Endangered and Threatened Wildlife and Plants: Final Rulemaking To Designate Critical Habitat for Black Abalone

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 100127045-1313-02]

RIN 0648-AY62

Endangered and Threatened Wildlife and Plants: Final Rulemaking To Designate Critical Habitat for Black Abalone

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We, the National Marine Fisheries Service (NMFS), hereby designate critical habitat for the endangered black abalone under the Endangered Species Act (ESA). This designation includes approximately 360 square kilometers of rocky intertidal and subtidal habitat within five segments of the California coast between the Del Mar Landing Ecological Reserve to the Palos Verdes Peninsula, as well as on the Farallon Islands, Año Nuevo Island, San Miguel Island, Santa Rosa Island, Santa Cruz Island, Anacapa Island, Santa Barbara Island, and Santa Catalina Island. This designation includes rocky intertidal and subtidal habitats from the mean higher high water (MHHW) line to a depth of −6 meters (m) (relative to the mean lower low water (MLLW) line), as well as the coastal marine waters encompassed by these areas. We are not designating the specific area from Corona Del Mar State Beach to Dana Point, California, because we conclude that the economic benefits of exclusion from the critical habitat designation outweigh the benefits of inclusion and that exclusion of this specific area will not result in the extinction of the species. We also conclude that two of the specific areas proposed for designation (San Nicolas Island and San Clemente Island) are no longer eligible for designation, based on determinations that the U.S. Navy's revised integrated natural resource management plans (INRMPs) for these areas provide benefits to black abalone.

DATES:

This rule becomes effective November 28, 2011.

ADDRESSES:

The final rule, maps, and supporting documents used in preparation of this final rule, as well as public comments and information received, can be obtained via the Internet at:

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

the Federal eRulemaking Portal at:

http://www.regulations.gov

(in the box that reads “Enter Keyword or ID,” enter the Docket number for this rule, which is NOAA-NMFS-2010-0191, and then click the Search button), or by submitting a request to the Assistant Regional Administrator, Protected Resources Division, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.

FOR FURTHER INFORMATION CONTACT:

Melissa Neuman, NMFS, Southwest Region (562) 980-4115, or Lisa Manning, NMFS, Office of Protected Resources (301) 427-8466.

SUPPLEMENTARY INFORMATION:

Background

Under the ESA, we are responsible for determining whether certain species are threatened or endangered, and, to the maximum extent prudent and determinable, designating critical habitat for all endangered and threatened species (16 U.S.C. 1533). On January 14, 2009, we determined that the black abalone (

Haliotis cracherodii

) is in danger of extinction throughout all or a significant portion of its range and listed the species as endangered under the ESA (74 FR 1937). We issued a proposed critical habitat designation for the black abalone on September 28, 2010 (75 FR 59900). This rule describes the final critical habitat designation, including a summary of and responses to the public comments received and a description of the methods used to develop the final designation. The total estimated annualized economic impact for this final rule ranged from $158,000 to $3,886,000. This range represents our estimate of the potential economic impacts based on the best available information regarding the Federal activities that may be affected by this critical habitat designation and the potential range of modifications that may be required to protect critical habitat.

Black Abalone Natural History

The black abalone (

Haliotis cracherodii,

Leach, 1814) is a shallow-living marine gastropod with a smooth, circular, and black to slate blue colored univalve shell and a muscular foot that allows the animal to clamp tightly to rocky surfaces without being dislodged by wave action. Black abalone historically occurred from Crescent City, California, USA, to southern Baja California, Mexico (Geiger 2004), but today the species' constricted range occurs from Point Arena, California, USA, to Bahia Tortugas, Mexico, and it is rare north of San Francisco, California, USA (Morris

et al.

1980), and south of Punta Eugenia, Mexico (pers. comm. with Pete Raimondi, University of California Santa Cruz (UCSC), in 2005).

Black abalone generally inhabit coastal and offshore island intertidal habitats on exposed rocky shores where bedrock provides deep, protective crevices for shelter (Leighton 2005). These complex surfaces with cracks and crevices in intertidal habitats appear to be crucial for juvenile recruitment and adult survival (Leighton 1959; Leighton and Boolootian 1963; Douros 1985, 1987; Miller and Lawrenz-Miller 1993; VanBlaricom

et al.

1993; Haaker

et al.

1995). Black abalone range vertically from the high intertidal zone to a depth of −6m (as measured from MLLW) and are typically found in middle intertidal zones. However, variation in wave exposure and where drift kelp (an important food item for black abalone) accumulates may result in animals being distributed primarily in high or low intertidal zones depending on the local conditions at particular locations (see definition of intertidal zones in Ricketts

et al.

1985). Abalone are broadcast spawners, with a short planktonic larval stage (about 3-10 days) before settlement and metamorphosis (

e.g.,

McShane 1992). Larval black abalone are believed to settle on rocky substrate with crustose coralline algae, which serves as a food source for postmetamorphic juvenile black abalone, along with microbial and diatom films (Leighton 1959; Leighton and Boolootian 1963; Bergen 1971). As black abalone grow, they transition to feeding on attached macrophytes and drift algae. The main sources of mortality for black abalone have been historical overfishing and, more recently, mass mortalities caused by the disease known as withering syndrome. As a result of the disease, most black abalone populations in Southern California have declined by 90 to 99 percent since the late 1980s (VanBlaricom

et al.

2009) and have fallen below estimated population densities necessary for recruitment success (Neuman

et al.

2010).

Detailed information on the natural history of black abalone can be found in the final Biological Report (NMFS 2011a) and in the proposed rule to designate critical habitat (75 FR 59900; September 28, 2010). Additional information about the status of black abalone can be found in the 2009 status review report (VanBlaricom

et al.

2009) and in the proposed (73 FR 1986; January 11, 2008) and final (74 FR 1937; January 14, 2009) rules to list black abalone as endangered under the ESA.

Summary of Comments and Responses

We requested public comments on the proposed rule to designate critical habitat for the endangered black abalone and on the supporting documents (

i.e.,

the draft Biological Report, draft Economic Analysis Report, and draft ESA Section 4(b)(2) Report). Public comments were received over a 60-day period ending on November 29, 2010. To facilitate public participation, the proposed rule and supporting documents were made available on our Southwest Region Web site (

http://swr.nmfs.noaa.gov

) and on the Federal eRulemaking Portal Web site (

http://www.regulations.gov

). Public comments were received via standard mail, email, fax, and the Federal eRulemaking Portal. The draft Biological Report and draft Economic Analysis Report were also each reviewed by three peer reviewers. All public comments and peer reviewer comments received have been posted on the Federal eRulemaking Portal (Docket Number: NOAA-NMFS-2010-0191).

We received 4,874 written public comments on the proposed rule and supporting documents, of which 4,843 were form letters submitted by supporters of the Center for Biological Diversity (CBD) and 20 were nearly identical to the form letters but included additional information. Comments were also received from the California Department of Transportation (Caltrans), the CBD and their supporters, the Department of the Navy, the Multi-Agency Rocky Intertidal Network (MARINe), NOAA's National Ocean Service National Marine Sanctuaries Program, the U.S. Army Corps of Engineers Los Angeles District, and five individual members of the public. In addition to the 4,863 identical or nearly identical letters submitted by supporters of the CBD in support of the proposed rule, eight other commenters were supportive of the proposed rule. One commenter was opposed to the proposed rule, and two were neither opposed nor supportive. The commenters and peer reviewers provided additional data to inform the biological and economic analyses, as well as comments regarding the methods used in these analyses. NMFS and the critical habitat review team (CHRT; a team of seven Federal biologists with relevant expertise) considered all of the public and peer reviewer comments in developing the final critical habitat designation. A summary of the public and peer review comments by major issue categories and the responses thereto are presented here. Similar comments were combined where appropriate.

Black Abalone Natural History

Comment 1:

One commenter stated that although the work of Burton 2008 indicated little genetic structure over moderate distances (<100 km), demographically important dispersal for black abalone is believed to be limited based on larval behavior and recruitment dynamics and thus the likelihood of rapid natural recovery of populations lost to disease is very low.

Response:

We agree that recent studies (Hamm and Burton 2000; Chambers

et al.

2006; Gruenthal and Burton 2008) indicate low connectivity among black abalone populations, likely reflecting limited larval dispersal. We note that this information was included in the proposed rule (75 FR 59900; see section titled “Population Structure” on pg. 59901) and was also included in the draft Biological Report (NMFS 2010a).

Comment 2:

One commenter requested that the terms high, mid, and low intertidal zones be defined. The commenter disagreed with the statement that the majority of black abalone are found in the high zone at exposed locations. The commenter stated that on the Channel Islands, black abalone occur in the high zone but are predominately in the mid-zone. The commenter also stated that at mainland sites, black abalone are found in the mid to low zones but not in the high zone.

Response:

We have revised the description of black abalone habitat in this final rule and in the final Biological Report (NMFS 2011a) to recognize that black abalone typically occur in the middle intertidal zones, but that local variation exists depending on the conditions (

e.g.,

the level of exposure and where kelp may be accumulating). We also clarify that the high, middle, and low intertidal zones are defined according to Ricketts

et al.

(1985). On the U.S. West coast, the high intertidal zone is typically the zone above the mussel beds and extends from mean high water to the mean flood of the higher of the two daily lows, slightly below mean sea level. The middle intertidal zone extends from mean higher low water to MLLW, and may be covered and uncovered once or twice each day. The low intertidal zone is normally uncovered by minus tides only, extending from 0 to −0.6m (−1.8 feet) or so at Pacific Grove, and typically exposed for only a few hours each month. The critical habitat designation (extending from the MHHW line to −6m depth relative to the MLLW line) encompasses each of these three zones. We recognize that the definitions of the intertidal zones do not provide precise boundaries, but note that intertidal zones are very dynamic and thus are defined in somewhat general terms based on daily tidal fluctuations and the structure of the benthic community.

Comment 3:

One commenter disagreed with the statement that the primary food species for black abalone in central California habitats is

Nereocystis leutkeana.

The commenter stated that although

Nereocystis

is found at black abalone monitoring sites between Santa Cruz and Point Conception,

Macrocystis

and

Egregia

are more prominent in these central California habitats.

Response:

The CHRT agreed with the information provided by the commenter, which was based on observations by biologists in the Multi-Agency Rocky Intertidal Network (MARINe). We have incorporated this information in this final rule and in the final Biological Report (NMFS 2011a).

Comment 4:

One commenter stated that based on MARINe's black abalone monitoring data, recruitment failure appears to occur when the adult density falls below one abalone per m

2

, whereas the proposed rule states that recruitment failure occurs when adult density declines below 0.34 per m

2

. The commenter requested that the citation for this 0.34 per m

2

value be provided.

Response:

In the proposed rule, we cited a paper that was in press at that time but that has since been published (Neuman

et al.

2010). We revised the final rule and final Biological Report (NMFS 2011a) to update the citation for this paper. To determine the critical density threshold below which black abalone recruitment failure is observed, Neuman

et al.

(2010) reviewed recruitment patterns in three long-term data sets for black abalone in California. Recruitment failure was found to occur when adult black abalone density declined to an estimated 0.25 to 0.46 per m

2

. Thus, the estimated average minimum adult density below which local recruitment failure occurred at the three sites was 0.34 per m

2

. This estimated average minimum adult density threshold is specific to the three sites evaluated and may differ for other locations.

Comment 5:

One commenter stated that the proposed critical habitat designation should not be approved because it will not lead to the recovery of black abalone populations along the California coast. The commenter also recommended revisions to the proposed rule to emphasize that predation by sea otters was a major factor that caused the decline in black abalone populations and that continuing predation by sea otters has prevented recovery of black abalone populations. The commenter

cited a paper by Micheli

et al.

(2008) showing that abalone fishery closures and no-take reserves have been effective for allowing abalone populations to persist but that abalone populations have not recovered to levels comparable to those preceding the collapse of the abalone fisheries despite these protections.

Response:

The comment letter was not clear regarding whether the commenter's objection to the proposed critical habitat designation and statement that the proposed designation will not lead to recovery of black abalone populations was based on: (a) The commenter's assertion that the continued threat of predation by sea otters on black abalone is preventing recovery of black abalone populations; (b) studies showing a lack of recovery of black abalone populations despite continued fishery closure and protection in no-take reserves; or (c) other reasons not stated by the commenter. Therefore, we can only address the commenter's concerns regarding predation by sea otters and the results of the Micheli

et al.

(2008) paper.

The proposed rule listed several factors that contribute to mortality of black abalone, including predation by other species such as sea otters (see “Mortality” section, pg. 59902 in the proposed rule (75 FR 59900, September 28, 2010)). The proposed rule also stated that predicting the relative impacts of each of these factors on long-term viability of black abalone is difficult without further study. The commenter did not provide references to support the statement that sea otter predation was a major factor contributing to black abalone declines and that continued sea otter predation has prevented recovery of populations. However, based on the best available data, the 2009 status review report for black abalone (VanBlaricom

et al.

2009) identified historical overfishing and mass mortalities associated with withering syndrome as the primary factors contributing to the recent declines in black abalone populations. The potential impact of sea otter predation on the recovery of black abalone populations is unknown, but the following observations indicate that sea otter predation was not and is not a major source of mortality for black abalone: (1) Sea otters were absent from southern California during the widespread decline of black abalone in that region; (2) the current last foothold for black abalone (

i.e.,

central and north-central California habitats) directly overlaps with the current range of sea otters; and (3) one of the only places in southern California where black abalone populations have been increasing and where multiple recruitment events have occurred since 2005 (

i.e.,

San Nicolas Island) is also the only place south of Point Conception where a growing population of southern sea otters exists, indicating that black abalone populations can recover and remain stable in the presence of sea otters. Micheli

et al.

(2008) identified high rates of natural mortality as well as potential illegal harvest of abalone as factors that have likely kept abalone populations along the central California coast from recovering to levels comparable to those attained during the 1950s to 1960s, preceding the collapse of the abalone fishery. However, there is recognition that the abalone population levels in the 1950s and 1960s may not represent historical baseline abundances, because they were attained during a period when sea otter populations were extremely depressed. Micheli

et al.

(2008) states that “[t]he current levels of abalone populations in central California may reflect conditions prior to both fishing and the near-elimination of sea otters from this region, characterized by intense otter predation and low but stable densities of abalones.” Thus, the best available data do not support the idea that sea otter predation was a major factor in the decline of black abalone populations or that it will inhibit the recovery of the species. In addition, the purpose of the critical habitat designation is to protect habitats important for black abalone conservation. Although we do not expect the designation to directly address the issue of sea otter predation on black abalone, we do expect this designation to contribute to conservation of black abalone by protecting habitats necessary to support species recovery, despite uncertainties regarding the relative impacts of natural mortality on long-term viability of populations.

Geographical Area Occupied by the Species

Comment 6:

One commenter noted that within the areas proposed for designation, the habitat consists of a mixture of habitat suitable for black abalone (

e.g.,

rocky substrates) and habitat unsuitable for black abalone (

e.g.,

sandy beach). The commenter stated that the proposed critical habitat designation should be redone to only include those areas with habitat suitable for black abalone.

