[Federal Register Volume 73, Number 174 (Monday, September 8, 2008)]
[Proposed Rules]
[Pages 52084-52110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20632]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 226



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

  Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / 
Proposed Rules  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 080730953-81003-01]
RIN 0648-AX04


Endangered and Threatened Wildlife and Plants: Proposed 
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: Proposed rule; request for comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to 
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 110 meters (m) 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, and Yaquina Bay), and Washington (Willapa 
Bay and Grays Harbor). The areas proposed for designation comprise 
approximately 325 miles (524 km) of freshwater river habitat, 1,058 
square miles (2,739 sq km) of estuarine habitat, 11,927 square miles 
(30,890 sq km) of marine habitat, and 136 square miles (352 sq km) of 
habitat within the Yolo and Sutter bypasses (Sacramento River, CA).
    We propose to exclude the following areas from designation because 
the 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 110 m depth from the California/Mexico border 
north to Monterey Bay, CA, and from the Alaska/Canada border northwest 
to the Bering Strait; and certain coastal bays and estuaries in 
California (Tomales Bay, Elkhorn Slough, 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). The areas 
excluded from the proposed designation comprise approximately 1,057 
square miles (2,738 sq km) of estuarine habitat and 396,917 square 
miles (1,028,015 sq km) of marine habitat.
    We acknowledge that there may be costs incurred by those planning 
to undertake activities in certain areas, in particular Coo Bay, OR, or 
other areas along the lower Columbia River estuary, as a result of this 
proposed critical habitat designation for the Southern DPS of green 
sturgeon that were not captured in our draft economic report. These 
activities include, but are not limited to, liquefied natural gas (LNG) 
projects, hydropower activities, and alternative energy projects. We 
solicit comment on what these additional costs might be and will 
consider any additional information received in developing our final 
determination to designate or exclude areas from critical habitat for 
the Southern DPS of green sturgeon.

DATES: Comments on this proposed rule to designate critical habitat 
must be received by no later than 5 p.m. Pacific Standard Time on 
November 7, 2008. A public hearing will be held promptly if any person 
so requests by October 23, 2008. Notice of the date, location, and time 
of any such hearing will be published in the Federal Register not less 
than 15 days before the hearing is held.

ADDRESSES: You may submit comments on the proposed rule, identified by 
RIN 0648-AX04, by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
     Fax: 1-562-980-4027, Attention: Melissa Neuman.
     Mail: Submit written information to Chief, Protected 
Resources Division, Southwest Region, National Marine Fisheries 
Service, 650 Capitol Mall, Sacramento, CA 95814-4706.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (please enter N/A in the required fields if you wish 
to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file 
formats only.
    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 or Lisa Manning, NMFS, Office of Protected Resources 
(301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    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 Endangered Species Act (ESA) on April 7, 2006 (71 FR 17757).
    Section 4(b)(2) of the ESA requires us to designate critical 
habitat for threatened and endangered species ``on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, impact on national security, and any other relevant 
impact, of specifying any particular area as critical habitat.'' This 
section grants the Secretary [of Commerce] discretion to exclude any 
area from critical habitat if he determines ``the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat.'' The Secretary may not exclude an area if it ``will 
result in the extinction of the species.''
    The ESA defines critical habitat under Section 3(5)(A) as:

    ``(i) the specific areas within the geographical area occupied 
by the species, at the time it is listed * * *, on which are found 
those physical or biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations or protection; and
    (ii) specific areas outside the geographical area occupied by 
the species at the time it is listed * * * upon a determination by 
the Secretary that such areas are essential for the conservation of 
the species.''

