Endangered and Threatened Wildlife and Plants: Final Rulemaking To Designate Critical Habitat for the Threatened Southern Distinct Population Segment of North American Green Sturgeon

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 080730953-91263-02]

RIN 0648-AX04

Endangered and Threatened Wildlife and Plants: Final Rulemaking To Designate Critical Habitat for the Threatened Southern Distinct Population Segment of North American Green Sturgeon

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We, the National Marine Fisheries Service (NMFS), designate critical habitat for the threatened Southern distinct population segment of North American green sturgeon (Southern DPS of green sturgeon) pursuant to section 4 of the Endangered Species Act (ESA). Specific areas proposed for designation include: Coastal U.S. marine waters within 60 fathoms (fm) depth from Monterey Bay, California (including Monterey Bay), north to Cape Flattery, Washington, including the Strait of Juan de Fuca, Washington, to its United States boundary; the Sacramento River, lower Feather River, and lower Yuba River in California; the Sacramento-San Joaquin Delta and Suisun, San Pablo, and San Francisco bays in California; the lower Columbia River estuary; and certain coastal bays and estuaries in California (Humboldt Bay), Oregon (Coos Bay, Winchester Bay, Yaquina Bay, and Nehalem Bay), and Washington (Willapa Bay and Grays Harbor). This rule designates approximately 515 kilometer (km) (320 miles (mi)) of freshwater river habitat, 2,323 km

2

(897 mi

2

) of estuarine habitat, 29,581 km

2

(11,421 mi

2

) of marine habitat, 784 km (487 mi) of habitat in the Sacramento-San Joaquin Delta, and 350 km

2

(135 mi

2

) of habitat within the Yolo and Sutter bypasses (Sacramento River, CA) as critical habitat for the Southern DPS of green sturgeon.

This rule excludes the following areas from designation because the economic benefits of exclusion outweigh the benefits of inclusion and exclusion will not result in the extinction of the species: Coastal U.S. marine waters within 60 fm depth from the California/Mexico border north to Monterey Bay, CA, and from the Alaska/Canada border northwest to the Bering Strait; the lower Columbia River from river kilometer (RKM) 74 to the Bonneville Dam; and certain coastal bays and estuaries in California (Elkhorn Slough, Tomales Bay, Noyo Harbor, and the estuaries to the head of the tide in the Eel and Klamath/Trinity rivers), Oregon (Tillamook Bay and the estuaries to the head of the tide in the Rogue, Siuslaw, and Alsea rivers), and Washington (Puget Sound). Particular areas are also excluded based on impacts on national security and impacts on Indian lands. The areas excluded from the designation comprise approximately 0.2 km (0.1 mi) of freshwater habitat, 2,945 km

2

(1,137 mi

2

) of estuarine habitat and 1,034,935 km

2

(399,590 mi

2

) of marine habitat.

This final rule responds to and incorporates public comments received on the proposed rule and supporting documents, as well as peer reviewer comments received on the draft biological report and draft ESA section 4(b)(2) report.

DATES:

This rule will take effect on November 9, 2009.

ADDRESSES:

Reference materials regarding this determination can be obtained via the Internet at:

http://www.nmfs.noaa.gov

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; Steve Stone, NMFS, Northwest Region (503) 231-2317; or Lisa Manning, NMFS, Office of Protected Resources (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

Under the ESA, we are responsible for determining whether certain species, subspecies, or distinct population segments (DPS) are threatened or endangered, and designating critical habitat for them (16 U.S.C. 1533). On April 7, 2006, we determined that the Southern DPS of green sturgeon is likely to become endangered in the foreseeable future throughout all or a significant portion of its range and listed the species as threatened under the ESA (71 FR 17757). A proposed critical habitat rule for the Southern DPS was published in the

Federal Register

on September 8, 2008 (73 FR 52084), with a technical correction and notification of a public workshop published on October 7, 2008 (73 FR 58527). Pursuant to a court-ordered settlement agreement, NMFS agreed to make a final critical habitat designation for the Southern DPS by June 30, 2009. However, an extension was requested and granted, with a new deadline of October 1, 2009. This rule describes the final critical habitat designation, including responses to public comments and peer reviewer comments, a summary of changes from the proposed rule, and supporting information on green sturgeon biology, distribution, and habitat use, and the methods used to develop the final designation.

We considered various alternatives to the critical habitat designation for the green sturgeon. The alternative of not designating critical habitat for the green sturgeon would impose no economic, national security, or other relevant impacts, but would not provide any conservation benefit to the species. This alternative was considered and rejected because such an approach does not meet the legal requirements of the ESA and would not provide for the conservation of green sturgeon. The alternative of designating all potential critical habitat areas (

i.e.,

no areas excluded) also was considered and rejected because, for a number of areas, the economic benefits of exclusion outweighed the benefits of inclusion, and NMFS did not determine that exclusion of these areas would significantly impede conservation of the species or result in extinction of the species. The total estimated annualized economic impact associated with the designation of all potential critical habitat areas would be $64 million to $578 million (discounted at 7 percent) or $63.9 million to $578 million (discounted at 3 percent).

An alternative to designating critical habitat within all of the units considered for designation is the designation of critical habitat within a subset of these units. Under section 4(b)(2) of the ESA, NMFS must consider the economic impacts, impacts to national security, and other relevant impacts of designating any particular area as critical habitat. NMFS has the discretion to exclude an area from designation as critical habitat if the benefits of exclusion (

i.e.,

the impacts that would be avoided if an area were excluded from the designation) outweigh the benefits of designation (

i.e.,

the conservation benefits to the Southern DPS if an area were designated), so long as exclusion of the area will not result in extinction of the species. Exclusion under section 4(b)(2) of the ESA of one or more of the units considered for designation would reduce the total impacts of designation. The determination of which units and how many to exclude depends on NMFS' ESA 4(b)(2) analysis, which is conducted for each unit and described

in detail in the ESA 4(b)(2) analysis report. Under this preferred alternative, NMFS originally proposed to exclude 13 out of 40 units considered. The total estimated economic impact associated with the proposed rule was $22.5 million to $76.4 million (discounted at 7 percent) or $22.5 million to $76.3 million (discounted at 3 percent). In response to public comments and additional information received, this final rule excludes 14 units out of 41 units considered where the economic benefits of exclusion outweighed the conservation benefits of designation. NMFS determined that the exclusion of these 14 units would not significantly impede the conservation of the Southern DPS. The total estimated economic impact associated with this final rule is $20.2 million to $74.1 million (discounted at 7 percent) or $20.1 million to $74 million (discounted at 3 percent). NMFS selected this alternative because it results in a critical habitat designation that provides for the conservation of the Southern DPS while reducing the economic impacts on entities. This alternative also meets the requirements under the ESA and our joint NMFS-USFWS regulations concerning critical habitat.

Green Sturgeon Natural History

The green sturgeon (

Acipenser medirostris

) is an anadromous fish species that is long-lived and among the most marine oriented sturgeon species in the family Acipenseridae. Green sturgeon is one of two sturgeon species occurring on the U.S. west coast, the other being white sturgeon (

Acipenser transmontanus

). Green sturgeon range from the Bering Sea, Alaska, to Ensenada, Mexico, with abundance increasing north of Point Conception, CA (Moyle

et al.

1995). Green sturgeon occupy freshwater rivers from the Sacramento River up through British Columbia (Moyle 2002), but spawning has been confirmed in only three rivers, the Rogue River in Oregon and the Klamath and Sacramento rivers in California. Based on genetic analyses and spawning site fidelity (Adams

et al.

2002; Israel

et al.

2004), NMFS has determined green sturgeon are comprised of at least two distinct population segments (DPSs): (1) A Northern DPS consisting of populations originating from coastal watersheds northward of and including the Eel River (

i.e.,

the Klamath and Rogue rivers) (“Northern DPS”); and (2) a southern DPS consisting of populations originating from coastal watersheds south of the Eel River, with the only known spawning population in the Sacramento River (“Southern DPS”). The Northern DPS and Southern DPS are distinguished based on genetic data and spawning locations, but their distribution outside of natal waters generally overlap with one another (Chadwick 1959; Miller 1972; California Department of Fish and Game (CDFG) 2002; Israel

et al.

2004; Moser and Lindley 2007; Erickson and Hightower 2007; Lindley

et al.

2008.). Both Northern DPS and Southern DPS green sturgeon occupy coastal estuaries and coastal marine waters from southern California to Alaska, including Humboldt Bay, the lower Columbia river estuary, Willapa Bay, Grays Harbor, and coastal waters between Vancouver Island, BC, and southeast Alaska (Israel

et al.

2004; Moser and Lindley 2007; Lindley

et al.

2008).

Spawning frequency is not well known, but the best information suggests adult green sturgeon spawn every 2—4 years (pers. comm. with Steve Lindley, NMFS, and Mary Moser, NMFS, 2004, cited in 70 FR 17386, April 6, 2005; Erickson and Webb 2007). Beginning in late February, adult green sturgeon migrate from the ocean into fresh water to begin their spawning migrations (Moyle

et al.

1995). Spawning occurs from March to July, with peak activity from mid-April to mid-June (Emmett

et al.

1991; Poytress

et al.

2009). Spawning in the Sacramento River occurs in fast, deep water over gravel, cobble, or boulder substrates (Emmett

et al.

1991; Moyle

et al.

1995; Poytress

et al.

2009). Eggs and larvae develop in freshwater, likely near the spawning site (Kynard

et al.

2005). Development of early life stages is affected by water flow and temperature (optimal temperatures from 11 to 17-18 °C; Cech

et al.

2000, cited in COSEWIC 2004; Van Eenennaam

et al.

2005). Juvenile green sturgeon rear and feed in fresh and estuarine waters from 1 to 4 years prior to dispersing into marine waters as subadults (Nakamoto

et al.

1995).

Adults are defined as sexually mature fish, subadults as sexually immature fish that have entered into coastal marine waters (usually at 3 years of age), and juveniles as fish that have not yet made their first entry into marine waters. Green sturgeon spend a large portion of their lives in coastal marine waters as subadults and adults. Subadult male and female green sturgeon spend at least approximately 6 and 10 years, respectively, at sea before reaching reproductive maturity and returning to freshwater to spawn for the first time (Nakamoto

et al.

1995). Adult green sturgeon spend as many as 2-4 years at sea between spawning events (pers. comm. with Steve Lindley, NMFS, and Mary Moser, NMFS, cited in 70 FR 17386, April 6, 2005; Erickson and Webb 2007). Prior to reaching sexual maturity and between spawning years, subadults and adults occupy coastal estuaries adjacent to their natal rivers, as well as throughout the West coast, and coastal marine waters within 110 meters (m) depth. Green sturgeon inhabit certain estuaries on the northern California, Oregon, and Washington coasts during the summer, and inhabit coastal marine waters along the central California coast and between Vancouver Island, British Columbia, and southeast Alaska over the winter (Lindley

et al.

2008). Green sturgeon likely inhabit these estuarine and marine waters to feed and to optimize growth (Moser and Lindley 2007). Particularly large aggregations of green sturgeon occur in the Columbia River estuary and Washington estuaries and include green sturgeon from all known spawning populations (Moser and Lindley 2007). Although adult and subadult green sturgeon occur in coastal marine waters as far north as the Bering Sea, green sturgeon have not been observed in freshwater rivers or coastal bays and estuaries in Alaska.

Detailed information on the natural history of green sturgeon is provided in the proposed rule to designate critical habitat (73 FR 52084; September 8, 2008) and in the final biological report (NMFS 2009a) prepared in support of this final rule.

Summary of Comments and Responses

We requested comments on the proposed rule to designate critical habitat for the Southern DPS of green sturgeon (73 FR 52084; September 8, 2008) and on the supporting documents (

i.e.,

the draft biological report, draft economic analysis report, and draft ESA section 4(b)(2) report). 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 accepted via standard mail, fax, or through the Federal eRulemaking Portal. In response to requests from the public, the original 60-day public comment period was extended an additional 45 days (73 FR 65283; November 3, 2008), ending on December 22, 2008. A public workshop was held in Sacramento, CA, on October 16, 2008, and attended by 21 participants, including researchers and representatives from industries and Federal, State, and local agencies. The draft biological report and draft

economic analysis report were also each reviewed by three peer reviewers.

Thirty-nine written public comments were received on the proposed rule and supporting documents from Federal agencies, State agencies, local entities, non-governmental organizations, Tribes, and industry representatives. Seven comments generally supported the proposed rule, 29 comments did not agree with the designation of critical habitat in particular areas, and 3 comments provided additional information but did not support or oppose the proposed rule. Several commenters requested that certain particular areas or specific areas be considered ineligible for designation because they do not meet the definition of critical habitat. Several commenters also requested exclusion of areas based on economic impacts, impacts on national security, or impacts on Indian lands. Additional data were provided to inform the biological and economic analyses, as well as comments regarding the methods used in these analyses. NMFS considered all public and peer reviewer comments. A summary of the comments by major issue categories and the responses thereto are presented here. Similar comments are combined where appropriate.

Physical or Biological Features Essential for Conservation

Comment 1:

Several commenters felt that the critical habitat designation is not supported by the relatively sparse data and that the physical or biological habitat features or primary constituent elements (PCE) identified for green sturgeon are too general and vague, such that no habitat would exist without them. One commenter noted that the level of detail provided on the PCEs in the supplementary information section of the proposed rule is greater than the level of detail provided in the regulatory text section of the proposed rule.

Response:

The critical habitat designation was developed using the best available scientific data, as required by the ESA. We recognize that uncertainties exist and have noted where they occur in the final rule and supporting documents. When appropriate, we incorporated additional data provided by the public comments regarding the PCEs, the biological evaluation, and the economic analysis. The level of specificity of the PCEs was consistent with that provided in previous critical habitat designations (

e.g.,

for West coast salmon and steelhead evolutionarily significant units (ESU) and Southern Resident killer whales). In addition, specific ranges of values for the PCEs cannot be provided (

e.g.,

water flow levels, adequately low contaminant levels), because the data are not currently available and because these values may vary based on the location, time of year, and other factors specific to an area. The level of detail provided in different sections of the proposed rule differs because the regulatory text section typically provides a more brief description of the PCEs, whereas the supplementary information section typically provides a more thorough description. The supplementary information section and the supporting documents provide additional details to describe the process of the critical habitat designation and the biological and economic analyses that were conducted in support of the designation, whereas the regulatory text reports the final designation.

Comment 2:

One commenter requested clarification regarding how acceptably low levels of contaminants would be determined on a case-by-case basis (as it pertains to the water quality and sediment quality PCEs). Specifically, the commenter asked whether case-by-case meant that this would be determined for each Permittee/Project (and if so, what would be the basis for differentiation) or by contaminant (and if so, how this would be determined and disseminated to the public).