Response:

We agree with the commenter that the areas proposed for designation within the occupied geographic range of black abalone consist of a mixture of rocky habitats that are suitable to support black abalone and expanses of sandy habitat that are not suitable to support black abalone. Thus, the essential features identified for black abalone are unevenly dispersed throughout the specific areas proposed for designation. As stated in the draft Biological Report (NMFS 2010a), data are available to map and identify general areas of rocky habitat within these specific areas. However, as permitted under our regulations (50 CFR 424.12 (d)), we selected to draw a more inclusive area around habitats in close proximity to one another that met the requirements for designation as critical habitat. This allowed for a more manageable evaluation of areas. In addition, due to the risk of illegal harvest, the CHRT did not think it prudent to identify each individual rocky reef as a specific area in order to avoid disclosing the location of survey sites where black abalone populations have been found. Instead, the CHRT delineated ten segments of the California coast and ten offshore islands as specific areas to consider for designation, based on the location of survey sites where black abalone have been observed as well as features of the habitat. The intent of the proposed designation was not to designate all habitat types within the specific areas as critical habitat, but to designate the habitat within the specific areas that contain features essential to the conservation of the species (

e.g.,

rocky habitat). The final rule has been revised to clarify that critical habitat includes only the rocky habitats (and the coastal marine waters above the benthos; see also Response to Comment 5) within the designated specific areas.

Delineation of Specific Areas Considered for Designation

Comment 7:

One commenter stated that the proposed critical habitat designation neglected important habitat for the planktonic larval stages of black abalone because the designation only included rocky intertidal habitat and did not include the marine waters in which larval black abalone occur. The commenter recommended the designation of certain ocean water habitat in order to protect the larval stage of black abalone. The commenter suggested a mechanism for determining whether a particular volume of water is occupied by larval and juvenile black abalone, noting that habitat need not be occupied continuously or at all to be designated as critical habitat. The commenter also recommended consideration of spatially and temporally dynamic designations, such

as an intermittent critical habitat designation (

e.g.,

areas designated as critical habitat seasonally or only during breeding periods) or mobile critical habitat designations (

e.g.,

designating critical habitat that moves along with the species).

Response:

We have revised the final rule to clarify that the designation includes not only coastal rocky habitats (from MHHW shoreward to the −6m depth contour relative to MLLW) within the designated specific areas, but also the marine waters above the rocky benthos within these areas. As indicated by the inclusion of water quality and nearshore circulation patterns on the list of proposed primary constituent elements (PCEs), we did intend for the designation to include not just the benthic substrate in the areas proposed, but also the water above it. Although not much is known about larval distribution, laboratory experiments with related species (Leighton 1972 and 1974) indicate that larvae are distributed throughout the water column down to approximately −6m relative to MLLW, and possibly beyond.

We note that the commenter's recommendation to consider a spatially or temporally dynamic designation would likely reduce the protections afforded to the species by the critical habitat designation. By designating habitat as critical habitat only during specific seasons, or only when the species is present, we would be missing an important aspect of what critical habitat is and the protections it affords a species by protecting its habitat even when the species is not present. This protection is important for maintaining the habitat for those times of the year when the species is using the habitat. This is one of the distinguishing features of a critical habitat designation versus the protections provided to the species under the listing.

Comment 8:

One commenter noted several incorrect citations for data collected at long-term monitoring sites along the California coast. The commenter provided the correct citations and recommended text to explain the history of the long-term monitoring sites and their establishment. The commenter also provided updated information on black abalone monitoring activities and data in 2009 and 2010 for Point Reyes National Seashore, Golden Gate National Recreation Area, and Año Nuevo Island.

Response:

We have revised the final rule and final Biological Report (NMFS 2011a) by: (a) Including a history of the long-term monitoring sites and their establishment; (b) correcting the citations for the long-term monitoring sites; and (c) updating the black abalone monitoring data for Point Reyes National Seashore, Golden Gate National Recreation Area, and Año Nuevo Island.

Activities That May Affect Black Abalone Critical Habitat

Comment 9:

One commenter stated that while the proposed rule recognizes that ocean acidification may be a threat to black abalone habitat, it does not identify the specific activities that may contribute to ocean acidification. The commenter stated that the following categories of activities contribute to ocean acidification and recommended that ocean acidification be identified as a threat to the PCEs for these activities: National Pollutant Discharge Elimination System (NPDES)-permitted activities, coastal development, construction and operation of desalination plants, construction and operation of liquefied natural gas projects, and mineral and petroleum exploration and extraction. The commenter also provided several references with information on the effects of ocean acidification on marine ecosystems and organisms and strategies for monitoring, assessing, and addressing ocean acidification.

Response:

The proposed rule identified ocean acidification as a potential factor imposing mortality on black abalone and stated that activities that exacerbate global climate change (

e.g.,

fossil fuel combustion) contribute to ocean acidification. We recognize that several of the activities that may affect black abalone habitat (such as those listed by the commenter) may contribute to fossil fuel combustion and carbon emissions, thereby contributing to ocean acidification. Thus, in the proposed rule, we created a broad category of activities called “Activities that lead to global climate change,” to account for these and other activities that may result in increased carbon emissions and the potential effects resulting from these increased emissions. For this category of activities, we identified ocean acidification as a threat to the water quality, food resources, and settlement habitat PCEs. We mentioned that ocean pH values outside of the normal range (

i.e.,

normal pH range = 7.5 to 8.5) may cause reduced growth and survivorship in abalone and that increasing partial pressure of carbon dioxide may reduce abundance of coralline algae (an important food resource and component of settlement habitat for newly settled abalone) (see Table 1, pg. 59918, in the proposed rule (75 FR 59900; September 28, 2010).

Unlike the other activities listed by the commenter, for which the link to ocean acidification is more indirect (

e.g.,

coastal construction involves fossil fuel combustion and thus increased carbon emissions, which contribute to ocean acidification), NPDES-permitted activities may directly affect the pH of marine waters if permitted discharges alter the pH of receiving waters. Thus, we have revised this final rule and the supporting document to include ocean acidification as a threat to the food resources and water quality PCEs for NPDES-permitted activities.

Comment 10:

One commenter provided additional information regarding the potential impacts from dredging on black abalone habitat, stating that dredging activities would not be expected to have direct or indirect impacts on black abalone habitat. The commenter explained that dredging activities would not ordinarily take place within black abalone habitat, because these activities are restricted to navigational channels and features associated with navigation, which consist of subtidal, soft bottom habitats. The commenter also reasoned that indirect effects of dredging activities (

e.g.,

from increased turbidity or deposition) on black abalone habitat were not likely because the distances between dredge sites and black abalone habitat are great enough to avoid such impacts. If necessary, however, the commenter stated that projects can be conditioned to avoid direct impacts and measures can be implemented to control indirect impacts (

e.g.,

closed buckets or turbidity curtains to control turbidity). Finally, the commenter recommended that “requirements to treat (detoxify) dredge spoil” be deleted from the list of possible modifications for dredging and disposal activities, because the Clean Water Act prohibits the discharge of sediments toxic to the environment and thus treatment is not a feasible modification.

Response:

Consistent with the information provided by the commenter, the draft Economic Analysis Report (NMFS 2010b) recognized that “most of the dredging projects in California take place in rivers or in bays, to allow for vessels with deep drafts to safely navigate or maneuver. These types of areas are not being considered for designation. Thus, these data indicate that there are currently no dredging and disposal activities occurring in the specific areas.” The draft and the final Economic Analysis Reports (NMFS 2010b and NMFS 2011b) state that currently, no dredging and disposal activities are known to occur within the specific areas

considered for designation. Therefore, no costs were identified for dredging and disposal activities as a result of the critical habitat designation. The proposed and final rules and supporting documents still include and discuss dredging and disposal activities, however, to inform Federal agencies of the potential effects on black abalone critical habitat if the footprint of the activities were to overlap with rocky habitat within the specific areas.

As the commenter stated, the Clean Water Act, along with the Marine Protection, Research, and Sanctuaries Act of 1972, prohibits the discharge or disposal of dredged material in aquatic and marine waters if the material does not meet Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) regulations and standards regarding contaminants. These regulations and the current location, depth, and use of designated ocean disposal sites likely minimize impacts on the water quality PCE for black abalone. As recommended by the commenter, we have revised the possible modifications described for dredging and disposal activities by removing “requirements to treat (detoxify) dredge spoil” and replacing it with “requirements to monitor dredge spoil for specific contaminants that may affect black abalone.” This revised language is intended to inform Federal agencies that if the disposal of dredge spoil may affect black abalone critical habitat, then they may be required to monitor levels of contaminants within the potentially affected area in order to address impacts on the water quality PCE. The specifics of the monitoring activities (

e.g.,

contaminants of interest, methods, frequency, duration), as well as what actions would be taken if adverse effects on black abalone and its habitat are found, would be determined on a case-by-case basis through the consultation process under section 7 of the ESA.

Comment 11:

One commenter stated that the designation of critical habitat for black abalone has the potential to affect the routine issuance of permits for currently permitted activities in the Gulf of the Farallones, Monterey Bay, and Channel Islands National Marine Sanctuaries. The commenter requested that NMFS provide clear, concise advice and guidance on impacts that NMFS believes may affect the species and its critical habitat. The commenter also expressed concern regarding the expected time frame of one year or more for NMFS to issue permits for activities that may impact black abalone, stating that such a time frame would not be consistent with the National Marine Sanctuaries' time frame for evaluating and issuing permits. The commenter requested a formal meeting between staff from NMFS and the National Marine Sanctuaries to establish a framework, protocol, and plan for evaluating activities that may affect black abalone and its critical habitat.

Response:

Under section 7 of the ESA, Federal agencies must insure that actions they fund, permit, or carry out are not likely to jeopardize the continued existence of threatened or endangered species, or result in the destruction or adverse modification of designated critical habitat. The proposed rule (75 FR 59900; see section on “Special Management Considerations or Protection”) and draft Economic Analysis (NMFS 2010b) identified categories of activities that may affect black abalone critical habitat and therefore may be subject to such an analysis under section 7 of the ESA. The proposed rule and draft Economic Analysis also describe the nature of the threats posed by those activities to black abalone habitat and the potential modifications to those activities that may be required to avoid or minimize adverse effects on black abalone critical habitat. That list of activities and their descriptions provide information that can be used to evaluate activities for potential effects on black abalone and its habitat; however, NMFS recognizes that there may be additional activities that we are not aware of at this time that may affect black abalone critical habitat. We understand the commenter's concern regarding the need for guidance on what impacts may or may not affect black abalone and its habitat. However, determining whether a Federal action and its impacts may affect black abalone and its habitat requires an analysis of the details of the action, such as the location, duration, nature, scope, frequency, and time frame of the action and its impacts. Thus, this determination must often be made on a case-by-case basis given the details of each action. NMFS and National Marine Sanctuaries staffs have agreed to coordinate regarding upcoming actions, to provide technical assistance to Federal agencies undertaking, authorizing, or funding an action in determining whether the action may affect black abalone and its habitat. We also clarify that should it be determined that a Federal action may affect black abalone and its habitat, the action would be subject to consultation under section 7 of the ESA. The result of this consultation would not be a permit, but an analysis of whether the Federal agency has insured that the action is not likely to jeopardize black abalone and is not likely to result in the destruction or adverse modification of critical habitat. These consultations would be subject to the time frames specified in section 7 of the ESA and implementing regulations (typically 135 days). Regardless of the critical habitat designation for black abalone, consultations under section 7 of the ESA were and will be required for any Federal action that may affect black abalone or any other species listed under the ESA. The designation of critical habitat for black abalone does not alter the consultation time frames established under the ESA or implementing regulations.

Comment 12:

Two commenters stated that the term “sidecasting” is vague, undefined, and brings to mind the tossing of material off the highway with no subsequent management of the material. One of the two commenters recommended that the term “sidecasting” be replaced with the term “sediment disposal” or another term that better represents the range of methods used to dispose of excess sediment. The other commenter recommended that the term “sidecasting” be more clearly defined as direct sediment input or deposition into a water body. The commenters provided information explaining that excess sediment generated during road maintenance, repair, and construction activities is disposed of in approved areas and managed to minimize impacts to marine resources, using methods such as compaction of the material followed by revegetation. The commenters also provided information on three existing coastal development permits, stating that the management and disposal of excess sediment under these permits provides for public safety on California Highway 1 and is conducted in such a way as to best mimic nature, in order to minimize detrimental effects to the marine environment.

Response:

In response to the comments received, we revised the final rule by removing the term “sidecasting” and replacing it with the term “sediment disposal activities associated with road maintenance, repair, and construction.” We also revised the description of this activity to clarify that it involves the management and disposal of excess sediments generated from road maintenance, repair, and construction activities, with the material being placed in disposal areas that have been approved by the appropriate authorities and managed using methods (e.g., compaction and revegetation) to minimize the movement of sediment into the marine environment. We clarify

that the sediment disposal activities of concern are those that result in destruction or adverse modification of black abalone habitat (e.g., by increasing sediment input into coastal rocky habitats). If sediment disposal activities may result in the destruction or adverse modification of black abalone critical habitat, then the Federal agency funding, authorizing, or carrying out those activities would be required to consult with NMFS under section 7 of the ESA.

Comment 13:

One commenter stated that the potential modification to sidecasting activities of placing excess material at a stable site at a “safe distance” from rocky intertidal habitats was too vague. The commenter stated that the “safe distance” requirement is subject to interpretation and provides an unacceptable level of uncertainty for materials management on Highway 1.

Response:

We acknowledge that the “safe distance” requirement is not clearly defined, but also recognize that the critical habitat designation is not the appropriate stage at which to define what that safe distance would be for the placement of sediments to avoid impacts to rocky intertidal and subtidal habitat. The distance at which excess materials would need to be placed to avoid impacts to rocky intertidal and subtidal habitat would depend on several factors, including the volume and characteristics of material to be placed at the site, the time of year, specific features of the site, and what management methods would be used (

e.g.,

compaction, revegetation). These factors may vary and would need to be evaluated on a case-by-case basis during ESA section 7 consultations to determine the appropriate safe distance.

Comment 14:

One commenter agreed that the prediction of potential effects from coastal wave energy projects on black abalone populations is highly speculative. The commenter stated that MARINe is planning to monitor changes in physical parameters (

e.g.,

pH, wave intensity, and temperature) in rocky intertidal habitat across the range of black abalone. The commenter stated that these data may provide information on changing physical parameters for black abalone resulting from climate change and coastal tidal and wave energy projects.

Response:

We intend to collaborate with MARINe on obtaining data to assess the effects of climate change and coastal tidal and wave energy projects on black abalone habitat.

Comment 15:

One commenter asked why agricultural irrigation was identified as an activity that may affect the PCEs on Anacapa Island (Specific area 16), stating that irrigation on Anacapa Island is limited to a greenhouse area and does not run-off the island.