    Once critical habitat is designated, section 7 of the ESA requires 
Federal

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agencies to ensure they do not fund, authorize, or carry out any 
actions that will destroy or adversely modify that habitat. This 
requirement is in addition to the ESA section 7 requirement that 
Federal agencies ensure their actions do not jeopardize the continued 
existence of listed species.
    When the final rule to list the Southern DPS of green sturgeon was 
published on April 7, 2006, we solicited from the public information 
that would inform the decision-making process for designating critical 
habitat for the species. Specifically, we requested information 
regarding: (1) Green sturgeon spawning habitat within the range of the 
Southern DPS that was present in the past, but may have been lost over 
time; (2) biological or other relevant data concerning any threats to 
the Southern DPS of green sturgeon; (3) quantitative evaluations 
describing the quality and extent of freshwater and marine habitats 
(occupied currently or occupied in the past, but no longer occupied) 
for juvenile and adult green sturgeon as well as information on areas 
that may qualify as critical habitat in California for the Southern 
DPS; (4) activities that could be affected by an ESA critical habitat 
designation; and (5) the economic costs and benefits of additional 
requirements of management measures likely to result from the 
designation. No substantive additional comments, beyond those that had 
been received during prior solicitations for information, were 
received.
    The timeline for completing the proposed critical habitat 
designation described in this Federal Register document was established 
pursuant to a settlement agreement. On April 17, 2007, the Center for 
Biological Diversity (CBD) filed a 60-day notice of intent to sue the 
Secretary of Commerce and NMFS for failing to designate critical 
habitat and establish protective regulations for the Southern DPS of 
green sturgeon, as required by the ESA. Pursuant to the settlement 
agreement reached between the parties, we agreed to make a 
determination on a proposed critical habitat designation for the 
Southern DPS of green sturgeon by April 30, 2008, and a final 
designation by April 30, 2009, which were later extended to September 
2, 2008 and June 30, 2009, respectively.
    In developing this proposed rule, we evaluated the best available 
information regarding green sturgeon distribution and habitat 
requirements, as well as threats to the species. In the Final Rule to 
list the Southern DPS as threatened under the ESA (71 FR 17757; April 
7, 2006), we identified seven extinction risk factors, including: (1) 
Concentration of spawning into one spawning river, increasing the risk 
of catastrophic extinction; (2) loss of spawning habitat in the upper 
Sacramento and Feather rivers due to migration barriers; (3) a general 
lack of population data, but suspected small population size; (4) 
entrainment by water project operations; (5) potentially limiting or 
lethal water temperatures; (6) commercial and recreational fisheries 
harvest; and (7) toxins and exotic species. This document describes the 
proposed critical habitat designation, including supporting information 
on green sturgeon biology, distribution, and habitat use, and the 
methods used to develop the proposed designation.

Green Sturgeon Natural History

    In the following sections, we describe the natural history of green 
sturgeon as it relates to the habitat needs of this species. The green 
sturgeon is an anadromous fish species that is long-lived and the most 
marine oriented sturgeon species in the family Acipenseridae. The North 
American form of green sturgeon (Acipenser medirostris; hereafter, 
``green sturgeon'') is related to the Asian form (A. mikadoi, also 
called Sakhalin sturgeon), but is most likely a different species 
(Artyukhin et al., 2007). Green sturgeon is one of two sturgeon species 
occurring on the U.S. west coast, the other being white sturgeon 
(Acipenser transmontanus). Adults can reach up to 270 cm in total 
length (TL) and 175 kg in weight (Moyle, 2002); however, adults greater 
than 2 m TL and 90 kg in weight are not common (Skinner, 1972). Females 
are larger and older (approximately 162 cm TL and 16-20 years of age) 
than males (approximately 152 cm TL and 14-16 years of age) upon 
reaching reproductive maturity (Van Eenennaam et al., 2006). Maximum 
ages most likely range from 60 to 70 years or older (Emmett et al., 
1991). Until recently, few studies have focused on green sturgeon due 
to its low abundance and low commercial value compared to white 
sturgeon.
    Green sturgeon range from the Bering Sea, Alaska, to 
Ense[ntilde]ada, Mexico. A few green sturgeon have been observed off 
the southern California coast, including fish less than 100 cm TL 
(Fitch and Lavenberg, 1971, cited in Moyle et al., 1995; Fitch and 
Schultz, 1978, cited in Moyle et al., 1995). Green sturgeon abundance 
increases 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 distributions outside of natal waters generally 
overlap with one another (Chadwick, 1959; Miller, 1972; 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). Thus, green 
sturgeon observed in coastal bays, estuaries, and coastal marine waters 
outside of natal rivers may belong to either DPS. However, the Northern 
DPS of green sturgeon is not classified as a listed species under the 
ESA. Tagging or genetics data are needed to determine to which DPS an 
individual fish belongs. The distribution of green sturgeon, and 
specifically of the Southern DPS, is described in detail under the 
section titled ``Geographical Areas Occupied by the Species and 
Specific Areas within the Geographical Areas Occupied.''