Response:

Consultations under section 7 of the ESA on contaminants may be conducted on a case-by-case basis for each project or by contaminant, depending on the scope of the consultation. NMFS has typically dealt with consultations for contaminants, such as pesticides, on a project-by-project basis. These consultations have generally resulted in recommended measures to avoid exposure of the listed species to the contaminants in question, for example, by spatially or temporally limiting the introduction of the contaminant into waterways occupied by the species. However, the recommended measures are site-specific and will vary depending on the site, the contaminant(s) in question, the type of use, the purpose of the project, and the species potentially affected. NMFS recently conducted two consultations on the national level with the Environmental Protection Agency (EPA) addressing the registration of pesticides containing carbaryl, carbofuran, and methomyl (NMFS 2009b) and pesticides containing chlorpyrifos, diazinon, and malathion (NMFS 2008a). In both consultations, NMFS issued a biological opinion finding that the registration of these pesticides would jeopardize the continued existence of most listed salmonids and adversely modify critical habitat. The reasonable and prudent alternatives provided to the EPA recommended labeling requirements that specify criteria for the use and application of the pesticides, including no-application buffer zones adjacent to salmonid habitat, restrictions on application during high wind speeds and when a rain storm is predicted, reporting of any fish mortalities within four days, and implementation of a monitoring plan for off-channel habitats. To the extent the alternatives minimize entry of pesticides into water bodies and result in better information, green sturgeon and other aquatic species will benefit.

Comment 3:

One commenter provided additional information from recent studies indicating that green sturgeon are more sensitive to methylmercury and selenium (two contaminants found in sediments) than white sturgeon (Kaufman

et al.

2008). The commenter noted that the studies were unable to determine a “no effect” concentration for selenomethionine for green sturgeon, a contaminant found in bays including the San Francisco, San Pablo, and Suisun bays and the Sacramento-San Joaquin Delta (hereafter, the Delta). The commenter stated that it may be unlikely that many areas will qualify as having the sediment quality PCE as it is described in the proposed rule.

Response:

We appreciate the updated information regarding the sensitivity of green sturgeon to contaminants and have incorporated this information into the final rule and biological report. We recognize the concern expressed by the commenter that few, if any, areas have sediments free of elevated levels of contaminants (

i.e.,

levels at which green sturgeon are not negatively affected). This brings up two issues. First, whether this affects the eligibility of the specific areas considered for designation. Because all of the proposed areas containing the sediment quality PCE also contained at least one other PCE, the eligibility of the specific areas is not affected. Related to this is the question of whether a PCE can be considered to exist within an area if it has been altered and degraded by past, current, or ongoing activities. The ESA's definition of critical habitat focuses on PCEs that may require special management considerations or protection. Thus, the ESA recognizes that the PCEs may exist at varying levels of quality and allows for the consideration of PCEs that have been or may be altered or degraded. Second, this brings up the question of how this PCE will be addressed in consultations under section 7 of the ESA. The

specifics of each consultation would vary depending on each project, but would likely focus on measures to control the introduction of selenium into the environment. The Sacramento River basin is naturally very low in selenium and little selenium enters the watercourses from the surrounding watershed. Conversely, the San Joaquin River basin, due to the geology of the west side of the valley and the human agricultural practices conducted in this region, create conditions of elevated selenium in the waters of the basin draining the west side and running through the valley floor towards the Delta. It should also be recognized that selenium is a micronutrient which is necessary for life, though toxic at levels above trace amounts. Continued monitoring of selenium levels in sediments and research on the sensitivity of green sturgeon to this and other contaminants would be supported.

Geographical Area Occupied by the Species

Comment 4:

One commenter stated that the range of the Southern DPS needs to be clarified as previous publications in the

Federal Register

do not clearly define the range. Another commenter stated that the final decision to list the Southern DPS as threatened under the ESA only applied the listing to the population in California and that, although Southern DPS green sturgeon move into the Northern DPS' range outside California, the protections under the listing do not apply to Southern DPS fish once they enter the Northern DPS' range. The commenter felt that NMFS should not designate Oregon and Washington rivers and marine waters as critical habitat if the species is not listed in these areas.

Response:

We acknowledge that in the final listing rule and the corresponding regulatory language at 50 CFR 223.102(a)(23), it is stated, “Where listed: USA, CA. The southern DPS includes all spawning populations of green sturgeon south of the Eel River (exclusive), principally including the Sacramento River green sturgeon spawning population.” This statement limits the listing to the Southern DPS of green sturgeon, but does not limit the geographic range to which the listing applies. A Southern DPS green sturgeon is defined to originate from spawning populations south of the Eel River (

i.e.,

from the Sacramento River). Each individual Southern DPS fish carries the listing, and the protections afforded to it under the ESA, wherever it goes. In other words, a Southern DPS green sturgeon is listed as threatened and protected under the ESA no matter where that individual is found. Thus, Southern DPS green sturgeon are listed throughout their range, including waters north of California within the range of the Northern DPS.

NMFS recognizes that previous publications in the

Federal Register

have defined the range of Southern DPS green sturgeon with varying levels of specificity and that this may have resulted in confusion. The range of the Southern DPS is more clearly defined in the proposed critical habitat rule and in the draft biological report (NMFS 2008b). We restate this definition here to further clarify the definition and range of the Southern DPS of green sturgeon. The proposed critical habitat rule (73 FR 52084, September 8, 2008) and the draft biological report (NMFS 2008b) define the Southern DPS as consisting of populations originating from coastal watersheds south of the Eel River, with the only confirmed spawning population in the Sacramento River. The Northern DPS consists of populations originating from coastal watersheds northward of and including the Eel River, with the only confirmed spawning populations in the Klamath and Rogue rivers. Thus, the Northern DPS and the Southern DPS of green sturgeon are defined based on their natal streams. However, the ranges of the Northern DPS and Southern DPS are defined by the distribution of each DPS including and beyond their natal waters. Based on genetic information and telemetry data from tagged Southern DPS green sturgeon, the occupied geographic range of the Southern DPS extends from Monterey Bay, CA, to Graves Harbor, AK. Within this geographic range, the presence of Southern DPS green sturgeon has been confirmed in the following areas: Sacramento River, CA; lower Feather River, CA; lower Yuba River, CA; the Sacramento-San Joaquin Delta, CA; Suisun Bay, CA; San Pablo Bay, CA; San Francisco Bay, CA; Monterey Bay, CA; Humboldt Bay, CA; Coos Bay, OR; Winchester Bay, OR; Yaquina Bay, OR; the lower Columbia River and estuary; Willapa Bay, WA; Grays Harbor, WA; the Strait of Juan de Fuca, WA; Puget Sound, WA; and Graves Harbor, AK (

see

final biological report (NMFS 2009a) for references for each area). Northern DPS and Southern DPS green sturgeon co-occur across much of their occupied ranges, are not morphologically distinguishable, and, based on the best available data at this time, do not appear to differ in temporal or spatial distribution within areas where their ranges overlap. Thus, within areas where the Southern DPS has been confirmed, protections for the Southern DPS would apply to all green sturgeon based on similarity of appearance. The critical habitat designation recognizes not only the importance of natal habitats, but of habitats throughout their range for the conservation of Southern DPS green sturgeon.

Comment 5:

One commenter stated that the genetic analysis does not provide sufficient information to determine the presence or absence of Southern DPS green sturgeon in the bays and estuaries on the Oregon coast.

Response:

To determine the presence of Southern DPS green sturgeon in an area, a critical habitat review team (CHRT), comprised of 9 Federal biologists from various agencies, primarily relied on the best available information from tagging studies. Monitoring of tagged Southern DPS green sturgeon has confirmed their use of several coastal bays and estuaries from Monterey Bay, California, north to Puget Sound, Washington (Moser and Lindley 2007; Lindley

et al.

2008; pers. comm. with Steve Lindley, NMFS, and Mary Moser, NMFS, February 24-25, 2008). Therefore, presence has already generally been established based on the tagging data. The available genetic data supports the tagging data by assigning or confirming the DPS of individuals (

e.g.,

assigning individuals caught in non-natal waters to the Northern DPS or Southern DPS) and has also been useful in estimating what proportion of green sturgeon observed in non-natal estuaries belong to the Southern DPS. In addition, the genetic data would provide supplemental presence information once the data set is large enough to ensure detection of Southern DPS fish, particularly if the estuary or bay has a low frequency of use.

Comment 6:

One commenter requested that additional telemetry data regarding green sturgeon use of coastal marine waters at Siletz Reef and Seal Rock Reef off the coast of Oregon be incorporated into the final biological report and considered in the final critical habitat designation. The commenter also requested that additional information be included to support the designation of coastal marine waters from 0 to 20 m depth and from 90 to 110 m depth.

Response:

NMFS is currently analyzing the data on green sturgeon detections off the Oregon coast. Preliminary results indicate that green sturgeon use deeper depths (between 40 to 80 m) more than shallower depths, but reasons for this observation are not known. Detection data for shallower depths may be affected by noise. However, because these data represent

only two areas along the Oregon coast, it may not be appropriate to extrapolate these observations to other areas along the West coast. Other available data indicate that green sturgeon occur throughout all depths from 0 to 110 m depth. Some green sturgeon have been caught deeper than 110 m depth, but the majority occur in waters shallower than 110 m depth (Erickson and Hightower 2007).

Specific Areas

Comment 7:

Two commenters felt that the areas proposed for designation as critical habitat were too broad. One commenter stated that NMFS failed to show that the areas are essential for conservation of the Southern DPS. Another commenter suggested that the areas be refined based on the spatial and temporal presence of the PCEs. For example, the commenter stated that riverine areas designated as critical habitat for spawning purposes should be designated only if actually used for spawning and only during the time of year that spawning occurs, because areas spatially or temporally outside of this would not contain the PCEs for spawning. The commenter stated that such refinement would help ensure that the designation is not applied in an overly restrictive manner to activities that occur in areas where no green sturgeon spawn and that this reasoning can be applied to other PCEs and habitat uses.

Response:

The joint NMFS/U.S. Fish and Wildlife Service (USFWS) regulations regarding the designation of critical habitat focus on the primary biological or physical constituent elements (PCEs) that are essential to the conservation of the species. The ESA states that an area qualifies as critical habitat if it is occupied and has one or more PCE(s) that may require special management considerations or protection. Specific areas are eligible for designation if they meet these criteria. Neither the ESA definition of critical habitat nor the joint NMFS/USFWS regulations require that critical habitat be designated only within the most important core habitats of the species.

In addition, the ESA focuses on the spatial presence of the PCEs, but does not mention the temporal presence of the PCEs. The level of refinement described by the commenter is typically considered during the consultation process under section 7 of the ESA, not during the critical habitat designation process. Consistent with ESA section 7 consultation practices, spatial and temporal considerations are commonly assessed during the impact analysis of the proposed action. While temporal considerations generally look at impacts to individual fish (

i.e.,

avoidance of exposure as inferred by work windows), actions can, and often do, affect the habitat that fish use or occupy after the action is completed. The commenter's example of spawning areas does not address what potential impacts the “action” may have on the quality of the spawning area after the action is completed. Actions that temporally avoid areas of use (

i.e.,

spawning activities on the spawning grounds) during the implementation of the action may still impact the use of the area after the action is completed. For example, installing bridge piers upstream of a spawning area still impacts the spawning area after-the-fact through road runoff entering the river channel from the bridge, traffic vibrations being transmitted through the column into the substrate of the river channel during “normal use,” and sedimentation from roadway runoff and altered riparian habitat. Furthermore, actions that do not occur exactly in the same place as the area of concern may nonetheless still affect the area of concern. For example, wastewater discharge upstream of a spawning area can generate an effluent plume that travels downstream to spawning areas, and reservoir releases occurring upstream may affect water flow, velocity, and temperature in the area of concern. Thus, details such as the specific activities being conducted, the location, and the spatial and temporal scale are considered in order to determine the potential effects of the activity on critical habitat and, ultimately, whether the activity is likely to destroy or adversely modify critical habitat. Then a determination is made of what, if any, additional actions or modifications to the proposed action will need to be implemented to provide protection to the species and their designated critical habitat. The section 7 consultation process allows NMFS to address the action's impacts on a case-by-case basis and incorporate the appropriate level of analysis as needed. A categorical exemption would not allow this level of review to occur and in fact would diminish the ability to consistently and accurately assess action impacts and adjust actions to fit the current status of the species and the condition of the critical habitat used by the species.

Comment 8:

One commenter suggested that the shoreward boundary for coastal marine habitats should extend to the line of mean lower low water (MLLW) instead of extreme high tide, and that the seaward boundary of 110 m depth should be rounded to the 60 fm contour line.

Response:

The CHRT, a team of Federal biologists who conducted the biological analysis, considered and agreed with the recommendations. The area between the MLLW line and the extreme high tide line along the coast is small and likely not occupied by green sturgeon. Whereas studies indicate that intertidal zones within estuaries and protected bays are important habitat for green sturgeon, green sturgeon likely do not occupy shallow intertidal areas or high energy surf zones along the open coast. The CHRT compared the MLLW line along the coast with the extreme high tide line and found that the area that would be excluded by defining the shoreward boundary using the MLLW line would be small and would not contain any areas identified to be important for green sturgeon. Thus, the CHRT agreed to extend the coastal marine areas to the area inundated by mean lower low water, rather than to the extreme high tide. The CHRT also agreed to round the 110 m depth contour line to the 60 fm contour line, because the 60-fm contour is already described in Federal regulations for the West Coast groundfish bottom trawl fishery and is approximately equal to 110 m (60 fm = 109.7 m).

Comment 9:

Several comments were received regarding the proposed designation of the lower Columbia River estuary. The commenters felt that the geographic definition of the estuary used was too broad and that the boundary for the estuary in the lower Columbia River should be defined by the maximum extent of saltwater intrusion, which was defined by one commenter to occur at RKM 64 and another commenter to occur at RKM 74. The commenters recommended that the Willamette River and the lower Columbia River from RKM 64 or RKM 74 to Bonneville Dam should be excluded from the designation. One commenter asserted that there are no data indicating that green sturgeon captured above Columbia RKM 64 are part of the Southern DPS, and that because recent green sturgeon tagging data indicate that Northern DPS green sturgeon occupy more interior habitats in the Columbia River estuary than Southern DPS green sturgeon, a smaller critical habitat area for the Columbia River estuary is justified.

Response:

In the proposed rule, the specific area in the lower Columbia River estuary was defined as the area from the river mouth to the Bonneville Dam (RKM 146). The CHRT considered the comments received and agreed that this specific area should be divided into

two specific areas as follows: (1) The lower Columbia River estuary from the river mouth to RKM 74; and (2) the lower Columbia River from RKM 74 to the Bonneville Dam (RKM 146). This division was based on differences in environmental parameters and green sturgeon use and presence between the lower estuary (river mouth to RKM 74) and the lower river (RKM 74 to Bonneville Dam). River kilometer 74 marks the approximate location of the maximum extent of saltwater intrusion into the lower Columbia River and has been used in other reports as the location to divide the lower estuary and tidal freshwater (Johnson

et al.

