[Federal Register Volume 76, Number 203 (Thursday, October 20, 2011)]
[Rules and Regulations]
[Pages 65324-65352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26950]
[[Page 65323]]
Vol. 76
Thursday,
No. 203
October 20, 2011
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 226
Endangered and Threatened Species; Designation of Critical Habitat for
the Southern Distinct Population Segment of Eulachon; Final Rule
Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 /
Rules and Regulations
[[Page 65324]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 101027536-1591-03]
RIN 0648-BA38
Endangered and Threatened Species; Designation of Critical
Habitat for the Southern Distinct Population Segment of Eulachon
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a
final rule to designate critical habitat for the southern Distinct
Population Segment (DPS) of Pacific eulachon (Thaleichthys pacificus),
pursuant to section 4 of the Endangered Species Act (ESA). We designate
16 specific areas as critical habitat within the states of California,
Oregon, and Washington. The designated areas are a combination of
freshwater creeks and rivers and their associated estuaries, comprising
approximately 539 km (335 mi) of habitat. The Tribal lands of four
Indian Tribes are excluded from designation after evaluating the
impacts of designation and benefits of exclusion associated with Tribal
land ownership and management by the Tribes. No areas were excluded
from designation based on economic impacts.
This final rule responds to and incorporates public comments
received on the proposed rule and supporting documents, as well as peer
reviewer comments received on our draft biological report and draft
economic report.
DATES: This rule will take effect on December 19, 2011.
ADDRESSES: Reference materials regarding this rulemaking can be
obtained via the Internet at: http://www.nwr.noaa.gov or by submitting
a request to the Protected Resources Division, Northwest Region,
National Marine Fisheries Service, 1201 NE Lloyd Blvd., Suite 1100,
Portland, OR 97232.
FOR FURTHER INFORMATION CONTACT: Marc Romano, NMFS, Northwest Region,
503-231-2200, or Jim Simondet, NMFS, Southwest Region, 707-825-5171, or
Dwayne Meadows, NMFS, Office of Protected Resources, 301-427-8403.
SUPPLEMENTARY INFORMATION:
Background
On March 18, 2010, we listed the southern DPS of eulachon as
threatened under the ESA (75 FR 13012). A proposed critical habitat
rule for the southern DPS of eulachon was published in the Federal
Register on January 5, 2011 (76 FR 515). The present rule describes the
final critical habitat designation, including responses to public
comments and peer reviewer comments, and supporting information on
eulachon biology, distribution, and habitat use, and the methods used
to develop the final designation.
We considered various alternatives to the critical habitat
designation for the southern DPS of eulachon. The alternative of not
designating critical habitat for the southern DPS of 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 the southern DPS of eulachon. The alternative of
designating all potential critical habitat areas (i.e., no areas
excluded) also was considered and rejected because for some areas the
benefits of exclusion from designation outweighed the benefits of
inclusion.
An alternative to designating all potential critical habitat areas
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
impact, impacts on national security, and any other relevant impact of
specifying any particular area as critical habitat. The Secretary of
Commerce (Secretary) has the discretion to exclude an area from
designation as critical habitat if the benefits of exclusion (i.e., the
impacts that would be avoided if an area were excluded from the
designation) outweigh the benefits of designation (i.e., the
conservation benefits to the southern DPS of eulachon if an area were
designated), as long as exclusion of the area will not result in
extinction of the species. We prepared an analysis describing our
exercise of discretion, which is contained in our Final Section 4(b)(2)
Report (NMFS, 2011a). Under this preferred alternative we have excluded
Indian lands in California and Washington from designation as critical
habitat. The total estimated economic impact of designating all
specific areas (without any exclusions) is $512,000 (discounted at 7
percent) or $532,000 (discounted at 3 percent). However the total
estimated economic impact of the preferred alternative would be
approximately $487,300 (discounted at 7 percent) or $506,300
(discounted at 3 percent). We determined that the exclusion of Indian
lands would not significantly impede the conservation of the southern
DPS of eulachon nor result in extinction of the species. We selected
this as the preferred alternative because it results in a critical
habitat designation that supports the conservation of the southern DPS
of 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 at
50 CFR 424.19.
Section 3 of the ESA (16 U.S.C. 1532(5)(A)) 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.'' We may not
designate critical habitat in areas outside of U. S. jurisdiction (50
CFR 424.12(h)). 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 may exclude an 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
[[Page 65325]]
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), current data only provides an incomplete picture concerning
their saltwater existence. 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 United
States-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 (Gustafson et al., 2010). 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; Gustafson et al., 2010). 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 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 (Smith and Saalfeld, 1955; Langer et al., 1977).
Shortly after hatching, the larvae are carried downstream and dispersed
by estuarine, tidal, and ocean currents. Larval eulachon may remain 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/
smell of their natal river basin. However, juvenile eulachon spend less
time in freshwater environments than do juvenile salmon and researchers
believe that this 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;
Northwest Fishery Science Center (NWFSC), 2008; Hannah and Jones,
2009), indicating that the distribution of these two species may
overlap in the ocean.
Spawning Behavior
Eulachon typically spend several years in salt water before
returning to fresh water as a ``run'' to spawn from late winter through
early summer. Eulachon are semelparous, meaning that they spawn once
and then die (Gustafson et al., 2010; Hay et al., 2002). 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 (Gustafson et al., 2010). 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 as it affects ocean conditions, is considered a significant
threat to eulachon and their habitats and may also be a factor in run
timing (Gustafson et al., 2010). Most rivers supporting spawning runs
of eulachon 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 spawning runs are occurring earlier
in several rivers within the range of the southern DPS (Moody, 2008).
Water temperature at the time of spawning varies across the range
of the species. Although spawning generally occurs at temperatures from
4 to 7 [deg]C (39
[[Page 65326]]
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 larvae and juveniles eat a variety of prey items,
including phytoplankton, copepods, copepod eggs, mysids, barnacle
larvae, and worm larvae (Barraclough, 1967; Barraclough and Fulton,
1967; Robinson et al., 1968a, 1968b). Eulachon adults feed on
zooplankton, chiefly eating crustaceans such as copepods and
euphausiids (Hart, 1973; Scott and Crossman, 1973; Hay, 2002; Yang et
al., 2006), unidentified malacostracans (Sturdevant, 1999), and
cumaceans (Smith and Saalfeld, 1955). 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).
Summary of Comments Received and Responses
We solicited public comment for a total of 60 days on the proposed
designation of critical habitat for the southern DPS of eulachon. In
addition, we held a public hearing on the proposal in Portland, Oregon
on January 26, 2011 at which one member of the public provided oral
testimony. This testimony was recorded and our responses to comments
address substantive comments from that individual. We received written
comments from eight commenters, and these are available online at:
http://www.regulations.gov/#!docketDetail;rpp=10;po=10;D=NOAA-NMFS-
2011-0013. Summaries of the substantive comments received, and our
responses, are organized by category and provided below.
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review pursuant to the
Information Quality Act (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 final designation of critical habitat for the southern
DPS of eulachon are considered influential scientific information and
subject to peer review. In accordance with the OMB policies, we
solicited technical review of the draft Biological Report (NMFS, 2010a)
and the draft Economic Analysis (NMFS, 2010b). Each of these reports
was reviewed by three independent experts selected from the academic
and scientific communities.
There was substantial overlap between the comments from the peer
reviewers and the substantive public comments. The comments were
sufficiently similar that we have responded to the peer reviewer's
comments through our general responses below. Revisions resulting from
peer review and public comments have been made to the documents
supporting this designation (i.e., Biological Report, Economic
Analysis, and Section 4(b)(2) Report) and the final versions of those
documents can be found on our Web site at: http://www.nwr.noaa.gov/Other-Marine-Species/Eulachon.cfm.
Physical or Biological Features Essential for Conservation
Comment 1: One commenter suggested that nearshore and marine waters
are essential as a migratory corridor for the passage of eulachon, and
passage should be included as a feature in nearshore and marine waters.
Response: Eulachon migrate from their natal streams to marine
waters of the continental shelf, and likely migrate throughout coastal
waters until they return as adults to spawn. There are two difficulties
with relying on a passage feature in the ocean for a species such as
eulachon: (1) There is no information regarding the characteristics or
conditions in coastal waters that would make a specific area suitable
for passage, and (2) there is no evidence that eulachon use specific
marine areas for migration. Regarding the first point, there is no
information to indicate that eulachon rely on habitat features to guide
migration, such as a particular type of current, temperature gradient,
bathymetry, coastline, etc. Since there are no known characteristics of
an area that would aid in delineation, one must consider whether there
is some other evidence of a migration corridor or site, such as
documented use for completing a portion of the life history. In the
case of eulachon, there are no observations of eulachon migration that
would allow us to infer the presence of migratory pathways in specific
areas of the ocean. Absent information on the detailed characteristics
that would allow delineation of a specific area, or information that
eulachon actually use a defined area, we were unable to identify
`specific areas' in the ocean that contain migratory pathways.
Eulachon biology and habitat use differ from other species for
which we have identified migratory pathways as an essential feature in
marine waters. For example, green sturgeon (Acipenser medirostris) are
primarily associated with bottom habitats in the ocean and travel along
the coast in a migration corridor that is delimited by bathymetry
(specifically, we identified the 60 fathom contour as the seaward
extent of a green sturgeon migration feature) (74 FR 52300; October 9,
2009). Green sturgeon adherence to a migration corridor shoreward of
this depth contour is documented through tagging studies and bycatch in
fisheries (Erickson and Hightower, 2007). While we do have some limited
information about areas where eulachon are present either through
fisheries bycatch reports or fisheries-independent research, this
information suggests only that eulachon are present in these areas. It
does not shed light on a feature, such as a migratory pathway, that is
essential to eulachon conservation. Additional contrasting examples
include bull trout (Salvelinus confluentus) and Puget Sound Chinook
(Oncorhynchus tshawytscha), which migrate in marine waters along the
shoreline. Their critical habitat areas are delineated along a depth
contour based on the penetration of light, which creates specific
physical and biological conditions essential for their conservation.