Spawning

    Spawning frequency is not well known, but the best information 
suggests adult green sturgeon spawn every 2-4 years (Lindley and Moser, 
NMFS, 2004, pers. comm., 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). 
Spawning populations in North America have been confirmed in the Rogue 
(Erickson et al., 2002; Farr and

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Kern, 2005), Klamath, and Sacramento Rivers (Moyle et al., 1992; CDFG, 
2002). Klamath and Rogue River populations appear to spawn within 100 
miles (161 km) of the ocean, whereas spawning on the mainstem 
Sacramento River has been documented over 240 miles (391 km) upstream, 
both downstream and upstream of Red Bluff Diversion Dam (RBDD) (Brown, 
2007). Spawning most likely occurs in fast, deep water (> 3 m deep) 
over substrates ranging from clean sand to bedrock, with preferences 
for cobble substrates (Emmett et al., 1991; Moyle et al., 1995). Green 
sturgeon females produce 59,000 to 242,000 eggs, with fecundity 
increasing with fish length and age (Van Eenennaam et al., 2006). Green 
sturgeon eggs are the largest of any sturgeon species, ranging from 
4.04 to 4.66 mm in diameter, and have a thin chorionic layer (Van 
Eenennaam et al., 2001; Van Eenennaam et al., 2006). Eggs are broadcast 
spawned and likely adhere to substrates or settle into crevices of 
river bedrock or under gravel (Deng, 2000; Van Eenennaam et al., 2001; 
Deng et al., 2002). Van Eenennaam et al. (2001) reported that green 
sturgeon eggs have weak adhesiveness, but have since retracted that 
statement, noting instead that green sturgeon eggs are quite adhesive 
within a few minutes after release from the female (Van Eenennaam, UC 
Davis, 2008, pers. comm.). Optimum flow and temperature requirements 
for spawning and incubation are unclear, but spawning success in most 
sturgeons is related to these factors (Detlaff et al., 1993). Average 
monthly water flow during the spawning season (March-July) ranged from 
209-1,252 m\3\/s in the Sacramento River over a 10-year period from 
1996-2006 (http://waterdata.usgs.gov) and from 31-260 m\3\/s in the 
Rogue River over a 4-year period from 2001-2004 (Erickson and Webb, 
2007). Spawning may be triggered by small increases in water flow 
(Schaffter, 1997; Brown, 2007). Adult sturgeon occur in the Sacramento 
River when temperatures are between 8-14 [deg]C (Moyle, 2002). In 
laboratory studies, the optimal thermal range for green sturgeon 
development was from 11 to 17-18 [deg]C, and temperatures >= 23 [deg]C 
were lethal to embryos (Van Eenennaam et al., 2005).