2003). Commercial gillnet harvest data for green sturgeon from 1981-2004 (Washington Department of Fish and Wildlife (WDFW) 2007, ESA informal consultation) indicate the greatest numbers of green sturgeon catch in zone 1 (RKM 1-32; 29,124 green sturgeon harvested) and zone 2 (RKM 32-84; 8,082 green sturgeon harvested). Green sturgeon catch declines sharply upstream of RKM 84, with a total of 290 green sturgeon caught in zones 3-5 (RKM 84-227) from 1981-2004. Observations by WDFW and Oregon Department of Fish and Wildlife (ODFW) also indicate concentrations of green sturgeon in the lower estuary with fewer numbers moving upstream. Unpublished telemetry data support these observations, showing greater numbers of detections of both Southern DPS and Northern DPS green sturgeon in the lower portion of the estuary compared to the upper portion (pers. comm. with Mary Moser, NMFS, February 25, 2009). However, because the most upstream monitor location is at RKM 74, the telemetry data provide data on the distribution of tagged Southern DPS and Northern DPS fish within the lower estuary but do not provide data on the movement and distribution of tagged green sturgeon upstream of RKM 74. Tagged Southern DPS green sturgeon have been detected at the monitor at RKM 74 and are able to access the lower Columbia River upstream of RKM 74, though data are not available to determine the number of Southern DPS green sturgeon moving upstream of RKM 74 or the relative levels of Southern DPS and Northern DPS fish in this area. Based on information provided in the public comments indicating that green sturgeon have not been observed in the lower Willamette River, the CHRT agreed that the Willamette River should not be included in the areas considered for designation. Thus, the specific area delineated in the lower Columbia River from RKM 74 to the Bonneville Dam does not now include the Willamette River. The CHRT's evaluation of the two specific areas resulted in a conservation value rating of High for the lower Columbia River estuary from the river mouth to RKM 74 and a conservation value rating of Low for the lower Columbia River from RKM 74 to RKM 146 (

see

response to Comment 14 and the section titled “Methods for Assessment of Specific Areas” for an explanation of how the conservation value ratings were determined). The final biological report (NMFS 2009a) provides additional information about the CHRT's evaluation of each specific area.

Comment 10:

One commenter recommended that South San Francisco Bay be considered a separate area from Central San Francisco Bay and that South San Francisco Bay should be excluded from the designation because use of the area by green sturgeon is moderate and it is not needed for any life history stage that is not supported by the northern reach of the Bay.

Response:

The CHRT acknowledged that Central San Francisco Bay and South San Francisco Bay can be distinguished by different environmental and oceanographic features. However, these differences likely do not affect green sturgeon use of the areas. The best available catch data for the San Francisco Bay indicate that comparably low numbers of green sturgeon have been caught in both Central and South San Francisco Bay. In 2006, a local sport fishing group reported 2 green sturgeon caught in Central San Francisco Bay, 3 caught in South-Central San Francisco Bay, and 4 caught in South San Francisco Bay (pers. comm. with Pete Davidson, Coastside Fishing Club, May 31, 2006). The total green sturgeon catch in the sport fishery for 2006 is not known, because sturgeon report cards were not required in California until March 2007 (Gleason 2007). Low numbers of green sturgeon were caught in CDFG's otter trawl (1980 to 2004) and midwater trawl (1980 to 2001) surveys in the bays and the Delta (Delta: n = 19; Suisun Bay/Carquinez Strait: n = 27; San Pablo Bay: n = 9; Central San Francisco Bay: n = 8; South San Francisco Bay: n = 2) (Jahn 2006). It is important to note that the surveys and sampling gear were not designed to target green sturgeon, and thus the data may not be truly representative of the relative levels of green sturgeon use among the bays and the Delta. For example, given that all green sturgeon must migrate through Central San Francisco Bay in their migrations to and from the ocean, much larger numbers of green sturgeon catch would be expected in this area. In addition, the catch data do not provide information about the distribution of juvenile green sturgeon throughout the bays and the Delta. Based on the best available information, juvenile green sturgeon are believed to distribute widely throughout the bays and Delta for feeding and rearing and are present in all months of the year (Ganssle 1966, CDFG 2002, Bay Delta and Tributaries Project 2005). Thus, the CHRT determined that the best available information does not support dividing the specific area in San Francisco Bay into Central San Francisco Bay and South San Francisco Bay, and reconfirmed that this specific area has a High conservation value for the Southern DPS (

see

response to Comment 14 and the section titled “Methods for Assessment of Specific Areas” for an explanation of how the conservation value ratings were determined). Based on the CHRT's assessment of San Francisco Bay, NMFS determined that this area should be included in the final critical habitat designation. Studies focused on green sturgeon, particularly on the juvenile life stages, would help address the data gaps and inform ESA section 7 consultations resulting from this critical habitat designation as well as future revisions to the designation.

Comment 11:

One commenter recommended consideration of Nehalem Bay, Oregon, as a specific area and designation of critical habitat in Tillamook Bay, Oregon. Sport fish catch from 1986 to 2007 indicate that 279 green sturgeon were taken in the fishery in Tillamook Bay (corrected catch data provided via pers. comm. with Mary Hanson, ODFW, July 16, 2009). The habitat in Tillamook Bay is comparable to other Oregon Bays and estuaries, and genetic analyses have not excluded the presence of southern DPS green sturgeon. Nehalem Bay was not considered in the designation and had a sport fish catch record of 254 green sturgeon from 1986 to 2007 (corrected catch data provided via pers. comm. with Mary Hanson, ODFW, July 16, 2009). Another commenter stated that a tagged Southern DPS green sturgeon was detected in Yaquina Bay, Oregon, in May 2006 and recommended that the biological report be revised to state that the presence of the Southern DPS in this area is confirmed.

Response:

Based on the additional green sturgeon catch and telemetry data provided by the commenters, the CHRT added Nehalem Bay as a new specific area to be considered and re-evaluated Tillamook Bay and Yaquina Bay. The

CHRT assigned Nehalem Bay a Medium conservation value rating based on the large number of green sturgeon captured from 1986 to 2007 and its location between Tillamook Bay and the Columbia River. The CHRT also assigned Tillamook Bay a Medium conservation value rating (compared to its previous Low conservation value rating), based on the large number of green sturgeon captured in this bay from 1986 to 2007 and information indicating that Tillamook Bay contains suitable depths for green sturgeon. The CHRT assigned Yaquina Bay a Low conservation value rating, which was the same rating given previously. The CHRT then considered whether Southern DPS presence has been confirmed within the areas. If Southern DPS green sturgeon presence is likely, but not yet confirmed, the conservation value rating was reduced by one level. Because Southern DPS green sturgeon have not yet been confirmed in Nehalem Bay and Tillamook Bay, the conservation value ratings were reduced to Low. Because Southern DPS green sturgeon have been confirmed in Yaquina Bay, the conservation value rating stayed at Low and was not reduced to Ultra-Low. These ratings were then used as the final conservation value ratings for the areas. The final biological report provides more information about the CHRT's evaluation of Nehalem Bay and re-evaluation of Tillamook Bay and Yaquina Bay. Ultimately only Tillamook Bay was excluded because the benefits of exclusion outweigh the benefits of designation.

Comment 12:

Two commenters felt that the Umpqua River may warrant designation because green sturgeon occur in this river, and it was identified as a potential spawning river in the 2005 status review.

Response:

The CHRT evaluated Winchester Bay, the estuary at the mouth of the Umpqua River, as a specific area eligible for designation as critical habitat. The Southern DPS consists of green sturgeon originating from coastal watersheds south of the Eel River, CA (currently, the only confirmed spawning river is the Sacramento River, CA). The Northern DPS consists of green sturgeon originating from coastal watersheds north of and including the Eel River, CA (confirmed spawning rivers are the Klamath River, CA, and Rogue River, OR). As described in the proposed rule and biological report, NMFS defined the Southern DPS' occupied range to include coastal bays and estuaries upstream to the head of the tide in areas north of and including the Eel River. In waters north of and including the Eel River, green sturgeon occurring upstream of the head of the tide are presumed to belong to the Northern DPS because it is unlikely that Southern DPS green sturgeon would venture further into non-natal streams beyond the head of tide. Thus, green sturgeon observed in the Umpqua River upstream of the head of tide are presumed to be Northern DPS fish. Genetic analyses have confirmed the presence of Southern DPS green sturgeon in Winchester Bay and Umpqua River, but the tissue samples were collected downstream of the head of tide on the Umpqua River (between RKM 6.4 and 19.3). Thus, the available genetic data also do not provide information on the presence of Southern DPS green sturgeon in the Umpqua River upstream of the head of tide (pers. comm. with Josh Israel, University of California, Davis (UC Davis), July 10, 2009). The Umpqua River was therefore not identified as an area occupied by the Southern DPS.

Comment 13:

One commenter felt that Chinook salmon should be used as a surrogate species in place of white sturgeon, because green sturgeon do not have populations that are isolated from the sea. The commenter presented a Chinook salmon-based conceptual model for the life history of green sturgeon in San Francisco Bay, which indicated that, like Chinook, juvenile green sturgeon most likely migrate from the San Francisco Bay as soon as possible to coastal marine waters where food is abundant for feeding and growth.

Response:

The CHRT considered the Chinook salmon-based conceptual model. The CHRT noted that, while green sturgeon may share some similarities with Chinook salmon with regard to habitat use and needs, the best available data indicate there are several important differences between the life history and distribution of green sturgeon and Chinook salmon that limit the application of the Chinook salmon-based conceptual model to green sturgeon. Unlike Chinook salmon, green sturgeon will transit through the San Francisco Bay and Delta complex several times during their lifetime. Laboratory studies indicate that Chinook salmon juveniles may occupy fresh to brackish waters at any age, but do not completely transition to salt water until about 1.5 years of age. Studies in the Klamath River show that juvenile green sturgeon rear in fresh and estuarine waters for 1 to 4 years before dispersing into salt water, at lengths of about 300 to 750 mm. Although there have been few studies on juvenile green sturgeon distribution throughout the San Francisco Bay, the available data indicate that juvenile green sturgeon also rear in the area's bays and estuaries for 1 to 4 years before migrating out to coastal marine waters as subadults. Residence times in the Delta appear to be variable, based on the temporal frequency of juvenile fish recovered at the fish salvage facilities of the Central Valley Project and State Water Project and the data collected from both the 2007 and 2008 sturgeon report cards from CDFG (Gleason 2008). Green sturgeon can be found in any month of the year, and apparently multiple year classes are present in the Delta based on the size distribution of catches, although for green sturgeon few fish were actually measured (sizes ranged from 12 inches to 68 inches, 19 fish measured out of 240 reported caught; Gleason 2008). Based on the 2008 report cards, adult green sturgeon were caught by sport fishermen in every season of the year in the Delta and in the Sacramento River (from Rio Vista to Chipps Island and from Red Bluff to Colusa). This year-round presence of adult and juvenile green sturgeon in the Central Valley differs from the typical Chinook salmon life history as described by the commenter's conceptual model, in which juveniles rear in freshwater prior to migrating to the San Francisco Bay estuary, through which they move rapidly to get to marine waters, where conditions are better for feeding and growth. In addition, subadult and adult green sturgeon migrate throughout the West coast from southern California to Alaska, and are known to occupy oversummering habitats in coastal bays and estuaries from northern California to Washington (including Humboldt Bay, Coos Bay, Winchester Bay, the lower Columbia River estuary, Willapa Bay, and Grays Harbor) for weeks to months to feed during multiple summers over the course of their lives. In contrast, Chinook salmon generally use estuaries only at the beginning and end of their ocean residence (Quinn 2005). Unlike green sturgeon, they spend their summers in the ocean and do not rely nearly as heavily on estuarine habitats over their lifespans.

Biological Evaluation of Conservation Value

Comment 14:

One commenter stated that the qualitative approach used by the CHRT to assess the biological conservation benefits of designation was not adequate because the approach did not provide an objective estimate of the relative conservation benefit of including a specific area or a clear standard to compare with the estimated economic impacts. The commenter

noted that the approach did not contain an estimate of the species' current population level, the increase in survival or abundance expected from the designation of critical habitat, or an estimate of the economic or monetary value of the conservation benefits.

Response:

The ESA requires that a critical habitat designation be based on the best available scientific data. Data are not available regarding the current absolute population abundance of the Southern DPS or green sturgeon in general. Data are also not available to estimate the monetary value of the conservation benefits of designation and thereby make a direct comparison to the economic impacts of designation. In the absence of these data, a qualitative conservation value rating approach was developed to evaluate the conservation benefits of designation. The approach incorporated the best available data and allowed for consideration of the best professional judgment of the CHRT. The conservation value ratings (High, Medium, Low, Ultra-low) provided a relative measure of the benefits of designation for each specific area, at a level appropriate for the level of data available. This approach has been used in critical habitat designations for salmonids and has been recognized as an appropriate alternative where data are not available to monetize the benefits of designation.

Comment 15:

One commenter recommended that further evaluation of whether green sturgeon use particular coastal estuaries and their habitat value be conducted prior to designation of these areas as critical habitat. The commenter focused on the coastal estuaries considered for designation in Oregon, stating that the proposed rule did not provide information regarding the use or extent of use by green sturgeon in these areas or the habitat value of these areas to green sturgeon. Specifically, the commenter stated that: (1) The genetic analyses do not provide sufficient information to determine the presence of Southern DPS green sturgeon in Winchester Bay and more sampling is needed; (2) it is not clear whether tissue samples collected for genetic analyses were taken from green sturgeon in Winchester Bay or in the Umpqua River and the results regarding the proportion of Southern DPS green sturgeon in the area may be affected by sample size; (3) it is not clear why the Rogue River was excluded, but Coos Bay was not; and (4) reasons for the designation of Yaquina Bay and the exclusion of Tillamook Bay and the Siuslaw River estuary are not clear.

Response:

We agree that additional studies are needed to address information gaps regarding the extent of use of coastal estuaries by Northern DPS and Southern DPS green sturgeon and to better understand the habitat function and value of these areas for the species. However, the ESA requires that NMFS use the best available scientific and commercial data to designate critical habitat within specific statutory timelines. Thus, in the face of uncertainty and varying levels of information available for different areas, NMFS relied on the best available information and used its best professional judgment where data were lacking or uncertainty was great.

To evaluate specific areas considered for designation as critical habitat, the CHRT considered both the use of each area by green sturgeon and the value of the habitat to green sturgeon. Specifically, the CHRT evaluated the presence and condition of the PCEs, the habitat functions provided, and the life stages of green sturgeon confirmed or most likely to occur there. To confirm the presence of the PCEs, the CHRT used the presence of green sturgeon, along with the best available habitat data. To evaluate the relative habitat value of each area, the CHRT considered the abundance of green sturgeon along with the best available data on the life stages and uses supported, the consistency of use, and the temporal and spatial distribution of green sturgeon within an area. To determine the extent to which Southern DPS green sturgeon used an area, and the relative value of each area to the Southern DPS, the CHRT used the best available tagging and genetic data. The CHRT's analyses and the data used are summarized in this final rule and described in greater detail in the final biological report (NMFS 2009a). In the following paragraph, we summarize the relevant information in response to the comments on specific coastal estuaries in Oregon.

First, the presence of Southern DPS green sturgeon within coastal estuaries in Oregon was primarily confirmed by telemetry data and supported by genetic data, where available. For Winchester Bay, genetic tissue samples were collected between RKM 6.4 and 19.3, which is downstream of the head of tide in Umpqua River (head of tide = RKM 40) and within the boundaries of the specific area delineated for the bay (pers. comm. with Josh Israel, UC Davis, July 10, 2009; pers. comm. with Pete Baki, ODFW, July 17, 2009). It is possible that the sample size affected the analysis of the proportion of Southern DPS green sturgeon in the bay, but that does not negate the use of these data to confirm the presence of Southern DPS fish in this area. The CHRT assigned Winchester Bay a Medium conservation value rating based on high use of the area by green sturgeon and the presence of suitable habitat features (

see

final biological report, NMFS 2009a).