For Southern Resident killer whales (Orcinus orca) we also identified a
passage feature in marine waters, among other features. The three
specific areas designated as killer whale critical habitat in inland
marine waters of Washington State contained all of the identified
features. The one specific area primarily defined by the passage
feature was the Strait of Juan de Fuca, a relatively narrow marine
corridor through which killer whales pass on their migrations between
coastal waters and inland waters.
Comment 2: One commenter believed that our reliance on evidence of
spawning or spawning migration to designate critical habitat may be
considered ``arbitrary,'' and they cited Alliance for Wild Rockies v.
Lyder, 728 F. Supp. 1126, 1134 (D. Mont. 2010) in
[[Page 65327]]
support of their argument. The commenter stated that ``NMFS must
consider other elements besides spawning when determining whether an
area should be designated as critical habitat.''
Response: Eulachon are an anadromous species that spend 95-98
percent of their lives in the marine environment (Hay and McCarter,
2000). The best available scientific evidence suggests that adult
eulachon are semelparous and enter freshwater and estuarine areas only
to spawn, and after spawning the adult fish die (Hay et al., 2002;
Gustafson et al., 2010). Eulachon eggs develop at or near the point
they were spawned, and larval eulachon typically outmigrate via the
same routes that adult spawners took to reach the spawning area.
Because eulachon are semelparous and the best available evidence
suggests that freshwater and estuarine areas are only used by eulachon
for spawning activities (i.e. spawning migration, spawning, egg
incubation and larval outmigration) we used spawning data to determine
if essential features are present. Our approach was not the same as the
approach used by the USFWS to designate critical habitat for the Canada
lynx that is the subject of Alliance for Wild Rockies v. Lyder. The
Canada lynx utilizes its habitat for a variety of life cycle activities
beyond reproduction. There the USFWS used reproduction, one of several
life functions, as the sole test to rule out the presence of essential
features. In the Alliance for Wild Rockies decision, the court noted,
``[w]hile it is rational to conclude areas with evidence of
reproduction contain the primary constituent elements and should be
designated as critical habitat, the Service could not flip that logic
and so it means that critical habitat only exists where there is
evidence of reproduction.'' As a result, our reliance on evidence of
spawning and spawning migration to identify critical habitat within
freshwater and estuarine areas is not ``arbitrary'' according to the
Alliance for Wild Rockies decision.
Comment 3: One commenter stated that in making our decision on
which specific areas qualified as critical habitat, we relied on
``extremely limited sampling'' and, for some rivers and creeks, only
``opportunistic sightings'' and the ``best professional judgment of
agency and Tribal biologists familiar with the area.'' The commenter
believes that this is ``insufficient to satisfy the requirements of the
ESA and may make it more difficult to recover this DPS.''
Response: Section 4(b)(2) of the ESA requires the Secretary of
Commerce to designate critical habitat ``on the basis of the best
scientific data available.'' In the proposed rule, and supporting
Biological Report (NMFS, 2011b), we outlined the evidence that we used
to identify specific areas as critical habitat. We stated in the
proposed rule that 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.'' This final rule incorporates the findings in
the proposed rule and the Biological Report, as well as peer review of
the Biological Report and the Economic Analysis (NMFS, 2011c) and
public comments on the proposed rule. Taken together, this information
represents the best available scientific data available to inform our
critical habitat decision.
We relied on the most recent scientific information available to us
to determine which areas were eligible for designation. For a limited
number of creeks and rivers, opportunistic sightings are the only
information that is available to identify the distribution of the
essential features. Where the only available information was
opportunistic sightings, we consulted agency and Tribal biologists
familiar with the area to confirm the information and identify the
extent of the essential features. Where such information was the only
information available, and was confirmed by the best professional
judgment of biologists knowledgeable about the species and the area, we
consider it the ``best available scientific information,'' and adequate
to inform our decisions. Our actions are thus in accordance with
section 4(b)(2) of the ESA and our implementing regulations (50 CFR
424.12).
Specific Areas Within the Geographical Area Occupied by the Species
Comment 4: Two commenters agreed with our decision not to designate
critical habitat in nearshore and offshore marine areas, and a third
commenter recognized the problem in identifying critical habitat in
these areas. In contrast, several commenters disagreed with our
decision and some of these cited the availability of eulachon harvest
and bycatch data as evidence of eulachon distribution in marine waters.
One commenter questioned why we did not discuss in the proposed rule
whether nearshore and marine waters may require special management
considerations or protection. A separate commenter stated that there is
a wide range of literature on the effects of trawling on seafloor
habitat, and that the effects of trawling on eulachon foraging habitat
need to be considered.
Response: Although some data are available on the ocean
distribution of eulachon (from fisheries bycatch and fishery-
independent surveys [summarized in Gustafson et al., 2010]) we cannot
identify specific marine foraging areas that meet the definition of
critical habitat under the ESA. The ESA defines critical habitat as
``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 essential to the conservation of the species and
which may require special management considerations or protection''. In
the Pacific Ocean, we identified nearshore and offshore foraging
habitat as an essential feature for the conservation of eulachon, and
we determined that abundant forage species and suitable water quality
are components of this habitat feature. Given the wide distribution of
eulachon prey items, we could not associate them with ``specific
areas'' within the marine environment occupied by eulachon. Moreover,
these prey species move or drift great distances throughout the ocean
and would be difficult to link to any ``specific'' areas as discussed
in response to Comment 1. The concern is not that ``specific areas''
must be small, but rather in order to meet the definition of ``critical
habitat'' under the ESA, they must be identifiable and connected to the
essential feature found there. We could not discern such a linkage in
marine areas occupied by eulachon. While we acknowledge that eulachon
need foraging habitat in nearshore and offshore marine waters, we
cannot identify any specific areas as required under section 3(5)(A) of
the ESA.
Some activities (e.g. trawling), may occur in the marine
environment that affect eulachon prey, such that the prey may require
special management considerations or protections. However, the steps we
follow in designating critical habitat include first identifying the
essential features, then identifying the specific areas where those
features occur, then considering whether the features in those areas
may require special management consideration or protection. We did not
discuss the second prong of the definition of critical habitat for
marine foraging areas in the proposed rule because we did not identify
any specific areas within the marine environment that meet the first
prong of the definition of critical habitat (specific areas on which
the features are found).
Comment 5: One commenter provided information documenting eulachon
use of Redwood Creek, upstream of the area proposed.
[[Page 65328]]
Response: We proposed to designate approximately 6.1 km (3.8 mi) of
critical habitat in Redwood Creek upstream to the confluence with
Prairie Creek, based on reports from the California Department of Fish
and Game (CDFG; Moyle et al., 1995). However, the commenter provided a
copy of a CDFG memorandum that describes an attempt by three
experienced biologists familiar with eulachon who were purposely
seeking to determine the upstream limit of eulachon spawning migration
in Redwood Creek during April 1973. Eulachon were observed passing Tom
McDonald Creek, a tributary located 19.4 km (12.5 mi) upstream from the
mouth of Redwood Creek. The CDFG biologists also checked Redwood Creek
for eulachon 6.4 km (4.0 mi) upstream of the confluence with Tom
McDonald Creek but they did not find any eulachon at that location.
This field observation documented fish at least as far upstream as Tom
McDonald Creek and presents a credible observation of eulachon
ascending Redwood Creek during the spawning run beyond the upstream
limit that we proposed as critical habitat. As a result, we have
extended critical habitat on Redwood Creek, upstream to the confluence
with Tom McDonald Creek. Although the CDFG biologists speculated that
eulachon ascended Redwood Creek beyond this point, we have no evidence
to confirm that claim.
Comment 6: One commenter believed that eulachon may ascend beyond
the specific areas identified and asserted that the upstream limits of
critical habitat proposed for Ten Mile Creek, the Elochoman River, and
the Kalama River appear to be established at points that were simply
advantageous survey sites and not reflective of the species' actual
distribution.
Response: The upstream limits of the proposed critical habitat were
established using the best available information on eulachon
distribution at the time of our proposed rule and informed by public
and peer review. We relied on data from published literature, field
observations (from a variety of agency and Tribal biologists),
opportunistic sightings, commercial and recreational harvest, and
anecdotal information. Information on eulachon distribution is limited
for some creeks and rivers, particularly those that don't have a
history of commercial or recreational harvest of eulachon. The upstream
limit of proposed critical habitat for Ten Mile Creek, the Elochoman
River, and the Kalama River were determined based on the most current
information provided by ODFW for Ten Mile Creek and WDFW for the
Elochoman and Kalama Rivers, which are the agencies responsible for
eulachon management in the respective states. We do not know whether
the information provided by the agencies was based on points that are
advantageous survey sites. However, the commenter presents no credible
information that would allow us to identify alternative end points of
eulachon spawning areas.
Comment 7: One commenter questioned why the upstream limit of
critical habitat on rivers where passage is blocked by hydropower dams
is established at the point of blockage.
Response: We proposed as critical habitat four specific areas with
an upstream limit that terminates at a passage barrier formed by a dam.
Three of these dams are hydropower dams (Bonneville Dam on the Columbia
River, Merwin Dam on the Lewis River, and Elwha Dam on the Elwha River)
and one is a barrier dam for a salmon hatchery (Cowlitz River). Of the
four dams, two were unlikely to have had eulachon above the dam site
prior to dam construction due to natural barriers (Merwin and Elwha
Dams); one may have had eulachon above the dam site before dam
construction, but there is no evidence to support that conclusion
(hatchery dam on the Cowlitz); and one has had confirmed eulachon
presence upstream of the dam site both before and after construction
(Bonneville Dam).
