed rule. The commenter also stated that
agricultural operations are greatly affected by the operations of the
Red Bluff Diversion Dam, which may not have been taken into account in
the analysis.
Response: The amount of water within particular areas that may be
diverted from activities such as irrigation, flood control, municipal
water supply, and hydropower, for the purposes of green sturgeon is
uncertain. As a result, a comprehensive prospective analysis of the
impacts of potential water diversion from these activities would be
highly speculative. In addition, the interrelated nature of dam and
diversion projects, and hydrology, across river systems makes it
impossible to attribute flow-related impacts from potential green
sturgeon conservation measures to specific units. We acknowledge this
limitation in the economic analysis. The final economic analysis,
however, includes an expanded discussion of the potential impacts of
changes in flow regimes on hydropower production and prices and water
diversions on irrigation based on historical examples.
Comment 40: One commenter stated that the number of affected water
diversions on the Upper Sacramento River may be underestimated because
the designation may result in impacts to every single farm turnout in
each of 17 water agencies.
Response: The final economic analysis report applies a watershed-
based approach to determine the dams and water diversions potentially
affected by this rule in riverine and estuarine areas. That is, all
water diversions that fall within watersheds that contain proposed
critical habitat for green sturgeon are assumed to require fish
screens. The analysis does not expect that diversions outside of these
watersheds will require fish screens on behalf of green sturgeon. In
California, the final economic analysis report uses available GIS data
from CalFish (A California Cooperative Anadromous Fish and Habitat Data
Program; http://www.calfish.org) to estimate an aggregate number of
potentially affected dams and water diversions by unit (see Exhibits 2-
15 and 2-16). To the extent that the GIS data used does not reflect the
locations of all water diversions, impacts could be understated for
particular diversions.
Comment 41: One commenter noted that a recent ESA section 7
consultation for salmonids expanded pesticide buffer zones beyond the
buffers used in the economic analysis. Specifically, the consultation
widens the pesticide buffer to 1,000 feet for aerial applications and
500 feet for ground applications. The commenter noted that in the draft
economic analysis, the buffer zone on which agricultural impacts were
based was 300 feet for aerial application and 60 feet for ground
application. The commenter stated that, consequently, the estimated
impacts of green sturgeon critical habitat on agriculture were likely
underestimated in the draft economic analysis. The commenter requested
NMFS to clarify that no buffer is or will be required for green
sturgeon regarding agricultural impacts, or alternatively, to revise
the economic analysis consistent with the recent biological opinion.
Response: Section 2.4.3 of the final economic analysis report
discusses the history of the Washington Toxics litigation (Washington
Toxics Coalition et al. v. EPA, No. 04-35138), and the two recent
consultations on salmon and
[[Page 52314]]
steelhead species with regard to specific pesticides and their use.
Listed salmon and steelhead species are found in all units where
agricultural pesticide application is a threat to green sturgeon
habitat. There is evidence that triphenyltin, a common agricultural
fungicide, has caused skeletal and/or morphological deformities in
Chinese sturgeon (Hu et al. 2009). Also, laboratory studies conducted
by researchers at UC Davis have shown that certain toxins cause
deformities in white sturgeon and green sturgeon (Kruse and Scarnecchia
2002; Feist et al. 2005). At this time we do not have information on
the effects of the use of agricultural chemicals on green sturgeon in
the wild. However, given the similar responses of sturgeon (multiple
species) to contaminants as compared to rainbow trout (representing
salmonids), the application of buffer zones to protect salmonids from
the application of pesticides and herbicides would be appropriate.
Therefore, wherever and whenever protective buffer zones are applied
for salmonid protection through the section 7 consultation process,
green sturgeon would also benefit from the buffer zone guidelines.
The final economic analysis report assumes that the court-ordered
injunction restricting pesticide use represents the dominant outcome of
section 7 consultations for this activity, and that although the
injunction is specifically for listed salmonid species, green sturgeon
requirements could result in spray buffer increases of 20 percent,
either through wider buffers or additional river segments requiring
buffers.
The final economic analysis report also assumes that the
agricultural net revenue generated by land within specified distances
in critical habitat areas will be completely lost. That is, the
analysis assumes that no changes in behavior are undertaken to mitigate
the impact of pesticide restrictions. For example, this analysis
assumes that no adjustments in cropping or pesticide practices are
possible that would allow continued crop production without these
pesticides. This assumption may lead to overestimated impacts of
restricting pesticide use.
It should be noted that buffer distances have not yet been
determined for many pesticides, and it may be that the salmon and
steelhead injunction and subsequent consultation requirements will
prove to be adequately protective of green sturgeon. As such, green
sturgeon critical habitat would not be expected to add costs to those
already expected to occur without the current rulemaking. Since the
particular sensitivities of green sturgeon are not well understood,
this analysis assumes that green sturgeon may require additional
protections over and above those required for salmon species. To the
extent that no additional requirements for green sturgeon are imposed
over and above those put in place for salmonids, impacts of green
sturgeon critical habitat could be overstated. To the extent that much
wider buffers are identified than were included in the injunction,
overall impacts to agriculture in green sturgeon critical habitat areas
could be underestimated.
Comment 42: One commenter requested that the impacts to fisheries
using other bottom tending gear be considered. The commenter stated
that the economic analysis underestimated the economic impact of the
proposed rule because it did not consider potential impacts on the
shrimp fishery, gear types other than bottom trawl, or community level
impacts.
Response: NMFS specifically identified the use of bottom trawl gear
as a potential threat to green sturgeon and its habitat (see 73 FR
52093-52094), and other gears have not been identified as a threat. The
best available information indicates that other bottom tending gear
(e.g., pot traps, long line) does not adversely affect benthic
habitats, whereas the use of bottom trawl gear has a much more apparent
effect on benthic habitats. Therefore, the economic analysis does not
quantify economic impacts to fishing activities with other gear types.
This analysis assumes that State-managed fisheries, such as the
commercial crab fishery and pink shrimp fishery will not be affected by
this rule. Information provided by the commenter, including the
estimate that between two and 11 percent of shrimp tows may occur
within the critical habitat area, have been included in the final
economic analysis report.
Comment 43: One commenter noted that with regard to bottom trawl
fishing impacts, the draft economic analysis could have produced more
precise and geographically specific estimates for Washington Coast
units. In particular, the commenter stated that catch attributed to
Unit 37 should be attributed to Unit 36. Another commenter stated that
the estimates of bottom trawl revenues seemed low for the area from
Humboldt Bay to Cape Flattery, and provides alternative estimates based
on log book data. In addition, the commenter noted that the broad scope
of the economic analysis obscures the fact that impacts associated with
critical habitat likely would fall disproportionately on particular
vessels and coastal communities rather than evenly through a unit.
Response: The draft economic analysis used a series of assumptions
to estimate the level of bottom trawl fishing effort occurring within
proposed boundaries. The final economic analysis report revises this
methodology, utilizing data provided by the Washington Department of
Fish and Wildlife. As part of this effort, bottom trawl fishing
estimates have been reallocated from Unit 37 to Unit 36, and landings
data have been better tailored to appropriate units in California,
Oregon and Washington. In addition, the economic analysis now discusses
the potential for uneven distribution of green sturgeon impacts across
fishing vessels and communities.
Comment 44: One comment provided additional information on the
location of proposed tidal- and wave-energy projects. The comment
specifically described five wave energy projects in Oregon waters.
Response: All of the projects described by the commenter are
included in the final economic analysis report, as presented in Exhibit
3-3.
Comment 45: One commenter noted that the economic analysis failed
to consider proposed wave and wind energy projects in Grays Harbor and
other areas in Washington.
Response: The final economic analysis report does consider and
project potential costs associated with wave and wind energy projects
in the State of Washington. Specifically, Exhibit 3-3 of the final
economic analysis report identifies one project (Grays Harbor Ocean
Energy and Coastal Protection) in Grays Harbor and nine additional
projects in Willapa Bay and Puget Sound.
Comment 46: One comment identified three LNG terminals approved or
proposed in Oregon: the Jordan Cove LNG project (proposed) located in
Coos Bay and the Bradford Landing LNG project (approved) and Oregon LNG
project (proposed) located in the lower Columbia River estuary. The
commenter stated that proposed dredging activities associated with
these projects will impact green sturgeon feeding habitat. The
commenter also noted other potential impacts associated with these
projects from effects on water quality and quantity, an influx of
invasive species, or entrainment of fish at water intake structures.
Response: The three LNG terminals identified by the commenter were
already included and analyzed in the economic analysis for Coos Bay and
the lower Columbia River estuary. The information regarding the
potential
[[Page 52315]]
impacts of LNG projects on green sturgeon critical habitat are
incorporated into this final rule and supporting documents.
Comment 47: According to one commenter, the draft economic analysis
mischaracterized impacts to aquaculture operations in Willapa Bay and
Grays Harbor. Specifically, the commenter noted that operations in
these areas have not adopted the conservation measures outlined in the
draft economic analysis, and that the adoption of these measures is
economically infeasible. The commenter also noted that the draft
economic analysis failed to consider the economic contribution of these
operations to the regional economy.
Response: Section 4.2.4 of the final economic analysis report
incorporates the comments provided, including a more detailed
discussion of aquaculture practices in Washington and the economic
significance of the aquaculture industry to Grays Harbor and Pacific
counties. In addition, the final economic analysis report discusses the
high level of uncertainty regarding potential conservation measures for
aquaculture. The final economic analysis report now includes a
discussion of the outcome of a recent consultation on aquaculture in
Willapa Bay and Grays Harbor, which concluded that no reasonable and
prudent measures were necessary for either salmonid or green sturgeon
under the ESA. As such, it may be that no impacts to aquaculture are
likely in these units related to green sturgeon critical habitat.
ESA Section 4(b)(2) Analysis--Exclusion of Areas
Comment 48: Several commenters requested an explanation of how the
monetary thresholds used to determine the eligibility of an area for
exclusion were derived.
Response: The economic impact level at which the economic benefits
of exclusion outweigh the conservation benefits of designation is a
matter of discretion. The ESA provides NMFS with the discretion to
consider making exclusions if the benefits of exclusion outweigh the
benefits of designation, unless exclusion will result in extinction of
the species. The ESA gives NMFS broad discretion in what weight to give
benefits. The benefits of exclusion (economic impacts) are estimated in
monetary values, whereas the benefits of designation (conservation
value of the areas) are expressed in qualitative conservation values.
Because we could not directly compare the benefits of exclusion and
benefits of designation, we applied a set of decision rules based on
selected dollar thresholds representing the levels at which the
potential economic impact associated with a specific area may outweigh
the conservation benefits of designating that area. These thresholds
varied depending on the conservation value of the area, where areas
with a higher conservation value rating had a higher threshold dollar
value. To determine these threshold values, we examined the range in
economic impacts across all areas within a conservation value rating
category, determined where the breakpoint occurred between relatively
low economic impacts and relatively high economic impacts, and selected
a value within the range of that breakpoint where the economic impacts
may outweigh the conservation benefits for that area.
Our consideration of economic impacts under section 4(b)(2) of the
ESA consisted of two parts. First, we applied the threshold dollar
values to identify areas that may be eligible for exclusion based on
economic impacts. We then presented the areas to the CHRT and asked the
CHRT to further characterize the conservation benefit of designation
for these areas by determining whether exclusion of the identified
areas would significantly impede conservation of the Southern DPS. If
the CHRT determined that exclusion of an area would significantly
impede conservation of the Southern DPS, we used this information to
analyze the conservation benefit of designation, leading to the final
conservation value of the area being increased by one level.
Comment 49: One commenter stated that the economic thresholds
established for the ESA section 4(b)(2) process only trigger
consideration or eligibility of an area for potential exclusion. The
commenter requested that an upper threshold be established above which
the economic impact becomes disproportionate to the relative
conservation benefit of designation and exclusion is definite. The
commenter focused on the lower Feather River, stating that the economic
costs are well above the $100,000 threshold.
Response: Section 4(b)(2) of the ESA requires that NMFS consider
the economic impacts, impacts on national security, and other relevant
impacts of designating any particular area as critical habitat. The ESA
also provides NMFS with the discretion to exclude areas if the benefits
of exclusion outweigh the benefits of designation, but does not require
that exclusions be made. To weigh the economic benefits of exclusion
against the benefits of designation, NMFS established monetary
thresholds above which an area was potentially eligible for exclusion.
These thresholds represent the level at which the economic impact may
outweigh the relative conservation benefit of designation. NMFS did not
define an upper threshold at which exclusion is required, however,
because within a conservation value rating category there is variation,
with some areas being of higher conservation value to the Southern DPS
than others. In the case of the lower Feather River, the estimated
economic impacts exceeded the dollar threshold value, signaling that
the economic benefits of exclusion may outweigh the conservation
benefits of exclusion for this area and that it may be eligible for
exclusion. However, the CHRT determined that exclusion of the lower
Feather River would significantly impede conservation of the Southern
DPS, adding more weight to the conservation benefit of designation for
this area, and leading to NMFS' determination that the economic
benefits of exclusion do not outweigh the conservation benefits of
designation. Thus, the lower Feather River was proposed for
designation.
Comment 50: One commenter disagreed with the decision rule for
areas with a High conservation value, that no economic impact could
outweigh the benefit of designation for these specific areas (i.e.,
specific areas with a High conservation value are not eligible for
exclusion). The commenter stated that this decision rule is arbitrary
and unreasonable.
Response: Section 4(b)(2) of the ESA provides NMFS the discretion
to exclude any area from critical habitat if the benefits of exclusion
(based on economic, national security, or other relevant impacts)
outweigh the benefits of designation, unless exclusion of the area will
result in extinction of the species. The ESA does not describe how this
weighing process is to be conducted. Because data were not available to
quantify or monetize the benefits of designation, we used the CHRT's
conservation value ratings to represent the relative benefits of
designation for each specific area. Areas with a High conservation
value rating were identified by the CHRT as areas with a relatively
high likelihood of promoting the conservation of the Southern DPS
compared to the other areas. Based on the purposes of the ESA, which
include providing a program for the conservation of threatened and
endangered species, and the policy of Congress that all Federal
agencies shall seek to conserve threatened and endangered species, NMFS
exercised its broad discretion to designate all of the areas with a
High conservation value.
[[Page 52316]]
This decision rule was also applied in the ESA 4(b)(2) analysis to
support the 2005 critical habitat designations for listed West coast
salmon and steelhead ESUs.
Comment 51: Two commenters requested the exclusion of Federal
navigation channels and dredged material placement sites within
Humboldt Bay, San Francisco Bay, Suisun Bay, San Pablo Bay, the Delta,
and the Sacramento River and tributaries. The commenters asserted that
the benefits of navigation traffic outweigh the conservation benefits
of designation because these areas are dredged annually, are often
deeper than green sturgeon depth preferences for all life stages, lack
the PCEs, and make up a small proportion of the total area proposed for
designation in estuaries and freshwater rivers.
Response: We appreciate the data provided by the commenter
regarding dredging and disposal operations in the Central Valley,
California, and in Humboldt Bay. We recognize that routine maintenance
dredging and disposal operations are conducted to maintain the Federal
navigation channels and that these activities have already altered the
habitat within these channels and associated disposal sites. The CHRT
considered the information provided, but determined that the areas
requested for exclusion do contain PCEs that may require special
management considerations or protection and provide valuable habitat
for the Southern DPS. The Sacramento River supports all life stages and
is the only confirmed spawning river for the Southern DPS. The Delta
and the San Francisco, Suisun, and San Pablo bays support feeding,
rearing, and migration by juvenile, subadult, and adult Southern DPS
green sturgeon. Subadult and adult Southern DPS green sturgeon occupy
Humboldt Bay for long periods of time, presumably for feeding during
summer months. The best available data indicate that subadult and adult
green sturgeon occur widely throughout these areas, based on detections
of tagged green sturgeon through the estuaries and the Sacramento
River. In addition, juvenile green sturgeon are believed to occur
throughout the Delta and the San Francisco, Suisun, and San Pablo bays
throughout all months of the year. The PCEs to support Southern DPS
green sturgeon within these areas are affected by activities such as
dredging and disposal (as described in the comments), dams and water
diversions, in-water construction or alteration activities, and other
activities as described in the final rule and supporting documents.
It is important to note that designation of critical habitat within
these areas does not preclude dredging and disposal operations, but
requires that Federal activities, or those requiring a Federal permit
or funding and that may affect critical habitat, be evaluated under
section 7 of the ESA to ensure that they do not destroy or adversely
modify the habitat. The protective measures that may be required to
address effects of dredging and disposal activities on critical habitat
will depend on the specifics of the activity (e.g., scale, location,
time of year, etc.). NMFS will continue to work with the affected
entities to determine the effects of the activities on critical habitat
and to develop protective measures to address those effects.
Comment 52: One commenter stated that Central San Francisco Bay and
Suisun Bay do not meet the definition of critical habitat because these
specific areas are not essential for conservation of the Southern DPS
and do not require special management considerations or protection. The
commenter focused on sand mining activities, stating that sand mining
operations result in localized, temporary disturbances that do not pose
a serious threat to the PCEs and will not adversely affect migration
and foraging. Also, the commenter stated that sand mining is heavily
regulated and occurs in limited specific designated lease areas, only a
portion of which is actually mined.
Response: The ESA defines critical habitat as specific areas within
the geographical area occupied that contain physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection. The CHRT
considered the comments and verified that both Central San Francisco
Bay and Suisun Bay meet the definition of critical habitat. Central San
Francisco Bay and Suisun Bay were both rated as High conservation value
areas that support feeding and migration for juvenile, subadult, and
adult Southern DPS green sturgeon. Both areas contain at least one PCE
that may require special management considerations or protection. We
appreciate the information provided regarding the effects of sand
mining on critical habitat and will consider such information in future
consultations under section 7 of the ESA regarding sand mining
operations. Final determinations will be made on a case-by-case basis
during the section 7 consultation process. However, sand mining is only
one of several activities identified that may affect the PCEs. Thus,
even if sand mining does not adversely affect critical habitat, other
activities occur within the areas that may affect the PCEs, including
but not limited to: dredging and disposal of dredged material, in-water
construction or alteration activities, and pollution. Finally, the fact
that activities may already be regulated does not negate the need for
special management considerations or protection. In determining whether
a PCE may require special management considerations or protection, the
CHRT focused on whether or not any activities may threaten the PCE.
Comment 53: One commenter requested the exclusion of nearshore
regions where industrial activities occur within the San Francisco Bay,
because these areas are not essential to the conservation of green
sturgeon.
Response: The CHRT considered the comments but determined that the
best available scientific data do not support the exclusion of these
nearshore regions. San Francisco Bay supports feeding, rearing, and
migration for juvenile, subadult, and adult Southern DPS green
sturgeon. Green sturgeon occupy a diversity of depths throughout their
different life stages, including shallow nearshore areas. Recent
telemetry data and literature references indicate green sturgeon
distribute widely throughout the bay and use extensive mudflats and
sand flats for feeding. Based on the available data, it is reasonable
to believe that green sturgeon use nearshore regions within San
Francisco Bay. NMFS encourages research to better understand the use of
these areas by different life stages of green sturgeon.
Comment 54: A commenter suggested that the Port of Stockton be
excluded because it consists of deep water and developed shoreline and
does not have the sediment quality that green sturgeon require.
Response: The CHRT considered this request to exclude the Port of
Stockton from critical habitat, but ultimately decided that sufficient
data to support exclusion are not available at this time. The best
available data indicate that the Port of Stockton provides PCEs to
support the rearing, feeding, and migration of juvenile, subadult, and
adult Southern DPS green sturgeon. The PCEs may be affected by
activities conducted within the area, but still continue to support the
presence and use of this area by Southern DPS green sturgeon. Adult and
subadult Southern DPS green sturgeon have been observed in the eastern
Delta, including in the area adjacent to the Port of Stockton. Tagged
green sturgeon have been detected at all three hydroacoustic monitors
in the Deep Water Channel adjacent to the Port of Stockton.
[[Page 52317]]
Hydroacoustic monitors have not yet been installed in the Port of
Stockton, however, and specific data on use of this area are lacking.
In addition, juvenile green sturgeon rearing and feeding habitats are
believed to occur throughout the Delta, but data are lacking on
juvenile green sturgeon distribution in the Delta. At this time, the
CHRT believes that juvenile green sturgeon are distributed widely
throughout the Delta, and are, therefore, presumed to be in the Port of
Stockton area. Studies focused on juvenile green sturgeon distribution
in the Delta and San Francisco, San Pablo, and Suisun bays would help
to address these data gaps and inform future revisions to the critical
habitat designation.
Comment 55: One commenter requested that the area of the Sacramento
River immediately upstream and downstream of RBDD be excluded from the
critical habitat designation, because data for this area are not
sufficient to support designation of critical habitat. The commenter
was unclear whether RBDD is included as an existing structure as part
of critical habitat or not. If it is, the commenter asserted that
operation of the dam has no specific relationship to the numbers,
range, or viability of green sturgeon. The commenter also stated that
no analysis was done on the impacts that will result from restrictions
on water diversions at RBDD.
Response: The CHRT identified the lower and upper Sacramento River,
including the area immediately upstream and downstream of RBDD, as
areas of High conservation value, recognizing that the areas support
all life stages of Southern DPS green sturgeon and provide PCEs
(including food resources, depth, migratory corridor, substrates, water
quality, and water flow) to support migration, feeding, spawning, and
rearing. The presence and operation of the RBDD has several effects on
the Southern DPS. For example, the RBDD can hinder or block upstream
and downstream migration when the gates are down, or cause injury or
mortality if the gate opening is too small. In 2007, 10 green sturgeon
were found injured and dead at or just downstream of RBDD, purportedly
injured while trying to move under the gates. In addition, the RBDD may
alter water quality and spawning habitats by altering the flow regime.
Spawning by adult Southern DPS green sturgeon has been confirmed to
occur both upstream and downstream of the RBDD, although conditions
directly below the RBDD may not be favorable for spawning success due
to high sedimentation levels (Poytress et al. 2009). Thus, the area
immediately upstream and downstream of RBDD is of high conservation
value to the Southern DPS and would benefit from protections under a
critical habitat designation. The Sacramento River would be designated
as critical habitat, but the RBDD itself would not be designated as
critical habitat. The effects of operations at RBDD on critical habitat
would be subject to consultation under section 7 of the ESA to address
effects on critical habitat in the Sacramento River. As described in
the response to comments 38 and 39, the potential impacts on RBDD are
discussed in more detail in the final economic analysis report.
Comment 56: One commenter agreed with the CHRT that exclusion of
the lower Feather River would significantly impede conservation of the
Southern DPS, but two commenters disagreed and stated that the lower
Feather River should be excluded from the designation because: (1) The
estimated economic impacts substantially exceeded the $100,000
threshold for exclusion; (2) the area is not a confirmed spawning river
and habitat improvements needed to make this area of High conservation
value are not financially and logistically feasible; (3) designating
the lower Feather River as a second spawning river for the Southern DPS
is not warranted because the population is already protected from
catastrophic risk by a naturally occurring second population in marine
waters; and (4) the jeopardy provision under section 7 of the ESA
provides adequate protection for the species. One commenter was unclear
whether the biological analysis was based on current conditions or
future conditions in the area. One commenter stated that there is
little evidence to suggest green sturgeon occupy the lower Feather
River above RKM 95, and another commenter stated that Fish Barrier Dam
is the uppermost barrier, not Oroville Dam.
Response: The CHRT's evaluation of the lower Feather River was
based on current conditions within the area as well as the potential
future conditions if efforts to improve habitat conditions and passage
are conducted. The best available data from surveys and anecdotal
observations of green sturgeon indicate that green sturgeon
consistently occupy and use the lower Feather River. Although spawning
has not yet been confirmed, the CHRT believes the lower Feather River
is the area most likely to serve as a second spawning river for the
Southern DPS. The CHRT recognized that only part of the population
returns to the Sacramento River to spawn each year, providing some
protection should a catastrophic event occur. However, a second
spawning river would provide not only additional protection from a
catastrophic event but also additional spawning habitat should spawning
habitats be inaccessible or subject to disturbance in the Sacramento
River. Current and ongoing habitat monitoring and improvement
activities are being conducted within the lower Feather River that may
benefit the Southern DPS. NMFS encourages continued efforts to restore
habitat and improve fish passage within the lower Feather River. The
CHRT considered all of this information in making their determination
that exclusion of this area would significantly impede conservation of
the Southern DPS. This led NMFS to determine that, although the
economic impacts for this area exceeded the $100,000 threshold, the
economic benefit of exclusion did not outweigh the conservation benefit
of designation. Thus, the lower Feather River was proposed for
designation.
The CHRT considered the public comments received but, based on the
information as described above, maintained its determination that
exclusion of the Feather River would significantly impede conservation
of the Southern DPS. NMFS also maintains its determination that the
benefits of exclusion do not outweigh the benefits of designation for
this area. However, the CHRT agreed that the upstream boundary for the
lower Feather River should be changed from the Oroville Dam to the Fish
Barrier Dam (RKM 109), because the Fish Barrier Dam represents the
current upstream extent of green sturgeon passage. Green sturgeon have
been observed at the Thermalito Outlet and in riffles between
Thermalito Outlet and the Fish Barrier Dam (pers. comm. with Alicia
Seesholtz, California Department of Water Resources (CDWR), March 10,
2009), confirming that green sturgeon do occur upstream of RKM 95, up
to the Fish Barrier Dam (RKM 109). Thus, the specific area in the Lower
Feather River was redefined as the area from the river mouth at the
confluence with the Sacramento River, upstream to the Fish Barrier Dam.
Comment 57: Two commenters suggested that the lower Yuba River
downstream of Daguerre Dam should not be designated as critical
habitat, because data do not support that the lower Yuba River was
historically a spawning river for green sturgeon as no green sturgeon
juveniles, larvae, or eggs have been observed in the lower Yuba River
to date and because adult and subadult green sturgeon occur
infrequently in this area. The commenters cited numerous surveys that
have been conducted since the
[[Page 52318]]
1970s with only one sighting of an adult green sturgeon in 2006. In
addition, the commenters noted that flow regimes for green sturgeon may
differ from those established under the Yuba Accord to protect
salmonids and their habitat, which may result in conflicts in
management and potentially high economic costs.
Response: We recognize that spawning has not been confirmed in the
lower Yuba River downstream of Daguerre Dam and have revised the final
rule accordingly. However, the CHRT determined that the lower Yuba
River likely provides spawning habitat for Southern DPS green sturgeon.
Although only one confirmed green sturgeon has been observed in the
lower Yuba River, this does not indicate green sturgeon do not use the
area more frequently. Surveys have been conducted in this area, but
have not targeted green sturgeon. Observations of green sturgeon are
difficult even during surveys targeting green sturgeon. For example,
green sturgeon surveys in the lower Feather River conducted in 2000--
2004 did not observe any green sturgeon, despite anecdotal observations
of green sturgeon during the time surveys were conducted (CDWR 2005).
More information is needed to determine the optimal flow regime for
green sturgeon in the lower Yuba River and how this compares with flows
established for salmonids. Consultation under section 7 of the ESA
would take into account the needs of both the Southern DPS and the
listed salmonid species.