Development of Early Life Stages

    Green sturgeon embryos have poor swimming ability and exhibit a 
strong drive to remain in contact with structure, preferring cover and 
dark habitats to open bottom and illuminated habitats in laboratory 
experiments (Kynard et al., 2005). In these experiments, early embryos 
made no effort to swim, suggesting embryos remain in spawning areas to 
develop (Kynard et al., 2005). Newly emerged green sturgeon larvae in 
the laboratory hatched 144-216 hours, or 6-9 days, after fertilization 
(incubation temperatures ranged from 15-15.7 [deg]C) and ranged from 
12.6-15 mm in length (Van Eenennaam et al., 2001; Deng et al., 2002). 
Unlike other acipenserids, newly hatched larvae did not swim up toward 
the water surface within the first 5 days post hatch (dph), but 
remained in clumps near the bottom. By 5-6 dph, larvae exhibited 
nocturnal behavior, remaining clumped near the bottom during the day 
and actively swimming at night (Van Eenennaam et al., 2001; Deng et 
al., 2002). Upon onset of feeding at 10 dph (23.0-25.2 mm length) (Deng 
et al., 2002), larvae are believed to initiate downstream migration 
from spawning areas, staying close to the bottom and periodically 
interrupting downstream movement with upstream foraging bouts (Kynard 
et al., 2005).
    Little is known about larval rearing habitat and requirements. 
Temperatures of 15 [deg]C are believed to be optimal for larval growth, 
whereas temperatures below 11 [deg]C or above 19 [deg]C may be 
detrimental for growth (Cech et al., 2000, cited in COSEWIC, 2004). 
Substrate may also affect growth and foraging behavior. Larvae reared 
on flat-surfaced substrates (slate-rock and glass) had higher specific 
growth rates than larvae reared on cobble or sand, most likely due to 
lower foraging effectiveness and greater activity levels in cobble and 
sand substrates (Nguyen and Crocker, 2007). Larvae complete 
metamorphosis to the juvenile stage at 45 dph, when fish range from 
62.5 to 94.4 mm in length (Deng et al., 2002).
    Juveniles continue to grow rapidly, reaching 300 mm in length in 
one year and over 600 mm within 2-3 years (based on Klamath River fish; 
Nakamoto et al., 1995). Laboratory experiments indicate juveniles may 
occupy fresh to brackish water at any age, but are able to completely 
transition to salt water at around 1.5 years in age (about 533 dph; 
mean TL of 75.2 plus or minus 0.7 cm) (Allen and Cech, 2007). Early 
juveniles at 100 and 170 dph tolerated prolonged exposure to saltwater, 
but experienced decreased growth and activity levels and, in some 
cases, mortality for individuals at 100 dph (Allen and Cech, 2007). 
These results were consistent with the Nakamoto et al. (1995) study 
indicating that juveniles rear in fresh and estuarine waters before 
dispersing into salt water at about 1 to 4 years in age (about 300 to 
750 mm in length). Early juveniles also exhibit nocturnal behavior in 
all activities and initiate directed downstream movement in the fall, 
most likely to migrate to wintering habitats (Kynard et al., 2005). 
Juvenile green sturgeon prefer temperatures of 15-16 [deg]C with an 
upper limit of 19 [deg]C, beyond which swimming performance may 
decrease and cellular stress may occur (Mayfield and Cech, 2004; Allen 
et al., 2006). Laboratory measurements of oxygen consumption by 
juveniles ranged from 61.78 plus or minus 4.65 mg O2 
hr-1 kg-1 to 76.06 plus or minus 7.63 mg 
O2 hr-1 kg-1, with a trend of 
increasing oxygen consumption with increasing body mass (Allen and 
Cech, 2006). Studies on juvenile feeding in San Pablo Bay, Suisun Bay, 
and the Sacramento-San Joaquin Delta identified prey items of shrimp 
(Neomysis awatchensis, Crangon franciscorum), amphipods (Corophium 
spp., Photis californica), isopods (Synidotea laticauda), clams (Macoma 
spp.), annelid worms, and unidentified crabs and fishes (Ganssle, 1966; 
Radtke, 1966).

Adults and Subadults

    To distinguish among different life stages, we used the following 
definitions. Adults are sexually mature fish, subadults are sexually 
immature fish that have entered into coastal marine waters (usually at 
3 years of age), and juveniles are 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 between 
spawning episodes. 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 (Lindley and Moser, 
NMFS, pers. comm., cited in 70 FR 17386, April 6, 2005; Erickson and 
Webb, 2007). The average length at maturity for green sturgeon is 
estimated to be 152 cm TL (14-16 years) for males and 162 cm TL (16-20 
years) for females in the Klamath River (Van Eenennaam et al., 2006), 
and 145 cm TL for males and 166 cm TL for females in the Rogue River 
(Erickson and Webb, 2007). The maximum size of subadults is 
approximately 167 cm TL (Erickson and Webb, 2007).
    Adults typically begin their upstream spawning migration in the 
spring and either migrate downstream after spawning, or reside within 
the river over the summer. In the Klamath River, tagged adults 
exhibited four movement patterns: (1) Upstream spawning migration; (2) 
spring outmigration to the