Both Merwin Dam and Elwha Dam were built in areas where the river
is constrained, with high gradient and water velocities. Prior to dam
construction these areas were likely a natural barrier for eulachon. In
addition, we were unable to find information supporting eulachon
presence above these dam sites prior to dam construction. We were
unable to find any historical accounts of eulachon ascending the
Cowlitz River beyond the site of the salmon hatchery barrier dam prior
to dam construction in 1968, (Mark Larivie, personal communication,
April 15, 2011). We did not propose critical habitat upstream of the
Merwin Dam, Elwha Dam, or the Cowlitz River salmon hatchery dam because
we could not find evidence that eulachon used these areas prior to dam
construction.
There have been reports of adult eulachon ascending the Columbia
River beyond the Bonneville Dam site, both before and after
construction of the Bonneville Dam, with some runs large enough to
support recreational harvest (OFC, 1953; Smith and Saalfeld, 1955;
Stockley, 1981). Cascade Rapids (approximately 4 km [2.5 mi] upstream
of the current Bonneville Dam site) was a natural barrier to eulachon
migration in the Columbia River prior to the construction of Bonneville
Dam (Oregon Fish Commission, 1953; Gustafson et al., 2010). A ship lock
constructed at Cascade Locks in 1896 allowed fish to circumvent the
rapids and subsequently eulachon were reported as far upstream as Hood
River, Oregon at river kilometer (RKm) 272 (river mile [RM] 169) (Smith
and Saalfeld, 1955). Following completion of Bonneville Dam, both
Cascade Rapids and Cascade Locks were submerged, removing the rapids as
a passage barrier. Currently, passage for anadromous fish at Bonneville
Dam is maintained via fish ladders, but it is highly unlikely that
eulachon can ascend the ladders due to the high gradient and water
velocities within. However, eulachon have been documented passing
through the shipping locks at the dam (Oregon Fish Commission, 1953).
Eulachon have been reported upstream of the dam in several years,
including significant numbers in 1945 and 1953 (Oregon Fish Commission,
1953; Smith and Saalfeld, 1955) and more recently in 1988 (Johnsen et
al., 1988), 2003 (U.S. Army Corps of Engineers [USACE], 2003), and 2005
(Martinson et al., 2010).
The area upstream of Bonneville Dam does not meet the definition of
critical habitat because it does not contain the physical or biological
features essential for conservation of eulachon. The physical and
biological features essential for conservation of eulachon in
freshwater and estuarine areas include: (1) Spawning and incubation
sites with water flow, quality and temperature conditions and substrate
supporting spawning and incubation; and (2) 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. Although they are separate features,
spawning and incubation sites for eulachon cannot functionally exist
without a migratory corridor to access them. In the proposed rule we
acknowledged this relationship between the essential features when we
stated that the migration corridor features are ``essential to
[eulachon] conservation because they allow adult fish to swim upstream
to reach spawning areas''. However, in the proposed rule we identified
specific areas in freshwater and estuarine areas for designation as
critical habitat ``which contain one or more of the essential physical
or biological features'' without making it clear that spawning and
incubation sites require a migration corridor to provide
[[Page 65329]]
access to the sites. The commenters' question allows us to further
explain the functional relationship between the essential features.
Bonneville Dam is a major obstruction to eulachon passage. Eulachon
access to the area upstream of Bonneville Dam is limited to
opportunistic transport through the ship locks. Due to this passage
barrier, the migration corridor essential feature in the Columbia River
does not extend beyond Bonneville Dam. In order for the spawning and
incubation site essential feature to exist upstream of Bonneville Dam,
the migration corridor essential feature would have to extend upstream
of Bonneville Dam as well. Due to the lack of a migration corridor to
access the area upstream of Bonneville Dam, the spawning and incubation
essential feature cannot exist upstream of the dam. Because neither the
migration corridor nor spawning and incubation essential features occur
upstream of Bonneville Dam, this area does not meet the ESA section
3(5)(A) definition of critical habitat.
Comment 8: One commenter did not agree with the use of the COLREGS
line (or equivalent) to demarcate the downstream boundary of critical
habitat for rivers that directly enter the ocean. The commenter
believes that this boundary was established as a convenient management
tool but does not make sense as an ecologically-based boundary. The
commenter suggested that if freshwater delivery to the ocean is the key
feature, then the boundary could be established at the edge of the
river plume.
Response: As we stated previously, our regulations require that
``Each critical habitat will be defined by specific limits using
reference points and lines as found on standard topographic maps of the
area'' (50 CFR 424.12(c)). In order for critical habitat to be a useful
tool for conservation and management of the species, Federal agencies
that are proposing actions in the vicinity of critical habitat need to
be able to identify where critical habitat occurs. An ephemeral
boundary, such as the maximum extent of freshwater delivery into the
marine environment from a creek or river, would be difficult to
identify. The COLREGS lines (where defined) were chosen as the
downstream extent of freshwater and estuarine critical habitat because
they are a clearly defined federal standard which incorporates
landmarks that are found on standard topographic maps to uniformly
depict an area of transition between freshwater and marine areas.
Comment 9: One commenter stated that it was unclear if smaller
secondary or tertiary streams within watersheds assessed in the
proposed rule are included or excluded from critical habitat.
Response: We used watersheds containing stream reaches occupied by
eulachon as a basis for conducting our analysis of economic impacts
associated with critical habitat designation. However, the specific
areas identified as critical habitat were limited to the portions of
individual creeks and rivers that contain the physical and biological
features essential for eulachon conservation. The specific areas that
are being designated as critical habitat are listed in this final rule
(including the accompanying maps) and will appear in part 226, title 50
of the Code of Federal Regulations. Secondary or tertiary streams
within the watersheds used for the economic analysis are not designated
as critical habitat unless they are specifically described in this rule
and in part 226, title 50 of the Code of Federal Regulations.
Comment 10: One commenter proposed that two locations in Washington
State (the Toutle River in the Cowlitz Basin and Skamokawa Creek in the
Elochoman Basin) be included in the critical habitat designation.
Response: In our proposed rule we identified criteria to determine
if a specific area contained either one of the essential features of
freshwater spawning and incubation sites and freshwater and estuarine
migration corridors (76 FR 515; January 5, 2011). 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.
Prior to publishing the proposed rule, we were unable to identify
information that would satisfy these criteria for either the Toutle
River or Skamokawa Creek.
In the proposed rule we acknowledged that many areas within the
geographical area occupied by the southern DPS have not been surveyed
to determine the extent of eulachon spawning and migration (76 FR 515;
January 5, 2011). To address this information need we funded several
eulachon monitoring studies and surveys currently being undertaken by
ODFW, WDFW, the Cowlitz Indian Tribe, and the Yurok Indian Tribe.
During April 2011 biologists from the Cowlitz Indian Tribe documented
the presence of eulachon larvae in the Toutle River and Skamokawa
Creek, confirming eulachon spawning in these two systems (Cowlitz
Indian Tribe, 2011). This information satisfies the criteria we used in
our proposed rule to identify specific areas where the essential
physical and biological features occur. As a result, these specific
areas meet the statutory definition of critical habitat and we have
included them in this final rule. Additional information on these two
areas can be found below.
Comment 11: One commenter questioned the proposed designation of
the lower Elwha River as critical habitat on several points. First, the
commenter noted that although eulachon have been captured in the lower
Elwha River in small numbers, this may be consistent with straying.
Second, the commenter asserted that there is a likely velocity barrier
for eulachon located at approximately RKm 0.8 (RM 0.5). And finally,
the commenter reasoned that once the Lower Elwha Tribal land is
excluded from critical habitat designation, very little of the
remaining river below the Elwha Dam that is accessible to eulachon
would be eligible for designation as critical habitat.
Response: Eulachon were documented in the Elwha River in 2005,
although anecdotal observations suggest that eulachon ``were a regular,
predictable feature in the Elwha until the mid 1970s'' (Shaffer et al.,
2007, p. 80). Other Olympic Peninsula rivers draining into the Strait
of Juan de Fuca have been extensively surveyed over many years for
salmonid migrations; however, eulachon have not been observed in any of
these other systems (Shaffer et al., 2007; Peter Toppings, WDFW, 2011;
Lower Elwha Tribe, 2011). Since 2005, eulachon in spawning condition
have been observed nearly every year in the Elwha River by Lower Elwha
Tribe Fishery Biologists (Lower Elwha Tribe, 2011). After only one year
of catch data, Shaffer et al. (2007; p. 80) concluded that
``observations of eulachon in the Elwha lead us to surmise that the
Elwha eulachon are likely a remnant stock of the Elwha River rather
than stray.'' We believe that the consistent spawning returns to the
Elwha River in subsequent years supports the conclusion of Shaffer et
al. (2007) that eulachon in the Elwha River are a self-sustaining
population and not stray fish from nearby rivers.
Mike McHenry (Fishery Biologist, Lower Elwha Tribe, personal
communication April 4, 2011) has confirmed reports that eulachon have
ascended the Elwha River to at least RKm 4.0 (RM 2.5). This would place
eulachon well upstream of the potential velocity barrier at RKm 0.9 (RM
0.5) that the commenter believes may limit their upstream movement.
Studies from the
[[Page 65330]]
Kemano River indicate that many eulachon are unable to maintain long-
term position in the river at flow velocities greater than 0.3 m/s (1.0
ft/s; Lewis et al., 2002). However, when water velocities were high in
the mid-channel, eulachon travelled near the shore (Lewis et al., 2002)
where water velocities are likely lower. Research conducted in the
lower Elwha River has shown that water velocities can be significantly
lower nearshore and along the bottom of the river, when compared to the
mid-channel (USGS, 2008). It is likely that eulachon ascend beyond RKm
0.8 (RM 0.5) in the Elwha River by migrating in the lower velocity
water of the nearshore or river bottom.
The Lower Elwha Tribe controls over 1,000 acres of land in the
lower Elwha River watershed that are eligible for exclusion from this
critical habitat designation. From the mouth of the river, upstream to
the Elwha Dam at RKm 7.6 (RM 4.7), the Lower Elwha Tribe lands include
approximately 2.3 km (1.4 mi) of this area. This leaves approximately
5.3 km (3.3 mi) of river that does not overlap Tribal land and thus is
not excluded from critical habitat. Although federal actions conducted
on Lower Elwha Tribe land would not require section 7 consultation to
determine the effects on critical habitat, federal activities on non-
Tribal lands would.
