[Federal Register Volume 76, Number 3 (Wednesday, January 5, 2011)]
[Proposed Rules]
[Pages 515-536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-33314]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 101027536-0540-02]
RIN 0648-BA38
Endangered and Threatened Species, Designation of Critical
Habitat for Southern Distinct Population Segment of Eulachon
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comment.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to
designate critical habitat for the southern Distinct Population Segment
(DPS) of Pacific eulachon (Thaleichthys pacificus), which was recently
listed as threatened under the Endangered Species Act (ESA). We have
proposed 12 specific areas for designation as critical habitat within
the states of California, Oregon, and Washington. The proposed areas
are a combination of freshwater creeks and rivers and their associated
estuaries which comprise approximately 470 km (292 mi) of habitat.
Three particular areas are proposed for exclusion after evaluating the
impacts and benefits associated with tribal land ownership and
management by Indian tribes, but no areas are proposed for exclusion
based on economic impacts.
We are soliciting comments from the public on all aspects of the
proposal, including information on the economic, national security, and
other relevant impacts of the proposed designation, as well as the
benefits to the southern DPS of eulachon from designation. We will
consider additional information received prior to making a final
designation.
DATES: Comments on this proposed rule must be received by close of
business on March 7, 2011. A public meeting has been scheduled for
January 26, 2011 from 3:30-5:30 p.m. and 6-8 p.m. at the Doubletree
Hotel, 1000 NE Multnomah Street, Portland, OR 97232. Requests for
additional public hearings should be made in writing by February 22,
2011.
ADDRESSES: You may submit comments on the proposed rule, identified by
RIN 0648-BA38, by any one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
Fax: 503-230-5441, Attn: Marc Romano.
Mail: Chief, Protected Resources Division, Northwest
Region, National Marine Fisheries Service, 1201 Lloyd Blvd, Suite 1201,
Portland, OR 97232.
Instructions: Comments will be posted for public viewing after the
comment period has closed. All comments received are a part of the
public record and will generally be posted to http://www.regulations.gov without change. NMFS may elect not to post comments
that contain obscene or threatening content. All Personal Identifying
Information (for example, name, address, etc.) voluntarily submitted by
the commenter may be publicly accessible. Do not submit Confidential
Business Information or otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). You may submit attachments to
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF
file formats only. The proposed rule, list of references and supporting
documents (including the Draft Eulachon Biological Report (NMFS 2010b);
the Draft Eulachon Economic Analysis (NMFS 2010c); and, the Draft
Eulachon Section 4(b)(2) Report (NMFS, 2010d)) are also available
electronically at http://www.nwr.noaa.gov/.
FOR FURTHER INFORMATION CONTACT: Marc Romano, NMFS, Northwest Region,
Protected Resources Division, at the address above or at 503-231-2200,
or Jim Simondet, NMFS, Southwest Region, Protected Resources Division,
Arcata, CA 707-825-5171, or Dwayne Meadows, NMFS, Office of Protected
Resources, Silver Spring, MD 301-713-1401.
SUPPLEMENTARY INFORMATION:
Background
On March 18, 2010, we listed the southern DPS of Pacific eulachon
as threatened under the ESA (75 FR 13012). During the public comment
period on the proposed rule to list the southern DPS of eulachon, we
requested and received some information on the quality and extent of
eulachon freshwater and estuarine habitat (73 FR 13185; March 12,
2008). However, at the time of listing, we concluded that critical
habitat was not determinable because sufficient information was not
available to: (1) Determine the geographical area occupied by the
species; (2) identify the physical and biological features essential to
conservation; and (3) assess the impacts of a designation. During
promulgation of the final rule to list eulachon, we were working to
compile the best available information necessary to consider a critical
habitat designation. We have now researched, reviewed and summarized
this best available information on eulachon, including recent
biological surveys and reports, peer-reviewed literature, the NMFS
status report for eulachon (NMFS 2010a), the proposed rule to list
eulachon (74 FR 10857; March 13, 2009), and the final listing
determination for eulachon (75 FR 13012; March 18, 2010) and had
discussions with and considered recommendations by State, Federal, and
tribal biologists familiar with eulachon. We used this information to
identify the geographical area occupied, specific areas that may
qualify as critical habitat for the southern DPS, as well as potential
impacts associated with the designation and proposed exclusions.
We considered various alternatives to the critical habitat
designation for
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southern DPS eulachon. The alternative of not designating critical
habitat for southern DPS eulachon 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
southern DPS eulachon. The alternative of designating all of the areas
considered for designation (i.e., no areas excluded) was also
considered and rejected because, for three areas, the benefits of
exclusion outweighed the benefits of designation, 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 of the areas considered would be $500,000
(discounted at 7 percent) or $520,000 (discounted at 3 percent).
An alternative to designating critical habitat within all of the
areas considered for designation is the designation of critical habitat
within a subset of these areas. 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 southern DPS eulachon 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 areas
considered for designation would reduce the total impacts of
designation. The determination of which units to exclude depends on
NMFS' ESA section 4(b)(2) analysis, which is conducted for each area
and described in detail in the draft ESA 4(b)(2) report (NMFS, 2010b).
Under the preferred alternative we propose to exclude three of the 14
areas considered (we propose to exclude two of the areas completely and
part of the third area). The total estimated economic impact associated
with this preferred alternative is $460,500 (discounted at 7 percent)
or $479,000 (discounted at 3 percent). We determined that the exclusion
of these areas would not significantly impede the conservation of
southern DPS eulachon nor result in extinction of the species. We
selected this as the preferred alternative because it results in a
critical habitat designation that provides for the conservation of
southern DPS eulachon while reducing other relevant impacts. This
alternative also meets the requirements under the ESA and our joint
NMFS-U.S. Fish and Wildlife Service (USFWS) regulations concerning
critical habitat.
Section 3 of the ESA defines critical habitat as ``(i) the 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.'' Section 3 of the ESA (16 U.S.C. 1532(3)) also defines the
terms ``conserve,'' ``conserving,'' and ``conservation'' to mean: ``to
use, and 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 chapter are no longer
necessary.'' Critical habitat cannot be designated in areas outside of
U.S. jurisdiction (50 CFR 424.12h). Section 4 of the ESA requires that,
before designating critical habitat, we consider economic impacts,
impacts on national security, and other relevant impacts of specifying
any particular area as critical habitat. The Secretary of Commerce
(Secretary) may exclude any area from critical habitat if he determines
that the benefits of exclusion outweigh the benefits of designation,
unless excluding an area from critical habitat will result in the
extinction of the species concerned. Once critical habitat is
designated, section 7(a)(2) of the ESA requires that each Federal
agency, in consultation with NMFS and with our assistance, ensure that
any action it authorizes, funds, or carries out is not likely to result
in the destruction or adverse modification of critical habitat. This
requirement is additional to the section 7 requirement that Federal
agencies ensure their actions do not jeopardize the continued existence
of listed species.
Eulachon Natural History
Eulachon are an anadromous fish, meaning adults migrate from the
ocean to spawn in freshwater creeks and rivers where their offspring
hatch and migrate back to the ocean to forage until maturity. Although
they spend 95 to 98 percent of their lives at sea (Hay and McCarter
2000), little is known concerning the saltwater existence of eulachon.
The species is endemic to the northeastern Pacific Ocean, ranging from
northern California to the southeastern Bering Sea in Bristol Bay,
Alaska (McAllister, 1963; Scott and Crossman, 1973; Willson et al.,
2006). This distribution coincides closely with the distribution of the
coastal temperate rain forest ecosystem on the west coast of North
America (with the exception of populations spawning west of Cook Inlet,
Alaska).
In the portion of the species' range that lies south of the U.S.-
Canada border, most eulachon production originates in the Columbia
River basin. Within the Columbia River basin, the major and most
consistent spawning runs return to the mainstem of the Columbia River
and the Cowlitz River. Spawning also occurs in other tributaries to the
Columbia River, including the Grays, Elochoman, Kalama, Lewis, and
Sandy Rivers (WDFW and ODFW, 2001). Historically, the only other large
river basins in the contiguous United States where large, consistent
spawning runs of eulachon have been documented are the Klamath River in
northern California and the Umpqua River in Oregon. Eulachon have been
found in numerous coastal rivers in northern California (including the
Mad River and Redwood Creek), Oregon (including Tenmile Creek south of
Yachats, OR) and Washington (including the Quinault and Elwha Rivers)
(Emmett et al., 1991; Willson et al., 2006).
Major eulachon production areas in Canada are the Fraser and Nass
rivers (Willson et al., 2006). Numerous other river systems in central
British Columbia and Alaska have consistent yearly runs of eulachon and
historically supported significant levels of harvest (Willson et al.,
2006; NMFS, 2010a). Many sources note that runs occasionally occur in
other rivers and streams, although these tend to be sporadic, appearing
in some years but not others, and appearing only rarely in some river
systems (Hay and McCarter, 2000; Willson et al., 2006).
Early Life History and Maturation
Eulachon eggs can vary considerably in size but typically are
approximately 1 mm (0.04 in) in diameter and average about 43 mg (0.002
oz) in weight (Hay and McCarter, 2000). Eggs are enclosed in a double
membrane; after fertilization in the water, the outer membrane breaks
and turns inside out, creating a sticky stalk which acts to anchor the
eggs to
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the substrate (Hart and McHugh, 1944; Hay and McCarter, 2000). Eulachon
eggs hatch in 20 to 40 days with incubation time dependent on water
temperature (Howell, 2001). Shortly after hatching, the larvae are
carried downstream and dispersed by estuarine, tidal, and ocean
currents. Larval eulachon may be retained in low salinity, surface
waters of estuaries for several weeks or longer (Hay and McCarter,
2000) before entering the ocean. Similar to salmon, juvenile eulachon
are thought to imprint on the chemical signature of their natal river
basin. However, because juvenile eulachon spend less time in freshwater
environments than do juvenile salmon, researchers believe that this
short freshwater residence time may cause returning eulachon to stray
between spawning sites at higher rates than salmon (Hay and McCarter,
2000).
Once juvenile eulachon enter the ocean, they move from shallow
nearshore areas to deeper areas over the continental shelf. Larvae and
young juveniles become widely distributed in coastal waters, where they
are typically found near the ocean bottom in waters 20 to 150 m deep
(66 to 292 ft) (Hay and McCarter, 2000) and sometimes as deep as 182 m
(597 ft) (Barraclough, 1964). There is currently little information
available about eulachon movements in nearshore marine areas and the
open ocean. However, eulachon occur as bycatch in the ocean shrimp
(Pandalus jordani) fishery (Hay et al., 1999; Olsen et al., 2000;
NWFSC, 2008; Hannah and Jones, 2009), which seems to indicate that the
distribution of these organisms may overlap in the ocean.
Spawning Behavior
Eulachon typically spend several years in salt water before
returning to fresh water to spawn from late winter through early
summer. Eulachon are semelparous, meaning that they spawn once and then
die. Spawning grounds are typically in the lower reaches of larger
rivers fed by snowmelt (Hay and McCarter, 2000). Willson et al. (2006)
concluded that the age distribution of eulachon in a spawning run
varies considerably, but typically consists of fish that are 2 to 5
years old. Eulachon eggs commonly adhere to sand (Langer et al., 1977)
or pea-sized gravel (Smith and Saalfeld, 1955), though eggs have been
found on silt, gravel to cobble sized rock, and organic detritus (Smith
and Saalfeld 1955, Langer et al., 1977, Lewis et al., 2002). Eggs found
in areas of silt or organic debris reportedly suffer much higher
mortality than those found in sand or gravel (Langer et al., 1977).
In many rivers, spawning is limited to the part of the river that
is influenced by tides (Lewis et al., 2002), but some exceptions exist.
In the Berners Bay system of Alaska, the greatest abundance of eulachon
are observed in tidally-influenced reaches, but some fish ascend well
beyond the tidal influence (Willson et al., 2006). In the Kemano River,
Canada, water velocity greater than 0.4 meters/second begins to limit
the upstream movements of eulachon (Lewis et al., 2002).
Entry into the spawning rivers appears to be related to water
temperature and the occurrence of high tides (Ricker et al., 1954;
Smith and Saalfeld, 1955; Spangler, 2002). Spawning generally occurs in
January, February, and March in the Columbia River, the Klamath River,
and the coastal rivers of Washington and Oregon, and April and May in
the Fraser River (NMFS, 2010a). Eulachon runs in central and northern
British Columbia typically occur in late February and March or late
March and early April. Attempts to characterize eulachon run timing are
complicated by marked annual variation in timing. Willson et al. (2006)
give several examples of spawning run timing varying by a month or more
in rivers in British Columbia and Alaska. Climate change, especially in
regards to ocean conditions, is considered a significant threat to
eulachon and their habitats and may also be a factor in run timing
(NMFS, 2010a). Most eulachon rivers are fed by extensive snowmelt or
glacial runoff, so elevated temperatures and changes in snow pack and
the timing and intensity of stream flows will likely impact eulachon
run timing. There are already indications, perhaps in response to
warming conditions and/or altered stream flow timing, that adult
eulachon are returning earlier in the season to several rivers within
the range of the southern DPS (Moody, 2008).
