Endangered and Threatened Species; Designation of Critical Habitat for Seven Evolutionarily Significant Units of Pacific Salmon and Steelhead in California

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 041123329-5202-02; I.D. No.110904F]

RIN 0648-AO04

Endangered and Threatened Species; Designation of Critical Habitat for Seven Evolutionarily Significant Units of Pacific Salmon and Steelhead in California

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We, the National Marine Fisheries Service (NMFS), are issuing a final rule designating critical habitat for two Evolutionarily Significant Units (ESUs) of chinook salmon (

Oncorhynchus tshawytscha

) and five ESUs of steelhead (

O. mykiss

) listed as of the date of this designation under the Endangered Species Act of 1973, as amended (ESA). The specific areas designated in the rule text set out below include approximately 8,935 net mi (14,269 km) of riverine habitat and 470 mi

2

(1,212 km

2

) of estuarine habitat (primarily in San Francisco-San Pablo-Suisun Bays) in California. Some of the areas designated are occupied by two or more ESUs. The annual net economic impacts of changes to Federal activities as a result of the critical habitat designations (regardless of whether those activities would also change as a result of the ESA's jeopardy requirement) are estimated to be approximately $81,647,439. We solicited information and comments from the public in an Advanced Notice of Proposed Rulemaking and on all aspects of the proposed rule. This rule is being issued to meet the timeline established in litigation between NMFS and Pacific Coast Federation of Fishermen's Associations (

PCFFA et. al

v.

NMFS

(Civ.No. 03-1883)). In the proposed rule, we identified a number of potential exclusions we were considering including exclusions for federal lands subject to the Pacific Northwest Forest Plan, PACFISH and INFISH. We are continuing to analyze whether exclusion of those federal lands is appropriate.

DATES:

This rule becomes effective January 2, 2006.

ADDRESSES:

Comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available for public inspection by appointment, during normal business hours, at the National Marine Fisheries Service, NMFS, Protected Resources Division, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. The final rule, maps, and other materials relating to these designations can be found on our Web site at

http://swr.nmfs.noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Craig Wingert at the above address, at 562/980-4021, or Marta Nammack at 301/713-1401 ext. 180.

SUPPLEMENTARY INFORMATION:

Organization of the Final Rule

This

Federal Register

notice describes the final critical habitat designations for seven ESUs of West Coast salmon and steelhead listed under the ESA. The pages that follow summarize the comments and information received in response to proposed designations published on December 10, 2004 (69 FR 71880), describe any changes from the proposed designations, and detail the final designations for seven ESUs. To assist the reader, the content of this notice is organized as follows:

I. Background and Previous Federal Action

II. Summary of Comments and Recommendations

Notification and General Comments

Identification of Critical Habitat Areas

Economics Methodology

Weighing the Benefits of Designation vs. Exclusion

Effects of Designating Critical Habitat

ESU-specific Issues

III. Summary of Revisions

IV. Methods and Criteria Used to Identify Critical Habitat

Salmon Life History

Identifying the Geographical Area Occupied by the Species and Specific Areas within the Geographical Area

Primary Constituent Elements

Special Management Considerations or Protections

Unoccupied Areas

Lateral Extent of Critical Habitat

Military Lands

Critical Habitat Analytical Review Teams

V. Application of ESA Section 4(b)(2)

Exclusions Based on “Other Relevant Impacts”

Impacts to Tribes

Impacts to Landowners with Contractual Commitments to Conservation

Exclusions Based on National Security Impacts

Exclusions Based on Economic Impacts

VI. Critical Habitat Designation

VII. Effects of Critical Habitat Designation

Section 7 Consultation

Activities Affected by Critical Habitat Designation

VIII. Required Determinations

IX. References Cited

I. Background and Previous Federal Action

We are responsible for determining whether species, subspecies, or distinct population segments of Pacific salmon and steelhead (

Oncorhynchus

spp.) are threatened or endangered, and for designating critical habitat for them under the ESA (16 U.S.C. 1531

et seq

). To qualify as a distinct population segment, a Pacific salmon or steelhead population must be substantially reproductively isolated from other conspecific populations and represent an important component in the evolutionary legacy of the biological species. According to agency policy, a population meeting these criteria is considered to be an Evolutionarily Significant Unit (ESU) (56 FR 58612, November 20, 1991).

We are also responsible for designating critical habitat for species listed under our jurisdiction. Section 3 of the ESA defines critical habitat as (1) specific areas within the geographical area occupied by the species at the time of listing, on which are found those physical or biological features that are essential to the conservation of the listed species and that may require special management considerations or protection, and (2) specific areas outside the geographical area occupied by the species at the time of listing that are essential for the conservation of a listed species. Our regulations direct us to focus on “primary constituent elements,” or PCEs, in identifying these physical or biological features. Section 7(a)(2) of the ESA requires that each Federal agency shall, in consultation with and with the assistance of NMFS, ensure that any action authorized, funded or carried out by such agency is not likely to jeopardize the continued existence of an endangered or threatened salmon or steelhead ESU or result in the destruction or adverse modification of critical habitat. Section 4 of the ESA requires us to consider the economic impacts, impacts on national security, and other relevant impacts of specifying any particular area as critical habitat.

The timeline for completing the critical habitat designations described in this

Federal Register

notice was established pursuant to litigation between NMFS and the Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, the Center for Biological Diversity, the Oregon Natural Resources Council, the Pacific Rivers Council, and the Environmental Protection Information Center (PCFFA,

et al.

) and is subject to a Consent Decree and Stipulated Order

of Dismissal (Consent Decree) approved by the D.C. District Court. A complete summary of previous court action regarding these designations can be found in the proposed rule (69 FR 71880; December 10, 2004).

In keeping with the Consent Decree, on December 10, 2004 (69 FR 71880), we published proposed critical habitat designations for two ESUs of Chinook salmon and five ESUs of

O. mykiss.

(For the latter ESUs we used the species' scientific name rather than “steelhead” because at the time they were being proposed for revision to include both anadromous (steelhead) and resident (rainbow/redband) forms of the species—

see

69 FR 33101, June 14, 2004). The seven ESUs addressed in the proposed rule were: (1) California Coastal Chinook salmon; (2) Northern California

O. mykiss;

(3) Central California Coast

O. mykiss;

(4) South-Central Coast

O. mykiss;

(5) Southern California

O. mykiss;

(6) Central Valley spring run Chinook salmon; and (7) Central Valley

O. mykiss.

The comment period for the proposed critical habitat designations was originally opened until February 8, 2005. On February 7, 2005 (70 FR 6394), we announced a court-approved Amendment to the Consent Decree which revised the schedule for completing the designations and extended the comment period until March 14, 2005, and the date to submit final rules to the

Federal Register

as August 15, 2005.

In the critical habitat proposed rule we stated that “the final critical habitat designations will be based on the final listing decisions for these seven ESUs due by June 2005 and thus will reflect occupancy “at the time of listing” as the ESA requires.” All of these ESUs had been listed as threatened or endangered between 1997-2000, but in 2002 we announced that we would reassess the listing status of these and other ESUs (67 FR 6215; February 11, 2002). We recently published final listing decisions for the two Chinook salmon, but not for the five ESUs of

O. mykiss

(70 FR 37160; June 28, 2005). Final listing determinations for these five ESUs are expected by December 2005 (70 FR 37219; June 28, 2005). However, the Consent Decree governing the schedule for our final critical habitat designations requires that we complete final designations for those of the seven ESUs identified above that are listed as of August 15, 2005. Because anadromous forms (

i.e.

, “steelhead”) of the five

O. mykiss

ESUs have been listed since 1997-2000 (

see

summary in June 14, 2004

Federal Register

notice, 69 FR 33103), we are now issuing final critical habitat designations for them in this notice in accordance with the Consent Decree. We are able to do so because in developing critical habitat designations for this species we have focused on the co-occurring range of both the anadromous and resident forms. Therefore, both the proposed and final designations were restricted to the species' anadromous range, although we did consider and propose to designate some areas occupied solely by resident fish in upper Alameda Creek in the San Francisco Bay area. We focused on the co-occurring range due to uncertainties about: (1) The distribution of resident fish outside the range of co-occurrence, (2) the location of natural barriers impassable to steelhead and upstream of habitat areas proposed for designation, and (3) the final listing status of the resident form. Section 4(a)(3)(B) of the ESA provides for the revision of critical habitat designations as appropriate, and we will do so (if necessary) after making final listing determinations for these five

O. mykiss

ESUs. Moreover, we intend to actively revise critical habitat as needed for all seven ESUs to keep them as up-to-date as possible.

In an Advance Notice of Proposed Rulemaking (ANPR) (68 FR 55926; September 29, 2003), we noted that the ESA and its supporting regulations require the agency to address a number of issues before designating critical habitat: “What areas were occupied by the species at the time of listing? What physical and biological features are essential to the species' conservation? Are those essential features ones that may require special management considerations or protection? Are areas outside those currently occupied ‘essential for conservation'? What are the benefits to the species of critical habitat designation? What economic and other relevant impacts would result from a critical habitat designation, even if coextensive with other causes such as listing? What is the appropriate geographic scale for weighing the benefits of exclusion and benefits of designation? What is the best way to determine if the failure to designate an area as critical habitat will result in the extinction of the species concerned?” We recognized that “[a]nswering these questions involves a variety of biological and economic considerations” and therefore were seeking public input before issuing a proposed rule. As we stated in the proposed rule that followed: “We received numerous comments in response to the ANPR and considered them during development of this proposed rulemaking. Where applicable, we have referenced these comments in this

Federal Register

notice as well as in other documents supporting this proposed rule.” In the proposed rule, we described the methods and criteria we applied to address these questions, relying upon the unique life history traits and habitat requirements of salmon and steelhead.

In issuing the final rule, we considered the comments we received to determine whether a change in our proposed approach to designating critical habitat for salmon and steelhead was warranted. In some instances, we concluded based on comments received that a change was warranted. For example, in this final rule we have revised our approach to allow us to consider excluding areas covered by habitat conservation plans in those cases where the benefits of exclusion outweigh the benefits of designation.

In other instances, we believe the approach taken is supported by the best available scientific information, and that given the time and additional analyses required, changes to the methods and criteria we applied in the proposed rule were not feasible. We recognize there are other equally valid approaches to designating critical habitat and for answering the myriad questions described above. Nevertheless, issuance of the final rule for designating critical habitat for these ESUs is subject to a Court Order that requires us to submit the final regulation to the

Federal Register

no later than August 15, 2005, less than 5 months after the close of the public comment period. Taking alternative approaches to designating critical habitat would have required a retooling of multiple interrelated analyses and undertaking additional new analyses in support of the final rule, and was not possible given the time available to us. We will continue to study alternative methods and criteria and may apply them in future rulemakings designating critical habitat for these or other species.

II. Summary of Comments and Recommendations

As described in agency regulations at 50 CFR 424.16(c)(1), in the critical habitat proposed rule we requested that all interested parties submit written comments on the proposals. We also contacted the appropriate Federal, state, and local agencies, scientific organizations, and other interested parties and invited them to comment on the proposed rule. To facilitate public participation we made the proposed rule available via the internet as soon as it was signed (approximately 2 weeks prior to actual publication) and accepted comments by standard mail

and fax as well as via e-mail and the internet (

e.g.

,

www.regulations.gov

). In addition, we held four public hearings between January 13, 2005, and February 1, 2005, in the following locations: Arcata, Rohnert Park, Sacramento, and Santa Barbara, CA. We received 3,762 written comments (3,627 of which were form letters or in the form of e-mails with nearly identical verbiage) during the comment period on the proposed rule.

In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure, and opportunities for public input (70 FR 2664; January 14, 2005). The OMB Peer Review Bulletin, implemented under the Information Quality Act (Pub. L. 106-554), is intended to provide public oversight on the quality of agency information, analyses, and regulatory activities, and applies to information disseminated on or after June 16, 2005. Prior to publishing the proposed rule we submitted the initial biological assessments of our Critical Habitat Analytical Review Teams (hereafter referred to as CHART) to state co-managers and asked them to review those findings. These co-manager reviews resulted in some changes to the CHARTs' preliminary assessments (

e.g.

, revised fish distribution as well as conservation value ratings) and helped to ensure that the CHARTs' revised findings (NMFS, 2004b) incorporated the best available scientific data. We later solicited technical review of the entire critical habitat proposal (biological, economic, and policy bases) from several independent experts selected from the academic and scientific community, Native American tribal groups, Federal and state agencies, and the private sector. We also solicited opinions from three individuals with economics expertise to review the draft economics analysis supporting the proposed rule. All three of the economics reviewers and one of the biological reviewers submitted written opinions on our proposal. We have determined that the independent expert review and comments received regarding the science involved in this rulemaking constitute adequate prior review under section II.2 of the OMB Peer Review Bulletin (NMFS, 2005b).

We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for the various ESUs, and we address them in the following summary. Peer reviewer comments were sufficiently similar to public comments that we have responded to them through our general responses below. For readers'convenience we have assigned comments to major issue categories and where possible have combined similar comments into single comments and responses.

Notification and General Comments

Comment 1:

Some commenters raised concerns or complained about the adequacy of public notification and time to comment.

Response:

We made all reasonable attempts to communicate our rulemaking process and the critical habitat proposal to the affected public. Prior to the proposed rule we published an ANPR in which we identified issues for consideration and evaluation, and solicited comments regarding these issues and information regarding the areas and species under consideration (68 FR 55926; September 29, 2003). We considered comments on the ANPR during our development of the proposed rule. As soon as the proposed rule was signed on November 29, 2004 (2 weeks before actual publication in the

Federal Register

), we posted it and supporting information on the agency's internet site to facilitate public review, and we have provided periodic updates to that site (see

ADDRESSES

). In response to numerous requests—in particular from plaintiffs as well as private citizens, counties, farm bureaus, and state legislators in Washington—the original 60-day public comment period was extended by 30 days (70 FR 6394; February 7, 2005) to allow additional time for the public to submit comments on the critical habitat proposals.

Additionally, we realize that the statute provides a short time frame for designating critical habitat. Congress amended the ESA in 1982 to establish the current time frame for designation. In doing so, Congress struck a balance between the recognition that critical habitat designations are based upon information that may not be determinable at the time of listing and the desire to ensure that designations occur in a timely fashion. Additionally, the ESA and supporting regulations provide that designations may be revised as new data become available to the Secretary. We recognize that where the designation covers a large geographic area, as is the case here, the short statutory time frame requires a short period for the public to consider a great deal of factual information. We also recognize that this designation takes a new approach by considering relative conservation value of different areas and applying a cost-effectiveness framework. In this notice we are announcing our intention to consider revising the designations as new habitat conservation plans and other management plans are developed, and as other new information becomes available. Through that process we anticipate continuing to engage the interested public and affected landowners in an ongoing dialogue regarding critical habitat designations.