Response:

In order to identify and estimate the acreage of irrigated farmland within each specific area, the economic analysis used data on Prime Farmlands, Farmlands of Statewide Importance, and Farmlands of Local Importance from the US Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) Soil Survey Geographic Database (SSURGO). Based on the SSURGO data, irrigated farmland was identified on Anacapa Island and therefore the proposed rule identified agricultural irrigation as an activity of concern for this specific area in the proposed rule. However, we have since been informed by the National Park Service (NPS) that irrigation activities on Anacapa Island are limited to a greenhouse where native plants are grown for a habitat restoration project (pers. comm. with Dan Richards, CINP, on September 21, 2011). Water use is conservative and limited to occasional hand watering, with water in the greenhouse recaptured and recycled. Based on the new information provided by the NPS, we have determined that agricultural irrigation is not an activity of concern on Anacapa Island and have revised this final rule and the final economic analysis report to remove agricultural irrigation as an activity that may affect the PCEs on Anacapa Island. We also revised the economic analysis to remove the economic impacts associated with agricultural irrigation activities on Anacapa Island (estimated to range from $0 to $21,900, with a midpoint of $10,950). As a result, the total annualized economic impacts estimate across all activities for Anacapa Island decreased.

Unoccupied Areas

Comment 16:

One commenter disagreed with NMFS' determination that while the unoccupied specific areas identified for black abalone may be essential for conservation, there is currently insufficient data to conclude that any of the unoccupied areas are essential for conservation. The commenter recommended that any unoccupied areas with favorable black abalone habitat should be designated as critical habitat, particularly unoccupied areas to the north of the species' current range that may provide cooler waters and support for populations forced to shift northward due to ocean warming and the spread of withering syndrome. The commenter stated that any areas that can support black abalone and shelter the species from withering syndrome are essential for conservation of black abalone, regardless of whether they are currently occupied.

Response:

In order to designate a presently unoccupied specific area as critical habitat, the Secretary must find that: (a) The occupied specific areas are “inadequate to ensure the conservation of the species” (50 CFR 424.12); and (b) the unoccupied specific areas are “essential for conservation of the species” (16 U.S.C. 1532). The ESA's definition of critical habitat and its implementing regulations preclude the designation of any unoccupied habitat identified for the species unless the above determinations are made. The CHRT identified three unoccupied specific areas to consider for designation. The three unoccupied specific areas were delineated based on historical black abalone presence data and features of the habitat. At this time, we do not have predictive models or data to determine how climate change may affect current, historical, and potential black abalone habitat and how black abalone populations may respond to these effects, particularly how habitats and biological communities may shift with climate change. Given these uncertainties, we cannot at this time determine whether the unoccupied specific areas delineated by the CHRT would support black abalone populations in the future or whether they are essential for conservation. Nor are we able to conclude that the specific areas within the occupied geographic area are inadequate to ensure the conservation of the species. We note, however, that NMFS will continue to monitor the status of black abalone populations and habitats to determine how the species is responding to conditions over time. The ESA also requires status review updates for ESA-listed species every five years. As more information becomes available in the future, the critical habitat designation may be revised.

Critical Habitat Boundaries

Comment 17:

One commenter recommended two revisions to clarify the lateral extent of designated critical habitat and what habitats are designated. First, the commenter recommended that a depth reference be provided wherever depths are given (

e.g.,

a depth of −6m relative to the MLLW line). Second, the commenter recommended that the description of critical habitat be revised to include not just rocky intertidal habitat, but both rocky intertidal and subtidal habitats to a depth of −6m MLLW, because habitat from approximately −1m to −6m

MLLW would not be considered intertidal but is subtidal.

Response:

We have made the suggested changes by revising the language in this final rule and in the supporting documents to clarify that the critical habitat designation includes rocky intertidal and subtidal habitats from MHHW to a depth of −6m, measured relative to MLLW.

Comment 18:

One commenter recommended that the specific areas proposed for designation should be delineated by latitude and bathymetric specifications (e.g., MHHW), but should not be delineated by longitude. The commenter stated that this would allow the critical habitat designation to continue providing protection to black abalone habitat should the location of that habitat shift due to sea level rise associated with the effects of climate change.

Response:

In the proposed rule, we provided latitude and longitude coordinates to define the northern and southern boundaries of each specific area along the California coast. The latitude and longitude coordinates provided were not meant to also define the seaward and shoreward boundaries of the specific areas. We have revised the regulatory text in this final rule to clarify that the latitude and longitude coordinates define the northern and southern boundaries of the designated critical habitat areas, whereas the seaward and shoreward boundaries are defined by the following bathymetric specifications: The MHHW line (shoreward boundary) and the −6m depth contour relative to the MLLW line (seaward boundary).

Economic Impacts Analysis

Comment 19:

One commenter stated that the use of a “mean” in developing the cost estimates needs to be explained. Specifically, the commenter stated that because the mean reported in the economic analysis is actually the midpoint of a low cost and high cost range, the implicit assumption is that the probable distribution of costs is symmetric (and uniform, if there are no prior expectations to indicate that any value is more likely than any other) between the low and high cost estimates, which is an acceptable assumption as long as the low and high cost estimates are not hugely different. The commenter recommended that the final economic report should state the assumptions made in using the midpoint as the “mean” or expected level of costs.

Response:

The commenter is correct that the mean reported in the draft Economic Analysis Report (NMFS 2010b) is actually the midpoint of a low cost and high cost estimate. Because the economic analysis for this designation involves analyzing the economic impacts of a regulation that is not yet in place, empirical data are not available to inform the analysis. Instead, the analysis uses the best available data (

e.g.,

from consultations on similar activities or species) to estimate the likely range of economic impacts associated with the critical habitat designation. Lacking empirical data, we made the assumption that the distribution of costs is symmetric and uniform within this range. We then used the midpoint (a measure of central tendency) between the low cost and high cost estimates as the representative cost estimate. In this analysis, the midpoint also represents the “mean”, based on our assumption of a symmetric and uniform distribution of costs. For clarity, however, we have revised this final rule and the final Economic Analysis Report (NMFS 2011b) to remove the term “mean” and replace it with the term “midpoint.” The following paragraph was also added to section 1.4.6 in the final Economic Analysis Report (NMFS 2011b) to explain the assumptions made in the economic analysis regarding the “midpoint” or “mid” annualized economic impact estimate: “In almost all cases, a range of possible modification costs is presented. Because the data sources for the cost estimates do not constitute a random sample, an average over the range of estimated costs cannot be used as the “representative” estimate. This analysis therefore assumes that the endpoints of the range represent the minimum and maximum values of a symmetric cost distribution, and uses the midpoint of the range as the representative cost estimate.”

Comment 20:

One commenter recommended that, in light of the recent economic climate, the discount rates used in the economic analysis should be reanalyzed.

Response:

OMB Circular A-94 states that a 7 percent discount rate should be used as a base-case for regulatory analysis to approximate the marginal pre-tax rate of return on an average investment in the private sector in recent years (before 1992). OMB Circular A-4 adds that estimates using a 3 percent discount rate should also be provided for regulatory analyses. Thus, the economic analysis provides present discounted values using discount rates of 3 percent and 7 percent. Given the present low interest rate environment, we consider the present values discounted at 3 percent to better reflect current economic conditions. Appendix D of the economic analysis report presents a sensitivity analysis of our assumptions by comparing the present values discounted at 3 percent and 7 percent with those discounted at 2.1 percent.

We also note that in the draft economic analysis report, the annualized impacts were incorrectly labeled as having been discounted at 7 percent within the report and at 3 percent in the sensitivity analysis (Appendix D). The discount rates were only used to calculate present values and were not applied to calculate annualized impacts. In the final economic analysis report, we have removed the text “discounted at 7 percent” and “discounted at 3 percent” from the tables that present annualized impacts. In addition, we have revised Appendix D to remove the tables of annualized impacts from Appendix D and to include only the table of present discounted values (comparing values discounted at 3, 7, and 2.1 percent discount rates).

Comment 21:

One commenter expressed concern that small businesses in the specific areas proposed for designation may experience large economic impacts and recommended that a more detailed economic analysis be conducted to consider the impacts to all types of potentially affected small businesses. The commenter also stated that the proposed rule said that most small businesses are outside of the limited protected area. The commenter felt this statement was speculative and urged NMFS to confirm this statement using county data.

Response:

NMFS refers the commenter to the Initial and Final Regulatory Flexibility Analyses in the draft and final Economic Analysis Reports (Appendix E in NMFS 2010b and 2011b). We used U.S. Census Bureau county data and NAICS codes to identify the number of small businesses that may be affected by the critical habitat designation for each activity type. We were not able to analyze the impacts to all types of small businesses, however, because we were able to attribute a NAICS code (or codes) to only 10 of the 17 activities. Thus, we were only able to estimate the number of and economic impacts to small businesses that may be affected for those 10 activities.

Although the proposed rule stated that “all of the identified small businesses are unlikely to be located in close proximity of the specific areas,” the economic analysis did incorporate county data and analyzed the impacts to potentially affected small businesses identified throughout the counties

adjacent to the specific areas (see section titled “Regulatory Flexibility Act” on pg. 59925 in the proposed rule (75 FR 59900; September 28, 2010)). Thus, the analysis provides a maximum number of small businesses that could be affected for the 10 types of activities analyzed. We could not provide a more precise estimate of the number of potentially affected small entities, because business activity data is maintained at the county level.

Comment 22:

One commenter provided additional information for analyzing the economic impacts to “sidecasting” activities (revised name: “Sediment disposal activities associated with road maintenance, repair, and construction; see Response to Comment 12). Specifically, the commenter provided data on the costs associated with sidecasting material versus hauling material off site (the potential modification analyzed in the draft Economic Analysis (NMFS 2010b) for activities conducted under the Waddell Bluffs Talus Disposal project and under the Basin Complex Fire Debris Material Management project.

Response:

We have incorporated the information into the final Economic Analysis (NMFS 2011b) for sediment disposal activities associated with road maintenance, repair, and construction.

Comment 23:

One commenter recommended that power plants be treated as a special case, as the estimates of the “mean” or midpoint cost are highly sensitive to the assumptions made regarding the distribution of costs within the range of estimated costs (see Comment 19 and Response above). The commenter questioned whether the low cost estimate of $26,000 was just as likely as the high cost estimate of $75 million. The commenter stated that the probable distribution of costs between the high and low cost estimates needs to be more explicitly addressed.

Response:

The Diablo Canyon Nuclear Power Plant (DCNPP; located in specific area 10) was the only power plant identified within the specific areas that may be affected by the critical habitat designation. As described in the proposed rule and draft economic analysis report, the estimated economic impacts to the DCNPP were highly uncertain. The high cost estimate was based on the costs required to retrofit the DCNPP with closed-system wet cooling towers. The low cost estimate was based on the costs required to comply with temperature control criteria in order to minimize the effects of thermal effluent on the black abalone habitat. In the proposed rule, the estimated economic impacts ranged from $26,500 to approximately $150 million, and we noted that the high cost estimate was likely an overestimate, because there may be less costly and more feasible actions that could be taken to address effects on black abalone habitat. Since the proposed rule, we have obtained additional information from the EPA and California State Water Resources Control Board (SWRCB) that have led us to revise the analysis of economic impacts to the DCNPP. As a result of these revisions, we have concluded that the designation of black abalone critical habitat is not likely to have incremental economic impacts on the DCNPP (

i.e.,

the revised estimated economic impact is zero). In the following paragraphs, we describe the additional information received and the revisions leading to this conclusion.

To address the high level of uncertainty associated with the estimated economic impacts to the DCNPP in our proposed rule, we investigated alternative methods that could feasibly be employed to minimize or eliminate the effects of thermal effluent. We also sought out information from the EPA and the SWRCB to increase certainty regarding baseline protections provided to the habitat under existing regulations. The additional information obtained led us to revise the economic impact analysis for the DCNPP.

Further investigation of potential modifications to DCNPP suggested there is a high degree of uncertainty regarding the economic and technical feasibility of the modifications originally considered. Conclusions regarding several modifications are subject to evaluation studies to be conducted by the DCNPP in cooperation with the SWRCB. The studies are planned for 2012. In the proposed rule, we considered low cost modifications associated with compliance with NPDES permitting requirements (

i.e.,

temperature control criteria), including alterations to plant operations to reduce the intake of water and thus the amount of water discharged. However, additional information provided by the EPA indicated that such modifications are not applicable to the DCNPP. Altering operations to reduce water intake when the facility is not producing power would not work at the DCNPP, because it is a nuclear power plant and needs to take in water for cooling purposes even when the plant is not producing power (pers. comm. with Paul Shriner, EPA, on October 4, 2011). Thus, the low cost modifications analyzed in the proposed rule are considered to be infeasible based on the best available information.

In the proposed rule, we also considered the high cost modification of retrofitting the DCNPP from a once-through cooling system to a closed-cycle cooling system. While this option may address the issue of thermal effluent by reducing the volume of heated water that is discharged, it would not directly address the effects of thermal effluent. Further, a study conducted by the Central Coast Regional Water Quality Control Board (Central Coast RWQCB 2005) concluded that closed-cycle cooling systems would not be feasible for the DCNPP, because the massive physical area required for the cooling towers does not exist near the DCNPP. Although a report prepared for the California Ocean Protection Council (OPC) in 2008 (Tetra Tech Inc. 2008) stated that retrofitting to a closed-cycle cooling system is feasible at the DCNPP, it also noted that the location and layout of existing structures at the DCNPP “complicates the identification of suitable areas in which to place cooling towers” and acknowledges that considerations outside the scope of the study may limit the practicality or overall feasibility of a wet cooling tower retrofit at the DCNPP. Hence, the feasibility of a wet cooling tower retrofit at the DCNPP is questionable.

Other options that more directly address the issue of thermal effluent and that would likely be associated with lower costs include the use of helper cooling towers, in which water is cooled prior to discharge, but not re-circulated, thus reducing the costs compared to closed-system cooling towers, and the re-routing of the heated discharge further offshore, rather than discharging directly into Diablo Cove (pers. comm. with Paul Shriner, EPA, on October 4, 2011). The feasibility of installing helper cooling towers has not yet been evaluated, nor will it be considered in the evaluation study planned in 2012. Therefore, the feasibility of this modification remains uncertain. Similar to closed-system wet cooling towers, the use of helper cooling towers may be constrained by limited space in the area around DCNPP, depending on the size of the towers that would need to be constructed. In addition, the Central Coast RWQCB's (2005) study concluded that moving discharge structures offshore is not feasible for the DCNPP, given the bathymetry of the habitat, which is steep, rocky, and rapidly drops off in depth offshore. Therefore, these two potential modifications are considered to be infeasible, based on the best available information.

Based on this additional information, we have determined that neither the low costs (associated with altering power plant operations to reduce water intake and discharge, in compliance with

temperature control criteria) nor the high costs (associated with retrofitting the DCNPP with closed-system wet cooling towers) analyzed in the proposed rule can be reasonably expected to be incurred due to the black abalone critical habitat designation. In addition, we note that regulations under the CWA provide a high level of baseline protection for black abalone critical habitat. The SWRCB has been delegated the authority to implement the federal Clean Water Act (CWA). Section 316(a) of the CWA requires the thermal component of a discharge be limited, taking into account the interaction of this thermal component with other pollutants, to assure the protection and propagation of balanced, indigenous populations of shellfish, fish, and wildlife in the receiving water. California State's Water Quality Control Plan for the control of temperature in coastal waters requires that elevated temperature effluent from existing discharges, such as the DCNPP's discharge, “shall comply with limitations necessary to assure protection of the beneficial uses and areas of special biological significance.” Thus, under Section 316(a) of the CWA, the DCNPP would already be required to take measures to address the effects of the facility's discharge on water quality. Based on this information, we determined that it is unlikely that this critical habitat designation would require modifications above and beyond what would already be required under the existing regulations. Therefore, we conclude that this designation is not likely to result in incremental impacts to the cost of operating the DCNPP.