Special Management Considerations
Comment 12: One commenter wanted to know why dams and water
diversions were listed as an activity that may require special
management considerations in Redwood Creek given that there are no dams
or surface water diversions on Redwood Creek.
Response: Although summer seasonal dams have existed on the
mainstem of Redwood Creek in the past, they have been removed and are
no longer allowed. The commenter rightly points out that dams and water
diversions are not activities in Redwood Creek that may require special
management considerations and we have removed them from the list of
special management considerations for Redwood Creek.
Comment 13: One commenter suggested that the construction and
maintenance of the Redwood Creek Flood Control Project levees (that
line the lower 5.5 km [3.4 miles] of Redwood Creek), should be
considered in-water construction or alteration and listed as an
activity that may require special management consideration.
Response: We agree and have updated our report to include this
category of activity.
Unoccupied Areas
Comment 14: One commenter suggested that we should give greater
consideration to the potential designation of unoccupied habitats. The
commenter stated that NMFS ``must consider physical and biological
features of historically occupied areas, not just presence and
production, before determining that these areas are not essential for
the conservation of the species.''
Response: Section 3(5)(A)(ii) of the ESA authorizes the Secretary
of Commerce to designate ``specific areas outside the geographical area
occupied at the time [the species] is listed'' if the Secretary
determines that these areas are essential for the conservation of the
species. Section 4(b)(2) of the ESA directs the Secretary to designate
critical habitat ``on the basis of the best scientific data available''
Regulations at 50 CFR 424.12(e) emphasize that the agency ``shall
designate as critical habitat areas outside the geographical area
presently occupied by a species only when a designation limited to its
present range would be inadequate to ensure the conservation of the
species.''
The commenter states that NMFS must base its decision to designate
critical habitat in unoccupied areas on whether those areas might
contain the physical or biological features essential to the
conservation of the species. However, the ESA's definition of critical
habitat in unoccupied areas does not rely on the presence of physical
or biological features, but on the determination that the area is
essential for the conservation of the species. Our implementing
regulations provide that we may only designate unoccupied areas if we
determine that currently occupied areas are not adequate for
conservation (50 CFR 424.12(e)). In the case of the southern DPS of
eulachon, we are unable to make such a determination at this time. In
the process of recovery planning we may determine that additional areas
are necessary for conservation and revise the designation.
In addition, the commenter incorrectly states that we based our
decision to not designate critical habitat in unoccupied areas ``on a
lack of documentation of the presence of eulachon in those areas.''
Based on the best available science, we determined that nearly all of
the historical and current presence and production of the southern DPS
of eulachon comes from within the geographical area occupied at the
time the species was listed (and particularly the Klamath, Umpqua,
Columbia and Fraser Rivers). Sightings of southern DPS eulachon from
creeks or rivers outside of the geographical area occupied by the
species have been extremely infrequent, and have consisted of very few
fish (Gustafson et al., 2010). Due to such an overwhelming proportion
of the historical and current abundance and production of the southern
DPS of eulachon occurring within the geographical area occupied by the
species, we could not determine that currently occupied areas are
inadequate to conserve the species. We received no new information on
this subject during the comment and peer review process of the Proposed
Critical Habitat Designation (76 FR 515; January 5, 2011). Therefore,
we are not designating any unoccupied areas as critical habitat for the
DPS. This is an issue that we will continue to investigate during the
recovery planning process and we will update the critical habitat
designation if needed.
Economic Impacts of Critical Habitat Designation
Comment 15: One commenter put forth the argument that contemporary
forest management activities have little impact on aquatic organisms
such as eulachon. The commenter also believes that ``it is troubling
that forest management is listed as the activity likely to have the
second most section 7 actions as a result of the critical habitat
designation.''
Response: In the proposed rule we identified a number of activities
that may affect the physical and biological features essential to
conservation of the southern DPS of eulachon (76 FR 515; January 5,
2011). One of the major types of activity was pollution and runoff from
point and non-point sources including industrial activities,
urbanization, grazing, agriculture, and forestry operations. Nearly all
of the watersheds that contain specific areas proposed as critical
habitat for eulachon have been or are still subject to forest
management activities. While we acknowledge that modern forest practice
rules have greatly reduced the impact of forest management activities
on aquatic environments (Cafferata and Spittler, 1998), there is a
large body of information demonstrating that such activities continue
to require special management considerations to ensure they do not
impair eulachon habitat. For example, Rashin et al. (2006) state that
``[t]imber harvest activities have the potential to increase sediment
loading to streams from harvest site erosion and to cause direct
physical disturbance of stream channels and riparian zones.'' Gomi et
al. (2005) report that ``[f]orest management practices can increase
fine
[[Page 65331]]
sediment supply though soil disturbance and accelerated landsliding.''
These authors go on to state ``[s]oil disturbance and sediment delivery
to streams are commonly associated with construction of roads and
landings, slash burning, and log skidding (Reid and Dunne, 1984;
Christie and Fletcher, 1999; Jordan, 2001; Kreutzwiser et al., 2001).
The hydrologic and geomorphic effects of forest roads in particular
have been the focus of many studies, given their demonstrated potential
for negative impacts (Luce and Wemple, 2001).''
As part of our estimate of the potential economic impact of
critical habitat designation for the southern DPS of eulachon we
projected the future administrative costs of engaging in ESA section 7
consultations. In our Draft Economic Analysis (NMFS, 2010b), we
provided a forecast of the annual number of future section 7 actions,
organized by affected watershed and activity, that may require
consultation with NMFS. Forest management was one of the ten broad
activity groups that were identified that may require some form of
section 7 consultation in the future. We have an extensive consultation
history for other anadromous species (including West Coast salmon and
steelhead) in the watersheds that we proposed as eulachon critical
habitat. Estimates of the future annual number of section 7 actions
related to eulachon were based on the average number of past actions
that required consultation for these species in these watersheds
between 2000 and 2009.
While forest management is the activity that we forecast to have
the second-most section 7 actions as a result of eulachon critical
habitat designation, it is important to keep the estimates in
perspective. We chose the individual watersheds that encompass each
stream reach proposed as eulachon critical habitat as our assessment
area for economic impacts (specifically, we used 5th field hydrologic
units as designated by the U.S. Geological Survey). The total land area
included in our assessment area is approximately 9,500 km\2\ (2.3
million acres). We estimate that forest management activities will
result in approximately seven ESA section 7 consultations per year as a
result of eulachon critical habitat designation, and of these, only one
will require formal consultation. Given that forest management is one
of the most dominant land uses across our assessment area, the
estimated number of related consultations that may need to address
eulachon critical habitat is comparatively small for an area so large.
Comment 16: One commenter believed designating ocean areas as
critical habitat would have an adverse economic impact on shrimp
fisheries off the Pacific Coast.
Response: We did not propose to designate critical habitat in
marine waters because we were unable to identify specific areas in the
marine environment that meet the definition of critical habitat under
section 3(5)(A). Therefore we did not assess the economic impact of
designating marine areas as critical habitat, including any economic
impacts to ocean shrimp fisheries.
Comment 17: One commenter expressed concern that the designation of
critical habitat in the Elwha River could lead to changes in the timing
of the upcoming removal of the Elwha and Glines Canyon Dams. The
commenter believes that any changes in the timing of dam removal could
potentially have high associated costs that were not factored into
NMFS' economic analysis.
Response: In 2010, we completed our consultation with the National
Park Service on removal of the Elwha and Glines Canyon Dams and their
effects on eulachon (NMFS, 2010c). Removal of the dams will result in
the release of accumulated sediment that is likely to harm eulachon and
their habitat. In our consultation we considered the direct effects to
eulachon as well as the indirect effects that would result from habitat
alteration. The Biological Opinion contains terms and conditions that
require the Park Service to maintain consistent sediment loads during
March through May to minimize impacts to spawning eulachon. Designation
of critical habitat in the Elwha River will require reinitiation of
consultation with the Park Service. It is possible that during the
course of the consultation our analysis may lead to additional terms
and conditions, but at this time there are none that we can reasonably
anticipate (NMFS 2010c; Zach Hughes, NMFS, Washington State Habitat
Office, personal communication, 9/12/2011). Our economic analysis
therefore includes as a cost of designation only the added
administrative cost of completing a new consultation.
Indian Lands Exclusions
Comment 18: One commenter believed that Tribal lands should not be
excluded from critical habitat because doing so would diminish the
conservation value of the designation. A separate commenter believed
that Tribal lands should only be excluded if the affected Tribes agree
to address eulachon protections in their conservation plans.
Response: Section 4(b)(2) of the ESA provides the Secretary with
discretion to exclude areas from the designation of critical habitat if
the Secretary determines that the benefits of exclusion outweigh the
benefits of designation, and the Secretary finds that exclusion of the
area will not result in extinction of the species. Tribal 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 policies and 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 policy 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.''
In our proposed rule, we determined that excluding Tribal lands
from critical habitat designation would have the benefit of promoting
federal policies regarding Tribal sovereignty and self-governance
(e.g., Executive Order 13175). In addition, we determined that
exclusion of Tribal lands would have the benefit of promoting a
positive working relationship between NMFS and the Tribes (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).
Although these specific areas have a high conservation value for
eulachon, their extent is relatively small (approximately 5% of the
total area designated). 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.
The Tribes affected by this critical habitat designation have
played and continue to play an active role in the conservation and
management of this species. These Tribal governments are also co-
managers of a variety of other freshwater and marine species and
[[Page 65332]]
resources throughout the region. The co-manager relationship crosses
Tribal, Federal, and state boundaries, due to the migratory
characteristics of these species. As we move forward with eulachon
recovery planning, a positive working relationship with the Tribes will
be crucial to the management and recovery of eulachon.