Comment 2:

Some commenters disagreed with our decision to vacate the February 2000 critical habitat designations for these ESUs.

Response:

We believe that the issues identified in a legal challenge to our February 2000 designations warranted withdrawing that rule. Developing a cost-effectiveness approach, designed to achieve the greatest conservation at the least cost, is in keeping with long-standing Executive direction on rulemaking and is a responsible and conservation-oriented approach to implementing section 4(b)(2) of the ESA. In addition, we had new and better information in 2004 than we had in 2000, such as the information of fish distribution and habitat use that was generated by agency fishery biologists. The ESA requires that we use the best available information, and the distribution data is the best information currently available. Finally, the litigation challenging our 2000 designation also challenged the lack of specificity in our designation of the riparian area, leading us to consider whether there was a better approach that was more consistent with our regulations and with the best available information.

Comment 3:

Some commenters stated that we should wait to publish final critical habitat designations until after final listing determinations have been made and the final hatchery listing policy is published.

Response:

The ESA states that the Secretary

shall

designate critical habitat, defined as areas within or outside the geographical area occupied by the species

at the time of listing

and using the best

available

information (emphasis added). These designations follow that statutory mandate and have been completed on a schedule established under a Consent Decree. Also, the final hatchery listing policy and final listing determinations for several salmon ESUs were published on June 28, 2005 (70 FR 37160 and 37204) in advance of the completion of this final critical habitat designation. For reasons described above in the “Background and Previous Federal Action” section, we are now making final designations for those listed salmon and steelhead ESUs in the

Southwest Region that are subject to the Consent Decree and listed as of the date of this designation.

Identification of Critical Habitat Areas

Comment 4:

Several commenters contended that we can only designate areas that are essential for species conservation.

Response:

Section 3(5)(A) of the ESA has a two-pronged definition of critical habitat: “(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' (emphasis added). As described in this rule and documented in the reports supporting it, we have strictly applied this definition and made the requisite findings. We requested and received comments on various aspects of our identification of areas meeting this definition and address those here. Only those areas meeting the definition were considered in the designation process. Comments regarding the section 4(b)(2) process, in which we considered the impacts of designation and whether areas should be excluded, are addressed in a subsequent section.

Comment 5:

In the proposed rule we considered occupied streams within a CALWATER Hydrologic Subarea (HSA) as the “specific area” in which the physical or biological features essential to conservation of the ESUs were found. We also used these watershed delineations as the “particular areas”—the analytical unit—for purposes of the section 4(b)(2) analysis. In the proposed rule we requested public comment on whether considering exclusions on a stream-by-stream approach would be more appropriate. Some commenters believed that the watershed scale was too broad for making critical habitat designations and suggested that a smaller watershed or a stream-by-stream approach was more appropriate. Some commenters believed that we should conduct a reach-by-reach assessment in their watersheds.

Response:

Our ESA section 4(b)(2) report (NMFS, 2005c) acknowledges that the delineation of both specific areas and particular areas should be as small as practicable, to ensure our designations are not unnecessarily broad and to carry out congressional intent that we fully consider the impacts of designation. For reasons described in the section below on “Methods and Criteria Used to Identify Critical Habitat,” we continue to believe that the specific facts of salmon biology and life history make CALWATER HSA watersheds in California an appropriate scale to use in delineating the “specific” areas in which physical or biological features are found. We also believe consideration of the impacts of designation on an HSA watershed scale results in a meaningful section 4(b)(2) balancing process. Moreover, congressional direction requires that designations be completed in a very short time frame by a specified deadline, “based on such data as may be available at that time.” Given that short time frame and the geographic extent of salmon critical habitat, the HSA watershed was the smallest practicable area we were able to analyze.

Comment 6:

Some commenters believed we applied the definition of “specific areas within the geographical area occupied by the species at the time it is listed” too narrowly. In their views, this led to two errors—failure to designate all “accessible” stream reaches and failure to designate riparian and upstream areas. Commenters felt that the “best scientific data available” support a conclusion that salmon and steelhead will occupy all accessible streams in a watershed during a period of time that can be reasonably construed as “at the time it is listed.” One commenter stated that “[w]hether a particular stream reach is occupied cannot be determined with certainty based on “occupation” data alone, especially for fragmented, declining, or depressed populations of fish.” The commenter pointed to the rationale provided in our 2000 rule for identifying occupied areas as all areas accessible within a subbasin (a 4th field watershed, using U.S. Geological Survey (USGS) terminology): “NMFS believes that adopting a more inclusive, watershed based description of critical habitat is appropriate because it (1) recognizes the species' use of diverse habitats and underscores the need to account for all of the habitat types supporting the species' freshwater and estuarine life stages, from small headwater streams to migration corridors and estuarine rearing areas; (2) takes into account the natural variability in habitat use that makes precise mapping problematic (

e.g.

, some streams may have fish present only in years with abundant rainfall) (65 FR 7764; February 16, 2000).”

Some commenters believe that in delineating “specific areas within the geographical area occupied by the species,” we need not confine ourselves to areas that are literally “occupiable” by the species in that we should designate riparian and upstream areas. If there are physical or biological features essential to conservation to be found within a broadly defined “geographical area occupied by the species,” we have the duty to delineate specific areas in a way that encompasses them. Some argued that limiting the designation to the stream channel fails to recognize the biological and hydrological connections between streams and riparian areas and would lead to further degradation of the latter. Some commenters suggested that we use a fixed distance (

e.g.

, 300 feet (91.4 m) if a functional description is not used. Some requested that we adopt the “functional zone” description for lateral extent used in the 2000 designations (65 FR 7764; February 16, 2000), while other commenters felt that our reference to habitat linkages with upslope and upstream areas was vague and wondered whether we were actually using the old approach anyway. Other commenters believed that using the line of ordinary high water or bankfull width was appropriate and noted that this would remove prior ambiguities about which areas were designated. Other commenters supported the approach taken in this designation, to identify specific areas occupied by the species and not broadly designate “all areas accessible,” some commenting that this was a more rigorous assessment and more in keeping with the ESA.

Response:

The approach we took in the proposed designation is different from the approach we took in the vacated 2000 designation for a variety of reasons. The ESA directs that we will use the best scientific data available in designating critical habitat. Our regulations also provide direction: “[e]ach critical habitat will be defined by specific limits using reference points and lines as found on standard topographic maps of the area * * * Ephemeral reference points (

e.g.

, trees, sand bars) shall not be used in defining critical habitat.” (50 CFR 424.12(c)). With respect to our approach for identifying “the geographical area occupied by the species,” we recognize that the available fish and habitat use distribution data are limited to areas that have been surveyed or where professional judgment has been applied to infer distribution, and that large areas of watersheds containing fish may not have been observed or considered. We also recognize there have been many instances in which previously unobserved areas are found to be

occupied once they are surveyed. Nevertheless, we believe the extensive data compiled by agency biologists, which was not available when we completed the 2000 designations, represents the best scientific information currently available regarding the geographical area occupied by the species. Moreover, the CHARTs had an opportunity to interact with the state fish biologists with the California Department of Fish and Game (CDFG) to confirm the accuracy of the data. We also believe the approach we have taken in this designation better conforms to the regulatory direction to use “specific limits” for the designation. The approach we used in 2000 used subbasin boundaries to delineate “specific areas,” which arguably met the requirement to use “specific limits,” but we believe using latitude-longitude endpoints in stream reaches, as we have done here, better adheres to the letter and spirit of our regulations.

With respect to our approach of limiting the designation to the occupied stream itself, not extending the designation into the riparian zone or upstream areas, we acknowledge that our regulations contemplate situations in which areas that are not literally occupiable may nevertheless be designated. Paragraph (d) of 50 CFR 424.12 gives as an example a situation in which areas upland of a pond or lake may be designated if it is determined that “the upland areas were essential to the conservation of an aquatic species located in the ponds and lakes.” For this designation, however, given the vast amount of habitat under consideration and the short statutory time frames in which to complete the designation, we could not determine “specific limits” that would allow us to map with accuracy what part of the riparian zone or upstream area could be considered to contain PCEs. As an alternative, we considered the approach we used in 2000, which was to designate riparian areas that provide function, but concluded that approach may not have been entirely consistent with the regulatory requirement to use “specific limits.” We believe limiting the designation to streams will not compromise the ability of an ESA section 7 consultation to provide for conservation of the species. Section 7 requires Federal agencies to ensure their actions are not likely to destroy or adversely modify critical habitat. Actions occurring in the riparian zone, upstream areas, or upland areas all have the potential to destroy or adversely modify the critical habitat in the stream. Although these areas are not themselves designated, Federal agencies must nevertheless meet their section 7 obligations if they are taking actions in these areas that “may affect” the designated critical habitat in the stream. Even though these designations are restricted to the stream itself, we will continue to be concerned about the same activities we have addressed in past consultations.

Comment 7:

Several commenters believed we incorrectly applied the definition of “specific areas outside the geographical area occupied by the species.” In the view of some, we failed our duty under the ESA by not making a determination that we had identified as critical habitat enough areas (occupied and unoccupied) to support conservation. In the view of others, it was this failure that led to one of the errors described in the previous comment—the failure to designate all “accessible stream reaches.” Many commenters expressed concern about statements made in the press that the change from “all areas accessible” to areas documented as occupied led to a 90-percent reduction in critical habitat. Other commenters supported the approach taken in this designation, to identify specific areas occupied by the species and not broadly designate “all areas accessible,” some commenting that this was a more rigorous assessment and more in keeping with the ESA.

Response:

Section 3(5)(A)(I) of the ESA requires us to identify specific areas within the geographical area occupied by the species that contain physical or biological features that may require special management considerations or protection. Section 3(5)(A)(ii) requires that specific areas outside the geographical area occupied by the species only fall within the definition of critical habitat if the Secretary determines that the area is essential for conservation. Our regulations further provide that we will designate unoccupied areas “only when a designation limited to [the species'] present range would be inadequate to ensure the conservation of the species (50 CFR 424.12(e)).” The ESA requires the Secretary to designate critical habitat at the time of listing. If critical habitat is not then determinable, the Secretary may extend the period by 1 year, “but not later than the close of such additional year the Secretary must publish a final regulation, based on such data as may be available at that time, designating, to the maximum extent prudent, such habitat.”

At the present time, we do not have information allowing us to determine that the specific areas within the geographical area occupied by the species are inadequate for conservation, such that unoccupied areas are essential for conservation. We anticipate revising our critical habitat designations in the future as additional information becomes available through recovery planning processes.

Comment 8:

Some commenters questioned the adequacy of our identification of PCEs, in particular the lack of specificity.

Response:

To determine the physical or biological features essential to conservation of these ESUs, we first considered their complex life cycle. As described in the ANPR and proposed rule, “[t]his complex life cycle gives rise to complex habitat needs, particularly during the freshwater phase (see review by Spence

et al.

, 1996).” We considered these habitat needs in light of our regulations regarding criteria for designating critical habitat. Those criteria state that the requirements essential to species' conservation include such things as “space * * * [f]ood, water, air, light, minerals, or other nutritional or physiological requirements * * * cover or shelter.” They further state that we are to focus on the “primary constituent elements” such as “spawning sites, feeding sites, * * * water quality or quantity,” etc. In the ANPR and proposed rule we identified the features of the habitat that are essential for the species to complete each life stage and are therefore essential to its conservation. We described the features in terms of sites (spawning, rearing, migration) that contain certain elements.

Comment 9:

In the proposed rule we requested comments on the extent to which specific areas may require special management considerations or protection in light of existing management plans. Several commenters stated that lands covered by habitat conservation plans or other management or regulatory schemes do not require special management considerations or protection. Others commented that even where management plans are present, there still may be “methods or procedures useful” for protecting the habitat features.

Response:

The statutory definition and our regulations (50 CFR 424.02 and 424.12) require that specific areas within the geographical area occupied by the species must contain “physical or biological features” that are “essential to the conservation of the species,” and that “may require special management considerations or protection.” As described in the proposed rule, and documented in the reports supporting it, we first identified the physical or biological features essential to

conservation (described in our regulations at 50 CFR 424.12(b)(5) as “primary constituent elements” or PCEs). We next determined the “specific areas” in which those PCEs are found based on the occupied stream reaches within a CALWATER HSA watershed. We used this watershed-scale approach to delineating specific areas because it is relevant to the spatial distribution of salmon and steelhead, whose innate homing behavior brings them back to spawn in the watersheds where they were born (Washington Department of Fisheries

et al.

, 1992; Kostow, 1995; McElhany

et al.

, 2000). We then considered whether the PCEs in each specific area (watershed) “may require special management considerations or protection.”

We recognize there are many ways in which “specific areas” may be delineated, depending upon the biology of the species, the features of its habitat and other considerations. In addressing these comments, we considered whether to change the approach described in our proposed rule and instead delineate specific areas based on ownership. The myriad ownerships and state and local regulatory regimes present in any watershed, as well as the timing issues discussed previously, made such an approach impractical for this rulemaking, as noted in section I, “Background and Previous Federal Action,” above. While there are other equally valid methods for identifying areas as critical habitat, we believe that the watershed scale is an appropriate scale for identifying specific areas for salmon and steelhead, and for then determining whether the PCEs in these areas may require special management considerations or protections. We will continue to study this issue and alternative approaches in future rulemakings designating critical habitat.

Comment 10:

One commenter stated that we could not designate any unoccupied areas if we had excluded any occupied areas, relying on the regulatory provision cited in a previous comment and response.

Response:

The comment assumes that all habitat areas are equivalent and exchangeable, which they are not. An area may be essential for conservation because it was historically the most productive spawning area for an ESU and unless access to it is restored, the ESU will not fully recover to the point that the protections of the ESA are no longer necessary. This area will be essential regardless of whether some other specific area has been excluded.

Comment 11:

Several commenters supported the designation of unoccupied areas above dams and some believed that by not designating these areas we will make it more difficult to achieve fish passage in the future. They further noted that excluding these presently blocked areas now may promote habitat degradation that will hinder conservation efforts should passage be provided in the future. Several commenters identified areas above specified dams as being essential for conservation.

