# Endangered and Threatened Species; Designation of Critical Habitat for 12 Evolutionarily Significant Units of West Coast Salmon and Steelhead in Washington, Oregon, and Idaho

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A05-16391

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** September 2, 2005
- **Citation:** 70 FR 52630

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 030716175-5203-04; I.D. No. 070303A]
RIN 0648-AQ77
Endangered and Threatened Species; Designation of Critical Habitat for 12 Evolutionarily Significant Units of West Coast Salmon and Steelhead in Washington, Oregon, and Idaho

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 12 Evolutionarily Significant Units (ESUs) of West Coast salmon (chum,
Oncorhynchus keta;
sockeye,
O. nerka;
chinook, O.
tshawytscha
) and 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 20,630 mi (33,201 km) of lake, riverine, and estuarine habitat in Washington, Oregon, and Idaho, as well as approximately 2,312 mi (3,721 km) of marine nearshore habitat in Puget Sound, Washington. 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 critical habitat designation (regardless of whether those activities would also change as a result of the ESA's jeopardy requirement) are estimated to be approximately $201.2 million. Fish and wildlife conservation actions for the Federal Columbia River Power System and other major hydropower projects in the Pacific Northwest are expected to generate another $500-700 million in annual costs, including forgone power revenues. While these hydropower projects are covered by ESA section 7, the conservation actions that generate these costs are imposed by a wide variety of laws. We solicited information and comments from the public in an Advance Notice of Proposed Rulemaking (ANPR) 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, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232-1274. The final rule, maps, and other materials relating to these designations can be found on our website at
http://www.nwr.noaa.gov/1salmon/salmesa/crithab/CHsite.htm.

FOR FURTHER INFORMATION CONTACT:

Steve Stone at the above address, at (503) 231-2317, 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 12 ESUs of West Coast salmon and steelhead under the ESA. The pages that follow summarize the comments and information received in response to proposed designations published on December 14, 2004 (69 FR 74572), describe any changes from the proposed designations, and detail the final designations for 12 ESUs. To assist the reader, the content of this document 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 (PCEs)

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 West Coast 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 West Coast 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
document 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 74578; December 14, 2004).

In keeping with the Consent Decree, on December 14, 2004 (69 FR 74572), we published proposed critical habitat designations for eight ESUs of 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 13 ESUs addressed in the proposed rule were: (1) Puget Sound Chinook salmon; (2) Lower Columbia River Chinook salmon; (3) Upper Willamette River Chinook salmon; (4) Upper Columbia River spring-run Chinook salmon; (5) Hood Canal summer-run chum salmon; (6) Columbia River chum salmon; (7) Ozette Lake sockeye salmon; (8) Oregon Coast coho salmon; (9) Upper Columbia River
O. mykiss
; (10) Snake River Basin
O. mykiss
; (11) Middle Columbia River
O. mykiss
; (12) Lower Columbia River
O. mykiss
; and (13) Upper Willamette River
O. mykiss
. The comment period for the proposed critical habitat designations was originally open until February 14, 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 13 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 1997-1999, 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 seven of the 13 ESUs and extended the deadline for the Oregon Coast coho salmon ESU and the five ESUs of
O. mykiss
(70 FR 37160; June 28, 2005). Final listing determinations for these six ESUs are expected by December 2005 (70 FR 37217 and 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 13 ESUs identified above that are listed as of August 15, 2005. We are not issuing a final critical habitat designation for the Oregon Coast coho salmon ESU because it is only proposed for listing at this time (70 FR 37217; June 28, 2005). In contrast, because anadromous forms (
i.e.
, “steelhead”) of the five
O. mykiss
ESUs have been listed since 1997-1999 (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 anadromous and resident forms. Therefore, both the proposed and final designations were restricted to the species' anadromous range, although we did consider (but did not propose to designate) some areas occupied solely by resident fish (for example, areas above Dworshak Dam in Idaho). 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 those five
O. mykiss
ESUs. Moreover, we intend to actively review critical habitat and make revisions as needed for all 12 ESUs to keep them as up-to-date as possible. Parties are encouraged to contact NMFS if they have questions or need additional information regarding these designations (see
ADDRESSES
).