While it is possible that exclusion of Indian lands may result in a
small reduction in the conservation benefits of the designation, the
species is still protected under the jeopardy standard of ESA section
7, and activities that occur on non-Tribal lands near or adjacent to
excluded Tribal lands will still be subject to section 7 consultation
for adverse modification of critical habitat. In addition, there are
several management plans that guide Tribal activities in the affected
watersheds (e.g., the Quinault Reservation Forest Management Plan,
Elwha River Fish Restoration Plan, and the Lower Klamath River Sub-
Basin Watershed Restoration Plan) and provide protection to eulachon
habitat.
Comment 19: One commenter believed that we should not exclude lands
covered by a Habitat Conservation Plan (HCP) unless the plan contains
adequate protections for eulachon.
Response: We agree that adequate protections for eulachon within an
existing HCP should be a requirement for any landowner seeking to have
land excluded from critical habitat designation. There are two existing
HCPs that overlap areas that were 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 address conservation of eulachon, and it is unclear what, if
any, conservation benefits they might provide to eulachon. In addition,
neither of the HCP holders requested that their lands be excluded from
critical habitat. Therefore, we have decided not to exclude any land
covered by these HCPs from this critical habitat designation.
Summary of Revisions
We evaluated the comments and new information received on the
proposed rule to ensure that they represented the best scientific data
available and made a number of changes to the critical habitat
designations, including:
(1) We revised the number of specific areas included in our
critical habitat designation based on comments received and new
scientific information that became available following publication of
the proposed rule. Specifically, we added Skamokawa Creek, and the
Toutle River (both in Washington State) to the list of specific areas.
(2) We extended the upstream extent of critical habitat for three
specific areas based on comments received and new scientific
information. Critical habitat was extended on Redwood Creek,
California, and the Elochoman and Kalama Rivers in Washington. In
addition we revised the Lewis River specific area to include the East
Fork of the Lewis River.
(3) We further explained and clarified the functional relationship
between the spawning and incubation essential feature and the migration
corridor essential feature based on comments received.
(4) We revised our economic analysis based on additions to the
specific areas included in the critical habitat designation.
Specifically, we added a new 5th field hydrologic unit to our analysis
(HUC 1708000205: East Fork Lewis River).
(5) We have designated critical habitat in the Quinault River,
Washington, and the Klamath River, California. These specific areas
were excluded entirely from the proposed critical habitat rule. Upon
further review, based on more complete information on land ownership,
we determined that only the portions of these rivers that overlap with
Indian lands are eligible for exclusion. Critical habitat does not
include any Tribal lands of the Lower Elwha Tribe, Quinault Tribe,
Resighini Rancheria, or Yurok Tribe.
Methods and Criteria Used To Identify Critical Habitat
In accordance with section 4(b)(2) of the ESA and our implementing
regulations (50 CFR 424.12), this final 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 the southern
DPS of eulachon (Gustafson et al., 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) and
information provided during the comment process. All of the information
gathered to create this final rule has been collated and analyzed in
three supporting documents: The Eulachon Biological Report (NMFS,
2011b); the Eulachon Economic Analysis (NMFS, 2011c); and, the Eulachon
Section 4(b)(2) Report (NMFS, 2011a).
We used this information to identify specific areas that 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 conclusions are described in detail in the following
sections.
Geographical Area Occupied by the Species
As described in the proposed rule, the first step in designating
critical habitat is to identify the geographical area occupied by the
species at the time of listing. In our proposed critical habitat
designation we interpreted the ``geographical area occupied'' in ESA
section 3(3) as equivalent to the range of the species at the time of
listing. In our March 2010 final ESA listing rule, and in the proposed
critical habitat designation, we identified the range of the southern
DPS of eulachon as extending from the Skeena River in British Columbia,
Canada, to the Mad River in California (Gustafson et al., 2010). We
cannot designate areas outside U.S. jurisdiction as critical habitat
(see above), thus, we limited our consideration of the range of the
southern DPS of eulachon to the geographical area from the
international border with Canada to the Mad River in California. We did
not attempt to further refine our identification of the ``geographical
area occupied by the species'' at the time of listing because of the
process we followed in the subsequent steps of our designation. As
explained more fully below, we identified freshwater spawning and
incubation sites as a ``physical or biological feature essential to
conservation'' of the species. In determining the ``specific areas''
that contain those sites, we confirmed that eulachon were documented
using the sites for spawning. Thus our process of confirming that a
specific area contains the essential features also allowed us to
[[Page 65333]]
confirm that the area was indeed occupied. Given the highly migratory
nature of eulachon and limited marine sampling, we do not know how far
offshore the southern DPS of eulachon are distributed and thus how far
offshore the geographical area occupied by the species extends. We
consider the marine extent of the geographical area occupied by the
species as undeterminable at this time.
Physical or Biological Features Essential for Conservation
Joint NMFS-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 physical and
biological features 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, and with migratory access for adults and juveniles.
These features are essential to conservation because without them the
species cannot successfully spawn and produce offspring.
(2) Freshwater and estuarine migration corridors associated with
spawning and incubation sites that are 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.
Eulachon prey on a wide variety of species including crustaceans such
as copepods and euphausiids (Hay and McCarter, 2000; WDFW and ODFW,
2001), unidentified malacostracans (Sturdevant, 1999), cumaceans (Smith
and Saalfeld, 1955) mysids, barnacle larvae, and worm larvae (WDFW and
ODFW, 2001). 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 sites
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, British Columbia, eulachon preferred
water velocities from 0.1 to 0.7 m/s (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 (Gustafson et al., 2010). 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; Smith and Saalfeld, 1955; Howell
et al., 2001).
Flow: A flow regime (i.e., the magnitude, frequency, duration,
seasonality, and rate-of-change of 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
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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. The
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. Eulachon larvae and juveniles eat a
variety of prey items, including phytoplankton, copepods, copepod eggs,
mysids, barnacle larvae, and worm larvae (Barraclough, 1967;
Barraclough and Fulton, 1967; Robinson et al., 1968a, 1968b). Eulachon
adults feed on zooplankton, chiefly eating crustaceans such as copepods
and euphausiids (Hart, 1973; Scott and Crossman, 1973; Hay, 2002; Yang
et al., 2006), unidentified malacostracans (Sturdevant, 1999), and
cumaceans (Smith and Saalfeld, 1955).
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 identifying the physical and biological features
essential to their conservation, we next identified the specific areas
that meet the statutory definition of critical habitat. Critical
habitat is defined in Section 3(5)(A)(i) of the ESA as the ``specific
areas within the geographical area occupied by the species * * * on
which are found those physical and biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protection''. All of the essential
physical and biological features we identified for freshwater and
estuarine habitat occur within either spawning and incubation areas, or
migratory corridors. In order to identify specific areas where the
essential features occur, we developed criteria to determine if an area
contained either spawning and incubation sites, or a migratory
corridor. These criteria are areas that contain: (1) Larval fish or
pre-/post-spawn adults that have been positively identified and
documented; or (2) commercial or recreational eulachon fishery that has
been documented over multiple years. There are 42 creeks and rivers
with known or possible eulachon spawning within the U.S. range of the
southern DPS of eulachon (Gustafson et al., 2010; NMFS, 2011b). Of
these, we identified 16 that meet at least one of the criteria for the
presence of the physical or biological features essential for eulachon
conservation. We then determined the distribution of the essential
features within these creeks or rivers. We relied on evidence of adult
and larval eulachon presence to delineate the extent of the specific
areas where the spawning and incubation sites and migration corridors
are found.
We used the most recent scientific information available to us
(including data from published literature, field observations,
opportunistic sightings, commercial and recreational harvest, and
anecdotal information) to determine the presence and distribution of
the essential features within the creeks and rivers with known or
possible presence of eulachon. For a limited number of areas,
opportunistic sightings are the only information that is available to
identify the presence and distribution of the essential features. Where
the only available information was opportunistic sightings, we
consulted agency and Tribal biologists familiar with the area to
confirm the information and identify the presence and extent of the
essential features. For these areas we consider this the ``best
available scientific information,'' necessary to inform our decisions.
The 16 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 Eulachon Biological
Report (NMFS, 2011b) 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 the southern
DPS of eulachon.
(1) Mad River, CA: The Mad River is located in northwestern
California. It flows for approximately 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;
Gustafson et al., 2010). 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). CDFG reported
that during the early 1970s eulachon regularly spawned between the
ocean and the mouth of Prairie Creek (the first major tributary on
Redwood Creek; Moyle et al., 1995). During April 1973, a spawning run
of eulachon were observed passing Tom McDonald Creek (CDFG, 1973), a
tributary located approximately 19.7 km (12.2 miles) upstream from the
mouth of Redwood Creek, indicating that this area contains the
essential features of spawning and incubation, and a migration
corridor. Spawning also occurred in the lower 0.5
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km (0.3 mi) of Prairie Creek (Moyle et al., 1995), sporadically up to
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 (Fry, 1979; Moyle et al., 1995; Larson and
Belchik, 1998; Moyle, 2002; Hamilton et al., 2005), and a commercial
fishery occurred there in 1963 (Odemar, 1964). 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, and again in February 2011, a small number of eulachon
were reportedly caught by Tribal fishers on the Klamath River (Yurok
Tribe, 2008; McCovey, 2011). 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. Approximately 1,800 to 2,300 kg
(4,000 to 5,000 lbs) 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 (OFC, 1970). 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, which are protected from development.
Eulachon are regularly caught in salmonid smolt traps operated in
the lower reaches of Tenmile Creek by 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) (Joint Columbia River Management Staff [JCRMS], 2009). During
spawning, eulachon extent in the Sandy River is typically upstream to
the confluence with Gordon Creek (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 (WDFW and ODFW, 2001; Gustafson et al., 2010; the Columbia River
tributaries in Washington State are discussed below as separate
specific areas).