Response:

At the present time, we do not have information allowing us to determine that the specific areas within the geographical area occupied by the species are inadequate for conservation nor that currently unoccupied areas above dams are essential for conservation. The Southwest Region is actively involved in a multi-year, large-scale recovery planning effort in California that involves scientific teams (called technical recovery teams or TRTs) which are in the process of identifying ESU population structure, population viability criteria, and ESU level biological viability or recovery goals. These recovery planning efforts are developing information which will inform our decisions about whether unoccupied habitat will be needed to facilitate conservation beyond what is currently occupied by the ESUs addressed in this rulemaking. Until these efforts are more fully developed, we cannot make the specific determinations required under the ESA to designate critical habitat in “unoccupied” areas. We use our authorities under the ESA and other statutes to advocate for salmon passage above impassible dams where there is evidence such passage would promote conservation. This is not the same, however, as making the determinations required by the statute and our regulations to support designation.

Comment 12:

In the proposed rule we requested comments regarding the use of professional judgment as a basis for identifying areas occupied by the species. Some commenters indicated that it was appropriate to accept the professional judgment of fish biologists who are most familiar with fish habitat within a watershed. Others believed that limiting the definition of occupied stream reaches to only those where fish presence has been observed and documented is overly narrow and fails to consider a number of conditions that affect species distribution, including natural population fluctuations and habitat alterations that affect accessibility or condition (

e.g.

, de-watering stream reaches). These commenters also argued that defining occupied reaches should be based on a broad time scale that takes into account metapopulation processes such as local extinction and recolonization, adding along with other commenters that many streams have not been adequately surveyed and species may frequent stream reaches but not actually be observed by a biologist at the time that critical habitat is being assessed.

Response:

We relied on distribution and habitat use information developed by our agency fishery biologists from a wide range of sources, including the CDFG, to determine which specific stream reaches were occupied by each ESU. The data sets we developed defined occupancy based on field observations from stream surveys, and, in some cases, professional judgment based on the expert opinion of area biologists. In all cases the exercise of professional judgment included the consideration of habitat suitability for the particular species. We received several comments on our proposed rule regarding the accuracy of the distribution data in specific locations, and, where we could confirm that the information provided by the commenter was accurate, we accepted it as the best available information and adjusted our designation. We view designation of critical habitat as an ongoing process and expect to adjust the designations as necessary as new information or improved methods become available.

Comment 13:

Some commenters addressed the CHART process although few recommended changes to the CHARTs' ratings of watershed conservation values. Some supported the process used, in particular the recognition that not all habitats have the same conservation value for an ESU and that this in turn allows for a more meaningful exclusion assessment under section 4(b)(2) of the ESA. One commenter contended that the CHART assessments were compromised by restricting them to consider only the stream channel rather than upslope areas as well.

Response:

The CHART process was an important part of our analytical framework in that it allowed us to improve our analysis of the best available scientific data and to provide watershed-specific conservation ratings useful for the Secretary's exercise of discretion in balancing whether the benefits of exclusion outweigh the benefits of designation under section 4(b)(2) of the ESA. We do not believe that designating only the stream channel compromised the CHARTs' ability to assess watershed conservation values. As noted in the CHART report, the CHARTs employed a scoring system to assess (among other area characteristics) the quality, quantity, and distribution of

PCEs within a watershed. The PCEs we have defined for these ESUs are found within occupied stream channels, and therefore, it is appropriate to focus our assessment on those areas. The CHART scoring did include a factor related to the potential improvement of existing PCEs and thereby allowed the CHARTs to consider the ability of a watershed to contribute PCEs via natural processes such as recruitment of large wood and substrate, flow regulation, floodplain connectivity,

etc.

We recognize that salmon habitat is dynamic and that our present understanding of areas important for conservation will likely change as recovery planning sheds light on areas that can and should be protected and restored. We intend to actively update these designations as needed so that they reflect the best available scientific data and understanding.

Comment 14:

Some commenters questioned whether the CHARTs considered the work of the various Technical Recovery Teams (TRTs) and suggested that the CHART assessments should be reviewed by the TRTs.

Response:

Where information had been developed by the TRTs, the CHARTs did consider that information in their assessments. The CHARTs also solicited input and comments from the TRTs on their distribution and habitat use information as well as their watershed conservation assessments. We believe, therefore, that we have been able to integrate much of the TRT findings to date into our final critical habitat designations. Given their priorities (

i.e.,

providing crucial recovery planning criteria and guidance) and the time constraints under which we needed to complete the critical habitat assessments, TRT members could not participate on the CHARTs directly. We recognize that recovery planning is an ongoing process and that new information from the TRTs and recovery planning stakeholders may result in changes to our critical habitat assessments in the future.

Economics Methodology

Comment 15:

Several commenters stated that the economic analysis overestimated the actual costs of critical habitat designation by including costs that should be attributed to the baseline. For example, commenters asserted that costs associated with listing and application of the jeopardy requirement should not be included in the analysis. Commenters also asserted that costs that would have occurred under Pacific Fisheries (PACFISH) or the Northwest Forest Plan should be excluded from the analysis. One commenter also stated that costs associated with existing critical habitat designations for salmon or other endangered species should be considered baseline impacts.

Response:

Regarding costs associated with listing and application of ESA section 7's jeopardy requirement, the economic analysis follows the direction of the

New Mexico Cattlegrowers

decision, in which the Court of Appeals for the Tenth Circuit called for “a full analysis of all of the economic impacts of a critical habitat designation, regardless of whether those impacts are attributable coextensively to other causes (

New Mexico Cattle Growers' Association

v.

U.S. Fish and Wildlife Service,

248 F.3d 1277, 10th Cir. 2001). Consistent with this decision, the economic analysis includes incremental impacts, those that are solely attributable to critical habitat designation and would not occur without the designation, as well as coextensive impacts, or those that are associated with habitat-modifying actions covered by both the jeopardy and adverse modification standards under section 7 of the ESA. We do not think this overestimate of costs creates a bias in our 4(b)(2) balancing, however, for two reasons. On the “benefit of designation” side of the balance, we consider the benefit of designation to be the entire benefit that results from application of section 7's requirements regarding adverse modification of critical habitat, regardless of whether application of the jeopardy requirement would result in the same impact. Moreover, the cost-effectiveness approach we have adopted allows us to consider relative benefits of designation or exclusion and prioritize for exclusion areas with a relatively low conservation value and a relatively high economic cost. With such an approach it is most important that we are confident our analysis has accurately captured the relative economic impacts, and we believe it has.

In many cases, the protections afforded by PACFISH, the Northwest Forest Plan and other regulations are intertwined with those of ESA section 7. In cases where the specific regulation or initiative driving the salmon and steelhead conservation efforts is uncertain, we considered it as an ESA section 7 impact and examined the record of consultations with the affected agencies and based our analysis on the habitat protection measures routinely incorporated into the consultations. The economic analysis therefore assumes that the impacts of these types of habitat protection measures are attributable to the implementation of section 7. In these instances, to the extent that conservation burdens on economic activity are not, in fact, resulting from section 7 consultation, the economic analysis may overstate costs of the designation. We took this possibility into account in conducting the 4(b)(2) balancing of benefits. Conservation efforts clearly engendered by other regulations are included in the regulatory baseline. For example, Federal lands management activities in the Northwest Forest Plan planning area are affected by PACFISH. As a result, some projects that would have affected salmon habitat will not be proposed, and therefore will not be subject to section 7 consultation. These changes in projects are considered baseline and are not included as a cost of section 7 in the economic analysis.

Commenters correctly note that there are designations currently in place protecting critical habitat for salmon (

e.g.,

Sacramento River winter run chinook salmon, Central California Coastal coho salmon). We acknowledged this in our proposed rule, but also noted that the presence of those existing designations weighs equally on both sides of the 4(b)(2) balance—that is, the existing designations also could be considered as part of the baseline for determining the benefit of designation for the ESUs addressed in the present rule. This concern is also addressed by the cost-effectiveness approach we have adopted since it relies on relative benefits of designation and exclusion rather than absolute benefits.

Comment 16:

One commenter and one peer reviewer noted that the economic analysis assigns costs to all activities within the geographic boundary of the HSA watersheds, though not all activities in this area will lead to an ESA section 7 consultation or are equally likely to have economic impacts. By doing this, the agency assumed that if the stream reaches currently occupied by salmon were designated as critical habitat, then activities throughout the watershed would be affected, whether or not they are adjacent to critical habitat stream reaches.

Response:

It is possible for activities not directly adjacent to the proposed stream reaches to affect salmon and steelhead or their habitat (for example, by increasing risk of erosion or decreased water quality), and, therefore, such activities may be subject to consultation and modification. Thus, we believe the HSA watersheds represent a reasonable proxy for the potential boundary of consultation activities. In some cases the revised economic analysis applies costs less broadly by refining the geographic scale for certain

activities. For example, the analysis of pesticide impacts has been refined and are now calculated based on occupied stream mile estimates within a watershed.

Comment 17:

One commenter asserted that the draft report inflates its cost estimates by repeatedly choosing the high-end of a range of costs, while a peer reviewer suggested using the mid-range as a representative cost estimate was problematic.

Response:

In determining likely costs associated with modifications to activities that would benefit salmon and steelhead, the economic analysis identifies a range of costs using available data from, for example, agency budgets, documented conversations with stakeholders, and published literature. The full range of costs of these activities is presented in the economic analysis, and individual watersheds are generally ranked in terms of cost impact by the midpoint of the cost range, as opposed to the high end. While we recognize that a formal sample of projects costs based on the consultation record or other sources is a better approach in theory, available data did not allow such an approach. In gathering the cost information that was available, we avoided using outliers and sought to construct a typical range of costs.

Comment 18:

Some commenters asserted that the economic analysis fails to account for regional economic interactions between watersheds. One commenter stated that this would result in an overstatement of the costs, while other commenters state that this would underestimate the costs. One peer reviewer suggested using regional economic models to address these interactions.

Response:

We acknowledge that modifications to economic activities within one watershed may affect economic activities in other watersheds. The economic analysis discusses the potential for regional economic impacts associated with each of the potentially affected activities. Impacts are assigned to particular areas (watersheds) based on where they are generated as opposed to felt. That is, if the designation of a watershed causes impacts in multiple nearby watersheds, and exclusion of the impact-causing watershed would remove those economic impacts from the region, the economic analysis appropriately assigns the total cost impact to the impact-causing watershed. This method of assigning impacts is most useful to us in deciding the relative cost-effectiveness of excluding particular areas from critical habitat designation. As we acknowledge in NMFS (NMFS 2005b), the economic analysis does not explicitly analyze the potential for these regional interactions to introduce cumulative economic impacts. Data are not available to support such an effort, nor would the results necessarily be applicable at the level of a particular watershed. If these impacts in fact exist, our results are likely to be biased downward, in that we have likely underestimated the costs of critical habitat designation at the level of the ESU. At the level of a watershed, however, the potential error is smaller. For this reason, we do not believe the lack of a regional modeling framework introduces a significant bias into the results for particular watersheds.

Comment 19:

Several commenters stated that the economic analysis underestimates the actual costs of the rule by excluding several categories of costs from the estimates. One commenter stated that the

New Mexico Cattlegrowers

decision specifically requires a full analysis of all impacts, including those resulting from the species' listing. One comment argued that assessment of impacts stemming from activities occurring outside the designated area should be included, including indirect and regional impacts. Another commenter stated that the analysis should consider direct, indirect, and induced economic impacts including: changes in property values, property takings, water rights impacts, business activity and potential economic growth, commercial values, county and state tax base, public works project impacts, disproportionate economic burdens on society sections, impacts to custom and culture, impacts to other endangered species, environmental impacts to other types of wildlife, and any other relevant impact.

Response:

As noted in a previous response, the Court in the

New Mexico Cattlegrowers

decision called for “a full analysis of all of the economic impacts of a critical habitat designation, regardless of whether those impacts are attributable coextensively to other causes.” (emphasis added) The economic analysis conducted for this rule evaluated direct costs associated with the designation of critical habitat and includes: (1) Direct coextensive impacts, or those that are associated with habitat-modifying actions covered by both the jeopardy (listing) and adverse modification (critical habitat) standards; and (2) direct incremental impacts, or those that are solely attributable to critical habitat designation.

We acknowledge that designation of critical habitat may also trigger economic impacts outside of the direct effects of ESA section 7 or outside of the watersheds subject to the economic analysis. For example, state or local environmental laws may contain provisions that are triggered if a state- or locally regulated activity occurs in Federally-designated critical habitat. Another possibility is that critical habitat designation could have “stigma” effects, or impacts on the economic value of private land not attributable to any direct restrictions on the use of the land. Our economic analysis did not reveal significant economic impacts from stigma effects for the designation of salmon and steelhead. Further, significant impacts of critical habitat on an industry may lead to broader regional economic impacts. All of these types of impacts are considered in the analysis, although it was not possible to estimate quantitative impacts in every case. We took these considerations into account in balancing benefits under section 4(b)(2).

We acknowledge that designation of critical habitat may also trigger impacts on customs, culture, or other wildlife species. We concluded that data were not presently available that would allow us to quantify these impacts, at the scale of this designation, for the economic analysis. Our analysis was further circumscribed by the short time frames available, and our primary focus on conservation benefits to the listed species that are the subject of this designation. We took this limitation into account in the balancing of benefits under section 4(b)(2).

Comment 20:

Several commenters indicated that the economic analysis should include a discussion of the impact of changes in flow regimes on water users, specifically in the timing of water flow through dams and water withdrawal or diversion constraints. Among potentially affected water users are crop irrigators and other agricultural water users, regulators and consumers of public water supply in the region, and in particular, water users of the Central Valley Project and State Water Project, among others. Similarly, several commenters stated that the analysis should include an analysis of impacts of changes to operations that result in increased spill at hydropower dams on the cost of power in the region. These commenters are concerned that excluding these costs underestimates total economic impact. One commenter pointed out that low flow years and drought years are not considered in the economic impacts, and consideration of varying water year types is especially relevant to estimating impacts of instream flow augmentation. Another

commenter pointed out that existing, economically feasible alternate sources of water may not be available to water users, and thus economic costs could be large. One commenter estimated the potential loss of agricultural income that would result from a reduction in water availability to a specific region. One commenter stated that if requisite minimum instream flows are developed that correspond to the proposed critical habitat designation, they could be analyzed using the CALVIN model developed by the University of California.