Comment 58: Two commenters suggested that in the Columbia River,
Grays Harbor, and Willapa Bay, critical habitat should be confined to
certain portions of the estuaries because sturgeon are not evenly
dispersed throughout these waters. The commenters requested that
shellfish aquaculture areas be excluded from critical habitat, because
green sturgeon do not use shellfish beds but instead occupy areas of
high burrowing shrimp density outside of shellfish farming areas. In
addition, the commenters asserted that carbaryl does not affect
burrowing shrimp populations outside of treated areas and thus does not
adversely affect green sturgeon prey resources. The commenters cited a
recent study (Dumbauld et al. 2008) that suggests burrowing shrimp
populations are abundant throughout the estuaries and are not likely to
be a limiting factor for green sturgeon. The commenters also noted that
carbaryl will be phased out by 2012 and replaced by more benign
chemical, biological, or mechanical methods of eradication.
Response: The CHRT considered the comments but determined that the
best available data do not support confining the critical habitat
designation to certain portions of the lower Columbia River estuary,
Grays Harbor, and Willapa Bay. Telemetry data show that tagged green
sturgeon disperse widely throughout these estuaries, most likely for
foraging. In addition, anecdotal accounts have noted observations of
sturgeon in intertidal aquaculture beds in the past, likely when
populations of sturgeon were more abundant in these estuaries, and have
suggested that predation by sturgeon and other predators may help
control burrowing shrimp populations in these beds (Dumbauld et al.
2008). Designation of critical habitat would require shellfish
aquaculture activities that are funded, permitted, or carried out by
Federal agencies to comply with section 7 of the ESA. During the
consultation, factors such as the location and size of the project and
the entity's initial evaluation of the effects of the project on
critical habitat would be considered in determining whether the project
adversely affects critical habitat. Information such as that provided
by the commenters regarding the effects of carbaryl on green sturgeon
prey resources would also be taken into account in the consultation.
Comment 59: One commenter suggested that the inner half of the
Strait of Juan de Fuca and the area around the San Juan Islands should
be excluded from the designation because these are areas of low use by
green sturgeon.
Response: The CHRT considered the comment but determined that the
best available scientific data support inclusion of the Strait of Juan
de Fuca. Tagged Southern DPS green sturgeon are known to use the inner
half of the Strait of Juan de Fuca, because they have been detected at
receivers in the Strait of Juan de Fuca as well as in Puget Sound and
Rosario Strait. The low numbers of detections may be due to relatively
few tagged green sturgeon and relatively few receiver arrays located in
the area. In addition, the receiver arrays were installed and operated
to monitor other species and may not be programmed or positioned for
optimal monitoring of green sturgeon.
Comment 60: One commenter stated that critical habitat should not
be designated in coastal marine waters because there is insufficient
data to show that bottom trawl fisheries affect green sturgeon
migration or prey resources within coastal marine waters. The commenter
noted that bottom trawling is not allowed in State waters off
California and Washington and trawling off Oregon occurs deeper than 40
fm, leaving ample area for green sturgeon feeding and movement. The
commenter suggested that coastal marine waters off southeast Alaska
should be considered for designation because, although bottom trawling
does not occur there, other bottom tending gear is used. The commenter
stated that if critical habitat is to be designated in coastal marine
waters, then other bottom tending gear should be considered and coastal
marine waters off southeast Alaska should be designated.
Response: The CHRT considered all coastal marine waters within 110
m depth from the California-Mexico border to the Bering Sea, Alaska.
The coastal marine areas off southeast Alaska were excluded based on
economic impacts, not because bottom trawling fisheries do not occur in
the area. Bottom trawling was only one of several activities identified
that may affect the PCEs within the coastal marine areas. Other
activities include hydrokinetic projects, disposal of dredged material,
and pollution from activities such as commercial shipping. Thus, even
if bottom trawl fisheries did not adversely affect the PCEs, there are
other activities affecting the PCEs within the coastal marine areas.
The CHRT focused on bottom trawl gear because bycatch of green sturgeon
occurs in bottom trawl fisheries and this gear was identified by NMFS
biologists as being the most likely to affect bottom habitat used by
green sturgeon, compared with other bottom tending gear. However, all
activities that may affect critical habitat would be subject to section
7 of the ESA even if not specifically mentioned in the final rule.
Whether bottom trawl or other gear types adversely affect critical
habitat would be determined through the ESA section 7 consultation
process and would depend on factors such as the location, scale, and
frequency of potential disturbances.
Comment 61: One commenter agreed that exclusion of Coos Bay from
the designation would significantly impede conservation of the Southern
DPS, whereas one commenter disagreed, stating that the inclusion of
Coos Bay is not supported by the available data that indicate low
numbers of green sturgeon and no evidence of use by Southern DPS fish.
Response: Coos Bay was identified as an area that may be eligible
for exclusion based on economic impacts, but was proposed for
designation and is included in this final designation based on a
determination that exclusion of this area would significantly impede
conservation of the Southern DPS and, therefore, the economic benefits
of
[[Page 52319]]
exclusion do not outweigh the conservation benefits of designation. The
CHRT considered the comments and maintained its determination that
exclusion of Coos Bay would significantly impede conservation of the
Southern DPS based on the best available information showing that Coos
Bay is one of two large estuaries on the Oregon coast where relatively
large numbers of green sturgeon are consistently observed (ODFW 2009a,
b) and Southern DPS are confirmed to occur (Lindley and Moser,
unpublished data, cited in the Memo to the Record from C. Grimes,
October 23, 2006; pers. comm. with Dan Erickson, ODFW, September 3,
2008). In addition, there is uncertainty regarding the economic impact
estimates for Coos Bay. As described in the ESA 4(b)(2) report, a large
proportion of the estimated economic costs (ranging from $73,000 to $16
million) for Coos Bay was associated with impacts to a proposed LNG
project in the bay. The high economic cost estimate of $16 million
includes the estimated costs to re-site an LNG project due to this
rule. The upper bound of the economic cost range is unlikely because:
(1) It is highly uncertain whether the LNG project will be constructed;
and (2) the high economic cost was associated with having to relocate
the project, which is unlikely to occur. The low economic cost estimate
of $73,000 was based on the assumption that additional measures would
not be required for LNG projects for the protection of green sturgeon
critical habitat, or that any required measures would result in minimal
costs (i.e., the economic impact for LNG projects is $0). We recognize,
however, that an estimated economic impact of $0 for potential economic
impacts to LNG projects is highly unlikely. Therefore, the actual
economic impact on LNG projects is likely to be within this range
(greater than $0, but much lower than $16 million), but we currently
lack sufficient information to estimate this cost. Based on the
information regarding the conservation value of Coos Bay to the
Southern DPS and uncertainty regarding the estimated economic impacts,
NMFS determined that the economic benefits of exclusion do not outweigh
the conservation benefits of designation and Coos Bay is included in
the final critical habitat designation.
Comment 62: One commenter requested an explanation for the
exclusion of some waterways in the Sacramento-San Joaquin Delta, CA,
from the proposed designation.
Response: The specific area designated as critical habitat in the
Delta includes all tidally influenced areas up to the mean higher high
water line within the legal boundaries of the Delta as defined in
California Water Code Section 12220, except for two modifications. The
CHRT defined the boundary between the Delta and Suisun Bay by a line
extending from the mouth of Spoonbill Creek across the channel to the
city of Pittsburg, CA, resulting in Chipps Island being fully contained
within the Suisun Bay specific area. In addition, the following slough
areas are excluded from the Delta specific area: Five Mile Slough,
Seven Mile Slough, Snodgrass Slough (at Lambert Road), Tom Paine
Slough, and Trapper Slough. These areas were identified and excluded by
the CHRT as areas that all have manmade barriers isolating them from
the rest of the Delta and where green sturgeon do not occur. Structures
such as gated culverts, tidal gates, and siphons control the flow of
water into the channels of these sloughs, which then primarily serve as
``reservoirs'' for irrigation water delivered to surrounding farm
fields.
Comment 63: One commenter agreed with NMFS' proposal to exclude the
waters off Alaska from the critical habitat designation, stating that
Southern DPS green sturgeon rarely occur off the coast of southeast
Alaska and that green sturgeon observed off Alaska most likely belong
to the Northern DPS.
Response: There have been few observations of green sturgeon,
particularly Southern DPS green sturgeon, in coastal marine waters off
Alaska compared to coastal marine and estuarine waters in Washington,
Oregon, and California. NMFS would like to clarify, however, that green
sturgeon observed off Alaska could belong to either the Northern DPS or
the Southern DPS. Since 1990, a total of 8 green sturgeon have been
observed in the groundfish bottom trawl fishery conducted around the
Aleutian Islands and in the Bering Sea (pers. comm. with Vanessa
Tuttle, NMFS, November 20, 2006; pers. comm. with Jennifer Ferdinand,
NMFS, November 24, 2006). Tissue samples were collected from 2
individuals captured in 2006, but genetic analyses to determine to
which DPS the individuals belong were inconclusive (pers. comm. with
Josh Israel, UC Davis). Two tagged Southern DPS green sturgeon were
detected at the monitor in Graves Harbor, AK (currently the only
monitor located on the Alaska coast; Lindley et al. 2008; pers. comm.
with Steve Lindley, NMFS, September 12, 2007), showing that Southern
DPS green sturgeon do migrate as far north as southeast Alaska. Given
that there are no physical or environmental barriers present, it is
possible that these fish migrate further north to the Aleutian Islands
and the Bering Sea. Expansion of the monitoring array and collection of
more tissue samples for genetic analyses are needed to better
characterize the presence and distribution of Northern DPS and Southern
DPS green sturgeon in coastal marine waters off Alaska.
Impacts on National Security
Comment 64: The Department of Defense (DOD) requested the exclusion
of coastal marine waters in Oregon adjacent to the military training
facility, Camp Rilea, due to national security concerns. The area
requested for exclusion included an area from one-half mile north to
one-half mile south of Camp Rilea to a distance of two miles offshore
of Camp Rilea. This area encompasses the surface danger zone for
weapons training ranges on Camp Rilea, but is not part of the Camp
Rilea facility.
Response: We corresponded with representatives from Camp Rilea to
discuss the activities occurring within the coastal marine waters
adjacent to Camp Rilea and the potential impacts of the critical
habitat designation on national security within this area. The
activities identified to occur within this area included shooting range
training exercises and amphibious landings. No in-water construction
activities or activities affecting water quality were identified. The
representatives for Camp Rilea agreed that the activities occurring
within the area requested for exclusion would not likely affect
critical habitat for the Southern DPS and that the critical habitat
designation would not likely affect national security within the area.
Thus, the benefits to national security of excluding this area were
low. In addition, the area is located within a specific area with High
conservation value that provides an important connectivity corridor for
green sturgeon and is located just south of the lower Columbia River
estuary, another specific area with High conservation value, and there
are other Federal activities occurring in the area (e.g., a submarine
cable installation project) that may affect critical habitat. Thus, we
determined that the benefits to national security of excluding this
area did not outweigh the conservation benefits of designating the
area. A more detailed analysis is provided in the final ESA section
4(b)(2) report (NMFS 2009c).
Comment 65: The DOD requested that the following areas off the
coast of Washington be excluded from the critical habitat designation:
(1) Strait of Juan de Fuca and Whidbey Island Naval Restricted Areas
adjacent to the runways at the Naval Air Station (NAS)
[[Page 52320]]
Whidbey Island; (2) Strait of Juan de Fuca Naval Air-to-Surface Weapon
Range Restricted Area; (3) Admiralty Inlet Naval Restricted Area; (4)
Navy 3 Operating Area in the Strait of Juan de Fuca; (5) Navy 7/
Admiralty Bay Naval Restricted Area 6701 in Puget Sound; and (6) the
surf zone portion of the Quinault Underwater Tracking Range (QUTR)
within the Pacific Northwest Operating Area.
Response: NMFS considered the DOD's request and the information
provided by representatives from the Navy regarding the activities
occurring within each of the areas requested for exclusion and the
potential impacts on national security. NMFS determined that the
benefits to national security of excluding the following areas outweigh
the conservation benefits of designating the areas: Strait of Juan de
Fuca and Whidbey Island Naval Restricted Area; Strait of Juan de Fuca
Naval Air-to-Surface Weapon Range Restricted Area; Admiralty Inlet
Naval Restricted Area; and Navy 3 Operating area (NMFS 2009c). We
determined that the benefits of designation are low for these areas,
because there are relatively few detections of green sturgeon in the
area and the consultation history indicates that there are currently no
other Federal activities occurring within these areas that may affect
critical habitat. In addition, the size of the areas are small relative
to the Strait of Juan de Fuca and the total critical habitat
designation, and the Navy's presence provides some protection for green
sturgeon habitat, either through regulatory control of public access or
the nature of the Navy's activities that limit the kinds of other
Federal activities that would occur in the areas. We also determined
that the potential impacts on national security are low for these
areas, because the Navy's current activities have a low likelihood of
affecting critical habitat. However, we recognize that the range of
activities that may be carried out in these areas are often critical to
national security and that a critical habitat designation in these
areas could delay or halt these activities in the future. Based on this
information, we determined that the benefits of exclusion outweigh the
benefits of designation and exclude the areas from the final
designation. We note, however, that consultation under section 7 of the
ESA would still be required to address activities that may cause
jeopardy to or take of Southern DPS green sturgeon.
The Navy 7/Admiralty Bay Naval Restricted Area 6701 occurs in Puget
Sound (an area that is excluded from the final critical habitat
designation) and does not overlap with the specific area delineated in
the Strait of Juan de Fuca (see ``Corrections from proposed rule'').
Therefore, the Navy 7/Admiralty Bay Naval Restricted Area 6701 does not
overlap with the critical habitat designation for the Southern DPS. In
addition, at this time NMFS cannot determine whether the surf zone
portion of the QUTR warrants exclusion from the critical habitat
designation because the surf zone area has not yet been defined by the
Navy. The surf zone portion of the QUTR is part of a proposed extension
of the QUTR range that has not yet been finalized. The Navy informed
NMFS that one of three alternative sites for the surf zone portion will
be selected following completion of analyses under the National
Environmental Policy Act (NEPA), estimated to be completed by the end
of the year 2009. Until the area has been defined, NMFS cannot evaluate
the impacts on national security and determine if those impacts
outweigh the benefits of designating the area as critical habitat,
because the location and size of the areas could change. Thus, the area
will not be excluded from the critical habitat designation at this
time. Once the location of the surf zone portion of the QUTR has been
selected, the Navy may request that NMFS revise the critical habitat
designation to exclude the area from critical habitat based on impacts
on national security. A more detailed analysis for each of the areas
requested for exclusion by the Navy is provided in the final ESA
section 4(b)(2) report (NMFS 2009c).
Comment 66: The DOD commented that the area within the boundaries
of the Mare Island US Army Reserve Center (USAR) near Vallejo,
California, should not be eligible for consideration as critical
habitat, because an integrated natural resources management plan
(INRMP) is currently in place that provides the same, if not better,
protection for listed species in waters adjacent to the Mare Island
USAR Center. In addition, the DOD requested that the Mare Island USAR
Center be excluded from designation based on impacts on national
security.
Response: NMFS corresponded with representatives from the Mare
Island USAR Center to discuss the INRMP and the potential impacts on
national security. The Mare Island USAR Center is located in Mare
Island Strait, where the Napa River flows into San Pablo Bay,
California. The Mare Island USAR Center facilities include the waters
between and around Piers 22 and 23, which overlap with the habitat
areas considered for designation as critical habitat. NMFS' primary
concerns were that: (1) The INRMP discusses the status and occurrence
of green sturgeon in the area, but does not include protective measures
specifically for green sturgeon; and (2) in-bay disposal of dredged
material from dredging activities between and around the piers may
affect proposed green sturgeon critical habitat.
Based on the information provided by the DOD, NMFS determined that
the benefits to national security of excluding waters within the
boundaries of the Mare Island USAR Center facility between and around
Piers 22 and 23 outweigh the conservation benefit of designating the
area (NMFS 2009c). One of the major national security concerns is that
limitations on pier maintenance activities or on dredging activities
between and around the piers could hinder the ability of vessels to
move in and out of the piers for missions. Thus, the Mare Island USAR
Center is excluded from the critical habitat designation for the
Southern DPS. However, NMFS determined that the INRMP does not provide
adequate protection for the threatened Southern DPS (i.e., the INRMP
does not provide a benefit to the species, as required by ESA section
4(a)(3)(B)(i)) and recommended revisions to the INRMP to adequately
address the Southern DPS, including: (1) Providing updated data on
tagged green sturgeon detections from monitors placed at Piers 22 and
23; and (2) providing conservation measures to address the effects of
activities on green sturgeon. In addition, NMFS requests that, upon
publication of this final rule, the INRMP be updated to incorporate
information about the designation of critical habitat for the Southern
DPS in waters adjacent to the Mare Island USAR Center in San Pablo Bay.
Although the Mare Island USAR Center is excluded from the critical
habitat designation, consultation under section 7 of the ESA would be
required to address activities that may cause jeopardy to or take of
Southern DPS green sturgeon, and to address activities that may affect
designated critical habitat (for example, consultation would be
required for the disposal of dredged material within designated
critical habitat areas).
Comment 67: The DOD commented that the Military Ocean Terminal
Concord (MOTCO) facility in Suisun Bay should not be eligible for
consideration as critical habitat, because an existing INRMP for the
facility already includes fishery measures that benefit green sturgeon.
In addition, the DOD requested that the area be excluded from
designation based on impacts on national security. The MOTCO operates
within the property of the former Naval Weapons Station,
[[Page 52321]]
Detachment Concord, California, which was transferred from the U.S.
Navy to the U.S. Army in fiscal year 2009. The U.S. Army is continuing
operations at the MOTCO facilities in accordance with the INRMP
prepared for the Naval Weapons Station Concord, as well as a Memorandum
of Understanding (MOU) with the USFWS relating to the designation of a
wetland preserve on the Naval Weapons Station Concord.
Response: NMFS corresponded with a representative from MOTCO to
discuss the MOTCO facilities and the INRMP. Upon further review of the
MOTCO facility maps and the information provided by the MOTCO
representative, NMFS determined that the MOTCO facilities are adjacent
to, but do not overlap with, the habitat areas considered for
designation as critical habitat for the Southern DPS in Suisun Bay,
California. The MOTCO representative agreed with the determination that
there is no overlap between the MOTCO facilities and the areas
considered for designation as critical habitat in Suisun Bay. Thus, the
MOTCO facilities are not included in the critical habitat designation
for Southern DPS green sturgeon. However, NMFS clarified that
consultation under section 7 of the ESA would still be required to
address jeopardy to or take of Southern DPS green sturgeon, or to
address effects on designated critical habitat areas. NMFS also
requested to be involved in reviewing the INRMP for the MOTCO
facilities to ensure that green sturgeon are adequately addressed.
Impacts on Indian Lands
Comment 68: Several Tribes in Oregon and Washington requested the
exclusion of Indian lands from the critical habitat designation. Some
of the Tribes also requested the exclusion of the Tribes' usual and
accustomed fishing areas due to concerns regarding the potential
effects of the critical habitat designation on Tribal fisheries. The
Tribes provided information regarding Tribal activities that may be
affected by the critical habitat designation and maps showing the
location of Indian lands and usual and accustomed fishing areas that
may overlap with the areas considered for designation as critical
habitat.
Response: NMFS corresponded with several Tribes in Washington and
Oregon to discuss and better understand their concerns regarding the
critical habitat designation. Based on the information received from
the Tribes, NMFS determined that the areas of overlap between Indian
lands and the areas considered for designation is small. In contrast,
the benefits of excluding Indian lands from the designation are high
and include: maintenance of NMFS' co-management and trust relationship
with the Tribes and continued respect for Tribal sovereignty and self-
governance, particularly with regard to the management of natural
resources on Indian lands. Thus, NMFS determined that the benefits of
exclusion outweigh the benefits of designation for Indian lands and
that Indian lands are eligible for exclusion. This final rule excludes
from the critical habitat designation Indian lands (as defined under
the Secretarial Order titled ``American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act'') of the
following Tribes: the Hoh, Jamestown S'Klallam, Lower Elwha, Makah,
Quileute, Quinault, and Shoalwater Bay Tribes in Washington; the
Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians and the
Coquille Tribe in Oregon; and the Cachil DeHe Band of Wintun Indians of
the Colusa Indian Community, Cher-Ae Heights Trinidad Rancheria, Wiyot
Tribe, and Yurok Tribe in California. This exclusion applies only to
current Indian lands and would not apply to additional Indian lands
acquired by the Tribes in the future. The Tribes would need to request
that NMFS revise the critical habitat designation for the Southern DPS
to exclude any Indian lands acquired after the publication of this
final rule. The final ESA section 4(b)(2) report (NMFS 2009c) documents
NMFS' correspondence with the Tribes and NMFS' determination regarding
the exclusion of Indian lands.
Three Tribes in Washington also requested the exclusion of usual
and accustomed fishing areas from the critical habitat designation. The
Tribes were primarily concerned with the potential impact of the
critical habitat designation on Tribal fisheries in coastal estuaries
and coastal marine waters. Based on the information provided by the
Tribes, NMFS would expect the critical habitat designation to have
minimal effects on Tribal fisheries. Tribal fisheries may cause take of
Southern DPS green sturgeon and thus are more likely to be affected by
take prohibitions as established in the proposed ESA 4(d) Rule for
green sturgeon (74 FR 23822; May 21, 2009) than by the proposed
critical habitat designation. In addition, usual and accustomed fishing
areas are not necessarily coextensive with areas defined as ``Indian
lands'' in various Federal policies, orders, and memoranda. Thus, we
conclude that exclusion of usual and accustomed fishing areas outside
those identified as Indian lands is not warranted. Tribal activities
conducted outside of identified Indian lands and that have a Federal
nexus (such as participation or funding by the Bureau of Indian
Affairs), including those conducted within usual and accustomed fishing
areas, would be subject to requirements under section 7 of the ESA to
ensure no destruction or adverse modification of critical habitat.
Unoccupied Areas
Comment 69: Several commenters agreed with NMFS' decision not to
designate unoccupied areas at this time, whereas two commenters
disagreed with this decision. Several commenters urged NMFS not to
designate critical habitat in unoccupied areas, stating that there is
insufficient information to determine that any of the currently
unoccupied areas identified are essential for conservation,
catastrophic risk can be addressed by focusing on habitat improvements
in currently occupied areas, and designation of unoccupied areas would
result in high economic impacts. Commenters stated that the restoration
of passage or habitat for green sturgeon in currently inaccessible or
unsuitable habitats can be more appropriately addressed in the recovery
planning process. Two commenters asserted that recovery would be
impossible without establishing additional spawning populations for the
Southern DPS with at least one inhabiting a separate basin from the
Sacramento River. One commenter recommended that the removal or
alteration of the Daguerre Dam on the Yuba River should be regarded as
critical, to allow passage and access to potential spawning habitats in
the Yuba River.
Response: Although the CHRT identified seven unoccupied areas that
may be essential for conservation, they did not have data to support a
determination that any of the unoccupied areas are essential for
conservation of the Southern DPS. Of greatest importance was the lack
of data on the historical use of these areas by green sturgeon. The
CHRT did not have any evidence to confirm that green sturgeon
historically occupied any of the seven unoccupied areas identified. In
addition, green sturgeon do not appear to occupy the lower American
River or the San Joaquin River presently, even though both systems are
accessible to green sturgeon (i.e., there is no physical barrier
blocking upstream migration). The public comments did
[[Page 52322]]
not provide additional information on historical green sturgeon
presence and use of these unoccupied areas. Thus, the CHRT maintained
their determination that the unoccupied areas may be essential but that
data are not available to determine that any of the unoccupied areas
are essential for the conservation of the Southern DPS. The CHRT and
NMFS recommend that future research be conducted to monitor these areas
for green sturgeon presence and to better understand the current
habitat conditions.
National Environmental Policy Act of 1969 (NEPA)
Comment 70: Two commenters stated that NMFS failed to comply with
NEPA and that the absence of the NEPA review causes important impacts
to remain unidentified, unrecognized, or ignored.
Response: We believe that in Douglas County v. Babbitt, 48 F. 3d
1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996), the Ninth
Circuit Court of Appeals correctly interpreted the relationship between
NEPA and the designation of critical habitat under the ESA. The Court
rejected the suggestion that irreconcilable statutory conflict or
duplicative statutory procedures are the only exceptions to application
of NEPA to Federal actions. The Court held that the legislative history
of the ESA demonstrated that Congress intended to displace NEPA
procedures with carefully crafted procedures specific to the
designation of critical habitat. Further, the Douglas County Court held
that the critical habitat mandate of the ESA conflicts with NEPA in
that, although the Secretary may exclude areas from critical habitat if
such exclusion would be more beneficial than harmful, the Secretary has
no discretion to exclude areas from designation if such exclusion would
result in extinction. The Court noted that the ESA also conflicts with
NEPA's demand for an impact analysis, in that the ESA dictates that the
Secretary ``shall'' designate critical habitat for listed species based
upon an evaluation of economic and other ``relevant'' impacts, which
the Court interpreted as narrower than NEPA's directive. Finally, the
Court, based upon a review of precedent from several circuits including
the Fifth Circuit, held that an environmental impact statement is not
required for actions that do not change the physical environment. The
impacts of the critical habitat designation on activities occurring
within the critical habitat areas were evaluated and considered in the
economic analysis (Indecon 2009) and ESA section 4(b)(2) analysis (NMFS
2009c).
Correction From Proposed Rule
We made modifications to the boundaries for the Strait of Juan de
Fuca to more accurately reflect the major basins associated with Puget
Sound (Batelle Marine Sciences Laboratory et al. 2001). The boundary
between the Strait of Juan de Fuca and Puget Sound should be defined by
a line between Partridge Point on Whidbey Island and Point Wilson at
Port Townsend. This final rule makes this correction in the regulatory
text.
Critical Habitat Identification and Designation
Section 4(b)(2) of the ESA requires the designation of critical
habitat for threatened and endangered species ``on the basis of the
best scientific data available and after taking into consideration the
economic impact, impact on national security, and any other relevant
impact, of specifying any particular area as critical habitat.'' This
section grants the Secretary [of Commerce] discretion to exclude any
area from critical habitat if he determines ``the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat.'' The Secretary may not exclude an area if it ``will
result in the extinction of the species.''
The ESA defines critical habitat under Section 3(5)(A) as:
(i) [T]he specific areas within the geographical area occupied
by the species, at the time it is listed * * *, on which are found
those physical or biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protection; and
(ii) specific areas outside the geographical area occupied by
the species at the time it is listed * * * upon a determination by
the Secretary that such areas are essential for the conservation of
the species.
The ESA defines conservation under section 3(3) to mean ``the use
of all methods and procedures which are necessary to bring any
endangered species or threatened species to the point at which the
measures provided pursuant to this Act are no longer necessary.''
Once critical habitat is designated, section 7 of the ESA requires
Federal agencies to ensure they do not fund, authorize, or carry out
any actions that will destroy or adversely modify that habitat. This
requirement is in addition to the ESA section 7 requirement that
Federal agencies ensure their actions do not jeopardize the continued
existence of listed species.
In the following sections, we describe our methods for evaluating
the areas considered for designation as critical habitat, our final
determinations, and the final critical habitat designation. This
description incorporates the changes described above in response to the
public comments and peer reviewer comments.
Methods and Criteria Used To Identify Critical Habitat
In accordance with section 4(b)(2) of the ESA and our implementing
regulations (50 CFR 424.12(a)), this rule is based on the best
scientific information available concerning the Southern DPS' present
and historical range, habitat, and biology, as well as threats to its
habitat. In preparing this rule, we reviewed and summarized current
information on the green sturgeon, including recent biological surveys
and reports, peer-reviewed literature, NMFS status reviews for green
sturgeon (Moyle et al. 1992; Adams et al. 2002; Biological Review Team
(BRT) 2005), and the proposed and final listing rules for the green
sturgeon (70 FR 17386, April 6, 2005; 71 FR 17757, April 7, 2006).