In an 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 five 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 11, 2005, and January 25, 2005, in the following locations: Kennewick and Seattle, WA; Boise, ID; and Portland, OR. We received a total of 5,230 written comments (5,111 of these in the form of e-mail with nearly identical verbiage) during the comment period on the proposed rule. Three comments dealt solely with Oregon Coast coho salmon and are not addressed in this 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 (CHARTs) to state and tribal comanagers and asked them to review those findings. These co-manager reviews resulted in several changes to the CHARTs' preliminary assessments (for example, revised fish distribution as well as conservation value ratings) and helped to ensure that the CHARTs' revised findings (NMFS, 2005a) incorporated the best available scientific data. We later solicited technical review of the entire critical habitat proposal (biological, economic, and policy bases) from 45 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 three 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 their comments 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:
Several commenters raised concerns/complaints regarding 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. As required by the ESA, we also provided notice of these proposals to affected Federal agencies, states, counties, and tribal governments. Further, we provided notice of these proposals to professional scientific organizations and media sources in Washington, Oregon, and Idaho.

Additionally, we realize that the statutory scheme 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 provides 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:
One commenter disapproved of our decision to vacate the February 2000 critical habitat designations for these ESUs. Another expressed the view that we should have focused only on completing an economic analysis (which was lacking in the 2000 designations) rather than revising the entire approach to designation.

Response:
We believe that the issues identified in a legal challenge to our February 2000 designations warranted withdrawing that rule. Moreover, we believe a new approach was needed, unless we were to simply disregard the economic analysis once it was

completed. 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 state fish and wildlife agency data on fish distribution. The ESA requires that we use the best available information, and the distribution data are 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. This issue is discussed in greater detail in a later response.

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

Comment 4:
One peer reviewer disagreed with the agency's approach to identifying ESUs and, consequently, found it very difficult to comment objectively on the substance of the critical habitat designations because how NMFS identifies ESUs affects the criteria one would develop to address critical habitat. Another commenter requested clarification regarding whether listed hatchery fish will be considered genetically the same as wild fish and suggested a change in the ESU boundary between Lower Columbia and Middle Columbia River
O. mykiss
ESUs. One commenter disagreed with our inclusion of hatchery fish in an ESU and argued that Congress had no intention of using critical habitat to afford protection to artificial breeding facilities such as hatchery raceways. One commenter did not support the inclusion of resident and anadromous
O. mykiss
in the same ESU.

Response:
For reasons described above, we are subject to a Consent Decree to issue these final critical habitat designations. Comments regarding whether hatchery fish should be considered as part of an ESU are not addressed in this document but are related to issues discussed in our hatchery listing policy published on June 28, 2005 (70 FR 37204), as well as a concurrent listing determination notice (70 FR 37160, June 28, 2005). With respect to concerns about the possible designation of hatchery raceways as critical habitat, we do not believe that these and other manmade structures associated with the hatchery environment (such as rearing ponds, egg incubation trays, etc.) contain the requisite PCEs.

Comments regarding inclusion of resident trout in
O. mykiss
ESUs are not addressed in this document but are related to issues discussed in our hatchery listing policy published on June 28, 2005 (70 FR 37160). However, for reasons described earlier in this document, we are making final critical habitat designations for the anadromous form of
O. mykiss
in five steelhead ESUs because this life history form has been listed since as early as 1997 (depending on the ESU). This action is in keeping with the Consent Decree which requires us to designate critical habitat for all ESUs listed as threatened or endangered as of August 15, 2005. We will revise the designations if appropriate following the final listing determinations for these five ESUs.

Identification of Critical Habitat Areas

Comment 5:
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 the proposed 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 6:
In the proposed rule we considered occupied streams within a fifth field watershed (as delineated by the U.S. Geological Survey) 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. Two commenters believed that the watershed scale was too broad for making critical habitat designations and suggested that a sixth field watershed or a stream-by-stream approach was more appropriate. One commenter believed that we should conduct a reach-by-reach assessment in their particular watershed.

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 the fifth field watershed 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 a fifth field 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 (approximately 29,000 stream miles), the fifth field

watershed was the smallest practicable area we were able to analyze.

Comment 7:
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. The argument raised in support of the first assertion is 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 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).”

The argument raised in support of the second assertion is 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. 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. Two commenters suggested that we use a fixed distance (e.g., 300 ft (91.4m)) 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. The U.S. Forest Service (USFS) commented that regardless of the lateral extent designated, they would continue to protect and restore riparian and upslope areas in occupied and unoccupied watersheds. 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 state fish and wildlife 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 (NMFS, 2005a). Nevertheless, we believe the extensive data compiled by the state fish and wildlife agencies, which was not available when we completed the 2000 designations, represents the best scientific data that is currently available regarding the geographical area occupied by the species. Moreover, the CHARTs reviewed the data and had an opportunity to interact with the state fish and wildlife biologists 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. Section (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 (nearly 30,000 stream miles) 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. Thus, although this designation is restricted to the stream itself, we will continue to be concerned about the same activities we have emphasized in the past decade of consultations.