Response:

While economic impacts would clearly result from future changes to water supply availability, the amount of water within particular areas that may be diverted from activities such as irrigation, flood control, municipal water supply, and hydropower, for the purposes of Pacific salmon and steelhead conservation, and thus the requisite timing and volume of minimum instream flows, has not been determined for most facilities. Many biological and hydrologic factors are considered in determining flow requirements through dams for Pacific salmon and steelhead, and the impacts of altering flow regimes to meet these requirements are highly site-specific. For example, the impact of increasing spill at a hydropower project depends on the level and timing of the spill, and on the method by which any lost power generation is replaced. Similarly, at a water supply facility, the impact of increasing spill depends on the size and timing of the spill, but also depends on the specific water rights held at the facility and by downstream users, including the priority, volume, timing, and particular use of those water rights.

The extent to which any future changes in flow may be attributable to the designation of critical habitat, as opposed to the listing or other wildlife-related regulations, is also unclear. The interrelated nature of dam and diversion projects with hydrology across river systems makes it very difficult to attribute flow-related impacts for salmon and steelhead conservation to specific watersheds. As a result, a comprehensive prospective analysis of the economic impacts of potential restrictions on water use by these activities would be highly speculative. We acknowledge this limitation of the economic analysis. However, the revised economic analysis does include an expanded discussion of what is known about the potential impacts of changes in flow regimes on hydropower production and prices and water diversions on irrigation based on historical examples.

Comment 21:

Some commenters expressed concern that the economic analysis does not address cumulative costs of multiple layers of regulation on economic activities.

Response:

Our economic analysis estimates costs associated with conducting ESA section 7 consultation to ensure Federal agency actions are not likely to destroy or adversely modify critical habitat. We did not have information available at the scale of this designation to determine the marginal cost or benefit of such a consultation, in addition to any state or local review that may occur, nor did the commenters provide data that would allow us to make such a determination.

Comment 22:

One commenter stated that the economic analysis fails to factor in subsidies given to industries such as livestock grazing, hydropower operations, and irrigation activities, which minimizes true costs to the public. Another commenter further stated that the analysis does not distinguish between several countervailing cost elements, including “socialized costs” (costs Congress has decided that the public should bear, such as costs to Federal activities), actual costs to private entities, incentive costs, subsidies, and offsetting costs. As a result, for Federal programs, the analysis miscategorizes activities that benefit a small but favored sector of society, but that cause costs to the larger society. The analysis assumes that costs to these activities are costs to society in general.

Response:

The analysis attempts to measure true social costs associated with implementing the final critical habitat rule. To accomplish this, the analysis uses the measurement of the direct costs associated with meeting the regulatory burden imposed by the rule as the best available proxy for the measurement of true social costs. We agree that it is relevant to consider appropriate countervailing or net cost impacts, where possible, in determining the benefit of exclusion. Where data are available, our analysis attempts to capture the net economic impact (

i.e.

, the increased regulatory burden less any discernable offsetting market gains), of ESA section 7 efforts imposed on regulated entities and the regional economy. For example, in the economic analysis, the revised impact estimates for pesticide use restrictions explicitly net out agriculture subsidy payments in the estimation of lost agricultural profits.

Comment 23:

Several commenters indicated that the designation of critical habitat will impose an administrative burden on affected parties, including private, Federal, state and local entities. One commenter stated that the increase in paperwork as a result of re-initiating consultation on potential impacts to critical habitat for projects that have already been through ESA section 7 consultation is a major concern.

Response:

We do consider that all activities may be subject to future consultation, regardless of whether past consultation occurred on these activities. Designation of critical habitat may result in reinitiating consultation on activities that were subject to previous consultation to ensure that the adverse modification requirement is addressed in addition to the jeopardy requirement. The economic analysis estimates the level of administrative effort associated with ESA section 7 consultations, whether those consultations concern a new activity or readdress the impacts of a previously reviewed activity. The revised economic analysis includes a refined estimate of administrative costs associated with consultations on West Coast salmon and steelhead.

Comment 24:

Some commenters stated that the economic analysis estimates impacts using a constant per-capita income basis and that doing so is likely to underestimate the impacts on rural communities.

Response:

Per-capita income is not explicitly factored into the watershed specific quantitative impact estimates in the economic analysis. The commenter is highlighting that equal costs in any given watersheds will not likely result in the same relative economic burden to residents of those watersheds. This is because the ratio of costs of the designation to income may vary across watersheds. In lower income areas, the cost of implementing modifications to projects for the benefit of salmon and steelhead may be more burdensome relative to higher income areas. We did consider the extent to which costs of designation within a watershed are likely to be borne locally. In addition, information on distribution of wealth across the designation is provided contextually in the economic analysis and this information is weighed in considering the benefits of exclusion of particular areas.

Comment 25:

One commenter stated that the analysis does not attempt to explain or quantify with any level of precision what additional costs are required by ESA section 7 consultation for design and/or operational modifications or mitigation measures.

Response:

The economic analysis focused on the impacts of section 7 consultation on economic activities by first identifying the types of activities

occurring that may be subject to section 7 consultation. The analysis then estimated the regulatory burden placed upon these activities as a result of section 7 consultation. The burden estimate is based upon a review of past modifications to those activities undertaken for the benefit of salmon and steelhead, interviews with NMFS' consulting biologists, affected parties, and available documents and literature. This research on the potential costs of these modifications then determined a typical range of costs for potential project modifications that may be associated with section 7 consultation in the future.

Comment 26:

One commenter stated that the economic analysis relied extensively on the agency's consultation history for economic impact estimates. Similarly, another commenter asserted that past costs are not good indicators of future costs due to streamlining of the consultation process (for example, for fire management) on Federal lands. One commenter stated that the economic analysis assumes that the population growth and economy of the impact areas are stagnant. The analysis should evaluate population and economic growth on a regional, State, and county basis, and evaluate the degree to which the listing of salmon and steelhead may have contributed to any population and economic decline.

Response:

The economic analysis does not solely rely on the consultation history to estimate economic impacts. The analysis includes estimated costs associated with compliance with salmon conservation activities produced by regulated entities, including private, state, and Federal agencies, as well as published literature, where information was available. The economic analysis does not uniformly assume that all activities and associated consultations will occur at the same rate in future years as in past years. Instead, the economic analysis projects the most likely level of future activity using a broad spectrum of planning documents, geographical data, and interviews with planners and other stakeholders. Further, the economic analysis does not quantify retrospective impacts of salmon and steelhead conservation because the focus of the analysis is on future impacts associated with the critical habitat areas identified in this rulemaking. It should also be noted that consultations conducted by NMFS do not include cost estimates of implementing recommended actions. The analysis also presents detailed information on the current estimated population and population density within each of the particular areas in the proposed critical habitat designation.

Comment 27:

One comment letter questioned whether there exists an acceptable or unacceptable level of negative economic impact to communities, landowners, or local governments and whether the government must consider the impacts that their decisions will have on local economies.

Response:

The economic analysis provides information regarding the impact to potentially affected economic activities of the proposed critical habitat designation. This information was used to identify the particular areas according to their relative cost burden. We then weighed this information against the relative conservation value of the particular areas considering the economic and any other relevant impact of designating critical habitat. Further, concurrent with the economic analysis, we prepared an analysis of potential impacts to small entities, including small businesses and government. This analysis identified the number of small businesses and governments likely impacted by the proposed critical habitat using county-specific data on the ratio of small businesses to total businesses in each potentially affected economic sector.

Comment 28:

Some commenters stated that the economic analysis used data that are overly broad or made assumptions across geographic areas that are too far reaching. For example, one commenter stated that the economic analysis assumes that the necessity and scope of modifications will be constant across ESUs for most activities, when in reality, these are likely to vary substantially.

Response:

For each activity, the economic analysis examines the probability of consultation and the likelihood of modification. A variety of activity-specific information sources were used to forecast the frequency and geographic distribution of potentially affected activities. That is, frequency of consultation was not always assumed to be uniform across ESUs. The economic analysis does not, however, assume that costs increase in areas of overlapping ESUs. In other words, the presence of critical habitat for multiple ESUs is not expected to generate a greater impact than if the particular area is critical habitat for only a single ESU. Examination of the consultation history did not reveal differences in requests for modification to projects (reasonable and prudent alternatives) among the ESUs. We recognize, however, that the broad scope and scale of the analysis required us to make simplifying assumptions in order to complete the designations in a timely fashion.

Comment 29:

Several commenters and a peer reviewer expressed concern that the economic analysis failed to consider the full range of economic benefits of salmon habitat conservation, and therefore, provided a distorted picture of the economic consequences of designating versus excluding habitat areas. Similarly, commenters expressed concerns that the economic impact of not designating particular areas to fishers and investors in recovery efforts should be considered in the economic analysis. Commenters specifically cited the lack of consideration in the economic analysis of the potential benefits of critical habitat designation on: (1) Decreased risk of extinction; (2) benefits to other aquatic and riparian species; (3) water quality; (4) flood control values; (5) recreation; (6) commercial fishing; (7) fish harvest for tribal uses; and (8) increased public education.

Response:

As described in the economic analysis and ESA section 4(b)(2) report, we did not have information available at the scale of this designation that would allow us to quantify the benefits of designation in terms of increased fisheries. Such an estimate would have required us to determine the additional number of fish likely to be produced as a result of the designation, and would have required us to determine how to allocate the economic benefit from those additional fish to a particular watershed. Instead, we considered the “benefits of designation” in terms of conservation value ratings for each particular area (see “Methods and Criteria Used to Designate Critical Habitat” section). We also lacked information to quantify and include in the economic analysis the economic benefit that might result from such things as improved water quality or flood control, or improved condition of other species.

Moreover, we did not have information at the scale of this designation that would allow us to consider the relative ranking of these types of benefits on the “benefits of designation” side of the 4(b)(2) balance. Our primary focus was to determine, consider, and balance the benefits of designating these areas to conservation of the listed species. Given the uncertainties involved in quantifying or even ranking these ancillary types of benefits, we were concerned that their consideration would interject an element of uncertainty into our primary task.

Comment 30:

One commenter asserted that the economic analysis did

not consider the importance of agriculture in California and how many communities rely upon the agriculture industry to survive. A number of commenters further stated that the analysis should address impacts on agriculture of a judicially imposed moratorium on pesticide use near salmon-bearing streams. The inability to use pesticides on farmland could result directly in decreases in crop yields. More specifically, the commenters believed that the economic analysis underestimates the impacts of the Washington Toxics litigation (

Washington Toxics Coalition, et al.

v.

EPA

, No. 04-35138) limiting pesticide use around salmon-supporting waters and suggests that the economic analysis should analyze the impact of this injunction.

Response:

Regarding impacts to agricultural communities, we considered impacts to small businesses in our Regulatory Flexibility Act analysis. We did not otherwise separately consider economic impacts to various economically or culturally defined communities in the economic analysis or in the ESA section 4(b)(2) balancing process. For example, we also did not separately consider impacts of designation or exclusion on coastal fishing communities. As with the consideration of ancillary unquantifiable benefits of designation described above, we were concerned that including a consideration of these ancillary benefits of exclusion would inject an unacceptable level of uncertainty into our analysis.

We agree that the draft economic analysis did not adequately consider the impact of pesticide restrictions on the agricultural industry. The revised economic analysis therefore includes refined estimates of potential lost profits associated with reduced crop yields as a result of implementing pesticide restrictions across the critical habitat designation. The analysis assumes that the agricultural net revenue generated by land within certain distances of salmon-supporting waters would be completely lost. That is, the analysis assumes that no changes in behavior are undertaken to mitigate the impact of pesticide restrictions. This assumption may lead to overestimated impacts of restricting pesticide use. On the other hand, the analysis may underestimate the impact of pesticide restrictions by assuming that farmers outside the designated areas (

e.g.

, upstream) will not be restricted in their activities.

Comment 31:

Several commenters stated that impacts associated with changes in the operations of the hydropower projects should be included, including impacts from projects such as Englebright Dam, Oroville Dam, and Santa Felicia Dam.

Response:

The historical record shows evidence that modifications to hydropower projects in consideration of listed salmon and steelhead can affect the level of hydropower generation and generating capacity, thus affecting power prices. Flow regimes for purposes of salmon and steelhead conservation have been implemented at various projects associated with a number of regulations, including the listing of salmon and steelhead. As mentioned previously, however, the level of increased flow or spill over the dams within particular areas that may be requested associated with critical habitat for all hydropower projects is uncertain at this time, and a prospective analysis of the impacts of such efforts would be highly speculative. Many biological and hydrologic factors are considered in determining flow requirements through dams for salmon and steelhead, and the impacts of altering flow regimes to meet these requirements are highly site-specific. For example, the impact of increasing spill at a hydropower project depends on the level and timing of the spill, and on the method by which any lost power generation is replaced.

The extent to which any future changes in flow may be attributable to the designation of critical habitat, as opposed to the listing or other wildlife-related regulations, is also unclear. The interrelated nature of dam and diversion projects with hydrology across river systems makes it very difficult to attribute flow-related impacts from salmon and steelhead conservation to specific watersheds. We acknowledge this limitation of the economic analysis. The revised economic analysis includes an expanded discussion of the potential impacts of changes in flow regimes on hydropower operations.

Comment 32:

One commenter stated that the Initial Regulatory Flexibility Analysis needs more citations regarding the applied sources of information.

Response:

We have provided appropriate citations in the Final Regulatory Flexibility Analysis.

Comment 33:

One commenter stated that the Small Business Regulatory Enforcement Fairness Act (SBREFA) analysis assumes that most compliance costs would be borne by third parties when, in fact, a significant portion of all ESA section 7 related costs are not borne by those entities, but rather are borne by the Bureau of Reclamation (BOR).

Response:

In many cases it is uncertain who will bear the costs of modification. The potentially burdened parties associated with modifications to activities are identified in the economic analysis. The BOR may, in fact, bear the cost of modifications to BOR dams, Federal land management activities, and so forth. Where information is not available on a per-project basis regarding the potentially affected party, the analysis takes a conservative approach, assuming that impacts may be borne by private entities, a portion of which may be small entities.

Weighing the Benefits of Designation Versus Exclusion

Comment 34:

Several commenters supported the use of a cost-effectiveness framework, one commenter explicitly objected to it, and some commenters had concerns with the way we applied it. One commenter asserted that the economic analysis “would have been very different” if we had evaluated the absolute conservation value of an area “with or without [section] 7 requirements,” rather than relative conservation values. One commenter asserted that “[w]ithout any target level of conservation for designation, the framework does not guarantee that areas necessary for conservation will be designated.” Another commenter asserted that weighing quantitative economic costs against qualitative habitat ratings prejudiced the ESA section 4(b)(2) analysis in favor of excluding areas lacking a high conservation value. Several commenters suggested that the 4(b)(2) process could benefit from more explanation regarding how the process was applied.