To assist with the evaluation of critical habitat, we convened the
CHRT, comprised of nine Federal biologists from NMFS, the USFWS, and
the U.S. Bureau of Reclamation (USBR) with experience in green sturgeon
biology, consultations, and management, or experience in the critical
habitat designation process. The CHRT used the best available
scientific and commercial data and their best professional judgment to:
(1) Verify the geographical area occupied by the Southern DPS at the
time of listing; (2) identify the physical and biological features
essential to the conservation of the species; (3) identify specific
areas within the occupied area containing those essential physical and
biological features; (4) verify whether the essential features within
each specific area may need special management considerations or
protection and identify activities that may affect these essential
features; (5) evaluate the conservation value of each specific area;
and (6) determine if any unoccupied areas are essential to the
conservation of the Southern DPS. The CHRT's evaluation and conclusions
are described in detail in the following sections, as well as in the
final biological report (NMFS 2009a).
Physical or Biological Features Essential for Conservation
Joint NMFS-USFWS regulations, at 50 CFR 424.12(b), state that in
[[Page 52323]]
determining what areas are critical habitat, the agencies ``shall
consider those physical and biological features that are essential to
the conservation of a given species and that may require special
management considerations or protection.'' Features to consider may
include, but are not limited to: ``(1) Space for individual and
population growth, and for normal behavior; (2) Food, water, air,
light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter; (4) Sites for breeding, reproduction, rearing of
offspring, germination, or seed dispersal; and generally; (5) Habitats
that are protected from disturbance or are representative of the
historic geographical and ecological distributions of a species.'' The
regulations also require the agencies to ``focus on the principal
biological or physical constituent elements'' (hereafter referred to as
``Primary Constituent Elements'' or PCEs) within the specific areas
considered for designation that are essential to conservation of the
species, which ``may include, but are not limited to, the following: *
* * spawning sites, feeding sites, seasonal wetland or dryland, water
quality or quantity, * * * geological formation, vegetation type, tide,
and specific soil types.''
The CHRT recognized that the different systems occupied by green
sturgeon at specific stages of their life cycle serve distinct purposes
and thus may contain different PCEs. Based on the best available
scientific information, the CHRT identified PCEs for freshwater
riverine systems, estuarine areas, and nearshore marine waters.
The specific PCEs essential for the conservation of the Southern
DPS in freshwater riverine systems include:
(1) Food resources. Abundant prey items for larval, juvenile,
subadult, and adult life stages. Although the CHRT lacked specific data
on food resources for green sturgeon within freshwater riverine
systems, juvenile green sturgeon most likely feed on fly larvae,
amphipods, and bivalves, based on nutritional studies on the closely-
related white sturgeon (Schreiber 1962; Radtke 1966; pers. comm. with
Jeff Stuart, NMFS, January 14, 2008, and August 13, 2009). Food
resources are important for juvenile foraging, growth, and development
during their downstream migration to the Delta and bays. In addition,
subadult and adult green sturgeon may forage during their downstream
post-spawning migration, while holding within deep pools (Erickson et
al. 2002), or on non-spawning migrations within freshwater rivers.
Subadult and adult green sturgeon in freshwater rivers most likely feed
on benthic prey species similar to those fed on in bays and estuaries,
including shrimp, clams, and benthic fishes (Moyle et al. 1995;
Erickson et al. 2002; Moser and Lindley 2007; Dumbauld et al. 2008).
(2) Substrate type or size (i.e., structural features of
substrates). Substrates suitable for egg deposition and development
(e.g., bedrock sills and shelves, cobble and gravel, or hard clean
sand, with interstices or irregular surfaces to ``collect'' eggs and
provide protection from predators, and free of excessive silt and
debris that could smother eggs during incubation), larval development
(e.g., substrates with interstices or voids providing refuge from
predators and from high flow conditions), and subadults and adults
(e.g., substrates for holding and spawning). For example, spawning is
believed to occur over substrates ranging from clean sand to bedrock
(Emmett et al. 1991; Moyle et al. 1995), with preferences for gravel,
cobble, and boulder (Poytress et al. 2009; pers. comm. with Dan
Erickson, ODFW, September 3, 2008). Eggs likely adhere to substrates,
or settle into crevices between substrates (Deng 2000; Van Eenennaam et
al. 2001; Deng et al. 2002). Both embryos and larvae exhibited a strong
affinity for benthic structure during laboratory studies (Van Eenennaam
et al. 2001; Deng et al. 2002; Kynard et al. 2005), and may seek refuge
within crevices, but use flat-surfaced substrates for foraging (Nguyen
and Crocker 2007).
(3) Water flow. A flow regime (i.e., the magnitude, frequency,
duration, seasonality, and rate-of-change of fresh water discharge over
time) necessary for normal behavior, growth, and survival of all life
stages. Such a flow regime should include stable and sufficient water
flow rates in spawning and rearing reaches to maintain water
temperatures within the optimal range for egg, larval, and juvenile
survival and development (11-19 [deg]C) (Cech et al. 2000, cited in
COSEWIC 2004; Mayfield and Cech 2004; Van Eenennaam et al. 2005; Allen
et al. 2006). Sufficient flow is needed to reduce the incidence of
fungal infestations of the eggs (Deng et al. 2002; Parsley et al.
2002). In addition, sufficient flow is needed to flush silt and debris
from cobble, gravel, and other substrate surfaces to prevent crevices
from being filled in (and potentially suffocating the eggs; Deng et al.
2002) and to maintain surfaces for feeding (Nguyen and Crocker 2007).
Successful migration of adult green sturgeon to and from spawning
grounds is also dependent on sufficient water flow. Spawning success is
associated with water flow and water temperature. Spawning in the
Sacramento River is believed to be triggered by increases in water flow
to about 400 m\3\/s (average daily water flow during spawning months:
198-306 m\3\/s) (Brown 2007). Post-spawning downstream migrations are
triggered by increased flows, ranging from 174-417 m\3\/s in the late
summer (Vogel 2005) and greater than 100 m\3\/s in the winter (Erickson
et al. 2002; Benson et al. 2007; pers. comm. with Richard Corwin, USBR,
June 5, 2008).
(4) Water quality. Water quality, including temperature, salinity,
oxygen content, and other chemical characteristics, necessary for
normal behavior, growth, and viability of all life stages. Suitable
water temperatures would include: relatively stable water temperatures
within spawning reaches (wide fluctuations could increase egg mortality
or deformities in developing embryos); temperatures within 11-17 [deg]C
(optimal range = 14-16 [deg]C) in spawning reaches for egg incubation
(March-August) (Van Eenennaam et al. 2005); temperatures below 20
[deg]C for larval development (Werner et al. 2007); and temperatures
below 24 [deg]C for juveniles (Mayfield and Cech 2004; Allen et al.
2006a). Suitable salinity levels range from fresh water (<3 parts per
thousand (ppt)) for larvae and early juveniles (about 100 dph) to
brackish water (10 ppt) for juveniles prior to their transition to salt
water. Exposure to higher salinities may affect the temperature
tolerances of juvenile green sturgeon (Sardella et al. 2008) and
prolonged exposure to higher salinities may result in decreased growth
and activity levels and even mortality (Allen and Cech 2007). Adequate
levels of dissolved oxygen are needed to support oxygen consumption by
fish in their early life stages (ranging from 61.78 to 76.06 mg
O2 hr-\1\ kg-\1\ for juveniles) (Allen
and Cech 2007). Suitable water quality would also include water
containing acceptably low levels of contaminants (e.g., pesticides,
polyaromatic hydrocarbons (PAHs), elevated levels of heavy metals) that
may disrupt normal development of embryonic, larval, and juvenile
stages of green sturgeon. Water with acceptably low levels of such
contaminants would protect green sturgeon from adverse impacts on
growth, reproductive development, and reproductive success (e.g.,
reduced egg size and abnormal gonadal development) likely to result
from exposure to contaminants (Fairey et al. 1997; Foster et al. 2001a;
Foster et al. 2001b; Kruse and Scarnecchia 2002; Feist et al. 2005;
Greenfield et al. 2005).
[[Page 52324]]
(5) Migratory corridor. A migratory pathway necessary for the safe
and timely passage of Southern DPS fish within riverine habitats and
between riverine and estuarine habitats (e.g., an unobstructed river or
dammed river that still allows for safe and timely passage). We define
safe and timely passage to mean that human-induced impediments, either
physical, chemical or biological, do not alter the migratory behavior
of the fish such that its survival or the overall viability of the
species is compromised (e.g., an impediment that compromises the
ability of fish to reach their spawning habitat in time to encounter
con-specifics and reproduce). Unimpeded migratory corridors are
necessary for adult green sturgeon to migrate to and from spawning
habitats, and for larval and juvenile green sturgeon to migrate
downstream from spawning/rearing habitats within freshwater rivers to
rearing habitats within the estuaries.
(6) Water depth. Deep (>=5 m) holding pools for both upstream and
downstream holding of adult or subadult fish, with adequate water
quality and flow to maintain the physiological needs of the holding
adult or subadult fish. Deep pools of >=5 m depth with high associated
turbulence and upwelling are critical for adult green sturgeon spawning
and for summer holding within the Sacramento River (Poytress et al.
2009). Adult green sturgeon in the Klamath and Rogue rivers also occupy
deep holding pools for extended periods of time, presumably for
feeding, energy conservation, and/or refuge from high water
temperatures (Erickson et al. 2002; Benson et al. 2007).
(7) Sediment quality. Sediment quality (i.e., chemical
characteristics) necessary for normal behavior, growth, and viability
of all life stages. This includes sediments free of elevated levels of
contaminants (e.g., selenium, PAHs, and pesticides) that may adversely
affect green sturgeon. Based on studies of white sturgeon,
bioaccumulation of contaminants from feeding on benthic species may
adversely affect the growth, reproductive development, and reproductive
success of green sturgeon.
The specific PCEs essential for the conservation of the Southern
DPS in estuarine areas include:
(1) Food resources. Abundant prey items within estuarine habitats
and substrates for juvenile, subadult, and adult life stages. Prey
species for juvenile, subadult, and adult green sturgeon within bays
and estuaries primarily consist of benthic invertebrates and fishes,
including crangonid shrimp, burrowing thalassinidean shrimp
(particularly the burrowing ghost shrimp), amphipods, isopods, clams,
annelid worms, crabs, sand lances, and anchovies. These prey species
are critical for the rearing, foraging, growth, and development of
juvenile, subadult, and adult green sturgeon within the bays and
estuaries.
(2) Water flow. Within bays and estuaries adjacent to the
Sacramento River (i.e., the Sacramento-San Joaquin Delta and the
Suisun, San Pablo, and San Francisco bays), sufficient flow into the
bay and estuary to allow adults to successfully orient to the incoming
flow and migrate upstream to spawning grounds. Sufficient flows are
needed to attract adult green sturgeon to the Sacramento River to
initiate the upstream spawning migration (Kohlhorst et al. 1991, cited
in CDFG 2002; pers. comm. with Jeff Stuart, NMFS, February 24-25,
2008).
(3) Water quality. Water quality, including temperature, salinity,
oxygen content, and other chemical characteristics, necessary for
normal behavior, growth, and viability of all life stages. Suitable
water temperatures for juvenile green sturgeon should be below 24
[deg]C. At temperatures above 24 [deg]C, juvenile green sturgeon
exhibit decreased swimming performance (Mayfield and Cech 2004) and
increased cellular stress (Allen et al. 2006). Suitable salinities
range from brackish water (10 ppt) to salt water (33 ppt). Juveniles
transitioning from brackish to salt water can tolerate prolonged
exposure to salt water salinities, but may exhibit decreased growth and
activity levels and a restricted temperature tolerance range (Allen and
Cech 2007; Sardella et al. 2008), whereas subadults and adults tolerate
a wide range of salinities (Kelly et al. 2007). Subadult and adult
green sturgeon occupy a wide range of dissolved oxygen levels, but may
need a minimum dissolved oxygen level of at least 6.54 mg
02/l (Kelly et al. 2007; Moser and Lindley 2007). As
described above, adequate levels of dissolved oxygen are also required
to support oxygen consumption by juveniles (ranging from 61.78 to 76.06
mg O2 hr-\1\ kg-\1\) (Allen and Cech
2007). Suitable water quality also includes water with acceptably low
levels of contaminants (e.g., pesticides, PAHs, elevated levels of
heavy metals) that may disrupt the normal development of juvenile life
stages, or the growth, survival, or reproduction of subadult or adult
stages.
(4) Migratory corridor. A migratory pathway necessary for the safe
and timely passage of Southern DPS fish within estuarine habitats and
between estuarine and riverine or marine habitats. We define safe and
timely passage to mean that human-induced impediments, either physical,
chemical, or biological, do not alter the migratory behavior of the
fish such that its survival or the overall viability of the species is
compromised (e.g., an impediment that compromises the ability of fish
to reach thermal refugia by the time they enter a particular life
stage). Within the bays and estuaries adjacent to the Sacramento River,
unimpeded passage is needed for juvenile green sturgeon to migrate from
the river to the bays and estuaries and eventually out into the ocean.
Passage within the bays and the Delta is also critical for adults and
subadults for feeding and summer holding, as well as to access the
Sacramento River for their upstream spawning migrations and to make
their outmigration back into the ocean. Within bays and estuaries
outside of the Delta and the Suisun, San Pablo, and San Francisco bays,
unimpeded passage is necessary for adult and subadult green sturgeon to
access feeding areas, holding areas, and thermal refugia, and to ensure
passage back out into the ocean.
(5) Water depth. A diversity of depths necessary for shelter,
foraging, and migration of juvenile, subadult, and adult life stages.
Subadult and adult green sturgeon occupy a diversity of depths within
bays and estuaries for feeding and migration. Tagged adults and
subadults within the San Francisco Bay estuary primarily occupied
waters over shallow depths of less than 10 m, either swimming near the
surface or foraging along the bottom (Kelly et al. 2007). In a study of
juvenile green sturgeon in the Delta, relatively large numbers of
juveniles were captured primarily in shallow waters from 1-3 meters
deep, indicating juveniles may require even shallower depths for
rearing and foraging (Radtke 1966). Thus, a diversity of depths is
important to support different life stages and habitat uses for green
sturgeon within estuarine areas.
(6) Sediment quality. Sediment quality (i.e., chemical
characteristics) necessary for normal behavior, growth, and viability
of all life stages. This includes sediments free of elevated levels of
contaminants (e.g., selenium, PAHs, and pesticides) that can cause
adverse effects on all life stages of green sturgeon (see description
of ``Sediment quality'' for riverine habitats above).
The specific PCEs essential for the conservation of the Southern
DPS in coastal marine areas include:
(1) Migratory corridor. A migratory pathway necessary for the safe
and
[[Page 52325]]
timely passage of Southern DPS fish within marine and between estuarine
and marine habitats. We define safe and timely passage to mean that
human-induced impediments, either physical, chemical, or biological, do
not alter the migratory behavior of the fish such that its survival or
the overall viability of the species is compromised (e.g., an
impediment that compromises the ability of fish to reach abundant prey
resources during the summer months in Washington and Oregon estuaries).
Subadult and adult green sturgeon spend the majority of their lives in
marine and estuarine waters outside of their natal rivers. Unimpeded
passage within coastal marine waters is critical for subadult and adult
Southern DPS green sturgeon to access oversummering habitats within
coastal bays and estuaries and overwintering habitats within coastal
waters between Vancouver Island, BC, and southeast Alaska (Lindley et
al. 2008), as well as to return to its natal waters in the Sacramento
River to spawn.
(2) Water quality. Coastal marine waters with adequate dissolved
oxygen levels and acceptably low levels of contaminants (e.g.,
pesticides, PAHs, heavy metals that may disrupt the normal behavior,
growth, and viability of subadult and adult green sturgeon). Based on
studies of tagged subadult and adult green sturgeon in the San
Francisco Bay estuary, CA, and Willapa Bay, WA, subadults and adults
may need a minimum dissolved oxygen level of at least 6.54 mg
O2/l (Kelly et al. 2007; Moser and Lindley 2007). As
described above, exposure to and bioaccumulation of contaminants may
adversely affect the growth, reproductive development, and reproductive
success of subadult and adult green sturgeon. Thus, waters with
acceptably low levels of such contaminants are required for the normal
development of green sturgeon for optimal survival and spawning
success.
(3) Food resources. Abundant prey items for subadults and adults,
which may include benthic invertebrates and fish. Green sturgeon spend
more than half their lives in coastal marine and estuarine waters,
spending from 3-20 years at a time out at sea. Abundant food resources
are important to support subadults and adults over long-distance
migrations, and may be one of the factors attracting green sturgeon to
habitats far to the north (off the coasts of Vancouver Island and
Alaska) and to the south (Monterey Bay, CA, and off the coast of
southern California) of their natal habitat. Although the CHRT lacked
direct evidence, prey species likely include benthic invertebrates and
fish similar to those fed upon by green sturgeon in bays and estuaries
(e.g., shrimp, clams, crabs, anchovies, sand lances).
Geographical Area Occupied by the Species and Specific Areas Within the
Geographical Area Occupied
One of the first steps in the critical habitat designation process
is to define the geographical area occupied by the species at the time
of listing. The CHRT relied on data from tagging and tracking studies,
genetic analyses, field observations, records of fisheries take and
incidental take (e.g., in water diversion activities), and
opportunistic sightings to provide information on the current range and
distribution of green sturgeon and of the Southern DPS. The range of
green sturgeon extends from the Bering Sea, Alaska, to Ensenada,
Mexico. Within this range, Southern DPS fish are confirmed to occur
from Graves Harbor, Alaska, to Monterey Bay, California (Lindley et al.
2008; pers. comm. with Steve Lindley, NMFS, and Mary Moser, NMFS,
February 24-25, 2008), based on telemetry data and genetic analyses.
Green sturgeon have been observed northwest of Graves Harbor, AK, and
south of Monterey Bay, CA, but have not been identified as belonging to
either the Northern or Southern DPS. The CHRT concluded that there are
no barriers or habitat conditions preventing Southern DPS fish detected
in Monterey Bay, CA, or off Graves Harbor, AK, from moving further
south or further north, and that the green sturgeon observed in these
areas could belong to either the Northern DPS or the Southern DPS.
Based on this reasoning, the geographical area occupied by the Southern
DPS was defined as the entire range occupied by green sturgeon (i.e.,
from the Bering Sea, AK, to Ensenada, Mexico), encompassing all areas
where the presence of Southern DPS fish has been confirmed, as well as
areas where the presence of Southern DPS fish is likely (based on the
presence of confirmed Northern DPS fish or green sturgeon of unknown
DPS).
Areas outside of the United States cannot be designated as critical
habitat (50 CFR 424.12(h)). Thus, the occupied geographical area under
consideration for this designation is limited to areas from the Bering
Sea, AK, to the California/Mexico border, excluding Canadian waters.
For freshwater rivers, the CHRT concluded that green sturgeon of each
DPS are likely to occur throughout their natal river systems, but,
within non-natal river systems, are likely to be limited to the
estuaries and would not occur upstream of the head of the tide. For the
purposes of our evaluation of critical habitat, we defined all green
sturgeon observed upstream of the head of the tide in freshwater rivers
south of the Eel River (i.e., the Sacramento River and its tributaries)
as belonging to the Southern DPS, and all green sturgeon observed
upstream of the head of the tide in freshwater rivers north of and
including the Eel River as belonging to the Northern DPS. Thus, for
freshwater rivers north of and including the Eel River, the areas
upstream of the head of the tide were not considered part of the
geographical area occupied by the Southern DPS.
The CHRT then identified ``specific areas'' within the geographical
area occupied. To be eligible for designation as critical habitat under
the ESA, each specific area must contain at least one PCE that may
require special management considerations or protection. For each
specific occupied area, the CHRT noted whether the presence of Southern
DPS green sturgeon is confirmed or likely (based on the presence of
Northern DPS fish or green sturgeon of unknown DPS) and verified that
each area contained one or more PCE(s) that may require special
management considerations or protection. The following paragraphs
provide a brief description of the presence and distribution of
Southern DPS green sturgeon within each area and summarize the CHRT's
methods for delineating the specific areas.
Freshwater Rivers, Bypasses, and the Delta
Green sturgeon occupy several freshwater river systems from the
Sacramento River, CA, north to British Columbia, Canada (Moyle 2002).
As described in the previous section, Southern DPS green sturgeon occur
throughout their natal river systems (i.e., the Sacramento River, lower
Feather River, and lower Yuba River), but are believed to be restricted
to the estuaries in non-natal river systems (i.e., north of and
including the Eel River). The CHRT defined the specific areas in the
Sacramento, Feather, and Yuba rivers in California to include riverine
habitat from the river mouth upstream to and including the furthest
known site of historic and/or current sighting or capture of green
sturgeon, as long as the site is still accessible. The specific areas
were extended upstream to a geographically identifiable point. The
riverine specific areas include areas that offer at least periodic
passage of Southern DPS fish to upstream sites and include sufficient
habitat necessary for each riverine life stage (e.g., spawning,
[[Page 52326]]
egg incubation, larval rearing, juvenile feeding, passage throughout
the river, and/or passage into and out of estuarine or marine habitat).
The CHRT delineated specific areas where Southern DPS green
sturgeon occur, including: the Sacramento River, the Yolo and Sutter
bypasses, the lower Feather River, and the lower Yuba River. The CHRT
also delineated a specific area in the Sacramento-San Joaquin Delta.
The mainstem Sacramento River is the only area where spawning by
Southern DPS green sturgeon has been confirmed and where all life
stages of the Southern DPS are supported. Beginning in March and
through early summer, adult green sturgeon migrate as far upstream as
the Keswick Dam (RKM 486) to spawn (Brown 2007; Heublein et al. 2008;
Poytress et al. 2009). Spawning has been confirmed by the collection of
larvae and juveniles at the RBDD and the Glenn-Colusa Irrigation
District (GCID) (CDFG 2002; Brown 2007) and by the collection of green
sturgeon eggs upstream and downstream of the RBDD (Brown 2007; Poytress
et al. 2009). The Sacramento River provides important spawning,
holding, and migratory habitat for adults and important rearing,
feeding, and migratory habitat for larvae and juveniles. The Yolo and
Sutter bypasses adjacent to the lower Sacramento River also serve as
important migratory corridors for Southern DPS adults, subadults, and
juveniles on their upstream or downstream migration and provide a high
macroinvertebrate forage base that may support green sturgeon feeding.
Southern DPS adults occupy the lower Feather River up to Fish Barrier
Dam (RKM 109) and the lower Yuba River up to Daguerre Dam (RKM 19).
Based on observations of Southern DPS adults occurring right up to the
dams and of spawning behavior by adults on the Feather River, spawning
may have occurred historically in the lower Feather River and, to a
lesser extent, in the lower Yuba River. However, no green sturgeon
eggs, larvae, or juveniles have ever been collected within these
rivers. Further downstream, the Delta provides important rearing,
feeding, and migratory habitat for juveniles, which occur throughout
the Delta in all months of the year. Subadults and adults also occur
throughout the Delta to feed, grow, and prepare for their outmigration
to the ocean. The final biological report (NMFS 2009a) provides more
detailed information on each specific area, including a description of
the PCEs present, special management considerations or protection that
may be needed, and the presence and distribution of Southern DPS green
sturgeon. The final biological report is available upon request (see
ADDRESSES), via our Web site at http://swr.nmfs.noaa.gov, or via the
Federal eRulemaking Web site at http://www.regulations.gov. For
additional discussion of the special management considerations or
protection that may be needed for the PCEs, please see also the
description of ``Special management considerations or protection''
below.
Bays and Estuaries
Southern DPS green sturgeon occupy coastal bays and estuaries from
Monterey Bay, CA, to Puget Sound, WA. In the Central Valley, CA,
juvenile, subadult, and adult life stages occur throughout the Suisun,
San Pablo, and San Francisco bays. These bays support the rearing,
feeding, and growth of juveniles prior to their first entry into marine
waters. The bays also serve as important feeding, rearing, and
migratory habitat for subadult and adult Southern DPS green sturgeon.
Outside of their natal system, subadult and adult Southern DPS fish
occupy coastal bays and estuaries in California, Oregon, and
Washington, including estuarine waters at the mouths of non-natal
rivers. Subadult and adult Southern DPS green sturgeon have been
confirmed to occupy the following coastal bays and estuaries: Monterey
Bay and Humboldt Bay in California; Coos Bay, Winchester Bay, and
Yaquina Bay in Oregon; the lower Columbia River estuary; and Willapa
Bay, Grays Harbor, and Puget Sound in Washington (Chadwick 1959; Miller
1972; Lindley et al. 2008; Pinnix 2008; pers. comm. with Steve Lindley,
NMFS, and Mary Moser, NMFS, February 24-25, 2008; pers. comm. with Dan
Erickson, ODFW, September 3, 2008). The presence of Southern DPS green
sturgeon is likely (based on limited records of confirmed Northern DPS
fish or green sturgeon of unknown DPS), but not confirmed within the
following coastal bays and estuaries: Elkhorn Slough, Tomales Bay, Noyo
Harbor, Eel River estuary, and Klamath/Trinity River estuary in
California; and the Rogue River estuary, Siuslaw River estuary, Alsea
River estuary, Tillamook Bay, and Nehalem Bay in Oregon (Emmett et al.
1991; Moyle et al. 1992; Adams et al. 2002; Erickson et al. 2002;
Yoklavich et al. 2002; Farr and Kern 2005; ODFW 2009a, b).
Subadult and adult green sturgeon are believed to occupy coastal
bays and estuaries outside of their natal waters for feeding and
optimization of growth (Moser and Lindley 2007; Lindley et al. 2008).
Occupied coastal bays and estuaries north of San Francisco Bay, CA,
contain oversummering habitats for subadults and adults, whereas
coastal bays and estuaries south of San Francisco Bay, CA, are believed
to contain overwintering habitats (Lindley et al. 2008). The largest
concentrations of green sturgeon, including Southern DPS fish, occur
within the lower Columbia River estuary, Willapa Bay, and Grays Harbor
(Emmett et al. 1991; Adams et al. 2002; WDFW and ODFW 2002; Israel and
May 2006; Moser and Lindley 2007; Lindley et al. 2008). Large numbers
of green sturgeon also occur within Winchester Bay, Tillamook Bay, Coos
Bay, Yaquina Bay, and Humboldt Bay (Moyle et al. 1992; Rien et al.
2000; Farr et al. 2001; Adams et al. 2002; Farr and Rien 2002, 2003;
Farr and Kern 2004, 2005; Israel and May 2006; Lindley et al. 2008;
Pinnix 2008; ODFW 2009a, b). Smaller numbers of green sturgeon occur in
Tomales Bay in California (Moyle et al. 1992); the Siuslaw River
estuary and Alsea River estuary in Oregon (ODFW 2009a, b); the lower
Columbia River from RKM 74 to the Bonneville Dam (WDFW 2008); and Puget
Sound in Washington (pers. comm. with Mary Moser, NMFS, March 11,
2008). Based on limited available data, green sturgeon presence is
believed to be rare in Elkhorn Slough and Noyo Harbor in California
(Emmett et al. 1991; Moyle et al. 1992; Yoklavich et al. 2002). Green
sturgeon are present in the estuaries of the Eel River, Klamath/Trinity
rivers, and Rogue River, but are believed to most likely belong to the
Northern DPS. This is based on the fact that the Klamath/Trinity and
Rogue rivers are spawning rivers for the Northern DPS and that the
Northern DPS is defined to be inclusive of green sturgeon originating
in coastal watersheds north of and including the Eel River. To date, no
tagged Southern DPS subadults or adults have been detected in the
estuaries of the three rivers, although Southern DPS fish have been
observed in coastal marine waters just outside the mouth of the Klamath
River (pers. comm. with Steve Lindley, NMFS, March 5, 2008).