[[Page 52087]]

ocean; (3) summer holding (June to November) in deep pools with eddy 
currents (for those that do not exhibit post-spawning spring 
outmigration); and (4) outmigration after summer holding (Benson et 
al., 2007). Use of summer holding sites has also been observed in the 
Rogue River (Erickson et al., 2002) and in the Sacramento River (R. 
Corwin, U.S. Bureau of Reclamation (USBR), 2008, pers. comm.). Deep 
holding pools greater than 5 m in depth are believed to be important 
for spawning as well as for summer holding (R. Corwin, USBR, and B. 
Poytress, USFWS, 2008, pers. comm). Winter outmigration from the 
Klamath and Rogue rivers was initiated when temperatures dropped to 10-
12 [deg]C or below 10 [deg]C, and when discharge increased to greater 
than 100 m\3\/s (Erickson et al., 2002; Benson et al., 2007). In the 
Sacramento River, tagged adult green sturgeon were present through 
November and December, before moving downstream with increased winter 
flows (M. Thomas, UC Davis, and R. Corwin, USBR, 2008, pers. comm.). 
Subadults may also migrate upstream into the natal rivers, but for 
unknown purposes. Adults and subadults also occupy the San Francisco, 
San Pablo, and Suisun bays and the Sacramento-San Joaquin Delta 
adjacent to the Sacramento River in the summer months (although some 
individuals that remain in the river until late fall/early winter 
migrate through the bays and Delta during their winter outmigration), 
during which time they are likely feeding and optimizing growth (Kelly 
et al., 2007; Moser and Lindley, 2007).
    Outside of their natal waters, adult and subadult green sturgeon 
inhabit coastal marine habitats from the Bering Sea to southern 
California, primarily occupying waters within 110 meters (m) depth 
(Erickson and Hightower, 2007). Tagged subadults and adults have been 
documented to make sustained coastal migrations of up to 100 km per day 
(S. Lindley and M. Moser, NMFS, pers. comm., cited in BRT, 2005), but 
may also reside in aggregation/feeding areas in coastal marine waters 
for several days at a time (S. Lindley and M. Moser, NMFS, 2008, pers. 
comm.). There is evidence that 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.
    Within bays and estuaries, adults and subadults inhabit a wide 
range of environmental conditions. Adults and subadults in Willapa Bay 
and the San Francisco Bay Estuary occurred over the entire temperature 
and salinity range (11.9-21.9 [deg]C; 8.8-32.1 ppt), experienced large 
fluctuations in temperature and salinity (up to 2 [deg]C h-1 
and 1 practical salinity unit (PSU) h-1), and occupied a 
wide range of dissolved oxygen levels from 6.54 to 8.98 mg 
O2/l (Kelly et al., 2007; Moser and Lindley, 2007). Tagged 
adults and subadults in the San Francisco Bay Estuary occupied shallow 
depths during directional movements but stayed close to the bottom 
during non-directional movements, presumably because they were foraging 
(Kelly et al., 2007). Similar to freshwater rivers, winter outmigration 
from Willapa Bay was initiated when water temperatures dropped below 10 
[deg]C (Moser and Lindley, 2007).
    Adult and subadult green sturgeon in the Columbia River estuary, 
Willapa Bay, and Grays Harbor feed on crangonid shrimp, burrowing 
thalassinidean shrimp (primarily the burrowing ghost shrimp (Neotrypaea 
californiensis), but possibly other related species), amphipods, clams, 
juvenile Dungeness crab (Cancer magister), anchovies, sand lances 
(Ammodytes hexapterus), lingcod (Ophiodon elongatus), and other 
unidentified fishes (P. Foley, unpublished data cited in Moyle et al., 
1995; C. Tracy, minutes to USFWS meeting, cited in Moyle et al., 1995; 
O. Langness, WDFW, pers. comm., cited in Moser and Lindley, 2007; 
Dumbauld et al., 2008). Burrowing ghost shrimp made up about 50 percent 
of the stomach contents of green sturgeon sampled in 2003 (Dumbauld et 
al., 2008). Subadults and adults feeding in bays and estuaries may be 
exposed to contaminants that may affect their growth and reproduction. 
Studies on white sturgeon in estuaries indicate that the 
bioaccumulation of pesticides and other contaminants adversely affects 
growth and reproductive development and may result in decreased 
reproductive success (Fairey et al., 1997; Foster et al., 2001a; Foster 
et al., 2001b; Kruse and Scarnecchia, 2002; Feist et al., 2005; 
Greenfield et al., 2005). Green sturgeon are believed to experience 
similar risks from contaminants (70 FR 17386, April 6, 2005).