Water temperature at the time of spawning varies across the
distribution of the species. Although spawning generally occurs at
temperatures from 4 to 7 [deg]C (39 to 45 [deg]F) in the Cowlitz River
(Smith and Saalfeld, 1955), and at a mean temperature of 3.1 [deg]C
(37.6 [deg]F) in the Kemano and Wahoo Rivers, peak eulachon runs occur
at noticeably colder temperatures (between 0 and 2 [deg]C [32 and 36
[deg]F]) in the Nass River. The Nass River run is also earlier than the
eulachon run that occurs in the Fraser River, which typically has
warmer temperatures than the Nass River (Langer et al., 1977).
Prey
Eulachon adults feed on zooplankton, chiefly eating crustaceans
such as copepods and euphausiids, including Thysanoessa spp. (Hay and
McCarter, 2000; WDFW and ODFW, 2001), unidentified malacostracans
(Sturdevant 1999), and cumaceans (Smith and Saalfeld, 1955). Eulachon
larvae and juveniles eat a variety of prey items, including
phytoplankton, copepods, copepod eggs, mysids, barnacle larvae, and
worm larvae (WDFW and ODFW 2001). Adults and juveniles commonly forage
at moderate depths (20-150 m [66-292 ft]) in nearshore marine waters
(Hay and McCarter 2000). Eulachon adults do not feed during spawning
(McHugh 1939, Hart and McHugh 1944).
Methods and Criteria Used To Identify Critical Habitat
In the following sections, we describe the relevant definitions and
requirements in the ESA and our implementing regulations and the key
methods and criteria used to prepare this proposed critical habitat
designation. In accordance with section 4(b)(2) of the ESA and our
implementing regulations (50 CFR 424.12), this proposed rule is based
on the best scientific information available concerning the southern
DPS's 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 eulachon, including recent biological
surveys and reports, peer-reviewed literature, NMFS status reviews for
southern DPS eulachon (NMFS 2010), the proposed rule to list eulachon
(74 FR 10857; March 13, 2009), and the final listing determination for
eulachon (75 FR 13012; March 18, 2010). All of the information gathered
to create this proposed rule has been collated and analyzed in three
supporting documents: The Draft Eulachon Biological Report (NMFS
2010b); the Draft Eulachon Economic Analysis (NMFS 2010c); and, the
Draft Eulachon Section 4(b)(2) Report (NMFS 2010d).
We used this information to identify specific areas that may
qualify as critical habitat for the southern DPS. We followed a five-
step process in order to identify these specific areas: (1) Determine
the geographical area occupied by the species, (2) identify physical or
biological habitat features essential to the conservation of the
species, (3) delineate specific areas within the geographical area
occupied by the species on which are found the physical or biological
features, (4) determine whether the features in a specific area may
require special management considerations or protections, and (5)
determine whether any unoccupied areas are essential for conservation.
Our evaluation and
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conclusions are described in detail in the following sections.
Geographical Area Occupied by the Species
We relied on the best available data from commercial and
recreational harvest, published literature, field observations
(including river sampling with a variety of net types and research
trawls), opportunistic sightings, and anecdotal information to
determine the geographical area occupied by the southern DPS of
eulachon at the time it was listed. The southern DPS ranges from the
Skeena River in British Columbia, Canada, to the Mad River in
California (NMFS 2010a). We cannot designate areas outside U.S.
jurisdiction as critical habitat (see above). Thus, the geographical
area under consideration for this designation is limited to areas under
the jurisdiction of the United States, south of the international
border with Canada, to the Mad River in California. At the time of
listing, we had information indicating that the geographical area
occupied consists of at least 42 river systems between the
international border and the Mad River (NMFS, 2010b). Although eulachon
presence has been documented in these systems, most river systems have
limited or irregular sampling for eulachon and many other river systems
within the range of the DPS have never been sampled. In addition, given
the highly migratory nature of eulachon and the lack of published
records, we do not know how far offshore southern DPS eulachon are
distributed and thus how far offshore the geographical area occupied by
the species extends.
Physical or Biological Features Essential for Conservation
Joint NMFS-U.S. Fish and Wildlife Service (USFWS) regulations at 50
CFR 424.12(b) state that in 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''.
These 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.''
Based on the best available scientific information, we developed a
list of physical and biological features essential to the conservation
of eulachon and relevant to determining whether occupied areas are
consistent with the above regulations and the ESA section (3)(5)(A)
definition of ``critical habitat.'' The physical or biological features
essential to the conservation of the southern DPS fall into three major
categories reflecting key life history phases of eulachon:
(1) Freshwater spawning and incubation sites with water flow,
quality and temperature conditions and substrate supporting spawning
and incubation. These features are essential to conservation because
without them the species cannot successfully spawn and produce
offspring.
(2) Freshwater and estuarine migration corridors free of
obstruction and with water flow, quality and temperature conditions
supporting larval and adult mobility, and with abundant prey items
supporting larval feeding after the yolk sac is depleted. These
features are essential to conservation because they allow adult fish to
swim upstream to reach spawning areas and they allow larval fish to
proceed downstream and reach the ocean.
(3) Nearshore and offshore marine foraging habitat with water
quality and available prey, supporting juveniles and adult survival.
Juveniles eat phytoplankton, copepod eggs, copepods and other small
zooplanktons (including euphausiids; Barraclough, 1964), and adults eat
euphausiids and copepods (Hart, 1973). These features are essential to
conservation because they allow juvenile fish to survive, grow, and
reach maturity, and they allow adult fish to survive and return to
freshwater systems to spawn.
The components of the freshwater spawning and incubation essential
features include:
Flow: A flow regime (i.e., the magnitude, frequency, duration,
seasonality, and rate-of-change of freshwater discharge over time) that
supports spawning, and survival of all life stages. Most spawning
rivers experience a spring freshet characteristic of rivers draining
large snow packs or glaciers (Hay and McCarter, 2000). In general,
eulachon spawn at lower water levels before spring freshets (Lewis et
al., 2002). In the Kemano River, Canada, water velocity greater than
0.4 m/s (1.3 ft/s) begins to limit upstream movements (Lewis et al.,
2002). Sufficient flow may also be needed to flush silt and debris from
spawning substrate surfaces to prevent suffocation of developing eggs.
Water Quality: Water quality suitable for spawning and viability of
all eulachon life stages. Sublethal concentrations of contaminants
affect the survival of aquatic species by increasing stress,
predisposing organisms to disease, delaying development, and disrupting
physiological processes, including reproduction. Adult eulachon can
take up and store pollutants from their spawning rivers, despite the
fact that they do not feed in fresh water and remain there only a few
weeks (Rogers et al., 1990; WDFW and ODFW, 2001). Eulachon have also
been shown to avoid polluted waters when possible (Smith and Saalfeld
1955).
Water Temperature: Suitable water temperatures, within natural
ranges, in eulachon spawning reaches. Water temperature between 4
[deg]C and 10 [deg]C (39 [deg]F and 50 [deg]F) in the Columbia River is
preferred for spawning (WDFW and ODFW, 2001) although temperatures
during spawning can be much colder in northern rivers (e.g., 0 [deg]C
to 2 [deg]C [32 [deg]F to 36 [deg]F] in the Nass River; Willson et al.,
2006). High water temperatures can lead to adult mortality and spawning
failure (Blahm and McConnell, 1971).
Substrate: Spawning substrates for eulachon egg deposition and
development. Spawning substrates typically consist of silt, sand,
gravel, cobble, or detritus (NMFS 2010a). However, pea sized gravel
(Smith and Saalfeld, 1955) and coarse sand (Langer et al., 1977) are
the most commonly used. Water depth for spawning can range from 8 cm (3
in) to at least 7.6 m (25 ft) (Willson et al., 2006).
The components of the freshwater and estuarine migration corridor
essential feature include:
Migratory Corridor: Safe and unobstructed migratory pathways for
eulachon adults to pass from the ocean through estuarine areas to
riverine habitats in order to spawn, and for larval eulachon to access
rearing habitats within the estuaries and juvenile and adults to access
habitats in the ocean. Lower reaches of larger river systems (e.g., the
Columbia River) are used as migration routes to upriver or tributary
spawning areas. Out-migrating larval eulachon are distributed
throughout the water column in some rivers (e.g., the Fraser River) but
are more abundant in mid-water and bottom portions of the water column
in others (e.g., the Columbia River; Howell et al., 2001).
Flow: A flow regime (i.e., the magnitude, frequency, duration,
seasonality, and rate-of-change of
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freshwater discharge over time) that supports spawning migration of
adults and outmigration of larval eulachon from spawning sites. Most
eulachon spawning rivers experience a spring freshet (Hay and McCarter,
2000) that may influence the timing of spawning adult migration. In
general, eulachon spawn at low water levels before spring freshets
(Lewis et al., 2002). In the Kemano River water velocity greater than
0.4 m/s (1.3 ft/s) begins to limit upstream movements (Lewis et al.,
2002).
Water Quality: Water quality suitable for survival and migration of
spawning adults and larval eulachon. Adult eulachon can take up and
store pollutants from their spawning rivers, despite the fact that they
do not feed in fresh water and remain there only a few weeks (Rogers et
al., 1990; WDFW and ODFW, 2001). Eulachon avoid polluted waters when
possible (Smith and Saalfeld, 1955).
Water Temperature: Water temperature suitable for survival and
migration. Eulachon run timing may be influenced by water temperature
(Willson et al., 2006), and high water temperatures can increase adult
mortality (Blahm and McConnell, 1971). Given the range of temperatures
in which eulachon spawn, Langer et al. (1977) suggested that the
contrast between ocean and river temperatures might be more critical
than absolute river or ocean temperatures.
Food: Prey resources to support larval eulachon survival. Eulachon
larvae need abundant prey items (especially copepod larvae; Hart, 1973)
when they begin exogenous feeding after the yolk sac is depleted.
Eulachon yolk sac can be depleted between 6 and 21 days after hatching
(Howell, 2001), and larvae may be retained in low salinity, surface
waters of the natal estuary for several weeks or longer (Hay and
McCarter, 2000), making this an important component in migratory
corridor habitat.
The components of the nearshore and offshore marine foraging
essential feature include:
Food: Prey items, in a concentration that supports foraging leading
to adequate growth and reproductive development for juveniles and
adults in the marine environment. Juveniles eat phytoplankton, copepod
eggs, copepods and other small zooplankton (including euphausiids;
Barraclough, 1964), and adults eat euphausiids and copepods (Hart,
1973).
Water Quality: Water quality suitable for adequate growth and
reproductive development. The water quality requirements for eulachon
in marine habitats are largely unknown, but they would likely include
adequate dissolved oxygen levels, adequate temperature, and lack of
contaminants (such as pesticides, organochlorines, elevated levels of
heavy metals) that may disrupt behavior, growth, and viability of
eulachon and their prey.
Specific Areas Within the Geographical Area Occupied by the Species
After determining the geographical area occupied by the southern
DPS of eulachon, and the physical and biological features essential to
their conservation, we next identified the specific areas within the
geographical area occupied by the species that contain the essential
features. All of the essential physical and biological features we
identified within the freshwater and estuarine environment are within
specific areas associated with spawning, or with migrations related to
spawning events. In order to delineate specific areas where the
spawning sites and migration corridors occur, we relied on evidence of
eulachon spawning and migration. To ensure that our selection of the
specific areas was based on the best available information we developed
two criteria to identify areas where spawning, and spawning migration,
occurs. These criteria are sites that contain: (1) Larval fish or pre-/
post-spawn adults that have been positively identified and documented;
or (2) commercial or recreational catches that have been documented
over multiple years. Within the geographic area occupied by the
southern DPS, there are 42 creeks and rivers with documented presence
of eulachon (NMFS, 2010a). Of these, we identified 14 that meet at
least one of the criteria for spawning.
We next considered the distribution of the essential features
within these creeks or rivers. We again used evidence of eulachon
spawning and spawning migration to delineate the extent of the specific
areas where the spawning sites and spawning migration corridors are
found. We relied on data from published literature, field observations
(including river sampling with a variety of net types), opportunistic
sightings, commercial and recreational harvest, and anecdotal
information. Given the extremely limited sampling done for this
species, we chose to rely on the most recent information available to
us to determine which areas were eligible for designation. For some
creeks and rivers, opportunistic sightings are the only information
that is available to identify the distribution of the essential
features, and in these cases we relied on the best professional
judgment of agency and tribal biologists familiar with the area to
identify the extent of the essential features.
The 14 specific freshwater and estuarine areas which contain one or
more of the essential physical or biological features are described
below and summarized in Table 1, which appears at the end of the
Special Management Considerations section. The draft biological report
(available via the internet and by contacting NMFS; see ADDRESSES)
provides more detailed information on each specific area, including a
description of the essential physical and biological features, special
management considerations or protection that may be needed, and the
presence and distribution of southern DPS eulachon.