This final rule and the supporting documents have been revised with the economic impact estimate of $0 for the DCNPP. As a result of this revision, the total mid-annualized economic impact estimate for specific area 10 decreased from about $75.5 million to about $456,000 and specific area 10 is no longer eligible for exclusion based on economic impacts (see section on “Benefits of Exclusion based on Economic Impacts and Final Exclusions”).

Comment 24:

One commenter suggested that Table 1.4-1 (summarizing the basis for the incremental scores) of the draft Economic Analysis Report (NMFS 2010b) be revised to clarify that the incremental scores can be affected by other baseline protections, and not just by an overlap with existing critical habitat designations. For example, the commenter noted that the incremental score can be affected by an overlap with other existing protected areas, such as National Marine Sanctuaries (NMS). In addition, the commenter recommended including a table that summarizes the application of the guidelines to each activity and the resulting incremental score(s).

Response:

The baseline protections, including NMS regulations, are represented on Table 1.4-1 in the heading “Existing Federal, state, and local standards and regulations.” We included additional text in Section 1.4.4 of the final Economic Analysis Report to make this more explicit. In addition, Section 2 of the draft and final Economic Analysis Reports includes a detailed description of the economic analysis for each category of activity considered. Included in these descriptions is an explanation of how the incremental scores were determined for each category of activity. Because the baseline protections differ between specific areas, the incremental scores also differ between specific areas for each category of activity. Rather than creating one table listing the incremental scores for each specific area and each category of activity, we provide summary tables for each category of activity, listing the incremental scores for each specific area and the resulting estimated economic impacts.

Comment 25:

One commenter stated that small boat wrecks and associated oil spills may not be captured in the economic analysis, because the analysis focuses on medium to large spill events. The commenter recommended that small boat wrecks should be included in the analysis of oil and chemical spills and vessel grounding incidents because these wrecks can result in the discharge of fuel and in physical damage to habitat. As an example, the commenter stated that in 1995 a 40-foot vessel wrecked at Point Reyes Headland within the area of proposed black abalone critical habitat and discharged 400 gallons of diesel into the marine environment. The commenter stated that the cumulative effects of small incidents could add up to a medium-sized spill, with as many as ten boat wrecks a year occurring at Point Reyes National Seashore. The commenter provided additional data on small boat wrecks and associated oil spills in the Point Reyes National Seashore for the years 1995 through 2005.

Response:

In response to this comment, we re-evaluated our analysis of the economic impacts to oil and chemical spill response activities in Section 2.7 of the economic analysis report to incorporate the additional information provided by the NPS on small boat wrecks and associated oil spills in the Point Reyes National Seashore (in Specific Area 2). This re-evaluation led us to revise our approach to the economic analysis for oil and chemical spill response activities. In the draft economic analysis prepared for the proposed rule, we presented a quantitative estimate of the economic impacts to oil and chemical spill response activities. We used a model developed by Etkin (2000) and populated with data from past spill events (

e.g.,

location, spill size, amount of shoreline impacted by oil) to develop a range of cost estimates representing the range in total spill cleanup costs associated with a spill incident in each specific area. Because existing Federal, State, and local standards and regulations associated with oil and chemical spill response activities offer black abalone critical habitat a high level of baseline protection, the draft economic analysis assumed that approximately 20 percent of spill cleanup costs were attributable to black abalone critical habitat. Therefore, the range of cost estimates was adjusted by an incremental score of 0.2, to generate the incremental economic impacts of the designation on oil and chemical spill response activities. This approach was based on the following assumptions: (a) The designation of black abalone critical habitat would likely restrict or modify the type of responses taken in a spill incident; (b) we are able to predict these restrictions or modifications; and (c) these restrictions or modifications would be different from what would already be required if black abalone critical habitat were not designated and thus would result in additional costs, making up 20 percent of the total spill response costs. We also stated that the existence of black abalone critical habitat could increase the number of responses by requiring a response where one was not required before.

In evaluating how to incorporate the new information provided by the NPS on small boat wrecks and associated oil spills, we considered how the designation of critical habitat for black abalone may modify the response to such incidents. We obtained additional information from NOAA regarding spill response activities that led us to re-consider how the critical habitat designation may modify the response to spill incidents. The additional information obtained led us to conclude that there is great uncertainty regarding how the designation may affect spill response activities, because of the unpredictability of incidents, the incident-specific nature of response

strategies, and the baseline protections provided by strategies already in place for other sensitive resources (including black abalone). Historical data show that past spill events often result from vessel groundings or collisions, which are difficult to predict and thus are subject to emergency consultation under section 7 of the ESA. The decision of whether to respond to a spill, as well as how to respond, varies on a case-by-case basis depending on specific factors associated with a spill (

e.g.,

the location, size, type of oil, sea state). In addition, a consultation under section 7 of the ESA can modify a Federal agency's action, but cannot compel an agency to take an action it normally would not take. The existence of black abalone critical habitat in an area may affect spill response activities by prioritizing black abalone critical habitat areas for shoreline protection (

e.g.,

by the use of mechanical recovery methods, deployment of boom, or application of dispersants to keep oil offshore) or requiring shoreline assessments and nearshore water quality monitoring during and after the spill. However, these response activities would likely already be considered or required due to the presence of black abalone and/or other sensitive resources in the area, regardless of the presence of black abalone critical habitat. Thus, the presence of black abalone critical habitat may have little effect on spill response activities. Until more information is available from future spill events and response activities, it is difficult to determine the incremental impacts of this designation on spill response activities. Recognizing these uncertainties, we revised the analysis to a qualitative discussion of the potential impacts on spill response activities. We note that working with the relevant State and Federal agencies on spill response plans may be the most effective way to address our concerns regarding the potential impacts of spill response activities on critical habitat. NMFS plans to work with the U.S. Coast Guard and California's Office of Spill Prevention and Response to incorporate information on black abalone critical habitat into spill response plans and identify strategies to protect this habitat during spill response activities.

We also re-evaluated our analysis of the economic impact to vessel grounding incidents and response activities. The draft economic analysis report had identified only one vessel grounding incident in Specific Area 8. The analysis did not provide a quantitative assessment of the economic impacts to vessel grounding incidents because information was not available regarding the extent of the impacts of the incident on black abalone habitat. Because of this, NMFS was unable to determine specifically how this threat would be alleviated for Specific Area 8. We revised the economic analysis report to include the data provided by the NPS on vessel grounding incidents at Point Reyes National Seashore (in Specific Area 2). However, the additional data did not provide information on the extent of impacts to black abalone critical habitat or on specific ways this threat could be alleviated in the future. Due to uncertainty regarding the extent of impacts and how the activity may be modified to protect black abalone critical habitat, NMFS was still unable to present a quantitative assessment for the potential economic impacts to vessel grounding and response activities.

ESA 4(b)(2) Analysis: Exclusions Based on Economic Impacts

Comment 26:

One commenter stated that the economic impacts to the proposed South Orange Coastal Desalination Project in specific area 12 (from Corona Del Mar State Beach to Dana Point in Orange County, California) were overestimated and do not support excluding this specific area. The commenter recommended that the estimated economic costs to the proposed desalination plant for treating hypersaline effluent or for finding an alternate method of brine disposal should not be attributed to the black abalone critical habitat designation, but should be considered baseline costs associated with the listing of the species. The commenter also stated that the estimated costs for an alternate means of brine disposal (

i.e.,

injection wells) should not be applied to the proposed desalination plant because the proposed desalination plant plans to combine the residual brine from desalination with treated wastewater to be discharged 1.5 miles offshore through an existing outfall. The commenter stated that there is no indication that the proposed desalination plant would require injection wells to avoid adversely affecting black abalone critical habitat, because the proposed method of brine disposal would minimize or avoid harm to black abalone critical habitat. The commenter recommended that the estimated economic impacts to the proposed desalination plant in specific area 12 be revised to reflect this new information and that specific area 12 should be designated because it historically supported black abalone and one individual was found there as recently as January 2010.

Response:

We agree with the commenter that because the construction and operation of desalination projects require Federal permits, the Federal agency or agencies involved would need to comply with section 7 of the ESA to insure that their actions do not jeopardize the continued existence of black abalone, regardless of the critical habitat designation. If black abalone critical habitat were designated within the action area, however, the Federal agency or agencies would also need to insure that their actions do not result in the destruction or adverse modification of that critical habitat. Thus, some of the costs of treating or disposing of residual brine would be attributed to the listing and would be considered baseline costs, but some of the costs may also be attributed to the critical habitat designation. The economic analysis attempts to estimate the incremental costs of the critical habitat designation by applying an incremental score to the total estimated costs. The incremental score represents the estimated proportion of the costs that can be attributed to the critical habitat designation.

In the draft Economic Analysis Report (NMFS 2010b), we considered a range of costs to desalination plants from low (

i.e.,

minimal or zero costs if the desalination plant is co-located with a power plant in order to mix the residual brine with the power plant's wastewater prior to discharge) to high (

i.e.,

costs to use an alternate method of brine disposal, such as injection wells). The proposed method for brine disposal at the South Orange Coastal Desalination Plant (

i.e.,

combining the residual brine with treated wastewater, to be discharged through an existing outfall at 1.5 miles offshore) is similar to the example provided in the draft Economic Analysis of desalination plants being co-located with power plants. We do not know at this time what the potential effects of the proposed brine disposal method would be on black abalone critical habitat and cannot state with certainty what the potential requirement might be to avoid those effects. However, we agree with the commenter that any modifications required to avoid adversely affecting black abalone critical habitat would likely be less costly than the cost of using injection wells. Thus, the economic costs to the proposed desalination project as a result of the critical habitat designation would likely be at the low end of the range of potential costs (essentially zero, because the low cost estimate could not be quantified). The final economic analysis has been revised to reflect these

changes. Based on this change, the mid-annualized economic impact estimate for specific area 12 was reduced from $1,564,400 (low estimate: $11,500; high estimate: $3,117,300) to $104,400 (low estimate: $11,500; high estimate: $197,300). Despite this reduction in the estimated economic impacts, specific area 12 was still eligible for exclusion based on our decision rule for low conservation value areas (

i.e.,

areas with a low conservation value are eligible for exclusion if the mid-annualized economic impact exceeds $100,000). We did not receive any additional information to support increasing the conservation value rating for this area, or to show that exclusion of this area would significantly impede conservation of black abalone or lead to the extinction of the species. Therefore, we determined that the economic benefits of exclusion outweigh the conservation benefits of designation for specific area 12 and exclude this area from the final designation (for more details, see the section titled “Benefits of Exclusion and Final Exclusions Based on Economic Impacts” as well as the final ESA 4(b)(2) Report (NMFS 2011c)).

In addition, after further review of the identified desalination plants for all of the specific areas, we found that a majority of the facilities also plan to mix the residual brine with water from wells or wastewater prior to discharge. Based on this information, we determined that the high cost estimate for the use of injection wells was no longer applicable. Therefore, the analysis of economic impacts to desalination plants was revised to remove the high cost estimate. In the final Economic Analysis Report, the economic impacts to desalination plants are discussed qualitatively, because the low cost estimate could not be quantified.

General Comments

Comment 27:

One commenter stated that the proposed rule was incomplete because the list of references and certain references that were stated as available on the Web site (

e.g.,

the supporting documents) were not posted on the Web site. The commenter recommended that all references be made available on the Web site and that web addresses take users directly to the documents cited and not to the NMFS regional Web site. The commenter also requested that the public comment period be extended once the complete list of references is posted, to allow time for review and comment on the entire proposed rule.

Response:

The supporting documents cited in the proposed rule were posted and available on the NMFS Southwest Region Web site (

http://swr.nmfs.noaa.gov

) as well as on the Federal eRulemaking Portal Web site (

http://www.regulations.gov

) during the public comment period. The commenter was correct, however, that the list of references was not made available on the Web site during the public comment period. We have since posted the list of references on the NMFS Southwest Region Web site. In response to the commenter's request, we have provided a Web site link in this final rule that takes users directly to the final rule and supporting documents, and have provided more detailed instructions on how to find the final rule and supporting documents on the Federal eRulemaking Portal Web site (see

ADDRESSES

section of this final rule). Although we recognize the commenter's concern regarding the unavailability of the list of references, we did not extend the public comment period due to the need to publish the final rule by the court-approved deadline of October 18, 2011. However, we informed the commenter when the list of references had been posted, and the commenter indicated that they did not have any additional comments on the proposed rule.

Comment 28:

One commenter recommended that NMFS undertake a stronger education and outreach approach to publicize the critical habitat designation effort, so that State, Federal, and local municipalities, as well as affected stakeholders, can better understand the requirements for protecting black abalone and its habitat. The commenter suggested that conducting a workshop to explain the critical habitat designation would meet this goal.

Response:

We typically do not share specific information about a rule prior to publication of a proposed or final rule, because decisions may change as the agency undergoes deliberations, and sharing information with the public during this deliberative process may create confusion as to the agency's official proposal and decision. However, once a proposed or final rule is published, we publicize the rule widely to ensure that all potentially affected entities and interested members of the public are aware of the proposed or final decisions. NMFS typically publicizes proposed and final rules through press releases, the

Federal Register

, and posting of the rules and supporting documents on the Southwest Region Web site and the Federal eRulemaking Portal Web site. NMFS also holds public hearings when one is requested by the appropriate date during the public comment period (no requests for a public hearing were made for the proposed black abalone critical habitat rule). We would appreciate recommendations for more effectively publicizing the critical habitat designation and helping potentially affected entities understand what the designation means and the requirements for protecting black abalone and its habitat.

Comment 29:

In one of the form letters submitted by a supporter of CBD, one commenter stated that there are many species of plants and animals that deserve to be placed on the ESA list, but have been put off. The commenter stated that these creatures need protection before they go extinct.

Response:

It is not clear whether the commenter was referring to species that were petitioned for ESA listing but not placed on the ESA list, or whether the commenter was referring in general to all species that may or may not have been considered for ESA listing. It is also not clear whether the commenter was referring to species solely under the jurisdiction of NMFS or to all species in general. Critical habitat designations are for species that are already listed under the ESA and, therefore, this comment is not relevant to the designation of critical habitat for black abalone. However, we note that both the NMFS and USFWS (the Services) follow an established process under section 4 of the ESA for evaluating species for listing. This process is based on the best available scientific and commercial data.

Comment 30:

Several commenters provided anecdotal accounts of black abalone presence and abundance in Southern California and the offshore islands. In general, the commenters noted that black abalone were once abundant along the rocky shores of California and the offshore islands, including Catalina Island, and supported recreational and commercial harvest, but that their populations have declined to near extirpation in many areas due to factors including overharvest, illegal harvest, and disease. The commenters voiced support for the critical habitat designation to protect areas for the recovery of black abalone.