Second, certain coastal estuaries in Oregon were excluded from the designation because the economic benefits of exclusion outweighed the conservation benefits of designation. Coastal estuaries in Oregon are primarily occupied by green sturgeon during the summer and contain PCEs (including prey resources, water quality, and migratory corridors) that support feeding and aggregation of subadult and adult green sturgeon. During the public comment period, additional data were provided by the ODFW regarding green sturgeon sport catch records in coastal Oregon estuaries. These data were used to update the data reported in the draft biological report (NMFS 2008b). The data were considered by the CHRT and incorporated into the final rule and biological report (

see

response to Comment 11). The data indicate that from 1986 to 2007, the largest numbers of green sturgeon were caught in Winchester Bay (n = 1,889), Tillamook Bay (n = 279), and Nehalem Bay (n = 254), followed by Coos Bay and Yaquina Bay (n = 201) (ODFW 2009a, b). Southern DPS green sturgeon tagged in the Sacramento River and San Pablo Bay have been detected in Coos Bay, Winchester Bay, and Yaquina Bay (pers. comm. with Steve Lindley, NMFS, and Mary Moser, NMFS, February 24-25, 2008; pers. comm. with Dan Erickson, ODFW, September 3, 2008). The CHRT initially assigned a Medium conservation value to Winchester Bay, Coos Bay, Tillamook Bay, and Nehalem Bay, based on data indicating consistent use by and relatively large numbers of green sturgeon in these estuaries. However, the conservation value for Tillamook Bay and Nehalem Bay was reduced by one level to Low, because there was no evidence to confirm that any green sturgeon in those areas belong to the Southern DPS. Although Southern DPS presence has been confirmed in Yaquina Bay, the CHRT assigned the area a Low conservation value (NMFS 2009a). Finally, the estuaries at the mouths of the Siuslaw and Alsea rivers were assigned a Low conservation value based on relatively low numbers of green sturgeon recorded in the sport catch data (sport catch = 50 green sturgeon in Siuslaw estuary and 30 green sturgeon in Alsea estuary from 1986 to 2007; ODFW 2009a, b). The conservation value was reduced to an

Ultra-low because we lack data to confirm the presence of Southern DPS green sturgeon in these estuaries.

Under section 4(b)(2) of the ESA, NMFS has the discretion to exclude an area from the designation if the benefits of exclusion outweigh the benefits of designation. Tillamook Bay, Siuslaw River estuary, Alsea River estuary, Coos Bay, and the Rogue River estuary were all determined to be potentially eligible for exclusion under ESA section 4(b)(2) based on economic impacts. All of these, except for Coos Bay, were excluded based on NMFS' determination that the economic benefits of exclusion outweighed the conservation benefits of designation. Although data demonstrate that the Rogue River estuary is consistently used by large numbers of green sturgeon, the area was assigned an Ultra-Low conservation value because the best available data indicate that the green sturgeon observed there belong to the Northern DPS. Thus, the designation of critical habitat in the Rogue River estuary would not likely benefit the conservation of the Southern DPS. Coos Bay was not excluded, because the data indicate consistent use by relatively large numbers of green sturgeon that include Southern DPS fish. The CHRT determined that protection of Coos Bay as critical habitat is important for the conservation of green sturgeon, and exclusion of Coos Bay would significantly impede conservation. Based on the CHRT's recommendation, NMFS determined that the economic benefits of exclusion do not outweigh the conservation benefits of designation for Coos Bay and included Coos Bay in the final critical habitat designation. We recognize that the level of data available varies across areas and may affect the evaluation of these areas. We encourage additional studies of green sturgeon distribution in, and use of, coastal estuaries to inform NMFS' consultations under section 7 of the ESA, recovery planning and implementation, and future revisions to the critical habitat designation for the Southern DPS.

Comment 16:

One commenter noted that many of the coastal marine and estuarine areas proposed for designation as critical habitat are already altered habitats, wanting NMFS to recognize that routine, regular maintenance activities (including maintenance dredging of navigation channels) are conducted within these areas by the U.S. Army Corps of Engineers to support ongoing multi-purpose projects.

Response:

NMFS acknowledges that many of the coastal marine and estuarine areas proposed for designation as critical habitat contain habitats that have been altered by past and ongoing activities. These past and ongoing activities have likely affected the PCEs within each area, but have not degraded the PCEs such that they no longer exist within the areas. The continued presence and use by green sturgeon of each area indicate that the PCEs exist and still provide habitat functions to support the species. In addition, the presence of regular routine maintenance indicates that the PCEs within the coastal marine and estuarine areas may require special management considerations or protection.

Comment 17:

One commenter noted that the proposed rule incorrectly stated that green sturgeon present in estuaries of the Eel, Klamath/Trinity, and Rogue rivers are believed to belong to the Northern DPS, based on the fact that these are spawning rivers for the Northern DPS (73 FR page 52091, bottom of third column). The commenter requested clarification that green sturgeon spawning has not been confirmed in the Eel River.

Response:

We acknowledge this error in the proposed rule. The final rule corrects this error and states that green sturgeon present in estuaries of the Klamath/Trinity and Rogue rivers are presumed to belong to the Northern DPS because these are spawning rivers for the Northern DPS and no tagged Southern DPS green sturgeon have ever been detected in the estuaries. Green sturgeon in the Eel River estuary are presumed to belong to the Northern DPS based on the definition of the Northern DPS (which includes the Eel River). In 2008, a hydroacoustic array was installed in the Eel River estuary and detected one tagged Northern DPS green sturgeon. More data from tagging and genetics studies are needed to confirm whether or not Southern DPS green sturgeon occupy the Eel River estuary.

Comment 18:

Commenters requested additional information to be presented in the biological report, including: A table citing the references used to determine the presence of green sturgeon in each specific area; the results from the CHRT's three approaches for evaluating the conservation value of the species areas; and additional telemetry data and references provided by reviewers and commenters. Two commenters also noted an error in Table 5 of the draft biological report regarding the tally of conservation value rating votes for Grays Harbor, WA.

Response:

The final biological report incorporates the changes requested and the additional information provided by the peer reviewers and public comments. First, a table listing each specific area, the life stages of green sturgeon that are present, and the relevant references was added to the report. Second, the CHRT had used three different approaches for assigning conservation values to the specific areas, but only the results of the final method were reported in the draft biological report. The final biological report provides the results for all three approaches for comparison. Third, additional telemetry data and information regarding green sturgeon spawning in the Sacramento River were incorporated into the report and considered by the CHRT. Finally, corrections were made to the conservation value rating tally for Grays Harbor in Table 7 of the final biological report (formerly Table 5 in the draft biological report). Specifically, the draft biological report incorrectly reported 6 votes for Medium and 2 votes for Low conservation values. The correct tally was 6 votes for High and 2 votes for Medium conservation values.

Special Management Considerations

Comment 19:

One commenter stated that most of the 13 types of activities that potentially require special management are already regulated under existing environmental regulations that address effects on the PCEs. The commenter requested additional information to describe the cause/effect relationship between the PCEs and each of the 13 types of activities that potentially require special management.

Response:

This comment raises the concern of whether the specific areas considered for designation as critical habitat are eligible for designation. To be eligible for designation, the specific area must meet the definition of critical habitat. That is, the specific area must contain at least one PCE that may require special management considerations or protection. The focus of this comment is on whether the “special management considerations or protection” criterion is satisfied. Special management considerations or protection mean “any methods or procedures useful in protecting physical and biological features of the environment for the conservation of listed species” (50 CFR 424.02). In determining whether a specific area met the definition of critical habitat, the CHRT was asked to identify whether any PCE could be found in the specific area, whether there were any actions (either ongoing or anticipated) occurring in the area that may threaten the PCE(s), and whether there would be any methods or procedures useful in protecting the PCE(s). The CHRT based

their assessment on their knowledge of the areas and the PCEs and their experience conducting section 7 consultations or field research on green sturgeon in the areas. The CHRT was not asked to identify existing protections within each area, nor was the CHRT asked to evaluate whether existing protections were adequate. The existence of environmental regulations does not negate the fact that the PCEs within an area may require special management considerations or protection. Thus, the existence of environmental regulations that already regulate the activities of concern was not a factor to be considered by the CHRT in determining the eligibility of an area for consideration as critical habitat. Instead, the consideration of existing environmental regulations and other protections that address the PCEs is a question to be considered in the ESA 4(b)(2) analysis when weighing the benefits of exclusion against the benefits of designation. The final biological report was revised to include a more detailed description of the 13 types of activities that may require special management and how these types of activities may affect the PCEs.

Comment 20:

One commenter recommended that gravel augmentation should not be under the “in-water construction or alteration” category, but should be included in the “habitat restoration” category because there will be potential habitat benefits from gravel augmentation. Otherwise, the commenter noted that a large number of restoration activities should also be included in the “in-water construction or alteration” category. The commenter requested that in-water construction or alteration activities and habitat restoration activities be more clearly defined.

Response:

We revised the final rule and supporting documents to more clearly define in-water construction or alteration activities and habitat restoration activities. In-water construction or alteration activities include activities that involve the construction or maintenance of some physical in-water structure (

e.g.

, breakwaters, docks, piers, pilings, bulkheads, boat ramps, utility lines) or the alteration of physical in-water habitat features (

e.g.

, channel modification/diking, sand and gravel mining), including activities occurring outside of the water but that may affect in-water habitat (such as road building and maintenance, forestry, grazing, and urbanization that may lead to increased erosion and sedimentation). Habitat restoration activities are activities conducted for the primary purpose of restoring natural aquatic or riparian habitat conditions or processes. We agree that gravel augmentation can be included as a habitat restoration activity and have included it in this category in addition to the in-water construction or alteration activity category. We note, however, that gravel augmentation and other habitat restoration activities may have either positive or negative effects on critical habitat for green sturgeon, depending on the type of activity, location, time of year, scale, and other factors. For example, gravel augmentation could possibly fill in deep pools (greater than 5 meters in depth) used by green sturgeon for holding and spawning. These activities would be subject to requirements under section 7 of the ESA to address potential effects on critical habitat.

Comment 21:

Two commenters were concerned about the effect that invasive submerged aquatic vegetation may have on the physical or biological features essential for conservation in shallow water habitats and felt that this should be considered in the designation. One commenter also requested that the CHRT consider activities that may result in a large increase of erosion, including logging, gravel mining, and the use of recreational off-road vehicles near riparian areas, and their effects on present or future spawning streams.

Response:

The CHRT identified the introduction and spread of non-native species as a potential threat to the PCEs that may result in the need for special management considerations or protection. We recognize that invasive submerged aquatic vegetation, such as the

Egeria densa

mentioned by one commenter, may affect shallow waters by trapping sediments, forming thick mats that obstruct passage, and crowding out native vegetation. Activities that result in increased erosion were also considered by the CHRT under the “in-water construction or alterations” category. The final rule clarifies that activities that occur outside of designated critical habitat, including those conducted upstream, upland, or adjacent to designated critical habitat areas, can destroy or adversely modify critical habitat and would also be subject to requirements under section 7 of the ESA with regard to critical habitat. Therefore, the commenters' concerns have been addressed.

Comment 22:

Several commenters provided information on additional activities that should be considered which occur within the specific areas and that may threaten the PCEs.

Response:

We considered the information provided on additional activities and incorporated the information into the final rule and supporting documents. The changes include: (1) Feather River—added habitat restoration activities; (2) Yolo Bypass—added dams (Lisbon Weir and Fremont Weir), water diversions, pollution, and habitat restoration; (3) Sutter Bypass—added dams (weirs located in the toe drain), water diversions, pollution, habitat restoration, and in-water construction or alteration activities; (4) Sacramento-San Joaquin Delta—added dams (locks, weirs, and temporary barriers) and commercial shipping; (5) lower Columbia River estuary (from RKM 0 to 74)—the two LNG projects identified by the commenters were already considered in the proposed rule, however, based on public comments received, we divided the lower Columbia River and estuary into two specific areas (the lower Columbia River estuary from RKM 0 to 74 and the lower Columbia River from RKM 74 to 146;

see

response to comment 15) and the LNG projects were assigned to the lower Columbia River estuary specific area; and (6) coastal marine waters off Oregon—added 5 proposed wave energy projects.

Potential Effects of the Critical Habitat Designation on Activities

Comment 23:

One commenter requested that further clarification be given whether a Federal nexus exists for the commercial crab and pink shrimp State-managed fisheries that may trigger section 7 requirements. The commenter noted that consultation may also be required for bottom trawl fisheries conducted in coastal marine waters off Oregon.

Response:

Based on the information provided by the commenters and the current management regime at this time, NMFS does not believe that a Federal nexus exists for the commercial crab and pink shrimp State-managed fishery off Oregon. However, the fishery may be subject to the ESA section 4(d) rule for the Southern DPS of green sturgeon (proposed May 21, 2009, 74 FR 23822) if take of green sturgeon occurs in this fishery. NMFS is working with the Pacific Fishery Management Council (PFMC) to prepare for a consultation under section 7 of the ESA on the groundfish bottom trawl fishery conducted off California, Oregon, and Washington. The consultation would address impacts on green sturgeon critical habitat within coastal marine waters.

Comment 24:

Several commenters requested additional information on what changes might be recommended

for the California State Water Project (SWP) and the Central Valley Project (CVP) operations and how these areas may require special management.

Response:

The effects of the combined CVP and SWP operations on the Southern DPS were analyzed by NMFS in the recently issued Biological and Conference Opinion (2009 OCAP BO). The most conspicuous change to CVP operations is the operations of Red Bluff Diversion Dam (RBDD). Following the issuance of the 2009 OCAP BO, gates will remain open from September 1st through June 14th until May of 2012. By May 14th, 2012, the Red Bluff alternative intake pumps are anticipated to be operational. This will allow the Tehama-Colusa Canal Authority (TCCA) to divert sufficient water through screened pumps to meet its obligations without relying on the operations of the RBDD to back up water to supply its current gravity fed diversion. The operation of the screened pumps will allow for the decommissioning and eventual removal of the RBDD. During the interim period (2009 to 2012), screened pumps will be installed adjacent to the current location of the RBDD to divert sufficient volumes of water to meet TCCA needs through June 14th of each year. After June 14th, the RBDD gates will be lowered to back up river water and supply the gravity fed diversions. When the gates are operational, a minimum of 18 inches of clearance will be maintained beneath the radial gate to allow for downstream passage of adult green sturgeon. In addition, the TCCA and the Bureau of Reclamation will fund studies over the next 3 years specifically focused on green sturgeon to determine population size, movements of fish within the system, and habitat preferences and usage within the Central Valley. Within the Delta, reoperation of the Delta Cross Channel gates will result in closing the gates earlier to prevent emigrating fish from entering the Delta interior. Although primarily designed for salmonid protection, the closing of the gates may have some utility in protecting adult and juvenile green sturgeon emigrating during the same time period (better conditions in the Sacramento River migratory corridor versus less hospitable conditions within the Mokelumne River corridor). Likewise, export curtailments designed to benefit emigrating salmonids are expected to benefit juvenile green sturgeon and reduce their entrainment by the pumps during the periods of export reduction. Modifications to the fish salvage facilities to enhance the efficiency of the overall salvage will benefit green sturgeon. Increases in sampling rate/duration at the fish salvage facilities will better quantify the effects of the export actions on green sturgeon. The section 7 consultation on the Federal Energy Regulatory Commission (FERC) relicensing of Oroville Dam is assessing the river temperature profile downstream of the Thermalito Afterbay outlet to ascertain whether additional spawning habitat can be gained through modifications of facilities, and/or operations of dam releases, or reconfiguration of the Thermalito Afterbay itself.