(1) Mad River, CA: The Mad River is located in northwestern
California. It flows for 150 km (95 mi) in a roughly northwest
direction through Trinity and Humboldt Counties, draining a 1,290 km\2\
(497 mi\2\) basin into the Pacific Ocean near McKinleyville,
California. The river's headwaters are in the Coast Range mountains
near South Kelsey Ridge.
Eulachon consistently spawned in large numbers in the Mad River as
recently as the 1960s and 1970s (Moyle et al., 1995; Moyle, 2002; NMFS,
2010a). However, in recent years eulachon numbers have declined, and
they are now considered rare (Sweetnam et al., 2001). Based on
observations by the California Department of Fish and Game (CDFG),
spawning occurs as far upstream as the confluence with the North Fork
of the Mad River (CDFG, 2009). The river below this point contains
overlapping spawning and incubation sites and migration corridor
features.
(2) Redwood Creek, CA: Redwood Creek is located entirely in
Humboldt County, in northwestern California. The basin is approximately
105 km (65 mi) long, and drains approximately 738 km\2\ (285 mi\2\),
most of which is forested and mountainous terrain (Cannata et al.,
2006).
Eulachon have been reported from Redwood Creek by a variety of
sources (Young, 1984; Ridenhour and Hofstra, 1994; Moyle et al., 1995;
Larson and Belchik, 1998), and runs large enough to be noted in
available local newspaper accounts occurred in 1963 and 1967. Eulachon
returns to Redwood Creek have declined drastically in recent years, and
they are now considered rare (Sweetnam et al., 2001). Although the
species is not currently targeted in sampling efforts, CDFG reported
that during the early 1970s eulachon regularly spawned between the
ocean and the mouth of Prairie Creek (the first
[[Page 520]]
major tributary on Redwood Creek; Moyle et al., 1995) indicating that
this area contains the spawning and incubation, and migration corridor
essential features. Spawning also occurred in the lower 0.5 km (0.3 mi)
of Prairie Creek (Moyle et al., 1995), however eulachon have not been
seen in Prairie Creek since the 1970s.
The lower reach of Redwood Creek alternates between an open estuary
and a closed coastal lagoon depending on the season. During early
summer a sand bar typically forms across the river mouth creating a
lagoon. Rains during the fall typically clear the sand bar away and
open up the river mouth to the ocean (Cannata et al., 2006).
(3) Klamath River, CA: The Klamath River basin drains approximately
25,100 km\2\ (9,690 mi\2\) in southern Oregon and northern California,
making it the second largest river in California (after the Sacramento
River). Historically, the Klamath River has been a major producer of
anadromous fish, and once was the third most productive salmon and
steelhead fishery in the continental United States, prior to recent
significant declines (Powers et al., 2005).
Historically, large aggregations of eulachon consistently spawned
in the Klamath River, and a commercial fishery occurred there in 1963.
During the spawning run, fish were regularly caught from the mouth of
the river upstream to Brooks Riffle, near the confluence with Omogar
Creek (Larson and Belchik, 1998), indicating that this area contains
the spawning and incubation, and migration corridor essential features.
The only reported commercial catch of eulachon in Northern
California occurred in 1963 when a combined total of 25 metric tons
(56,000 lbs) was landed from the Klamath River, the Mad River, and
Redwood Creek (Odemar, 1964). Since 1963, the run size has declined to
the point that only a few individual fish have been caught in recent
years. According to accounts of Yurok Tribal elders, the last
noticeable runs of eulachon were observed in the Klamath River in 1988
and 1989 by tribal fishers (Larson and Belchik, 1998). However, in
January 2007, six eulachon were reportedly caught by tribal fishers on
the Klamath River (Yurok Tribe, 2008). Larson and Belchik (1998) report
that eulachon have not been of commercial importance in the Klamath in
recent years and are unstudied as to their current run strengths.
Approximately 68 km (42 mi) of the lower Klamath River is bordered
by the Yurok Indian Reservation. The lower Klamath River is listed as a
National Wild and Scenic River from the mouth, upstream to just below
Iron Gate Dam, for a total of 460 km (286 mi). Of these, 19 km (12 mi)
are designated Wild, 39 km (24 mi) are designated Scenic, and 402 km
(250 mi) are designated Recreational.
(4) Umpqua River/Winchester Bay, OR: The Umpqua River Basin
consists of a 10,925 km\2\ (4,220 mi\2\) drainage area comprised of the
main Umpqua River, the North Umpqua River, the South Umpqua River, and
associated tributary streams (Snyder et al. 2006). The Umpqua River
drains a varied landscape, from steep-sloped uplands, to low gradient
broad floodplains. Upstream, the Umpqua River collects water from
tributaries as far east as the Cascade Mountains.
Historically, a large and consistent run of eulachon returned to
the Umpqua River, and both recreational and commercial fisheries
occurred. The Umpqua River eulachon sport fishery was active for many
years during the 1970s and 1980s, with the majority of fishing activity
centered near the town of Scottsburg. A commercial fishery also
harvested eulachon during that time. The Oregon Fish Commission (1970)
reported that from four to five thousand pounds of eulachon were landed
by two commercial fishermen in the Umpqua River during 31 days of drift
gill net fishing from late December 1966 to mid-March 1967. Numbers of
fish returning to the Umpqua seem to have declined in the 1980s and do
not appear to have rebounded to previous levels. Johnson et al. (1986)
list eulachon as occurring in trace amounts in their trawl and beach-
seine samples from April 1977 to January 1986. Williams (2009) reported
on the results of seine collections conducted during March to November
from 1995 to 2003 in Winchester Bay estuary on the Lower Umpqua River,
which confirmed the presence of eulachon in four of the years in which
sampling occurred.
Eulachon have been documented in the lower Umpqua River during
spawning, from the mouth upstream to the confluence of Mill Creek, just
below Scottsburg (Williams, 2009). This indicates that the area
downstream from this confluence contains the spawning and incubation,
and migration corridor essential features.
(5) Tenmile Creek, OR: The Tenmile Creek watershed lies entirely
within Lane County, Oregon and encompasses approximately 60 km\2\ (23
mi\2\) on the central Oregon Coast (Johnson, 1999). The watershed is in
a unique location, between the Cummins Creek and Rock Creek wilderness
areas. Together, this area is part of the largest remaining contiguous
coastal temperate forest in the Pacific Northwest.
Eulachon are regularly caught in salmonid smolt traps operated in
the lower reaches of Tenmile Creek by the Oregon Department of Fish and
Wildlife (ODFW). During previous sampling efforts, 80-90 percent of the
eulachon captured in the traps were spawned out and several fish were
found dead (Williams, 2009). Given the timing of the sampling (February
to May), it is very likely that spawning occurs regularly in Tenmile
Creek. It is not known how far adult eulachon ascend the creek to
spawn, but the location of the ODFW trap (just upstream of the Highway
101 bridge) is the confirmed upstream extent of adult eulachon in
spawning condition, and we conclude that the specific area containing
spawning and incubation sites extends upstream at least to this point
(ODFW, 2009).
(6) Sandy River, OR: The Sandy River and its tributaries drain
1,316 km\2\ (508 mi\2\). Most of the headwaters of the Sandy River are
within Clackamas County, while the lower mainstem of the river lies
within Multnomah County. The Sandy River originates from glaciers on
Mount Hood and flows for 90 km (56 mi) to join the Columbia River near
the City of Troutdale (Sandy River Basin Watershed Council, 1999). The
segment of the Sandy River from Dodge Park to Dabney State Park was
designated as a National Wild and Scenic River in October 1988.
Large commercial and recreational fisheries have occurred in the
Sandy River in the past. The most recent commercial harvest in the
Sandy River was in 2003 and resulted in a catch of 10,400 kg (23,000
lbs) (JCRMS 2009). During spawning, eulachon extent in the Sandy River
is typically upstream to the confluence with Gordon Creek at river km
21 (river mi 13) (Anderson 2009), indicating that this area contains
the spawning and incubation, and migration corridor essential features.
(7) Lower Columbia River, OR and WA: The lower Columbia River and
its tributaries support the largest known spawning run of eulachon. The
mainstem of the lower Columbia River provides spawning and incubation
sites, and a large migratory corridor to spawning areas in the
tributaries. Major tributaries of the Columbia River that have
supported eulachon runs in the past include the Grays, Elochoman,
Cowlitz, Kalama and Lewis Rivers in Washington and the Sandy River in
Oregon (the Columbia River tributaries in Washington State are
discussed below as separate specific areas).
[[Page 521]]
Although direct estimates of adult spawning stock abundance in the
Columbia River are unavailable, records of commercial fishery landings
begin in 1888 and continue as a nearly uninterrupted data set to
present (NMFS, 2010a). A large recreational dipnet fishery, for which
catch records have not been maintained, has taken place concurrent with
the commercial fishery (WDFW and ODFW, 2001). However, the dipnet
fishery takes place almost entirely within the tributaries. During
spawning, adult eulachon are found in the lower Columbia River from the
mouth of the river to immediately downstream of Bonneville Dam (WDFW
and ODFW, 2008), indicating that the area contains the essential
feature of migration corridors. Eulachon eggs have been collected, and
spawning presumed, from river km 56 (river mi 35) to river km 117
(river mi 73) (Romano et al., 2002) indicating that this area contains
the spawning and incubation essential feature. However, due to the
limited range of the study, the entire range of eulachon spawning in
the mainstem of the Columbia River remains unknown (Romano et al.,
2002). Prior to the construction of Bonneville Dam, eulachon ascended
the Columbia River as far as Hood River, Oregon (Smith and Saalfeld,
1955). An extensive fish passage facility is installed at the dam,
however eulachon have not been reported upstream of Bonneville Dam
since 1953 (FCO, 1953), and it is uncertain whether they can navigate
the facility.
The Columbia River, estimated to have historically represented half
of the species' abundance, experienced a sudden decline in its
commercial eulachon fishery landings in 1993-1994 (WDFW and ODFW, 2001;
JCRMS, 2009). Commercial catch levels were consistently high (usually
greater than 500 metric tons [550 tons] and often greater than 1,000
metric tons [1,100 tons]) for the three quarters of a century from
about 1915 to 1992. In 1993, catches declined greatly to 233 metric
tons (257 tons) and to an average of less than 40 metric tons (44 tons)
between 1994 and 2000. From 2001 to 2004, the catches increased to an
average of 266 metric tons (293 tons), before falling to an average of
less than 5 metric tons (5.5 tons) from 2005 to 2008. Some of this
pattern is due to fishery restrictions put in place in response to the
apparent sharp declines in the species abundance. Persistent low
returns and landings of eulachon in the Columbia River from 1993 to
2000 prompted the states of Oregon and Washington to adopt a Joint
State Eulachon Management Plan in 2001 that provides for restricted
harvest management when parental run strength, juvenile production, and
ocean productivity forecast a poor return (WDFW and ODFW, 2001).
Despite a brief period of improved returns in 2001-2003, the returns
and associated commercial landings have again declined to the very low
levels observed in the mid-1990s (JCRMS, 2009), and since 2005, the
fishery has operated at the most conservative level allowed in the
Joint State Eulachon Management Plan (JCRMS, 2009).
(8) Grays River, WA: The Grays River watershed is located in
Pacific and Wahkiakum counties, in Washington State. The Grays River is
a tributary of the Columbia River, which it enters near the town of
Oneida, Washington. The Grays River watershed encompasses 322 km\2\
(124 mi\2\) (May and Geist, 2007).
From 1980 to 1989 the annual commercial harvest of eulachon in the
Grays River varied from 0 to16 metric tons (0 to 35,000 lbs.). No
commercial harvest has been recorded for the Grays River from 1990 to
the present but larval sampling has confirmed successful spawning in
recent years (e.g., 2009; JCRMS, 2009). During spawning, eulachon
typically ascend the river as far as 17.3 km (10.8 miles), to the
covered bridge near the unincorporated town of Grays River, WA
(Anderson, 2009), indicating that this area contains the spawning and
incubation, and migration corridor essential features.
(9) Elochoman River, WA: The Elochoman River is a tributary of the
Columbia River in southwest Washington and it originates in the Willapa
Hills. The watershed lies within Lewis, Cowlitz, and Wahkiakum counties
and flows generally south to the Columbia River. The combined
Elochoman/Skamokawa watershed area is approximately 422 km\2\ (163
mi\2\) with the Elochoman accounting for the majority of the area
(LCFRB, 2004a).
Eulachon spawn occasionally in the Elochoman River, although there
is no history of commercial or recreational harvest of eulachon for the
Elochoman River. Sampling of outmigrating larval eulachon by WDFW has
confirmed spawning in the river 6 times in the last 15 years, most
recently in 2008 (JCRMS, 2009). WDFW has documented spawning eulachon
as far as 3.2 km (2 mi) up the lower Elochoman River to the Washington
State Highway 4 bridge crossing (Anderson, 2009), indicating that this
area contains the spawning and incubation, and migration corridor
essential features. If eulachon ascend the river beyond this point, the
water intake dam at the old Beaver Creek Hatchery (located on the
Elochoman River at river km 8 [river mi 5]) may be a barrier to any
further upstream migration of eulachon (Wade, 2002).