Comment 8:
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, without identifying the analytical flaw, 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, aside from the three areas designated for Hood Canal summer-run chum. In this case, we were able to determine that these specific areas are essential for conservation because summer-run chum have such a restricted geographic area, there is a local recovery plan that has been in place for several years, and conservation hatchery fish are currently being released in these areas in an effort the recovery plan finds is essential for conservation of this ESU. We received no comments specifically questioning our findings that these unoccupied areas proposed for designation are essential for conservation. We anticipate revising our critical habitat designations in the future as additional information becomes available through recovery planning processes (see Comment 12).

Regarding the concern about changing the designation from “all areas accessible” to the delineation of stream reaches actually occupied, when we announced the proposal we stated that it represented a 90 percent reduction in stream miles designated. The facts are more complicated. In those subbasins where we designated all areas accessible below dams and long-standing natural barriers, there are approximately 127,000 miles (204,400 km) of streams. A large proportion of these stream miles are not and have never been “accessible” to salmon and steelhead. In 2000, when we designated all areas accessible, however, we created an impression that every mile of stream in these subbasins was designated. We did not have information at that time, nor do we presently have information, that allows us to quantify exactly how many stream miles may be “accessible” and therefore how much of a reduction this rule represents over what may have been designated in the 2000 rule. Although we acknowledge it is a reduction, it is far less than a 90-percent reduction and we regret any confusion our statements may have created.

Comment 9:
Some commenters (including one peer reviewer) questioned the adequacy of our identification of PCEs, in particular the lack of specificity. The peer reviewer agreed that spawning areas were essential habitat features but did not believe that the others were because they are large and spread out or it is unclear what additional protections are needed. One commenter noted that it is difficult using the state fish and wildlife agency data to pinpoint PCEs with accuracy and that “[s]ome of this information may require additional review, field verification, or confirmation by local sources such as Oregon Department of Fish and Wildlife biologists.” With respect to one particular PCE, this commenter pointed out: “For example, PCE 5 (nearshore marine areas free of obstruction) includes an element of “natural cover such as submerged and overhanging large wood, aquatic vegetation, large rocks and boulders and side channels. It is not clear how nearshore marine areas free of obstruction would possess these features.”

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. We disagree with the peer reviewer that rearing and migration habitat is not “essential to the conservation of the species” or that it is not possible to determine where those areas are. The peer reviewer's contention that rearing and migration sites do not require “additional protections” is discussed in a separate comment and response.

Regarding one commenter's point, we have sought to verify the presence of fish and of PCEs with the relevant state, tribal, or Federal biologists for each specific area. Before publishing the proposed rule we provided the CHART reports to the state fish and wildlife agencies for review, and again during the comment period. We held further discussions with them where questions were raised. Also to clarify the point raised by this commenter regarding our description of the nearshore PCE, by free of obstruction we were referring to various manmade in-water structures placed in nearshore areas (such as seawalls, jetties, tide gates) that modify or simplify the habitat and restrict or impede the nearshore movements of salmon. In contrast, natural features identified with this PCE, such as aquatic vegetation, large wood and rocks, provide important cover to salmon and steelhead migrating and foraging in the nearshore area.

Comment 10:
Some commenters believed it was inappropriate to designate critical habitat in irrigation returns, drains, or wasteways because these are not natural waterbodies and were not historically occupied. They argue that critical habitat must be

limited to areas that were historically occupied by the species.

Response:
The ESA defines critical habitat as “(i) the specific areas within the geographical area
occupied by the species, at the time it is listed
* * * on which are found those physical or biological features * * * essential to the conservation of the species” (emphasis added). The statute does not limit designation to areas that were historically occupied. In some cases the historically occupied habitat may be unavailable or too degraded to support the species, in which case newly created habitat may be the most suitable habitat available. Moreover, some of these comments were directed at waterways that were historically occupied, have not been occupied in recent decades because of habitat degradation, but now may be occupied because of habitat restoration or increased water quantity. In light of comments received on specific waterways, we asked the CHARTs to review them and confirm their determination that the areas were occupied and contained the PCEs, and that the PCEs may require special management considerations or protection. During our final review of occupied stream reaches we found areas in four watersheds where the PCEs were either entirely lacking or were so degraded as to be functionally nonexistent, and so removed them from consideration as critical habitat.

Comment 11:
One peer reviewer noted that introduced predatory fishes should be identified as having a significant impact on critical habitat. Another wondered how we were dealing with listed bull trout eating listed steelhead.