Economic Analysis

Comment 25:

One commenter felt that NMFS cannot adequately estimate the incremental economic effects of the critical habitat designation, because NMFS has not yet issued an ESA 4(d) rule for the Southern DPS.

Response:

The economic analysis (Industrial Economics Inc. (Indecon) 2009) complies with the ESA's mandate to use the best available information, and NMFS believes it provides a sufficient assessment of the baseline and incremental economic impacts of designating critical habitat for green sturgeon. The baseline for the incremental impacts analysis includes the estimated costs attributed to the listing of the species and the protections under section 7 of the ESA requiring Federal agencies to ensure their actions do not jeopardize ESA-listed species. The baseline also includes protections already provided to green sturgeon critical habitat under existing protections for other listed species, such as West Coast salmon and steelhead, delta smelt, and marine mammal species. The incremental analysis of impacts looks at what is required to avoid adverse modification of green sturgeon critical habitat, above and beyond what is already required to avoid jeopardy of listed species and adverse modification of existing critical habitat, and to comply with other existing Federal, State, and local protections.

To assess the baseline and incremental impacts, the best available information was used from the short consultation history for green sturgeon, as well as information from surrogate species (

e.g.

, salmonids) whose distribution and life history traits overlap with the green sturgeon's, because the protective measures that have been established for these species are similar to what NMFS would anticipate for green sturgeon. Uncertainties related to assessing incremental impacts exist, but this is partly due to the project-specific nature of the ESA section 7 consultations that NMFS conducts with other Federal agencies. To address this uncertainty, a conservative approach was taken to ensure that the analysis adequately represents the potential impacts and incremental costs associated with the critical habitat designation. Therefore, promulgation of take prohibitions under an ESA 4(d) rule is not necessary to assess the baseline and incremental impacts of the critical habitat designation.

Comment 26:

Several commenters disagreed with the draft economic analysis' method for assessing incremental impacts. One commenter also noted the draft economic analysis did not adequately define the baseline used in the analysis. Specifically, commenters suggested that the baseline should not include protections for green sturgeon offered by conservation measures undertaken for Pacific salmon. One commenter noted that the economic analysis should consider both incremental and baseline impacts. In particular, the commenter suggested that baseline impacts should be considered because if one of the listed salmonids were delisted, the designation of critical habitat for green sturgeon could become the primary reason certain conservation measures are undertaken. Another commenter stated that NMFS' consideration of all potential project modifications that may be required under section 7 of the ESA, regardless of whether those changes may also be required under the jeopardy provision, appears to be contrary to the reasoning of the

Cape Hatteras Access Preservation Alliance

v.

U.S. Department of Interior

(344 F. Supp. 2d 108 (D.D.C., 2004)) (

Cape Hatteras

) court decision that the effects of listing and the jeopardy provision should not be considered as part of the impacts of a designation in the ESA 4(b)(2) analysis for a critical habitat designation.

Response:

As outlined in Section 1.3 of the final economic analysis report (Indecon 2009), the analysis does not attribute all potential project modifications required under section 7 to the critical habitat designation. Rather, it takes an incremental approach, comparing the state of the world with and without the designation of critical habitat for green sturgeon. The “without critical habitat” scenario represents the baseline for the analysis, considering habitat protections already afforded green sturgeon under its Federal listing or under other Federal, State, and local regulations, including protections afforded green sturgeon resulting from protections for other listed species, such as West Coast

salmon and steelhead, delta smelt, and marine mammal species. The “with critical habitat” scenario attempts to describe the incremental impacts associated specifically with green sturgeon critical habitat designation. The courts in several cases have held that an incremental analysis is proper (

see

for example:

Cape Hatteras; Center for Biological Diversity

v.

United States Bureau of Land Management,

422 F. Supp. 2d. 1115 (N.D. Calif. 2006); and

Arizona Cattle Growers

v.

Kempthorne,

534 F. Supp. 2d 1013 (D. Ariz. 2008)).

Section 1.4 of the final economic analysis report clarifies how the economic analysis defines its baseline, or “without critical habitat” scenario. As described in Section 1.4.5 of the final economic analysis report, project-specific conservation efforts that benefit green sturgeon are frequently undertaken due to the joint presence of multiple anadromous fish species and habitats and may therefore be implemented regardless of the presence of green sturgeon critical habitat. This complicates the identification of changes in behavior associated specifically with the green sturgeon critical habitat. This analysis employs best professional judgment in calculating the probability that green sturgeon conservation needs are a primary driver of the implementation of a joint conservation effort. Thus, this analysis estimates the likelihood that consideration of green sturgeon critical habitat will weigh heavily in the implementation of a conservation effort undertaken due to the presence of multiple species and habitats. This probability is dependent upon a number of factors, including the details of the project and conservation effort in question and the number of sensitive species present. By excluding impacts for which green sturgeon critical habitat is not a key reason for a conservation effort implementation, this analysis focuses the quantification of impacts on those associated specifically with green sturgeon habitat conservation. Because the probability that any given conservation effort is being driven by green sturgeon conservation as opposed to other species is subject to significant uncertainty, the final economic analysis report presents a sensitivity analysis for these assumptions. Appendix E of the final economic analysis describes alternative results assuming the extreme case that green sturgeon is always a primary driver of the conservation efforts (

e.g.,

that 100 percent of the time fish screens are installed, it is primarily due to green sturgeon conservation needs).

Comment 27:

Several commenters noted that it would be helpful if the draft economic analysis provided additional, detailed explanations of the methodology for calculating impacts for specific activities, including dam projects.

Response:

Section 1.4 of the final economic analysis report provides a revised discussion of how the various cost estimates are developed and aggregated to develop total annualized impacts per unit. Every section for a specific economic activity contains exhibits on these three data points: (1) Number of affected projects by unit; (2) expected annualized costs of conservation efforts for anadromous fish species per project; and (3) the probability that green sturgeon drives the impact for that activity in that unit (for units where listed salmon and steelhead habitat overlap occurs). The analysis multiplies the number of affected projects in each unit by the annualized costs per project and the probability score for each unit to arrive at projected impacts. For example, costs of fish screens at water diversions are developed by estimating average costs of fish screens ($80,000 to $130,000), annualizing over 20 years, and multiplying by the number of water diversions in affected units. For units where listed salmon and steelhead species are present, the costs are again multiplied by the probability that green sturgeon will be the driver of passage costs. Specific costs of fish passage projects in critical habitat areas provided by public commenters have been incorporated into the analysis of impacts on dam projects.

Comment 28:

One commenter noted that the designation of critical habitat may result in economic activities not being carried out (

e.g.,

dredging, project, in-water construction, development project) or otherwise lead to time delays. The draft economic analysis should address losses in consumer surplus resulting from these potential delays.

Response:

As discussed in Section 1.3.2 of the final economic analysis report, the analysis does consider time delay impacts associated with the section 7 consultation process and/or compliance with other laws triggered by designation where applicable. For example, estimated impacts to dredging projects include impacts associated with possible work window constraints (

see

Exhibit 2-4).

Comment 29:

One commenter stated that the draft economic analysis employed a “cost-effectiveness” analysis to analyze impacts; however, the draft economic analysis did not provide sufficient data to determine which areas would provide the greatest biological benefit for each dollar of associated impact.

Response:

As discussed in Section 1.2.1 of the final economic analysis report, we used an alternative form of cost-effectiveness analysis for this rulemaking. This alternative form develops an ordinal measure of the benefits of critical habitat designation. Although it is difficult to monetize or quantify benefits of critical habitat designation, it is possible to differentiate among habitat areas based on their estimated relative value to the conservation of the species. For example, habitat areas can be rated as having a high, medium, or low biological value. The output, a qualitative ordinal ranking, may better reflect the state of the science for the geographic scale considered here than a quantified output and can be done with available information. The final ESA section 4(b)(2) report (NMFS 2009c) discusses the specific weighing process that we performed for this rule.

Comment 30:

One commenter stated that the cumulative economic impact of baseline protections was not included in the economic analysis.

Response:

The economic analysis estimates costs associated with conducting an ESA section 7 consultation to ensure Federal agency actions are not likely to destroy or adversely modify critical habitat. We did not have information available to determine the cumulative economic impacts of baseline protections, nor did the commenter provide us data that would allow us to make such a determination.

Comment 31:

One commenter stated that although little impact is expected on the part of the Bureau of Land Management, additional review is needed to ensure that the economic analysis accurately reflects increased administrative costs associated with section 7 consultation for other Federal agencies.

Response:

The final economic analysis report now includes an overview in section 1.3.2 of the estimated future annual administrative costs associated with section 7 consultations for green sturgeon. Based on the consultation history for completed consultations that included green sturgeon to date (2006-2009), the economic analysis forecasts an average future annual rate of section 7 consultation for green sturgeon of 12 formal consultations, 67 informal consultations, and eight technical assistance efforts. The additional, incremental administrative effort

associated with these consultations is estimated to be approximately $251,000 per year, including efforts by the Service, Action agencies, and third parties.

Comment 32:

Several commenters stated that the economic analysis failed to consider community level impacts.

Response:

We acknowledge that modifications to economic activities within one unit may affect economic activities in other units. The analysis also acknowledges that potential impacts could result in regional economic effects, for example in fishing communities, should the level of bottom trawl fishing catch be curtailed as a result of this designation. However, the regional economic effects of the critical habitat designation are unknown because many uncertainties exist. For example, potential reductions in fishing effort in critical habitat areas may or may not lead to reductions in profits, depending on the availability and quality of alternative sites. Therefore, the economic analysis report describes the potential regional economic effects and the uncertainties associated with their analysis, but does not quantify these effects.

Comment 33:

One commenter thought that the draft economic analysis failed to consider energy impacts resulting from potential changes in management at the Red Bluff Diversion Dam and other water diversions. Specifically, the commenter was concerned the farmers may need to seek out replacement water supplies that may require additional energy consumption. The commenter also was concerned that permanent crop loss in some areas could lead to losses of carbon dioxide conversion and result in widespread changes in energy consumption over a wide geographic area.

Response:

Appendix D of the final economic analysis report now presents an energy impacts analysis. This energy impacts analysis assesses whether the green sturgeon critical habitat designation would result in one of nine outcomes that may constitute “a significant adverse effect” as outlined by the Office of Management and Budget in their guidance on implementing Executive Order 13211. These include: (1) Reductions in crude oil supply in excess of 10,000 barrels per day; (2) reductions in fuel production in excess of 4,000 barrels per day; (3) reductions in coal production in excess of 5 million tons per year; (4) reductions in natural gas production in excess of 25 million Mcf per year; (5) reductions in electricity production in excess of 1 billion kilowatt-hours per year or in excess of 500 megawatts of installed capacity; (6) increases in energy use required by the regulatory action that exceed the thresholds above; (7) increases in the cost of energy production in excess of one percent; (8) increase in the cost of energy distribution in excess of one percent; or (9) other similarly adverse outcomes. Of these, the most relevant criteria to green sturgeon critical habitat are potential changes in natural gas and electricity production, as well as changes in the cost of energy production. Possible energy impacts may occur as the result of requested project modifications to hydropower dams, alternative energy hydrokinetic projects, and LNG facilities. The potential impacts of permanent crop loss on carbon dioxide levels in the atmosphere and the potential changes in climate and energy consumption in affected regions are unclear at this time due to many uncertainties. For example, it is uncertain what the effects of crop loss are on atmospheric carbon dioxide levels and subsequently on climate and on energy consumption by consumers. Further complicating matters is the uncertainty regarding how these relationships may be affected by other impacts on atmospheric carbon dioxide levels from activities related to or outside of this critical habitat designation. Therefore, these impacts cannot be analyzed at this time.

Comment 34:

One commenter asked how the lost revenue figures estimated in the small business analysis related to the estimated impacts calculated in the rest of the economic report. In addition, the commenter specifically requested that the small business analysis provide information about the potential revenue losses for farmers as a share of their total revenues.

Response:

The estimated lost revenues per small business included in the Final Regulatory Flexibility Analysis (Indecon 2009) are calculated by taking the mid-range scenario impacts presented in Chapters 3 through 5 of the final economic analysis report, and then dividing by the estimated number of small entities by activity by unit, as presented in Exhibit C-3. Average net operational dollar gain per farm (ignoring government payments) in the study area ($147,000, average for affected communities) are now included in the analysis for context.

Comment 35:

One commenter stated that impacts to the Yaquina River unit were underestimated because there are on-going dredging and in-water construction projects in that area.

Response:

The final economic analysis report considers dredging and in-water construction projects as potential threats to green sturgeon in the Yaquina River unit. However, the 404 permit data from the U.S. Army Corps of Engineers used to estimate the level of dredging and in-water construction activity taking place in the Yaquina River Unit do not indicate current projects in that area.

Comment 36:

One commenter noted that the critical habitat designation could result in a significant, additional regulatory burden for the Port of Portland for in-water work activities (

e.g.,

dredging, wharf construction, and routine dock repairs).

Response:

The economic analysis considers potential impacts to the Port's in-water work activities. The Port of Portland appears to fall within Unit 24b, the Lower Columbia River. For this unit, the final economic analysis report forecasts total annualized impacts of between $106,000 and $413,000 for dredging projects and $151,000 to $1,230,000 for in-water construction in this unit. A discussion of potentially affected commercial shipping resources is included in Section 4 of the final economic analysis report, and includes the Port of Portland.

Comment 37:

Several commenters thought that the draft economic analysis failed to consider impacts to shoreline development. Specifically, the commenters argued that the proposed rule identified development and upland activities as economic activities that may adversely modify critical habitat and therefore may need to be altered. Therefore, the commenters believed that shoreline development should be addressed in the economic analysis.

Response:

Typically the development issue of most concern is the potential for critical habitat to inhibit the development potential of affected land parcels, thereby constraining (or reducing) the land available for future development. In areas that are highly developed, or where developable land is scarce (for non-critical habitat related reasons), the reduction in available land due to critical habitat can impose significant economic impacts. However, the designation of critical habitat for the green sturgeon is not expected to result in these types of direct impacts on residential development for multiple reasons.

First, unlike terrestrial species, habitat for the green sturgeon is not itself part of the supply of developable land. For this reason, protection of the aquatic habitat need not take the form of supplanting development if the impacts of the development can be mitigated. Given the minimal consultation history for green sturgeon, a review of the information available for west coast

salmon and steelhead can provide further insight on this issue. For salmon and steelhead, NOAA fisheries personnel indicated that consultations regarding development projects are rare. Review of the salmon consultation history further supports this assessment, but more importantly, development consultations only addressed specific development activities with a Federal nexus, such as stormwater outfall structures (

i.e.,

consultations did not address the entire residential project, nor were any mitigation or land offsetting required). Based on this information, residential development for salmon and steelhead were not expected to have direct impact on the supply of land or housing for residential development. However, potential impacts on National Pollutant Discharge Elimination System (NPDES) permitted facilities were included.