(10) Cowlitz River, WA: The Cowlitz River flows from its source on
the west slope of the Cascade Mountains through the towns of Kelso and
Longview, WA, and empties into the Columbia River about 109 km (68 mi)
upstream from the Pacific Ocean. The Cowlitz River drains approximately
6,400 km\2\ (2,480 mi\2\) over a distance of 243 km (151 mi) (Dammers
et al., 2002). Principal tributaries to the Cowlitz River include the
Coweeman, Toutle, Tilton, and Cispus Rivers.
The Cowlitz River is likely the most productive and important
spawning river for eulachon within the Columbia River system (Wydoski
and Whitney, 2003). Spawning adults typically move upstream about 26 km
(16 mi) to the town of Castle Rock, WA or beyond to the confluence with
the Toutle River. Adults are regularly sighted from the mouth of the
river to 55 km (34 mi) upstream (near the town of Toledo, WA). Eulachon
are occasionally sighted as far as 80 km (50 mi) upstream, to the
barrier dam at the Cowlitz Salmon Hatchery (WDFW and ODFW, 2008;
Anderson, 2009), indicating that this area contains the spawning and
incubation, and migration corridor essential features.
The Cowlitz River currently has 3 major hydroelectric dams and
several small-scale hydropower and sediment retention structures
located on tributaries within the Cowlitz Basin. Mayfield Dam is
located at river km 84 (river mi 52) and is a complete barrier to
upstream migration of anadromous fishes (LCFRB, 2004b) (although the
salmon hatchery barrier dam at river km 80 (river mi 50) may also be a
complete barrier to eulachon).
(11) Kalama River, WA: The Kalama River basin is a 531 km\2\ (205
mi\2\) watershed extending from the southwest slopes of Mount St.
Helens to the Columbia River (LCFRB, 2004e). The headwaters of the
Kalama River begin in Skamania County, WA, but the majority of the 72
km (45 mi) river flows within Cowlitz County. At river km 16 (river mi
10), a concrete barrier dam and fish ladder prevent upstream movement
of all anadromous fishes with the exception of summer steelhead and
spring Chinook salmon (LCFRB, 2004c).
The extent of spawning within the Kalama River is from the
confluence with the Columbia River to the Modrow Bridge (Anderson,
2009) at river km 4.5 (river mi 2.8), indicating that this area
contains the spawning and incubation, and migration corridor essential
[[Page 522]]
features. Although the last commercial harvest of eulachon in the
Kalama River occurred in 1993, sampling for larval eulachon has
confirmed spawning in the Kalama River as recently as 2002 (JCRMS,
2009).
(12) Lewis River, WA: The Lewis River enters the Columbia River 104
km (87 mi) upstream from the mouth of the Columbia River, a few
kilometers north of the town of Ridgefield, Washington. The majority of
the 1,893 km\2\ (731 mi\2\) watershed lies within Lewis and Skamania
Counties (LCFRB, 2004d). Although generally not considered as large a
eulachon run as the Cowlitz River, the Lewis River has produced very
large runs periodically. Nearly half of the total commercial eulachon
catch for the Columbia River Basin in 2002 and 2003 came from the Lewis
River. Larval eulachon are caught in WDFW sampling on the Lewis River,
including during the past three years (2007-09) (JCRMS, 2009). During
spawning, eulachon typically move upstream in the Lewis River about 16
km (10 mi; to Eagle Island), but they have been observed upstream to
the Merwin Dam (31.4 km [19.5 mi] from the mouth of the river) (WDFW
and ODFW, 2008; Anderson, 2009) indicating that this area contains the
spawning and incubation, and migration corridor essential features.
Merwin Dam is 240 feet high and was completed in 1931. The dam
presents a passage barrier to all anadromous fish, including eulachon
(LCFRB, 2004d). We are unable to find information to determine whether
eulachon ascended the river beyond river km 31.4 (river mi 19.5) prior
to construction of the dam.
(13) Quinault River, WA: The headwaters of the Quinault River
originate in the Olympic Mountains within Olympic National Park. The
river then crosses into the Quinault Indian Reservation where it flows
into Lake Quinault. Downstream of the lake, the Quinault River remains
within the Quinault Indian Reservation for another 53 km (33 mi) to the
Pacific Ocean. The total watershed area is 1,190 km\2\ (460 mi\2\)
(Smith and Caldwell, 2001).
Although there is currently no monitoring for eulachon in the
Quinault River, WDFW and ODFW (2001) reported that eulachon ``were
noted in large abundance in the Quinault'' River in 1993. A noticeable
number of eulachon make an appearance in the Quinault River, and to a
lesser extent the Queets River, at 5 to 6 year intervals and were last
observed in the Quinault River in the winter of 2004-2005 (Quinault
Indian Nation, 2008). There is very little information on eulachon
spawning distribution in the Quinault River, but tribal fishermen
targeting eulachon typically catch fish in the lower three miles of the
river (Quinault Indian Nation, 2008). It is reasonable to conclude that
this area contains the spawning and incubation, and migration corridor
essential features.
Although eulachon are currently only occasionally recorded in the
Quinault River, during the late 19th and early 20th century eulachon
were regularly caught by members of the Quinault Indian Tribe
(Willoughby, 1889; Olson, 1936). Fish were typically taken in the ocean
surf but often ascended the river for several miles (Olson, 1936).
Olson (1936) reported that there was usually a large run of eulachon in
the Quinault River every three or four years, and the run timing
varied, usually occurring between January and April. The Washington
Department of Fisheries annual report for 1960 (Starlund, 1960) listed
commercial eulachon landings in the Quinault River in 1936, 1940, 1953,
1958 and 1960. The commercial catches ranged from a low of 61 kg (135
lbs.) in 1960, to a high of 42,449 kg (93,387 lbs.) in 1953.
Nearly half of the watershed lies within Olympic National Park,
under the jurisdiction of the National Park Service, while the Quinault
Indian reservation comprises about one third (32 percent) of the
watershed, including most of the area downstream of Lake Quinault
(Quinault Indian Nation and U.S. Forest Service, 1999). The U.S. Forest
Service manages 13 percent of the watershed, and private landholdings
comprise only 4 percent of the lands in the watershed (Smith and
Caldwell, 2001).
(14) Elwha River, WA: The Elwha River mainstem is approximately 72
km (45 mi) long, and it drains 831 km\2\ (321 mi\2\) of the Olympic
Peninsula. A majority of the drainage (83 percent) is within Olympic
National Park (Elwha-Dungeness Planning Unit, 2005). The historical
condition of the river has been altered by two major hydroelectric
developments: the Elwha Dam and the Glines Canyon Dam (located just
upstream of the Elwha Dam).
In 2005, eulachon were observed in the Elwha River for the first
time since the 1970s (Shaffer et al., 2007). Since 2005, adult eulachon
have been captured in the Elwha River every year (2006-2010) (Lower
Elwha Klallam Indian Tribe, 2010). Several of the fish captured in 2005
were ripe (egg-extruding) females, indicating that eulachon likely
spawn in the Elwha River. The Elwha Dam serves as a complete barrier to
upstream fish migration, and thus it is reasonable to assume that the
spawning and incubation, and migration corridor essential features only
extend to that point in the Elwha River. It is not known if eulachon
ascended the Elwha River beyond river km 7.9 (river mi 4.9) prior to
the construction of the Elwha Dam, and it is also not known if the
portion of the river above Elwha Dam will provide the physical and
biological features essential to eulachon once the dam is removed. As
part of a comprehensive restoration of the watershed's ecosystem and
its fisheries, the Elwha and Glines Canyon dams were acquired by the
Federal government in 2000 and their removal is scheduled to begin in
2011.
All Areas: We delineated each specific area as extending from the
mouth of the river or creek (or its associated estuary when applicable)
upstream to a fixed location. We delineated the upstream extent based
on evidence of eulachon spawning or presence, or the presence of an
impassable barrier. The boundary at the mouth of each specific area was
defined by the demarcation lines which 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). For those specific areas that do not have a COLREGS line
delineated, the boundary at the mouth of those specific areas was
defined as a line drawn from the northernmost seaward extremity of the
mouth of the creek or river to the southernmost seaward extremity of
the mouth (with the exception of the boundary at the mouth of the Elwha
River, which was defined as a line drawn from the easternmost seaward
extremity of the mouth of the river to the westernmost seaward
extremity of the mouth).
Areas Not Considered for Designation at This Time
Nearshore and offshore marine foraging habitat is essential for
juvenile eulachon to survive and grow to adulthood, and for adults to
survive and reproduce. At this time we have little information on
eulachon distribution in marine waters and no information on where
eulachon foraging habitat might occur. For these reasons, we are unable
to identify any specific areas in marine waters that meet the
definition of critical habitat under the ESA. Although we cannot
presently identify any specific marine areas where foraging takes
place, we will continue to gather information and will consider
revising the designation in future rulemaking if new information
supports doing so.
[[Page 523]]
Special Management Considerations
Physical or biological features meet the definition of critical
habitat if they ``may require 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.'' We identified a number of activities that may affect the
physical and biological features essential to the southern DPS of
eulachon such that special management considerations or protection may
be required. Major categories of such activities include: (1) Dams and
water diversions; (2) dredging and disposal of dredged material; (3)
in-water construction or alterations, including channel modifications/
diking, shoreline stabilization, sand and gravel mining, and road
building and maintenance; (4) pollution and runoff from point and non-
point sources including industrial activities, urbanization, grazing,
agriculture, and forestry operations; (5) proposed tidal, wind, or wave
energy projects; (6) port and shipping terminals; and (7) habitat
restoration projects. All of these activities may have an effect on one
or more of the essential physical and biological features 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 estuarine/marine prey
resources.
In the following paragraphs, we describe the potential effects of
certain activities on essential physical or biological features, and we
summarize the occurrence of these activities in the specific areas in
Table 1 below (examples of activities that may require special
management considerations for each of the specific areas are listed in
the Draft Eulachon Biological Report (NMFS, 2010b)). This is not an
exhaustive list of potential effects, but rather a description of the
primary concerns and potential effects that we are aware of at this
time and that should be considered in the analysis of these activities
under section 7 of the ESA.
(1) Dams and Water Diversions: Physical structures associated with
dams and water diversions may impede or delay passage of southern DPS
eulachon. The operation of dams and water diversions may also affect
water flow, water quality parameters, substrate quality, and depth, and
further compromise the ability of adult eulachon to reproduce
successfully. Optimum flow and temperature requirements for spawning
and incubation are unclear, but effects on water flow and associated
effects on water quality (e.g., water temperature) and substrate
composition may affect adult spawning activity, egg viability, and
larval growth, development, and survival. Many uncertainties remain
about how large-scale hydropower development (e.g., the Federal
Columbia River Power System) affects eulachon habitat.
(2) Dredging: Dredging activities, which include the disposal of
dredged material, may affect depth, sediment quality, water quality,
and prey resources for eulachon. Dredging and the in-river disposal of
dredged material can remove, and/or alter the composition of, substrate
materials at the dredge site, as well as bury them at the disposal site
(potentially altering the quality of substrate for use as a spawning
site). In addition, dredging operations and disposal of dredged
materials may result in the re-suspension and spread of contaminated
sediments, which can adversely affect eulachon migration and spawning,
as well as larval growth and development. The effects of dredging and
disposal activities on critical habitat would depend on factors such as
the location, seasonality, scale, frequency, and duration of these
activities.
(3) In-Water Construction or Alterations: This category consists of
a broad range of activities associated with in-water structures or
activities that alter habitat within rivers, estuaries, and coastal
marine waters. The primary concerns are with activities that may affect
water quality, water flow, sediment quality, substrate composition, or
migratory corridors. Activities that may affect water quality include
the installation of in-water structures (such as pilings) with
protective coatings containing chemicals that may leach into the water.
Activities that affect flow, sediment quality and substrate composition
include those that result in increased erosion and sedimentation (such
as road maintenance and construction, bridge construction, construction
of levees and other flood control devices, construction or repair of
breakwaters, docks, piers, pilings, bulkheads, and boat ramps) and
those that directly alter substrates (such as sand and gravel mining or
gravel augmentation). Activities that may affect migratory corridors
include the construction of in-water structures, such as docks, piers,
pilings, and ramps.
(4) Pollution and Runoff: The discharge of pollutants and runoff
from point and non-point sources (including but not limited to:
Industrial discharges, urbanization, grazing, agriculture, road
surfaces, road construction, and forestry operations) can adversely
affect the water quality, sediment quality, and substrate composition
of eulachon critical habitat. Exposure to contaminants may disrupt
eulachon spawning migration patterns, and high concentrations may be
lethal to young fish (Smith and Saalfeld, 1955). Excessive runoff may
increase turbidity and alter the quality of spawning substrates.
(5) Proposed Tidal, Wind, or Wave Energy Projects: Proposed tidal,
wind, or wave energy projects generally require energy generating
equipment and supporting structures to be anchored on the bottom.