Although direct estimates of adult spawning stock abundance in the
Columbia River are unavailable, records of commercial fishery landings
begin in
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1888 and continue as a nearly uninterrupted data set to 2010 (Gustafson
et al., 2010). 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
took 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). As noted above in
response to Comment 7, eulachon have historically been reported as far
upstream as Hood River but have rarely passed Bonneville Dam since its
completion in 1937.
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 declined to the very low levels
observed in the mid-1990s (JCRMS, 2009), and the fishery operated at
the most conservative level allowed in the Joint State Eulachon
Management Plan from 2005 to 2010 (JCRMS, 2009). All commercial and
recreational fisheries for eulachon were closed in Oregon and
Washington for 2011.
(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 to 16 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 (JCRMS, 2009). During spawning, eulachon typically ascend
the river as far as 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) Skamokawa Creek, WA: Skamokawa Creek is a tributary of the
Columbia River located in southwest Washington. Skamokawa Creek drains
a relatively small (161 km\2\ [63 mi\2\]) watershed that lies entirely
within Wahkiakum County.
During April 2011, biologists from the Cowlitz Indian Tribe
documented the presence of eulachon larvae in Skamokawa Creek,
confirming eulachon spawning in this system (Cowlitz Indian Tribe,
2011). These biologists used a systematic sampling protocol to
determine that the bridge crossing at Petersen was the likely upstream
limit of spawning. We consider this recent information as the best
available indicating that this area contains the spawning and
incubation, and migration corridor essential features for eulachon.
(10) 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 Elochoman
watershed area is approximately 261 km\2\ (101 mi\2\) (Lower Columbia
Fish Recovery Board [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 7 times in the last 15 years (JCRMS,
2011), most recently in 2011 (Chris Wagemann, WDFW, personal
communication, 4/18/2011). In the past, WDFW has observed spawning
eulachon in the Elochoman River as far the Washington State Highway 4
bridge crossing (Anderson, 2009). However, in April 2011, biologists
from the Cowlitz Indian Tribe documented the presence of larval
eulachon in the Elochoman River to the Monroe Drive bridge crossing
(Cowlitz Tribe, 2011), indicating that a more extensive 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 11.5 [river mi 7.1]) may be a barrier to any further upstream
migration of eulachon (Wade, 2002).
(11) 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, Washington, 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).
[[Page 65337]]
(12) Toutle River, WA: The Toutle River is a tributary of the
Cowlitz River, and it occurs in portions of Lewis, Cowlitz, and
Skamania Counties in southwestern Washington State. The Toutle River is
one of the major tributaries of the lower Cowlitz River and their
confluence occurs 32 km (20 mi) upstream of the mouth of the Cowlitz
River, just north of the town of Castle Rock, Washington. The basin
encompasses approximately 1,329 km\2\ (513 mi\2\) of mostly forested
land. The Toutle River drains the north and west sides of Mount St.
Helens and elevations in the watershed range from near sea level at the
mouth to 2,550 m (8,365 ft) at the summit of Mount St. Helens. The
watershed contains three main drainages: The North Fork Toutle, the
South Fork Toutle, and the Green River. Most of the North and South
Fork were impacted severely by the 1980 eruption of Mount St. Helens
and the resulting massive debris torrents and mudflows (LCFRB, 2004b).
During April 2011, biologists from the Cowlitz Indian Tribe
documented the presence of eulachon larvae in the Toutle River,
confirming eulachon spawning in this system (Craig Olds, Cowlitz Indian
Tribe, personal communication, April 22, 2011). In the past, spawned
out eulachon adults have been collected in the Cowlitz River near the
mouth of the Toutle River. But the recent surveys provide the first
evidence of spawning in the Toutle River. The Cowlitz Tribe biologists
captured eulachon larvae in the Toutle River up to the bridge crossing
at Tower Road, which is 10.5 km (6.6 mi) upstream from the confluence
with the Cowlitz River. We consider this recent information as the best
available indicating that this area contains the spawning and
incubation, and migration corridor essential features for eulachon.
(13) 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) of 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 confluence with Indian Creek
(Cowlitz Indian Tribe, 2011), indicating that this area contains the
spawning and incubation, and migration corridor essential 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 2011 (Cowlitz Indian Tribe, 2011).
(14) 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 Clark, Cowlitz 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 have been caught in the Lewis River
during sampling efforts by WDFW and the Cowlitz Indian Tribe, (JCRMS,
2009; Cowlitz Indian Tribe, 2011). 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 (WDFW and ODFW,
2008; Anderson, 2009). Larval eulachon have also been caught in the
East Fork of the Lewis River, up to the confluence with Mason Creek,
9.2 km (5.7 mi) from the confluence with the mainstem of the Lewis
River (Cowlitz Indian Tribe, 2011). The capture of larval eulachon in
the mainstem and east fork of the Lewis River indicates that these
areas contain the spawning and incubation, and migration corridor
essential features.
Merwin Dam, completed in 1931, is 240 feet high and currently
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. However, Merwin Dam was built in an area
where the Lewis River became constricted, with increased gradient and
higher water velocities. Prior to dam construction this area was likely
a natural passage barrier for eulachon. For this reason, the area
upstream of the current Merwin Dam site was not considered for
inclusion as critical habitat.
(15) 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).
(16) 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
[[Page 65338]]
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 Tribe, 2010). Several of the fish captured in 2005 were ripe
(egg-extruding) females, indicating that eulachon likely spawn in the
Elwha River (Shaffer et al., 2007). 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 the present site of the
Elwha Dam prior to construction. However, the dam was built in an area
where the Elwha River became constricted, with increased gradient and
higher water velocities. Prior to dam construction this area was likely
a natural passage barrier for eulachon. For this reason, the area
upstream of the current Elwha Dam site was not considered for inclusion
as critical habitat. 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
began in September 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
that flows directly into marine waters 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). Our
regulations state that ``[e]ach critical habitat will be defined by
specific limits using reference points and lines as found on standard
topographic maps of the area'' (50 CFR 424.12 (c)). The COLREGS lines
(where defined) were chosen as the downstream extent of freshwater and
estuarine critical habitat because they are a clearly defined federal
standard, separating marine and inland waters, which incorporates
landmarks that are found on standard topographic maps.
Occupied Areas Not Designated at This Time
In the Pacific Ocean, we identified nearshore and offshore foraging
sites as an essential habitat feature for the conservation of eulachon,
and we determined that abundant forage species and suitable water
quality are specific components of this habitat feature. However, we
were unable to identify any specific areas in marine waters that meet
the definition of critical habitat under section 3(5)(A)(i) of the ESA.
Given the unknown, but potentially wide, distribution of eulachon prey
items, we could not identify ``specific areas'' where either component
of the essential features is found within marine areas believed to be
occupied by eulachon. Moreover, prey species move or drift great
distances throughout the ocean and would be difficult to link to any
``specific'' areas.
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; (4) pollution and runoff from
point and non-point sources; (5) 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 Eulachon Biological Report (NMFS, 2011b)). 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 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 may 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 may 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.
[[Page 65339]]
(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) may 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) Tidal, Wind, or Wave Energy Projects: 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. Projects are typically proposed for location in coastal
marine waters or coastal estuaries. Some designs may result in physical
structures that impede or delay passage of 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 (e.g., engineered log jams), placement of gravel, planting
of riparian vegetation, and many other habitat-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 and current presence and
production of the southern DPS of eulachon comes from within the
geographical area occupied by the southern DPS at the time of listing,
and no new information on this subject was received during the comment
and peer review process of the Proposed Critical Habitat Designation
(76 FR 515; January 5, 2011). Sightings of southern DPS eulachon from
creeks or rivers outside of this area have been extremely infrequent,
and have consisted of very few fish (Gustafson et al., 2010).
Therefore, 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
Specific area kilometers/ Physical or biological Activities
miles features
----------------------------------------------------------------------------------------------------------------
(1) Mad River, CA............... 21.0/13.0 Migration, Spawning.... DAM, CON, POLL
(2) Redwood Creek, CA........... 19.7/12.2 Migration, Spawning.... CON, POLL
(3) Klamath River, CA........... 17.2/10.7 Migration, Spawning.... DAM, DR, CON, POLL
(4) Umpqua River, OR............ 39.0/24.2 Migration, Spawning.... DAM, DR, POLL
(5) Tenmile Creek, OR........... 0.4/0.2 Migration, Spawning.... CON, POLL
(6) Sandy River, OR............. 20.0/12.4 Migration, Spawning.... DAM, CON, POLL
(7) Columbia River, OR and WA... 230.5/143.2 Migration, Spawning.... DAM, DR, CON, POLL, ENER, PORT, REST
(8) Skamokawa Creek............. 7.8/4.8 Migration, Spawning.... CON, POLL
[[Page 65340]]
(9) Grays River, WA............. 17.9/11.1 Migration, Spawning.... DAM, DR, CON, POLL
(10) Elochoman River, WA........ 8.4/5.2 Migration, Spawning.... CON, POLL
(11) Cowlitz River, WA.......... 80.8/50.2 Migration, Spawning.... DAM, DR, CON, POLL, PORT, REST
(12) Toutle River............... 10.5/6.6 Migration, Spawning.... DAM, CON, POLL
(13) Kalama River, WA........... 12.6/7.8 Migration, Spawning.... DAM, CON, POLL
(14) Lewis River, WA............ 31.1/19.3 Migration, Spawning.... DAM, CON, POLL
East Fork, Lewis River, WA.. 9.2/5.7 Migration, Spawning.... CON, POLL
(15) Quinault River, WA......... 4.8/3.0 Migration, Spawning.... CON, POLL
(16) Elwha River, WA............ 7.6/4.7 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 that we proposed for
designation as critical habitat for the southern DPS so there are no
known potential areas that would be removed from this final 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 the best scientific and
commercial data available. 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).
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. Because upslope and
upstream activities may 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 Eulachon Economic Analysis Report [NMFS,
2011c] for definition of the 5th field hydrologic units and more
information). 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 Eulachon Section 4(b)(2) Report [NMFS, 2011a].)