Response:
We agree that predators, both exotic and native, can have an impact on listed salmon and steelhead and initially considered the absence of predators as a potential PCE. However, after reviewing our regulations at 50 CFR 424.12 we concluded that they are not one of the “principal biological or physical constituent elements within the defined area that are essential to the conservation of the species.” We recognize that these predators can have negative impacts on native fishes and in 1998 co-chaired a workshop to assess these impacts (NMFS and Oregon Department of Fish and Wildlife (ODFW), 1998). As a result, we have been working with state and Federal co-managers to address this issue, in particular via harvest regulations for introduced fishes. Regarding predation by bull trout (a native species), we concur with conclusions made by the U.S. Fish and Wildlife Service (USFWS) in a recent final rule: “[W]e are not aware of any published scientific studies or other convincing evidence indicating bull trout predation is the leading cause in the decline of other native or introduced species.” If evidence to the contrary becomes available then we will work with the USFWS to assess and address the conservation risks.

Comment 12:
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; 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 fifth field 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 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 13:
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. The commenter also asserted that reducing harvest of listed species would allow more habitat to be fully seeded and thereby also reduce the amount of habitat needed for designation as critical habitat.

Response:
The first 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. The second comment reflects the view that if mortality of listed fish can be reduced in some life stage outside the spawning grounds, then less spawning habitat will be needed to support recovery. This comment could apply equally to any activity that affects fish survival, not just harvest in fisheries (for example, mortality of fish passing through dams). An increased number of returning adults would not necessarily result in a decreased need for critical habitat. Healthy salmon ESUs rely for their long-term survival on the abundance, productivity, spatial distribution and diversity of their constituent populations. Well-distributed habitat of high enough quality to ensure productivity across cycles of varying ocean survival will remain important to salmon conservation, regardless of whether fewer salmon are harvested or suffer from other forms of human-induced mortality (McElhany
et al.
, 2003).

Comment 14:
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, such that we can make a determination that currently unoccupied areas above dams are essential for conservation. With respect to the particular dams identified by the commenters, the Northwest region is actively involved in a multi-year, large-scale recovery planning effort that involves scientific teams (called technical recovery teams or TRTs), which identify biological recovery goals, and policy teams, who actively work with local planning groups to identify actions to achieve those goals. These local recovery efforts are developing information which will be important to inform decisions about whether unoccupied habitat will be needed to facilitate conservation beyond what is currently occupied, and this work is part of our ongoing effort to work with and seek input from those stakeholders directly affected by the salmon listings. We accepted the first partial local recovery plan developed under this effort in March and anticipate receiving several more by the end of the year. Until those processes are more fully developed, we cannot make the specific determinations required under the ESA to designate critical habitat in “unoccupied” areas except for in the few noted instances (see Comment 7). 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 15:
In the proposed rule we requested comments regarding the use of professional judgment as a basis for identifying areas occupied by the species. One commenter 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 data provided by state fish and wildlife agencies as well as the USFS and Bureau of Land Management to determine which specific stream reaches were occupied by each ESU. The data sets we relied on to define occupancy reported distribution based on two general categories: (1) Field observations based on stream surveys or (2) professional judgment based on the expert opinion of area biologists. We reviewed other classifications used in these data sets, such as “potential,” suitable habitat blocked, disputed, unknown, and historic, but determined that areas classified as such were not suitable for defining occupancy. Depending on the source, each used similar criteria for the judgment that an unobserved area had fish present. For example, in Oregon there are streams considered occupied based on “strong” or “modest” professional opinion, while in Washington similar data are classified as “presumed” (NMFS, 2005a). In all cases the exercise of professional judgment included the consideration of habitat suitability for the particular species. Each agency's data set was compiled using input principally from state, Federal, and tribal biologists. In a few cases the data identify streams where local biologists (
e.g.
, private consultants for a county or watershed group) had survey data or expertise, and the state incorporated the data after its own review. Federal biologists on the CHARTs reviewed these data, relying on their first-hand knowledge and experience with the watersheds as well as a variety of published and unpublished reports (
e.g.
, watershed analyses and recent field survey reports). When questions arose about a particular site, we reconfirmed the data with the state, tribal, or Federal biologist(s) familiar with the area. 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 16:
Several comments addressed the proposed designation of nearshore habitats in Puget Sound, including the lateral extent of these areas. In the proposed rule we described this extent as the area inundated by extreme high tide but requested comments on whether ordinary high water line may be more appropriate to use in estuarine and nearshore marine areas. We also noted that these zones may be excluded from critical habitat if the benefits of exclusion outweigh the benefits of designation. Most commenters on this issue supported the designation of nearshore areas (in particular the shoreline of Vashon and Maury islands) and using the line of extreme high water as the lateral extent, although one commenter requested that we extend the lateral extent landward to include riparian and other areas, such as backshores and bluffs, affecting the nearshore zone. One commenter noted that flooding events cause vegetation changes and debris movement important to salmon, and some commented that development in this zone (bulkheads, seawalls, levees, etc.) needs to be addressed. Others noted that this zone is also important spawning habitat for forage fishes and provides both aquatic and terrestrial invertebrate prey. One commenter requested that we extend the designated nearshore zone westward to include all shallow waters in the Strait of Juan de Fuca while another requested that we continue to research whether other marine areas warrant designation. One commenter noted that excluding these nearshore zones would contradict the CHART findings which identified them as high conservation value rearing and migration areas. In contrast, one commenter asserted that there is a lack of science to support designating nearshore zones as critical habitat.