Methods and Criteria Used to Identify Critical Habitat

    In the following sections, we describe the relevant definitions and 
requirements in the ESA and our implementing regulations and the key 
methods and criteria used to prepare this proposed critical habitat 
designation. In accordance with section 4(b)(2) of the ESA and our 
implementing regulations (50 CFR 424.12(a)), this proposed rule is 
based on the best scientific information available concerning the 
Southern DPS's present and historical range, habitat, and biology, as 
well as threats to its habitat. In preparing this rule, we reviewed and 
summarized current information on the green sturgeon, including recent 
biological surveys and reports, peer-reviewed literature, NMFS status 
reviews for green sturgeon (Moyle et al., 1992; Adams et al., 2002; 
BRT, 2005), and the proposed and final listing rules for the green 
sturgeon (70 FR 17386, April 6, 2005; 71 FR 17757, April 7, 2006).
    To assist with the evaluation of critical habitat, we convened a 
critical habitat review team (CHRT) of nine Federal biologists from 
NMFS, the U.S. Fish and Wildlife Service (USFWS), and the USBR with 
experience in green sturgeon biology, consultations, and management, or 
experience in the critical habitat designation process. The CHRT used 
the best available scientific and commercial data and their best 
professional judgment to: (1) Verify the geographical area occupied by 
the Southern DPS at the time of listing; (2) identify the physical and 
biological features essential to the conservation of the species; (3) 
identify specific areas within the occupied area containing those 
essential physical and biological features; (4) verify whether the 
essential features within each specific area may need special 
management considerations or protection and identify activities that 
may affect these essential features; (5) evaluate the conservation 
value of each specific area; and (6) determine if any unoccupied areas 
are essential to the conservation of the Southern DPS. The CHRT's 
evaluation and conclusions are described in detail in the following 
sections.

[[Page 52088]]