The CHRT included all coastal bays and estuaries for which there
was evidence to confirm the presence of green sturgeon, noting where
there were confirmed Southern DPS fish, confirmed Northern DPS fish, or
confirmed green sturgeon of unknown DPS. As stated in the previous
section, based on our definitions for the Northern DPS and Southern
DPS, any green sturgeon observed upstream of the head of the tide in
freshwater rivers
[[Page 52327]]
north of and including the Eel River were assigned to the Northern DPS.
Thus, areas upstream of the head of the tide on these rivers were not
included as part of the occupied specific areas for the Southern DPS.
Each specific area was defined to extend from the mouth of the bay or
estuary upstream to the head of the tide. The boundary at the mouth of
each bay or estuary was defined by the COLREGS demarcation line.
COLREGS demarcation lines delineate ``those waters upon which mariners
shall comply with the International Regulations for Preventing
Collisions at Sea, 1972 (72 COLREGS) and those waters upon which
mariners shall comply with the Inland Navigation Rules'' (33 CFR
80.01). Waters inside of the 72 COLREGS lines are Inland Rules waters
and waters outside of the 72 COLREGS lines are COLREGS waters. The
final biological report (NMFS 2009a) provides additional information
for each specific area. For a copy of the report, see ADDRESSES, our
Web site at http://swr.nmfs.noaa.gov, or the Federal eRulemaking Web
site at http://www.regulations.gov. For additional discussion of the
special management considerations or protection that may be needed for
the PCEs, see the description of ``Special management considerations or
protection'' below.
Coastal Marine Waters
Subadult and adult green sturgeon spend most of their lives in
coastal marine and estuarine waters. The best available data indicate
coastal marine waters are important for seasonal migrations from
southern California to Alaska to reach distant foraging and aggregation
areas. Green sturgeon occur primarily within the 110 m (60 fm) depth
bathymetry (Erickson and Hightower 2007). Green sturgeon tagged in the
Rogue River and tracked in marine waters typically occupied the water
column at 40-70 m depth, but made rapid vertical ascents to or near the
surface, for reasons yet unknown (Erickson and Hightower 2007). Green
sturgeon use of waters shallower than 110 m (60 fm) depth was confirmed
by coastal Oregon and Washington bottom-trawl fisheries records
indicating that most reported locations of green sturgeon occurred
inside of the 110 m depth contour from 1993-2000, despite the fact that
most of the fishing effort occurred in water deeper than 110 m
(Erickson and Hightower 2007).
Based on tagging studies of both Southern and Northern DPS fish,
green sturgeon spend a large part of their time in coastal marine
waters migrating between coastal bays and estuaries, including
sustained long-distance migrations of up to 100 km per day (pers. comm.
with Steve Lindley, NMFS, and Mary Moser, NMFS, cited in BRT 2005).
These seasonal long-distance migrations are most likely driven by food
resources. Some tagged individuals were observed swimming at slower
speeds and spending several days within certain areas, suggesting that
the individuals were feeding (pers. comm. with Steve Lindley, NMFS, and
Mary Moser, NMFS, February 24-25, 2008).
Within the geographical area occupied (from the California/Mexico
border to the Bering Sea, Alaska), the CHRT divided the coastal marine
waters into 12 specific areas between those estuaries or bays that had
been confirmed to be occupied by the Southern DPS. The presence of
green sturgeon and Southern DPS fish within each area was based on data
from tagging and tracking studies, records of fisheries captures, and
NOAA Observer Program records. Tagged Southern DPS subadults and adults
have been detected in coastal marine waters from Monterey Bay, CA, to
Graves Harbor, AK, including the Strait of Juan de Fuca (Lindley et al.
2008). Green sturgeon bycatch data from NOAA's West Coast Groundfish
Observer Program (WCGOP) support the telemetry results, showing green
sturgeon occur from Monterey Bay, CA, to Cape Flattery, WA, with the
greatest catch per unit effort in coastal waters from Monterey Bay to
Humboldt Bay, CA (pers. comm. with Jon Cusick, NMFS, August 7, 2008).
Because green sturgeon were only observed in the bottom trawl fishery,
there were no data on green sturgeon bycatch off southeast Alaska,
where bottom trawl fishing is prohibited. Green sturgeon have, however,
been captured in bottom trawl fisheries along the coast off British
Columbia. Although critical habitat cannot be designated within
Canadian waters, it is important to note that several tagged Southern
DPS green sturgeon have been detected off Brooks Peninsula on the
northern tip of Vancouver Island, BC (Lindley et al. 2008). Patterns of
telemetry data suggest that Southern DPS fish use oversummering grounds
in coastal bays and estuaries along northern California, Oregon, and
Washington and overwintering grounds off central California and between
Vancouver Island, BC, and southeast Alaska (Lindley et al. 2008).
Based on the tagging data and the information described above
regarding green sturgeon use of coastal bays and estuaries in
California, Oregon, and Washington, the CHRT identified the coastal
marine waters from Monterey Bay, CA, to Vancouver Island, BC, as the
primary migratory/connectivity corridor for subadult and adult Southern
DPS green sturgeon to migrate to and from oversummering habitats and
overwintering habitats. Coastal marine waters off southeast Alaska were
not considered part of the primary migratory/connectivity corridor for
green sturgeon, but were recognized as an important area at the
northern extent of the overwintering range, based on the detection of
two tagged Southern DPS fish off Graves Harbor, AK, (pers. comm. with
Steve Lindley, NMFS, September 12, 2007) and green sturgeon bycatch
data along the northern coast of British Columbia (Lindley et al.
2008). For marine waters off northwest Alaska, data on green sturgeon
occurrence include the capture of two green sturgeon of unknown DPS in
bottom trawl groundfish fisheries off Kodiak Island, AK, and in the
Bering Sea off Unimak Island, AK, in 2006 (pers. comm. with Duane
Stevenson, NMFS, September 8, 2006). For the area south of Monterey
Bay, a few green sturgeon of unknown DPS have been captured off
Huntington Beach and Newport (Roedel 1941), Point Vicente (Norris
1957), Santa Barbara, and San Pedro (pers. comm. with Rand Rasmussen,
NMFS, July 18, 2006). More detailed information on the specific areas
within coastal marine waters can be found in the final biological
report (NMFS 2009a), available at our Web site at http://swr.nmfs.noaa.gov, at the Federal eRulemaking Web site at http://www.regulations.gov, or upon request (see ADDRESSES). For additional
discussion of the special management considerations or protection that
may be needed for the PCEs, please see the description of ``Special
management considerations or protection'' below.
Special Management Considerations or Protection
Joint NMFS and USFWS regulations at 50 CFR 424.02(j) define
``special management considerations or protection'' to mean ``any
methods or procedures useful in protecting physical and biological
features of the environment for the conservation of listed species.''
Based on discussions with the CHRT and consideration of the draft
economic report, a number of activities were identified that may
threaten the PCEs such that special management considerations or
protection may be required. Major categories of habitat-related
activities include: (1) Dams; (2) water diversions; (3) dredging and
disposal of dredged material; (4) in-water construction or alterations,
including channel
[[Page 52328]]
modifications/diking, sand and gravel mining, gravel augmentation, road
building and maintenance, forestry, grazing, agriculture, urbanization,
and other activities; (5) NPDES permit activities and activities
generating non-point source pollution; (6) power plants; (7) commercial
shipping; (8) aquaculture; (9) desalination plants; (10) proposed
alternative energy projects; (11) liquefied natural gas (LNG) projects;
(12) bottom trawling; and (13) habitat restoration. These activities
may have an effect on one or more PCE(s) via their alteration of one or
more of the following: stream hydrology, water level and flow, water
temperature, dissolved oxygen, erosion and sediment input/transport,
physical habitat structure, vegetation, soils, nutrients and chemicals,
fish passage, and stream/estuarine/marine benthic biota and prey
resources. The CHRT identified the activities occurring within each
specific area that may necessitate special management considerations or
protection for the PCEs and these are described briefly in the
following paragraphs. These activities are documented more fully in the
final biological report and final economic analysis report.
Table 1 lists the specific areas and the river miles or area
(square miles) covered, the PCEs present, and the activities that may
affect the PCEs for each specific area and necessitate the need for
special management considerations or protection. Several activities may
affect the PCEs within the freshwater rivers, bypasses, and the
Sacramento-San Joaquin Delta (the Delta). Within the rivers, dams and
diversions pose threats to habitat features essential for the Southern
DPS by obstructing migration, altering water flows and temperature, and
modifying substrate composition within the rivers. Pollution from
agricultural runoff and water returns, as well as from other point and
non-point sources, adversely affects water quality within the rivers,
bypasses and the Delta. Water management practices in the bypasses may
pose a threat to Southern DPS fish residing within or migrating through
the bypasses. For example, low water levels may obstruct passage
through the bypasses, resulting in stranded fish. Within the Delta,
activities such as dredging, pile driving, water diversion, and the
discharge of pollutants from point and non-point sources can adversely
affect water quality and prey resources, as well as alter the
composition and distribution of bottom substrates within the Delta.
Several activities were also identified that may threaten the PCEs
in coastal bays and estuaries and may necessitate the need for special
management considerations or protection (Table 1). The application of
pesticides may adversely affect prey resources and water quality within
the bays and estuaries. For example, in Willapa Bay and Grays Harbor,
the use of carbaryl in association with aquaculture operations reduces
the abundance and availability of burrowing ghost shrimp, an important
prey species for green sturgeon (Moser and Lindley 2007; Dumbauld et
al. 2008). In the San Francisco, San Pablo, and Suisun bays, several
pesticides have been detected at levels exceeding national benchmarks
for the protection of aquatic life (Domagalski et al. 2000). These
pesticides pose a water quality issue and may affect the abundance and
health of prey items as well as the growth and reproductive health of
Southern DPS green sturgeon through bioaccumulation. Other activities
of concern include those that may disturb bottom substrates, adversely
affect prey resources, or degrade water quality through re-suspension
of contaminated sediments.
Several activities were identified that may affect the PCEs within
coastal marine areas such that the PCEs would require special
management consideration or protection (Table 1). The fact that green
sturgeon were only captured in the bottom trawl fishery (pers. comm.
with Jon Cusick, NMFS, August 7, 2008) provides evidence that green
sturgeon are associated with the benthos and thus exposed to activities
that disturb the bottom. Of particular concern are activities that
affect prey resources. Prey resources likely include species similar to
those fed on by green sturgeon in bays and estuaries (e.g., burrowing
ghost shrimp, mud shrimp, crangonid shrimp, amphipods, isopods,
Dungeness crab), and can be affected by: commercial shipping and
activities generating point source pollution (subject to NPDES
requirements) and non-point source pollution that can discharge
contaminants and result in bioaccumulation of contaminants in green
sturgeon; disposal of dredged materials that can bury prey resources;
and bottom trawl fisheries that can disturb the bottom (but may result
in beneficial or adverse effects on prey resources for green sturgeon).
In addition, petroleum spills from commercial shipping activities and
proposed alternative energy hydrokinetic projects may affect water
quality or hinder the migration of green sturgeon along the coast and
may necessitate special management of the PCEs.
Table 1--Summary of Occupied Specific Areas Within Freshwater Rivers, the Bypasses, the Sacramento-San Joaquin
Delta, Coastal Bays And Estuaries, and Coastal Marine Areas (Within 60 fm Depth)
[The river kilometers or surface area covered, the PCEs present, and activities that may affect the PCEs and
necessitate the need for special management considerations or protection within each area are listed. PCEs: Wd =
depth, Fd = food, Fl = water flow, P = passage, S = substrates, Sq = sediment quality, Wq = water quality.
Activities: AG = agriculture, AQ = aquaculture, BOT = bottom trawl fishing, CON = in-water construction or
alterations, DAM = dams, DESAL = desalination plants, DIV = water diversions, DR = dredging and deposition of
dredged material, EP = alternative energy hydrokinetic projects, LNG = LNG projects, POLL = point and non-point
source pollution, PP = power plants, REST = restoration, SHIP = commercial shipping]
----------------------------------------------------------------------------------------------------------------
Specific area River km PCEs present Activities
----------------------------------------------------------------------------------------------------------------
Freshwater Rivers
----------------------------------------------------------------------------------------------------------------
Upper Sacramento River, CA............... 95 Wd, Fd, Fl, P, S, Sq, Wq.... CON, DAM, DIV, POLL, REST
Lower Sacramento River, CA............... 294 Wd, Fd, Fl, P, S, Sq, Wq.... AG, CON, DAM, DIV, DR,
POLL, REST
Lower Feather River, CA.................. 109 Wd, Fl, P, Wq............... AG, CON, DAM, DIV, POLL,
REST
Lower Yuba River, CA..................... 18 Wd, Fl, P, Wq............... AG, CON, DAM, DIV, POLL,
REST
Sacramento-San Joaquin Delta, CA......... 784 Wd, Fd, Fl, P, S, Sq, Wq.... CON, DAM, DIV, DR, POLL,
PP, REST, SHIP
[[Page 52329]]
Table 1--Summary of Occupied Specific Areas Within Freshwater Rivers, the Bypasses, the Sacramento-San Joaquin
Delta, Coastal Bays And Estuaries, and Coastal Marine Areas (Within 60 fm Depth)--(Continued)
[The river kilometers or surface area covered, the PCEs present, and activities that may affect the PCEs and
necessitate the need for special management considerations or protection within each area are listed. PCEs: Wd =
depth, Fd = food, Fl = water flow, P = passage, S = substrates, Sq = sediment quality, Wq = water quality.
Activities: AG = agriculture, AQ = aquaculture, BOT = bottom trawl fishing, CON = in-water construction or
alterations, DAM = dams, DESAL = desalination plants, DIV = water diversions, DR = dredging and deposition of
dredged material, EP = alternative energy hydrokinetic projects, LNG = LNG projects, POLL = point and non-point
source pollution, PP = power plants, REST = restoration, SHIP = commercial shipping]
----------------------------------------------------------------------------------------------------------------
Area (sq
Specific area km) PCEs present Activities
----------------------------------------------------------------------------------------------------------------
Bypasses and the Delta
----------------------------------------------------------------------------------------------------------------
Yolo Bypass, CA.......................... 289 Fd, P, Sq, Wq............... AG, DAM, DIV, POLL, REST
Sutter Bypass, CA........................ 61 Fd, P, Sq, Wq............... AG, CON, DAM, DIV, POLL,
REST
----------------------------------------------------------------------------------------------------------------
Coastal Bays and Estuaries
----------------------------------------------------------------------------------------------------------------
Elkhorn Slough, CA....................... 3 Fd, Sq, P, Wq............... CON, DR, POLL, PP
Suisun Bay, CA........................... 131 Wd, Fd, Fl, P, Sq, Wq....... CON, DR, POLL, PP, REST,
SHIP
San Pablo Bay, CA........................ 329 Wd, Fd, P, Sq, Wq........... CON, DR, POLL, PP, REST,
SHIP
San Francisco Bay, CA.................... 700 Wd, Fd, P, Sq, Wq........... CON, DR, EP, POLL, PP,
REST, SHIP
Tomales Bay, CA.......................... 30 Fd, P, Sq, Wq............... AG, AQ, CON, DIV, POLL,
REST
Noyo Harbor, CA.......................... 0.1 Fd, P, Sq, Wq............... CON, DR, POLL
Eel R. estuary, CA....................... 22 Fd, P, Sq, Wq............... CON, POLL
Humboldt Bay, CA......................... 68 Fd, P, Sq, Wq............... AG, AQ, CON, DR, POLL, SHIP
Klamath/Trinity R. estuary, CA........... 6 Fd, P, Sq, Wq............... CON, POLL
Rogue R. estuary, OR..................... 1 Fd, P, Sq, Wq............... CON, POLL
Coos Bay, OR............................. 48 Fd, P, Sq, Wq............... CON, DR, LNG, POLL, SHIP
Winchester Bay, OR....................... 22 Fd, P, Sq, Wq............... CON, POLL
Siuslaw R. estuary, OR................... 1 Fd, P, Sq, Wq............... CON, POLL
Alsea R. estuary, OR..................... 2 Fd, P, Sq, Wq............... CON, DIV, POLL
Yaquina Bay, OR.......................... 12 Fd, P, Sq, Wq............... CON, DR, POLL
Tillamook Bay, OR........................ 37 Fd, P, Sq, Wq............... CON, DR, POLL
Nehalem Bay, OR.......................... 8 Fd, P, Sq, Wq............... CON, DR, POLL
Lower Columbia river estuary (RKM 0 to 414 Fd, P, Sq, Wq............... CON, DAM, DR, LNG, POLL,
74). SHIP
Lower Columbia River (RKM 74 to 207 Fd, P, Sq, Wq............... CON, DAM, DR, POLL, SHIP
Bonneville Dam).
Willapa Bay, WA.......................... 347 Fd, P, Sq, Wq............... AQ, CON, DR, EP, POLL
Grays Harbor, WA......................... 245 Fd, P, Sq, Wq............... AQ, CON, DR, POLL, SHIP
Puget Sound, WA.......................... 2,636 Fd, P, Sq, Wq............... AQ, CON, DR, EP, POLL, SHIP
----------------------------------------------------------------------------------------------------------------
Coastal Marine Waters Within 60 fm Depth
----------------------------------------------------------------------------------------------------------------
CA/Mexico border to Monterey Bay, CA..... 6,534 Fd, P, Wq................... AQ, BOT, CON, DESAL, DR,
EP, LNG, POLL, PP
Monterey Bay, CA, to San Francisco Bay, 3,868 Fd, P, Wq................... BOT, CON, DESAL, DR, EP,
CA. LNG, POLL, PP
San Francisco Bay, CA, to Humboldt Bay, 5,385 Fd, P, Wq................... BOT, DR, EP, LNG, POLL, PP
CA.
Humboldt Bay, CA, to Coos Bay, OR........ 4,865 Fd, P, Wq................... BOT, DR, EP, LNG, POLL, PP
Coos Bay, OR, to Winchester Bay, OR...... 463 Fd, P, Wq................... BOT, DR, EP, LNG
Winchester Bay, OR, to Columbia R. 6,789 Fd, P, Wq................... BOT, DR, EP, LNG, POLL
estuary.
Columbia R. estuary to Willapa Bay, WA... 1,167 Fd, P, Wq................... BOT, DR, EP, LNG
Willapa Bay, WA, to Grays Harbor, WA..... 1,087 Fd, P, Wq................... BOT, DR, EP, LNG
Grays Harbor, WA, to WA/Canada border.... 4,924 Fd, P, Wq................... BOT, DR, EP, LNG, POLL
Strait of Juan de Fuca, WA............... 1,352 Fd, P, Wq................... BOT, DR, EP, LNG, POLL
Canada/AK border to Yakutat Bay, AK...... 53,577 Fd, P, Wq................... DR, EP, LNG, POLL, SHIP
Coastal Alaskan waters northwest of 974,505 Fd, P, Wq................... BOT, DR, EP, LNG, POLL,
Yakutat Bay, AK, including the Bering SHIP
Sea to the Bering Strait.
----------------------------------------------------------------------------------------------------------------
Unoccupied Areas
Section 3(5)(A)(ii) of the ESA authorizes the designation of
``specific areas outside the geographical area occupied at the time
[the species] is listed'' if these areas are essential for the
conservation of the species. Regulations at 50 CFR 424.12(e) emphasize
that the agency ``shall designate as critical habitat areas outside the
geographical area presently occupied by a species only when a
designation limited to its present range would be inadequate to ensure
the conservation of the species.'' The CHRT considered that a critical
habitat designation limited to presently occupied areas may not be
sufficient for conservation, because such a designation would not
address one of the major threats to the population identified by the
Status Review Team--
[[Page 52330]]
the concentration of spawning into one spawning river (i.e., the
Sacramento River), and, as a consequence, the risk of extirpation due
to a catastrophic event.
In the proposed rule, we described seven unoccupied areas
identified by the CHRT in the Central Valley, California that may
provide additional spawning habitat for the Southern DPS of green
sturgeon. These seven areas include areas behind dams that are
currently inaccessible to green sturgeon and areas below dams that are
not currently occupied by green sturgeon. The areas include: (1)
Reaches upstream of Oroville Dam on the Feather River; (2) reaches
upstream of Daguerre Dam on the Yuba River; (3) areas on the Pit River
upstream of Keswick and Shasta dams; (4) areas on the McCloud River
upstream of Keswick and Shasta dams; (5) areas on the upper Sacramento
River upstream of Keswick and Shasta dams; (6) reaches on the American
River; and (7) reaches on the San Joaquin River. We did not propose to
designate any of these unoccupied areas, however, because we lacked
sufficient data to determine whether any of these areas actually are
essential for conservation of the Southern DPS. Instead, we solicited
additional information from the public to inform the CHRT's evaluation
of these areas, particularly regarding: (1) The historical use of the
currently unoccupied areas by green sturgeon; and (2) the likelihood
that habitat conditions within these unoccupied areas will be restored
to levels that would support green sturgeon presence and spawning
(e.g., restoration of fish passage and sufficient water flows and water
temperatures).
As described above in the Responses to Comments section, several
comments were received supporting or opposing the designation of
unoccupied areas, but no substantive information was provided to
support designation of these areas. The CHRT maintained its
determination that these seven unoccupied areas may be essential, but
there is insufficient data at this time to determine whether any of
these areas actually are essential to the conservation of the Southern
DPS. This final rule does not designate any unoccupied areas as
critical habitat for the Southern DPS. NMFS encourages additional study
of green sturgeon use of these areas and actions that would protect,
conserve, and/or enhance habitat conditions for the Southern DPS (e.g.,
habitat restoration, removal of dams, and establishment of fish
passage) within these areas. Additional information would inform our
consideration of these areas for future revisions to the critical
habitat designation as well as future recovery planning for the
Southern DPS.
Military Lands
Under the Sikes Act of 1997 (Sikes Act) (16 U.S.C. 670a), ``each
military installation that includes land and water suitable for the
conservation and management of natural resources'' is required to
develop and implement an integrated natural resources management plan
(INRMP). An INRMP integrates implementation of the military mission of
the installation with stewardship of the natural resources found there.
Each INRMP includes: An assessment of the ecological needs on the
military installation, including the need to provide for the
conservation of listed species; a statement of goals and priorities; a
detailed description of management actions to be implemented to provide
for these ecological needs; and a monitoring and adaptive management
plan. Each INRMP must, to the extent appropriate and applicable,
provide for fish and wildlife management, fish and wildlife habitat
enhancement or modification, wetland protection, enhancement, and
restoration where necessary to support fish and wildlife and
enforcement of applicable natural resource laws.
The ESA was amended by the National Defense Authorization Act for
Fiscal Year 2004 (Pub. L. 108-136) to address the designation of
military lands as critical habitat. ESA section 4(a)(3)(B)(i) states:
``The Secretary shall not designate as critical habitat any lands or
other geographical areas owned or controlled by the Department of
Defense, or designated for its use, that are subject to an integrated
natural resources management plan prepared under section 101 of the
Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that
such plan provides a benefit to the species for which critical habitat
is proposed for designation.''
During the development of the proposed rule, we contacted the DOD
and requested information on all INRMPs for DOD facilities that overlap
with the specific areas considered for designation as critical habitat
and that might provide benefits to green sturgeon. The INRMPs for one
facility in California (Camp San Luis Obispo) and for nine facilities
in Puget Sound, WA, were provided to us. Of these, the following six
facilities with INRMPs were determined to overlap with the specific
areas under consideration for critical habitat designation (all located
in Puget Sound, WA): (1) Bremerton Naval Hospital; (2) Naval Air
Station, Everett; (3) Naval Magazine Indian Island; (4) Naval Fuel
Depot, Manchester; (5) Naval Undersea Warfare Center, Keyport; and (6)
Naval Air Station, Whidbey Island. We reviewed the INRMPs for measures
that would benefit green sturgeon. The INRMPs for four of the
facilities (Bremerton Naval Hospital, NAS Everett, Naval Fuel Depot
(Manchester), and Naval Magazine (Indian Island)) contain measures for
listed salmon and bull trout that provide benefits for green sturgeon.
The INRMPs for the two remaining facilities (NAS Whidbey Island and
NUWC Keyport) do not contain specific requirements for listed salmon or
bull trout, but also include measures that benefit fish species,
including green sturgeon. Examples of the types of benefits include
measures to control erosion, protect riparian zones and wetlands,
minimize stormwater and construction impacts, and reduce contaminants.
Based on these benefits provided for green sturgeon under the INRMPs,
we determined that the areas within these six DOD facilities in Puget
Sound, WA, were not eligible for designation as critical habitat.
During the public comment period, the DOD provided the INRMPs for
two additional facilities that may overlap with the areas considered
for designation as critical habitat: (1) Mare Island U.S. Army Reserve
Center in Mare Strait, San Pablo Bay, CA; and (2) Military Ocean
Terminal Concord (MOTCO), located in Suisun Bay, CA. Upon review of the
INRMPs for each facility and correspondence with DOD contacts, we
determined that: (1) The INRMP for the Mare Island U.S. Army Reserve
Center did not provide adequate protection for the Southern DPS of
green sturgeon; and (2) the MOTCO facilities do not overlap with the
specific area considered for designation as critical habitat in Suisun
Bay. Thus, neither facility was considered ineligible for designation
under section 4(a)(3)(B)(i) of the ESA (however, see ``Exclusions based
on impacts on national security'' below).
Application of ESA Section 4(b)(2)
Section 4(b)(2) of the ESA requires the Secretary to consider the
economic, national security, and any other relevant impacts of
designating any particular area as critical habitat. Any particular
area may be excluded from critical habitat if the Secretary determines
that the benefits of excluding the area outweigh the benefits of
designating the area. The Secretary may not exclude a particular area
from designation if exclusion will result in the extinction of the
species. Because the authority to exclude is discretionary, exclusion
is
[[Page 52331]]
not required for any areas. In this final designation, the Secretary
has applied his statutory discretion to exclude 14 occupied specific
areas, 5 DOD areas, and Indian lands from the critical habitat
designation where the benefits of exclusion outweigh the benefits of
designation.
The first step in conducting the ESA section 4(b)(2) analysis is to
identify the ``particular areas'' to be analyzed. Where we considered
economic impacts and weighed the economic benefits of exclusion against
the conservation benefits of designation, we used the same
biologically-based ``specific areas'' we identified in the previous
sections pursuant to section 3(5)(A) of the ESA (e.g., the upper
Sacramento River, the lower Sacramento River, the Delta, etc.).
Delineating the ``particular areas'' as the same units as the
``specific areas'' allowed us to most effectively consider the
conservation value of the different areas when balancing conservation
benefits of designation against economic benefits of exclusion.
Delineating particular areas based on impacts on national security or
other relevant impacts (e.g., impacts on Indian lands) was based on
land ownership or control (e.g., land controlled by the DOD within
which national security impacts may exist, or Indian lands). No other
relevant impacts were identified during the public comment period.
The next step in the ESA section 4(b)(2) analysis involves
identification of the impacts of designation (i.e., the benefits of
designation and the benefits of exclusion). We then weigh the benefits
of designation against the benefits of exclusion to identify areas
where the benefits of exclusion outweigh the benefits of designation.