Following this same approach, the final economic analysis report similarly does not anticipate any direct impacts to residential development in the form of reduced developable land. Rather, impacts to development activities are limited to the additional costs that would result from NPDES-related activities where a Federal nexus exists. The estimated number of NPDES-permitted facilities and the costs associated with these facilities as a result of the rulemaking are provided in Section 2.3 of the final economic analysis report. Potential threats from industrial or municipal runoff do not have a clear Federal connection; therefore, they are assumed to be dealt with primarily outside of the section 7 consultation realm.

Comment 38:

Several commenters stated that the economic analysis did not consider impacts to specific projects involving dams and water diversions. One commenter stated that the draft economic analysis failed to discuss implications of the designation on the operations of the State Water Project and Central Valley Project. Another commenter inquired as to why specific discussion of Red Bluff Diversion Dam was not included in the draft economic analysis, and provided information on costs of constructing the Red Bluff Pumping Plant. In particular, the commenter noted that RBDD has undertaken a $165 million screened pumping plant as part of a Fish passage Improvement Project in the hope of minimizing impacts resulting from critical habitat designation. Another commenter provided information on potential costs of fish passage and dam removal at Daguerre Point Dam.

Response:

Because of the large geographic area covered by proposed green sturgeon critical habitat and the large number of dams and water diversions located within the study area, Section 2.5 of the final economic analysis report broadly assumes that all dams do not currently have, but will require fish passage, and that all water diversions in affected watersheds do not currently have, but will require fish screens. For projects that already have fish passage facilities or fish screens, the analysis may overstate potential impacts. Because the analysis relies on average ranges of costs of these requirements, this approach may understate potential impacts for some individual projects. As a result, where public commenters provided specific cost estimates associated with potential fish passage issues in green sturgeon critical habitat areas, these have been incorporated into the final economic analysis report. Due to the regional importance the State Water Project and Central Valley Project, the final economic analysis report incorporates a more detailed discussion of these projects than was included in the draft economic analysis (

also see

response to Comment 24). Particularly relevant to the green sturgeon critical habitat area are the Red Bluff Diversion Dam and Daguerre Point Dam, which are now discussed in more detail.

Comment 39:

One commenter stated that costs on the Upper and Lower Sacramento River units appear to be inordinately low. Specifically, the commenter noted that incremental impacts from possible special management measures and protections involving releases from dams or limiting diversions have potential to greatly magnify the economic impacts of the proposed rule and were not accurately captured in the economic analysis or proposed rule. The commenter also stated that agricultural operations are greatly affected by the operations of the Red Bluff Diversion Dam, which may not have been taken into account in the analysis.

Response:

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

Comment 40:

One commenter stated that the number of affected water diversions on the Upper Sacramento River may be underestimated because the designation may result in impacts to every single farm turnout in each of 17 water agencies.

Response:

The final economic analysis report applies a watershed-based approach to determine the dams and water diversions potentially affected by this rule in riverine and estuarine areas. That is, all water diversions that fall within watersheds that contain proposed critical habitat for green sturgeon are assumed to require fish screens. The analysis does not expect that diversions outside of these watersheds will require fish screens on behalf of green sturgeon. In California, the final economic analysis report uses available GIS data from CalFish (A California Cooperative Anadromous Fish and Habitat Data Program;

http://www.calfish.org

) to estimate an aggregate number of potentially affected dams and water diversions by unit (

see

Exhibits 2-15 and 2-16). To the extent that the GIS data used does not reflect the locations of all water diversions, impacts could be understated for particular diversions.

Comment 41:

One commenter noted that a recent ESA section 7 consultation for salmonids expanded pesticide buffer zones beyond the buffers used in the economic analysis. Specifically, the consultation widens the pesticide buffer to 1,000 feet for aerial applications and 500 feet for ground applications. The commenter noted that in the draft economic analysis, the buffer zone on which agricultural impacts were based was 300 feet for aerial application and 60 feet for ground application. The commenter stated that, consequently, the estimated impacts of green sturgeon critical habitat on agriculture were likely underestimated in the draft economic analysis. The commenter requested NMFS to clarify that no buffer is or will be required for green sturgeon regarding agricultural impacts, or alternatively, to revise the economic analysis consistent with the recent biological opinion.

Response:

Section 2.4.3 of the final economic analysis report discusses the history of the Washington Toxics litigation (

Washington Toxics Coalition et al.

v.

EPA,

No. 04-35138), and the two recent consultations on salmon and

steelhead species with regard to specific pesticides and their use. Listed salmon and steelhead species are found in all units where agricultural pesticide application is a threat to green sturgeon habitat. There is evidence that triphenyltin, a common agricultural fungicide, has caused skeletal and/or morphological deformities in Chinese sturgeon (Hu

et al.

2009). Also, laboratory studies conducted by researchers at UC Davis have shown that certain toxins cause deformities in white sturgeon and green sturgeon (Kruse and Scarnecchia 2002; Feist

et al.

2005). At this time we do not have information on the effects of the use of agricultural chemicals on green sturgeon in the wild. However, given the similar responses of sturgeon (multiple species) to contaminants as compared to rainbow trout (representing salmonids), the application of buffer zones to protect salmonids from the application of pesticides and herbicides would be appropriate. Therefore, wherever and whenever protective buffer zones are applied for salmonid protection through the section 7 consultation process, green sturgeon would also benefit from the buffer zone guidelines.

The final economic analysis report assumes that the court-ordered injunction restricting pesticide use represents the dominant outcome of section 7 consultations for this activity, and that although the injunction is specifically for listed salmonid species, green sturgeon requirements could result in spray buffer increases of 20 percent, either through wider buffers or additional river segments requiring buffers.

The final economic analysis report also assumes that the agricultural net revenue generated by land within specified distances in critical habitat areas will be completely lost. That is, the analysis assumes that no changes in behavior are undertaken to mitigate the impact of pesticide restrictions. For example, this analysis assumes that no adjustments in cropping or pesticide practices are possible that would allow continued crop production without these pesticides. This assumption may lead to overestimated impacts of restricting pesticide use.

It should be noted that buffer distances have not yet been determined for many pesticides, and it may be that the salmon and steelhead injunction and subsequent consultation requirements will prove to be adequately protective of green sturgeon. As such, green sturgeon critical habitat would not be expected to add costs to those already expected to occur without the current rulemaking. Since the particular sensitivities of green sturgeon are not well understood, this analysis assumes that green sturgeon may require additional protections over and above those required for salmon species. To the extent that no additional requirements for green sturgeon are imposed over and above those put in place for salmonids, impacts of green sturgeon critical habitat could be overstated. To the extent that much wider buffers are identified than were included in the injunction, overall impacts to agriculture in green sturgeon critical habitat areas could be underestimated.

Comment 42:

One commenter requested that the impacts to fisheries using other bottom tending gear be considered. The commenter stated that the economic analysis underestimated the economic impact of the proposed rule because it did not consider potential impacts on the shrimp fishery, gear types other than bottom trawl, or community level impacts.

Response:

NMFS specifically identified the use of bottom trawl gear as a potential threat to green sturgeon and its habitat (

see

73 FR 52093-52094), and other gears have not been identified as a threat. The best available information indicates that other bottom tending gear (

e.g.,

pot traps, long line) does not adversely affect benthic habitats, whereas the use of bottom trawl gear has a much more apparent effect on benthic habitats. Therefore, the economic analysis does not quantify economic impacts to fishing activities with other gear types. This analysis assumes that State-managed fisheries, such as the commercial crab fishery and pink shrimp fishery will not be affected by this rule. Information provided by the commenter, including the estimate that between two and 11 percent of shrimp tows may occur within the critical habitat area, have been included in the final economic analysis report.

Comment 43:

One commenter noted that with regard to bottom trawl fishing impacts, the draft economic analysis could have produced more precise and geographically specific estimates for Washington Coast units. In particular, the commenter stated that catch attributed to Unit 37 should be attributed to Unit 36. Another commenter stated that the estimates of bottom trawl revenues seemed low for the area from Humboldt Bay to Cape Flattery, and provides alternative estimates based on log book data. In addition, the commenter noted that the broad scope of the economic analysis obscures the fact that impacts associated with critical habitat likely would fall disproportionately on particular vessels and coastal communities rather than evenly through a unit.

Response:

The draft economic analysis used a series of assumptions to estimate the level of bottom trawl fishing effort occurring within proposed boundaries. The final economic analysis report revises this methodology, utilizing data provided by the Washington Department of Fish and Wildlife. As part of this effort, bottom trawl fishing estimates have been reallocated from Unit 37 to Unit 36, and landings data have been better tailored to appropriate units in California, Oregon and Washington. In addition, the economic analysis now discusses the potential for uneven distribution of green sturgeon impacts across fishing vessels and communities.

Comment 44:

One comment provided additional information on the location of proposed tidal- and wave-energy projects. The comment specifically described five wave energy projects in Oregon waters.

Response:

All of the projects described by the commenter are included in the final economic analysis report, as presented in Exhibit 3-3.

Comment 45:

One commenter noted that the economic analysis failed to consider proposed wave and wind energy projects in Grays Harbor and other areas in Washington.

Response:

The final economic analysis report does consider and project potential costs associated with wave and wind energy projects in the State of Washington. Specifically, Exhibit 3-3 of the final economic analysis report identifies one project (Grays Harbor Ocean Energy and Coastal Protection) in Grays Harbor and nine additional projects in Willapa Bay and Puget Sound.

Comment 46:

One comment identified three LNG terminals approved or proposed in Oregon: the Jordan Cove LNG project (proposed) located in Coos Bay and the Bradford Landing LNG project (approved) and Oregon LNG project (proposed) located in the lower Columbia River estuary. The commenter stated that proposed dredging activities associated with these projects will impact green sturgeon feeding habitat. The commenter also noted other potential impacts associated with these projects from effects on water quality and quantity, an influx of invasive species, or entrainment of fish at water intake structures.

Response:

The three LNG terminals identified by the commenter were already included and analyzed in the economic analysis for Coos Bay and the lower Columbia River estuary. The information regarding the potential

impacts of LNG projects on green sturgeon critical habitat are incorporated into this final rule and supporting documents.

Comment 47:

According to one commenter, the draft economic analysis mischaracterized impacts to aquaculture operations in Willapa Bay and Grays Harbor. Specifically, the commenter noted that operations in these areas have not adopted the conservation measures outlined in the draft economic analysis, and that the adoption of these measures is economically infeasible. The commenter also noted that the draft economic analysis failed to consider the economic contribution of these operations to the regional economy.

Response:

Section 4.2.4 of the final economic analysis report incorporates the comments provided, including a more detailed discussion of aquaculture practices in Washington and the economic significance of the aquaculture industry to Grays Harbor and Pacific counties. In addition, the final economic analysis report discusses the high level of uncertainty regarding potential conservation measures for aquaculture. The final economic analysis report now includes a discussion of the outcome of a recent consultation on aquaculture in Willapa Bay and Grays Harbor, which concluded that no reasonable and prudent measures were necessary for either salmonid or green sturgeon under the ESA. As such, it may be that no impacts to aquaculture are likely in these units related to green sturgeon critical habitat.

ESA Section 4(b)(2) Analysis—Exclusion of Areas

Comment 48:

Several commenters requested an explanation of how the monetary thresholds used to determine the eligibility of an area for exclusion were derived.

Response:

The economic impact level at which the economic benefits of exclusion outweigh the conservation benefits of designation is a matter of discretion. The ESA provides NMFS with the discretion to consider making exclusions if the benefits of exclusion outweigh the benefits of designation, unless exclusion will result in extinction of the species. The ESA gives NMFS broad discretion in what weight to give benefits. The benefits of exclusion (economic impacts) are estimated in monetary values, whereas the benefits of designation (conservation value of the areas) are expressed in qualitative conservation values. Because we could not directly compare the benefits of exclusion and benefits of designation, we applied a set of decision rules based on selected dollar thresholds representing the levels at which the potential economic impact associated with a specific area may outweigh the conservation benefits of designating that area. These thresholds varied depending on the conservation value of the area, where areas with a higher conservation value rating had a higher threshold dollar value. To determine these threshold values, we examined the range in economic impacts across all areas within a conservation value rating category, determined where the breakpoint occurred between relatively low economic impacts and relatively high economic impacts, and selected a value within the range of that breakpoint where the economic impacts may outweigh the conservation benefits for that area.

Our consideration of economic impacts under section 4(b)(2) of the ESA consisted of two parts. First, we applied the threshold dollar values to identify areas that may be eligible for exclusion based on economic impacts. We then presented the areas to the CHRT and asked the CHRT to further characterize the conservation benefit of designation for these areas by determining whether exclusion of the identified areas would significantly impede conservation of the Southern DPS. If the CHRT determined that exclusion of an area would significantly impede conservation of the Southern DPS, we used this information to analyze the conservation benefit of designation, leading to the final conservation value of the area being increased by one level.

Comment 49:

One commenter stated that the economic thresholds established for the ESA section 4(b)(2) process only trigger consideration or eligibility of an area for potential exclusion. The commenter requested that an upper threshold be established above which the economic impact becomes disproportionate to the relative conservation benefit of designation and exclusion is definite. The commenter focused on the lower Feather River, stating that the economic costs are well above the $100,000 threshold.

Response:

Section 4(b)(2) of the ESA requires that NMFS consider the economic impacts, impacts on national security, and other relevant impacts of designating any particular area as critical habitat. The ESA also provides NMFS with the discretion to exclude areas if the benefits of exclusion outweigh the benefits of designation, but does not require that exclusions be made. To weigh the economic benefits of exclusion against the benefits of designation, NMFS established monetary thresholds above which an area was potentially eligible for exclusion. These thresholds represent the level at which the economic impact may outweigh the relative conservation benefit of designation. NMFS did not define an upper threshold at which exclusion is required, however, because within a conservation value rating category there is variation, with some areas being of higher conservation value to the Southern DPS than others. In the case of the lower Feather River, the estimated economic impacts exceeded the dollar threshold value, signaling that the economic benefits of exclusion may outweigh the conservation benefits of exclusion for this area and that it may be eligible for exclusion. However, the CHRT determined that exclusion of the lower Feather River would significantly impede conservation of the Southern DPS, adding more weight to the conservation benefit of designation for this area, and leading to NMFS' determination that the economic benefits of exclusion do not outweigh the conservation benefits of designation. Thus, the lower Feather River was proposed for designation.

Comment 50:

One commenter disagreed with the decision rule for areas with a High conservation value, that no economic impact could outweigh the benefit of designation for these specific areas (

i.e.,

specific areas with a High conservation value are not eligible for exclusion). The commenter stated that this decision rule is arbitrary and unreasonable.

Response:

Section 4(b)(2) of the ESA provides NMFS the discretion to exclude any area from critical habitat if the benefits of exclusion (based on economic, national security, or other relevant impacts) outweigh the benefits of designation, unless exclusion of the area will result in extinction of the species. The ESA does not describe how this weighing process is to be conducted. Because data were not available to quantify or monetize the benefits of designation, we used the CHRT's conservation value ratings to represent the relative benefits of designation for each specific area. Areas with a High conservation value rating were identified by the CHRT as areas with a relatively high likelihood of promoting the conservation of the Southern DPS compared to the other areas. Based on the purposes of the ESA, which include providing a program for the conservation of threatened and endangered species, and the policy of Congress that all Federal agencies shall seek to conserve threatened and endangered species, NMFS exercised its broad discretion to designate all of the areas with a High conservation value.