Response:
We believe that the best available scientific data support a designation of nearshore zones in Puget Sound. This unique, fjord-like ecosystem contains a variety of habitats with physical or biological features essential to Chinook and chum salmon conservation, ranging from deep water habitats used by subadult and adults for migration and foraging to shallow nearshore areas important for juvenile rearing and for migration. In the 2000 critical habitat designations we

designated all marine areas of Puget Sound (as well as a lateral extent defined by riparian function) adopting an approach that mirrored our designation of all areas accessible in fresh water. However, since then we have revised our approach to be more definite about which specific areas contain physical or biological features essential to conservation, and that may require special management considerations or protection and thus warrant designation as critical habitat.

While all waters of Puget Sound can be occupied by salmon, we have far greater certainty that the nearshore areas associated with the photic zone are both occupied and contain essential features that may require special management considerations or protection. In terms of occupation, it is well documented that juvenile salmon leaving their natal streams typically stay in nearshore areas where they depend on a photic-based food web of plankton and other invertebrates (Pacific Fishery Management Council, 1999). While the photic zone layer is present throughout Puget Sound, it only penetrates to the bottom in nearshore areas to a depth of approximately 30 meters (Williams
et al.
, 2001). We have defined the PCEs for nearshore marine areas as being free of obstruction with water quality and quantity conditions and forage, including aquatic invertebrates and fishes, supporting growth and maturation; and natural cover such as submerged and overhanging large wood, aquatic vegetation, large rocks and boulders, and side channels. This area is also the zone containing important marine vegetation and cover (
e.g.
, eelgrass meadows and kelp forests) and in which salmon forage species reside (
e.g.
, surf smelt and sand lance) (Puget Sound Water Quality Action Team, 2000 and 2002). Activities potentially affecting PCEs in this zone include the construction of overwater structures (
e.g.
, docks and piers), dredging and bank armoring (Puget Sound Water Quality Action Team, 2002).

Similarly, we believe that the lateral extent of critical habitat in nearshore marine areas is best described in terms of tidal fluctuations that govern the areas occupied by salmon. We believe that the area inundated by extreme high tide is an appropriate delineation for the landward extent of critical habitat because it represents a regularly-occurring intertidal fringe that is recognizable (
e.g.
, vegetation and landform changes), and contains and influences PCE elements such as large wood, rocks and boulders, and aquatic vegetation. We recognize that other areas landward of the line of extreme high tide (
e.g.
, bluffs) have a major influence on the high intertidal zone and that activities in this zone could adversely modify adjacent designated areas. However, for the reasons described in our response to riparian zones we have not designated areas beyond extreme high tide.

Comment 17:
Several comments addressed the CHART process although few recommended changes to the CHARTs' ratings of watershed conservation values. Several commenters 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 peer reviewer agreed with the CHART's recognition of the importance of connectivity when identifying critical habitat, and emphasized that protecting upstream areas accrues benefits to downstream areas. One commenter contended that the CHART assessments were compromised by restricting them to consider only the stream channel rather than upslope areas as well. One commenter and a peer reviewer noted the lack of emphasis on the dynamic, process-based character of salmonid habitat and suggested that we adopt a model of species persistence across the landscape and incorporating metapopulation considerations to identify critical habitat.

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 (NMFS, 2005a), 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. That said, 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 the 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 18:
Two commenters questioned why only Federal biologists served on the CHARTs, one noting that including other non-Federal biologists would have increased the CHARTs' knowledge base. One commenter also suggested improving the CHART process by assembling multiple teams of independent scientists and comparing their results with the existing CHART conclusions.

Response:
The CHARTs consisted of over 65 Federal biologists from NMFS, USFWS, and BLM, and were all well-qualified to conduct critical habitat assessments. Nearly all of the biologists have had first hand experience with ESA, in particular implementation of section 7 in the areas evaluated and have knowledge of the existing management plans and protections. We recognize that numerous other non-Federal biologists have great experience; however, including them would have potentially triggered the requirements of the Federal Advisory Committee Act (FACA), which include chartering a committee. We were concerned that the FACA's procedural requirements would have prevented our timely compliance with the existing Consent Decree. As noted in the proposed rule, we sought state and tribal co-manager review of the initial CHART findings and believe that opportunity for notice and comment on our proposed rule has provided the opportunity for all biologists interested in these designations to provide their expertise.