Response:

The anecdotal information provided by the commenters is consistent with trends observed through long-term monitoring studies of declining black abalone populations throughout the coast and offshore islands of Southern California.

Comment 31:

Several commenters expressed concerns regarding overfishing and illegal harvest and the damaging effects of these activities on abalone species as well as coastal areas. One commenter stated that since the 1950s and 1960s, we have lost almost all

abalone due to overexploitation, whether legal or illegal, and “critical habitat designation and severe enforcement of penalties is becoming necessary to preserve or restore such once-common species as these.” One commenter noted that abalone are constantly being over-harvested illegally along the coast of Northern California. Another commenter stated that all harvest of black abalone should be banned until the numbers have recovered substantially.

Response:

The Status Review Team (SRT) for black abalone identified poaching as a continuing threat (VanBlaricom

et al.

2009). However, the relative impact of poaching-related mortality to black abalone is poorly understood. The California Department of Fish and Game (CDFG) has documented several black abalone poaching cases from 1993 to 2003 involving removal of tens to hundreds of black abalone across all size categories (unpublished data by Ian Taniguchi, CDFG, cited in VanBlaricom

et al.

2009). CDFG wardens estimate that 80 percent of seized abalone were returned alive to the wild. Although this critical habitat designation would not directly address the threat of poaching, it can help CDFG wardens and other enforcement officials focus their monitoring efforts on areas important to black abalone.

The SRT also identified historical overfishing as a threat that has contributed to the decline in black abalone populations (VanBlaricom

et al.

2009). This critical habitat designation would not directly address overfishing. Overfishing of abalone has been addressed by CDFG regulations prohibiting abalone harvest south of San Francisco Bay. Section 9 of the ESA also prohibits the take of black abalone throughout its range, thus prohibiting any harvest of black abalone and adding additional penalties to those already being enforced by the state for illegal harvest of black abalone.

Comment 32:

One commenter requested that the recovery plan for black abalone address the threats of climate change as it is associated with withering syndrome and ocean acidification.

Response:

NMFS plans to initiate recovery planning for black abalone following publication of this final critical habitat designation. Throughout the recovery planning process, NMFS will assess the threats to black abalone and develop a recovery strategy, with input from stakeholders and the general public. NMFS will likely consider the threats from climate change during the recovery planning process.

Comment 33:

Two commenters stated they would like to see black abalone recover to the extent that they could be harvested for consumption again. One of the commenters recommended that upon recovery of black abalone populations, a recreational fishery may be operated at a level to maintain the population by imposing a slot limit to allow harvest of medium-sized abalone, thereby protecting young and older abalone. The commenter stated that black abalone are capable of rapidly repopulating an area if sufficient critical habitat is established and the abalone and their habitat are properly protected.

Response:

Harvest of black abalone is prohibited as long as the species is listed as endangered under the ESA. Recovery plans require that certain criteria (

i.e.,

demographic, threats-based, and long-term monitoring criteria) be met in order to down-list or de-list an ESA protected species. These criteria have not yet been established for black abalone, but will be developed in the near future. Upon recovery and delisting of the species, re-establishment of a fishery for black abalone could be considered under the appropriate state and Federal processes. The black abalone SRT stated that the natural recovery of severely-reduced black abalone populations would likely be a slow process due to the low reproductive efficiency of widely dispersed adult populations and short larval dispersal distances (VanBlaricom

et al.

2009). However, the designation of critical habitat has been found to benefit the status and recovery of ESA-listed species (Harvey

et al.

2002; Lundquist

et al.

2002; Taylor

et al.

2005; Hagen and Hodges 2006).

Comment 34:

Numerous commenters submitted form letters in support of the designation of critical habitat for black abalone, specifically to protect black abalone from climate change. The commenters emphasized the importance of curbing climate change and ocean acidification in order to protect critical habitat, because global warming is exacerbating the outbreak and spread of withering syndrome and ocean acidification is threatening abalone growth and reproduction as well as the abundance of juvenile settlement habitat (

i.e.,

coralline algae). Three of the commenters stated that the threats of global warming and climate change should be high items on our national priorities list because of the broad effects on listed species and other aspects of the marine, aquatic, terrestrial, and human environment. One commenter specifically identified the need to control carbon emissions. However, another commenter stated that many members of the public may be concerned about the conservation of abalone and other life forms, but do not subscribe to the global warming hypothesis. Another commenter stated that the actions of people that contribute to destruction of habitat, such as activities that dump poisons in the environment, must be modified.

Response:

We recognize the commenters' concerns regarding activities that affect black abalone and its habitat as well as other aspects of the natural and human environment. Once this final critical habitat designation takes effect, section 7 of the ESA requires that Federal agencies insure that their actions are not likely to result in the destruction or adverse modification of black abalone critical habitat. The CHRT identified several categories of activities that may affect the biological and physical habitat features essential for the conservation of black abalone, including NPDES-permitted activities and activities that lead to global climate change. Thus, the protections afforded to black abalone critical habitat under section 7 of the ESA may result in changes to these activities to avoid the destruction or adverse modification of critical habitat. However, the requirements under section 7 of the ESA apply only to actions that have a Federal nexus (

i.e.,

actions funded, permitted, or carried out by a Federal agency or agencies) and may not apply to all actions related to global climate change and habitat destruction. For activities leading to global climate change, it is uncertain at this time how the black abalone critical habitat designation may affect these activities or if a Federal nexus exists for these activities.

Comment 35:

One commenter stated that the Minerals Management Service (MMS) has been renamed the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) and requested that the final rule and all supporting documents be revised to refer to the current agency name.

Response:

We have revised the final rule and supporting documents to refer to BOEMRE instead of the MMS, explaining that BOEMRE was formerly MMS.

Methods and Criteria Used To Identify Critical Habitat

In accordance with section 4(b)(2) of the ESA and our implementing regulations (50 CFR 424.12(a)), this final rule is based on the best scientific and commercial information available concerning the present and historical range, habitat, biology, and threats to habitat for black abalone. In preparing

this rule, we reviewed and summarized current information on black abalone, including recent biological surveys and reports, peer-reviewed literature, the NMFS status review for black abalone (VanBlaricom

et al.,

2009), and the proposed and final listing rules for black abalone (71 FR 1986, January 11, 2008; 74 FR 1937, January 14, 2009). To assist with the evaluation of critical habitat, we convened a black abalone CHRT, comprised of seven Federal biologists from NMFS, the National Park Service (NPS), US Geological Survey (USGS), the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE; formerly, Minerals Management Service or MMS), and the Monterey Bay NMS, all with experience in abalone research, monitoring, and management. The CHRT used the best available scientific and commercial data and their best professional judgment to: (1) Verify the geographical area occupied by black abalone at the time of listing; (2) identify the physical and biological features essential to the conservation of the species; (3) identify specific areas within the occupied area containing those essential physical and biological features; (4) verify whether the essential features within each specific area may need special management considerations or protection and identify activities that may affect these essential features; (5) evaluate the conservation value of each specific area; and (6) determine if any unoccupied areas are essential to the conservation of black abalone. Following the close of the public comment period, the CHRT convened to review all of the relevant public comments received, again using the best available information to consider the information and recommendations provided in the comments. The CHRT's evaluation and conclusions are described in detail in the following sections, as well as in the final Biological Report (NMFS 2011a).

Physical or Biological Features Essential for Conservation

Joint NMFS-USFWS regulations, at 50 CFR 424.12(b), state that in determining what areas are critical habitat, the agencies “shall consider those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection.” Features to consider may include, but are not limited to: “(1) Space for individual and population growth, and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally; (5) Habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.” The regulations also require the agencies to “focus on the principal biological or physical constituent elements” (hereafter referred to as “Primary Constituent Elements” or PCEs) within the specific areas considered for designation that are essential to conservation of the species, which “may include, but are not limited to, the following: * * * spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, * * * geological formation, vegetation type, tide, and specific soil types.”

Based on the best available scientific information, the CHRT identified the following PCEs essential for the conservation of black abalone:

(1)

Rocky substrate.

Suitable rocky substrate includes rocky benches formed from consolidated rock of various geological origins (

e.g.,

igneous, metamorphic, and sedimentary) that contain channels with macro- and micro- crevices or large boulders (greater than or equal to 1 m in diameter) and occur from MHHW to a depth of −6 m relative to MLLW. All types of relief (high, medium and low; 0.5 to greater than 2 m vertical relief; Wentworth 1922) support black abalone and complex configurations of rock surfaces likely afford protection from predators, direct impacts of breaking waves, wave-born projectiles, and excessive solar heating during daytime low tides. Black abalone typically occupy the middle intertidal zones, although in some areas black abalone may predominately occupy the high or low intertidal zones. Local variation exists, depending on conditions such as the level of exposure and where drift kelp (an important food resource for black abalone) may be accumulating at particular locations. Leighton (1959) found evidence for ontogenetic shifts in depth distribution among juvenile abalone on the Palos Verdes Peninsula. Juvenile black abalone (10-30 mm) were found at mid-intertidal depths on undersides of rock providing clear beneath-rock open space while juveniles in the 5-10 mm size range were found at higher intertidal zones in narrow crevices and in depressions abraded into rock surfaces by the intertidal chiton,

Nutallina californica

(Reeve 1847). Black abalone observed at greater depths (3-6 m) typically were mature adults. California contains approximately 848.5 miles (1365.5 km) of consolidated rocky coastline, and 548.5 miles (882.8 km) or 65 percent of it falls within the areas considered in this critical habitat designation.

(2)

Food resources.

Abundant food resources including bacterial and diatom films, crustose coralline algae, and a source of detrital macroalgae, are required for growth and survival of all stages of black abalone. From post-larval metamorphosis to a size of about 20 mm, black abalone consume microbial and possibly diatom films (Leighton 1959; Leighton and Boolootian 1963; Bergen 1971) and crustose coralline algae. At roughly 20 mm black abalone begin feeding on both attached macrophytes and pieces of drift plants cast into the intertidal zone by waves and currents. The primary macroalgae consumed by juvenile and adult black abalone are giant kelp (

Macrocystis pyrifera)

and feather boa kelp (

Egregia menziesii)

in southern California (i.e., south of Point Conception) habitats, and bull kelp (

Nereocystis leutkeana)

in central and northern California habitats (i.e., north of Santa Cruz), although

Macrocystis

and

Egregia

may be more prominent than

Nereocystis

in central California habitats between Point Conception and Santa Cruz (public comment submitted by MARINe). Southern sea palm (

Eisenia arborea),

elk kelp (

Pelagophycus porra),

stalked kelp (

Pterygophora californica),

and other brown kelps (

Laminaria sp.)

may also be consumed by black abalone.

(3)

Juvenile settlement habitat.

Rocky intertidal and subtidal habitat containing crustose coralline algae and crevices or cryptic

biogenic structures (

e.g.,

urchins, mussels, chiton holes, conspecifics, anemones) is important for successful larval recruitment and juvenile growth and survival of black abalone less than approximately 25 mm shell length. The presence of adult abalone may facilitate larval settlement and metamorphosis, because adults may: (1) Promote the maintenance of substantial substratum cover by crustose coralline algae by grazing other algal species that could compete with crustose coralline algae; and/or (2) outcompete encrusting sessile invertebrates (

e.g.

tube worms and tube snails) for space on rocky substrates, thereby promoting the growth of crustose coralline algae and settlement of larvae; and/or (3) emit chemical cues necessary to induce larval settlement (Miner

et al.

2006; Toonen and Pawlick 1994). Increasing partial pressure of CO

2

may decrease calcification rates of coralline algae, thereby reducing their abundance and ultimately affecting the survival of newly settled black abalone (Feely

et al.

2004; Hall-Spencer

et al.

2008). Laboratory experiments have shown that the presence of pesticides (

e.g.,

dichlorodiphenyltrichloroethane (DDT), 2,4-dichlorophenoxyacetic acid (2,4-D), methoxychlor, dieldrin) interfered with larval settlement of abalone, because the chemical cues emitted by coralline algae and its associated diatom films, which trigger abalone settlement, are blocked (Morse

et al.

1979). The pesticide oxadiazon was found to severely reduce algal growth (Silver and Riley 2001). During the public comment period on the proposed rule, we solicited the public for additional information regarding processes that mediate crustose coralline algal abundance, however, we did not receive any additional information and data are still lacking regarding what other factors may be controlling crustose coralline algal abundance.

(4)

Suitable water quality.

Suitable water quality includes temperature, salinity, pH, and other chemical characteristics necessary for normal settlement, growth, behavior, and viability of black abalone. The biogeographical water temperature range of black abalone is from 12 to 25 °C, but they are most abundant in areas where the water temperature ranges from 18 to 22 °C (Hines

et al.

1980). There is increased mortality due to withering syndrome (WS) during periods following elevated sea surface temperature (Raimondi

et al.

2002). The CHRT did not consider the presence of the bacteria that causes WS when evaluating the condition of this PCE because it is thought to be present throughout a large portion of the species' current range (greater than 60 percent), including all coastal specific areas as far north as San Mateo County, as well as at Bodega Head (though not found in a sample collected from Point Reyes in 2009) and the Farallon Islands (pers. comm. with Jim Moore, CDFG, on June 8, 2011). Instead the CHRT relied on sea surface temperature information to evaluate water quality in terms of disease virulence, recognizing that elevated sea surface temperatures are correlated with increased rates of WS transmission and manifestation in abalone. Elevated levels of contaminants (

e.g.,

copper, oil, polycyclic aromatic hydrocarbon (PAH) endocrine disrupters, persistent organic compounds (POC)) can cause mortality of black abalone. In 1975, toxic levels of copper in the cooling water effluent of a nuclear power plant near Diablo Canyon, California, were associated with abalone mortalities in a nearshore cove that received significant effluent flows (Shepherd and Breen 1992; Martin

et al.

1977). As mentioned above for the

Juvenile settlement habitat

PCE, laboratory experiments have shown that the presence of some pesticides interfere with larval settlement of abalone (Morse

et al.

1979) and can severely reduce algal growth (Silver and Riley 2001). The suitable salinity range for black abalone is from 30 to 35 parts per thousand (ppt), and the suitable pH range is 7.5-8.5. Ocean pH values that are outside of the normal range for seawater (i.e., pH less than 7.5 or greater than 8.5;

http://www.marinebio.net/marinescience/02ocean/swcomposition.htm

) may cause reduced growth and survivorship in abalone as has been observed in other marine gastropods (Shirayama and Thornton 2005). Specifically, with increasing uptake of atmospheric CO

2

by the ocean, the pH of seawater becomes more acidic, which may decrease calcification rates in marine organisms and result in negative impacts to black abalone in at least two ways: (1) By disrupting an abalone's ability to maintain and grow its protective shell; and/or (2) by reducing abundance of coralline algae (and associated diatom films and bacteria), which may mediate larval settlement through chemical cues and support and provide food sources for newly settled abalone (Feely

et al.

2004; Hall-Spencer

et al.

2008).