This approach allowed us to consider impacts and benefits associated
with Tribal land ownership and management by Indian Tribes.
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
[[Page 65341]]
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 (the
largest river in the Pacific Northwest), and as small as Tenmile Creek
(a watershed of approximately 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, 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 eulachon in the conterminous United
States originates in the 16 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 that
we identified 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. For the
specific areas designated as critical habitat, federal agencies are
additionally required to ensure their actions are not likely to
adversely modify the critical habitat. In order to conduct our economic
analysis we grouped the potential federal activities that may be
subject to this additional protection into several broad categories:
Dams, water supply, agriculture, transportation, forest management,
mining, in-water construction and restoration, water quality
management/monitoring, and other activities. (The Eulachon Economic
Analysis [NMFS, 2011c] 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 39 actions would require section
7 consultation annually within the particular areas designated as
eulachon critical habitat (NMFS, 2011c). The most common activity type
subject to consultation would be in-stream work (estimated 13.3
consultations annually), followed by transportation projects (estimated
6.9 consultations annually) and forest management (estimated 6.7
consultations annually). A complete list of the estimated annual
actions, divided by particular area, is included in the Eulachon
Economic Analysis (NMFS, 2011c). 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.
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) 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.D.C. 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
[[Page 65342]]
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
Eulachon Economic Analysis (NMFS, 2011c) 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 $512,000 for designating the 16 specific areas as
eulachon critical habitat. The greatest costs are associated with water
supply, mining, and forest management activities (see NMFS, 2011c 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 $32,200), due to mining activities and water supply
activities, respectively (NMFS, 2011c). 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 $31,000/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 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. Removal of the Elwha and Glines Canyon
dams on the Elwha River began in September 2011. Because protections
are already in place (as a result of an ESA section 7 consultation) 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.
(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 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 or related activities do not overlap
with, nor are adjacent to, any areas that we proposed for designation
as critical habitat for the southern DPS. Thus, we did not identify any
direct impacts to national security for any of the specific areas that
we have 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
and Quinault Rivers in Washington, and the Klamath River in California
(eulachon do not ascend into the Oregon portion of the Klamath River).
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 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
[[Page 65343]]
the framework of applicable treaties and laws. Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, outlines
the policies and 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 policy 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 via e-
mail 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 landowners with conservation agreements that overlap
areas we are designating as critical habitat for the southern DPS of
eulachon; the Green Diamond Timber Company (covering the company's
operations in northern California, including portions of the Klamath
River), and the Humboldt Bay Municipal Water District (covering their
operations in the Mad River, California).
Balancing Benefits of Designation Against Benefits of Exclusion
A final ESA section 4(b)(2) report (NMFS 2011a) describes in detail
our approach to weighing the benefit of designation against the benefit
of exclusion. The results of our analysis contained in this report are
summarized below.
Economic Exclusions
As described above, the economic benefits of excluding particular
areas are small, totaling about $512,000. For each particular area,
estimated economic impacts range from $13,600 to $63,500. We consider
all 16 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
enhances our ability to address some of these threats through section 7
consultations and through public outreach and education. We concluded
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 (not more than
$63,500 for any particular area); (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; (5) the conservation value
of each area is high; and (6) designation enhances 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.
HCP Exclusions
The conservation benefits of designating lands covered by an HCP
are the same as the benefits of designating other lands, which are
public notice and the protection that arises from the ESA section 7
requirement that Federal agencies ensure their actions do not adversely
modify that habitat. Where an HCP covers the species in question, or a
species with similar distribution and habitat needs, these benefits
might be reduced somewhat because the landowner is already aware of the
importance of the habitat, and because the HCP might already protect
the habitat beyond the section 7 requirements.
In the case of eulachon there are two HCPs that overlap with the
proposed critical habitat in the Klamath and Mad Rivers. We estimate
that annually, 0.3 forest management actions in the
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Klamath River, and 0.2 water supply actions in the Mad River, will
require ESA section 7 consultations as a result of this critical
habitat designation. We rated these areas as having a high conservation
value. The primary benefit of designation is thus the protection
afforded these high conservation areas in a section 7 consultation.
Regarding the benefits of excluding these areas, we have considered
two primary impacts of designating critical habitat on lands covered by
an HCP. The first is the additional cost incurred in an ESA section 7
consultation, either an administrative cost or the cost of having to
change the action to avoid adverse modification of the habitat. In this
case the administrative costs are small for each specific area, and
even smaller for the lands covered by the HCPs, which represent only a
portion of two specific areas. The second potential impact of
designation is the effect on our relationship with the landowner. In
past designations, some landowners have indicated that they welcome
designation, while others have opposed designation and expressed the
view that designation will harm their relationship with us and affect
implementation of the HCP. In the latter case, the benefit of exclusion
may therefore be a conservation benefit to the species. In the present
designation, we contacted both HCP holders. Neither requested that
their lands be excluded from critical habitat or otherwise indicated
that a designation of eulachon critical habitat on their land would
affect our relationship or their implementation of the HCP. Given that
fact, we determined that our working relationship with the HCP holders
would not be significantly impacted by this critical habitat
designation, thus the benefit of exclusion based on effects to a
relationship do not outweigh the benefits of designation.
Indian Lands Exclusions
The eulachon critical habitat Section 4(b)(2) report (NMFS, 2011a)
details our consideration of excluding Indian lands in this critical
habitat designation. The discussion here summarizes that consideration.
The designation of critical habitat for eulachon on Indian lands
would have an impact on federal policies promoting Tribal sovereignty
and self-governance. It would also have an impact on the relationship
between NMFS and each of the Tribes 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 for these specific
areas, all of which have been determined to have a high conservation
value. The benefit of designating a particular area depends on the
likelihood of section 7 consultation occurring in the area and the
degree to which consultation would yield conservation benefits for the
species. This protection would apply to all federal activities, which
we expect would include dam operations, water supply, forest
management, instream construction, mining, agriculture, water quality,
transportation projects, and habitat restoration. As described above,
ESA section 7 consultations for Federal actions on Indian lands would
still need to consider whether the action jeopardized the continued
existence of the species, and Federal actions on non-Indian lands may
still need to consider designated critical habitat elsewhere in the
watershed, thus some of the benefits of a section 7 consultation could
still apply even if the Indian lands were excluded.
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. Although the lands of the Quinault
Indian Nation encompass most of the area occupied by eulachon in the
Quinault River, activities that occur on non-Indian lands would still
require ESA section 7 consultation to consider adverse modification of
critical habitat. The Quinault Tribe has completed a Forest Management
Plan (FMP), on which the USFWS prepared a programmatic biological
opinion. 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 included in the biological opinion for the FMP include
requirements that in-water or near-stream activities may only be
conducted during 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 portion 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 small reduction in the benefits of designation
(primarily the loss of section 7 consultation to consider adverse
modification of critical habitat on 4.8 km (3 mi) of stream habitat).
The current FMP provides some protection for eulachon habitat and will
provide a structure for future coordination and communication between
the Quinault Tribe, USFWS, and NMFS. For these reasons, we conclude
that the benefits of exclusion outweigh the benefits of designation.
Lower Elwha Tribal Lands. Indian lands of the Lower Elwha Tribe
overlap with approximately 2.3 km (1.4 mi), or 29 percent, of the areas
occupied by eulachon in the Elwha River. As explained above, federal
agencies would still need to consult on the effects of their actions on
areas designated as critical habitat elsewhere in the basin. Exclusion
of the portion 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 (i.e., 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 Lands. Indian lands of the Resighini Rancheria
overlap with approximately 0.5 km (0.3 mi), or 3 percent, of the areas
occupied by eulachon in the Klamath River. Exclusion of these Rancheria
lands would have the benefit of promoting federal policies regarding
Tribal sovereignty and self-governance. It would also foster a positive
relationship between NMFS and the Tribe, with a very small reduction in
the benefits of designation (primarily the loss of ESA section 7
consultation to consider adverse modification of critical habitat).
[[Page 65345]]
For these reasons, we conclude that the benefits of exclusion outweigh
the benefits of designation.
Yurok Tribal Lands. The boundaries of the Yurok Indian Reservation
encompass the entire 17.5 km (10.9 mi) of the areas occupied by
eulachon in the Klamath River. However, land ownership within the
reservation boundary includes a mixture of Federal, state, Tribal, and
private ownerships. Exclusion from critical habitat designation would
only apply to Indian lands. Federal agencies would still need to
consult on the effects of their actions on areas designated as critical
habitat elsewhere in the basin.
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 started monitoring eulachon to determine their
current abundance and distribution in the Klamath River.
Exclusion of Yurok Tribal lands in the Klamath River basin from
critical habitat designation 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. The current forest management and water
quality control plans provide some protection for eulachon habitat and
will provide a structure for future coordination and communication
between the Yurok Tribe and NMFS. For these reasons, we conclude that
the benefits of exclusion outweigh the benefits of designation.
All Indian lands. Although economic impacts were not considered in
our decision to exclude Indian lands from critical habitat designation,
designation of these lands would have economic impacts, and exclusion
would therefore have economic benefits. It is difficult to quantify
those impacts (and corresponding benefits) for Indian lands on the
Elwha River and the Klamath River because Tribal lands do not encompass
the entire area that is being considered for designation for these two
rivers. Some types of actions on non-Indian lands in these watersheds
could affect areas that are not excluded from designation. Therefore,
an ESA section 7 consultation for non-Indian lands would still need to
consider the 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 as critical
habitat on the Quinault River, thus exclusion would relieve nearly all
of the administrative costs of considering effects of actions on the
specific area. We estimated a total annualized incremental
administrative cost of approximately $512,000 for designating all 16
specific areas as eulachon critical habitat. The exclusion of Indian
Lands from critical habitat designation would decrease the total
annualized incremental administrative cost by at least $24,700. With
Indian Lands excluded, the total annualized incremental administrative
cost of designating eulachon critical habitat would be no greater than
$487,300.