Response:

We believe the comparison of benefits provides the Secretary useful information as to the benefits of any particular inclusion or exclusion. The Secretary has discretion in balancing the statutory factors, including what weight to give those factors. The ESA provides the Secretary with the discretion to exclude areas based on the economic impact, or any other relevant impact, so long as a determination is made that the benefits of exclusion outweigh the benefits of designation, and so long as the exclusion will not result in extinction of the species concerned.

Subsequent to publication of this rule, we will undertake a review of the methods and criteria applied in this rule. If the Secretary determines the critical habitat designations should be modified as a result of that review, we will propose a revised designation with appropriate opportunity for notice and comment.

Comment 35:

In the proposed rule we identified a number of potential exclusions that we were considering but

were not at that time proposing, including Federal lands subject to the Northwest Forest Plan and PACFISH. Many commenters opposed these potential exclusions. Some disagreed that designation of critical habitat is unnecessary or of diminished importance in light of existing management constraints, contending that such a position is contrary to the ESA's conservation purpose and our implementing regulations and citing recent court decisions bearing on this issue. Several commenters indicated that because these ESUs are still listed, existing regulatory and voluntary mechanisms are inadequate and also noted that we concluded as such in our 2000 designations. Some commenters believed that the assumptions underlying such exclusions were unjustifiable and potentially disastrous for salmon recovery. Some commenters noted that the lack of specificity regarding which areas might be excluded as well as the lack of clear exclusion standards seriously hindered the public's ability to comment on the proposed exclusions. In contrast, several commenters supported the potential exclusions mentioned in the proposed rule. Some commenters contended that designating critical habitat on these Federal lands was duplicative with existing ESA section 7 consultation processes, inefficient (

e.g.

, citing costs of re-initiating consultation), and offers no additional conservation benefit to the listed ESUs. One commenter believed that excluding Federal lands would be consistent with our exclusion of lands subject to Integrated Natural Resource Management Plans (INRMPs) since existing land management plans provide similar protections. This commenter also cited the USFWS” exclusion of Federal lands for bull trout (69 FR 59996; October 6, 2004) and provided information supporting the belief that we should make the same determination for salmon and steelhead ESUs.

Response:

Section 4(b)(2) 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. In the proposed rule, and the reports supporting it, we explained the policies that guided us and provided supporting analysis for a number of proposed exclusions. We also noted a number of additional potential exclusions, explaining that we were considering them because the Secretary of the Interior had recently made similar exclusions in designating critical habitat for the bull trout: “On October 6, 2004, the FWS issued a final rule designating critical habitat for the bull trout * * *. The Secretary of the Interior found that a number of conservation measures designed to protect salmon and steelhead on Federal, state, tribal and private lands would also have significant beneficial impacts to bull trout. Therefore, the Secretary of the Interior determined that the benefits of excluding those areas exceeded the benefits of including those areas as critical habitat. The Secretary of Commerce has reviewed the bull trout rule and has recognized the merits of the approach taken by the Secretary of the Interior to these emerging issues.” We acknowledged, in the proposed rule, however, that we lacked the analysis to propose these potential exclusions for West Coast salmon and steelhead: At this time, the Secretary of Commerce still “has not had an opportunity to fully evaluate all of the potential exclusions, the geographical extent of such exclusions, or compare the benefits of these exclusions to the benefits of inclusion.” Our regulations require that our proposed and final rules provide the data upon which the rule is based (50 CFR 424.16; 50 CFR 424.18).

Recently, in response to the Department of Interior's request, a District Court has remanded the bull trout rule to the Department of Interior for further rulemaking.

Alliance for the Wild Rockies and Friends of the Wild Swan

v.

David Allen and United States Fish and Wildlife

(CV 04-1812). In seeking the remand the Department of Interior noted that it intends to reconsider the 4(b)(2) exclusions in the proposed rule and that it recently issued a

Federal Register

notice seeking comment on those exclusions (70 FR 29998; May 25, 2005). In response, we received extensive comment from those supporting and opposing these potential exclusions. Based on our review of the information received and the short time between the close of the comment period and the court-ordered deadline for completing this rulemaking, we are unable to conclude at this time that the benefits of excluding these areas outweigh the benefits of designation, with the exception of areas covered by two habitat conservation plans, discussed below.

Nevertheless, we will continue to study this issue and alternative approaches in future rulemakings designating critical habitat. In particular, we intend to analyze the planning and management framework for each of the ownership categories proposed for consideration for exclusion. In each case, we envision that the planning and management framework would be evaluated against a set of criteria, which could include at least some or all of the following:

1. Whether the land manager has specific written policies that create a commitment to protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead.

2. Whether the land manager has geographically specific goals for protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead.

3. Whether the land manager has guidance for land management activities designed to achieve goals for protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead.

4. Whether the land manager has an effective monitoring system to evaluate progress toward goals for protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead.

5. Whether the land manager has a management framework that will adjust ongoing management to respond to monitoring results and/or external review and validation of progress toward goals for protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead.

6. Whether the land manager has effective arrangements in place for periodic and timely communications with NOAA on the effectiveness of the planning and management framework in reaching mutually agreed goals for protection or appropriate management of the physical or biological features essential to long-term conservation of ESA-listed salmon and steelhead.

Comment 36:

In the proposed rule we requested comments on the potential exclusion of lands subject to conservation commitments by state and private landowners reflected in habitat conservation plans (HCPs) approved by NMFS. Some commenters (none however with NMFS-approved HCPs) concurred with the potential exclusion of lands covered by an HCP, believing that we would not likely secure additional conservation benefits by designating these areas as critical habitat. Some commenters acknowledged the potential educational benefits of designation but asserted that designating HCP lands could have an

unintended consequence of damaging existing and future cooperative relationships. These commenters additionally noted that HCPs have already undergone extensive environmental review and ESA section 7 consultation and been found to not likely jeopardize the species.

Several commenters disagreed with the potential exclusion of lands covered by HCPs, believing it would be contrary to the ESA, and some cited recent litigation bearing on this issue (

e.g.

,

Center for Biological Diversity

v.

Norton

, 240 F. Supp. 2d 1090 (D. Ariz. 2003);

Gifford Pinchot Task Force

v.

FWS

, 378 F. 3d 1059 (9th Cir. 2004). One commenter did not support such exclusions because of the belief that there are no guarantees the plans will remain in place when, for example, ownership changes or landowners change their minds. Some commenters believed that we failed to adequately describe the benefits of designation as they pertain to these potential exclusions.

Response:

The analysis required for these types of exclusions, as with all others, first requires careful consideration of the benefits of designation versus the benefits of exclusion to determine whether benefits of exclusion outweigh benefits of designation. The benefit of designating critical habitat on non-Federal areas covered by an approved HCP or another type of conservation agreement depends upon the type and extent of Federal activities expected to occur in that area in the future. Activities may be initiated by the landowner, such as when the landowner seeks a permit for bank stabilization, water withdrawal, or dredging. Where the area is covered by an HCP, the activity for which a permit is sought may or may not be covered by the HCP. For example, an HCP covering forestry activities may include provisions governing construction of roads, but may not include provisions governing bank stabilization or pesticide application. The activity may be initiated by the Federal agency without any landowner involvement, such as when a Federal agency is involved in building a road or bridge, dredging a navigation channel, or applying a pesticide on Federal land upstream of the HCP-covered area. In analyzing the benefits of designation for these HCP-covered areas, we must consider which Federal activities are covered by the HCP and which are not. Where activities are covered by the HCP, we must consider whether an ESA section 7 consultation on that particular activity would result in beneficial changes to the proposed action over and above what is achieved under the HCP. Designation may also benefit the species by notifying the landowner and the public of the importance of an area to species' conservation.

On the other side of the balance are the benefits of exclusion. We believe the primary benefits of exclusion are related to the conservation benefits to the species that come from conservation agreements on non-Federal land. If a landowner considers exclusion from critical habitat as a benefit, exclusion may enhance the partnership between NMFS and the landowner and thus enhance the implementation of the HCP or other agreement. If other landowners also consider exclusion from critical habitat as a benefit, our willingness to exclude such areas may provide an incentive for them to seek conservation agreements with us. Improved implementation of existing partnerships, and the creation of new conservation partnerships, would ultimately benefit conservation of the species.

Conservation agreements with non-Federal landowners enhance species conservation by extending species' protections beyond those available through other ESA provisions. ESA section 7 applies only to Federal agency actions. Section 7 consultation requirements protect listed salmon and steelhead on Federal lands and whenever a Federal permit or funding is involved in non-Federal actions, but its reach is limited. The vast majority of activities occurring in riparian and upland areas on non-Federal lands do not require a Federal permit or funding and are not addressed by section 7. In contrast, instream activities generally do require a Federal permit, and therefore, are subject to the requirements of section 7. The ability of the ESA to induce landowners to adopt conservation measures lies instead in the take prohibitions of sections 9(a) and 4(d). Many landowners have chosen to put conservation plans in place to avoid any uncertainty regarding whether their actions constitute ‘take’.

Beginning in 1994, when we released our draft HCP Handbook for public review and comment, we have pursued policies that provide incentives for non-Federal landowners to enter into cooperative partnerships, based on a view that we can achieve greater species' conservation on non-Federal land through HCPs than we can through coercive methods (61 FR 63854; December 2, 1996). Before we approve an HCP and grant an incidental take permit, we must conduct a rigorous analysis under ESA section 10. The HCP must specify the impact likely to result from take, what steps the applicant will take to minimize and mitigate such impacts, and the funding available to implement such steps. The applicant must have considered alternative actions and explained why other alternatives are not being pursued, and we may require additional actions necessary or appropriate for the purposes of the plan. Before an HCP can be finalized, we must conclude that any take associated with implementing the plan will be incidental, that the impact of such take will be minimized and mitigated, that the plan is adequately funded, and that the take will not appreciably reduce the likelihood of the survival and recovery of the species in the wild. The HCP undergoes environmental analysis under the National Environmental Policy Act (NEPA), and we conduct a section 7 consultation with ourselves to ensure granting the permit is not likely to jeopardize the continued existence of the species or destroy or adversely modify designated critical habitat.

Based on comments received, we could not conclude that all landowners view designation of critical habitat as imposing a burden on the land, and exclusion from designation as removing that burden and thereby strengthening the ongoing relationship. Where an HCP partner affirmatively requests designation, exclusion is likely to harm rather than benefit the relationship. We anticipate further rulemaking in the near future to refine these designations, for example, in response to developments in recovery planning. In order to aide in future revisions, we will affirmatively request information from those with approved HCPs regarding the effect of designation on our ongoing partnership. We did not consider pending HCPs for exclusion, both because we do not want to prejudge the outcome of the ongoing HCP process, and because we expect to have future opportunities to refine the designation and consider whether exclusion will outweigh the benefit of designation in a particular case.

Comment 37:

We received a request from the Sonoma County Grape Growers Association and the United Winegrowers for Sonoma County to consider a determination to exclude all occupied areas in Sonoma County from critical habitat for California coastal chinook and central California coast

O. mykiss

based on the conservation value of a suite of cooperative and voluntary conservation efforts being implemented and developed by local government and the private sector, primarily the viticultural industry, in Sonoma County.

Response:

These efforts may currently provide a significant conservation benefit to the listed species, and offer the promise of even greater benefits in the future. The measures include the Vineyard Erosion and Sedimentation Control Ordinance adopted by the Sonoma County Board of Supervisors; the Fish Friendly Farming Program; the North Sonoma County Agricultural Reuse Project; the planned Russian River Property Owners Association Fisheries Management Plan; the Integrated Pest Management/Organic Grape Production initiatives; and the Code of Sustainable Winegrowing Practices. The submission can be found electronically at

http://swr.nmfs.noaa.gov/.

The request suggests the benefits of excluding the area covered by these measures from critical habitat may outweigh the benefits of including it as critical habitat because it provides conservation measures on private land in an area dominated by private ownership, which is generally beyond the reach of ESA section 7, and may therefore provide a greater benefit for the species than a critical habitat designation. Private landowners would be encouraged to participate in these voluntary programs if their lands were excluded from critical habitat.

We received this request on July 21, 2005, so we did not have time to evaluate this request as part of this rulemaking process, and could not defer the rule to accommodate a review because we are under court order to submit this final rule to the

Federal Register

by August 15, 2005. However, we are committed to working with local governments and private landowners in cooperative conservation efforts under Executive Order (E.O.) 13352 (August 26, 2004). As stated above, we anticipate further rulemaking in the near future to refine these designations. Accordingly, we expect to complete an evaluation of the conservation benefits of the measures described by the Sonoma County Grape Growers Association and the United Wine growers for Sonoma County by the end of 2005. If we find that in light of the conservation value of these measures, the benefit of excluding these private lands outweighs the benefits of including them as critical habitat, we will act promptly to propose a revision to this designation.

Comment 38:

Some commenters addressed the exclusion of Indian Lands. All of the commenting Tribes and the Bureau of Indian Affairs (BIA) reiterated their support for the exclusions.

Response:

This final rule maintains the exclusion of Indian lands for the reasons described in the “

Exclusions Based on Impacts to Tribes

” section below.

Comment 39:

A few commenters addressed our assessment of INRMPs and the exclusion of Department of Defense (DOD) areas due to impacts on national security. DOD agencies supported the exclusion of military lands based on both the development of INRMPs as well as national security impacts, while other commenters did not support such exclusions. One commenter argued that we should not use the general “national security” language in ESA section 4(b)(2) to remove our obligation to comply with the demand for adequate INRMPs.

Response:

Pursuant to section 4(a)(3)(B)(i) of the ESA (16 U.S.C. 1533(a)(3)(B)(i)), we contacted the DOD, and, after evaluating the relevant INRMPs, we concluded that, as implemented, they provide conservation benefits greater than or equal to what would be expected to result from an ESA section 7 consultation. We also determined that two of these INRMP sites (Camp Pendleton and Vandenberg Air Force Base) should be excluded from designation due to potential impacts on national security. See the “Military Lands” and the “Exclusions Based on National Security Impacts” sections below.