(5)

Suitable nearshore circulation patterns.

Suitable circulation patterns are those that retain eggs, sperm, fertilized eggs, and ready-to-settle larvae enough so that successful fertilization and settlement to suitable habitat can take place. Nearshore circulation patterns are controlled by a variety of factors including wind speed and direction, current speed and direction, tidal fluctuation, geomorphology of the coastline, and bathymetry of subtidal habitats adjacent to the coastline. Anthropogenic activities may also have the capacity to influence nearshore circulation patterns (

e.g.,

intake pipes, sand replenishment, dredging, in water construction, etc.). These factors, in combination with the early life history dynamics of black abalone, may influence retention or dispersal rates of eggs, sperm, fertilized eggs, and ready-to-settle larvae (Siegel

et al.

2008). Forces that disperse larvae offshore (

i.e.,

by distances on the order of greater than tens of kilometers) may decrease the likelihood that abalone larvae will successfully settle to suitable habitats, given that: (a) Black abalone gamete and larval durations are relatively short; (b) larvae have little control over their position in the water column; and (c) ready-to-settle larvae require shallow, intertidal habitat for settlement. However, retention of larvae inshore due to bottom friction and minimal advective flows near kelp beds (the “sticky water” phenomenon; Wolanski and Spagnol 2000; Zeidberg and Hamner 2002) may increase the likelihood that larvae will successfully settle to suitable habitats.

Geographical Area Occupied by the Species and Specific Areas Within the Geographical Area Occupied

One of the first steps in the critical habitat designation process is to define the geographical area occupied by the species at the time of listing and to identify specific areas, within this geographically occupied area, that contain at least one PCE that may require special management considerations or protection. In the January 2009 final ESA listing rule, the range of black abalone was defined to extend from Crescent City (Del Norte County, California) to Cape San Lucas, Baja California, Mexico, including all offshore islands. The northern and southern extent of the range was determined based on museum specimens collected more than 10 years prior to the listing of the species (Geiger 2004). Because this range was based on dated records, and because we cannot designate critical habitat in areas outside of the United States (see 50 CFR 424.12(h)), the CHRT reconsidered the scope of the current (i.e., at the time of the final ESA listing) occupied range of black abalone. The CHRT examined data from ongoing monitoring studies along the California coast (Neuman

et al.

2010) and literature references to determine that, within the United States, the geographical area currently occupied by black abalone extends from the Del Mar Landing Ecological Reserve in Sonoma County, California, to Dana Point, Orange County, California, on the mainland and includes the Farallon Islands, Año Nuevo Island, and all of the California Channel Islands. The CHRT noted that there are pockets of unoccupied habitat within this broader area of occupation (NMFS 2011a). Within this geographically occupied area, black abalone typically inhabit coastal and offshore island rocky intertidal and subtidal habitats from MHHW to depths of −6 m (relative to MLLW) (Leighton, 2005). The CHRT then identified “specific areas” within the geographical area occupied by the species that may be eligible for designation as critical habitat under the ESA. For an occupied specific area to be eligible for designation it must contain at least one PCE that may require special

management considerations or protection. For each occupied specific area, the CHRT reviewed the available data regarding black abalone presence and verified that each area contained one or more PCE(s) that may require special management considerations or protection. The CHRT determined that for all specific areas, unless otherwise noted, MHHW delineates the landward boundary, and the −6 m (relative to MLLW) bathymetric contour delineates the seaward boundary. The CHRT also agreed to consider naturally occurring geomorphological formations and size (i.e., area) to delineate the northern and southern boundaries of the specific areas. The CHRT intentionally aimed to delineate specific areas of similar sizes in order to minimize biases in the economic cost estimates for the specific areas.

The CHRT scored and rated the relative conservation value of each occupied specific area. Areas rated as “High” were deemed to have a high likelihood of promoting the conservation of the species. Areas rated as “Medium” or “Low” were deemed to have a moderate or low likelihood of promoting the conservation of the species, respectively. The CHRT considered several factors in assigning the conservation value ratings, including the PCEs present, the condition of the PCEs, and the historical, present, and potential future use of the specific area by black abalone. These factors were scored by the CHRT and summed to generate a total score for each specific area, which was considered in the CHRT's evaluation and assignment of the final conservation value ratings. The final Biological Report (NMFS 2011a; available via our Web site at

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

via the Federal eRulemaking Web site at

http://www.regulations.gov,

or upon request—see

ADDRESSES

) describes in detail the methods used by the CHRT in their assessment of the specific areas and provides the biological information supporting the CHRT's assessment as well as the final conservation value ratings and justifications. The following paragraphs provide a brief description of the presence and distribution of black abalone within each specific area, additional detail regarding the CHRT's methods for delineating the specific areas, and the justification for assigning conservation scores. The following paragraphs also provide a brief description of the activities within each specific area that may threaten the quality of the PCEs, which are discussed in more detail in the

Special Management Considerations or Protection

section below and in the final Economic Report (NMFS 2011b). Activities that exacerbate global climate change (most notably fossil fuel combustion, which contributes to an increase in atmospheric CO

2

levels and the indirect outcomes of sea level rise, sea surface temperature elevation, and ocean acidification) were identified as a concern for all of the specific areas. The Black Abalone Critical Habitat Designation maps (in the regulatory text section), as well as the final Biological Report (NMFS 2011a), show the location of each specific area considered for designation.

Specific Area 1.

Specific Area 1 includes the rocky intertidal and subtidal habitats from the Del Mar Landing Ecological Reserve to Bodega Head in Sonoma County, CA. Bodega Head is a small peninsula that creates a natural barrier between it and the coastline that lies to the east and south. In addition, the geological origin of Bodega Head differs from that of the coastline to the east and south of it. For these reasons, this location was chosen to delineate the southern boundary of Specific Area 1. The CHRT scored the conservation value of this area as “High,” because, although the best available data indicate that black abalone are rare in this area, the area may serve as a refuge from WS and contains high quality habitat that can support large numbers of black abalone. Based on the limited historical data available for this area (Geiger 2003; State Water Resources Control Board (SWRCB)1979a; pers. comm. with J. Sones, Bodega Marine Reserve (BMR), University of California Davis, on January 7, 2010), black abalone were encountered occasionally in some locations. Black abalone have been present in this area in low numbers since the Partnership for Interdisciplinary Studies of Coastal Oceans (PISCO) and UCSC began its long-term intertidal sampling program in the early 2000s. Black abalone are currently considered to be rare (

i.e.,

difficult to find with some search effort and rarely seen at sampling sites; pers. comm. with J. Sones, BMR, on January 7, 2010). The CHRT expressed uncertainty regarding the area's ability to support early life stages of black abalone because historical and current data are lacking. However, the presence of good to excellent quality rocky substrate (

e.g.,

87 percent of rocky substrate available is consolidated), food resources, and water quality (SWRCB 1979a) and fair to good settlement habitat led the CHRT to conclude that the area could support a larger black abalone population comprised of multiple size classes. There are several activities occurring within this area that may threaten the quality of the PCEs including waste-water discharge, agricultural pesticide application and irrigation, construction and operation of tidal and wave energy projects, and activities that exacerbate global climate change (

e.g.,

fossil fuel combustion). This area is at the limit of the species' northern range, which may explain the rarity of black abalone here. However, it is also one of the few areas along the California coast that has not yet been affected by WS and serves as a refuge from the disease. In addition, the CHRT was of the opinion that, should the population shift northward along the coast with predicted increases in sea surface temperatures, this area would provide suitable habitat to support large densities of black abalone.

Specific Area 2.

Specific Area 2 includes rocky intertidal and subtidal habitats from Bodega Head in Sonoma County, CA, to Point Bonita in Marin County, CA. Point Bonita was chosen to delineate the southern boundary of this specific area because it sits at the southern point of the Marin Headlands, the final promontory encountered as one moves south along the coast before reaching the entrance to San Francisco Bay. The CHRT scored the conservation value of this area as “High,” because, although black abalone are considered rare in this area, the area may serve as a refuge from WS and contains high quality habitat that can support large numbers of black abalone. Historical presence of black abalone within this area is limited, but in locations where black abalone were observed, they were considered rare (Light 1941; SWRCB 1980a and 1980b; pers. comm. with S. Allen, Point Reyes National Seashore, on January 6, 2010). Since the mid-2000s, Point Reyes National Seashore and Golden Gate National Recreation Area staff have observed black abalone at several locations, but their qualitative abundance is considered to be rare (see definition of rare above). This was confirmed in 2010 through surveys conducted by PISCO, NMFS, and UCSC. This area contains good to excellent quality consolidated rocky substrate (

e.g.,

71 percent of rocky substrate available is consolidated), food resources, and water quality, and fair to good settlement habitat. There are several activities occurring within this area that may threaten the quality of the PCEs, including: Sand replenishment, waste-water discharge, coastal development, non-native species introduction and management, activities

that exacerbate global climate change, and agricultural pesticide application and irrigation. This area is near the limit of the species' northern range, which may explain the rarity of black abalone here, but it is also one of the few areas along the California coast that has not yet been affected by WS. The CHRT was of the opinion that the area could support greater densities and multiple size classes of black abalone in the future if habitat changes (

e.g.,

sea surface temperature rise) cause black abalone populations to shift northward along the coast.

Specific Area 3.

Specific Area 3 includes the rocky intertidal and subtidal habitats surrounding the Farallon Islands, San Francisco County, CA. This area is a group of islands and rocks found in the Gulf of the Farallones, 27 miles (43 km) west of the entrance to San Francisco Bay and 20 miles (32 km) south of Point Reyes. The islands are a National Wildlife Refuge and are currently managed by the USFWS, in conjunction with the Point Reyes Bird Observatory Conservation Science. The waters surrounding the islands are part of the Gulf of the Farallones NMS. The CHRT scored the conservation value of this area as “Medium,” because the area contains high quality habitat to support black abalone populations and has not yet been affected by WS. Historical presence of black abalone in intertidal habitats surrounding the Farallon Islands was noted in the late 1970s (SWRCB 1979c) and again in the early 1990s (E. Ueber, NPS (retired), unpublished data). Black abalone have been observed in Specific Area 3 during limited surveys conducted since 2005 (pers. comm. with Jan Roletto, Gulf of the Farallones NMS, on February 27, 2010). Researchers have confirmed that all of the PCEs are present and of good to excellent quality, and adverse impacts due to anthropogenic activities on these isolated islands are relatively low. However, the CHRT expressed concern over the following activities that may affect habitat features important for black abalone conservation and recovery, including: Waste-water discharge, agricultural pesticide application and irrigation, non-native species introduction and management, oil and chemical spills and clean-up, and activities that exacerbate global climate change.

Specific Area 4.

Specific Area 4 extends from the land mass framing the southern entrance to San Francisco Bay to Moss Beach, San Mateo County, CA, and includes all rocky intertidal and subtidal habitats within this area. The CHRT scored the conservation value of this area as “Medium,” because, although black abalone are present in the area, the habitat is of lower quality compared to the specific areas to the north due to an abundance of sand and steep and narrow habitats that are not likely to support black abalone. There is limited historical and current information regarding black abalone occurrence and abundance along this stretch of the coast. At the one site where black abalone were noted historically, they were considered to be rare (Light 1941). PISCO and UCSC researchers found ten individuals within this specific area during limited surveys conducted since 2007. The CHRT considered the PCEs within the area to be of fair to good quality. While the CHRT was uncertain about this area's ability to support early life stages because data are lacking, it was more confident that the area can support the long-term survival of juveniles and adults based on several lines of evidence from historical records (Light 1941; pers. comm. with J. Sones, BMR, on January 7, 2010; pers. comm. with M. Miner, UCSC, on February 11-12, 2010). The CHRT noted that the following activities may threaten the quality of the PCEs within this specific area: Sand replenishment, waste-water discharge, coastal development, agricultural pesticide application and irrigation, non-native species introduction and management, oil and chemical spills and clean-up, and activities that exacerbate global climate change.

Specific Area 5.

Specific Area 5 includes rocky intertidal and subtidal habitats from Moss Beach to Pescadero State Beach, San Mateo County, CA. This area was considered separately from Specific Area 4, even though each area alone is smaller in size compared to the majority of the other specific areas and both Specific Areas 4 and 5 were given a conservation value of “Medium.” The reasons for separate consideration were that: (1) The CHRT team viewed the PCEs in Specific Area 5 as being of lower quality overall than those contained within Specific Area 4; and (2) the level of certainty the CHRT had in evaluating the conservation value of Specific Area 4 was higher than that for Specific Area 5. The CHRT scored the conservation value of this area as “Medium,” recognizing that all of the PCEs were present in the area and their current quality ranged from poor to good. The CHRT also recognized that this area lies to the north of areas that have experienced population declines, and thus the habitat in this area may still provide a refuge from the devastating effects of WS. The CHRT expressed a high degree of uncertainty regarding the area's ability to support early life stages and long-term survival of juveniles and adults, however, because limited surveys have only been conducted (by Point Reyes National Seashore and Golden Gate National Recreation Area researchers as well as by PISCO, NMFS, and UCSC) in the area since the species was listed in 2009 and only one black abalone was found during these surveys. Waste-water discharge, oil and chemical spills and clean-up, and activities that exacerbate global climate change may compromise the quality of the PCEs within this specific area.

Specific Area 6.

Specific Area 6 includes the rocky intertidal and subtidal habitats surrounding Año Nuevo Island, San Mateo County, CA. The island lies 50 miles (74 km) south of San Francisco Bay and, 200 years ago, it was connected to the mainland by a narrow peninsula. Today it is separated from the mainland by a channel that grows wider with each winter storm. Año Nuevo Island is managed by the UCSC Long Marine Laboratory under an agreement with the California Department of Parks and Recreation. The Año Nuevo Island Reserve, including the island and surrounding waters, comprises approximately 25 of the 4,000 acres (10 of 1,600 ha) of the Año Nuevo State Reserve, the rest of which is on the mainland opposite the island. The CHRT scored the conservation value of this area as “High,” because the area contains good habitat to support black abalone and, although surveys have not been conducted in this area since the mid-1990s, historical data indicate the area supported high densities of black abalone. Black abalone were common in intertidal habitats surrounding the island during surveys conducted from 1987-1995, with mean densities ranging from 6-8 per m

2

(Tissot 2007; VanBlaricom

et al.

2009). PISCO and UCSC reestablished monitoring on Año Nuevo Island in 2010. In a limited search of one of the areas previously sampled by Tissot, approximately 50 black abalone (individuals ranged between 60-180mm in size) were found. The CHRT verified that good to excellent quality rocky substrate, food resources, and water quality, and fair to good settlement habitat exist at Año Nuevo Island, but expressed uncertainty regarding whether the area currently supports early life stages and long-term survival of juveniles and adults. The impact of global climate change on the habitat features important to black

abalone was the concern identified within this specific area.

Specific Area 7.