This decision rule was also applied in the ESA 4(b)(2) analysis to support the 2005 critical habitat designations for listed West coast salmon and steelhead ESUs.

Comment 51:

Two commenters requested the exclusion of Federal navigation channels and dredged material placement sites within Humboldt Bay, San Francisco Bay, Suisun Bay, San Pablo Bay, the Delta, and the Sacramento River and tributaries. The commenters asserted that the benefits of navigation traffic outweigh the conservation benefits of designation because these areas are dredged annually, are often deeper than green sturgeon depth preferences for all life stages, lack the PCEs, and make up a small proportion of the total area proposed for designation in estuaries and freshwater rivers.

Response:

We appreciate the data provided by the commenter regarding dredging and disposal operations in the Central Valley, California, and in Humboldt Bay. We recognize that routine maintenance dredging and disposal operations are conducted to maintain the Federal navigation channels and that these activities have already altered the habitat within these channels and associated disposal sites. The CHRT considered the information provided, but determined that the areas requested for exclusion do contain PCEs that may require special management considerations or protection and provide valuable habitat for the Southern DPS. The Sacramento River supports all life stages and is the only confirmed spawning river for the Southern DPS. The Delta and the San Francisco, Suisun, and San Pablo bays support feeding, rearing, and migration by juvenile, subadult, and adult Southern DPS green sturgeon. Subadult and adult Southern DPS green sturgeon occupy Humboldt Bay for long periods of time, presumably for feeding during summer months. The best available data indicate that subadult and adult green sturgeon occur widely throughout these areas, based on detections of tagged green sturgeon through the estuaries and the Sacramento River. In addition, juvenile green sturgeon are believed to occur throughout the Delta and the San Francisco, Suisun, and San Pablo bays throughout all months of the year. The PCEs to support Southern DPS green sturgeon within these areas are affected by activities such as dredging and disposal (as described in the comments), dams and water diversions, in-water construction or alteration activities, and other activities as described in the final rule and supporting documents.

It is important to note that designation of critical habitat within these areas does not preclude dredging and disposal operations, but requires that Federal activities, or those requiring a Federal permit or funding and that may affect critical habitat, be evaluated under section 7 of the ESA to ensure that they do not destroy or adversely modify the habitat. The protective measures that may be required to address effects of dredging and disposal activities on critical habitat will depend on the specifics of the activity (

e.g.,

scale, location, time of year,

etc.

). NMFS will continue to work with the affected entities to determine the effects of the activities on critical habitat and to develop protective measures to address those effects.

Comment 52:

One commenter stated that Central San Francisco Bay and Suisun Bay do not meet the definition of critical habitat because these specific areas are not essential for conservation of the Southern DPS and do not require special management considerations or protection. The commenter focused on sand mining activities, stating that sand mining operations result in localized, temporary disturbances that do not pose a serious threat to the PCEs and will not adversely affect migration and foraging. Also, the commenter stated that sand mining is heavily regulated and occurs in limited specific designated lease areas, only a portion of which is actually mined.

Response:

The ESA defines critical habitat as specific areas within the geographical area occupied that contain physical or biological features essential to the conservation of the species and which may require special management considerations or protection. The CHRT considered the comments and verified that both Central San Francisco Bay and Suisun Bay meet the definition of critical habitat. Central San Francisco Bay and Suisun Bay were both rated as High conservation value areas that support feeding and migration for juvenile, subadult, and adult Southern DPS green sturgeon. Both areas contain at least one PCE that may require special management considerations or protection. We appreciate the information provided regarding the effects of sand mining on critical habitat and will consider such information in future consultations under section 7 of the ESA regarding sand mining operations. Final determinations will be made on a case-by-case basis during the section 7 consultation process. However, sand mining is only one of several activities identified that may affect the PCEs. Thus, even if sand mining does not adversely affect critical habitat, other activities occur within the areas that may affect the PCEs, including but not limited to: dredging and disposal of dredged material, in-water construction or alteration activities, and pollution. Finally, the fact that activities may already be regulated does not negate the need for special management considerations or protection. In determining whether a PCE may require special management considerations or protection, the CHRT focused on whether or not any activities may threaten the PCE.

Comment 53:

One commenter requested the exclusion of nearshore regions where industrial activities occur within the San Francisco Bay, because these areas are not essential to the conservation of green sturgeon.

Response:

The CHRT considered the comments but determined that the best available scientific data do not support the exclusion of these nearshore regions. San Francisco Bay supports feeding, rearing, and migration for juvenile, subadult, and adult Southern DPS green sturgeon. Green sturgeon occupy a diversity of depths throughout their different life stages, including shallow nearshore areas. Recent telemetry data and literature references indicate green sturgeon distribute widely throughout the bay and use extensive mudflats and sand flats for feeding. Based on the available data, it is reasonable to believe that green sturgeon use nearshore regions within San Francisco Bay. NMFS encourages research to better understand the use of these areas by different life stages of green sturgeon.

Comment 54:

A commenter suggested that the Port of Stockton be excluded because it consists of deep water and developed shoreline and does not have the sediment quality that green sturgeon require.

Response:

The CHRT considered this request to exclude the Port of Stockton from critical habitat, but ultimately decided that sufficient data to support exclusion are not available at this time. The best available data indicate that the Port of Stockton provides PCEs to support the rearing, feeding, and migration of juvenile, subadult, and adult Southern DPS green sturgeon. The PCEs may be affected by activities conducted within the area, but still continue to support the presence and use of this area by Southern DPS green sturgeon. Adult and subadult Southern DPS green sturgeon have been observed in the eastern Delta, including in the area adjacent to the Port of Stockton. Tagged green sturgeon have been detected at all three hydroacoustic monitors in the Deep Water Channel adjacent to the Port of Stockton.

Hydroacoustic monitors have not yet been installed in the Port of Stockton, however, and specific data on use of this area are lacking. In addition, juvenile green sturgeon rearing and feeding habitats are believed to occur throughout the Delta, but data are lacking on juvenile green sturgeon distribution in the Delta. At this time, the CHRT believes that juvenile green sturgeon are distributed widely throughout the Delta, and are, therefore, presumed to be in the Port of Stockton area. Studies focused on juvenile green sturgeon distribution in the Delta and San Francisco, San Pablo, and Suisun bays would help to address these data gaps and inform future revisions to the critical habitat designation.

Comment 55:

One commenter requested that the area of the Sacramento River immediately upstream and downstream of RBDD be excluded from the critical habitat designation, because data for this area are not sufficient to support designation of critical habitat. The commenter was unclear whether RBDD is included as an existing structure as part of critical habitat or not. If it is, the commenter asserted that operation of the dam has no specific relationship to the numbers, range, or viability of green sturgeon. The commenter also stated that no analysis was done on the impacts that will result from restrictions on water diversions at RBDD.

Response:

The CHRT identified the lower and upper Sacramento River, including the area immediately upstream and downstream of RBDD, as areas of High conservation value, recognizing that the areas support all life stages of Southern DPS green sturgeon and provide PCEs (including food resources, depth, migratory corridor, substrates, water quality, and water flow) to support migration, feeding, spawning, and rearing. The presence and operation of the RBDD has several effects on the Southern DPS. For example, the RBDD can hinder or block upstream and downstream migration when the gates are down, or cause injury or mortality if the gate opening is too small. In 2007, 10 green sturgeon were found injured and dead at or just downstream of RBDD, purportedly injured while trying to move under the gates. In addition, the RBDD may alter water quality and spawning habitats by altering the flow regime. Spawning by adult Southern DPS green sturgeon has been confirmed to occur both upstream and downstream of the RBDD, although conditions directly below the RBDD may not be favorable for spawning success due to high sedimentation levels (Poytress

et al.

2009). Thus, the area immediately upstream and downstream of RBDD is of high conservation value to the Southern DPS and would benefit from protections under a critical habitat designation. The Sacramento River would be designated as critical habitat, but the RBDD itself would not be designated as critical habitat. The effects of operations at RBDD on critical habitat would be subject to consultation under section 7 of the ESA to address effects on critical habitat in the Sacramento River. As described in the response to comments 38 and 39, the potential impacts on RBDD are discussed in more detail in the final economic analysis report.

Comment 56:

One commenter agreed with the CHRT that exclusion of the lower Feather River would significantly impede conservation of the Southern DPS, but two commenters disagreed and stated that the lower Feather River should be excluded from the designation because: (1) The estimated economic impacts substantially exceeded the $100,000 threshold for exclusion; (2) the area is not a confirmed spawning river and habitat improvements needed to make this area of High conservation value are not financially and logistically feasible; (3) designating the lower Feather River as a second spawning river for the Southern DPS is not warranted because the population is already protected from catastrophic risk by a naturally occurring second population in marine waters; and (4) the jeopardy provision under section 7 of the ESA provides adequate protection for the species. One commenter was unclear whether the biological analysis was based on current conditions or future conditions in the area. One commenter stated that there is little evidence to suggest green sturgeon occupy the lower Feather River above RKM 95, and another commenter stated that Fish Barrier Dam is the uppermost barrier, not Oroville Dam.

Response:

The CHRT's evaluation of the lower Feather River was based on current conditions within the area as well as the potential future conditions if efforts to improve habitat conditions and passage are conducted. The best available data from surveys and anecdotal observations of green sturgeon indicate that green sturgeon consistently occupy and use the lower Feather River. Although spawning has not yet been confirmed, the CHRT believes the lower Feather River is the area most likely to serve as a second spawning river for the Southern DPS. The CHRT recognized that only part of the population returns to the Sacramento River to spawn each year, providing some protection should a catastrophic event occur. However, a second spawning river would provide not only additional protection from a catastrophic event but also additional spawning habitat should spawning habitats be inaccessible or subject to disturbance in the Sacramento River. Current and ongoing habitat monitoring and improvement activities are being conducted within the lower Feather River that may benefit the Southern DPS. NMFS encourages continued efforts to restore habitat and improve fish passage within the lower Feather River. The CHRT considered all of this information in making their determination that exclusion of this area would significantly impede conservation of the Southern DPS. This led NMFS to determine that, although the economic impacts for this area exceeded the $100,000 threshold, the economic benefit of exclusion did not outweigh the conservation benefit of designation. Thus, the lower Feather River was proposed for designation.

The CHRT considered the public comments received but, based on the information as described above, maintained its determination that exclusion of the Feather River would significantly impede conservation of the Southern DPS. NMFS also maintains its determination that the benefits of exclusion do not outweigh the benefits of designation for this area. However, the CHRT agreed that the upstream boundary for the lower Feather River should be changed from the Oroville Dam to the Fish Barrier Dam (RKM 109), because the Fish Barrier Dam represents the current upstream extent of green sturgeon passage. Green sturgeon have been observed at the Thermalito Outlet and in riffles between Thermalito Outlet and the Fish Barrier Dam (pers. comm. with Alicia Seesholtz, California Department of Water Resources (CDWR), March 10, 2009), confirming that green sturgeon do occur upstream of RKM 95, up to the Fish Barrier Dam (RKM 109). Thus, the specific area in the Lower Feather River was redefined as the area from the river mouth at the confluence with the Sacramento River, upstream to the Fish Barrier Dam.

Comment 57:

Two commenters suggested that the lower Yuba River downstream of Daguerre Dam should not be designated as critical habitat, because data do not support that the lower Yuba River was historically a spawning river for green sturgeon as no green sturgeon juveniles, larvae, or eggs have been observed in the lower Yuba River to date and because adult and subadult green sturgeon occur infrequently in this area. The commenters cited numerous surveys that have been conducted since the

1970s with only one sighting of an adult green sturgeon in 2006. In addition, the commenters noted that flow regimes for green sturgeon may differ from those established under the Yuba Accord to protect salmonids and their habitat, which may result in conflicts in management and potentially high economic costs.

Response:

We recognize that spawning has not been confirmed in the lower Yuba River downstream of Daguerre Dam and have revised the final rule accordingly. However, the CHRT determined that the lower Yuba River likely provides spawning habitat for Southern DPS green sturgeon. Although only one confirmed green sturgeon has been observed in the lower Yuba River, this does not indicate green sturgeon do not use the area more frequently. Surveys have been conducted in this area, but have not targeted green sturgeon. Observations of green sturgeon are difficult even during surveys targeting green sturgeon. For example, green sturgeon surveys in the lower Feather River conducted in 2000—2004 did not observe any green sturgeon, despite anecdotal observations of green sturgeon during the time surveys were conducted (CDWR 2005). More information is needed to determine the optimal flow regime for green sturgeon in the lower Yuba River and how this compares with flows established for salmonids. Consultation under section 7 of the ESA would take into account the needs of both the Southern DPS and the listed salmonid species.

Comment 58:

Two commenters suggested that in the Columbia River, Grays Harbor, and Willapa Bay, critical habitat should be confined to certain portions of the estuaries because sturgeon are not evenly dispersed throughout these waters. The commenters requested that shellfish aquaculture areas be excluded from critical habitat, because green sturgeon do not use shellfish beds but instead occupy areas of high burrowing shrimp density outside of shellfish farming areas. In addition, the commenters asserted that carbaryl does not affect burrowing shrimp populations outside of treated areas and thus does not adversely affect green sturgeon prey resources. The commenters cited a recent study (Dumbauld

et al.

2008) that suggests burrowing shrimp populations are abundant throughout the estuaries and are not likely to be a limiting factor for green sturgeon. The commenters also noted that carbaryl will be phased out by 2012 and replaced by more benign chemical, biological, or mechanical methods of eradication.

Response:

The CHRT considered the comments but determined that the best available data do not support confining the critical habitat designation to certain portions of the lower Columbia River estuary, Grays Harbor, and Willapa Bay. Telemetry data show that tagged green sturgeon disperse widely throughout these estuaries, most likely for foraging. In addition, anecdotal accounts have noted observations of sturgeon in intertidal aquaculture beds in the past, likely when populations of sturgeon were more abundant in these estuaries, and have suggested that predation by sturgeon and other predators may help control burrowing shrimp populations in these beds (Dumbauld

et al.

2008). Designation of critical habitat would require shellfish aquaculture activities that are funded, permitted, or carried out by Federal agencies to comply with section 7 of the ESA. During the consultation, factors such as the location and size of the project and the entity's initial evaluation of the effects of the project on critical habitat would be considered in determining whether the project adversely affects critical habitat. Information such as that provided by the commenters regarding the effects of carbaryl on green sturgeon prey resources would also be taken into account in the consultation.

Comment 59:

One commenter suggested that the inner half of the Strait of Juan de Fuca and the area around the San Juan Islands should be excluded from the designation because these are areas of low use by green sturgeon.

Response:

The CHRT considered the comment but determined that the best available scientific data support inclusion of the Strait of Juan de Fuca. Tagged Southern DPS green sturgeon are known to use the inner half of the Strait of Juan de Fuca, because they have been detected at receivers in the Strait of Juan de Fuca as well as in Puget Sound and Rosario Strait. The low numbers of detections may be due to relatively few tagged green sturgeon and relatively few receiver arrays located in the area. In addition, the receiver arrays were installed and operated to monitor other species and may not be programmed or positioned for optimal monitoring of green sturgeon.