However, there are a wide range of designs currently being tested and
potential impacts of individual projects will vary depending on the
type of unit being deployed. Proposed projects may be located in
coastal marine waters or coastal estuaries. Physical structures
associated with tidal, wind, or wave energy projects may impede or
delay passage of southern DPS eulachon. In addition, construction and
maintenance of these energy projects may require in water construction
or alterations, which would include the potential effects described
above.
(6) Port and Shipping Terminals: The operation of port and shipping
terminals poses the risk of leaks, spills, or pipeline breakage and may
affect water quality. Vessel ballast water management (including the
introduction of competitors or parasites) may also affect water
quality. In addition, activities associated with the construction,
operation, and maintenance of port and shipping terminals may affect
water quality, sediment quality, and prey resources for larval
eulachon. For example, dredging operations and in-water and shoreline
construction activities associated with the construction and operation
of port and shipping terminals may result in increased erosion and
sedimentation, increased turbidity, and the re-suspension of
contaminated sediments.
(7) Habitat Restoration Projects: Habitat restoration activities
are efforts undertaken to improve habitat, and can include the
installation of fish passage structures and fish screens, in-stream
barrier modification, bank stabilization, installation of instream
structures, such as engineered log jams, substrate augmentation,
planting of riparian vegetation, and many other habitat-
[[Page 524]]
related activities. Although the primary purpose of these activities is
to improve natural habitats for the benefit of native species, these
activities nonetheless modify the habitat and need to be evaluated to
ensure that they do not adversely affect the habitat features essential
to eulachon. While habitat restoration activities would be encouraged
as long as they promote the conservation of the species, project
modifications in the form of spatial and temporal restrictions may be
required as a result of this designation.
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.''
Nearly all of the documented historical presence and production of
southern DPS eulachon comes from within the geographical area occupied
by the southern DPS at the time of listing. Sightings of southern DPS
eulachon from creeks or rivers outside of this area have been extremely
infrequent, and have consisted of very few fish (NMFS, 2010).
Therefore, we do not consider these areas to be essential to the
conservation of the southern DPS of eulachon, and thus we are not
considering any unoccupied areas as critical habitat for the DPS.
Table 1--Summary of Occupied Specific Areas That Contain the Physical or Biological Features Essential to the
Conservation of the Southern DPS of Eulachon. The River Miles Containing the Essential Physical and Biological
Features Present, and Activities That May Affect the Essential Features and Necessitate the Need for Special
Management Considerations or Protection Within Each Area Are Listed
[DAM = dams and water diversions; DR = dredging and disposal of dredged material; CON = in-water construction or
alterations, including channel modifications/diking; POLL = pollution and runoff from point and non-point
sources; ENER = tidal energy or wave energy projects; PORT = operation of port and shipping terminals; REST =
habitat restoration projects]
----------------------------------------------------------------------------------------------------------------
River Physical or biological
Specific area kilometers/miles features Activities
----------------------------------------------------------------------------------------------------------------
Mad River, CA........................ 20.3/12.6 Migration, Spawning..... DAM, CON, POLL.
Redwood Creek, CA.................... 6.1/3.8 Migration, Spawning..... DAM, POLL.
Klamath River, CA.................... 17.5/10.9 Migration, Spawning..... DAM, DR, CON, POLL.
Umpqua River, OR..................... 43.5/27.0 Migration, Spawning..... DAM, DR, POLL.
Tenmile Creek, OR.................... 0.8/0.5 Migration, Spawning..... CON, POLL.
Sandy River, OR...................... 20.9/13.0 Migration, Spawning..... DAM, CON, POLL.
Columbia River, OR and WA............ 235.0/146.0 Migration, Spawning..... DAM, DR, CON, POLL, ENER,
PORT, REST.
Grays River, WA...................... 17.4/10.8 Migration, Spawning..... DAM, DR, CON, POLL.
Elochoman River, WA.................. 3.2/2.0 Migration, Spawning..... CON, POLL.
Cowlitz River, WA.................... 80.5/50.0 Migration, Spawning..... DAM, DR, CON, POLL, PORT,
REST.
Kalama River, WA..................... 4.5/2.8 Migration, Spawning..... DAM, CON, POLL.
Lewis River, WA...................... 31.4/19.5 Migration, Spawning..... DAM, CON, POLL.
Quinault River, WA................... 4.8/3.0 Migration, Spawning..... CON, POLL.
Elwha River, WA...................... 7.9/4.9 Migration, Spawning..... DAM, CON, POLL, REST.
----------------------------------------------------------------------------------------------------------------
Military Lands
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.'' Department of Defense lands do not
overlap with, nor are adjacent to, any areas proposed for designation
as critical habitat for the southern DPS so there are no known
potential areas that would be removed from designation under ESA
Section 4(a)(3)(B)(i).
Application of ESA Section 4(b)(2)
The foregoing discussion describes the specific areas that fall
within the ESA section 3(5) definition of critical habitat and are
eligible for designation as critical habitat. Specific areas eligible
for designation are not automatically designated as critical habitat.
Section 4(b)(2) of the ESA requires the Secretary to first consider the
economic impact, impact on national security, and any other relevant
impact of designation. The Secretary has the discretion to exclude an
area from designation if he determines the benefits of exclusion (that
is, avoiding the impact that would result from designation) outweigh
the benefits of designation based upon best scientific and commercial
data. In adopting this provision, Congress explained that, ``[t]he
consideration and weight given to any particular impact is completely
within the Secretary's discretion.'' H.R. Rep. No. 95-1625, at 16-17
(1978). The Secretary may not exclude an area from designation if
exclusion will result in the extinction of the species. Because the
authority to exclude is discretionary, exclusion is not required for
any area.
The first step in conducting an ESA section 4(b)(2) analysis is to
identify the ``particular areas'' to be analyzed. Section 3(5) of the
ESA defines critical habitat as ``specific areas,'' while section
4(b)(2) requires the agency to consider certain factors before
designating any ``particular area.'' Depending on the biology of the
species, the characteristics of its habitat, and the nature of the
impacts of designation, ``specific'' areas might be different from, or
the same as, ``particular'' areas. For this designation, we analyzed
two types of ``particular'' areas. 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 had identified under section 3(5)(A).
[[Page 525]]
Specifically, these areas were the occupied freshwater and estuarine
areas that contain the physical and biological features essential to
the conservation of the southern DPS of eulachon. However, because
upslope and upstream activities can impact critical habitat, we chose
to use the watershed (specifically, individual 5th field hydrologic
units as designated by the U.S. Geological Survey) as our assessment
area for economic impacts (see the draft Economic Analysis Report [NMFS
2010c] for definition of the 5th field hydrologic units and more
information). This approach allowed us to most effectively consider the
conservation value of the different areas when balancing conservation
benefits of designation against economic benefits of exclusion. Where
we considered impacts on Indian lands, however, we instead used a
delineation of ``particular'' areas based on ownership or control of
the area. Specifically, these particular areas consisted of occupied
freshwater and estuarine areas that overlap with Indian lands. (We
defined Indian lands in accordance with our past practice, as described
in the Draft Eulachon Section 4(b)(2) Report [NMFS 2010d].) This
approach allowed us to consider impacts and benefits associated with
tribal land ownership and management by Indian tribes. In the future,
if we consider impacts and benefits of designation associated with
lands covered by a habitat conservation plan (HCP), we will also use a
delineation of ``particular'' areas based on ownership or control of
the area.
Benefits of Designation
The primary benefit of designation is the protection afforded under
the ESA section 7 requirement that all Federal agencies ensure their
actions are not likely to destroy or adversely modify designated
critical habitat. This type of benefit is sometimes referred to as an
incremental benefit because the protections afforded to the species
from critical habitat designation are 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 enhance the conservation of habitat by informing the
public about areas and features important to species conservation. This
may help focus and contribute to conservation efforts for eulachon and
their habitats.
With sufficient information, it may be possible to monetize these
benefits of 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 to monetize the benefits of
designation (e.g., estimates of the monetary value of the physical and
biological features within specific areas that meet the definition of
critical habitat, or of the monetary value of general benefits such as
education and outreach). In an alternative approach that we have
commonly used in the past, we qualitatively assessed the benefit of
designation for each of the specific areas identified as meeting the
definition of critical habitat for the southern DPS. Our qualitative
consideration began with an evaluation of the conservation value of
each area. We considered a number of factors to determine the
conservation value of an area, including the quantity and quality of
physical or biological features, the relationship of the area to other
areas within the DPS, and the significance to the DPS of the population
occupying that area.
To evaluate the quantity and quality of features of the specific
areas, we considered existing information on the consistency of
spawning in each area, the typical size of runs in the area, and the
amount of habitat available to and used by eulachon in the area. We
found that eulachon habitat and habitat use varies widely among the
areas, and may vary within the same area across different years. It is
difficult to identify differences between the areas that could be
driving variation in run size and frequency, and variation in habitat
use. Eulachon spawn in systems as large as the Columbia River (largest
river in the Pacific Northwest), and as small as Tenmile Creek (a
watershed of 60 km\2\ [23 mi\2\]). While some rivers consistently
produce large spawning runs of eulachon (e.g., the Columbia and Cowlitz
Rivers), spawning can be sporadic in others (e.g. Grays, Kalama, Lewis,
Sandy, and Quinault Rivers). Still other areas, either currently or in
the past, produce small yet consistent runs of eulachon (e.g., Tenmile
Creek and Elwha River).
Another factor we considered in evaluating the conservation value
of the specific areas is the geographic distribution of the areas.
Nearly the entire production of southern DPS eulachon in the
conterminous United States originates in the 14 specific areas we have
identified. These specific areas are widely distributed across the
geographic extent of the DPS. Compared to salmon, steelhead, and other
anadromous fishes, these relatively small areas historically produced a
very large biomass of eulachon. The loss of any one of these areas
could potentially leave a large gap in the spawning distribution of the
DPS, and the loss to eulachon production could represent a significant
impact on the ability of the southern DPS to survive and recover.
Utilizing a diversity of stream/estuary sizes across a wide geographic
area can be a useful strategy to buffer the species against localized
environmental catastrophes (such as the Mount St. Helens eruption of
May 18, 1980). For the above reasons, we conclude that all of the
specific areas have a high conservation value.
There are many Federal activities that occur within the specific
areas that could impact the conservation value of these areas.
Regardless of designation, Federal agencies are required under Section
7 of the ESA to ensure these activities are not likely to jeopardize
the continued existence of the southern DPS of eulachon. If the
specific areas are designated as critical habitat, Federal agencies
will additionally be required to ensure their actions are not likely to
adversely modify the critical habitat. We grouped the potential Federal
activities that would be subject to this additional protection into
several broad categories: Dams and water supply, agriculture,
transportation, forest management, mining, in-water construction and
restoration, water quality management/monitoring, and other activities.
(The Draft Economic Analysis [NMFS, 2010c] includes a detailed
description of the industry sectors associated with these activities).
The benefit of designating a particular area depends upon the
likelihood of a section 7 consultation occurring in that area and the
degree to which a consultation would yield conservation benefits for
the species. Based on past consultations for other migratory fish
species, we estimated that a total of 37.5 actions would require
section 7 consultation annually within the particular areas being
considered for eulachon critical habitat designation (NMFS, 2010c). The
most common activity type subject to consultation would be in-stream
work (estimated 13.2 consultations annually), followed by forest
management (estimated 6.7 consultations annually) and transportation
projects (estimated 6.2 consultations annually). (A complete list of
the estimated annual actions, divided by particular area, is included
in the Draft Economic Analysis [NMFS, 2010c]). These activities have
the potential to adversely affect water quality, sediment quality,
substrate composition, or migratory corridors for eulachon.
Consultation would yield conservation benefits for the species by
preventing or ameliorating such habitat effects.
[[Page 526]]
Impacts of Designation
Section 4(b)(2) of the ESA provides that the Secretary shall
consider ``the economic impact, impact to national security, and any
other relevant impact of specifying any particular area as critical
habitat.'' The primary impact of a critical habitat designation stems
from the requirement under section 7(a)(2) of the ESA that Federal
agencies ensure 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 ensure their
actions are not likely to jeopardize the species' continued existence.
The true impact of designation is the extent to which Federal agencies
modify their actions to ensure their actions are not likely to destroy
or adversely modify the critical habitat of the species, beyond any
modifications they would make because of listing and the jeopardy
requirement. Additional impacts of designation include state and local
protections that may be triggered as a result of the designation.
In determining the impacts of designation, we predicted the
incremental change in Federal agency actions as a result of critical
habitat designation and the adverse modification prohibition, beyond
the changes predicted to occur as a result of listing and the jeopardy
provision. In critical habitat designations for salmon and steelhead
(70 FR 52630; September 2, 2005) and for Southern Resident killer
whales (71 FR 69054; November 29, 2006), we considered the
``coextensive'' impact of designation, 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)). More
recently, however, several courts (including the 9th Circuit Court of
Appeals in Arizona Cattlegrowers v. Salazar, 606 F.3d 1160 (9th Cir.