These steps and the resulting list of areas excluded from designation
are described in detail in the sections below.
Impacts of Designation
The primary impact of a critical habitat designation stems from the
requirement under section 7(a)(2) of the ESA that Federal agencies
insure their actions are not likely to result in the destruction or
adverse modification of critical habitat. Determining this impact is
complicated by the fact that section 7(a)(2) contains the overlapping
requirement that Federal agencies must also ensure their actions are
not likely to jeopardize the species' continued existence. One
incremental impact of designation is the extent to which Federal
agencies modify their actions to insure their actions are not likely to
adversely modify the critical habitat of the species, beyond any
modifications they would make because of the listing and the jeopardy
requirement. When a modification would be required due to impacts to
both the species and critical habitat, the impact of the designation
may be co-extensive with the ESA listing of the species. Additional
impacts of designation include State and local protections that may be
triggered as a result of the designation and the benefits from
educating the public about the importance of each area for species
conservation. The benefits of designation were evaluated by considering
the conservation value of each occupied specific area to the Southern
DPS. In the ``Benefits of Designation'' section below, we discuss how
the conservation values of the specific areas were assessed.
In determining the impacts of designation, we focused on the
incremental change in Federal agency actions as a result of the
critical habitat designation and the adverse modification prohibition,
beyond the changes predicted to occur as a result of listing and the
jeopardy provision. In recent critical habitat designations for salmon
and steelhead and for Southern Resident killer whales, the ``co-
extensive'' impact of designation was considered in accordance with a
Tenth Circuit Court decision (New Mexico Cattle Growers Association v.
U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001)) (NMCA).
The ``co-extensive'' impact of designation considers the predicted
change in the Federal agency action resulting from the critical habitat
designation and the adverse modification prohibition (whereby the
action's effect on the PCEs and the value of the habitat is analyzed),
even if the same change would result from application of the listing
and the jeopardy provision (whereby the action's effect on the species
itself and individual members of the species is analyzed). Shortly
after the NMCA decision, however, the Court of Appeals for the Fifth
Circuit (Sierra Club v. U.S. Fish and Wildlife Service, 243 F.3d 434
(5th Cir. 2001) (Sierra Club) and the Court of Appeals for the Ninth
Circuit (Gifford Pinchot Task Force v. FWS, 378 F.3d 1059 (9th Cir.
2004)) (Gifford Pinchot) invalidated our regulatory definition of
``adverse modification'' of critical habitat. Following that decision,
a District Court in Washington, DC issued a decision involving the
USFWS's critical habitat designation for the piping plover (Cape
Hatteras Access Preservation Alliance v. Norton, 344 F. Supp. 2d 1080
(D.D.C. 2004)) (Cape Hatteras). In that decision, the Court reasoned
that the impact of a regulation should be based on a comparison of the
world with and without the action, and that the effects of listing and
the jeopardy provision should not be considered as part of the impacts
of a designation in the ESA 4(b)(2) analysis for a critical habitat
designation.
Consistent with the Cape Hatteras decision, we estimated and
analyzed the incremental impacts of designation, beyond the impacts
that would result from the listing and jeopardy provision.
Uncertainties exist with regard to future management actions associated
with green sturgeon critical habitat, because of the short consultation
history for green sturgeon and overlap with protections provided under
the listing. Due to these uncertainties, it was difficult to exclude
potential impacts that may already occur under the baseline (i.e.,
protections already afforded green sturgeon under its listing or under
other Federal, State, and local regulations, such as protections for
other listed species). Thus, the analysis included some impacts that
would have occurred under the baseline regardless of the critical
habitat rule. As such, the impacts are more correctly characterized as
green sturgeon conservation impacts as opposed to exclusively
incremental impacts of the critical habitat designation. That is, the
impacts analyzed are those associated with the conservation of green
sturgeon critical habitat, some of which may overlap with impacts
resulting from the baseline protections. Our methods for estimating the
impacts of designation for economic impacts, impacts on national
security, and impacts on Indian lands are summarized in the sections
below titled ``Determining the Benefits of Excluding Particular
Areas.''
Because section 4(b)(2) requires a balancing of competing
considerations, we must uniformly consider impacts and benefits. We
recognize that excluding an area from designation will not likely avoid
all of the impacts because the jeopardy provision under section 7 still
applies. Similarly, much of the section 7 benefit would still apply as
well.
A final economic analysis report (Indecon 2009) describes in more
detail the types of activities that may be affected by the designation,
the potential range of changes we might seek in those actions, and the
estimated economic impacts that might result from such changes. A final
biological report (NMFS 2009a) describes in detail the CHRT's
evaluation of the conservation value of each specific area and reports
the final conservation value ratings. The final ESA section 4(b)(2)
report (NMFS 2009c) describes the analysis of all
[[Page 52332]]
impacts and the weighing of the benefits of designation against the
benefits of exclusion for each area. All of these reports are available
on the NMFS Southwest Region Web site at http://swr.nmfs.noaa.gov/, on
the Federal E-Rulemaking Web site at http://www.regulations.gov, or
upon request (see ADDRESSES).
Benefits of Designation
The primary benefit of designation is the protection afforded under
section 7 of the ESA, requiring all Federal agencies to insure their
actions are not likely to destroy or adversely modify designated
critical habitat. This is in addition to the requirement that all
Federal agencies ensure their actions are not likely to jeopardize the
continued existence of the species. In addition, the designation may
provide education and outreach benefits by informing the public about
areas and features important to species conservation. By delineating
areas of high conservation value, the designation may help focus and
contribute to conservation efforts for green sturgeon and their
habitats.
These benefits are not directly comparable to the costs of
designation for purposes of conducting the ESA section 4(b)(2) analysis
described below. Ideally, the benefits should be monetized. With
sufficient information, it may be possible to monetize the benefits of
a critical habitat designation by first quantifying the benefits
expected from an ESA section 7 consultation and translating that into
dollars. We are not aware, however, of any available data that would
support such an analysis for green sturgeon (e.g., estimates of the
monetary value associated with conserving the PCEs within areas
designated as critical habitat, or with education and outreach
benefits). As an alternative approach, we used the CHRT's conservation
value ratings to represent the qualitative conservation benefits of
designation for each of the particular areas identified as critical
habitat for the Southern DPS (see the section titled Methods for
Assessment of Specific Areas). These conservation value ratings
represent the estimated incremental benefit of designating critical
habitat for the species. In evaluating the conservation value of each
specific area, the CHRT focused on the habitat features and functions
provided by each area and the importance of protecting the habitat for
the overall conservation of the species. The final biological report
(NMFS 2009a) sets forth detailed information on the qualitative
conservation benefits of the specific areas proposed for designation,
which is summarized briefly in the following paragraphs.
Methods for Assessment of Specific Areas
After identifying the PCEs, the geographical area occupied, and the
specific areas, the CHRT scored and rated the relative conservation
value of each occupied specific area. The conservation value ratings
provided an assessment of the relative importance of each specific area
to the conservation of the Southern DPS. Areas rated as ``High'' were
deemed to have a high likelihood of promoting the conservation of the
Southern DPS. Areas rated as ``Medium'' or ``Low'' were deemed to have
a moderate or low likelihood of promoting the conservation of the
Southern DPS, respectively. The CHRT considered several factors in
assigning the conservation value ratings, including the PCEs present,
the condition of the PCEs, the life stages and habitat functions
supported, and the historical, present, and potential future use of the
area by green sturgeon. These factors were scored by the CHRT and
summed to generate a total score for each specific area, which was
considered in the CHRT's evaluation and assignment of the final
conservation value ratings.
The CHRT also considered the importance of connectivity among
habitats in order for green sturgeon to access upstream spawning sites
in the Sacramento River and oversummering and overwintering habitats in
coastal bays and estuaries. In addition to providing high-value
habitat, the San Francisco, San Pablo, and Suisun bays and the Delta
contain high-value connectivity corridors for green sturgeon migration
to and from upstream spawning grounds in the Sacramento River. Specific
areas in coastal marine waters may provide low to medium value habitat
for green sturgeon based on the PCEs present, but contain high-value
connectivity corridors for green sturgeon migrating out of the San
Francisco Bay system to bays and estuaries in California, Oregon,
Washington, and Canada. The CHRT recognized that even within an area of
Low to Medium conservation value, the presence of a connectivity
corridor that provides passage to high value areas would warrant
increasing the overall conservation value of the area to a High. To
account for this, a separate conservation value rating was assigned to
areas containing a connectivity corridor, equal to the rating of the
highest-rated area for which it served as a connectivity corridor.
Members of the CHRT were then asked to re-examine the conservation
value ratings for the specific areas where the presence of Southern DPS
green sturgeon is likely (based on the presence of Northern DPS fish or
green sturgeon of unknown origin), but not confirmed. These areas
include the coastal marine waters within 60 fm depth from the
California/Mexico border to Monterey Bay, CA, and from Yakutat Bay, AK,
to the Bering Strait (including the Bering Sea), as well as the
following coastal bays and estuaries: Elkhorn Slough, Tomales Bay, Noyo
Harbor, the Eel River estuary, and the Klamath/Trinity River estuary in
California; and the Rogue River estuary, Siuslaw River estuary, Alsea
River estuary, Tillamook Bay, and Nehalem Bay in Oregon. Although these
areas are considered occupied for the reasons provided above, the CHRT
recognized that a lack of documented evidence for Southern DPS presence
(perhaps because of the lack of monitoring or sampling effort within
these areas) is indicative of a high degree of uncertainty as to the
extent to which Southern DPS fish use these areas. In most of these
areas, there are also few observations of green sturgeon both
historically and presently. The CHRT scored all of these areas, except
for Tomales Bay, Tillamook Bay, and Nehalem Bay, much lower than other
areas, reflecting the CHRT's assessment that these areas contribute
relatively little to the conservation of the species. For the bays and
estuaries, this was based on the limited area and depth to support
green sturgeon migration and feeding, as well as the low use by green
sturgeon. Tomales Bay was given a higher score and rated as ``Medium,''
because it is a large, deep embayment providing good habitat for
feeding by green sturgeon and is likely the first major bay to be
encountered by subadults making their first migration into marine
waters. Tillamook Bay and Nehalem Bay were both rated as ``Medium''
based on relatively high green sturgeon catch data for these areas
(ODFW 2009a, b) and information indicating good habitat conditions for
green sturgeon. Green sturgeon are more commonly observed in the Eel
River estuary, Klamath/Trinity River estuary, and Rogue River estuary,
but are presumed to primarily belong to the Northern DPS. Again, there
is great uncertainty as to the extent of use of these estuaries by
Southern DPS fish. The coastal marine waters south of Monterey Bay, CA,
and northwest of Yakutat Bay, AK, are outside of the connectivity
corridor identified by the
[[Page 52333]]
CHRT and also lack confirmed Southern DPS presence. Although the CHRT
did not include the area in southeast Alaska up to Yakutat Bay, AK, as
part of the primary migratory corridor, this area was rated as
``Medium'' because it represents the northern extent of the area
containing important overwintering grounds for Southern DPS green
sturgeon (Lindley et al. 2008). Based on this information, the CHRT
agreed that the conservation value ratings should be reduced by one
rating for these specific areas where the presence of the Southern DPS
is likely, but not confirmed. This necessitated the creation of a
fourth conservation value rating (``Ultra-low''). Those specific areas
that initially received a ``Low'' rating were assigned a final
conservation value rating of ``Ultra-low,''and those that initially
received a ``Medium'' rating were assigned a final conservation value
rating of ``Low.'' None of the specific areas where the presence of
Southern DPS fish was likely but not confirmed had received a rating of
``High.'' Yaquina Bay, OR, was one of the areas rated as ``Ultra-Low''
in the proposed rule, but additional information was provided
confirming the presence of Southern DPS green sturgeon in Yaquina Bay
(pers. comm. with Dan Erickson, ODFW, September 3, 2008), and the
conservation value rating for this area remained a ``Low''.
The final conservation ratings and the justifications for each
specific area are summarized in the final biological report (NMFS
2009a; available via our Web site at http://swr.nmfs.noaa.gov, via the
Federal eRulemaking Web site at http://www.regulations.gov, or upon
request--see ADDRESSES). The CHRT recognized that even within a rating
category, variation exists. For example, freshwater riverine areas
rated as ``High'' may be of greater conservation value to the species
than coastal marine areas with the same rating. This variation was
captured in the comments provided by the CHRT members for each specific
area. The final biological report describes in detail the evaluation
process used by the CHRT to assess the specific areas, as well as the
biological information supporting the CHRT's assessment.
Determining the Benefits of Excluding Particular Areas: Economic
Impacts
To determine the benefits of excluding particular areas from
designation, we first considered the Federal activities that may be
subject to an ESA section 7 consultation and the range of potential
changes that may be required for each of these activities under the
adverse modification provision, regardless of whether those changes may
also be required under the jeopardy provision. These consultation and
project modification costs represent the economic benefits of excluding
each particular area (that is, the economic costs that would be avoided
if an area were excluded from the designation).
The CHRT identified and examined the types of Federal activities
that occur within each of the specific areas and that may affect
Southern DPS green sturgeon and the critical habitat (also see the
section on ``Special Management Considerations or Protection'').
Because the Southern DPS was recently listed under the ESA in 2006, we
lack an extensive consultation history. Thus, the CHRT relied on NMFS'
experience in conducting ESA section 7 consultations and their best
professional judgment to identify the types of Federal activities that
might trigger a section 7 consultation. The best available information
was used to predict the number of these types of activities within the
areas considered for designation as critical habitat. However, we
recognize that some of these activities, in particular alternative
energy hydrokinetic projects, are relatively new and anticipated to
increase in number in the future. Additional information was received
regarding proposed LNG and alternative energy hydrokinetic projects
within the specific areas considered for designation as critical
habitat and was included in the final economic analysis report. In the
face of remaining uncertainties, however, a conservative approach was
taken in the economic analysis by assuming that all of the proposed
projects would be completed. Thus, the number of activities and their
estimated costs are likely overestimated, because we do not expect all
of the proposed projects to be completed.
Next, the range of modifications we might seek in these activities
to avoid destroying or adversely modifying critical habitat of the
Southern DPS was considered. Because of the limited consultation
history, we relied on information from consultations conducted for
salmon and steelhead, comments received during green sturgeon public
scoping workshops conducted for the development of protective
regulations, and information from green sturgeon and section 7
biologists to determine the types of activities and potential range of
changes. We recognize that differences exist between the biology of
Southern DPS green sturgeon and listed salmonids, but that there is
also overlap in the types of habitat they use, their life history
strategies and their behavior. As discussed in the final economic
analysis report (Indecon 2009), the occupied geographical range and the
specific areas considered for designation as critical habitat for the
Southern DPS largely overlaps with the distribution and designated
critical habitat of listed salmonids. Every consultation of the
approximately 49 completed formal consultations addressing impacts on
green sturgeon in California, Oregon, and Washington through May 2009
also address impacts to one or more listed salmon or steelhead species.
In several consultations, the recommended conservation measures to
address effects on green sturgeon and listed salmonids were the same or
similar. It is important to note, however, that differences do exist
between green sturgeon and salmonids that may require different
conservation measures. For example, juvenile green sturgeon occupy the
Delta and the San Francisco, San Pablo, and Suisun bays in California
throughout all months of the year, for as long as one to three years
before they disperse into marine waters. In contrast, the presence of
juvenile salmon or steelhead in the Delta and bays is limited to
certain months of the year. In addition, the feeding behavior and
spawning requirements of green sturgeon subadults and adults may differ
from that of listed salmonids. For example, subadult and adult green
sturgeon make extensive use of summer feeding habitats in coastal
estuaries in California, Oregon, and Washington. During their spawning
migrations, adult green sturgeon likely have different water flow,
temperature, and passage requirements compared to listed salmonids. We
recognized these differences, but, given the limited amount of direct
information regarding the types of modifications we might seek to avoid
adverse modification of Southern DPS critical habitat, we also
recognized that the information available for analog species (i.e.,
listed salmonids) was the best information available to guide our
decision-making. As demonstrated by our recent consultation history,
the conservation measures implemented for green sturgeon in the early
stages of its listing history are likely to be the same or similar to
those implemented for listed salmonids. Additional information on
differences in the habitat needs, life history strategies, and behavior
of these species may allow us to refine our analysis.
A number of uncertainties exist in this stage of the analysis.
First, we recognize there is uncertainty regarding the potential
effects of activities on
[[Page 52334]]
green sturgeon and the potential conservation measures that may be
required, particularly for relatively new activities like LNG projects
and alternative energy hydrokinetic projects. Second, as is the case
for all of the categories of activities identified, the project-
specific nature of ESA section 7 consultations creates another level of
uncertainty that likely results in over- or under-estimation of the
economic impacts. Finally, we attempted to focus on the incremental
benefits of the critical habitat designation beyond the benefits
already afforded to the Southern DPS under its listing and under other
Federal, State, and local regulations. To do this, we tried to provide
information on whether each impact is more closely associated with
adverse modification or with jeopardy. It is difficult, however, to
isolate conservation efforts resulting solely from critical habitat.
Thus, as described above, the estimated economic impacts are more
correctly characterized as green sturgeon conservation impacts rather
than exclusively incremental impacts of the designation. In other
words, the impacts analyzed are those associated with the conservation
of green sturgeon critical habitat, some of which may overlap with
impacts resulting from the baseline protections.
We were able to monetize estimates of the economic impacts
resulting from a critical habitat designation; however, because of the
limited consultation history for green sturgeon and uncertainty about
specific management actions likely to be required under a consultation,
there was a great degree of uncertainty in the cost estimates for some
specific areas. Several factors were considered in developing the
estimated economic impacts, including the level of economic activity
within each area, the level of baseline protection afforded to green
sturgeon by existing regulations for each economic activity within each
area, and the estimated economic impact (in dollars) associated with
each activity type. The baseline included the protections afforded to
green sturgeon by the listing and jeopardy provision, as well as
protections provided for salmon and steelhead and their critical
habitat including existing laws, regulations, and initiatives.
Estimates of the economic costs were based on project modifications
that might be required during consultation to avoid the destruction or
adverse modification of critical habitat (see final economic analysis
report for additional details). To focus on the incremental impacts of
the critical habitat designation, the economic cost estimates were
multiplied by a probability score (assigned for each specific area and
economic activity type), representing the probability that green
sturgeon critical habitat is a primary driver for the conservation
effort. The final economic analysis report (Indecon 2009) provides
detailed information on the economic impacts of designating particular
areas as critical habitat, as well as consultation costs anticipated as
a result of this proposed designation.
Exclusions Based on Economic Impacts
A final ESA section 4(b)(2) report (NMFS 2009c) describes in detail
our approach to weighing the benefit of designation against the
economic benefit of exclusion. The results of our analysis contained in
this report are summarized below.
The benefits associated with species conservation are not directly
comparable to the economic benefit that would result if an area were
excluded from designation. We had sufficient information to monetize
the economic benefits of excluding an area, but were not able to
monetize the conservation benefits of designating an area. Thus, for
each area we compared the qualitative final conservation value against
the monetary economic impact estimate to determine if the cost estimate
exceeded a threshold dollar amount. To make this comparison, we
selected dollar thresholds for each conservation value rating above
which the potential economic impact associated with a specific area
appeared to outweigh the potential conservation benefits of designating
that area. We determined these dollar thresholds by first examining the
range in economic impacts across all specific areas within a
conservation value rating category and then determining where the
breakpoint occurred between relatively low economic impacts and
relative high economic impacts. We then selected a dollar value within
the range of that breakpoint as the threshold at which the economic
impacts may outweigh the benefits of designation for the area.
Using this method, we developed and applied four decision rules to
identify areas eligible for exclusion: (1) All areas with a
conservation value rating of ``High'' were not eligible for exclusion,
because we determined that the estimated economic benefits of exclusion
for these areas would not outweigh the conservation benefits of
designation, based on the threatened status of the Southern DPS of
green sturgeon and the likelihood that exclusion of areas with a High
conservation value would significantly impede conservation of the
species; (2) areas with a conservation value rating of ``Medium'' were
potentially eligible for exclusion if the estimated economic impact
exceeded $100,000; (3) areas with a conservation value rating of
``Low'' were potentially eligible for exclusion if the estimated
economic impact exceeded $10,000; and (4) areas with a conservation
value rating of ``Ultra-low'' were potentially eligible for exclusion
if the estimated economic impact exceeded $0 (see final ESA section
4(b)(2) Report for additional details). These dollar thresholds do not
represent an objective judgment that Medium-value areas are worth no
more than $100,000, Low-value areas are worth no more than $10,000, or
Ultra-Low value areas are worth $0. The ESA emphasizes that the
decision to exclude is discretionary. Thus, the economic impact level
at which the economic benefits of exclusion outweigh the conservation
benefits of designation is a matter of discretion and depends on the
policy context. For critical habitat, the ESA provides NMFS the
discretion to consider exclusions where the benefits of exclusion
outweigh the benefits of designation, as long as exclusion does not
result in extinction of the species. In this policy context, we
selected dollar thresholds representing the levels at which the
economic impact associated with a specific area may outweigh the
conservation benefits of designating that area. These dollar thresholds
and decision rules provided a relatively simple process to identify, in
a limited amount of time, specific areas warranting consideration for
exclusion.
Based on this analysis, we identified 18 occupied areas as eligible
for exclusion, including Medium, Low, and Ultra-Low conservation value
areas. The Medium conservation value areas eligible for exclusion
included: the Yolo Bypass, lower Feather River, and lower Yuba River in
California; Coos Bay in Oregon; Puget Sound in Washington; and coastal
marine waters within 60 fm depth from the U.S.-Alaska/Canada border to
Yakutat Bay, AK. The Low conservation value areas eligible for
exclusion included: Tomales Bay in California; Tillamook Bay in Oregon;
and the lower Columbia River (from RKM 74 to the Bonneville Dam at RKM
146). The Ultra-Low conservation value areas eligible for exclusion
included: Elkhorn Slough, Noyo Harbor, Eel River estuary, and Klamath/
Trinity River estuary in California; the Rogue River estuary, Siuslaw
River estuary, and Alsea River estuary in Oregon; and coastal marine
waters within 60 fm depth from the CA-Mexico border to Monterey Bay,
CA, and northwest
[[Page 52335]]
Yakutat Bay, AK, to the Bering Strait (including the Bering Sea). All
of these areas were eligible for exclusion in the proposed rule, except
for the Yolo Bypass, lower Yuba River, and the lower Columbia River.
We then presented these 18 areas to the CHRT for their review. To
further characterize the conservation benefit of designation for each
area, we asked the CHRT to determine whether excluding any of the areas
eligible for exclusion would significantly impede conservation of the
Southern DPS. The CHRT considered this question in the context of all
of the areas eligible for exclusion, as well as the information they
had developed in determining the conservation value ratings. If the
CHRT determined that exclusion of an area would significantly impede
conservation of the Southern DPS, the conservation benefits of
designation were increased one level in the weighing process.
The CHRT determined, and we concur, for the reasons described by
the CHRT, that exclusion of the following 12 specific areas eligible
for exclusion would not significantly impede conservation or result in
extinction of the species: Elkhorn Slough, Tomales Bay, Noyo Harbor,
Eel River estuary, and Klamath/Trinity River estuary in California; the
Rogue River estuary, Siuslaw River estuary, Alsea River estuary, and
Tillamook Bay in Oregon; the lower Columbia River (from RKM 74 to the
Bonneville Dam); and coastal marine waters within 60 fm depth from the
U.S.-California/Mexico border to Monterey Bay, CA, and northwest of
Yakutat Bay, AK, to the Bering Strait (including the Bering Sea). The
CHRT based their determination on the fact that each of these 12
specific areas was assigned a Low or Ultra-low final conservation value
and Southern DPS green sturgeon have not been documented to use these
areas extensively. The CHRT recognized that the apparent low use by
Southern DPS green sturgeon of these bays and estuaries listed above
may be because: (1) Most are small systems compared to other bays and
estuaries that are used extensively and consequently received higher
conservation ratings; and (2) Southern DPS fish do not appear to use
Northern DPS spawning systems extensively. In addition, few green
sturgeon (of unknown DPS) have been observed in the coastal marine
waters within 60 fm depth from the U.S.-California/Mexico border to
Monterey Bay, CA, and northwest of Yakutat Bay, AK, to the Bering
Strait (including the Bering Sea). For these reasons, the CHRT
concluded that excluding the bays, estuaries, and coastal marine areas
mentioned above from the designation would not significantly impede
conservation of the Southern DPS nor result in extinction of the
species. Thus, these 12 areas are excluded from the critical habitat
designation for the Southern DPS. We recognize that the lack of
documented evidence for Southern DPS presence in these areas may be
because these areas are not adequately monitored for green sturgeon. We
encourage directed surveys to be conducted in these areas to gather
more information on green sturgeon presence and use. For example, the
lower Columbia River (from RKM 74 to Bonneville Dam) may have been a
historically important area for green sturgeon prior to the
hydrographical changes that have occurred in the river and has the
potential for being an important area in certain water years.
Monitoring of green sturgeon upstream of RKM 74 would provide valuable
information for future consideration of this area.
The CHRT re-evaluated the six areas of Medium conservation value
that were eligible for exclusion (Yolo Bypass, lower Yuba River, lower
Feather River, Coos Bay, Puget Sound, and coastal marine waters within
60 fm depth from the U.S.-Alaska/Canada border to Yakutat Bay, AK) to
determine whether excluding these areas would significantly impede
conservation of the Southern DPS.
The CHRT maintained their determination that exclusion of Puget
Sound would not significantly impede conservation of the Southern DPS
or result in extinction of the species. Observations of green sturgeon
in Puget Sound are much less common compared to the other estuaries in
Washington. Although two confirmed Southern DPS fish were detected
there in 2006, the extent to which Southern DPS green sturgeon use
Puget Sound remains uncertain. Puget Sound has a long history of
commercial and recreational fishing and fishery-independent monitoring
of other species that use habitats similar to those of green sturgeon,
but very few green sturgeon have been observed there. In addition,
Puget Sound does not appear to be part of the coastal migratory
corridor that Southern DPS fish use to reach overwintering grounds
north of Vancouver Island (pers. comm. with Steve Lindley, NMFS, and
Mary Moser, NMFS, February 24-25, 2008), thus corroborating the
assertion that Southern DPS do not use Puget Sound extensively. The
economic cost of designating this area was well above the $100,000
threshold because of the large number of activities affecting sediment
and water quality (i.e., dredging, in-water construction, and point and
non-point sources of pollution) that might require special management
if critical habitat were to be designated. Thus, this final rule
excludes Puget Sound from the critical habitat designation for the
Southern DPS, because the benefits of designation are outweighed by the
economic benefits of exclusion. The exclusion of this area will not
result in the extinction of the species.