Effects of Designating Critical Habitat

Comment 40:

Some commenters noted that the success of watershed management and restoration efforts is dependent on critical habitat protections, noting that designations assist local recovery planning efforts and provide leverage in obtaining funding and cooperation. Several commenters expressed concern that excluding areas from designation, particularly areas identified in existing recovery efforts as important for salmon, would undermine ongoing regional and local recovery planning efforts by signaling that these areas are not important for recovery.

Response:

We acknowledge that critical habitat designations can serve an important educational role and that they can assist local recovery planning and implementation efforts. The ESA requires that we use the best available scientific data to evaluate which areas warrant designation and that we balance the benefits of designation against the benefits of excluding particular areas. In so doing, it is possible that some areas subject to ongoing restoration activities may have been excluded from designation. However, such exclusions do not indicate that the areas are unimportant to salmon or steelhead, but instead reflects the practical result of following the ESA's balancing of benefits as required under section 4(b)(2). We are hopeful that the information gathered and the analyses conducted to support these final designations (such as species distribution, watershed conservation value, and economic impacts from section 7 consultations) will be viewed as valuable resources for local recovery planners. As recovery planning proceeds and we determine that additional or different areas warrant designation or exclusion, we can and will make needed revisions using the same rulemaking process.

Comment 41:

Several commenters asked for clarification regarding how we will make adverse modification determinations in ESA consultations. One commenter also suggested that a finding of adverse modification would need to be contingent on the habitat conditions existing at the time of designation. They noted that, where such conditions are the result of past and present management actions, and where those existing conditions would not be altered through proposed future actions, it is their belief that consultation on such future actions would result in a “no adverse modification” determination.

Response:

In

Gifford Pinchot Task Force

v.

United States Fish and Wildlife Service,

378 F. 3d 1059 (9th Cir. 2004), the Court of Appeals for the Ninth Circuit Court ruled that the USFWS’ regulatory definition of “destruction or adverse modification” of critical habitat, which is also NMFS’ regulatory definition (50 CFR 402.02), is contrary to law. Pending issuance of a new regulatory definition, we are relying on the statutory standard, which relates critical habitat to conservation of the species. The related point raised by one commenter regarding the relevance of habitat conditions at the time of listing when making an adverse modification determination cannot be answered in a generic way and would depend on the facts associated with a specific consultation.

Comment 42:

Some commenters objected to the potential land use regulations that critical habitat designation would prompt, citing specific cases where local agencies have imposed buffers and/or other restrictions to protect ESA-listed fish.

Response:

The ESA requires that we designate critical habitat and these designations follow that statutory mandate and have been completed on a schedule established under a Consent Decree. Whether and if local jurisdictions will implement their

authorities to issue land use regulations is a separate matter and is not under our control.

Comment 43:

Several commenters believed that we fail to (or inadequately) address required determinations related to a number of laws, regulations, and executive orders, including the NEPA, Regulatory Flexibility Act, and Data Quality Act.

Response:

Our response to each of these issues are described below, and we also direct the reader to the “Required Determinations” section to review our response to each of the determinations relevant to this rulemaking.

(a)

NEPA

—We believe that in

Douglas County

v.

Babbitt,

48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S. Ct. 698 (1996) the court correctly interpreted the relationship between NEPA and critical habitat designation under the ESA. The Court of Appeals for the Ninth Circuit rejected the suggestion that irreconcilable statutory conflict or duplicative statutory procedures are the only exceptions to application of NEPA to Federal actions. The court held that the legislative history of the ESA demonstrated that Congress intended to displace NEPA procedures with carefully crafted procedures specific to critical habitat designation. Further, the Douglas County Court held that the critical habitat mandate of the ESA conflicts with NEPA in that, although the Secretary may exclude areas from critical habitat designation if such exclusion would be more beneficial than harmful, the Secretary has no discretion to exclude areas from designation if such exclusion would result in extinction. The court noted that the ESA also conflicts with NEPA's demand for impact analysis, in that the ESA dictates that the Secretary “shall” designate critical habitat for listed species based upon an evaluation of economic and other “relevant” impacts, which the court interpreted as narrower than NEPA's directive. Finally, the court, based upon a review of precedent from several circuits including the Fifth Circuit, held that an environmental impact statement is not required for actions that do not change the physical environment.

(b)

Regulatory Flexibility Act

—We have prepared a final regulatory flexibility analysis that estimates the number of regulated small entities potentially affected by this rulemaking and the estimated coextensive costs of section 7 consultation incurred by small entities. As described in the analysis, we considered various alternatives for designating critical habitat for these seven ESUs. After considering these alternatives in the context of the ESA section 4(b)(2) process of weighing the benefits of exclusion against the benefits of designation, we determined that our current approach to designation provides an appropriate balance of conservation and economic mitigation and that excluding the areas identified in this rulemaking would not result in extinction of the ESUs. Our final regulatory flexibility analysis estimates how much small entities will save in compliance costs due to the exclusions made in these final designations.

(c)

Data Quality Act

—One commenter asked if we had complied with the Data Quality Act. We have reviewed this rule for compliance with that Act and found that it complies with NOAA and OMB guidance.

(d)

Negotiated Rulemaking Act (5 U.S.C. 561 et seq.)

—One commenter asserted that we should have engaged in negotiated rulemaking to issue this final critical habitat designation. This is an interesting idea and could be pursued in future critical habitat rulemaking. However, because a court approved consent decree governs the time frame for completion of this final rule, we do not feel that there was ample time to comply with the numerous processes defined in the Negotiated Rulemaking Act for this rulemaking. For example, the Negotiated Rulemaking Act provides that if the agency decides to use this tool it must follow Federal Advisory Committee Act procedures for selection of a committee, conduct of committee activities, as well as specific documentation processes (See

Negotiated Rulemaking Source Book,

1990).

(e)

Intergovernmental Cooperation Act

—One commenter asserted that we did not properly and fully coordinate with local governments and did not comply with the Intergovernmental Cooperation Act. First, the commenter did not provide a statutory citation for the Intergovernmental Cooperation Act. Although we are reluctant to speculate on that Act, we believe the comment is in reference to the Intergovernmental Cooperative Act, Public Law 90-577, 82 Stat. 1098 (1968) as amended by Public Law 97-258 (1982) (codified at 31 U.S.C. 6501-08 and 40 U.S.C. 531-35 (1988)). This Act addresses Federal grants and development assistance. Accordingly, we do not find it relevant to the mandatory designation of critical habitat under the ESA. To the extent that the commenter's concern is assuring that state, local and regional viewpoints be solicited during the designation process, the ESA and our implementing regulations provides for public outreach (16 U.S.C. 1533 (b)(3)(A); 50 CFR 424.16). As noted in response to Comment 1, we actively sought input from all sectors beginning with an ANPR (68 FR 55926; September 29, 2003) and culminating in four public hearings to facilitate comment from the interested public in response to the proposed rule. In addition we met with several local governments and made ourselves available to meet with others.

(f)

National Historic Preservation Act (NHPA)

—One commenter asserted that we failed to comply with the NHPA (16 U.S.C. 470-470x-6). The NHPA does not apply to this designation. The NHPA applies to “undertakings.” “Undertakings” are defined under the implementing regulations as “a

project, activity

or

program

funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; those requiring a Federal permit, license or approval; and those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.” (emphasis added) (36 CFR 800.16). The mandatory designation of specific areas pursuant to the criteria defined in the ESA does not constitute an “undertaking” under the NHPA.

(g)

Farmland Protection Policy Act (FPPA)

—One commenter asserted that we failed to comply with FPPA (7 U.S.C. 4201). The FFPA does not apply to this designation. The FPPA applies to Federal programs. Federal programs under the Act are defined as “those activities or responsibilities of a department, agency, independent commission, or other unit of the Federal Government that involve: (A) Undertaking, financing, or assisting construction or improvement projects; or (B) acquiring, managing or disposing of Federal lands and facilities. The designation of critical habitat does not constitute a “Federal program” under the FFPA.

(h)

Unfunded Mandates Reform Act

—One commenter asserted that we failed to properly conduct and provide an unfunded mandates analysis because, the commenter contended, we based our decision solely on public awareness of the salmon listings. This is not the case. In the proposed rule, we found that the designation of critical habitat is not subject to the Unfunded Mandates Reform Act (2 U.S.C. 1501

et seq.

) and explained in detail why this is the case.

(i)

Federalism

—One commenter asserted that we failed to properly comply with E.O. 13132. In the proposed rule, we found that the designation of critical habitat does not

have significant Federalism effects as defined under that order, and, therefore, a Federalism assessment is not required. We find nothing in the commenter's assertions to warrant changing our original determination.

(j)

Takings

—One commenter disputed our conclusion in the proposed rule that the designations would not result in a taking. The commenter offered no information or analysis that would provide a basis for a different conclusion.

(k)

Civil Justice Reform

—One commenter asserted that we failed to properly conduct and provide a Civil Justice Reform analysis pursuant to E.O. 12988, 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 the E.O. We are designating critical habitat in accordance with the provisions of the ESA. This final rule uses standard property descriptions and identifies the PCEs within the designated areas to assist the public in understanding the habitat needs of the 12 salmon and steelhead ESUs.

ESU-Specific Issues

ESU Specific Comments—California Coastal Chinook Salmon

Comment 44:

One private timberland owner commented that the freshwater distribution of Chinook salmon that we developed and used for their land ownership had errors in occupancy and/or upstream distribution limits. The landowner provided us with distribution information they had developed for their ownership so that the distribution information and resulting final critical habitat designation for this ESU would be more accurate.

Response:

Following a review of this new information by the CHART, we incorporated it into our database and made changes in the mapped distribution of this ESU for the commenter's land ownership. The new information changed the distribution of Chinook in the following streams and Calwater HSAs: Maple Creek (110810), Little River (110820), and the Mad River (110920 and 110930). Overall, these changes in distribution were minor and increased the total occupied stream miles for this ESU by only 0.6 mi (1.0 km). Based on a reassessment by the CHART, these changes in distribution did not change the occupancy status (i.e. occupied to unoccupied or vice versa) or conservation value of any of the affected HSAs, and therefore, the economic analysis did not require revision.

Comment 45:

A few commenters questioned why there was no proposed critical habitat connecting those portions of the mainstem Eel River in HSA 111142 with the high value habitat areas in the upper tributaries of the middle Fork Eel River in HSA 111172.

Response:

In the proposed rule, HSA watershed 111171 was proposed for exclusion based on high economic cost (high benefit of exclusion) and relatively low benefit of designation. However, because the upper tributaries of the middle Fork Eel in HSA 111172 were rated as having high conservation value, the mainstem middle Fork Eel in HSA 111171 should have been designated as a migratory corridor to provide connectivity between critical habitat farther downstream in the mainstem Eel River and the high value tributaries that were proposed for designation. This was an error that has been corrected in the final rule. The final designation excludes HSA 111171 as was the case in the proposed rule, but designates the mainstem of the middle Fork Eel River, which serves as a migratory corridor for the high value upstream tributaries, as critical habitat.

Comment 46:

A commenter questioned the conservation ratings and proposed designations for five of the seven occupied HSAs comprising the Mendocino Coast Subbasin (HU 1113). The commenter specifically questioned the historic and current presence of Chinook in these watersheds and thought any Chinook that did occur in these watersheds were likely strays from other watersheds.

Response:

The CHART considered these comments and reviewed its original assessments. It concluded that its original conservation value ratings were appropriate based on the ranking criteria that were used and the information that was available, and that these areas met the definition of critical habitat under the ESA. Accordingly, the conservation value ratings for these HSA watersheds were not changed. Based on the ESA section 4(b)(2) analysis conducted for the final rule, however, HSA watershed 111350 (Navarro River) in this Subbasin was excluded from the final designation for this ESU.

Comment 47:

One commenter questioned the proposed designation of critical habitat for this ESU in the Austin Creek HSA (111412) and Mark West HSA (111423), based on the view that neither watershed supported a historically self sustaining run and that Chinook in both streams were most likely strays from other watersheds.

Response:

The CHART considered this comment and reviewed its original assessments. It concluded that its original conservation value ratings were appropriate based on the ranking criteria that were used and the information that was available, and that these areas met the definition of critical habitat under the ESA. Accordingly, the conservation value ratings for these HSA watersheds were not changed. Based on the ESA section 4(b)(2) analysis conducted for the final rule, however, HSA 111423 (Mark West Creek) in this Subbasin was excluded from the final designation for this ESU.

Comment 48:

A property owners' association on the Russian River that controls land adjacent to portions of the Russian River in HSAs 111425 and 111424 requested that its lands be excluded from the final designations for California Coastal Chinook (and Central California Coast steelhead) because it has developed a Watershed Management Plan to manage its lands and because the benefits of excluding its lands outweigh the benefits of including them in the designation.

Response:

We are very supportive of the development and implementation of this plan and have in fact participated in its development. However, we do not think this plan qualifies as the basis for excluding these lands from the final designation for either ESU at present, since it is not completed. Once the plan is completed, we will evaluate it to determine whether the benefits of excluding the habitat areas in question will outweigh the benefits of designation. In making this assessment we will evaluate the plan in the same manner as we would evaluate an approved habitat conservation plan (see

Impacts to Landowners with Contractual Commitments to Conservation

section). If we determine that the benefits of exclusion outweigh the benefits of designation, then we will initiate the appropriate rulemaking to refine the critical habitat designations.

ESU Specific Comments—Northern California Steelhead

Comment 49:

Two private timberland owners commented that the freshwater distribution of steelhead that we developed and used for their land ownership had errors in occupancy and/or upstream distribution limits. Both landowners provided us with distribution information they had developed for their ownership so that the fish distribution information we used for the final critical habitat designation for this ESU would be more accurate.

Response:

Following a review of this new information by the CHART, we incorporated it into our database and made changes in the mapped distribution of this ESU for the commenters' land ownership. The new information from one of the landowners changed the distribution of steelhead in the following streams and Calwater HSAs: Maple Creek (110810), Redwood Creek (110720), Little River (110820), Mad River (110920 and 110930), and several small streams including Rocky Gulch, Washington Gulch, Jacoby Creek, Freshwater Creek, and Salmon Creek (111000). Overall, these changes in distribution were minor and increased the total occupied stream miles for this ESU by only 1.1 mi (1.8 km). The changes in distribution did not affect the occupancy or conservation value rating for any of these HSAs. The new information from the other landowner changed the distribution of steelhead in the following streams and HSAs: SF Eel (111132, 111133), Usal Creek (111311), Wages Creek (111312), Ten Mile River (111313), Mill Creek, Pudding Creek and the Noyo River (111320), Big River (111330) and Salmon Creek (111340). Overall, this new information decreased the occupied stream miles for the ESU by approximately 17 miles and affected 8 HSAs. Based on a re-assessment by the CHART, these changes in distribution did not change the occupancy status (i.e. occupied to unoccupied or vice versa) or conservation value of any of the affected HSAs, and therefore, the economic analysis did not require revision.