Comment 19:
Some commenters wondered whether the CHARTs considered the work of the various Technical Recovery Teams (TRTs), and one commenter contended that the CHART assessments should be reviewed by the TRTs. One commenter asked how conservation genetic concepts were incorporated into the designations.

Response:
We solicited participation and input from the various TRTs and salmon recovery coordinators. 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, not all of the TRT members were able to participate on the CHARTs. However,

each CHART did receive valuable support and input from at least one TRT scientist or recovery coordinator both during the course of CHART deliberations as well as informally on numerous occasions where we needed up-to-date information to support CHART assessments. Therefore we believe that we have been able to integrate much of the TRT findings into our final critical habitat designations. These findings include population identification and viability criteria (McElhany
et al.
, 2000; NMFS, 2001; Interior Columbia Basin Technical Recovery Team, 2003; McElhany
et al.
, 2003; Myers
et al.
, 2003; McClure
et al.
, 2005) which incorporate conservation genetic concepts and in turn aided the CHART's assignment of watershed conservation values. 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 and we can and will make needed adjustments in the future.

Comment 20:
Two commenters requested that we provide maps that show both designated and excluded areas. Another noted that it would be helpful to provide the stream length mileages to describe the areas designated.

Response:
To avoid confusion in this
Federal Register
notice—which is limited to black and white graphics—we have only depicted designated stream reaches in this document. However, we have made color maps depicting designated and excluded reaches available in documents via the internet (see
ADDRESSES
). Also, while we recognize the utility of providing stream mileages, we have instead relied on defining designated stream reaches using endpoints (
i.e.
, latitude and longitude coordinates) because they are not subject to the potentially large errors associated with estimating mileages at varying map scales. However, the CHART report (NMFS, 2005a) does contain larger scale maps that may be easier for estimating stream mileages, and we have also made geographic information systems (GIS) data available via the internet (see
ADDRESSES
) to further facilitate viewing the geographic extent of these designations. Landowners can (and did in the course of evaluating our proposal) use these resources to determine if their land is designated critical habitat or can contact us for assistance (see
FOR FURTHER INFORMATION CONTACT
).

Economics Methodology

Comment 21:
Several commenters stated that the economic analysis overestimates the actual costs of the rule 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 PACFISH, INFISH, 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. This overestimate of costs does not bias our 4(b)(2) balancing 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. We believe it has.

In many cases, the protections afforded by PACFISH, the Northwest Forest Plan and other regulations are intertwined with those of section 7. In cases in which 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, specifically those in the Snake River Basin. 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 22:
One commenter and one peer reviewer noted that the economic analysis assigns costs to all activities within the geographic boundary of the 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 streambanks to affect salmon and steelhead or their habitat, for example, by increasing risk of erosion or

decreased water quality, and may therefore be subject to consultation and modification. Thus, the 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 and the analysis of potential impacts on Federal lands management activities and Federal grazing activities have been refined and are now calculated based on stream mile estimates within a watershed.

Comment 23:
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 that using the mid-range as a representative cost estimate was problematic.

Response:
In determining likely costs associated with modifications to activities to 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 24:
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 comments 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 2005d, 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 25:
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 commenter requested 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. One comment more specifically noted that the economic analysis of impacts on dredging activities did not take into account the potential impact on the barging industry, or how the nation's trade balance would be impacted if farmers lose or have less ability to ship grain and other products on barges.

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 evaluates 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 section 7 or outside of the watersheds subject to the economic analysis. For example, state environmental laws may contain provisions that are triggered if a state-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 26:
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 an ESA section 7 consultation to ensure Federal agency

actions are not likely to destroy or adversely modify critical habitat. We did not have information available 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 commenter provide data that would allow us to make such a determination.

Comment 27:
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 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 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. f

Comment 28:
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 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 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 29:
One commenter and two peer reviewers stated that the economic analysis should include a discussion of flow change impacts to irrigation and other activities. Excluding these costs underestimates total economic impact. A commenter pointed out that low flow years and drought years are not discussed in the economic impacts, and consideration of these events is especially relevant to estimating impacts of instream flow augmentation. Similarly, another commenter stated that the analysis should include an analysis of impacts of increased spill at hydropower dams on the cost of power in the region.