The CHRT was unable to conclude that exclusion of the coastal
marine waters within 60 fm depth from the Alaska/Canada border to
Yakutat Bay, AK, would significantly impede conservation. The proposed
rule had sought public comments regarding: (1) The presence of green
sturgeon in coastal waters off southeast Alaska; (2) the spatial
distribution of the PCEs in southeast Alaska; (3) activities occurring
in the area that may affect the PCEs; (4) the types of changes that
might be proposed for these activities to avoid impacts to the PCEs;
and (5) estimated costs associated with making these changes. However,
few comments were received regarding this area. In the proposed rule,
some CHRT members noted that exclusion of this area from the
designation might impede conservation of the Southern DPS, because this
area is at the northern extent of the overwintering range and may
provide important overwintering habitat for the species. The CHRT cited
the detection of two tagged Southern DPS green sturgeon at the array in
Graves Harbor, AK, despite the short monitoring period for this array
(data are available only from 2005 to 2006) and the fact that the
system is not positioned or programmed specifically for detecting green
sturgeon. However, given that this is a relatively low number of
Southern DPS detections compared to other areas and the level of
uncertainty concerning activities occurring in southeast Alaska that
may affect critical habitat (i.e., proposed alternative energy projects
and commercial shipping activities, both of which are associated with a
high degree of uncertainty), the CHRT agreed that it is uncertain
whether exclusion of this area would significantly impede conservation
of the Southern DPS. Based on the CHRT's conclusion, we determined that
the economic benefits of exclusion outweigh the conservation benefits
of designation for this area. Thus, this area is excluded from the
critical habitat designation.
The CHRT unanimously agreed that exclusion of the lower Feather
River or lower Yuba River would significantly
[[Page 52336]]
impede conservation of the Southern DPS. The CHRT identified the lower
Feather River as an important area for the conservation of the Southern
DPS, because it has been consistently occupied by the species and most
likely contains spawning habitat for the Southern DPS, potentially
providing a spawning river for the Southern DPS in addition to the
Sacramento River. The CHRT also considered the lower Yuba River an
important area for green sturgeon that may contain spawning habitats.
The CHRT had assigned both the lower Feather River and the lower Yuba
River a Medium conservation value, but noted that future improvements
to habitat conditions (e.g., improved passage, restoration of water
flow) would raise the conservation value to a High. Thus, the CHRT
agreed that conservation of the species could not be achieved without
the inclusion of the lower Feather River and lower Yuba River in the
critical habitat designation, based on the importance of the lower
Feather River and lower Yuba River as potential spawning rivers for the
Southern DPS, their proximity to the Sacramento River, and the
potential increased value of these two areas given certain
characteristics of the habitat, the PCEs, and future habitat
improvements. Based on the CHRT's conclusion, we increased the final
conservation value for these two areas from Medium to High. In
addition, the CHRT noted uncertainties in the economic impact estimates
for these two areas. The economic cost estimates for these two areas
had increased substantially from the draft economic analysis (lower
Yuba River: from $53,000 to $600,000-$610,000; lower Feather River:
from $770,000 to $2 million), making the economic costs well above the
dollar threshold of $100,000. However, this increase is primarily
attributed to two revisions to the economic analysis. First, economic
costs associated with agricultural pesticide application increased
substantially. The draft economic analysis had estimated the costs for
applying a 60 ft buffer to agricultural pesticide application projects.
Based on public comments received, the buffer was revised to a 1,000 ft
buffer (consistent with recommendations in recent consultations for
listed salmonids), resulting in large increases in economic costs.
However, green sturgeon co-occur with listed salmonids species in all
waterways where this 1,000 ft buffer would be applied. Thus, the 1,000
ft buffer would be applied for listed salmonids regardless of whether
green sturgeon critical habitat exists in the area or not. Based on
this reasoning, the incremental economic impacts estimated for
agricultural pesticide application due to green sturgeon critical
habitat is more likely closer to zero, rather than the $1.5 million
estimated for the lower Feather River and the $228,000 estimated for
the lower Yuba River. Second, for the lower Yuba River, the economic
cost estimate for installing fish passage facilities at Daguerre Point
Dam increased from $21,000 to $351,000. This was based on a public
comment estimating that current passage plans at the dam for salmonids
will cost $17.5 million to implement. The revised economic cost
estimate of $351,000 for providing green sturgeon passage at Daguerre
Point Dam was calculated by attributing 20 percent of the expected
costs for salmonid passage plans to green sturgeon critical habitat
(annualized over 20 years). It is uncertain whether this may be an
overestimate or underestimate of costs. Thus, based on the importance
of the lower Feather River and lower Yuba River to the conservation of
the Southern DPS and the uncertainty with regard to the estimated
economic costs, we determined that the benefits of excluding the lower
Feather River and lower Yuba River do not outweigh the benefits of
designating these particular areas and they should not be excluded
based on economic impacts. The lower Feather River and lower Yuba River
are included in the final designation.
The CHRT also agreed that exclusion of the Yolo Bypass would
significantly impede conservation of the Southern DPS. The Yolo Bypass
was assigned a Medium conservation value because it provides a
migratory corridor to and from spawning habitats in the Sacramento
River during high flow years. The area may be particularly important
for juvenile Southern DPS green sturgeon that can use this shallow,
productive, and protected off-channel area for rearing and feeding. The
Yolo Bypass currently contains good habitat for supporting the Southern
DPS, and the potential for the quality of this habitat to improve is
likely if efforts to improve passage, reduce stranding risks, and
improve water quality are made. Based on this information, the CHRT
concluded that exclusion of this area would significantly impede
conservation of the Southern DPS, and the final conservation value for
the Yolo Bypass was increased from Medium to High. In addition, the
CHRT noted that the economic impact estimate may be greatly
overestimated for this area. The estimated economic impacts for the
Yolo Bypass increased from the proposed rule to final rule stage, due
to a large increase in the costs to address agricultural pesticide
application. Increasing the buffer zone from 60 ft to 1000 ft resulted
in an increase in the economic impacts for this area from $29,000 to
$449,000, making this area eligible for exclusion. However, similar to
the lower Yuba River and lower Feather River, green sturgeon co-occur
with listed salmonids in this area and the 1000 ft buffer zone for
agricultural pesticide application would likely be applied with or
without the existence of green sturgeon critical habitat in the area.
Thus, the incremental impact of green sturgeon critical habitat is more
likely to be closer to zero rather than $449,000. Based on the
importance of the Yolo Bypass to the Southern DPS and the likelihood
that the economic impacts are overestimated, we determined that the
benefits of excluding the Yolo Bypass particular area do not outweigh
the benefits of designating the area and it therefore should not be
excluded. Thus, the Yolo Bypass is included in the final critical
habitat designation.
Finally, the CHRT reconfirmed its determination that exclusion of
Coos Bay would significantly impede the conservation of the species.
The CHRT identified Coos Bay as an important area for the Southern DPS
because it is the largest and deepest estuary along the Oregon coast
presently occupied by green sturgeon (including confirmed Southern DPS
green sturgeon), has a large mixing zone, provides a protected area for
green sturgeon aggregation and feeding, and is an important ``stepping-
stone'' estuary between San Francisco Bay and the lower Columbia River
estuary. Based on the CHRT's conclusion, the final conservation value
for Coos Bay was increased from Medium to High. In addition, there is a
great degree of uncertainty regarding the economic costs associated
with a designation in this area. We had identified Coos Bay as
potentially eligible for exclusion because the estimated economic
impacts (ranging from $73,000 to $16 million) exceeded the threshold
value over which an area was considered eligible for exclusion
($100,000 for areas with a Medium conservation value; this decision
rule was applied prior to increasing the conservation value from Medium
to High). The wide range in estimated costs was primarily due to the
uncertainty regarding economic costs associated with a proposed LNG
project within Coos Bay. This uncertainty was driven largely by the
limited understanding of how LNG projects
[[Page 52337]]
would affect the PCEs and uncertainty regarding how LNG activities
might be altered to avoid adverse modification of green sturgeon
critical habitat. The low cost estimate of $73,000 assumes that this
rule would not require any additional measures for LNG projects or that
any additional measures would result in minimal costs (i.e., the
economic costs to LNG projects is $0). The high cost estimate of $16
million is based on the potential requirement to relocate the LNG
project due to green sturgeon critical habitat in the area. However,
NMFS has never required relocation as a result of an ESA section 7
consultation on an LNG facility, and it is unlikely that proposed
modifications to the project in Coos Bay would include relocation.
Because we consider both the low cost estimate and the high cost
estimate to be highly unlikely, as stated above, we believe the
economic impact to LNG projects would likely be greater than $0, but
much lower than $16 million, but do not have sufficient information at
this time to estimate those costs. Therefore, we concluded that the
economic impacts associated with Coos Bay are likely to be greater than
$73,000 but much lower than $16 million. Based on the importance of
Coos Bay to the conservation of the Southern DPS and the uncertainty
regarding the estimated economic impacts, we determine that the
benefits of excluding Coos Bay do not outweigh the benefits of
designating this particular area and it therefore should not be
excluded. Thus, Coos Bay is included in the final critical habitat
designation.
In summary, this final rule will exclude the following 14 specific
areas from the critical habitat designation for Southern DPS green
sturgeon: Elkhorn Slough, Tomales Bay, Noyo Harbor, the Eel River
estuary, and the Klamath/Trinity River estuary in California; the Rogue
River estuary, Siuslaw River estuary, Alsea River estuary, and
Tillamook Bay in Oregon; the lower Columbia River (from RKM 74 to
Bonneville Dam); Puget Sound in Washington; and coastal marine waters
within 60 fm depth from the U.S.-California/Mexico border to Monterey
Bay, CA, from the U.S.-Alaska/Canada border to Yakutat Bay, AK, and
from Yakutat Bay northwest to the Bering Strait (including the Bering
Sea). Based on the best scientific and commercial data available, we
have determined that the exclusion of these 14 areas from the
designation would not result in the extinction of the species.
Determining the Benefits of Excluding Particular Areas: Impacts on
National Security
At the time of the proposed rule, we had not yet received any
information from the DOD regarding impacts on national security within
the specific areas considered for designation as critical habitat.
During the public comment period and the development of the final rule,
the DOD identified several areas that may warrant exclusion based on
national security impacts and corresponded with us to evaluate these
areas (Table 2). As in the analysis of economic impacts, we weighed the
benefits of exclusion (i.e., the impacts on national security that
would be avoided) with the conservation benefits of designation.
The primary benefit of exclusion is that the DOD agency would not
be required to consult with NMFS under section 7 of the ESA regarding
DOD actions that may affect critical habitat, and thus potential delays
or costs associated with conservation measures for critical habitat
would be avoided. To assess the benefits of exclusion, we evaluated the
intensity of use of the particular area by the DOD, the likelihood that
DOD actions in the particular area would affect critical habitat and
trigger an ESA section 7 consultation, and the potential conservation
measures that may be required and that may result in delays or costs
that affect national security. We also considered the level of
protection provided to critical habitat by existing DOD safeguards,
such as regulations to control public access and use of the area and
other means by which the DOD may influence other Federal actions in the
particular area.
The primary benefit of designation is the protection afforded green
sturgeon under the ESA section 7 critical habitat provision. To
evaluate the benefit of designation for each particular area, we
considered the final conservation value of the specific area within
which the particular area was contained, the best available information
on green sturgeon presence in and use of the particular area, the size
of the particular area compared to the specific area and the total
critical habitat area, and the likelihood that other Federal actions
occur in the area that may affect critical habitat and trigger a
consultation.
Unlike in the economic analysis, neither the benefits of exclusion
for impacts on national security nor the benefits of designation could
be quantified. Instead, we used the best available information to
evaluate and assign each of the factors considered under the benefits
of exclusion and the benefits of designation with a High or Low rating
and compared these qualitative ratings. A particular area was eligible
for exclusion if the benefits of exclusion outweighed the benefits of
designation.
Table 2--Summary of Assessment of Particular Areas Requested for Exclusion by the DOD Based on Impacts on
National Security. Listed for Each Particular Area Is: The Specific Area That the Particular Area Occurs in and
Its Conservation Value; The Size of the Specific Area; The Size of the Particular Area; and Whether Exclusion
Based on National Security Impacts is Warranted
----------------------------------------------------------------------------------------------------------------
Specific DOD site
DOD sites & agency Overlapping specific area & area size overlap Exclude?
conservation value (km \2\) (km \2\)
----------------------------------------------------------------------------------------------------------------
(1) Mare Island US Army Reserve San Pablo Bay, CA (High)........ 331.0 0.05 Yes.
(Army).
(2) Camp Rilea (Army).............. Coastal marine area from 6,796.9 20.3 No.
Winchester Bay, OR, to Columbia
R, estuary (High).
(3) Admiralty Inlet Naval Strait of Juan de Fuca, WA 1,348.6 134.7 Yes.
Restricted Area (Navy). (High).
(4) Strait of Juan de Fuca & Strait of Juan de Fuca, WA 1,348.6 4.9 Yes.
Whidbey Island Naval Restricted (High).
Area (Navy).
(5) Strait of Juan de Fuca Naval Strait of Juan de Fuca, WA 1,348.6 16.8 Yes.
Air-to-Surface Weapon Range (High).
Restricted Area (Navy).
(6) Navy 3 Operating Area (Navy)... Strait of Juan de Fuca, WA 1,348.6 162.5 Yes.
(High).
(7) Surf zone portion of Quinault Coastal marine area from Grays 4,923.5 N/A No.
Underwater Tracking Range (QUTR). Harbor, WA, to U.S.-WA/Canada
border (High).
----------------------------------------------------------------------------------------------------------------
[[Page 52338]]
The DOD also identified the following three particular areas for
exclusion based on impacts on national security, but these areas were
not included in the ESA section 4(b)(2) analysis. First, the Army
requested the exclusion of the Military Ocean Terminal Concord (MOTCO)
facilities in Suisun Bay, CA. The MOTCO facilities are covered by an
existing INRMP. This area was not analyzed because it was determined
that the MOTCO facilities do not overlap with the specific area
considered for designation as critical habitat in Suisun Bay. Second,
the Navy requested the exclusion of the Navy 7/Admiralty Bay Naval
Restricted Area 6701 in Puget Sound, WA. This area was not analyzed
because it overlaps with the specific area in Puget Sound, WA, which
will be excluded in the final designation. Finally, the Navy requested
the exclusion of one of the proposed surf zone sites of the Pacific
Northwest Operating Area Quinault Underwater Tracking Range (in the
coastal marine area from Grays Harbor, WA, to the U.S.-WA/Canada
border). This area was not analyzed, however, because the Navy has not
yet made a final selection on the surf zone site location and the
particular area has yet to be defined.
Exclusions Based on Impacts on National Security
The final ESA section 4(b)(2) report (NMFS 2009c) provides a
detailed description of our analysis of the impacts on national
security and our approach to weighing the benefits of designation
against the benefits of exclusion. The results of our analysis are
summarized in Table 2 and in the following paragraphs.
(1) Mare Island U.S. Army Reserve (USAR) Center in San Pablo Bay,
CA: The area of overlap between the USAR facilities and the specific
area in San Pablo Bay consists of the area between two piers and is
very small (0.02 mi\2\ or 0.02% of the San Pablo Bay specific area).
The main activity of concern is the in-bay disposal of the dredged
sediments from dredging activities between the piers. We determined
that the INRMP does not provide adequate protection for the Southern
DPS because it does not address concerns regarding in-bay disposal of
dredged material. However, we determined that the benefits of excluding
this area outweigh the benefits of designating it for two reasons.
First, restrictions on dredging operations between the piers pose a
national security risk (i.e., build-up of sediment such that vessels
cannot move in and out of the piers). The dredging activities are not a
major concern to green sturgeon because the dredged area is small, the
frequency of dredging is low (about once every 3 years), and the Army
is already using the recommended dredge type. Second, we are primarily
concerned about the use of in-bay disposal sites, which are located
outside of the USAR area and would not be affected by this exclusion.
We determine that the benefits of excluding the Mare Island USAR
facilities outweigh the benefits of designation and that exclusion of
this area would not significantly impede conservation for the
previously described reasons (small area, infrequent dredging, and
current use of recommended dredge type), and that exclusion of this
area would not result in extinction of the species. Therefore, the area
is excluded from the critical habitat designation.
(2) Coastal marine waters adjacent to Camp Rilea, OR: The Army
requested the exclusion of coastal marine waters adjacent to Camp Rilea
(Clatsop County, OR), delineated as an area one-half mile north to one-
half mile south of Camp Rilea, to a distance of two miles offshore of
Camp Rilea. The primary activities of concern identified by the Army
that might affect critical habitat are amphibious landings operations
and the rare occurrence of stray bullets entering the water within this
particular area. We determined that neither amphibious landings nor a
stray bullet entering the water would be likely to affect the critical
habitat features identified for coastal marine areas (i.e., prey
resources, water quality, migratory corridors). Thus, based on the
information provided by the Army, we determined there is a low
likelihood that the Army's activities within the area would affect
critical habitat and trigger an ESA section 7 consultation and,
consequently, the benefit of exclusion for this area is low. In
contrast, the benefits of designation are likely high for this area
because it occurs within a High conservation value specific area just
south of the lower Columbia River estuary and our consultation history
indicates that there are other Federal activities occurring in this
area that may affect critical habitat and trigger a consultation under
section 7 of the ESA. For these reasons, we determined that the
benefits of exclusion do not outweigh the benefits of designation for
this area and that the area will be included in the critical habitat
designation.
(3) Three naval restricted areas and one operating area located in
the Strait of Juan de Fuca, WA: The Navy requested the exclusion of 3
naval restricted areas and one operating area (Navy 3 OPAREA) in the
eastern portion of the Strait of Juan de Fuca. We corresponded with the
Navy extensively throughout the analysis of national security impacts,
to better define the impacts on national security and the Navy's
control of the particular areas requested for exclusion.
We determined that the benefits of designation for these areas is
low. Although the Strait of Juan de Fuca received a High conservation
value, this was based on the existence of a connectivity corridor
within this area. From observations of tagged green sturgeon, it
appears that the eastern portion of the Strait of Juan de Fuca is used
at a lower frequency than the western portion of the Strait. In
addition, the areas are small compared to the critical habitat areas
being designated, our consultation history indicates that there are
currently no other Federal activities occurring within these particular
areas that may affect critical habitat, and the Navy's limits on public
access in restricted areas and presence in operating areas (which are
likely to deter certain activities from the area) provide some
protection for green sturgeon and its habitat in the areas. Based on
the information provided by the Navy, we also determined that the
benefits to national security of excluding these areas is low, because
the Navy's current activities within the areas have a low likelihood of
affecting critical habitat and triggering a section 7 consultation.
However, we recognize that the range of activities that may be carried
out in these areas are often critical to national security and that a
critical habitat designation in these areas could delay or halt these
activities in the future. Therefore, we determined that the benefits of
exclusion outweigh the benefits of designation for the three naval
restricted areas and the Navy 3 Operation Area within the Strait of
Juan de Fuca. We also determined that exclusion of these areas would
not significantly impede conservation or result in extinction of the
species. Thus, the 4 areas requested for exclusion by the Navy in the
Strait of Juan de Fuca are excluded from the final designation.
Determining the Benefits of Excluding Particular Areas: Impacts on
Indian Lands
The only other relevant impacts identified for the ESA section
4(b)(2) analysis were impacts on Indian lands. In the proposed rule, we
solicited comments regarding lands owned by the following Federally-
recognized Tribes (73 FR 18553, April 4, 2008) that may be in close
proximity to areas considered for designation as critical habitat for
Southern DPS green sturgeon: the Hoh, Jamestown
[[Page 52339]]
S'Klallam, Lower Elwha, Makah, Quileute, Quinault, and Shoalwater Bay
Tribes in Washington; the Confederated Tribes of Coos Lower Umpqua and
Siuslaw Indians and the Coquille Tribe in Oregon; and the Cachil DeHe
Band of Wintun Indians of the Colusa Indian Community, Wiyot Tribe, and
Yurok Tribe in California. We later also identified lands owned by the
Trinidad Rancheria that may overlap with the critical habitat areas in
California. We corresponded with these Tribes during the public comment
period and development of the final rule to confirm where their lands
occur and may overlap with the areas considered for designation as
critical habitat and to understand the Tribal activities and concerns
within those areas. We then analyzed and determined whether the
benefits of exclusion outweigh the benefits of designation for these
identified Indian lands under ESA section 4(b)(2). Because we were
unable to quantify the benefits, we instead compared qualitative
ratings of the benefits of exclusion and benefits of designation.
The primary benefit of designation is the protection provided under
section 7 of the ESA, requiring every Federal agency to ensure that any
action it authorizes, funds, or carries out is not likely to result in
the destruction or adverse modification of the designated critical
habitat. To assess the benefit of designation, we considered the final
conservation value of the specific area within which the overlap with
Indian lands occur (i.e., the greater the conservation value of an
area, the greater the benefit of protection under section 7 of the
ESA), the Federal actions likely to occur within the area that may
affect critical habitat, and the size of the area of overlap. The
conservation values of the specific areas included High and Medium
(none of the areas had Low or Ultra-Low conservation value). Federal
actions occurring in the areas that may trigger a section 7
consultation include transportation projects, alternative energy
hydrokinetic projects, in-water construction or alterations, NPDES
activities, and dredging. However, the area of overlap between Indian
lands and the areas considered for designation as critical habitat is
very small and we anticipate there would be very few Federal actions
undergoing a section 7 consultation in these areas. Thus, we determine
that the benefit of designation for these Indian lands is relatively
low.
To determine the benefits of exclusion, we evaluated the Tribal
activities conducted within the areas and the Federal government's
policies regarding Indian lands and relationships with the Tribes.
Indian lands are those defined in the Secretarial Order ``American
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act'' (June 5, 1997), including: (1) Lands held in
trust by the United States for the benefit of any Indian Tribe; (2)
land held in trust by the United States for any Indian Tribe or
individual subject to restrictions by the United States against
alienation; (3) fee lands, either within or outside the reservation
boundaries, owned by the Tribal government; and (4) fee lands within
the reservation boundaries owned by individual Indians. Activities
within Indian lands include many activities that may affect critical
habitat, including fisheries activities, in-water construction or
alterations, energy projects, and habitat restoration. The benefits of
exclusion would include avoiding the need to consult with NMFS under
section 7 of the ESA for activities that may affect critical habitat,
as well as the benefits identified in recent critical habitat
designations for Pacific salmon and steelhead (70 FR 52630; September
2, 2005), specifically: (1) The furtherance of established national
policies, our Federal trust obligations and our deference to the Tribes
in management of natural resources on their lands; (2) the maintenance
of effective long-term working relationships to promote species
conservation on an ecosystem-wide basis; (3) the allowance for
continued meaningful collaboration and cooperation in scientific work
to learn more about the conservation needs of the species on an
ecosystem-wide basis; and (4) continued respect for Tribal sovereignty
over management of natural resources on Indian lands through
established Tribal natural resource programs. Thus, we determine that
the benefit of exclusion for Indian lands is relatively high.
Exclusions Based on Impacts on Indian Lands
The final ESA section 4(b)(2) analysis report provides a detailed
description of our approach and analysis of impacts on Indian lands.
Based on the analysis of the benefits of designation and exclusion
described above and in the report, we determined that the benefits of
excluding the identified Indian lands outweigh the benefits of
designating those lands. Exclusion of Indian lands benefits the Federal
government's policy of promoting respect for Tribal sovereignty and
self-governance. In addition, critical habitat on Indian lands
represents such a small proportion of total critical habitat. Because
the percentage of critical habitat on Indian lands is minimal, we
determined that exclusion would not significantly impede conservation
or result in extinction of the Southern DPS. Table 3 lists the Tribes
whose lands are excluded from the critical habitat designation and the
estimated area of overlap that is excluded.
We also received comments from Tribes in Washington requesting the
exclusion of usual and accustomed fishing areas from the critical
habitat designation. The Tribes were primarily concerned about the
potential impact of the critical habitat designation on Tribal
fisheries within usual and accustomed fishing areas located in coastal
estuaries and coastal marine waters. Based on the information provided
by the Tribes, we would expect the critical habitat designation to have
minimal effects on Tribal fisheries. Tribal fisheries may cause take of
Southern DPS green sturgeon and thus are more likely to be affected by
take prohibitions as established in the proposed ESA 4(d) Rule for
green sturgeon (74 FR 23822; May 21, 2009) than by the critical habitat
designation. In addition, and as described below, usual and accustomed
fishing areas are not necessarily coextensive with areas defined as
``Indian lands'' in various Federal policies, orders, and memoranda.
Thus, we conclude that exclusion of usual and accustomed fishing areas
outside those identified as Indian lands is not warranted, because the
benefits of exclusion do not outweigh the benefits of designation for
these areas.
[[Page 52340]]
Table 3--Summary of the Tribes With Lands Overlapping With the Critical Habitat Designation, the Specific Area
Where the Overlap Occurs and its Associated Conservation Value Rating, and the Estimated Area of Overlap Between
Indian Lands and the Specific Area
----------------------------------------------------------------------------------------------------------------
Estimated km of excluded
Tribe * * Specific area & conservation value shoreline
----------------------------------------------------------------------------------------------------------------
Cachil DeHe Band of Wintun Indians of the Sacramento River, CA (High)........... 0.2
Colusa Indian Community, CA.
Cher-Ae Heights Trinidad Rancheria....... Coastal marine area from Humboldt Bay, 0.6
CA, to Coos Bay, OR (High).
Confederated Tribes of the Coos, Lower (a) Coos Bay, OR (Medium) and......... 1.1 (total),
Umpqua, and Siuslaw, OR. (b) coastal marine area from Humboldt (a) 0.3,
Bay, CA, to Coos Bay, OR (High). (b) 0.8
Coquille Indian Tribe.................... Coos Bay, OR (Medium)................. 2.6
Hoh Tribe................................ Coastal marine area from Grays Harbor, 2.6
WA, to Cape Flattery (High).
Jamestown S'Klallam Tribe................ Strait of Juan de Fuca, WA (High)..... <0.1
Lower Elwha Tribe........................ Strait of Juan de Fuca, WA (High)..... 1.8
Makah Tribe.............................. (a) Strait of Juan de Fuca, WA (High) 40.4 (total),
and (b) coastal marine area from (a) 19.2,
Grays Harbor, WA, to Cape Flattery (b) 21.2
(High).
Quileute Tribe........................... Coastal marine area from Grays Harbor, 3.9
WA, to Cape Flattery (specifically,
Quillayute River) (High).
Quinault Tribe........................... Coastal marine area from Grays Harbor, 40.6
WA, to Cape Flattery (High).
Shoalwater Bay Tribe..................... Willapa Bay, WA (High)................ 3.1
Wiyot Tribe.............................. Humboldt Bay, CA (Medium)............. 1.8
Yurok Tribe.............................. Coastal marine area from Humboldt Bay, 1.4
CA, to Coos Bay, OR (High).
----------------------------------------------------------------------------------------------------------------
* * We also corresponded with the Lummi Tribe and Swinomish Tribe in Washington, but determined that their
Indian lands do not overlap with the specific areas considered for designation as critical habitat.
Critical Habitat Designation
This final rule will designate approximately 515 km (320 mi) of
riverine habitat and 2,323 km\2\ (897 mi\2\) of estuarine habitat in
California, Oregon, and Washington, and 29,581 km\2\ (11,421 mi\2\) of
coastal marine habitat off California, Oregon, and Washington within
the geographical area presently occupied by the Southern DPS of green
sturgeon. We are also designating approximately 784 km (487 mi) of
habitat in the Sacramento-San Joaquin Delta, and 350 km\2\ (135 mi\2\)
of habitat within the Yolo and Sutter bypasses, adjacent to the
Sacramento River, California. These critical habitat areas contain
physical or biological features essential to the conservation of the
species that may require special management considerations or
protection. This final rule will exclude from the designation: (1) 14
specific areas based on economic impacts; (2) the Mare Island USAR
Center in San Pablo Bay, three naval restricted areas in the Strait of
Juan de Fuca, and one Navy operating area in the Strait of Juan de Fuca
based on impacts on national security; and (3) Indian lands owned by 12
Federal-recognized Tribes that overlap with the critical habitat
designation, based on impacts on Indian lands. We conclude that the
exclusion of these areas will not result in the extinction of the
Southern DPS. Although we have identified 7 presently unoccupied areas
that may, at a later time, be determined as essential to conservation,
we are not designating any unoccupied areas at this time, because we do
not have sufficient information showing that any of the unoccupied
areas are essential to the conservation of the species.