ESU Specific Comments—Central California Coast Steelhead

Comment 50:

One commenter requested that San Francisquito Creek and Los Trancos Creek in HSA 220550 be excluded from the critical habitat designation for this ESU because of the economic impact of designation and because neither creek requires special management considerations. A second commenter requested that San Francisquito Creek not be designated because of the regulatory burden and because the economic impacts on water supply were not included in the economic analysis. The second commenter also identified a labeling error concerning West Union Creek.

Response:

We disagree with the first commenter and believe that these streams do require special management considerations. Both streams have extensive zones of healthy riparian vegetation and habitat and support significant steelhead populations in the San Francisco Bay area. These relatively healthy habitats and populations are unique to the San Francisco Bay area, and therefore, the CHART believes they require special management considerations. The commenter has many programs in place that benefit both creeks, but there are also many unresolved habitat issues that remain to be addressed. For example, on Los Trancos Creek a poorly designed fish ladder needs to be replaced, and several other fish passage issues remain. In addition, NMFS and CDFG have discussed the inadequate bypass flows on Los Trancos Creek below the commenter's water diversion for the past several years, but have yet to resolve the issue. Special management considerations are also necessary to address ongoing and expanding impacts of urbanization on the San Francisco Peninsula. We considered the impacts of designating the HSA watershed containing these creeks in the proposed rule and again using a revised procedure for the final rule. Based on the ESA section 4(b)(2) analysis used for the final rule, we concluded that the benefits of including this HSA watershed in the designation (medium conservation value to the ESU) outweighed the benefits of excluding it from the designation. On the basis of this analysis, therefore, we do not think there will be an unwarranted regulatory burden placed on these commenters or any other entities that may need to obtain Federal permits and consult with NMFS in this HSA watershed. We acknowledge the comment that water supply impacts were not considered in the proposed rule or in the revised 4(b)(2) process for the final rule, but we have addressed water supply impacts as a general issue in greater detail in the final economic analysis for this rule.

Comment 51:

One commenter argued that Suisun and Wooden Valley Creeks in HSA 220722 do not provide suitable habitat for steelhead and that designation is not justified because surrounding HSAs were not proposed for designation.

Response:

We disagree with the commenter and believe that Suisun and Wooden Valley Creeks currently support a population of steelhead and do provide suitable habitat for rearing, spawning and migration (and thus, the PCEs that support these habitat uses). The reports cited by the commenter include a discussion of limiting factors in Suisun Creek, but also include several favorable findings regarding steelhead habitat conditions in the watershed. These findings suggest that there is suitable habitat for steelhead in the watershed and that steelhead spawned in Suisun Creek in 2000-2001. Based on the information available, therefore, we believe that the medium conservation rating originally made by the CHART for this HSA watershed is appropriate. The revised ESA section 4(b)(2) exclusion analysis conducted for the final rule, however, considered section 7 opportunities within HSA watersheds and adjusted the benefits of inclusion in critical habitat accordingly. In the case of this HSA, this re-consideration resulted in a reduced assessment of the benefits of designating this watershed. Based on this revised benefit of designation in the final 4(b)(2) analysis, we have concluded that the benefits of excluding this HSA from the designation outweigh the benefits of designating it. Accordingly, this HSA watershed and the streams in question have been excluded from the final critical habitat designation.

Comment 52:

Several commenters raised issues concerning our proposal to include the upper Alameda Creek watershed (which supports resident

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considered to be part of this ESU; see 69 FR 33101; June 14, 2004) in the critical habitat designation for this ESU. Comments ranged from support for designation of this watershed to requests that it not be designated. Issues were raised about the adequacy of the economic analysis supporting the ESA section 4(b)(2) analysis, the mapped distribution of proposed critical habitat in the watershed, the suitability of the habitat in upper Alameda Creek for steelhead, and the lack of access for steelhead.

Response:

We recognize that the upper Alameda Creek watershed (HSA 220430) is not accessible to anadromous steelhead; however, the CHART treated this watershed as occupied in the analysis supporting the proposed rule because there are resident

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populations in the upper watershed that we had previously proposed for inclusion in this ESU (69 FR 33101). In its original analysis, the CHART concluded that this watershed had high conservation value to the ESU, contained the requisite PCEs to support the ESU, and that special management considerations were required to protect these PCEs. Based on this assessment and the original 4(b)(2) analysis which considered the benefits of including this watershed against the benefits of excluding it, we proposed to include it in the designation, as well as a migratory corridor to San Francisco Bay through a portion of the adjacent watershed (HSA 220420) that was proposed for exclusion. We recently invoked a statutory 6-month extension on our final listing determination for this ESU (70 FR 37219) based on concerns raised by the USFWS, and,

therefore, at the time of publication of this final critical habitat rule, these resident populations of

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will not be included in this ESU and listed. Because our original proposal was premised on the upper Alameda Creek watershed being occupied by resident fish that were part of this ESU and a final listing determination concerning these populations will not be made before December 2005, we have not included this watershed in the final critical habitat designation for this ESU. A decision about whether to designate this watershed as critical habitat for this ESU will be made concurrently with the final listing determination for this ESU in December 2005.

Comment 53:

One commenter opposed inclusion of the Guadelupe River/Los Gatos Creek watershed in the proposed critical habitat designation for this ESU.

Response:

The watershed (HSA 220540) containing the upper portion of Guadelupe River and Los Gatos Creek was not included in the proposed designation. Occupied habitat in this watershed was excluded from the proposed rule based on the ESA section 4(b)(2) analysis which concluded that the economic benefits of exclusion outweighed the biological benefits of inclusion. The watershed unit (HSA 220550) which contains the lower portion of the Guadelupe River, however, was included in the proposed designation. It is also included in the final critical habitat designation for this ESU because the biological benefits of including the occupied stream habitat in this watershed outweigh the economic benefits of its exclusion.

Comment 54:

One commenter argued that Arroyo Corte Madera del Presidio Stream in HSA watershed 220320 should be designated as critical habitat for this ESU because it is occupied by this ESU. The same commenter also questioned the exclusion of HSA 220330 from the proposed designation.

Response:

Exclusion of this stream from proposed critical habitat in HSA 220320 was the result of a technical mapping error in the proposed rule. The CHART evaluated this stream for the proposed rule and concluded it was occupied and met the definition of critical habitat. Accordingly, it has been included in the final designation for this ESU. Occupied habitat in HSA 220330 was excluded from the proposed rule and in this final rule based on the results of the 4(b)(2) analysis, which indicated the economic benefits of exclusion outweighed the biological benefits of including these stream reaches in the designation for this ESU.

Comment 55:

One commenter argued that occupied habitat in HSA 220330 in the east Bay of San Francisco should be designated as critical habitat for this ESU.

Response:

Occupied habitat (Codornices Creek) in this HSA was excluded from the proposed designation because the conservation value of this habitat was judged by the CHART to be low (low habitat quantity and quality, low restoration potential, no unique attributes, and small population size), and the economic benefits of excluding this habitat outweighed the biological benefits of designation. The CHART did not receive any new information to change its previous determination, and, therefore, reaffirmed that it has low conservation value and that its exclusion would not impede the conservation of this ESU.

Comment 56:

One commenter recommended that several additional, but small, stream reaches in the San Francisquito watershed, as well as an unoccupied habitat above an impassable dam (Searsville Dam), be designated as critical habitat for this ESU.

Response:

Based on a review of the information provided by the commenter, the CHART concluded that some additional stream reaches in this watershed should be considered occupied, meet the definition of critical habitat, and should be designated as critical habitat. Because this watershed was not excluded from the designation as a result of the final ESA 4(b)(2) analysis, additional stream reaches qualifying as critical habitat have been added to the final designation. These include: a short reach of Corte Madera Creek to the base of Searsville Dam, approximately 2.5 mi (4 km) of West Union Creek above the confluence with Bear Creek, a short reach of Bear Gulch Creek up to the California Water Service Upper Diversion Dam, a small portion of Squealer Gulch above the confluence with West Union Creek, and a small portion of McGarvey Gulch above the confluence with West Union Creek.

Comment 57:

One commenter requested the exclusion of several streams in Hydrologic Unit 3304 from the critical habitat designation, including Laguna Creek, Liddell Creek, Majors Creek, Arana Gulch, San Lorenzo River, Branciforte Creek, Newell Creek, and Zayante Creek because the commenter believes the benefits of excluding these areas outweigh the benefits of designating them. The rationale is that: (1) The commenter is developing an HCP that will address these streams and a designation could hinder its completion; and (2) a designation would increase the regulatory costs and burdens on the city beyond those already in place. The commenter also raised concerns about the regulatory uncertainty associated with critical habitat because of the 2004 Gifford Pinchot case.

Response:

We disagree with the commenter and continue to believe that the benefits of including these streams in the critical habitat designation outweigh the benefits of excluding them. For the proposed critical habitat designation, the CHART evaluated the HSA watersheds containing the streams identified by the commenter (HSAs 330411 and 330412) and concluded that the occupied streams in both HSAs had high conservation value for this ESU and that there was a need for special management consideration or protections. Based on this assessment and the results of the ESA section 4(b)(2) analysis conducted for the proposed designation, including the consideration of potential economic impacts, we concluded that the benefits of designating the occupied streams in both watersheds were higher than the benefits of excluding them. The commenter did not provide any new scientific information to change our assessment of the benefits of designating these streams, and thus we continue to believe they have a high biological value to the ESU. As part of the 4(b)(2) analysis conducted for the final rule, however, we did reduce our assessment of the benefit of designating occupied habitat in these two HSA watersheds because they both met a “low section 7 leverage” profile, which we believed reduced the benefits of section 7 consultation (see discussion in

Critical Habitat Analytical Review Teams

section).

We continue to be supportive of the commenter's efforts to develop an HCP and believe completion of an HCP that meets the requirements of section 10 of the ESA will provide substantial benefits to steelhead and its habitat in these streams. However, negotiations are still ongoing, and an HCP has not been completed. Until an HCP is completed and an incidental take permit is issued, the potential conservation benefits to steelhead and its habitat are uncertain. For this reason, we believe it is premature to consider the potential benefits of such a conservation plan in the 4(b)(2) analysis for this final designation. Whether or not the commenter would experience an increased regulatory burden or higher costs with a critical habitat designation in place is uncertain. Even without critical habitat in place, the commenter is likely to incur costs associated with ESA section 7 consultations,

development of an HCP, and/or efforts to avoid take. We did consider the economic impacts of critical habitat designation in both the proposed and final rules and in doing so analyzed the full costs of section 7 implementation, not just the costs associated with critical habitat implementation. In approaching the economic analysis this way, we believe that we have likely overstated the economic impacts of critical habitat designation. The final 4(b)(2) analysis for this designation considered both the reduced benefit of including HSA watersheds 330411 and 330412 and the final economic impacts for these watersheds. Based on our consideration of this information, we concluded that the benefits of designating the occupied stream reaches in HSAs 330411 and 330412, including the streams of concern to the commenter, outweighed the benefits of excluding them from the final designation.

ESU Specific Comments—South-Central Coast Steelhead

Comment 58:

One commenter questioned the conservation value of the San Benito watershed (HSA 330550) and also argued that unoccupied habitat areas above Uvas Creek Dam were not essential for the conservation of this ESU.

Response:

The San Benito watershed unit (HSA 330550) was rated as having medium conservation value to this ESU by the CHART based on factors used to conduct the conservation value rating and ranking effort. For the proposed critical habitat ESA section 4(b)(2) analysis, therefore, we attributed a medium benefit of designation to this watershed unit. For the final designation, we conducted a revised 4(b)2 analysis that modified the biologically based conservation value scores if they met a “low section 7 leverage” profile which we believe reduce the benefits of section 7 consultation (see discussion in

Critical Habitat Analytical Review Teams

section). In the case of HSA 330550, we determined that there was relatively low section 7 leverage which reduced the benefits of section 7 consultation, and therefore, reduced the benefit of inclusion from medium to low. Based on this low benefit level and comparatively high economic costs associated with section 7 consultations in this watershed unit, this watershed was considered for possible exclusion. However, the CHART reviewed the available biological and other information for this watershed unit and concluded that its exclusion would impede the conservation of this ESU. This determination was based on the size of the San Benito River and its contribution of habitat to the Pajaro River Basin, the level of section 7 activity occurring in the watershed, and the San Benito River's potential contribution to the recovery of this ESU. Accordingly, we have included the San Benito watershed unit HSA 330550 in the final critical habitat designation.

In the proposed critical habitat designation, the CHART did conclude that the unoccupied habitat above the Uvas Creek Dam “may” be essential for conservation of this ESU. We recognize, however, that there are several issues related to providing fish passage over this dam and also believe it is premature to include this unoccupied habitat area in the critical habitat designation until ongoing recovery planning efforts have progressed to the point where they support a determination that these areas are essential to the conservation of this ESU.

Comment 59:

One commenter questioned whether the apparent exclusion of a portion of the drainage into Morro Bay was based on a consideration of land ownership.

Response:

The identification and conservation rating of occupied habitat that was eligible for designation used only biological and ecological criteria, including information regarding presence of steelhead and habitat condition. Land ownership was not a consideration in the conservation rating process nor in the section 4(b)(2) analysis that identified areas for exclusion based on a balancing of the benefits of designation against the economic costs of designation. In reviewing the proposed critical habitat designation maps in response to this comment, however, we discovered a technical mapping error in Los Osos Creek. An upstream portion of Los Osos Creek was proposed for designation in HSA 331023, but the lower portion of the creek which enters into Morro Bay was inadvertently excluded from the designation. We have corrected this error in the final designation.

Comment 60:

One commenter recommended exclusion of San Luis Obispo Creek from the designation for this ESU based on the management plans and existing agreements already in place which provide protection for the creek and steelhead. The commenter also raised questions about the validity of the economic impact analysis used for the proposed critical habitat designation process in light of costs incurred as a result of ESA section 7 consultation on a water reuse project.