Response:
The amount of water within particular areas that may be diverted from activities such as irrigation, flood control, municipal water supply, and hydropower, for the purposes of salmon and steelhead conservation is uncertain. As a result, a comprehensive prospective analysis of the impacts of potential water diversion from these activities would be highly speculative. In addition, the interrelated nature of dam and diversion projects, and hydrology, across river systems makes it impossible to attribute flow-related impacts from salmon and steelhead conservation to specific watersheds. We acknowledge this limitation of the economic analysis. The revised economic analysis, however, includes an expanded discussion of the potential impacts of changes in flow regimes on hydropower production and prices and water diversions on irrigation based on historical examples. This broader context will assist us in our decision making.

Comment 30:
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 per-watershed 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 the salmon 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 31:
One commenter stated that the analysis makes no attempt to explain or quantify with any level of precision what the additional costs of design and operation modification and mitigation measures required by ESA section 7 consultation are.

Response:
The economic analysis focuses 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 estimates the regulatory burden placed upon these activities as a result of these consultations. The burden estimate is based upon a review of past modifications to those activities undertaken for the benefit of West Coast 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 32:
One commenter stated that the economic analysis assumes that the population growth and economy of the impact areas is stagnant, and asserted that 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. 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 peer reviewer suggested using the consultation record to forecast trends in consultations for particular types of projects.

Response:
The economic analysis does not uniformly assume that all activities and associated consultations

will occur at the same rate in future years as past, but projects the most likely level of future activity using information available at the watershed level. Further, the economic analysis does not quantify retrospective impacts of West Coast salmon and steelhead conservation as the focus of the analysis is the impact associated with the future critical habitat designation. Finally, while the consultation record may reveal some short-term trends for individual or groups of ESUs, it is not adequate to estimate trends for particular types of activities at a watershed level.

Comment 33:
Some commenters stated that the economic analysis uses data that are overly broad or makes assumptions across geographic areas that are too far reaching. For example, one commenter states 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 actually 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 (see, for example, the summary of major assumptions and potential biases of the analysis described in the final economic analysis (NMFS, 2005d)).

Comment 34:
Several commenters and a peer reviewer expressed concern that the economic analysis fails to consider the full range of economic benefits of salmon habitat conservation and therefore provides a distorted picture of the economic consequences of designating versus excluding each of these 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 (NMFS, 2005e) and ESA section 4(b)(2) report (NMFS, 2005b), 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 35:
One commenter asserted that the economic analysis does not consider the importance of agriculture in Washington 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, and also took account of disparate impacts by considering per capita impacts as a basis for exclusion in the ESA section 4(b)(2) balancing. We did not otherwise separately consider economic impacts to various economically or culturally defined communities in the economic analysis or in the section 4(b)(2) balancing. 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 (NMFS, 2005d), 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 36:
A few commenters and peer reviewers stated that impacts associated with changes in the operations of the Federal Columbia River Power System (FCRPS) and other major hydropower dams should be included. One commenter noted that the FCRPS is an important issue as salmon-related conservation at these sites have impacted the price of power. Conversely, another stated that modifications to the FCRPS projects and

operations would result in high costs regardless of the presence of critical habitat for these salmon and steelhead ESUs due to the listing of the species and existing critical habitat for three Snake River ESUs in this region (Snake River spring/summer Chinook, fall Chinook, and sockeye salmon). This commenter therefore concluded that costs of modifications to FCRPS for the three ESUs with existing critical habitat should be part of the baseline.

Response:
The revised economic analysis includes an expanded discussion of the impacts on the FCRPS and other major hydropower projects of section 7 consultations and other conservation measures. We have provided more detailed estimated of these impacts and find them to be in the range of $500-700 million. We do not apportion these costs to a particular watershed, however, because the FCRPS and some other major hydropower projects are operated as integrated systems that span multiple watersheds. As a result, the impacts of section 7 consultations on these systems are best considered at a spatial scale considerably greater than an individual watershed. We agree that the impacts specifically attributable to the listing of the three Snake River ESUs are an appropriate part of the baseline, but available information did not allow us to distinguish these impacts from impacts specifically attributable to the salmon and steelhead ESUs addressed in this rule.

Comment 37:
One comment letter contended that the Initial Regulatory Flexibility Analysis (IRFA) mischaracterizes the number of potential farms that would be affected by critical habitat designation. The analysis states that only three farms in Adams County, Washington, may be affected by critical habitat designation, while U.S. Department of Agriculture reports that there are 717 farms in the county.

Response:
The IRFA analysis identified potential impacts to small entities using data from Dun and Bradstreet's “Market Identifiers” on the ratio of small businesses to total businesses in potentially affected industries within counties containing proposed critical habitat. The IRFA listed a single type of agricultural operation: Beef Cattle Ranching & Farming. The estimated number of these operations in a county was weighted by the proportion of that county covered by the critical habitat designation. The Final Regulatory Flexibility Act analysis includes three additional types of agricultural operations.