Extinction Risk Due to Exclusions
Section 4(b)(2) of the ESA 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 (Gustafson et al., 2010). 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 (Gustafson et al., 2010) and likely contribute only a small
fraction to the total DPS abundance. Because the overall percentage of
critical habitat on Indian lands is small 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 are designating approximately 539 km (335 mi) of riverine and
estuarine habitat in California, Oregon, and Washington within the
geographical area occupied by the southern DPS of eulachon. The
designated critical habitat areas contain one or more of the physical
or biological features essential to the conservation of the species
that may require special management considerations or protection. We
are excluding from designation all lands of the Lower Elwha Tribe,
Quinault Tribe, Yurok Tribe and Reshigini Rancheria, upon a
determination that the benefits of exclusion outweigh the benefits of
designation (NMFS, 2011a). We conclude that the exclusion of these
areas will not result in the extinction of the southern DPS because the
overall percentage of critical habitat on Indian lands is so small
(approximately 5% of the total are designated), and it is likely that
eulachon production on these lands represents a very small percent of
the total annual production for the DPS. We have not identified any
unoccupied areas that are essential to conservation, and thus we have
not designated any unoccupied areas as critical habitat at this time.
Lateral Extent of Critical Habitat
We describe the lateral extent of critical habitat 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 for Pacific
salmon and steelhead (70 FR 52630; September 2, 2005) and 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.
[[Page 65346]]
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. 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
consultation, we 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 re-initiation of a
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat.
Activities subject to the ESA section 7 consultation process
include activities on federal lands and activities on private or state
lands requiring a permit from a federal agency (e.g., a 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 is not
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 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 designated 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), 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 EPA.
Private entities may also be affected by this critical habitat
designation if a federal permit is 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 designated 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).
Information Quality Act and Peer Review
The data and analyses supporting this 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
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or after June 16, 2005. Two documents supporting this designation of
critical habitat for the southern DPS of eulachon are considered
influential scientific information and subject to peer review. These
documents are the Eulachon Biological Report (NMFS, 2011b) and Eulachon
Economic Analysis (NMFS, 2011c). We distributed drafts of the
Biological Report and Economic Analysis for independent peer review and
have addressed 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/, 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
it must prepare and make available for public comment a regulatory
flexibility analysis describing the effects of the rule on small
entities (i.e., small businesses, small organizations, and small
government jurisdictions). We have prepared a final regulatory
flexibility analysis (FRFA), which is part of the Economic Analysis
(NMFS, 2011c). The FRFA incorporates the Initial Regulatory Flexibility
Analysis (IRFA), which was part of the draft economic analysis that
accompanied the proposed rule to designate critical habitat. The FRFA
also incorporates comments received on the IRFA and on the economic
impacts of the rule generally. The results of the IRFA are summarized
below.
A statement of the need for and objectives of this final rule is
provided earlier in the preamble and is not repeated here. This final
rule will not impose any recordkeeping or reporting requirements.
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 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 consultation. In order to estimate the number and activity
type of future ESA section 7 consultations for eulachon, we relied on
the past consultation history for other anadromous fish species in
watersheds being designated as critical habitat. While this provides a
reasonable estimate of future activities that may require section 7
consultation, differences in life history between eulachon and other
listed anadromous fish species will likely result in differences in the
number and type of activities that trigger consultation for eulachon.
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 approximately 607
small businesses involved in the activities listed above would most
likely be affected by the critical habitat designation. Total
annualized impacts to small entities are conservatively assumed to be
$510,000, or approximately 99.6 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
this critical habitat designation (approximately 607), 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 $3,372, 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 39 entities). Under this
scenario, each small entity may bear costs of between $1,900 and
$158,200, representing between 0.01 and 4.57 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 and would not provide for the
conservation of the southern DPS of eulachon. A second alternative of
designating all potential critical habitat areas (i.e., no areas
excluded) also was considered and rejected because for some areas the
benefits of exclusion from designation outweighed the benefits of
inclusion (NMFS, 2011a).
As an alternative to designating all potential critical habitat
areas, NMFS considered the alternative of designating critical habitat
within a subset of these areas (preferred alternative). Under section
4(b)(2) of the ESA, NMFS must consider the economic impact, impacts on
national security, and any other relevant impact of specifying any
particular area as critical habitat. The Secretary has the discretion
to exclude an area from designation as critical habitat if the benefits
of exclusion (i.e., the impacts that would be avoided if an area were
excluded from the designation) outweigh the benefits of designation
(i.e., the conservation benefits to the southern DPS of eulachon if an
area were designated), as long as exclusion of the area will not result
in extinction of the species. We prepared an analysis describing our
exercise of discretion, which is contained in our Final Section 4(b)(2)
Report (NMFS, 2011a). Under this preferred alternative we have excluded
Indian lands in California and Washington from designation as critical
habitat. This preferred alternative reduces the number of small
businesses potentially affected from 607 to approximately 591, and the
total potential annualized economic impact to small businesses would be
reduced from $510,000 to approximately $485,300.
Executive Order 12866
This rule has been determined to be not significant under E.O.
12866.
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
[[Page 65348]]
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, 2011a).
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, NMFS makes the
following findings:
(a) This final rule will not produce a federal mandate. In general,
a federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon state, local, Tribal
governments, or the private sector and includes both ``federal
intergovernmental mandates'' and ``federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary federal
program,'' unless the regulation ``relates to a then-existing federal
program under which $500,000,000 or more is provided annually to state,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the state, local, or Tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement.)
``Federal private sector mandate'' includes a regulation that
``would impose an enforceable duty upon the private sector, except (i)
a condition of federal assistance; or (ii) a duty arising from
participation in a voluntary federal program.'' The designation of
critical habitat does not impose 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 critical habitat
from existing critical habitat designations 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 final rule will significantly or
uniquely affect small governments. As such, a Small Government Agency
Plan is not required.
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 final rule does not have significant takings implications. A
takings implication assessment is not required. The designation of
critical habitat affects only federal agency actions. We do not expect
the critical habitat designation to impose additional burdens on land
use or affect property values. Additionally, the 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 critical habitat designation will
continue to have the opportunity to use their property in ways
consistent with the survival of the southern DPS of 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 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.
Federalism
In accordance with Executive Order 13132, we determined that this
final rule does not have significant federalism effects and that a
federalism assessment is not required. In keeping with Department of
Commerce policies, we will continue to coordinate with appropriate
state resource agencies in California, Oregon, and Washington regarding
this critical habitat designation. The designation may have some
benefit to state and local resource agencies in that the areas and
habitat features essential to the conservation 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 final 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 designating
critical habitat in accordance with the provisions of the ESA. This
final rule uses standard property descriptions and identifies the
essential features within the designated areas to assist the public in
understanding the habitat needs of the southern DPS of eulachon.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This final 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 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
[[Page 65349]]
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 eulachon and other
anadromous species.
For the general reasons described in the Other Relevant Impacts--
Impacts to Tribal Sovereignty and Self-Governance section above, the
ESA section 4(b)(2) analysis has led us to exclude all Indian lands
from designation as critical habitat for the southern DPS of eulachon.
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: October 12, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, part 226, title 50 of the
Code of Federal Regulations is amended to read as follows:
PART 226--DESIGNATED CRITICAL HABITAT
0
1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
2. Add Sec. 226.222, 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]52'32'' N./123[deg]59'30'' W.).
(2) Redwood Creek, California. From the mouth of Redwood Creek
(41[deg]17'35'' N./124[deg]5'30'' W.) upstream to the confluence with
Tom McDonald Creek (41[deg]12'25'' N./124[deg]0'39'' W.).
(3) Klamath River, California. From the mouth of the Klamath River
(41[deg]32'52'' N./124[deg]4'58'' W.) upstream to the confluence with
Omogar Creek (41[deg]29'13'' N./123[deg]57'39'' W.)
(4) Umpqua River, Oregon. From the mouth of the Umpqua River
(43[deg]40'7'' N./124[deg]13'6'' W.) upstream to the confluence with
Mill Creek (43[deg]39'20'' N./123[deg]52'35'' W.).
(5) 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.).
(6) 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.).
(7) Columbia River, Oregon and Washington. From the mouth of the
Columbia River (46[deg]14'48'' N./124[deg]4'33'' W.) upstream to
Bonneville Dam (45[deg]38'40'' N./121[deg]56'28'' W.).
(8) Grays River, Washington. From the confluence with the Columbia
River upstream to Covered Bridge Road (46[deg]21'18'' N./
123[deg]34'52'' W.).
(9) Skamokawa Creek, Washington. From the confluence with the
Columbia River upstream to Peterson Road Bridge (46[deg]18'52'' N./
123[deg]27'10'' W.).
(10) Elochoman River, Washington. From the confluence with the
Columbia River upstream to Monroe Road bridge crossing (46[deg]13'33''
N./123[deg]21'34'' W.).
(11) 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]38'0'' W.).
(12) Toutle River, Washington. From the confluence with the Cowlitz
River upstream to Tower Road Bridge (46[deg]20'4'' N./122[deg]50'26''
W.).
(13) Kalama River, Washington. From the confluence with the
Columbia River upstream to the confluence with Indian Creek
(46[deg]2'22'' N./122[deg]46'7'' W.).
(14) Lewis River, Washington. Lewis River mainstem, from the
confluence with the Columbia River upstream to Merwin Dam
(45[deg]57'24'' N./122[deg]33'22'' W.); East Fork of the Lewis River,
from the confluence with the mainstem of the Lewis River upstream to
the confluence with Mason Creek (45[deg]50'13'' N./122[deg]38'37'' W.).
[[Page 65350]]
(15) Quinault River, Washington. From the mouth of the Quinault
River (47[deg]20'58'' N./124[deg]18'2'' W.) upstream to 47[deg]19'58''
N./124[deg]15'1'' W.
(16) Elwha River, Washington. From the mouth of the Elwha River
(48[deg]8'51'' N./123[deg]34'1'' 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 the
southern DPS of 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 critical habitat for the southern DPS of eulachon
follow:
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