Specific Area 7 includes the rocky intertidal and subtidal habitats from Pescadero State Beach, San Mateo County, CA, to Natural Bridges State Beach, Santa Cruz County, CA. Situated to the north of Monterey Bay, Natural Bridges State Beach marks the last stretch of rocky intertidal habitat before reaching the primarily fine-to medium-grained sand beaches of Monterey Bay (

http://www.sanctuarysimon.org/monterey/sections/beaches/b_overview_map.php

). The CHRT scored the conservation value of this area as “High,” because the area contains good to excellent quality habitat that historically supported and currently supports recruitment and juvenile and adult survival. Historical data are limited, but the information available suggests that black abalone were common at a couple of sites within this specific area in the late 1970s and early 1980s and rare at the majority of sites (unpublished data available online at:

http://www.sanctuarysimon.org/monterey/sections/rockyShores/project_info.php?projectID=100281&sec=rs (accessed June 7, 2011)

). PISCO and UCSC began intertidal black abalone surveys in this area in 1999 and, at that time, qualitative abundance ranged from rare to common, depending on the specific site. Sampling by PISCO, the MBNMS, Sea Grant, and UCSC within the last 6 years indicates that black abalone are present and common at about 50 percent of the sites within this area, but that abundance may be declining at a few of these sites. At the other sites, black abalone are either present, but rare, or completely absent. The CHRT confirmed that all of the PCEs are present and of good to excellent quality here. PISCO data (Raimondi

et al.

2002; Tissot 2007) provide evidence that the area supports early life stages (i.e., small individuals (< 30mm) are present currently; see definition in NMFS 2011a) and long-term survival of juveniles and adults (i.e., there is stable or increasing abundance, and multiple size classes of black abalone evident in length-frequency distributions; see definition in NMFS 2011a). The CHRT identified the following activities that may threaten the quality of habitat features essential to black abalone within this area: Sand replenishment, waste-water discharge, coastal development, sediment disposal activities (associated with road maintenance, repair, and construction), agricultural pesticide application and irrigation, oil and chemical spills and clean-up, construction and operation of desalination plants, vessel grounding incidents and response, non-native species introduction and management, kelp harvesting, and activities that exacerbate global climate change.

Specific Area 8.

Specific Area 8 includes rocky intertidal and subtidal habitats from Pacific Grove to Prewitt Creek, Monterey County, CA. Pacific Grove marks the first stretch of rocky intertidal habitat to the south of the fine-to medium-grained sand beaches of Monterey Bay (

http://www.sanctuarysimon.org/monterey/sections/beaches/b_overview_map.php

). The CHRT scored the conservation value of this area as “High,” because the area contains high quality habitat that has historically supported and currently supports black abalone recruitment and juvenile and adult survival. Surveys conducted prior to 2004 indicated that black abalone encompassing a range of sizes were present and common at all of the sampled sites within this area (SWRCB1979b and 1979d; Raimondi

et al.

2002; Tissot 2007). More recent information gathered within the last 6 years by PISCO, MBNMS, Sea Grant, and UCSC indicates that black abalone encompassing a range of sizes remain at all sites sampled and are considered common at 93 percent of the sites. The CHRT confirmed that all of the PCEs are present and of good to excellent quality, but may be threatened by waste-water discharge, coastal development, agricultural pesticide application and irrigation, oil and chemical spills and clean-up, construction and operation of desalination plants, kelp harvesting, and activities that exacerbate global climate change. PISCO data (Raimondi

et al.

2002; Tissot 2007) provide evidence that the area supports early life stages and long-term survival of juveniles and adults (see NMFS 2011a for details).

Specific Area 9.

Specific Area 9 includes rocky intertidal and subtidal habitats from Prewitt Creek, Monterey County, CA, to Cayucos, San Luis Obispo County, CA. Situated on the northern edge of Estero Bay, Cayucos marks the last stretch of rocky intertidal habitat before reaching the primarily fine-to medium-grained sand beaches of Estero Bay. The CHRT scored the conservation value of this area as “High,” because the area contains high quality habitat that has historically supported and currently supports black abalone recruitment and juvenile and adult survival. BOEMRE, MBNMS, PISCO, Sea Grant, and UCSC established long-term monitoring sites within this area between 1995 and 2008. Surveys conducted prior to 2004 indicated that black abalone of a range of sizes were present and common at all but one of the sites surveyed within this area (Raimondi

et al.

2002; Tissot 2007). More recent information gathered by PISCO and UCSC indicates that black abalone of a range of sizes are present at all sites within the area and are commonly found at 57 percent of the sites, occasionally found with some search effort at 14 percent of the sites, and rarely found at 29 percent of the sites. The CHRT confirmed that all of the PCEs are present and of good to excellent quality. The area supports early life stages and long-term survival of juveniles and adults (see NMFS 2011a for details). However, the CHRT also noted that PISCO researchers have reported recent population declines at 57 percent of the sites sampled within this area and in at least one site, the population decline has been severe. Activities that may threaten the habitat features important for black abalone conservation are: waste-water discharge, agricultural pesticide application and irrigation, oil and chemical spills and clean-up, construction and operation of desalination plants, kelp harvesting, and activities that exacerbate global climate change.

Specific Area 10.

Specific Area 10 includes rocky intertidal and subtidal habitats from Montaña de Oro State Park in San Luis Obispo County, CA, to just south of Government Point, Santa Barbara County, CA. Montaña de Oro State Park is the first stretch of rocky intertidal habitat encountered to the south of the sandy beaches of Estero Bay, thus it was chosen to delineate the northern boundary of this specific area. The southern boundary of this area, Government Point, is where the Santa Barbara Channel meets the Pacific Ocean, the mostly north-south trending portion of coast transitions to a mostly east-west trending part of the coast, and a natural division between Southern and Central California occurs. For these reasons, it was chosen as the southern boundary of this specific area. The CHRT scored the conservation value of this area as “High,” because the area contains good habitat to support black abalone populations. However, declines in black abalone populations have occurred at some survey sites due to WS, resulting in changes to the habitat in the absence of black abalone. Historical data indicates that black abalone were present at 100 percent of the sites sampled within this specific area and that they were considered to be common at a majority of the sites sampled (Raimondi

et al.

2002; Tissot 2007). BOEMRE and University of California Santa Barbara (UCSB)

established long-term monitoring sites within this area in 1991, which have been biannually monitored to the present, and are currently monitored by BOEMRE and UCSC. PISCO and BOEMRE added biodiversity sites (sites established under the Coastal Biodiversity Survey to measure diversity and abundance of algal and invertebrate communities living on the rocky intertidal;

http://cbsurveys.ucsc.edu/

) in 2001, which are currently monitored periodically by PISCO and UCSC+. Since 2005, population declines have been noted at most locations within this specific area, with local extinction occurring in at least one sampling site. Despite declines in abundance and lack of evidence of recent recruitment in this specific area, the CHRT confirmed that the PCEs range from fair to excellent quality along this stretch of the California coast. The CHRT identified several activities that may threaten the quality of the PCEs within this specific area, including: In-water construction, waste-water discharge, coastal development, agricultural pesticide application and irrigation, construction and operation of power generating and desalination plants, mineral and petroleum exploration and extraction, non-native species introduction and management, kelp harvesting and activities that exacerbate global climate change.

Specific Area 11.

Specific Area 11 includes rocky intertidal and subtidal habitats surrounding the Palos Verdes Peninsula and extends from the Palos Verdes/Torrance border to Los Angeles Harbor in southwestern Los Angeles County, CA. This small peninsula is one of only two areas within Santa Monica Bay that contain intertidal and subtidal rocky substrate suitable for supporting black abalone. The limited extent of rocky intertidal habitat is what defines the northern and southern boundaries of this specific area. The CHRT scored the conservation value of this area as “Medium.” Currently, there is no evidence that this area supports recruitment, and, given the extremely low numbers of juveniles and adults, it is suspected that the area does not support long-term persistence of this population (Miller and Lawrenz-Miller 1993; pers. comm. with J. Kalman, Cabrillo Marine Aquarium (CMA), on February 12, 2010; pers. comm. with B. Allen, California State University Long Beach (CSULB), on February 5, 2010). However, many of the habitat features important to black abalone are still present and are in fair to excellent condition, which led to the CHRT's conclusion that this area is of “Medium” conservation value. Long-term intertidal monitoring on the Peninsula conducted by the CSULB and the CMA began in 1975, and, at that time, densities ranged from 2 to 7 per m

2

. Densities declined throughout the 1980s, and by the 1990s black abalone were locally extinct at a majority of sampling sites within the area. Good to high quality rocky substrate and food resources and fair to good settlement habitat persist within this area. The CHRT recognized that water quality within this area is in poor condition. Unlike the majority of the other areas where significant declines in black abalone abundance have occurred recently (since the 1980s) due to WS, declines in this area occurred prior to the onset of WS and have been attributed to the combined effects of significant El Niño events and poor water quality resulting from large-volume domestic sewage discharge by Los Angeles County during the 1950s and 1960s (Leighton 1959; Cox 1962; Young 1964; Miller and Lawrenz-Miller 1993). From the mid-1970s to 1997, however, improved wastewater treatment processes resulted in an 80 percent reduction in the discharge of total suspended solids from the White Point outfall. That, along with kelp replanting efforts in the 1970s, resulted in a remarkable increase in the kelp canopy from a low of 5 acres (2 hectares) in 1974 to a peak of more than 1,100 acres (445 hectares) in 1989. More recently, erosion and sedimentation have threatened the kelp beds off the Palos Verdes Peninsula. Since 1980, an active landslide at Portuguese Bend on the Palos Verdes Peninsula has supplied more than seven times the suspended solids as the Whites Point outfall (Los Angeles County Sanitation District 1997). The activities that may threaten the habitat features important to the conservation of black abalone are sand replenishment, waste-water management, non-native species introduction and management, kelp harvesting, and activities that exacerbate global climate change.

Specific Area 12.

Specific Area 12 includes rocky intertidal and subtidal habitats from Corona Del Mar State Beach to Dana Point in Orange County, CA. The limited extent of rocky intertidal habitat is what defines the northern and southern boundaries of this specific area. The CHRT scored this area of “Low” conservation value primarily because the quality of the PCEs is relatively low and because black abalone have not been identified at regularly monitored sampling locations since 2005. Historical information for this area indicates that black abalone were present along this stretch of coastline, and limited abundance information suggests densities of less than one per m

2

(Tissot 2007; pers. comm. with S. Murray, California State University Fullerton (CSUF), on January 8, 2010) in the late 1970s and early 1980s. Thus, there is uncertainty regarding whether these populations were viable at that time. By 1986, local extinction of black abalone at one sampling location within this specific area was reported (Tissot 2007). The CSUF began monitoring four sites within this area in 1996, and no black abalone have been observed at these locations since 2005. A putative black abalone was observed at one additional location in January, 2010. The area contains rocky substrate (88 percent of rocky substrate is consolidated) and food resources that are in fair to good condition, but settlement habitat and water quality are in poor to fair condition. Abundance of crustose coralline algae is limited in the rocky intertidal area and the extirpation of abalone from the habitat has resulted in a shift in its biogenic structure, rendering the area less suitable for settling abalone larvae. Water quality may be tainted by waste-water discharge, agricultural pesticide application and irrigation, construction and operation of desalination plants, and changes in the thermal and chemical properties of sea water through global climate change. Food resources within this area may be impacted by kelp harvesting activities.

Specific Areas 13-16.

Specific Areas 13-16 include the rocky intertidal and subtidal habitats surrounding the Northern California Channel Islands: San Miguel Island (Specific Area 13), Santa Rosa Island (Specific Area 14), and Santa Cruz Island (Specific Area 15) in Santa Barbara County, CA, and Anacapa Island (Specific Area 16) in Ventura County, CA. The Northern Channel Islands lie just off California's southern coast in the Santa Barbara Channel and remain somewhat isolated from mainland anthropogenic impacts. In 1980, Congress designated these islands and approximately 100,000 acres (405 km

2

) of submerged land surrounding them as a national park because of their unique natural and cultural resources. This area was augmented by the designation of the Channel Islands NMS later that year. The sanctuary boundaries stretch 6 nautical miles (11 km) offshore, including their interconnecting channels. Channel Islands National Park (CINP) began an intertidal monitoring

program on San Miguel, Santa Rosa, and Anacapa islands in the early to mid-1980s, while monitoring on Santa Cruz Island did not begin until 1994. The CHRT scored the conservation value of these areas as “High,” recognizing that although the black abalone populations in these areas have experienced declines due to WS and currently lack multiple size classes, the habitat remains in fair to excellent condition and there is evidence of small-scale recruitment at a few locations. Historically, black abalone were present and common at 76 percent of the sampling locations within these specific areas (SWRCB 1979f; SWRCB 1982a and 1982b; Tissot, 2007; pers. comm. with Dan Richards, NPS, on February 11-12, 2010). Severe population declines began in 1986. By the 1990s, declines in abundance of >99 percent were observed at all of the CINP sampling sites. Since 2005, abundance at most locations remains depressed; however, at a small number of sites abundance has increased and repeated recruitment events have occurred. These specific areas contain fair to excellent rocky substrate, food resources, settlement habitat and water quality, despite the fact that abundance has declined dramatically since the 1980s. Because these islands are somewhat remote, there is a limited list of activities that may threaten the PCEs in these specific areas and they include: Oil and chemical spills and clean-up on Santa Cruz Island; waste-water discharge and agricultural pesticide application on Anacapa Island and kelp harvesting and activities that exacerbate global warming.

Specific Areas 17-20.

Specific Areas 17-20 include the rocky intertidal and subtidal habitats surrounding the Southern California Channel Islands: San Nicolas Island (Specific Area 17) in Ventura County, CA, Santa Barbara Island (Specific Area 18) in Santa Barbara County, CA, and Santa Catalina Island (Specific Area 19) and San Clemente Island (Specific Area 20) in Los Angeles County, CA. The Southern Channel Islands are part of the same archipelago that includes the Northern Channel Islands. San Nicolas and San Clemente islands have been owned and operated by the U.S. Navy since the early 1930s. These islands accommodate a variety of Navy training, testing, and evaluation activities, including naval surface fire support, air-to-ground ordnance delivery operations, special operations, surface weapon launch support, and radar testing. Santa Barbara Island and its surrounding waters out to six nautical miles (11km) were designated as part of the CINP and the Channel Islands NMS in 1980. Since 1972, Santa Catalina Island has been owned primarily by a nonprofit organization, the Catalina Island Conservancy, whose mission is to preserve and conserve the island.

The CHRT scored the conservation value of San Nicolas Island as “High,” because the area contains good to excellent habitat that supports black abalone recruitment and juvenile and adult survival, despite severe declines in black abalone populations due to WS. Since 1981, the U. S. Geological Survey (USGS) and the University of Washington (UW) have monitored multiple sites around San Nicolas Island. Black abalone were considered common at all of the sites up until approximately 1993, when mass mortalities due to WS swept through the island (VanBlaricom

et al.