2010); Homebuilders Association of Northern California v. U.S. Fish and
Wildlife, 616 F.3d 983 (9th Cir. 2010)) have approved an approach that
examines only the incremental impact of designation (see also: Cape
Hatteras Access Preservation Alliance v. Norton, 344 F. Supp. 2d 1080
(D.DC 2004)). In more recent critical habitat designations, both NMFS
and the USFWS have considered the incremental impact of critical
habitat designation (for example, NMFS' designation of critical habitat
for the Southern DPS of green sturgeon (74 FR 52300; October 9, 2009);
U.S. Fish and Wildlife's designation of critical habitat for the Oregon
chub (75 FR 11031; March 10, 2010)). Consistent with this more recent
practice, we estimated the incremental impacts of designation, beyond
the impacts that would result from the listing and jeopardy provision.
To determine the impact of designation, we examined what the state
of the world would be with and without the designation of critical
habitat for eulachon. The ``without critical habitat'' scenario
represents the baseline for the analysis. It includes process
requirements and habitat protections already afforded eulachon under
its Federal listing or under other Federal, state, and local
regulations. Such regulations include protections afforded eulachon
habitat from other co-occurring ESA listings and critical habitat
designations, such as for Pacific salmon and steelhead (70 FR 52630;
September 2, 2005), North American green sturgeon (74 FR 52300; October
9, 2009), and bull trout (75 FR 63898; October 18, 2010) (see the Draft
Economic Analysis for Eulachon (NMFS, 2010c) for examples of
protections for other species that would benefit eulachon). The ``with
critical habitat'' scenario describes the incremental impacts
associated specifically with the designation of critical habitat for
eulachon. The primary impacts of critical habitat designation we found
were: (1) The additional administrative effort of including a eulachon
critical habitat analysis in section 7 consultations, (2) the project
modifications required solely to avoid destruction or adverse
modification of eulachon critical habitat, and (3) the perception of
Indian tribes that designation of Indian lands is an unwarranted
intrusion into tribal sovereignty and self-governance.
Economic Impacts
To quantify the economic impact of designation, we employed the
following three steps:
(1) Define the geographic study area for the analysis, and identify
the units of analysis (the ``particular areas''). In this case, we
defined 5th field hydrologic units that encompass occupied stream
reaches as the study area.
(2) Identify potentially affected economic activities and determine
how management costs may increase due to the designation of eulachon
critical habitat, both in terms of project administration and project
modification.
(3) Estimate the economic impacts associated with these changes in
management.
We estimated a total annualized incremental administrative cost of
approximately $500,000 for designating the 14 specific areas as
eulachon critical habitat. The greatest costs are associated with dams
and water supply, mining, and forest management activities (see NMFS,
2010c for more details). The Lower Mad River and Columbia River--Hayden
Island 5th field hydrologic units have the largest estimated annual
impacts ($63,500 and $33,300), due to mining activities and water
supply activities, respectively (NMFS, 2010c). For 5th field hydrologic
units other than the lower Mad River and Columbia River--Hayden Island,
we estimate the incremental impacts of critical habitat designation
would be less than $30,000/year.
For the second category of impacts, we identified three areas where
critical habitat designation for eulachon might result in modifications
to activities beyond those already resulting from the ESA listing of
eulachon. Although we could not quantify the economic impacts, we
anticipate these costs would be small, for the reasons described below.
(1) Disposal of dredge material in the Lower Columbia River.
Eulachon spawning habitat has the potential to be modified by the
disposal of dredge material in the Lower Columbia River, particularly
if material is disposed in shallow water. If we conclude that disposing
of dredge material in shallow water could destroy or adversely modify
critical habitat, the U.S. Army Corps of Engineers (USACE) or the party
seeking disposal may need to find alternative disposal sites, thereby
incurring additional project costs. Because disposal of dredge material
in shallow water is already quite limited in the Lower Columbia River
and its cost is already relatively high, requiring another disposal
method may have minimal added costs.
(2) Elwha River Dam removal. The Elwha and Glines Canyon dams, on
the Elwha River, are scheduled for removal beginning in early 2011.
Because protections are already in place to reduce the impact of the
project on salmonid habitat, consideration of eulachon critical habitat
is unlikely to result in recommendations to change the project, except
possibly recommendations to make slight changes to the timing of the
dam removals. If that were the case, such timing changes would likely
have small associated costs.
(3) Mayfield Dam flow regime. As outlined in the eulachon final
listing determination (75 FR 13012; March 18, 2010), dams and water
diversions are moderate threats to eulachon in the Columbia River
Basin. To benefit
[[Page 527]]
salmon and steelhead species, Tacoma Power Company currently follows a
flow regime for Mayfield Dam on the Cowlitz River. If we conclude the
existing flow regime could destroy or adversely modify eulachon
critical habitat, Tacoma Power Company may need to change the timing or
amount of water releases. This could change the timing of energy
production, with an associated decrease in revenue from energy sales.
We would expect any such decreases to be small because the effect would
be to change the timing of energy production and not the total amount
of energy produced.
Without conducting a complete analysis on a specific project, it is
difficult to evaluate the extent to which NMFS might recommend changes
in any of these activities to avoid destroying or adversely modifying
critical habitat. Any changes required solely to avoid destroying or
adversely modifying critical habitat would be an impact of designation.
Impacts to National Security
Department of Defense lands do not overlap with, nor are adjacent
to, any areas proposed for designation as critical habitat for the
southern DPS. Thus, there would be no direct impacts to national
security if any of the specific areas were designated as critical
habitat.
Other Relevant Impacts--Impacts to Tribal Sovereignty and Self-
Governance
We identified three rivers with areas under consideration for
critical habitat designation that overlap with Indian lands--the Elwha
River and Quinault River in Washington, and the Klamath River in
California. The Federally-recognized tribes (74 FR 40218; August 11,
2009) potentially affected are the Lower Elwha Tribe, the Quinault
Tribe, the Yurok Tribe, and the Resighini Rancheria. In addition to the
economic impacts described above, designating these tribes' Indian
lands would have an impact on Federal policies promoting tribal
sovereignty and self-governance. 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 U.S. 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 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. Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, outlines the responsibilities of the Federal
Government in matters affecting tribal interests (recently confirmed by
Presidential Memorandum; 74 FR 57879; November 9, 2009). In addition to
Executive Order 13175, we have Department of Commerce direction, via
Secretarial Order 3206, stating that Indian lands shall not be
designated as critical habitat, nor areas where the ``tribal trust
resources * * * or the exercise of tribal rights'' will be impacted,
unless such lands or areas are determined ``essential to conserve a
listed species.'' In such cases we ``shall evaluate and document the
extent to which the conservation needs of the listed species can be
achieved by designating only other lands.''
Designation would also have impacts to NMFS' relationship with the
affected tribes. In the decision Center for Biological Diversity v.
Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court held that a
positive working relationship with Indian tribes is a relevant impact
that can be considered when weighing the relative benefits of a
critical habitat designation. We contacted the governments of each of
the potentially affected tribes to determine what impact a critical
habitat designation on Indian lands would have on the working
relationship between NMFS and the tribes. All four advised us that they
would view critical habitat designation on their lands as an unwanted
intrusion, which would have a negative impact on tribal sovereignty and
self-governance and on the relationship between the tribe and the
agency. This response was consistent with responses NMFS has received
from Indian tribes in past designations (for example, the designation
of critical habitat for 12 ESUs of West Coast salmon and steelhead (70
FR 52630; September 2, 2005)).
Other Relevant Impacts--Impacts to Landowners With Contractual
Commitments to Conservation
Conservation agreements with non- Federal landowners (e.g., HCPs)
enhance species conservation by extending species' protections beyond
those available through section 7 consultations. We have encouraged
non-Federal landowners to enter into conservation agreements, based on
a view that we can achieve greater species' conservation on non-Federal
land through such partnerships than we can through coercive methods (61
FR 63854; December 2, 1996).
Section 10(a)(1)(B) of the ESA authorizes us to issue to non-
Federal entities a permit for the incidental take of endangered and
threatened species. This permit allows a non-Federal landowner to
proceed with an activity that is legal in all other respects, but that
results in the incidental taking of a listed species (i.e., take that
is incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity). The ESA specifies that an application for
an incidental take permit must be accompanied by a conservation plan,
and specifies the content of such a plan. The purpose of such an HCP is
to describe and ensure that the effects of the permitted action on
covered species are adequately minimized and mitigated, and that the
action does not appreciably reduce the likelihood of the survival and
recovery of the species.
In previous critical habitat designations, we have exercised
discretion to exclude some (but not all) lands covered by an HCP from
designation (e.g., for Pacific salmon (70 FR 52630; September 2,
2005)), after concluding that benefits of exclusion outweighed the
benefits of designation. For lands covered by an HCP, the benefits of
designation typically arise from section 7 protections as well as
enhanced public awareness. The benefits of exclusion generally include
relieving regulatory burdens on existing conservation partners,
maintaining good working relationships with them (thus enhancing
implementation of existing HCPs), and encouraging the development of
new partnerships.
There are two existing HCPs that overlap areas proposed as critical
habitat for the southern DPS of eulachon; the Green Diamond Timber HCP
(covering the company's operations in northern California, including
portions of the Klamath River), and the Humboldt Bay Municipal Water
District HCP (covering their operations in the Mad River, California).
Neither of these HCPs currently address conservation of eulachon, and
it is unclear what, if any, conservation benefits they might provide to
eulachon. We will seek comments and information specific to these HCPs
and determine by the time of the final rule if, as in some past
designations, the benefits of excluding these HCP areas outweigh the
conservation benefits of designation.
[[Page 528]]
Balancing Benefits of Designation Against Benefits of Exclusion
The following section balances the benefits of avoiding economic
impacts and impacts to tribal sovereignty and self-governance against
the incremental and general benefits of designation. We determine
whether the benefits of exclusion outweigh the benefits of designation
and make recommendations for exclusion.
Economic Exclusions
As described above, the economic benefits of excluding particular
areas are small, for a total of about $500,000. Also as described
above, we consider all 14 particular areas meeting the definition of
critical habitat to have a high conservation value and a high benefit
of designation. When we listed eulachon as a threatened species we
cited, among other reasons, the present or threatened destruction,
modification, or curtailment of its habitat. Identified threats to
eulachon habitat include climate-induced change to freshwater habitats;
dams and water diversions (particularly in the Columbia and Klamath
Rivers); and degraded water quality. Designating these areas as
critical habitat will enhance our ability to address some of these
threats through section 7 consultations and through public outreach and
education. We conclude that the economic benefits of excluding each
particular area do not outweigh the conservation benefits of
designating each particular area as critical habitat, given the
following considerations: (1) The economic impact of designating all
areas is small; (2) eulachon are likely to become endangered in the
foreseeable future; (3) threats to freshwater habitat were a primary
concern leading to our decision to list the species as threatened; (4)
there are a limited number of spawning areas available throughout the
coast-wide range of eulachon; and (5) designation will enhance the
ability of a section 7 consultation to protect the habitat through the
identification of areas of particular concern and through the added
protection of the adverse modification provision.
Indian Lands Exclusions
The eulachon critical habitat Section 4(b)(2) report (NMFS, 2010d)
details our consideration of excluding Indian lands in this critical
habitat designation. The discussion here summarizes that consideration.
As described above, designating critical habitat on Indian lands would
have economic impacts. It is difficult to quantify those impacts (and
therefore the benefit of exclusion), for the Lower Elwha tribe because
their lands do not encompass the entire area that is being considered
for designation. The effects of many types of actions on their lands
would also affect areas downstream that are not excluded from
designation. Therefore, a section 7 consultation would still need to
consider the downstream effects on critical habitat. Administrative
costs of designation would still be incurred, along with any costs
associated with project modifications. The Quinault Tribe's lands
encompass nearly the entire watershed of the specific area identified,
thus exclusion would relieve Federal agencies of the administrative
costs of considering effects of actions on designated critical habitat.
The boundaries of the Yurok Indian Reservation encompass the entire
specific area that represents critical habitat on the Klamath River.
However there is some uncertainty as to which particular areas within
it meet the above definition of Indian lands. For this analysis we have
assumed, based on initial discussions with the Tribe that the entire
specific area under consideration qualifies as Indian land. We
estimated a total annualized incremental administrative cost of
approximately $500,000 for designating all 14 specific areas as
eulachon critical habitat. The exclusion of Indian Lands from critical
habitat designation would decrease the total annualized incremental
administrative cost by approximately $39,500. With Indian Lands
excluded, the total annualized incremental administrative cost of
designating eulachon critical habitat would be approximately $460,500.
In addition to the economic impact, designation would have an
impact on Federal policies promoting tribal sovereignty and self-
governance (e.g., Executive Order 13175), and on the relationship
between NMFS and each of the tribes (e.g., Secretarial Order 3206)
because of their perception that designation is an intrusion on tribal
sovereignty and self-governance. The benefit of excluding Indian lands
would be to avoid these impacts.