Comment 60:

One commenter stated that critical habitat should not be designated in coastal marine waters because there is insufficient data to show that bottom trawl fisheries affect green sturgeon migration or prey resources within coastal marine waters. The commenter noted that bottom trawling is not allowed in State waters off California and Washington and trawling off Oregon occurs deeper than 40 fm, leaving ample area for green sturgeon feeding and movement. The commenter suggested that coastal marine waters off southeast Alaska should be considered for designation because, although bottom trawling does not occur there, other bottom tending gear is used. The commenter stated that if critical habitat is to be designated in coastal marine waters, then other bottom tending gear should be considered and coastal marine waters off southeast Alaska should be designated.

Response:

The CHRT considered all coastal marine waters within 110 m depth from the California-Mexico border to the Bering Sea, Alaska. The coastal marine areas off southeast Alaska were excluded based on economic impacts, not because bottom trawling fisheries do not occur in the area. Bottom trawling was only one of several activities identified that may affect the PCEs within the coastal marine areas. Other activities include hydrokinetic projects, disposal of dredged material, and pollution from activities such as commercial shipping. Thus, even if bottom trawl fisheries did not adversely affect the PCEs, there are other activities affecting the PCEs within the coastal marine areas. The CHRT focused on bottom trawl gear because bycatch of green sturgeon occurs in bottom trawl fisheries and this gear was identified by NMFS biologists as being the most likely to affect bottom habitat used by green sturgeon, compared with other bottom tending gear. However, all activities that may affect critical habitat would be subject to section 7 of the ESA even if not specifically mentioned in the final rule. Whether bottom trawl or other gear types adversely affect critical habitat would be determined through the ESA section 7 consultation process and would depend on factors such as the location, scale, and frequency of potential disturbances.

Comment 61:

One commenter agreed that exclusion of Coos Bay from the designation would significantly impede conservation of the Southern DPS, whereas one commenter disagreed, stating that the inclusion of Coos Bay is not supported by the available data that indicate low numbers of green sturgeon and no evidence of use by Southern DPS fish.

Response:

Coos Bay was identified as an area that may be eligible for exclusion based on economic impacts, but was proposed for designation and is included in this final designation based on a determination that exclusion of this area would significantly impede conservation of the Southern DPS and, therefore, the economic benefits of

exclusion do not outweigh the conservation benefits of designation. The CHRT considered the comments and maintained its determination that exclusion of Coos Bay would significantly impede conservation of the Southern DPS based on the best available information showing that Coos Bay is one of two large estuaries on the Oregon coast where relatively large numbers of green sturgeon are consistently observed (ODFW 2009a, b) and Southern DPS are confirmed to occur (Lindley and Moser, unpublished data, cited in the Memo to the Record from C. Grimes, October 23, 2006; pers. comm. with Dan Erickson, ODFW, September 3, 2008). In addition, there is uncertainty regarding the economic impact estimates for Coos Bay. As described in the ESA 4(b)(2) report, a large proportion of the estimated economic costs (ranging from $73,000 to $16 million) for Coos Bay was associated with impacts to a proposed LNG project in the bay. The high economic cost estimate of $16 million includes the estimated costs to re-site an LNG project due to this rule. The upper bound of the economic cost range is unlikely because: (1) It is highly uncertain whether the LNG project will be constructed; and (2) the high economic cost was associated with having to relocate the project, which is unlikely to occur. The low economic cost estimate of $73,000 was based on the assumption that additional measures would not be required for LNG projects for the protection of green sturgeon critical habitat, or that any required measures would result in minimal costs (

i.e.,

the economic impact for LNG projects is $0). We recognize, however, that an estimated economic impact of $0 for potential economic impacts to LNG projects is highly unlikely. Therefore, the actual economic impact on LNG projects is likely to be within this range (greater than $0, but much lower than $16 million), but we currently lack sufficient information to estimate this cost. Based on the information regarding the conservation value of Coos Bay to the Southern DPS and uncertainty regarding the estimated economic impacts, NMFS determined that the economic benefits of exclusion do not outweigh the conservation benefits of designation and Coos Bay is included in the final critical habitat designation.

Comment 62:

One commenter requested an explanation for the exclusion of some waterways in the Sacramento-San Joaquin Delta, CA, from the proposed designation.

Response:

The specific area designated as critical habitat in the Delta includes all tidally influenced areas up to the mean higher high water line within the legal boundaries of the Delta as defined in California Water Code Section 12220, except for two modifications. The CHRT defined the boundary between the Delta and Suisun Bay by a line extending from the mouth of Spoonbill Creek across the channel to the city of Pittsburg, CA, resulting in Chipps Island being fully contained within the Suisun Bay specific area. In addition, the following slough areas are excluded from the Delta specific area: Five Mile Slough, Seven Mile Slough, Snodgrass Slough (at Lambert Road), Tom Paine Slough, and Trapper Slough. These areas were identified and excluded by the CHRT as areas that all have manmade barriers isolating them from the rest of the Delta and where green sturgeon do not occur. Structures such as gated culverts, tidal gates, and siphons control the flow of water into the channels of these sloughs, which then primarily serve as “reservoirs” for irrigation water delivered to surrounding farm fields.

Comment 63:

One commenter agreed with NMFS' proposal to exclude the waters off Alaska from the critical habitat designation, stating that Southern DPS green sturgeon rarely occur off the coast of southeast Alaska and that green sturgeon observed off Alaska most likely belong to the Northern DPS.

Response:

There have been few observations of green sturgeon, particularly Southern DPS green sturgeon, in coastal marine waters off Alaska compared to coastal marine and estuarine waters in Washington, Oregon, and California. NMFS would like to clarify, however, that green sturgeon observed off Alaska could belong to either the Northern DPS or the Southern DPS. Since 1990, a total of 8 green sturgeon have been observed in the groundfish bottom trawl fishery conducted around the Aleutian Islands and in the Bering Sea (pers. comm. with Vanessa Tuttle, NMFS, November 20, 2006; pers. comm. with Jennifer Ferdinand, NMFS, November 24, 2006). Tissue samples were collected from 2 individuals captured in 2006, but genetic analyses to determine to which DPS the individuals belong were inconclusive (pers. comm. with Josh Israel, UC Davis). Two tagged Southern DPS green sturgeon were detected at the monitor in Graves Harbor, AK (currently the only monitor located on the Alaska coast; Lindley

et al.

2008; pers. comm. with Steve Lindley, NMFS, September 12, 2007), showing that Southern DPS green sturgeon do migrate as far north as southeast Alaska. Given that there are no physical or environmental barriers present, it is possible that these fish migrate further north to the Aleutian Islands and the Bering Sea. Expansion of the monitoring array and collection of more tissue samples for genetic analyses are needed to better characterize the presence and distribution of Northern DPS and Southern DPS green sturgeon in coastal marine waters off Alaska.

Impacts on National Security

Comment 64:

The Department of Defense (DOD) requested the exclusion of coastal marine waters in Oregon adjacent to the military training facility, Camp Rilea, due to national security concerns. The area requested for exclusion included an area from one-half mile north to one-half mile south of Camp Rilea to a distance of two miles offshore of Camp Rilea. This area encompasses the surface danger zone for weapons training ranges on Camp Rilea, but is not part of the Camp Rilea facility.

Response:

We corresponded with representatives from Camp Rilea to discuss the activities occurring within the coastal marine waters adjacent to Camp Rilea and the potential impacts of the critical habitat designation on national security within this area. The activities identified to occur within this area included shooting range training exercises and amphibious landings. No in-water construction activities or activities affecting water quality were identified. The representatives for Camp Rilea agreed that the activities occurring within the area requested for exclusion would not likely affect critical habitat for the Southern DPS and that the critical habitat designation would not likely affect national security within the area. Thus, the benefits to national security of excluding this area were low. In addition, the area is located within a specific area with High conservation value that provides an important connectivity corridor for green sturgeon and is located just south of the lower Columbia River estuary, another specific area with High conservation value, and there are other Federal activities occurring in the area (

e.g.,

a submarine cable installation project) that may affect critical habitat. Thus, we determined that the benefits to national security of excluding this area did not outweigh the conservation benefits of designating the area. A more detailed analysis is provided in the final ESA section 4(b)(2) report (NMFS 2009c).

Comment 65:

The DOD requested that the following areas off the coast of Washington be excluded from the critical habitat designation: (1) Strait of Juan de Fuca and Whidbey Island Naval Restricted Areas adjacent to the runways at the Naval Air Station (NAS)

Whidbey Island; (2) Strait of Juan de Fuca Naval Air-to-Surface Weapon Range Restricted Area; (3) Admiralty Inlet Naval Restricted Area; (4) Navy 3 Operating Area in the Strait of Juan de Fuca; (5) Navy 7/Admiralty Bay Naval Restricted Area 6701 in Puget Sound; and (6) the surf zone portion of the Quinault Underwater Tracking Range (QUTR) within the Pacific Northwest Operating Area.

Response:

NMFS considered the DOD's request and the information provided by representatives from the Navy regarding the activities occurring within each of the areas requested for exclusion and the potential impacts on national security. NMFS determined that the benefits to national security of excluding the following areas outweigh the conservation benefits of designating the areas: Strait of Juan de Fuca and Whidbey Island Naval Restricted Area; Strait of Juan de Fuca Naval Air-to-Surface Weapon Range Restricted Area; Admiralty Inlet Naval Restricted Area; and Navy 3 Operating area (NMFS 2009c). We determined that the benefits of designation are low for these areas, because there are relatively few detections of green sturgeon in the area and the consultation history indicates that there are currently no other Federal activities occurring within these areas that may affect critical habitat. In addition, the size of the areas are small relative to the Strait of Juan de Fuca and the total critical habitat designation, and the Navy's presence provides some protection for green sturgeon habitat, either through regulatory control of public access or the nature of the Navy's activities that limit the kinds of other Federal activities that would occur in the areas. We also determined that the potential impacts on national security are low for these areas, because the Navy's current activities have a low likelihood of affecting critical habitat. However, we recognize that the range of activities that may be carried out in these areas are often critical to national security and that a critical habitat designation in these areas could delay or halt these activities in the future. Based on this information, we determined that the benefits of exclusion outweigh the benefits of designation and exclude the areas from the final designation. We note, however, that consultation under section 7 of the ESA would still be required to address activities that may cause jeopardy to or take of Southern DPS green sturgeon.

The Navy 7/Admiralty Bay Naval Restricted Area 6701 occurs in Puget Sound (an area that is excluded from the final critical habitat designation) and does not overlap with the specific area delineated in the Strait of Juan de Fuca (

see

“Corrections from proposed rule”). Therefore, the Navy 7/Admiralty Bay Naval Restricted Area 6701 does not overlap with the critical habitat designation for the Southern DPS. In addition, at this time NMFS cannot determine whether the surf zone portion of the QUTR warrants exclusion from the critical habitat designation because the surf zone area has not yet been defined by the Navy. The surf zone portion of the QUTR is part of a proposed extension of the QUTR range that has not yet been finalized. The Navy informed NMFS that one of three alternative sites for the surf zone portion will be selected following completion of analyses under the National Environmental Policy Act (NEPA), estimated to be completed by the end of the year 2009. Until the area has been defined, NMFS cannot evaluate the impacts on national security and determine if those impacts outweigh the benefits of designating the area as critical habitat, because the location and size of the areas could change. Thus, the area will not be excluded from the critical habitat designation at this time. Once the location of the surf zone portion of the QUTR has been selected, the Navy may request that NMFS revise the critical habitat designation to exclude the area from critical habitat based on impacts on national security. A more detailed analysis for each of the areas requested for exclusion by the Navy is provided in the final ESA section 4(b)(2) report (NMFS 2009c).

Comment 66:

The DOD commented that the area within the boundaries of the Mare Island US Army Reserve Center (USAR) near Vallejo, California, should not be eligible for consideration as critical habitat, because an integrated natural resources management plan (INRMP) is currently in place that provides the same, if not better, protection for listed species in waters adjacent to the Mare Island USAR Center. In addition, the DOD requested that the Mare Island USAR Center be excluded from designation based on impacts on national security.

Response:

NMFS corresponded with representatives from the Mare Island USAR Center to discuss the INRMP and the potential impacts on national security. The Mare Island USAR Center is located in Mare Island Strait, where the Napa River flows into San Pablo Bay, California. The Mare Island USAR Center facilities include the waters between and around Piers 22 and 23, which overlap with the habitat areas considered for designation as critical habitat. NMFS' primary concerns were that: (1) The INRMP discusses the status and occurrence of green sturgeon in the area, but does not include protective measures specifically for green sturgeon; and (2) in-bay disposal of dredged material from dredging activities between and around the piers may affect proposed green sturgeon critical habitat.

Based on the information provided by the DOD, NMFS determined that the benefits to national security of excluding waters within the boundaries of the Mare Island USAR Center facility between and around Piers 22 and 23 outweigh the conservation benefit of designating the area (NMFS 2009c). One of the major national security concerns is that limitations on pier maintenance activities or on dredging activities between and around the piers could hinder the ability of vessels to move in and out of the piers for missions. Thus, the Mare Island USAR Center is excluded from the critical habitat designation for the Southern DPS. However, NMFS determined that the INRMP does not provide adequate protection for the threatened Southern DPS (

i.e.,

the INRMP does not provide a benefit to the species, as required by ESA section 4(a)(3)(B)(i)) and recommended revisions to the INRMP to adequately address the Southern DPS, including: (1) Providing updated data on tagged green sturgeon detections from monitors placed at Piers 22 and 23; and (2) providing conservation measures to address the effects of activities on green sturgeon. In addition, NMFS requests that, upon publication of this final rule, the INRMP be updated to incorporate information about the designation of critical habitat for the Southern DPS in waters adjacent to the Mare Island USAR Center in San Pablo Bay. Although the Mare Island USAR Center is excluded from the critical habitat designation, consultation under section 7 of the ESA would be required to address activities that may cause jeopardy to or take of Southern DPS green sturgeon, and to address activities that may affect designated critical habitat (for example, consultation would be required for the disposal of dredged material within designated critical habitat areas).

Comment 67:

The DOD commented that the Military Ocean Terminal Concord (MOTCO) facility in Suisun Bay should not be eligible for consideration as critical habitat, because an existing INRMP for the facility already includes fishery measures that benefit green sturgeon. In addition, the DOD requested that the area be excluded from designation based on impacts on national security. The MOTCO operates within the property of the former Naval Weapons Station,

Detachment Concord, California, which was transferred from the U.S. Navy to the U.S. Army in fiscal year 2009. The U.S. Army is continuing operations at the MOTCO facilities in accordance with the INRMP prepared for the Naval Weapons Station Concord, as well as a Memorandum of Understanding (MOU) with the USFWS relating to the designation of a wetland preserve on the Naval Weapons Station Concord.

Response:

NMFS corresponded with a representative from MOTCO to discuss the MOTCO facilities and the INRMP. Upon further review of the MOTCO facility maps and the information provided by the MOTCO representative, NMFS determined that the MOTCO facilities are adjacent to, but do not overlap with, the habitat areas considered for designation as critical habitat for the Southern DPS in Suisun Bay, California. The MOTCO representative agreed with the determination that there is no overlap between the MOTCO facilities and the areas considered for designation a

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