2009). Since 2005, slight increases in abundance have been observed at 33 percent of the sampled sites and moderate increases in abundance at one site. At 55 percent of the sampled sites, abundance remains low with densities less than 2 percent of their former values prior to population declines. Recent repeated recruitment events have occurred at a few sites as evidenced by the presence of small individuals (< 30 mm; G. VanBlaricom, USGS and UW, unpublished data). Thus, this specific area supports early life stages. However, the long-term survival of juveniles and adults is questionable, given that relative abundance levels remain low and evidence of multiple size classes is still lacking at the majority of sampling sites. All of the PCEs are present and are of good to excellent quality. The CHRT identified the following activities that may compromise the quality of habitat features essential to the conservation of black abalone within this specific area: In-water construction, waste-water management, coastal development, construction and operation of desalination plants, kelp harvesting, and activities that exacerbate global climate change.

The CHRT scored the conservation value of Santa Barbara Island as “Medium,” because, although the PCEs are of fair to excellent quality, there is a lack of evidence of recruitment both historically and currently. In addition, Santa Barbara Island has very low numbers of juvenile and adult black abalone. CINP began limited sampling at Santa Barbara Island in 1985. At that time black abalone were present on the island, and their qualitative abundance levels ranged from rare to common. Since 2005, black abalone have disappeared from one sampling site and remain present, but rare, at another. The CHRT considered the rocky substrate and settlement habitat to be of fair to good quality, food resources to be of poor to fair quality, and water quality to be good to excellent. The only activities that threaten the PCEs and that may require special management on Santa Barbara Island are those that alter the thermal and chemical properties of sea water through global climate change, most notably activities involving fossil fuel combustion.

The CHRT scored the conservation value of Catalina Island as “High,” despite uncertainty in the demographic history and current status of black abalone populations on the island, because the habitat is in good condition, has supported black abalone populations historically, and could support black abalone populations currently and in the future. Surveys conducted around Catalina Island in the 1960s, 1970s, and 1980s confirm that black abalone were present at a variety of locations around the island, but size distribution and abundance information are lacking. The CINP and UCSB established a long-term sampling site at Bird Rock in 1982, and a second site was added by UCSB through California Coastal Commission funding in 1995. They are currently monitored by Tatman Foundation and UCSB. Since the 1990s, black abalone have not been encountered at these sites. All of the PCEs are present and are in fair to excellent condition. There is a great deal of uncertainty regarding whether the island supports early life stages and the long-term survival of juveniles and adults because data are lacking. Several activities may compromise the generally good habitat quality surrounding Catalina Island, including in-water construction, waste-water discharge, coastal development, oil and chemical spills and clean-up, construction and operation of desalination plants and tidal and wave energy projects, kelp harvesting, and activities that exacerbate global climate change.

The CHRT scored the conservation value of San Clemente Island as “High,” recognizing that the habitat in this area is in good condition and likely supported high densities of black abalone historically (pre-WS). San Clemente Island was surveyed by the CDFG from 1988-1993. As late as October 1988, black abalone were present and populations were robust at a number of locations, but by 1990, population declines due to WS were underway (CDFG 1993). Densities decreased to less than one per m

2

by 1993 (CDFG 1993). The Navy initiated a San Clemente Island-wide investigation to determine the current extent of

remaining black abalone populations on the island in 2008. During 30-minute timed searches at 61 locations that each covered approximately 1500 m

2

of potential black abalone habitat, ten black abalone (all greater than 100 mm in size) were identified and all but two of the animals were solitary individuals (Tierra Data Inc. 2008). The Navy conducted additional black abalone surveys in January and March of 2011, finding an additional 17 black abalone ranging in size from 80 to 190 mm (Navy 2011). All of the PCEs are present and are in good to excellent condition, despite the fact that there is no evidence of recruitment and the island currently does not support long-term survival of adults. In order to protect these high quality PCEs and promote the conservation of black abalone, certain activities may require modification, such as in-water construction, coastal development, kelp harvesting, and activities that exacerbate global climate change.

Special Management Considerations or Protection

Joint NMFS and USFWS regulations at 50 CFR 424.02(j) define “special management considerations or protection” to mean “any methods or procedures useful in protecting physical and biological features of the environment for the conservation of listed species.” The CHRT identified several threats to black abalone PCEs and the areas in which those threats occur. NMFS and the CHRT then determined whether at least one PCE in each specific area may require special management considerations or protection because of a threat or threats. NMFS and the CHRT worked together to identify activities that could be linked to threats, and when possible, identified ways in which activities might be altered in order to protect the quality of the PCEs. These activities are described briefly in the following paragraphs and Table 1. These activities are documented more fully in the final Biological Report (NMFS 2011a) and final Economic Analysis Report (NMFS 2011b), which provide a description of the potential effects of each category of activities on the PCEs.

The major categories of activities that may affect black abalone habitat include: (1) Coastal development (

e.g.,

construction or expansion of stormwater outfalls, residential and commercial construction); (2) in-water construction (

e.g.,

coastal armoring, pier construction, jetty or harbor construction, pile driving); (3) sand replenishment or beach nourishment activities; (4) dredging and disposal of dredged material; (5) agricultural activities (

e.g.,

irrigation, livestock farming, pesticide application); (6) NPDES activities and activities generating non-point source pollution; (7) sediment disposal activities associated with road maintenance, repair, and construction (previously called “sidecasting”); (8) oil and chemical spills and clean-up activities; (9) mineral and petroleum exploration or extraction activities; (10) power generation operations involving water withdrawal from and discharge to marine coastal waters; (11) construction and operation of alternative energy hydrokinetic projects (tidal or wave energy projects); (12) construction and operation of desalination plants; (13) construction and operation of liquefied natural gas (LNG) projects; (14) vessel grounding incidents and response; (15) non-native species introduction and management (from commercial shipping and aquaculture); (16) kelp harvesting activities; and (17) activities that exacerbate global climate change (

e.g.,

fossil fuel combustion).

The final Biological Report (NMFS 2011a) and final Economic Analysis Report (NMFS 2011b) provide a description of the potential effects of each category of activities and threats on the PCEs. For example, activities such as in-water construction, coastal development, dredging and disposal, sediment disposal (“sidecasting”), mineral and petroleum exploration and extraction, and sand replenishment may result in increased sedimentation, erosion, turbidity, or scouring in rocky intertidal and subtidal habitats and may have adverse impacts on rocky substrate, settlement habitat, food resources, water quality, or nearshore circulation patterns. The construction of proposed energy and desalination projects along the coast would result in increased in-water construction and coastal development. The operation of these energy projects and desalination projects may also increase local water temperatures with the discharge of heated effluent, introduce elevated levels of certain metals or contaminants into the water, or alter nearshore water circulation patterns. The discharge of contaminants from activities such as NPDES activities may affect water quality, food resources (by affecting the algal community), and settlement habitat (by affecting the ability of larvae to settle). Introduction of non-native species may also affect food resources and settlement habitat if these species alter the natural algal communities. Shifts in water temperatures and sea level related to global climate change may also affect black abalone habitat. For example, coastal water temperatures may increase to levels above the optimal range for black abalone, and sea level rise may alter the distribution of rocky intertidal habitats along the California coast.

Table 1—Summary of Activities That May Affect Black Abalone PCEs, Including: the Area(s) in Which the Activity Is Located, the PCE(s) the Activity Could Affect and the Nature of That Threat, the ESA Section 7 Nexus for That Activity, and the Possible Modifications to the Activity Due to the Black Abalone Critical Habitat Designation

Activity

Specific areas

PCE and nature of the threat

Section 7 nexus

Possible modification(s)

to the activity

Dredging and disposal of dredged material

Unknown

Rocky substrate

PCE—Dredging that does occur near rocky intertidal and subtidal areas may increase sedimentation into the rocky habitat. A variety of harmful substances, including heavy metals, oil, tributyltin (TBT), polychlorinated biphenyls (PCBs) and pesticides, can be absorbed into the seabed sediments and contaminate them

The U.S. Army Corps of Engineers (USACE) issues permits pursuant to Section 404 of the Clean Water Act (CWA), among several others

Restrictions on the spatial and temporal extent of dredging activities and the deposition of dredge spoil. Requirements to monitor the effects of dredge spoil deposition on black abalone habitat.

Water quality

PCE—Dredging and disposal processes can release contaminants into the water column, affecting water quality, and making them available to be taken up by animals and plants, which could cause morphological or reproductive disorders

In-water construction

10, 17, 19, and 20

Rocky substrate

PCE—Increased sedimentation, a side effect of some in-water construction projects, can reduce the quality and/or quantity of rocky substrate

The USACE issues permits pursuant to Section 10 of the Rivers and Harbors Act of 1899 (RHA) among several others. Although in-water construction projects are commonly undertaken by private or non-Federal parties, in most cases they must obtain a USACE permit

Bank stabilization measures and more natural erosion control.

Food resources

PCE—The presence of in-water structures may affect black abalone habitat by affecting the distribution and abundance of algal species that provide food for abalone or the distribution and abundance of other intertidal invertebrate species

Settlement habitat

PCE—Changes in algal communities could affect settlement of larval abalone (believed to be influenced by the presence of coralline algae)

Nearshore circulation pattern

PCE—Nearshore circulation patterns may affect intertidal communities by providing stepping-stones between populations, resulting in range extensions for species with limited dispersal distances. Artificial structures, like breakwaters, may also alter the physical environment by reducing wave action and modifying nearshore circulation and sediment transport.

Sand replenishment

2, 4, 7, and 11

Rocky substrate

PCE—Sand movements could cover up rocky substrate thereby reducing its quality and/or quantity

The USACE is responsible for administering Section 404 permits under the CWA, which are required for sand replenishment activities

Monitor the water quality (turbidity) during and after the project. Place a buffer around pertinent areas within critical habitat that sand replenishment projects have to work around. Ensure any dredge discharge pipelines are sited to avoid rocky intertidal habitat. Construct training dikes to help retain the sand at the receiving location, which should minimize movement of sand into the rocky intertidal areas.

NPDES-permitted activities.

1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 16, 17, and 19.

Food resources

PCE—Sewage outfalls may affect food resources by causing light levels to be reduced to levels too low to support

Macrocystis

germination and growth. Eutrophication occurs around southern California sewage outfalls where phytoplankton crops and primary production exceed typical levels and approach values characteristic of upwelling periods. Discharge that results in reduced ocean pH could reduce the abundance of coralline algae

Issuance of CWA permits. State water quality standards are subject to an ESA section 7 consultation between NMFS and the EPA and NMFS can review individual NPDES permit applications for impacts on ESA-listed species

Where Federal permits are necessary, ensure discharge meets standards relevant for black abalone.

Require measures to prevent or respond to a catastrophic event (i.e., using best technology to avoid unnecessary discharges).

Water quality

PCE—Exposure to heavy metals can affect growth of marine organisms, either promoting or inhibiting growth depending on the combination and concentrations of metals. There is little information on these effects on black abalone, however. Discharge that results in ocean pH values outside the normal range for seawater (e.g., typically ranging from 7.5 to 8.5) may cause reduced growth and survival of abalone, as has been observed in other marine gastropods (Shirayama and Thornton 2005)

Coastal development

2, 4, 7, 8, 10, 17, 19, and 20

Rocky substrate

PCE—Increased sediment load that may result from urbanization of the coast and of watersheds (increased transport of fine sediments into the coastal zone by rivers or runoff) can reduce the quality and/or quantity of rocky substrate. In addition, construction of coastal armoring is often associated with coastal urban development to protect structures from wave action or prevent erosion

The USACE permits construction or expansion of stormwater outfalls, discharge or fill of wetlands, flood control projects, bank stabilization, and in-stream work

Stormwater pollution prevention plan; permanent stormwater site plan; and stormwater best management practice operations and maintenance.

Food resources

PCE—Increased sedimentation may also affect feeding by covering up food resources, altering algal communities (including algal communities on the rocky reef and the growth of kelp forests that supply drift algae), and altering invertebrate communities (affecting biological interactions). Ephemeral and turf-forming algae were found to be favored in rocky intertidal areas that experience intermittent inundation (Airoldi 1998, cited in Thompson

et al.

2002)

Settlement habitat

PCE—Increased sedimentation may affect settlement of larvae and propagules by covering up settlement habitat as well as affecting the growth of encrusting coralline algae (Steneck

et al.

1997, cited in Airoldi 2003), thought to be important for settlement

Sediment disposal associated with road maintenance, repair, and construction (“Sidecasting”)

7 and 8

Rocky substrate and settlement habitat

PCEs— Increased likelihood of sediment input into rocky intertidal and subtidal habitats may reduce its quality and quantity

Food resources

PCE—May result in possible reductions or changes to food resources. See sedimentation effects as described under “Coastal development”, above

National Marine Sanctuary (NMS) regulations prohibit discharge of materials within its boundaries, as well as outside its boundaries if the material may enter the sanctuary and harm sanctuary resources. However, under certain circumstances, a permit may be obtained from the MBNMS to allow for a prohibited activity

Haul away (or store locally) excess material from road maintenance activities; place excess material at a stable site at a safe distance from rocky intertidal habitats; and use mulch or vegetation to stabilize the material.

Agricultural activities (including pesticide application, irrigation, and livestock farming)

1, 2, 3, 4, 7, 8, 9, 10, 12, and 16

Rocky substrate

PCE—Soil erosion from intensive irrigated agriculture or livestock farming of areas adjacent to the coast can cause increased sedimentation thereby reducing the quality and quantity of rocky substrate

Irrigation

—water suppliers may provide water via contract with U.S. Bureau of Reclamation (USBR) or using infrastructure owned or maintained by the USBR. Privately owned diversions may require a Federal permit from USACE under sections 401 or 404 of the CWA

For irrigated agriculture: conservation crop rotation, underground outlets, land smoothing, structures for water control, subsurface drains, field ditches, mains or laterals, and toxic salt reduction.

Food resources

PCE—Herbicides are designed to kill plants, thus herbicide contamination of water could have devastating effects on aquatic plants

Pesticide Application

—Environmental Protection Agency (EPA) consultation on the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), pesticide registration program, and NPDES permits for aquatic pesticides

For pesticides application: restrictions on application of some pesticides within certain distances from streams.

Settlement habitat

PCE—Laboratory experiments showed that the presence of pesticides (those examined in the study were DDT, methoxychlor, dieldrin, and 2,4-D) interfered with larval settlement. Presence of pesticides had a much lesser effect on survival of larvae

Livestock farming

—Bureau of Land Management (BLM) and the U.S. Forest Service (USFS)

For livestock farming: fencing riparian areas; placing salt or mineral supplements to draw cattle away from rivers; total rest of allotments when possible; and frequent monitoring.

Water quality

PCE—Pesticides alter the chemical properties of sea water such that they can interfere with settlement cues emitted by coralline algae and associated diatom films, and/or they may inhibit growth of marine algae upon which black abalone depend for food. There is little information on these effects on black abalone or related species, however, especially for pesticides that are currently in use

Oil & chemical spills & response

2, 4, 5, 7, 8, 9, 12, 15, and 19

Rocky substrate and settlement habitat

PCEs—Oil spill clean-up activities may be as destructive, or more destructive, than the oil spill itself. Oil spill clean-up may involve application of toxic dispersants and the use of physical cleaning methods such as the use of high pressure and/or high temperature water to flush out oil which may decrease the quality of rocky substrate and settlement habitat in an area. Oil, oil/dispersant mixtures, and dispersants used in oil spill clean-up may adversely affect grazing mollusks like abalone in rocky intertidal areas,

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