Balanced against these benefits of exclusion, a benefit of
designating the Indian lands would be to achieve the added protection
from ESA section 7's critical habitat provisions. This protection would
apply to all Federal activities, which we expect would include dam
operations and water supply, forest management, instream construction,
mining, transportation projects, and habitat restoration. As described
above, section 7 consultations for Federal actions on lands of the
Lower Elwha Tribe may still need to consider designated critical
habitat elsewhere in the watershed, thus many of the benefits of a
section 7 consultation could still apply even if the Indian lands were
excluded. In contrast, if Indian lands on the Quinault River and
Klamath River were excluded, section 7 consultations would not include
consideration of eulachon critical habitat.
Another benefit of designation would be to educate the public about
the importance of these Indian lands to eulachon conservation. Because
these are not public or private lands, and because the tribes
themselves are keenly aware of the importance of their lands to
eulachon conservation, we consider the education benefit of designating
these Indian lands to be low.
Quinault Indian Nation Lands. In the Quinault River, exclusion of
Indian lands would result in 100 percent of the area being excluded. An
ESA section 7 consultation in this area would not consider adverse
modification of critical habitat. In a public comment letter submitted
in response to the designation of critical habitat for the bull trout,
the Quinault Indian Nation (QIN) state that a Forest Management Plan
(FMP), on which the USFWS prepared a programmatic biological opinion
for bull trout, should provide adequate protection for the bull trout.
The QIN intend to submit a similar comment in response to the
designation of critical habitat for the eulachon (Quinault Indian
Nation 2010). The FMP takes into account significant restrictions on
in-water construction activities imposed by the State of Washington
(USFWS 2003; Washington State Law, Chapter 77.55). Project
modifications specific to the bull trout included in the biological
opinion for the FMP include requirements that in-water or near-stream
activities may only be conducted during the specific timeframes
outlined in the FMP, construction of new roads is to be minimized ``to
the maximum extent practicable,'' and construction of fill roads is
allowable only when absolutely necessary. These project modifications
would likely benefit eulachon habitat as well by limiting runoff which
can adversely affect water quality, sediment quality, and substrate
composition.
Exclusion of the 4.8 km (3.0 mi) of the Quinault River that runs
through tribal lands would have the benefit of promoting Federal
policies regarding tribal sovereignty and self-governance (e.g.,
Executive Order 13175). It would also have the benefit of promoting a
positive relationship between NMFS and the tribe (in accordance with
Secretarial Order 3206), with a very
[[Page 529]]
small reduction in the benefits of designation (primarily the loss of
section 7 consultation to consider adverse modification of critical
habitat). The current FMP provides some protection for eulachon habitat
and will provide a structure for future coordination and communication
between the QIN, USFWS, and NMFS. For these reasons, we conclude that
the benefits of exclusion outweigh the benefits of designation.
Lower Elwha Tribal Lands. In the Lower Elwha River, exclusion of
tribal lands would result in 1.3 km (0.8 mi) of the lower Elwha River
being excluded, which represents about 16 percent of the total 7.9 km
(4.9 mi) of habitat. As explained above, Federal agencies would still
need to consult on the effects of their actions on the designated
critical habitat elsewhere in the river. Exclusion of the 1.3 km (0.8
mi) of the lower Elwha River that runs through tribal lands would have
the benefit of promoting Federal policies regarding tribal sovereignty
and self-governance (e.g., Executive Order 13175). It would also have
the benefit of promoting a positive relationship between NMFS and the
tribe (in accordance with Secretarial Order 3206), with a very small
reduction in the benefits of designation (primarily, the loss of
section 7 consultation to consider adverse modification of critical
habitat). For these reasons, we conclude that the benefits of exclusion
outweigh the benefits of designation.
Resighini Rancheria Land. The tribal lands of the Resighini
Rancheria include approximately 0.5 km (0.3 mi) along the Klamath
River, within the specific area of critical habitat for eulachon.
Exclusion of this land would account for approximately 3 percent of the
specific habitat of southern DPS eulachon in the Klamath River.
Exclusion of the 0.5 km (0.3 mi) of the Klamath River that runs through
tribal lands would have the benefit of promoting Federal policies
regarding tribal sovereignty and self-governance. It would also have
the benefit of promoting a positive relationship between NMFS and the
tribe, with a very small reduction in the benefits of designation. For
these reasons, we conclude that the benefits of exclusion outweigh the
benefits of designation.
Yurok Tribal Lands. Yurok Tribal Lands: The boundaries of the Yurok
Indian Reservation encompass the 17.5 km (10.9 mi) on the Klamath River
that represent the specific area occupied by eulachon on that river.
However, land ownership within the reservation boundary includes a
mixture of Federal, State, tribal and private ownerships.
As managers of the Klamath River fisheries and their resources, the
Tribe oversees and protects fish and fish habitat through various land
and water management practices, plans, and cooperative efforts. Tribal
forest practices and land management are guided by a Forest Management
Plan (FMP), a primary objective of which is to protect and enhance
tribal trust fisheries. The Tribe has an established water quality
control plan on the Reservation (Yurok Tribe, 2004) with standards that
have been approved by the Environmental Protection Agency (EPA). In
conjunction with Federal, state and private partners, the Yurok Tribe
has initiated a large-scale, coordinated watershed restoration effort
in the Lower Klamath sub-basin to protect and improve instream,
intertidal, and floodplain habitats that support viable, self-
sustaining populations of native fishes. More recently, the Yurok Tribe
fisheries program has implemented a eulachon monitoring study to
determine the current abundance, and distribution of eulachon in the
Klamath River.
We are proposing to exclude from designation all areas of the
Klamath River based on an initial consideration of impacts on our
working relationship with the Yurok Tribe. Although this decision is
consistent with our previous critical habitat designation for Southern
Oregon/Northern California Coasts coho salmon (64 FR 24049; May 5,
1999), it is less clear how well it reflects our more recent 4(b)(2)
analyses used in 2005 to designate critical habitat for 19 salmon and
steelhead DPSs (70 FR 52630; September 2, 2005). In that more recent
approach we focused such exclusions on those Indian lands defined in
the 1997 Secretarial Order 3206 ``American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species
Act.'' Specifically, we excluded: (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.
During the time between this proposed rule and a final designation
we will consult with the Tribe and other land managers in the lower
Klamath Basin to determine how best to determine the benefits of
designating or excluding particular areas within the Yurok Reservation
boundary. As noted in a biological report supporting this designation,
the eulachon habitat under consideration includes the lowermost 17.5 km
(10.9 miles) of the Klamath River. Depending on the outcome of our
consultations and a final 4(b)(2) analysis (informed by tribal input
and public comments), our final rule may designate some or none of
these occupied areas as critical habitat for this species.
Extinction Risk Due to Exclusions
Section 4(b)(2) limits our discretion to exclude areas from
designation if exclusion will result in extinction of the species. The
overwhelming majority of production for the southern DPS of eulachon
occurs in the Columbia River (and tributaries) and the Fraser River in
Canada (NMFS, 2010a). While abundance estimates are not available for
the three rivers (Quinault, Elwha, and Klamath) that overlap Indian
lands, the runs on these rivers are believed to be very small (NMFS,
2010a) and likely contribute only a small fraction to the total DPS
abundance. Because the overall percentage of critical habitat on Indian
lands is so small (5 percent of the total area identified) and the
likelihood that eulachon production on these lands represents a very
small percent of the total annual production for the DPS, we conclude
that exclusion will not result in extinction of the southern DPS of
eulachon.
Critical Habitat Designation
We propose to designate approximately 470.2 km (292.1 mi) of
riverine and estuarine habitat in California, Oregon, and Washington
within the geographical area occupied by the southern DPS of eulachon.
The proposed critical habitat areas contain one or more physical or
biological features essential to the conservation of the species that
may require special management considerations or protection. We propose
to completely exclude two areas (the Quinault River and the Klamath
River) and portions of one other area (Elwha River) from designation
for which the benefit of exclusion outweighs the benefit of inclusion
(NMFS, 2010c). These areas include less than 23.6 km (14.7 mi) of
riverine and estuarine habitat in California and Washington. We
conclude that the exclusion of these areas will not result in the
extinction of the southern DPS. We have not identified any unoccupied
areas that are essential to conservation, and thus we are not proposing
any unoccupied areas for designation as critical habitat at this time.
[[Page 530]]
Lateral Extent of Critical Habitat
We describe 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 USACE 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 define 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).
As discussed in previous critical habitat designations (e.g.,
Pacific salmon and steelhead (70 FR 52630; September 2, 2005), North
American green sturgeon (74 FR 52300; October 9, 2009)), 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 critical habitat can destroy or adversely
modify the essential physical and biological features within these
areas. In addition, 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. This designation will help to
ensure that Federal agencies are aware of these important habitat
linkages.
Effects of Critical Habitat Designation
Section 7(a)(2) of the ESA requires Federal agencies 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. Federal agencies are also required to confer with us
regarding any actions likely to jeopardize a species proposed for
listing under the ESA, or likely to destroy or adversely modify
proposed critical habitat, pursuant to section 7(a)(4). A conference
involves informal discussions in which we may recommend conservation
measures to minimize or avoid adverse effects. The discussions and
conservation recommendations are to be documented in a conference
report provided to the Federal agency. If requested by the Federal
agency, a formal conference report may be issued; including a
biological opinion prepared according to 50 CFR 402.14. A formal
conference report may be adopted as the biological opinion when the
species is listed or critical habitat designated, if no significant new
information or changes to the action alter the content of the opinion.
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, we would evaluate the
agency action to determine whether the action may adversely affect
listed species or critical habitat and issue our findings in a
biological opinion or concurrence letter. If we conclude in the
biological opinion that the agency action would likely result in the
destruction or adverse modification of critical habitat, we would also
recommend any reasonable and prudent alternatives to the action.
Reasonable and prudent alternatives (defined in 50 CFR 402.02) are
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 a
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed 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 Clean Water
Act, Section 404 dredge or fill permit from USACE) or some other
Federal action, including funding (e.g., Federal Highway Administration
funding for transportation projects). 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 That May Be Affected
ESA section 4(b)(8) requires in any proposed or 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 the proposed critical habitat 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), U.S. Army Corps of Engineers (USACE), U.S.
Bureau of Reclamation (BOR), Natural Resource Conservation Service
(NRCS), National Park Service (NPS), Bureau of Indian Affairs (BIA),
the Federal Energy Regulatory Commission (FERC), and the Nuclear
Regulatory Commission (NRC)) and related or similar Federally-regulated
projects and activities on Federal lands, including hydropower sites
licensed by the FERC; nuclear power sites licensed by the NRC; dams
built or operated by the USACE or BOR; 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 dredging and filling, mining, diking,
and bank stabilization activities authorized or conducted by the USACE,
habitat modifications authorized by the Federal Emergency Management
Agency, and approval of water quality standards and pesticide labeling
and use restrictions administered by the Environmental Protection
Agency.
Private entities may also be affected by this proposed critical
habitat designation if a Federal permit is
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required, if 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 for eulachon. Changes to some activities, such as the
operations of dams and dredging activities, may be necessary to
minimize or avoid destruction or adverse modification of proposed
critical habitat. 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).
Public Comments Solicited
We solicit comments or suggestions from the public, other concerned
governments and agencies, the scientific community, industry, non-
governmental organizations, or any other interested party concerning
the proposed designation and exclusions as well as the documents
supporting this rulemaking. We are particularly interested in comments
and information in the following areas: (1) Information describing the
abundance, distribution, and habitat use of southern DPS eulachon,
including marine areas; (2) Information on the identification,
location, and the quality of physical or biological features which may
be essential to the conservation of the species, including marine
foraging sites; (3) Information regarding potential benefits of
designating any particular area as critical habitat, including
information on the types of Federal actions that may affect the area's
physical and biological features; (4) Information regarding potential
impacts of designating any particular area, including the types of
Federal actions that may trigger an ESA section 7 consultation and the
possible modifications that may be required of those activities; (5)
Information regarding the benefits of excluding a particular area from
critical habitat, including areas covered by an existing HCP,
especially the Green Diamond Timber and Humboldt Bay Municipal Water
District HCPs in northern California; (6) Current or planned activities
in the areas proposed as critical habitat and costs of potential
modifications to those activities due to critical habitat designation;
and (7) Any foreseeable economic, national security, or other relevant
impact resulting from the proposed designation. You may submit your
comments and materials concerning this proposal by any one of several
methods (see ADDRESSES). Copies of the proposed rule and supporting
documentation can be found on the NMFS Web site http://www.nwr.noaa.gov. We will consider all comments pertaining to this
designation received during the comment period in preparing the final
rule. Accordingly, the final decision may differ from this proposal.
Public Hearings
50 CFR 424.16(c)(3) requires the Secretary to promptly hold at
least one public hearing if any person requests one within 45 days of
publication of a proposed rule to designate critical habitat. Such
hearings provide the opportunity for interested individuals and parties
to give comments, exchange information and opinions, and engage in a
constructive dialogue concerning this proposed rule. We encourage the
public's involvement in such ESA matters. A public meeting has been
scheduled for January 26, 2011 at the Doubletree Hotel, 1000 NE
Multnomah Street, Portland, OR. Requests for additional public hearings
must be made in writing (see ADDRESSES) by February 22, 2011.