Lateral Extent of Critical Habitat
For freshwater riverine habitats, we described the lateral extent
of critical habitat units as the width of the stream channel defined by
the ordinary high-water line, as defined by the U.S. Army Corps of
Engineers (ACOE) in 33 CFR 329.11. The ordinary high-water line on non-
tidal rivers is defined as ``the line on the shore established by the
fluctuations of water and indicated by physical characteristics such as
a clear, natural line impressed on the bank; shelving; changes in the
character of soil; destruction of terrestrial vegetation; the presence
of litter and debris, or other appropriate means that consider the
characteristics of the surrounding areas'' (33 CFR 329.11(a)(1)). In
areas for which the ordinary high-water line has not been defined
pursuant to 33 CFR 329.11, we defined the width of the stream channel
by its bankfull elevation. Bankfull elevation is the level at which
water begins to leave the channel and move into the floodplain (Rosgen
1996) and is reached at a discharge which generally has a recurrence
interval of 1 to 2 years on the annual flood series (Leopold et al.
1992). For bays and estuarine areas, we defined the lateral extent by
the mean higher high water (MHHW) line. For coastal marine habitats,
the lateral extent to the west is defined by the 60 fm depth bathymetry
contour relative to the line of MLLW and shoreward to the area that is
inundated by MLLW, or to the COLREGS demarcation lines delineating the
boundary between estuarine and marine habitats. The textual
descriptions of critical habitat in 50 CFR 226.215 (under ``Critical
habitat for the Southern Distinct Population Segment of North American
Green Sturgeon (Acipenser medirostris)'') are the definitive source for
determining the critical habitat boundaries. The overview maps provided
in 50 CFR 226.215 (under ``Critical habitat for the Southern Distinct
Population Segment of North American Green Sturgeon (Acipenser
medirostris)'') are provided for general guidance purposes only and not
as a definitive source for determining critical habitat boundaries.
As discussed in previous critical habitat designations, the quality
of aquatic and estuarine habitats within stream channels and bays and
estuaries is intrinsically related to the adjacent riparian zones and
floodplain, to surrounding wetlands and uplands, and to non-fish-
bearing streams above occupied stream reaches. Human activities that
occur outside of designated streams, bays, or estuaries can destroy or
adversely modify the essential physical and biological features within
these areas. In addition,
[[Page 52341]]
human activities occurring within and adjacent to reaches upstream or
downstream of designated stream reaches or estuaries can also destroy
or adversely modify the essential physical and biological features of
these areas. Similarly, human activities that occur outside of
designated coastal marine areas inundated by extreme high tide can
destroy or adversely modify the essential physical and biological
features of these areas. This designation will help to ensure that
Federal agencies are aware of these important habitat linkages.
Effects of Critical Habitat Designation
ESA Section 7 Consultation
Section 7(a)(2) of the ESA requires Federal agencies, including
NMFS, to insure that any action authorized, funded, or carried out by
the agency (agency action) does not jeopardize the continued existence
of any threatened or endangered species or destroy or adversely modify
designated critical habitat.
When a species is listed or critical habitat is designated, Federal
agencies must consult with NMFS on any agency actions to be conducted
in an area where the species is present and that may affect the species
or its critical habitat. During the consultation, NMFS evaluates the
agency action to determine whether the action may adversely affect
listed species or critical habitat and issues its findings in a
biological opinion. If NMFS concludes in the biological opinion that
the agency action would likely result in the destruction or adverse
modification of critical habitat, NMFS would also recommend any
reasonable and prudent alternatives to the action. Reasonable and
prudent alternatives are defined in 50 CFR 402.02 as alternative
actions identified during formal consultation that can be implemented
in a manner consistent with the intended purpose of the action, that
are consistent with the scope of the Federal agency's legal authority
and jurisdiction, that are economically and technologically feasible,
and that would avoid the destruction or adverse modification of
critical habitat.
Regulations at 50 CFR 402.16 require Federal agencies that have
retained discretionary involvement or control over an action, or where
such discretionary involvement or control is authorized by law, to
reinitiate consultation on previously reviewed actions in instances
where: (1) Critical habitat is subsequently designated; or (2) new
information or changes to the action may result in effects to critical
habitat not previously considered in the biological opinion.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with NMFS on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat.
Activities subject to the ESA section 7 consultation process
include activities on Federal lands and activities on private or State
lands requiring a permit from a Federal agency (e.g., a section
10(a)(1)(B) permit from NMFS) or some other Federal action, including
funding (e.g., Federal Highway Administration (FHA) or Federal
Emergency Management Agency (FEMA) funding). ESA section 7 consultation
would not be required for Federal actions that do not affect listed
species or critical habitat and for actions on non-Federal and private
lands that are not Federally funded, authorized, or carried out.
Activities Likely To Be Affected
ESA section 4(b)(8) requires in any final regulation to designate
critical habitat an evaluation and brief description of those
activities (whether public or private) that may adversely modify such
habitat or that may be affected by such designation. A wide variety of
activities may affect critical habitat for the Southern DPS and may be
subject to the ESA section 7 consultation process when carried out,
funded, or authorized by a Federal agency. These include water and land
management actions of Federal agencies (e.g., U.S. Forest Service
(USFS), Bureau of Land Management (BLM), ACOE, USBR, Natural Resource
Conservation Service (NRCS), National Park Service (NPS), Bureau of
Indian Affairs (BIA), the FERC, and the Nuclear Regulatory Commission
(NRC)) and related or similar Federally-regulated projects and
activities on Federal lands, including hydropower sites and proposed
alternative energy hydrokinetic projects licensed by the FERC; nuclear
power sites licensed by the NRC; dams built or operated by the ACOE or
USBR; timber sales and other vegetation management activities conducted
by the USFS, BLM and BIA; irrigation diversions authorized by the USFS
and BLM; and road building and maintenance activities authorized by the
USFS, BLM, NPS, and BIA. Other actions of concern include dredge and
fill, mining, diking, and bank stabilization activities authorized or
conducted by the COE, habitat modifications authorized by the FEMA, and
approval of water quality standards and pesticide labeling and use
restrictions administered by the Environmental Protection Agency (EPA).
Private entities may also be affected by this final critical
habitat designation if a Federal permit is required, Federal funding is
received, or the entity is involved in or receives benefits from a
Federal project. For example, private entities may have special use
permits to convey water or build access roads across Federal land; they
may require Federal permits to construct irrigation withdrawal
facilities, or build or repair docks; they may obtain water from
Federally funded and operated irrigation projects; or they may apply
pesticides that are only available with Federal agency approval. These
activities will need to be evaluated with respect to their potential to
destroy or adversely modify critical habitat. Changes to the actions to
minimize or avoid destruction or adverse modification of designated
critical habitat may result in changes to some activities, such as the
operations of dams and dredging activities. Transportation and
utilities sectors may need to modify the placement of culverts,
bridges, and utility conveyances (e.g., water, sewer, and power lines)
to avoid barriers to fish migration. Developments (e.g., marinas,
residential, or industrial facilities) occurring in or near streams,
estuaries, or marine waters designated as critical habitat that require
Federal authorization or funding may need to be altered or built in a
manner to ensure that critical habitat is not destroyed or adversely
modified as a result of the construction or subsequent operation of the
facility.
Questions regarding whether specific activities will constitute
destruction or adverse modification of critical habitat should be
directed to NMFS (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).
Peer Review
On July 1, 1994, a joint USFWS/NMFS policy for peer review was
issued stating that the Services would solicit independent peer review
to ensure the best biological and commercial data is used in the
development of rulemaking actions and draft recovery plans under the
ESA (59 FR 34270). On December 16, 2004, the Office of Management and
Budget (OMB) issued its Final Information Quality Bulletin for Peer
Review (Bulletin). The Bulletin was published in the Federal Register
on January 14, 2005 (70 FR 2664), and went into effect on June 16,
2005. The primary purpose of the Bulletin is to improve the quality and
credibility of scientific information disseminated by
[[Page 52342]]
the Federal government by requiring peer review of ``influential
scientific information'' and highly influential scientific
information'' prior to public dissemination. Influential scientific
information is defined as ``information the agency reasonably can
determine will have or does have a clear and substantial impact on
important public policies or private sector decisions.'' The Bulletin
provides agencies broad discretion in determining the appropriate
process and level of peer review. Stricter standards were established
for the peer review of ``highly influential scientific assessments'',
defined as information whose ``dissemination could have a potential
impact of more than $500 million in any one year on either the public
or private sector or that the dissemination is novel, controversial, or
precedent-setting, or has significant interagency interest.'' The draft
biological report and draft economic analysis report supporting this
final rule to designate critical habitat for the Southern DPS of green
sturgeon are considered influential scientific information and subject
to peer review. These two reports were each distributed to three
independent peer reviewers for review. The final biological report and
final economic analysis report incorporate the comments and additional
information provided by the peer reviewers. The peer reviewer comments
were compiled into a peer review report, which is available on the
Southwest Region Web site at http://swr.nmfs.noaa.gov, on the Federal
eRulemaking Web site at http://www.regulations.gov, or upon request
(see ADDRESSES).
Required Determinations
Regulatory Planning and Review (E.O. 12866)
This final rule has been determined to be significant for purposes
of E.O. 12866. A final economic analysis report and ESA section 4(b)(2)
report have been prepared to support the exclusion process under
section 4(b)(2) of the ESA and our consideration of alternatives to
this rulemaking as required under E.O. 12866. The final economic
analysis report and final ESA section 4(b)(2) report are available on
the Southwest Region Web site at http://swr.nmfs.noaa.gov, on the
Federal eRulemaking Web site at http://www.regulations.gov, or upon
request (see ADDRESSES).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency publishes a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis describing the effects
of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). We have prepared a
final regulatory flexibility analysis (FRFA), which is part of the
final economic analysis report. This document is available upon request
(see ADDRESSES), via our Web site at http://swr.nmfs.noaa.gov, or via
the Federal eRulemaking Web site at http://www.regulations.gov. The
results of the FRFA are summarized below.
At the present time, little information exists regarding the cost
structure and operational procedures and strategies in the sectors that
may be directly affected by the potential critical habitat designation.
In addition, given the short consultation history for green sturgeon,
there is significant uncertainty regarding the activities that may
trigger an ESA section 7 consultation or how those activities may be
modified as a result of consultation. With these limitations in mind,
we considered which of the potential economic impacts we analyzed might
affect small entities. These estimates should not be considered exact
estimates of the impacts of potential critical habitat to individual
businesses.
The impacts to small businesses were assessed for the following
eight activities: dredging, in-water construction or alterations, NPDES
activities and other activities resulting in non-point pollution,
agriculture, dam operations, water diversion operations, bottom trawl
fisheries, and power plant operations. The impacts on small entities
were not assessed for LNG projects, desalination plants, tidal and wave
energy projects, and restoration projects because there is great
uncertainty regarding impacts to these activities, the activities are
unlikely to be conducted by small entities, or the impacts to small
businesses are expected to be minor.
Small entities were defined by the Small Business Administration
size standards for each activity type. The majority (>70 percent) of
entities affected within each specific area would be considered a small
entity. A total of 10,398 small businesses involved in the activities
listed above would most likely be affected by the final critical
habitat designation. The estimated economic impacts on small entities
vary depending on the activity type and location. The largest total
estimated annualized impacts borne by small entities were for bottom
trawl fisheries and the operation of dams and water diversions.
In accordance with the requirements of the RFA (as amended by
SBREFA, 1996) this analysis considered various alternatives to the
critical habitat designation for the green sturgeon. The alternative of
not designating critical habitat for the green sturgeon was considered
and rejected because such an approach does not meet the legal
requirements of the ESA and would not provide for the conservation of
the Southern DPS. The alternative of designating all potential critical
habitat areas (i.e., no areas excluded) was also considered and
rejected because NMFS has the discretionary authority to exclude areas
under the ESA and, for several areas, the economic benefits of
exclusion outweighed the benefits of inclusion. The total annualized
impacts borne by small entities under this alternative were $60.1
million to $210 million (discounted at 7 percent) or $60 million to
$210 million (discounted at 3 percent).
An alternative to designating critical habitat within all 41 units
is the designation of critical habitat within a subset of these units.
This approach would help to reduce the number of small entities
potentially affected. Under section 4(b)(2) of the ESA, NMFS must
consider the economic impacts, impacts to national security, and other
relevant impacts of designating any particular area as critical
habitat. NMFS has the discretion to exclude an area from designation as
critical habitat if the benefits of exclusion (i.e., the impacts that
would be avoided if an area were excluded from the designation)
outweigh the benefits of designation (i.e., the conservation benefits
to the Southern DPS if an area were designated), as long as exclusion
of the area will not result in extinction of the species. Exclusion
under section 4(b)(2) of the ESA of one or more of the 41 units
considered for designation would reduce the potential effects on small
entities. The extent to which the economic impact to small entities
would be reduced depends on how many, and which, units would be
excluded. The determination of which units and how many to exclude
depends on NMFS' ESA 4(b)(2) analysis, which is conducted for each unit
and described in detail in the final ESA
[[Page 52343]]
section 4(b)(2) analysis report (NMFS 2009c). The total estimated
annualized impacts borne by small entities under this alternative were
$17.9 million to $24.5 million (discounted at 7 percent) or $17.9
million to $24.4 million (discounted at 3 percent). It is estimated
that the exclusions in this final rule will result in a reduction in
total annualized impacts on small entities of between $42.2 million to
$185.5 million (for estimates discounted at 7 percent) or between $42.1
million to $185.6 million (for estimates discounted at 3 percent). NMFS
selected this alternative because it results in a critical habitat
designation that provides for the conservation of the Southern DPS,
reduces impacts on small entities, and meets the requirements under the
ESA and our joint NMFS-USFWS regulations for designating critical
habitat.
E.O. 13211
On May 18, 2001, the President issued an Executive Order on
regulations that significantly affect energy supply, distribution, and
use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking an action expected to lead to the promulgation
of a final rule or regulation that is a significant regulatory action
under E.O. 12866 and is likely to have a significant adverse effect on
the supply, distribution, or use of energy. An energy impacts analysis
was prepared under E.O. 13211 and is available as part of the final
economic analysis report. The results of the analysis are summarized
here.
Activities associated with the supply, distribution, or use of
energy that may be affected by this final critical habitat designation
include the operation of hydropower dams, alternative energy
hydrokinetic projects, and LNG projects. Energy impacts would result
from requested project modifications under an ESA section 7
consultation. The most relevant impacts include potential changes in
natural gas and electricity production and changes in the cost of
energy production.
In the final economic analysis, the effects of the critical habitat
designation on 189 dams located within the critical habitat areas are
evaluated. Of these 189 dams, 11 dams have hydropower capacity.
Potential project modifications may be required to address impacts of
the hydropower dams on flow regimes. These project modifications may
include changes in water flow through the turbines or seasonal changes
to flow through turbines. These changes may result in reductions in
electricity production and increases in energy costs. However, the
changes required and their effects on energy production and costs would
vary depending on the characteristics of the dam and the hydrology of
the river system. Because the areas overlap with existing critical
habitat designations for salmon species, and because the guidelines we
have in place for dam modifications focus on listed salmonids, we will
likely recommend modifications to dams that are similar to those we
recommend for salmonids until additional information on green sturgeon
indicates otherwise. Thus, the additional effects of the critical
habitat designation for green sturgeon would likely be minimal. In
addition, modifications required for the protection of critical habitat
would likely be similar to those required under the jeopardy standard.
The final economic analysis evaluated the effects of the critical
habitat designation on a number of proposed alternative energy
hydrokinetic projects (e.g., tidal and wave energy projects). Future
management and required project modifications for green sturgeon
critical habitat related to these projects are uncertain and could vary
widely in scope from project to project. Because these proposed
projects are still in the preliminary stages, the potential impact of
possible green sturgeon conservation efforts on energy production and
the associated cost of that energy for each project are unclear. In the
most extreme case (i.e., the critical habitat designation results in
all projects not being constructed), the reductions in electricity
production would be significant (an estimated 2,000 megawatts).
However, we do not anticipate that conservation efforts to address
green sturgeon critical habitat will result in all project construction
from being halted. It is more likely that any additional cost of green
sturgeon conservation efforts would be passed on to the consumer in the
form of slightly higher energy prices. More information is needed,
however, to more precisely estimate the potential energy impacts
resulting from the application of conservation measures to alternative
energy projects. It is important to note, however, that many other
environmental concerns have been raised and must be addressed in the
development and construction of alternative energy projects, including
concerns for other marine fish species (McIsaac 2008, Letter from the
Pacific Fishery Management Council to Randall Luthi, Minerals
Management Service). It is likely that management measures to minimize
or avoid habitat impacts for other species will be required for
alternative energy projects. Based on the best available information,
the project modifications we would require to protect green sturgeon
critical habitat would likely be similar to those applied for the
protection of other marine species.
The final economic analysis also analyzed the potential effects of
the critical habitat designation on proposed LNG projects. Because no
LNG projects currently exist in the critical habitat areas, the
potential impact of LNG facilities on green sturgeon critical habitat
and the potential project modifications that may be required to
mitigate those impacts remain uncertain. There are several proposed LNG
projects in the critical habitat areas, with a combined natural gas
production capacity of 7,800 million cubic feet per day. In the most
extreme case, green sturgeon critical habitat would require that these
proposed LNG projects be relocated to areas outside of the critical
habitat areas. However, it is more likely that other less costly
project modifications will be necessary, such as changes to dredging
operations associated with the project, restoration of riparian
habitat, or other changes depending on the specifics of the project.
These project modifications may result in higher natural gas costs for
consumers. Additional information is needed to address uncertainties
regarding the potential impacts of the critical habitat designation on
LNG projects and on energy production and costs associated with those
projects. In cases where listed salmon and steelhead species or
critical habitat designated for these species occurs within the areas
where proposed LNG projects are located (e.g., in the Lower Columbia
River), the best available information indicates that measures
implemented for the protection of these species would be similar to
those required to protect critical habitat for green sturgeon.
Based on this energy impacts analysis, we recognize that many
uncertainties exist and more information is needed to adequately
estimate the potential impacts of the critical habitat designation on
energy production and costs. Using the best available information, we
have determined that the designation of critical habitat for Southern
DPS green sturgeon may result in impacts on the supply, distribution,
or use of energy, but that these impacts would not be significant
because many of the impacts would already exist due to protections for
other listed species.
[[Page 52344]]
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, NMFS makes the
following findings:
(A) This final rule will not produce a Federal mandate. In general,
a Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, Tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal government's
responsibility to provide funding'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement.) ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (I) a condition of
Federal assistance; or (ii) a duty arising from participation in a
voluntary Federal program.'' The designation of critical habitat does
not impose an enforceable duty on non-Federal government entities or
private parties. The only regulatory effect of a critical habitat
designation is that Federal agencies must ensure that their actions do
not destroy or adversely modify critical habitat under ESA section 7.
Non-Federal entities who receive funding, assistance, or permits from
Federal agencies, or otherwise require approval or authorization from a
Federal agency for an action may be indirectly affected by the
designation of critical habitat. Furthermore, to the extent that non-
Federal entities are indirectly impacted because they receive Federal
assistance or participate in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would not apply; nor would critical
habitat shift the costs of the large entitlement programs listed above
to State governments.
(b) Due to the prohibition against take of the Southern DPS both
within and outside of the designated areas, we do not anticipate that
this final rule will significantly or uniquely affect small
governments. As such, a Small Government Agency Plan is not required.
Takings
Under E.O. 12630, Federal agencies must consider the effects of
their actions on constitutionally protected private property rights and
avoid unnecessary takings of property. A taking of property includes
actions that result in physical invasion or occupancy of private
property, and regulations imposed on private property that
substantially affect its value or use. In accordance with E.O. 12630,
this final rule does not have significant takings implications. A
takings implication assessment is not required. The designation of
critical habitat affects only Federal agency actions. This final rule
would not increase or decrease the current restrictions on private
property concerning take of Southern DPS fish, nor do we expect the
final critical habitat designation to impose substantial additional
burdens on land use or substantially affect property values.
Additionally, the final critical habitat designation does not preclude
the development of Habitat Conservation Plans and issuance of
incidental take permits for non-Federal actions. Owners of areas
included within the proposed critical habitat designation would
continue to have the opportunity to use their property in ways
consistent with the survival of listed Southern DPS.
Federalism
In accordance with E.O. 13132, we determined that this final rule
does not have significant Federalism effects and that a Federalism
assessment is not required. In keeping with Department of Commerce
policies, we request information from, and will coordinate development
of this final critical habitat designation with, appropriate State
resource agencies in California, Oregon, Washington, and Alaska. The
final designation may have some benefit to State and local resource
agencies in that the areas essential to the conservation of the species
are more clearly defined, and the PCEs of the habitat necessary for the
survival of the Southern DPS of green sturgeon are specifically
identified. While this designation does not alter where and what
Federally sponsored activities may occur, it may assist local
governments in long-range planning (rather than waiting for case-by-
case ESA section 7 consultations to occur).
Civil Justice Reform
In accordance with E.O. 12988, we have determined that this final
rule does not unduly burden the judicial system and meets the
requirements of sections 3(a) and 3(b)(2) of the E.O. We are
designating critical habitat in accordance with the provisions of the
ESA. This final rule uses standard property descriptions and identifies
the PCEs within the designated areas to assist the public in
understanding the habitat needs of the Southern DPS of green sturgeon.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This final rule does not contain new or revised information
collections that require approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act. This final rule will
not impose recordkeeping or reporting requirements on State or local
governments, individuals, businesses, or organizations. An agency may
not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act of 1969 (NEPA)
NMFS has determined that an environmental analysis as provided for
under the NEPA of 1969 for critical habitat designations made pursuant
to the ESA is not required. See Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied, 116 S.Ct 698 (1996).
Government-to-Government Relationship With Tribes
The longstanding and distinctive relationship between the Federal
and Tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate Tribal
governments from the other entities that deal with, or are affected by,
the Federal government. This relationship has given rise to a special
Federal trust responsibility involving the legal responsibilities and
obligations of the United States toward Indian Tribes and the
application of fiduciary standards of due care with respect to Indian
lands, Tribal trust
[[Page 52345]]
resources, and the exercise of Tribal rights. Pursuant to these
authorities lands have been retained by Indian Tribes or have been set
aside for Tribal use. These lands are managed by Indian Tribes in
accordance with Tribal goals and objectives within the framework of
applicable treaties and laws. E.O. 13175, Consultation and Coordination
with Indian Tribal Governments, outlines the responsibilities of the
Federal government in matters affecting Tribal interests.
There is a broad array of activities on Indian lands that may
trigger ESA section 7 consultations. As described in the section above
titled ``Exclusions Based on Impacts on Indian Lands,'' we have
corresponded with potential affected Tribes and this final rule will
exclude from the designation any Indian lands of the following
Federally recognized Tribes (73 FR 18553, April 4, 2008) that overlap
with the critical habitat designation for Southern DPS green sturgeon:
the Hoh, Jamestown S'Klallam, Lower Elwha, Makah, Quileute, Quinault,
and Shoalwater Bay Tribes in Washington; the Confederated Tribes of
Coos, Lower Umpqua and Siuslaw Indians and the Coquille Tribe in
Oregon; and the Cachil DeHe Band of Wintun Indians of the Colusa Indian
Community, Cher-Ae Heights Trinidad Rancheria, Wiyot Tribe, and Yurok
Tribe in California.
References Cited
A complete list of all references cited herein is available upon
request (see ADDRESSES section) or via our Web site at http://swr.nmfs.noaa.gov.
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: October 1, 2009.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, this final rule amends part
226, title 50 of the Code of Federal Regulations as set forth below:
PART 226--DESIGNATED CRITICAL HABITAT
0
1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
2. Add Sec. 226.219, to read as follows:
Sec. 226.219 Critical habitat for the Southern Distinct Population
Segment of North American Green Sturgeon (Acipenser medirostris).
Critical habitat is designated for the Southern Distinct Population
Segment of North American green sturgeon (Southern DPS) as described in
this section. The textual descriptions of critical habitat in this
section are the definitive source for determining the critical habitat
boundaries. The overview maps are provided for general guidance
purposes only and not as a definitive source for determining critical
habitat boundaries.
(a) Critical habitat boundaries. Critical habitat in freshwater
riverine areas includes the stream channels and a lateral extent as
defined by the ordinary high-water line (33 CFR 329.11). In areas for
which the ordinary high-water line has not been defined pursuant to 33
CFR 329.11, the lateral extent will be defined by the bankfull
elevation. Bankfull elevation is the level at which water begins to
leave the channel and move into the floodplain and is reached at a
discharge which generally has a recurrence interval of 1 to 2 years on
the annual flood series. Critical habitat in bays and estuaries
includes tidally influenced areas as defined by the elevation of mean
higher high water. The boundary between coastal marine areas and bays
and estuaries are delineated by the COLREGS lines (33 CFR 80). Critical
habitat in coastal marine areas is defined by the zone between the 60
fathom (fm) depth bathymetry line and the line on shore reached by mean
lower low water (MLLW), or to the COLREGS lines.
(1) Coastal marine areas: All U.S. coastal marine waters out to the
60 fm depth bathymetry line (relative to MLLW) from Monterey Bay,
California (36[deg]38'12'' N./121[deg]56'13'' W.) north and east to
include waters in the Strait of Juan de Fuca, Washington. The Strait of
Juan de Fuca includes all U.S. marine waters: in Clallam County east of
a line connecting Cape Flattery (48[deg]23'10'' N./124[deg]43'32'' W.),
Tatoosh Island (48[deg]23'30'' N./124[deg]44'12'' W.), and Bonilla
Point, British Columbia (48[deg]35'30'' N./124[deg]43'00'' W.); in
Jefferson and Island counties north and west of a line connecting Point
Wilson (48[deg]08'38'' N./122[deg]45'07'' W.) and Partridge Point
(48[deg]13'29'' N./122[deg]46'11'' W.); and in San Juan and Skagit
counties south of lines connecting the U.S.-Canada border
(48[deg]27'27'' N./123[deg]09'46'' W.) and Pile Point (48[deg]28'56''
N./123[deg]05'33'' W.), Cattle Point (48[deg]27'1'' N./122[deg]57'39''
W.) and Davis Point (48[deg]27'21'' N./122[deg]56'03'' W.), and Fidalgo
Head (48[deg]29'34'' N./122[deg]42'07'' W.) and Lopez Island
(48[deg]28'43'' N./122[deg]49'08'' W.).
(2) Freshwater riverine habitats: Critical habitat is designated to
include the following freshwater riverine areas in California:
(i) Sacramento River, California. From the Sacramento I-Street
Bridge (40[deg]9'10'' N./122[deg]12'9'' W.) upstream to Keswick Dam
(40[deg]36'39'' N./122[deg]26'46'' W.), including the waters
encompassed by the Yolo Bypass and the Sutter Bypass areas and the
lower American River from the confluence with the mainstem Sacramento
River upstream to 38[deg]35'47'' N./121[deg]28'36'' W. (State Route 160
bridge over the American River).
(ii) Lower Feather River, California. From the confluence with the
mainstem Sacramento River upstream to Fish Barrier Dam (39[deg]31'13''
N./121[deg]32'51'' W.).
(iii) Lower Yuba River, California. From the confluence with the
mainstem Feather River upstream to Daguerre Dam (39[deg]12'32'' N./
121[deg]35'53'' W.).