Comment 38:
Another commenter stated that the IRFA needs more citations regarding the applied sources of information.

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

Comment 39:
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 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 vs.
Exclusion

Comment 40:
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 41:
In the proposed rule we identified a number of potential exclusions that we were considering but were not at that time proposing. These potential exclusions included: Federal lands subject to Northwest Forest Plan, PACFISH and INFISH (including watersheds where 45 percent or more of the land was covered by one of these plans); all critical habitat for four ESUs (Snake River
O. mykiss
, Middle Columbia River
O. mykiss
, Upper Columbia River spring-run Chinook salmon, and Oregon Coast coho salmon); areas in the mainstem Columbia River that contain or are directly affected by the operation of the Federal dams on the river, including reservoir pools above dams, tail race areas below dams, and the navigation locks.

Several commenters opposed these potential exclusions. Some disagreed that designation of critical habitat is unnecessary or diminished 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 noted that because these species are still listed, existing regulatory and voluntary mechanisms are inadequate and 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 INFISH was incorrectly identified in this list since that strategy applies only to non-anadromous watersheds. Several commenters believed that we failed to adequately describe the benefits of designation as they pertain to these potential exclusions. One commenter 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. This commenter cited agency

regulations at 50 CFR 424.16(b) and believed that this and other potential exclusions did not contain an adequate “summary of the data on which the proposal is based (including, as appropriate, citation of pertinent information sources), and shall show the relationship of such data to the rule proposed.”

In contrast, several commenters supported the potential exclusions mentioned in the proposed rule. One peer reviewer supported the exclusion of Federal lands covered by PACFISH and the Northwest Forest Plan and believed that critical habitat designation would have negligible benefit in these areas. 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 species. One commenter believed that excluding Federal lands would be consistent with our exclusion of lands subject to Integrated Natural Resource Management Plans 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 their belief that we should make the same determination for salmon and steelhead ESUs. Several commenters and one peer reviewer contended that we are obligated to fully examine the web of private, local, state, regional, and Federal protections already in place and only designate as critical habitat those areas that are affirmatively in need of additional management considerations.

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 three 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 42:
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 and cooperative agreements approved by NMFS, specifically: (1) Land subject to Washington state forest practice rules referred to as the Forests and Fish Agreement; (2) lands covered by a Habitat Conservation Plan (HCP) approved under section 10 of the ESA (NMFS, 2004f); and (3) non-Federal timber lands covered by the Term Sheet in the Snake River Basin Adjudication. Several commenters (including three 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. These and other commenters acknowledged the

potential education benefits of designation but asserted that designating HCP lands could have an unintended consequence of damaging existing and future cooperative relationships. Some commenters noted that the USFWS had excluded lands addressed in the Washington Department of Natural Resources' (WDNR) HCP and the Forest and Fish Agreement in their recent bull trout critical habitat designation (69 FR 59996; October 6, 2004) and requested that we do the same. 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. With respect to the potential exclusion of lands subject to the Forest and Fish Agreement, several commenters asserted that Washington Forest Practice regulations already provide adequate protections and that excluding these areas would promote keeping them in a forested landscape rather than converting them to other land uses and smaller parcels that are not as good for fish. Several commenters expressed support for the Oregon Plan for Salmon and Watersheds. One commenter believed that we should consider excluding all basins with water rights adjudications. Some commenters believe that such exclusions should be based on the actual effectiveness of the habitat conservation strategies and plans, including whether they are being fully funded and implemented.

Several commenters (including one with a NMFS-approved HCP) 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 they contended there are no guarantees the plans will remain in place, when for example, ownership changes or landowners change their minds. Another commenter who presently has a NMFS-approved HCP welcomed the critical habitat designation and noted that doing so would help ensure that actions by other landowners within and adjacent to its HCP lands will help ensure conservation of an area that provides fish habitat and valuable drinking water. One commenter believed that we should not exclude areas subject to licenses issued by the Federal Energy Regulatory Commission (FERC), noting in particular the Mid-Columbia HCP and uncertainties associated with downstream FERC projects at Priest Rapids and Wanapum Dams. Another commenter cited agency regulations at 50 CFR 424.16(b) and believed that this and other potential exclusions did not contain an adequate “summary of the data on which the proposal is based (including, as appropriate, citation of pertinent information sources),” nor did they “show the relationship of such data to the rule proposed.” Several 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 other 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 armoring, 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 armoring 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 would be obtained 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. Section 7 applies only to Federal agency actions. Its 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 reached by section 7 (in contrast to instream activities, most of which do require a Federal permit). 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 a

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A05-16391. Public record. Not legal advice.