Response:

The commenter and other local agencies have undertaken numerous efforts to conserve and improve existing habitats within the San Luis Obispo Creek watershed, though some efforts were a result of regulatory requirements to compensate for the adverse effects of proposed actions. However, these conservation efforts have been confined to localized areas and provide no reliable ability to effectively protect existing suitable habitat for steelhead and improve currently degraded habitats. We have not conducted a review to determine whether the existing local conservation and management efforts (e.g., conservation easements, creek set-back ordinance, sewer ordinance) contain measures that would be expected to protect existing suitable habitat for steelhead, and, therefore, the possible benefits that existing management plans may have for the conservation of steelhead and their habitat is unknown. We have, however, reviewed the draft Creeks and Waterway Management Plan (i.e., the Environmental Impact Statement), which describes management and protection of streams within the San Luis Obispo Creek watershed, and concluded that many of the “management” activities (e.g., use of rock riprap, removal of woody debris, creation or modification of channels, and in-channel detention enhancements) in the plan would create conditions unfavorable for long-term survival and reproduction of steelhead within the San Luis Obispo Creek watershed and, in turn, the entire ESU. Based on these considerations and other information regarding activities potentially affecting steelhead habitat in the San Luis Obispo Creek watershed, we disagree with the commenter and continue to believe there is a need for special management considerations or protections of occupied stream habitat in the San Luis Obispo Creek watershed. Accordingly, the final designation for this ESU includes all occupied stream reaches in HSA 331024, including San Luis Obispo Creek.

We acknowledge that the economic analysis used in the ESA section 4(b)(2) analysis for the proposed designation did not address water supply and flow modification related projects adequately. The final economic analysis prepared for this designation addresses these issues more completely, though it does not specifically address the water reuse project. Rather than understate the costs of critical habitat designation, we believe that the economic analyses prepared for the proposed and final designations actually overestimate the incremental economic costs associated with critical habitat designation. In our economic analyses, we estimated the

total cost of ESA section 7 consultation for specific project types anticipated to occur in the foreseeable future based on information from Federal agencies and other sources. We believe that much of the estimated costs can be attributable to the presence of listed fish and the jeopardy analysis in section 7 consultation. Indeed, the costs cited by the commenter for its water reuse project were associated with a section 7 consultation that addressed the presence of listed steelhead in the watershed, not critical habitat. Although consideration of critical habitat adverse modification in the consultation on the water reuse project may have resulted in additional project changes, we do not think they are likely to be significant.

Comment 61:

Several commenters were confused about whether West Corral de Piedra Creek, an upstream tributary to Pismo Creek (HSA 331026), was included in the proposed designation, and whether areas above a local dam (the Righetti Dam) on this creek were included in the designation. Some commenters also argued that habitat above the Righetti Dam was of high quality for steelhead and should be included in the critical habitat designation. One commenter also requested that an unnamed tributary of West Corral de Piedra Creek be designated, while a second commenter requested that it not be designated.

Response:

West Corral de Piedra Creek was included in the proposed designation and has also been included in the final designation for this ESU. The maps used to depict occupied stream habitat and the proposed critical habitat, however, did not properly label West Corral de Piedra Creek, hence the confusion of the commenters. We have corrected this problem in the maps depicting the final designation. The designated critical habitat in West Corral de Piedra Creek, however, does not include habitat above the Righetti Dam. Although the habitat appears to be of high quality and would likely support steelhead spawning, we are uncertain whether adult fish can pass over the dam. Accordingly, we treated the area above the Rhighetti Dam as unoccupied habitat and, since a determination that it is essential to the conservation of the ESU had not been made, we have not included it in the final designation for this ESU. In evaluating the areas of occupancy, habitat conditions, and conservation value of this HSA watershed, the CHART reviewed the available information about the unnamed tributary to West Corral de Piedra Creek. The CHART concluded it was unoccupied and had poor habitat conditions, and, since, a determination that it is essential to the conservation of the ESU has not been made, it has likewise not been included in the final designation.

Comment 62:

Another commenter argued that West Corral de Piedra Creek is likely unoccupied by steelhead because of an impassable barrier on Pismo Creek downstream of West Corral de Piedra Creek (and the Righetti Dam), and, therefore, should not be designated as critical habitat. The commenter also criticized the economic analysis for not addressing impacts on irrigation and instream flow resulting from critical habitat designation. Lastly, the commenter argued that habitat area above the Righetti Dam should not be designated.

Response:

The potential barrier in question is an existing fish ladder on Pismo Creek downstream of West Corral de Piedra Creek. The extent to which the ladder precludes adult steelhead is unclear, but we do not think it is a complete barrier. There is existing information indicating the presence of juvenile steelhead in West Corral de Piedra Creek downstream of Righetti Dam and above the Pismo Creek ladder which suggests steelhead can pass the existing fish ladder. In addition, direct observations of the fish ladder suggest it is capable of passing adult steelhead even though the design is not ideal and ladder operation may become impaired by inorganic and organic debris. Based on the available information, therefore, the CHART considered West Corral de Piedra to be occupied habitat for steelhead up to, but not above, the Rhigetti Dam. Accordingly, this reach of West Corral de Piedra is included in the final critical habitat designation for this ESU. We acknowledge that the economic analysis prepared for the proposed critical habitat designation did not adequately address economic impacts related to changes in instream flow or agricultural flows. The final economic analysis made additional efforts to address this issue, though potential flow changes at the Righetti Dam was not a part of that analysis. As noted in the previous response, the habitat area above the Righetti Dam is not considered occupied by steelhead though habitat conditions are considered favorable for steelhead spawning. For this reason, the habitat area above Righetti Dam is not included in the final designation of this ESU.

Comment 63:

One commenter argued that Arroyo Grande Creek should not be included in the designation because it is not essential for conservation, numerous dams on the creek have altered habitat conditions for steelhead, existing protections are in place and thus there is no need for special management considerations, and previous determinations by Federal and State agencies have concluded that activities at Oceano SVRA do not adversely impact steelhead or their habitat. The commenter cited the final draft HCP for Arroyo Grande Creek as an existing mechanism for managing the creek, and suggested designation of critical habitat was unnecessary because it would cause confusion among stakeholders and agencies regarding the management of the area for steelhead. Another commenter argued that designation of the mouth of Arroyo Grande Creek may impact recreational uses in that area, and thereby result in significant economic impacts to local governments and businesses.

Response:

The CHART determined that Arroyo Grande Creek met the definition of critical habitat, and was therefore eligible for designation, based on an extensive review of information, including observations and information obtained from site visits and field studies. This information allowed the CHART to identify the geographic areas occupied by steelhead and confirm that the creek contains physical and biological features essential to conservation. A draft HCP prepared by the San Luis Obispo County Flood Control and Water Conservation District Zone 3 (District) provides information regarding the quality and quantity of habitats in Arroyo Grande Creek for steelhead and discusses the abundance of steelhead. Although this ESU has a broad geographic distribution, there are relatively few representative streams in the southern portion of the ESU where steelhead actively spawn and rear. Arroyo Grande Creek is one of the few streams at the southern portion of the subject ESU where age-0 and older juvenile steelhead occur during summer and fall, and sexually ripe adults occur in winter and early spring. There are numerous streams in San Luis Obispo County, but a disproportionate number in the southern portion of the subject ESU currently do not appear suitable for steelhead owing in part to improper land-use activities. Arroyo Grande Creek is one of the notable exceptions. On the basis of this information, the CHART determined that the HSA watershed containing Arroyo Grande Creek had medium conservation value and that it was essential for the conservation of the ESU.

Based on information available to us, the only dam which is a full barrier to steelhead in Arroyo Grande Creek is Lopez Dam. Its presence and operation have certainly contributed to declines in the quality and quantity of habitat for

steelhead, but evidence indicates that steelhead still use Arroyo Grande Creek for spawning and rearing. More importantly, the effects of Lopez Dam on steelhead and its habitat in Arroyo Grande Creek underscore the need for special management considerations or protections in this watershed.

The purpose of the HCP in question is essentially to address the “take” of steelhead and other federally listed species associated with operation of Lopez Dam, not to manage the Arroyo Grande Creek as a whole. More importantly, the current draft HCP does not ensure that essential habitat functions necessary for long-term species survival would be attained through the proposed conservation program. For instance, the flow regime proposed in the draft HCP is conditioned upon reservoir-operation constraints, and, therefore, is not ecologically meaningful. The HCP requires considerable revision before being suitable for adoption in the application phase, and years may pass before it is ultimately approved and an incidental take permit issued.

The commenter is correct that we have determined through informal ESA section 7 consultations with the U.S. Army Corps of Engineers (COE) that off-road vehicle crossings of the creek at the mouth (a sandy tidally influenced area) are not likely to adversely affect steelhead. However, the decision to include Arroyo Grande Creek in the designation was not predicated on whether previous activities, such as off-road vehicle use, did or did not adversely affect the species. Rather, NMFS performed an extensive review and analysis to identify those habitats that are essential for conservation of the species and determined that Arroyo Grande Creek (including the creek mouth) is one such habitat area for this ESU. Inclusion of the creek mouth in the critical habitat designation is necessary because the mouth is an essential migratory habitat linking upstream spawning and rearing areas with the ocean.

Based on our past consultation experience in this area, we do not think that designation of the Arroyo Grande Creek, including the creek mouth, is likely to result in restricted recreational crossings of the creek mouth or cause significant economic impacts to local governments and businesses. Although not definitive on the outcome of future consultations, previous consultations involving such crossings have determined that steelhead were not likely to be adversely affected and that the value of the creek mouth as a migration corridor for steelhead was not likely to be diminished.

Comment 64:

One commenter (CDFG) recommended that the conservation value of the HSA watersheds containing Arroyo de la Cruz (HSA 331012) and San Carpoforo (HSA 331011) creeks should be high because of the quality and quantity of steelhead habitat and the potential risks to these resources in the future.

Response:

We agree with CDFG that the quality of steelhead habitat is high for both of these streams. However, the CHART considered a range of factors in assessing the conservation value of the HSA watersheds containing these streams, and on the basis of that analysis, concluded that a medium conservation value was appropriate for both watersheds. Based on the available information, we continue to believe that these two HSA watersheds have a medium conservation value to this ESU relative to other HSA occupied watersheds in the range of the ESU. Both HSA watersheds had a relatively low economic benefit of exclusion, and therefore, all occupied habitat in both watersheds, including the two streams in question, are included in the final critical habitat designation for this ESU.

ESU Specific Comments—Southern California Steelhead

Comment 65:

Several commenters raised questions about whether or not the Sisquoc River and some of its tributaries are occupied by steelhead, and whether there are PCEs to support steelhead in this watershed. At least one commenter argued that any

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in this watershed were hatchery plants. One commenter criticized the economic analysis for the HSA containing the Sisquoc River watershed, and another was concerned that recreational fishing in one tributary would be adversely affected by a critical habitat designation.

Response:

The CHART reconsidered whether the Sisquoc River and its tributaries should be considered occupied based on the issues raised by these commenters. Based on a reassessment of the available information (primarily the Stoecker and Stoecker 2003 barrier assessment for the Sisquoc River), the CHART concluded that the Sisquoc River and its tributaries (HSA 331220) should be considered occupied, and that this watershed contains PCEs supporting migration, spawning and rearing habitat. We recognize that flows in the Santa Maria River watershed are constrained by the operation of Twitchell Dam and that migration opportunities into the Sisquoc River are limited. For this reason, steelhead access to this watershed is not available in all years, and occupancy of the watershed will be on a more infrequent, rather than annual, basis. Nevertheless, migration opportunities do occur in wet years when high flows breach the sand bar at the mouth of the Santa Maria River, and steelhead can and do migrate into the middle and upper reaches of the Sisquoc River watershed where over-summering/rearing habitat and spawning habitat occurs. Although rainbow trout may well have been planted in some areas historically, we are not aware of any current planting of fish except in Manzana Creek. Accordingly, we do not believe the vast majority of steelhead in the watershed are of hatchery origin. A revised economic impact analysis was prepared for the final critical habitat designation. Although it may not address all site specific potential economic impacts within each HSA watershed, we believe this analysis does consider the vast majority of projected activities which are subject to ESA section 7 consultation in each watershed and that it provides a reasonable basis for conducting an ESA section 4(b)(2) analysis. More detailed responses to comments on the economic analysis were presented earlier in this final rule. Lastly, the designation of critical habitat for this ESU is not expected to affect recreational fishing activities in this watershed because such activities are not subject to section 7 of the ESA and are unlikely to affect critical habitat. Nevertheless, such activities do need to ensure that they do not result in the “take” of listed steelhead.

Comment 66:

One commenter questioned whether specific streams (Santa Agueda and Alamo Pintado, both tributaries to the lower Santa Ynez River in HSA 331440, and Santa Monica Creek in HSA 331534) should be designated as critical habitat.

Response:

We have re-examined the available information supporting the inclusion of these tributaries in the proposed designation and concluded that although these streams may occasionally support steelhead, there is not sufficient information to consider them occupied for the purposes of this designation process. Accordingly, these tributaries were not considered occupied in the final critical habitat designation and a determination that they were essential to the conservation of the ESU was not made, so they have been removed from the final critical habitat designation and associated maps.

Comment 67:

Many commenters responded to our request for comments regarding the designation of unoccupied

habitat above Bradbury, Matilija, Casitas, Santa Felicia and Rindge Dams. Several commenters recommended that these areas be designated because they are essential for the conservation of this ESU, while several other commenters were opposed to designating these unoccupied habitats. Some commenters were confused or misunderstood that we were only requesting information and thought we had proposed to designate these areas as critical habitat.

Response:

As part of the proposed rule development process, the CHART was asked to identify unoccupied areas above dams within the range of this ESU that “may” be essential for its conservation. Based on its assessment, the CHART identified the unoccupied habitat found above the five dams listed above. The proposed rule did not include these unoccupied areas in the proposed designation for this ESU, but rather solicited public comment on our determination that these unoccupied areas “may” be essential for conservation of this ESU. As stated elsewhere in this rule, we believe that it is premature to designate such areas at this time, and that any designation of unoccupied areas above dams or in other areas must await the completion of technical recovery planning efforts that are currently underway. Our expectation is that the technical recovery planning process will provide the scientific foundation to support the inclusion of unoccupied habitat areas in any critical habitat designation. Once the technical recovery planning is completed, we intend to revisit the designation of unoccupied habitat and will use information provided by commenters to inform any subsequent proposal.

Comment 68:

A large number of commenters were opposed to the inclusion of any portion o

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