Information Quality Act and Peer Review
The data and analyses supporting this proposed action have
undergone a pre-dissemination review and have been determined to be in
compliance with applicable information quality guidelines implementing
the Information Quality Act (IQA) (Section 515 of Pub. L. 106-554). In
December 2004, the Office of Management and Budget (OMB) issued a Final
Information Quality Bulletin for Peer Review pursuant to the IQA. The
Bulletin was published in the Federal Register on January 14, 2005 (70
FR 2664). The Bulletin established minimum peer review standards, a
transparent process for public disclosure of peer review planning, and
opportunities for public participation with regard to certain types of
information disseminated by the Federal Government. The peer review
requirements of the OMB Bulletin apply to influential or highly
influential scientific information disseminated on or after June 16,
2005. Two documents supporting this proposal to designate critical
habitat for the southern DPS of eulachon are considered influential
scientific information and subject to peer review. These documents are
the draft Biological Report and draft Economic Analysis. We have
distributed the draft Biological Report and draft Economic Analysis for
independent peer review and will address any comments received in
developing the final drafts of the two reports. Both documents are
available on our Web site at http://www.nwr.noaa.gov/, on the Federal
eRulemaking Web site at http://www.regulations.gov, or upon request
(see ADDRESSES).
Classification
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 an
initial regulatory flexibility analysis (IRFA), which is part of the
draft Economic Analysis. This document is available upon request (see
ADDRESSES), via our Web site at http://nwr.noaa.gov, or via the Federal
eRulemaking Web site at http://www.regulations.gov. The results of the
IRFA 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 eulachon, 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
[[Page 532]]
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 broad categories of activities: Dams and water supply,
agriculture and grazing, transportation, forest management, mining, in-
water construction and restoration, water quality management/monitoring
(and other activities resulting in non-point pollution), and other
activities. Small entities were defined by the Small Business
Administration size standards for each activity type. The majority
(approximately 97 percent) of entities affected within each specific
area would be considered a small entity. A total of 540 small
businesses involved in the activities listed above would most likely be
affected by the proposed critical habitat designation. Total annualized
impacts to small entities are conservatively assumed to be $459,000, or
approximately 99.5 percent of total incremental impacts anticipated as
a result of this rule.
We estimated the annualized costs associated with section 7
consultations incurred per small business under two different
scenarios. These scenarios are intended to provide a measure of the
range of potential impacts to small entities given the level of
uncertainty referred to above. Under the first scenario the analysis
estimated the number of small entities located within areas affected by
the proposed designation (approximately 540), and assumes that
incremental impacts are distributed evenly across all entities in each
affected industry. Under this scenario, a small entity may bear costs
up to $3,550, representing between < 0.01 and 0.10 percent of average
revenues (depending on the industry). Under the second scenario, the
analysis assumes the costs of each anticipated future consultation are
borne by a distinct small business most likely to be involved in a
section 7 consultation (approximately 38 entities). Under this
scenario, each small entity may bear costs of between $1,330 and
$162,000, representing between 0.01 and 4.69 percent of average annual
revenues, depending on the industry.
In accordance with the requirements of the RFA (as amended by
SBREFA of 1996) this analysis considered various alternatives to the
critical habitat designation for the southern DPS. The alternative of
not designating critical habitat for the southern DPS of eulachon was
considered and rejected because such an approach does not meet the
legal requirements of the ESA. We considered the alternative of
designating all specific areas (i.e., no areas excluded); however, for
three areas (all of the Quinault and Klamath Rivers and part of the
Elwha River), the benefits of exclusion outweighed the benefits of
including them in the designation. Thus, NMFS also considered the
alternative of designating all specific areas, but excluding these
areas. This alternative helps to reduce the number of small businesses
potentially affected from 571 to 540, and the total potential
annualized economic impact to small businesses would be reduced from
$498,000 to $459,000.
Executive Order 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 any action that promulgates or is expected to
lead to the promulgation of a final rule or regulation that (1) is a
significant regulatory action under E.O. 12866 and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy.
We have considered the potential impacts of this action on the
supply, distribution, or use of energy and find the designation of
critical habitat will not have impacts that exceed the thresholds
identified above (NMFS, 2010c).
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 proposed 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 a legally binding duty on non- Federal
government entities or private parties. Under the ESA, the only
regulatory effect is that Federal agencies must ensure that their
actions do not destroy or adversely modify critical habitat under
section 7. While non- Federal entities which receive Federal funding,
assistance, permits or otherwise require approval or authorization from
a Federal agency for an action may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency. 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 existing protection afforded to the proposed
critical habitat from existing critical habitat for salmon and
steelhead (70 FR 52630; September 2, 2005), Southern DPS of green
sturgeon (74 FR 52300; October 9, 2009), and/or bull trout (70 FR
56212; September 26, 2005), we do not anticipate that this proposed
rule will significantly or uniquely affect small governments. As such,
a Small Government Agency Plan is not required.
[[Page 533]]
Takings
Under Executive Order 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 proposed rule does not have significant takings implications. A
takings implication assessment is not required. The designation of
critical habitat affects only Federal agency actions. We do not expect
the proposed critical habitat designation to impose additional burdens
on land use or affect property values. Additionally, the proposed
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 eulachon.
Coastal Zone Management Act
Section 307(c)(1) of the Federal Coastal Zone Management Act of
1972 (16 U.S.C. 1456) requires that all Federal activities that affect
the land or water use or natural resource of the coastal zone be
consistent with approved state coastal zone management programs to the
maximum extent practicable. We have determined that this proposed
designation of critical habitat is consistent to the maximum extent
practicable with the enforceable policies of approved Coastal Zone
Management Programs of California, Oregon, and Washington. The
determination has been submitted for review by the responsible agencies
in the aforementioned states.
Federalism
In accordance with Executive Order 13132, we determined that this
proposed 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 proposed critical habitat designation with,
appropriate state resource agencies in California, Oregon, and
Washington. The proposed 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 essential features of
the habitat necessary for the survival of the southern DPS of eulachon
are specifically identified. It may also assist local governments in
long-range planning (rather than waiting for case-by-case ESA section 7
consultations to occur).
Civil Justice Reform
The Department of Commerce has determined that this proposed rule
does not unduly burden the judicial system and meets the requirements
of sections 3(a) and 3(b)(2) of Executive Order 12988 We are proposing
to designate critical habitat in accordance with the provisions of the
ESA. This proposed rule uses standard property descriptions and
identifies the essential features within the designated areas to assist
the public in understanding the habitat needs of southern DPS eulachon.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain new or revised information
collection requirements for which Office of Management and Budget (OMB)
approval is required under the Paperwork Reduction Act. This proposed
rule will not impose recordkeeping or reporting requirements on state
or local governments, individuals, businesses, or organizations.
Notwithstanding any other provision of the law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the PRA, unless that collection of information displays a currently
valid OMB Control Number.
National Environmental Policy Act of 1969 (NEPA)
We have determined that an environmental analysis as provided for
under NEPA is not required for critical habitat designations made
pursuant to the ESA. 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
Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, outlines the responsibilities of the Federal
Government in matters affecting tribal interests. If NMFS issues a
regulation with tribal implications (defined as having a substantial
direct effect on one or more Indian tribes, on the relationship between
the Federal Government and Indian tribes, or on the distribution of
power and responsibilities between the Federal Government and Indian
tribes) we must consult with those governments or the Federal
Government must provide funds necessary to pay direct compliance costs
incurred by tribal governments.
Pursuant to Executive Order 13175 and Secretarial Order 3206, we
consulted with the affected Indian Tribes when considering the
designation of critical habitat in an area that may impact tribal trust
resources, tribally owned fee lands or the exercise of tribal rights.
All of the tribes we consulted expressed concern about the intrusion
into tribal sovereignty that critical habitat designation represents.
The Secretarial Order defines Indian lands as ``any lands title to
which is either: (1) Held in trust by the United States for the benefit
of any Indian tribe or (2) held by an Indian Tribe or individual
subject to restrictions by the United States against alienation.'' Our
conversations with the tribes indicate that they view the designation
of Indian lands as an unwanted intrusion into tribal self-governance,
compromising the government-to-government relationship that is
essential to achieving our mutual goal of conserving threatened and
endangered salmonids.
For the general reasons described in the Other Relevant Impacts--
Impacts to Tribal Sovereignty and Self-Governance section above, the
draft ESA 4(b)(2) analysis has led us to propose the exclusion of all
Indian lands in our proposed designation for the southern DPS of
eulachon. Consistent with other proposed exclusions, any exclusion in
the final rule will be made only after consideration of all comments
received.
References Cited
A complete list of all references cited in this rulemaking can be
found on our Web site at http://www.nwr.noaa.gov/ and is available upon
request from the NMFS office in Portland, Oregon (see ADDRESSES.)
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: December 29, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, we propose to amend part
226, title 50 of the Code of Federal Regulations as set forth below:
[[Page 534]]
PART 226--DESIGNATED CRITICAL HABITAT
1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
2. Add Sec. 226.222, to read as follows:
Sec. 226.222 Critical habitat for the southern Distinct Population
Segment of eulachon. (Thaleichthys pacificus).
Critical habitat is designated for the southern Distinct Population
Segment of eulachon (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 only and not as a
definitive source for determining critical habitat boundaries. In
freshwater areas, critical habitat includes the stream channel and a
lateral extent as defined by the ordinary high-water line (33 CFR
329.11). In areas where the ordinary high-water line has not been
defined, 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. In estuarine areas, critical habitat includes tidally
influenced areas as defined by the elevation of mean higher high water.
(a) Critical habitat boundaries. Critical habitat is designated to
include the following areas in California, Oregon, and Washington:
(1) Mad River, California. From the mouth of the Mad River
(40[deg]57'37'' N./124[deg]7'36'' W.) upstream to the confluence with
the North Fork Mad River (40[deg]52'30'' N./123[deg]59'26'' W.).
(2) Redwood Creek, California. From the mouth of Redwood Creek
(41[deg]17'33'' N./124[deg]5'30'' W.) upstream to the confluence with
Prairie Creek (41[deg]17'59'' N./124[deg]3'00'' W.).
(3) Umpqua River, Oregon. From the mouth of the Umpqua River
(43[deg]40'8'' N./124[deg]12'36'' W.) upstream to the confluence with
Mill Creek (43[deg]39'20'' N./123[deg]52'34'' W.).
(4) Tenmile Creek, Oregon. From the mouth of Tenmile Creek
(44[deg]13'34'' N./124[deg]6'45'' W.) upstream to the Highway 101
bridge crossing (44[deg]13'27'' N./124[deg] 6'35'' W.).
(5) Sandy River, Oregon. From the confluence with the Columbia
River upstream to the confluence with Gordon Creek (45[deg]29'45'' N./
122[deg]16'41'' W.).
(6) Columbia River, Oregon and Washington. From the mouth of the
Columbia River (46[deg]15'9'' N./124[deg]4'32'' W.) upstream to
Bonneville Dam (45[deg]38'40'' N./121[deg]56'27'' W.).
(7) Grays River, Washington. From the confluence with the Columbia
River upstream to Covered Bridge Road (46[deg]21'17'' N./
123[deg]34'52'' W.).
(8) Elochoman River, Washington. From the confluence with the
Columbia River to Washington State Highway 4 bridge crossing
(46[deg]13'44'' N./123[deg]23'39'' W.).
(9) Cowlitz River, Washington. From the confluence with the
Columbia River upstream to the Cowlitz Salmon Hatchery barrier dam
(46[deg]30'45'' N./122[deg]37'60'' W.).
(10) Kalama River, Washington. From the confluence with the
Columbia River upstream to the bridge at Modrow Road (46[deg]2'50'' N./
122[deg]50'15'' W.).
(11) Lewis River, Washington. From the confluence with the Columbia
River upstream to Merwin Dam (45[deg]57'24'' N./122[deg]33'21'' W.).
(12) Elwha River, Washington. From the mouth of the Elwha River
(48[deg]8'52'' N./123[deg]34'5'' W.) upstream to Elwha Dam
(48[deg]5'42'' N./123[deg]33'22'' W.).
(b) Physical or biological features essential for conservation. The
physical or biological features essential for conservation of southern
DPS eulachon are:
(1) Freshwater spawning and incubation sites with water flow,
quality and temperature conditions and substrate supporting spawning
and incubation.
(2) Freshwater and estuarine migration corridors free of
obstruction and with water flow, quality and temperature conditions
supporting larval and adult mobility, and with abundant prey items
supporting larval feeding after the yolk sac is depleted.
(3) Nearshore and offshore marine foraging habitat with water
quality and available prey, supporting juveniles and adult survival.
(c) 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) Lower Elwha Tribe, Washington;
(2) Quinault Tribe, Washington;
(3) Yurok Tribe, California; and
(4) Resighini Rancheria, California.
(d) Maps of proposed critical habitat for the southern DPS of
eulachon follow:
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[FR Doc. 2010-33314 Filed 1-4-11; 8:45 am]
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