(3) Sacramento-San Joaquin Delta, California: Critical habitat is
designated to include the Sacramento-San Joaquin Delta including all
waterways up to the elevation of mean higher high water within the area
defined in California Water Code Section 12220, except for the
following excluded areas: Clifton Court and California Aqueduct Intake
Channel (all reaches upstream from the Clifton Court Radial Gates at
37[deg]49'47'' N./121[deg]33'25'' W.); Delta-Mendota Canal (upstream
from 37[deg]48'58'' N./121[deg]33'30'' W.); Fivemile Slough (all
reaches upstream from its confluence with Fourteenmile Slough at
38[deg]00'50'' N./121[deg]22'09'' W.); Indian Slough and Werner Cuts
(all reaches between the entrance to Discovery Bay at 37[deg]55'8'' N./
121[deg]35'12'' W. and the junction of Werner Cut and Rock Slough at
37[deg]58'14'' N./121[deg]35'41'' W.); Italian Slough (all reaches
upstream from 37[deg]51'39'' N./121[deg]34'53'' W.); Rock Slough (all
reaches upstream from the junction with the Old River at 37[deg]58'22''
N./121[deg]34'40'' W.); Sand Mound Slough (all reaches upstream from
37[deg]58'37'' N./121[deg]37'19'' W.); Sacramento Deep Water Ship
Channel (upstream from the confluence with Cache Slough at
38[deg]14'13'' N./121[deg]40'23'' W.); Sevenmile Slough (all reaches
between Threemile Slough at 38[deg]06'55'' N./121[deg]40'55'' W. and
Jackson Slough at 38[deg]06'59'' N./121[deg]37'44'' W.); Snodgrass
Slough (all reaches upstream from Lambert Road at 38[deg]18'33'' N./
121[deg]30'46'' W.); Tom Paine Slough (all reaches upstream from its
confluence with Middle River at 37[deg]47'25'' N./121[deg]25'08'' W.);
Trapper Slough (all reaches upstream from 37[deg]53'36'' N./
121[deg]29'15'' W.); Unnamed oxbow loop (upstream from the confluence
with the San Joaquin River at 37[deg]43'9'' N./121[deg]16'36'' W.);
Unnamed oxbow loop (upstream from the
[[Page 52346]]
confluence with the San Joaquin River at 37[deg]46'9'' N./
121[deg]18'6'' W.).
(4) Coastal bays and estuaries: Critical habitat is designated to
include the following coastal bays and estuaries in California, Oregon,
and Washington:
(i) San Francisco Bay, San Pablo Bay, and Suisun Bay in California.
All tidally influenced areas of San Francisco Bay, San Pablo Bay, and
Suisun Bay up to the elevation of mean higher high water, including,
but not limited to, areas upstream to the head of tide endpoint in:
Adobe Creek (38[deg]12'42'' N./122[deg]36'6'' W.); Alameda Creek
(37[deg]36'47'' N./122[deg]4'18'' W.); Arroyo Corte Madera del Presidio
(37[deg]53'43'' N./122[deg]31'48'' W.); Black John Slough
(38[deg]8'12'' N./122[deg]33'42'' W.); Black John Slough (38[deg]7'59''
N./122[deg]32'54'' W.); Carneros Creek (38[deg]13'52'' N./
122[deg]18'49'' W.); Colma Creek (37[deg]39'6'' N./122[deg]25'9'' W.);
Coyote Creek (37[deg]52'45'' N./122[deg]31'31'' W.); Coyote Creek
(37[deg]27'17'' N./121[deg]55'36'' W.); Coyote Creek, unnamed waterway
(37[deg]27'56'' N./121[deg]55'40'' W.); Coyote Creek, unnamed waterway
(37[deg]26'23'' N./121[deg]57'29'' W.); Coyote Creek, unnamed waterway
(37[deg]27'15'' N./121[deg]56'12'' W.); Coyote Hills Slough
(37[deg]34'26'' N./122[deg]3'36'' W.); Deverton Creek (38[deg]13'38''
N./121[deg]53'47'' W.); Gallinas Creek (38[deg]0'50'' N./
122[deg]32'24'' W.); Gallinas Creek, South Fork (38[deg]0'4'' N./
122[deg]32'9'' W.); Green Valley Creek (38[deg]12'49'' N./
122[deg]7'51'' W.); Hastings Slough (38[deg]1'30'' N./122[deg]3'35''
W.); Huichica Creek, unnamed tributary (38[deg]12'36'' N./
122[deg]21'35'' W.); Mt Eden Creek (37[deg]37'6'' N./122[deg]7'23''
W.); Mud Slough, unnamed waterway (37[deg]29'48'' N./121[deg]57'14''
W.); Mud Slough, unnamed waterway (37[deg]28'43'' N./121[deg]57'3''
W.); Newark Slough (37[deg]31'36'' N./122[deg]3'24'' W.); Newark
Slough, unnamed waterway (37[deg]31'51'' N./122[deg]4'7'' W.); Novato
Creek (38[deg]5'50'' N./122[deg]33'52'' W.); Petaluma River
(38[deg]14'53'' N./122[deg]38'17'' W.); Petaluma River, unnamed
tributary (38[deg]12'58'' N./122[deg]34'23'' W.); Railroad Slough
(38[deg]13'30'' N./122[deg]26'28'' W.); Richardson Bay, unnamed
tributary (37[deg]54'2'' N./122[deg]31'36'' W.); San Antonio Creek,
unnamed tributary (38[deg]9'45'' N./122[deg]34'1'' W.); San Clemente
Creek (37[deg]55'12'' N./122[deg]30'25'' W.); San Francisco Bay
shoreline (37[deg]40'44'' N./122[deg]10'18'' W.); San Francisquito
Creek (37[deg]27'10'' N./122[deg]7'40'' W.); San Pablo Bay shoreline
(38[deg]2'44'' N./122[deg]15'44'' W.); San Pablo Creek (37[deg]58'6''
N./122[deg]22'42'' W.); San Rafael Creek (37[deg]58'5'' N./
122[deg]31'35'' W.); Seal Slough (37[deg]34'9'' N./122[deg]17'30'' W.);
Suisun Marsh (38[deg]2'28'' N./121[deg]57'55'' W.); Suisun Marsh
(38[deg]2'50'' N./121[deg]58'39'' W.); Suisun Marsh (38[deg]2'42'' N./
121[deg]56'16'' W.); Suisun Marsh (38[deg]2'30'' N./121[deg]55'18''
W.); Suisun Marsh, Grizzly Bay shoreline (38[deg]5'53'' N./
122[deg]0'35'' W.); Suisun Marsh, Grizzly Bay shoreline (38[deg]6'49''
N./121[deg]58'54'' W.); Suisun Marsh, Grizzly Bay shoreline
(38[deg]8'19'' N./121[deg]59'31'' W.); Suisun Marsh, Grizzly Bay
shoreline (38[deg]8'6'' N./121[deg]59'33'' W.); Tolay Creek
(38[deg]9'42'' N./122[deg]26'49'' W.); Tolay Creek (38[deg]9'6'' N./
122[deg]26'49'' W.); Walnut Creek (38[deg]0'16'' N./122[deg]3'41'' W.);
Wildcat Creek (37[deg]57'26'' N./122[deg]22'45'' W.).
(ii) Humboldt Bay, California. All tidally influenced areas of
Humboldt Bay up to the elevation of mean higher high water, including,
but not limited to, areas upstream to the head of tide endpoint in: Elk
River (40[deg]43'45'' N./124[deg]11'15'' W.); Elk River (40[deg]45'9''
N./124[deg]10'57'' W.); Elk River (40[deg]45'7'' N./124[deg]10'58''
W.); Eureka Slough (40[deg]48'14'' N./124[deg]7'15'' W.); Eureka Slough
(40[deg]48'18'' N./124[deg]8'29'' W.); Eureka Slough (40[deg]48'14''
N./124[deg]8'22'' W.); Eureka Slough (40[deg]48'9'' N./124[deg]8'14''
W.); Freshwater Creek (40[deg]46'43'' N./124[deg]4'48'' W.); Freshwater
Slough (40[deg]47'18'' N./124[deg]6'54'' W.); Freshwater Slough
(40[deg]47'10'' N./124[deg]6'15'' W.); Freshwater Slough (40[deg]48'3''
N./124[deg]6'53'' W.); Gannon Slough (40[deg]50'48'' N./124[deg]4'54''
W.); Gannon Slough (40[deg]50'37'' N./124[deg]4'53'' W.); Jacoby Creek
(40[deg]50'22'' N./124[deg]4'16'' W.); Jacoby Creek (40[deg]50'25'' N./
124[deg]4'56'' W.); Liscom Slough (40[deg]52'35'' N./124[deg]8'14''
W.); Mad River Slough (40[deg]53'14'' N./124[deg]8'9'' W.); Mad River
Slough (40[deg]53'59'' N./124[deg]8'1'' W.); Mad River Slough
(40[deg]54'1'' N./124[deg]8'9'' W.); McDaniel Slough (40[deg]51'54''
N./124[deg]8'52'' W.); McDaniel Slough (40[deg]51'39'' N./124[deg]6'2''
W.); Rocky Gulch/Washington Gulch (40[deg]49'52'' N./124[deg]4'58''
W.); Salmon Creek (40[deg]41'12'' N./124[deg]13'10'' W.); Unnamed
tributary (40[deg]42'36'' N./124[deg]15'45'' W.); White Slough
(40[deg]41'56'' N./124[deg]12'18'' W.).
(iii) Coos Bay, Oregon. All tidally influenced areas of Coos Bay up
to the elevation of mean higher high water, including, but not limited
to, areas upstream to the head of tide endpoint in: Boone Creek
(43[deg]16'31'' N./124[deg]9'26'' W.); Catching Creek (43[deg]16'31''
N./124[deg]9'11'' W.); Coalbank Slough (43[deg]21'10'' N./
124[deg]13'17'' W.); Coos River, South Fork (43[deg]22'32'' N./
123[deg]59'34'' W.); Cox Canyon Creek (43[deg]16'13'' N./
124[deg]18'52'' W.); Daniels Creek (43[deg]21'10'' N./124[deg]5'29''
W.); Davis Creek (43[deg]17'29'' N./124[deg]14'30'' W.); Day Creek
(43[deg]18'59'' N./124[deg]18'24'' W.); Delmar Creek (43[deg]15'24''
N./124[deg]13'52'' W.); Deton Creek (43[deg]24'15'' N./124[deg]3'53''
W.); Elliot Creek (43[deg]17'45'' N./124[deg]17'45'' W.); Goat Creek
(43[deg]15'42'' N./124[deg]12'58'' W.); Haynes Inlet (43[deg]27'56''
N./124[deg]11'22'' W.); Hayward Creek (43[deg]19'7'' N./124[deg]19'59''
W.); Joe Ney Slough (43[deg]20'12'' N./124[deg]17'39'' W.); John B
Creek (43[deg]16'59'' N./124[deg]18'27'' W.); Kentuck Slough
(43[deg]25'19'' N./124[deg]11'19'' W.); Larson Slough (43[deg]27'43''
N./124[deg]11'38'' W.); Lillian Creek (43[deg]21'41'' N./124[deg]8'41''
W.); Mart Davis Creek (43[deg]22'58'' N./124[deg]5'38'' W.); Matson
Creek (43[deg]18'27'' N./124[deg]8'16'' W.); Millicoma River, East Fork
(43[deg]25'50'' N./124[deg]1'2'' W.); Millicoma River, West Fork
(43[deg]25'48'' N./124[deg]2'50'' W.); Noble Creek (43[deg]15'16'' N./
124[deg]12'54'' W.); North Slough (43[deg]29'26'' N./124[deg]13'14''
W.); Pony Creek (43[deg]24'6'' N./124[deg]13'55'' W.); Seelander Creek
(43[deg]17'15'' N./124[deg]8'41'' W.); Shinglehouse Slough
(43[deg]19'4'' N./124[deg]13'14'' W.); Stock Slough (43[deg]19'58'' N./
124[deg]8'22'' W.); Talbot Creek (43[deg]17'1'' N./124[deg]17'49'' W.);
Theodore Johnson Creek (43[deg]16'16'' N./124[deg]19'22'' W.); Unnamed
Creek (43[deg]17'24'' N./124[deg]17'56'' W.); Unnamed Creek
(43[deg]18'27'' N./124[deg]7'55'' W.); Unnamed Creek (43[deg]21'12''
N./124[deg]9'17'' W.); Vogel Creek (43[deg]22'10'' N./124[deg]8'49''
W.); Wasson Creek (43[deg]16'3'' N./124[deg]19'23'' W.); Willanch
Slough (43[deg]24'5'' N./124[deg]11'27'' W.); Wilson Creek
(43[deg]16'51'' N./124[deg]9'2'' W.); Winchester Creek (43[deg]15'49''
N./124[deg]19'10'' W.).
(iv) Winchester Bay, Oregon. All tidally influenced areas of
Winchester Bay up to the elevation of mean higher high water,
including, but not limited to, areas upstream to the head of tide
endpoint in: Brainard Creek (43[deg]44'46'' N./124[deg]1'39'' W.);
Butler Creek (43[deg]42'50'' N./124[deg]3'0'' W.); Eslick Creek
(43[deg]47'46'' N./123[deg]58'40'' W.); Frantz Creek (43[deg]44'50''
N./124[deg]5'25'' W.); Hudson Slough (43[deg]44'56'' N./124[deg]4'43''
W.); Joyce Creek (43[deg]45'32'' N./124[deg]1'49'' W.); Noel Creek
(43[deg]46'21'' N./124[deg]0'6'' W.); Oar Creek (43[deg]40'26'' N./
124[deg]3'41'' W.); Otter Creek (43[deg]43'28'' N./124[deg]0'4'' W.);
Providence Creek (43[deg]43'13'' N./124[deg]7'44'' W.); Scholfield
Creek (43[deg]40'36'' N./124[deg]5'38'' W.); Silver Creek
(43[deg]40'37'' N./124[deg]9'21'' W.); Smith River (43[deg]47'48'' N./
123[deg]53'3'' W.); Smith River, North Fork (43[deg]48'17'' N./
123[deg]55'59'' W.); Umpqua River (43[deg]40'3'' N./123[deg]48'32''
W.); Unnamed Creek (43[deg]40'6'' N./124[deg]10'44'' W.); Unnamed Creek
(43[deg]40'14'' N./124[deg]9'26'' W.); Winchester Creek (43[deg]40'20''
N./124[deg]8'49'' W.).
(v) Yaquina Bay, Oregon. All tidally influenced areas of Yaquina
Bay up to the elevation of mean higher high water, including, but not
limited to, areas upstream to the head of tide endpoint in: Babcock
Creek (44[deg]35'33'' N./123[deg]55'42'' W.); Big Elk Creek
(44[deg]35'23'' N./123[deg]50'43'' W.); Boone Slough
[[Page 52347]]
(44[deg]35'5'' N./123[deg]57'50'' W.); Depot Creek (44[deg]38'30'' N./
123[deg]56'54'' W.); Flesher Slough (44[deg]34'0'' N./123[deg]58'53''
W.); Johnson Slough (44[deg]34'60'' N./123[deg]59'10'' W.); King Slough
(44[deg]35'35'' N./124[deg]1'55'' W.); McCaffery Slough (44[deg]33'56''
N./124[deg]1'10'' W.); Mill Creek (44[deg]35'7'' N./123[deg]53'57''
W.); Montgomery Creek (44[deg]35'8'' N./123[deg]56'18'' W.); Nute
Slough (44[deg]35'19'' N./123[deg]57'30'' W.); Olalla Creek
(44[deg]36'48'' N./123[deg]55'30'' W.); Parker Slough (44[deg]35'21''
N./124[deg]0'50'' W.); Poole Slough (44[deg]33'27'' N./123[deg]58'46''
W.); Yaquina River (44[deg]39'4'' N./123[deg]51'26'' W.).
(vi) Nehalem Bay, Oregon. All tidally influenced areas of Yaquina
Bay up to the elevation of mean higher high water, including, but not
limited to, areas upstream to the head of tide endpoint in: Alder Creek
(45[deg]42'52'' N./123[deg]54'12'' W.); Anderson Creek (45[deg]44'25''
N./123[deg]52'26'' W.); Coal Creek (45[deg]44'49'' N./123[deg]51'57''
W.); Foley Creek (45[deg]41'48'' N./123[deg]50'53'' W.); Gallagher
Slough (45[deg]42'4'' N./123[deg]52'50'' W.); Messhouse Creek
(45[deg]40'0'' N./123[deg]55'32'' W.); Nehalem River (45[deg]41'48''
N./123[deg]49'31'' W.); Nehalem River, North Fork (45[deg]47'11'' N./
123[deg]49'19'' W.); Unnamed Creek (45[deg]44'35'' N./123[deg]51'53''
W.); Unnamed Creek (45[deg]44'53'' N./123[deg]51'12'' W.); Unnamed
Creek (45[deg]45'6'' N./123[deg]50'56'' W.); Unnamed Creek
(45[deg]44'11'' N./123[deg]51'40'' W.); Unnamed Creek (45[deg]44'7''
N./123[deg]51'40'' W.); Unnamed Creek (45[deg]43'44'' N./
123[deg]52'35'' W.).
(vii) Lower Columbia River estuary, Washington and Oregon. All
tidally influenced areas of the lower Columbia River estuary from the
mouth upstream to river kilometer 74, up to the elevation of mean
higher high water, including, but not limited to, areas upstream to the
head of tide endpoint in: Bear Creek (46[deg]10'0'' N./123[deg]40'6''
W.); Big Creek (46[deg]10'33'' N./123[deg]35'30'' W.); Blind Slough/
Gnat Creek (46[deg]10'47'' N./123[deg]31'45'' W.); Chinook River
(46[deg]18'14'' N./123[deg]58'1'' W.); Deep Creek (46[deg]19'3'' N./
123[deg]42'23'' W.); Driscol Slough (46[deg]8'35'' N./123[deg]23'44''
W.); Ferris Creek (46[deg]10'5'' N./123[deg]39'8'' W.); Grays River
(46[deg]21'34'' N./123[deg]35'5'' W.); Hunt Creek (46[deg]11'46'' N./
123[deg]26'30'' W.); Jim Crow Creek (46[deg]16'19'' N./123[deg]33'26''
W.); John Day River (46[deg]9'13'' N./123[deg]43'16'' W.); John Day
River (46[deg]9'10'' N./123[deg]43'27'' W.); Klaskanine River
(46[deg]5'33'' N./123[deg]44'52'' W.); Lewis and Clark River
(46[deg]5'52'' N./123[deg]51'4'' W.); Marys Creek (46[deg]10'12'' N./
123[deg]40'17'' W.); Seal Slough (46[deg]19'20'' N./123[deg]40'15''
W.); Sisson Creek (46[deg]18'25'' N./123[deg]43'46'' W.); Skamokawa
Creek (46[deg]19'11'' N./123[deg]27'20'' W.); Skipanon River
(46[deg]9'31'' N./123[deg]55'34'' W.); Wallacut River (46[deg]19'28''
N./123[deg]59'11'' W.); Wallooskee River (46[deg]7'7'' N./
123[deg]46'25'' W.); Westport Slough/Clatskanie River (46[deg]8'4'' N./
123[deg]13'31'' W.); Youngs River (46[deg]4'11'' N./123[deg]47'9'' W.).
(viii) Willapa Bay, Washington. All tidally influenced areas of
Willapa Bay up to the elevation of mean higher high water, including,
but not limited to, areas upstream to the head of tide endpoint in:
Bear River (46[deg]20'5'' N./123[deg]56'8'' W.); Bone River
(46[deg]39'29'' N./123[deg]54'2'' W.); Cedar River (46[deg]45'37'' N./
124[deg]0'3'' W.); Naselle River (46[deg]22'32'' N./123[deg]49'19''
W.); Middle Nemah River (46[deg]28'42'' N./123[deg]51'13'' W.); North
Nemah River (46[deg]30'56'' N./123[deg]52'27'' W.); South Nemah River
(46[deg]28'37'' N./123[deg]53'15'' W.); Niawiakum River (46[deg]36'39''
N./123[deg]53'34'' W.); North River (46[deg]48'51'' N./123[deg]50'54''
W.); Palix River, Middle Fork (46[deg]35'46'' N./123[deg]52'29'' W.);
Palix River, North Fork (46[deg]36'10'' N./123[deg]52'26'' W.); Palix
River, South Fork (46[deg]34'30'' N./123[deg]53'42'' W.); Stuart Slough
(46[deg]41'9'' N./123[deg]52'16'' W.); Willapa River (46[deg]38'50''
N./123[deg]38'50'' W.).
(ix) Grays Harbor, Washington. All tidally influenced areas of
Grays Harbor up to the elevation of mean higher high water, including,
but not limited to, areas upstream to the head of tide endpoint in:
Andrews Creek (46[deg]49'23'' N./124[deg]1'23'' W.); Beaver Creek
(46[deg]54'20'' N./123[deg]58'53'' W.); Campbell Creek (46[deg]56'9''
N./123[deg]53'12'' W.); Campbell Slough (47[deg]2'45'' N./
124[deg]3'40'' W.); Chapin Creek (46[deg]56'18'' N./123[deg]52'30''
W.); Charley Creek (46[deg]56'55'' N./123[deg]49'53'' W.); Chehalis
River (46[deg]58'16'' N./123[deg]35'38'' W.); Chenois Creek
(47[deg]2'36'' N./124[deg]0'54'' W.); Elk River (46[deg]50'8'' N./
123[deg]59'8'' W.); Gillis Slough (47[deg]2'34'' N./124[deg]2'29'' W.);
Grass Creek (47[deg]1'41'' N./124[deg]0'40'' W.); Hoquiam River
(47[deg]3'3'' N./123[deg]55'34'' W.); Hoquiam River, East Fork
(47[deg]3'7'' N./123[deg]51'25'' W.); Humptulips River (47[deg]5'42''
N./124[deg]3'34'' W.); Indian Creek (46[deg]55'55'' N./123[deg]53'47''
W.); Jessie Slough (47[deg]3'23'' N./124[deg]3'0'' W.); Johns River
(46[deg]52'28'' N./123[deg]57'2'' W.); Newskah Creek (46[deg]56'26''
N./123[deg]50'58'' W.); O'Leary Creek (46[deg]54'51'' N./
123[deg]57'24'' W.); Stafford Creek (46[deg]55'51'' N./123[deg]54'28''
W.); Wishkah River (47[deg]2'39'' N./123[deg]47'20'' W.); Wynoochee
River (46[deg]58'19'' N./123[deg]36'57'' W.).
(b) Primary constituent elements. The primary constituent elements
essential for the conservation of the Southern DPS of green sturgeon
are:
(1) For freshwater riverine systems:
(i) Food resources. Abundant prey items for larval, juvenile,
subadult, and adult life stages.
(ii) Substrate type or size (i.e., structural features of
substrates). Substrates suitable for egg deposition and development
(e.g., bedrock sills and shelves, cobble and gravel, or hard clean
sand, with interstices or irregular surfaces to ``collect'' eggs and
provide protection from predators, and free of excessive silt and
debris that could smother eggs during incubation), larval development
(e.g., substrates with interstices or voids providing refuge from
predators and from high flow conditions), and subadults and adults
(e.g., substrates for holding and spawning).
(iii) Water flow. A flow regime (i.e., the magnitude, frequency,
duration, seasonality, and rate-of-change of fresh water discharge over
time) necessary for normal behavior, growth, and survival of all life
stages.
(iv) Water quality. Water quality, including temperature, salinity,
oxygen content, and other chemical characteristics, necessary for
normal behavior, growth, and viability of all life stages.
(v) Migratory corridor. A migratory pathway necessary for the safe
and timely passage of Southern DPS fish within riverine habitats and
between riverine and estuarine habitats (e.g., an unobstructed river or
dammed river that still allows for safe and timely passage).
(vi) Depth. Deep (>=5 m) holding pools for both upstream and
downstream holding of adult or subadult fish, with adequate water
quality and flow to maintain the physiological needs of the holding
adult or subadult fish.
(vii) Sediment quality. Sediment quality (i.e., chemical
characteristics) necessary for normal behavior, growth, and viability
of all life stages.
(2) For estuarine habitats:
(i) Food resources. Abundant prey items within estuarine habitats
and substrates for juvenile, subadult, and adult life stages.
(ii) Water flow. Within bays and estuaries adjacent to the
Sacramento River (i.e., the Sacramento-San Joaquin Delta and the
Suisun, San Pablo, and San Francisco bays), sufficient flow into the
bay and estuary to allow adults to successfully orient to the incoming
flow and migrate upstream to spawning grounds.
(iii) Water quality. Water quality, including temperature,
salinity, oxygen content, and other chemical characteristics, necessary
for normal behavior, growth, and viability of all life stages.
[[Page 52348]]
(iv) Migratory corridor. A migratory pathway necessary for the safe
and timely passage of Southern DPS fish within estuarine habitats and
between estuarine and riverine or marine habitats.
(v) Depth. A diversity of depths necessary for shelter, foraging,
and migration of juvenile, subadult, and adult life stages.
(vi) Sediment quality. Sediment quality (i.e., chemical
characteristics) necessary for normal behavior, growth, and viability
of all life stages.
(3) For nearshore coastal marine areas:
(i) Migratory corridor. A migratory pathway necessary for the safe
and timely passage of Southern DPS fish within marine and between
estuarine and marine habitats.
(ii) Water quality. Nearshore marine waters with adequate dissolved
oxygen levels and acceptably low levels of contaminants (e.g.,
pesticides, organochlorines, elevated levels of heavy metals) that may
disrupt the normal behavior, growth, and viability of subadult and
adult green sturgeon.
(iii) Food resources. Abundant prey items for subadults and adults,
which may include benthic invertebrates and fishes.
(c) Sites owned or controlled by the Department of Defense.
Critical habitat does not include the following areas owned or
controlled by the Department of Defense, or designated for its use, in
the States of California, Oregon, and Washington:
(1) Mare Island U.S. Army Reserve Center, San Pablo Bay, CA;
(2) Strait of Juan de Fuca naval air-to-surface weapon range,
restricted area, WA;
(3) Strait of Juan de Fuca and Whidbey Island naval restricted
area, WA;
(4) Admiralty Inlet naval restricted area, Strait of Juan de Fuca,
WA; and
(5) Navy 3 operating area, Strait of Juan de Fuca, WA.
(d) Indian lands. Critical habitat does not include any Indian
lands of the following Federally-recognized Tribes in the States of
California, Oregon, and Washington:
(1) Cachil DeHe Band of Wintun Indians of the Colusa Indian
Community, California;
(2) Cher-Ae Heights Trinidad Rancheria, California;
(3) Confederated Tribes of the Coos, Lower Umpqua, and Siuslaw,
Oregon;
(4) Coquille Indian Tribe, Oregon;
(5) Hoh Tribe, Washington;
(6) Jamestown S'Klallam Tribe, Washington;
(7) Lower Elwha Tribe, Washington;
(8) Makah Tribe, Washington;
(9) Quileute Tribe, Washington;
(10) Quinault Tribe, Washington;
(11) Shoalwater Bay Tribe, Washington;
(12) Wiyot Tribe, California; and
(13) Yurok Tribe, California.
(e) Overview maps of final critical habitat for the Southern DPS of
green sturgeon follow:
BILLING CODE 3510-22-P
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[FR Doc. E9-24067 Filed 10-8-09; 8:45 am]
BILLING CODE 3510-22-C