Physical or Biological Features Essential for Conservation

    Joint NMFS-USFWS regulations, at 50 CFR 424.12(b), state that in 
determining what areas are critical habitat, the agencies ``shall 
consider those physical and biological features that are essential to 
the conservation of a given species and that may require special 
management considerations or protection.'' Features to consider may 
include, but are not limited to: ``(1) Space for individual and 
population growth, and for normal behavior; (2) Food, water, air, 
light, minerals, or other nutritional or physiological requirements; 
(3) Cover or shelter; (4) Sites for breeding, reproduction, rearing of 
offspring, germination, or seed dispersal; and generally; (5) Habitats 
that are protected from disturbance or are representative of the 
historic geographical and ecological distributions of a species.'' The 
regulations also require the agencies to ``focus on the principal 
biological or physical constituent elements'' (hereafter referred to as 
``Primary Constituent Elements'' or PCEs) within the specific areas 
considered for designation that are essential to conservation of the 
species, which ``may include, but are not limited to, the following: * 
* * spawning sites, feeding sites, seasonal wetland or dryland, water 
quality or quantity, * * * geological formation, vegetation type, tide, 
and specific soil types.''
    The CHRT recognized that the different systems occupied by green 
sturgeon at specific stages of their life cycle serve distinct purposes 
and thus may contain different PCEs. Based on the best available 
scientific information, the CHRT identified PCEs for freshwater 
riverine systems, estuarine areas, and nearshore marine waters.
    The specific PCEs essential for the conservation of the Southern 
DPS in freshwater riverine systems include:
    (1) Food resources. Abundant prey items for larval, juvenile, 
subadult, and adult life stages. Although the CHRT lacked specific data 
on food resources for green sturgeon within freshwater riverine 
systems, juvenile green sturgeon most likely feed on fly larvae (based 
on nutritional studies on the closely-related white sturgeon) (J. 
Stuart, NMFS, 2008, pers. comm.). Food resources are important for 
juvenile foraging, growth, and development during their downstream 
migration to the Delta and bays. In addition, subadult and adult green 
sturgeon may forage during their downstream post-spawning migration, 
while holding within deep pools (Erickson et al., 2002), or on non-
spawning migrations within freshwater rivers. Subadult and adult green 
sturgeon in freshwater rivers most likely feed on benthic prey species 
similar to those fed on in bays and estuaries, including shrimp, clams, 
and benthic fishes (Moyle et al., 1995; Erickson et al., 2002; Moser 
and Lindley, 2007; Dumbauld et al., 2008).
    (2) Substrate type or size (i.e., structural features of 
substrates). Substrates suitable for egg deposition and development 
(e.g., bedrock sills and shelves, cobble and gravel, or hard clean 
sand, with interstices or irregular surfaces to ``collect'' eggs and 
provide protection from predators, and free of excessive silt and 
debris that could smother eggs during incubation), larval development 
(e.g., substrates with interstices or voids providing refuge from 
predators and from high flow conditions), and subadults and adults 
(e.g., substrates for holding and spawning). For example, spawning is 
believed to occur over substrates ranging from clean sand to bedrock, 
with preferences for cobble (Emmett et al., 1991; Moyle et al., 1995). 
Eggs likely adhere to substrates, or settle into crevices between 
substrates (Deng, 2000; Van Eenennaam et al., 2001; Deng et al., 2002). 
Both embryos and larvae exhibited a strong affinity for benthic 
structure during laboratory studies (Van Eenennaam et al., 2001; Deng 
et al., 2002; Kynard et al., 2005), and may seek refuge within 
crevices, but use flat-surfaced substrates for foraging (Nguyen and 
Crocker, 2007). For more details, see the sections on ``Spawning'' and 
``Development of early life stages''.
    (3) Water flow. A flow regime (i.e., the magnitude, frequency, 
duration, seasonality, and rate-of-change of fresh water discharge over 
time) necessary for normal behavior, growth, and survival of all life 
stages. Such a flow regime should include stable and sufficient water 
flow rates in spawning and rearing reaches to maintain water 
temperatures within the optimal range for egg, larval, and juvenile 
survival and development (11-19 [deg]C) (Cech et al., 2000, cited in 
COSEWIC, 2004; Mayfield and Cech, 2004; Van Eenennaam et al., 2005; 
Allen et al., 2006). Sufficient flow is needed to reduce the incidence 
of fungal infestations of the eggs (Deng et al., 2002; Parsley et al., 
2002). In addition, sufficient flow is needed to flush silt and debris 
from cobble, gravel, and other substrate surfaces to prevent crevices 
from being filled in (and potentially suffocating the eggs; Deng et 
al., 2002) and to maintain surfaces for feeding (Nguyen and Crocker, 
2007). Successful migration of adult green sturgeon to and from 
spawning grounds is also dependent on sufficient water flow. As stated 
in the subsection titled ``Spawning'', spawning success is most 
certainly associated with water flow and water temperature. Spawning in 
the Sacramento River is believed to be triggered by increases in water 
flow to about 400 m\3\/s (average daily water flow during spawning 
months: 198-306 m\3\/s) (Brown, 2007). Post-spawning downstream 
migrations are triggered by increased flows, ranging from 174-417 m\3\/
s in the late summer (Vogel, 2005) and greater than 100 m\3\/s in the 
winter (Erickson et al., 2002; Benson et al., 2007; M. Thomas and R. 
Corwin, USBR, 2008, pers. comm.).
    (4) Water quality. Water quality, including temperature, salinity, 
oxygen content, and other chemical characteristics, necessary for 
normal behavior, growth, and viability of all life stages (see sections 
on ``Development of early life stages'' and ``Adults and subadults''). 
Suitable water temperatures would include: Stable water temperatures 
within spawning reaches (wide fluctuations could increase egg mortality 
or deformities in developing embryos); temperatures within 11-17 [deg]C 
(optimal range = 14-16 [deg]C) in spawning reaches for egg incubation 
(March-August) (Van Eenennaam et al., 2005); temperatures below 20 
[deg]C for larval development (Werner et al., 2007); and temperatures 
below 24 [deg]C for juveniles (Mayfield and Cech, 2004; Allen et al., 
2006a). Suitable salinity levels range from fresh water (< 3 parts per 
thousand (ppt)) for larvae and early juveniles (about 100 dph) to 
brackish water (10 ppt) for juveniles prior to their transition to salt 
water. Prolonged exposure to higher salinities may result in decreased 
growth and activity levels and even mortality (Allen and Cech, 2007). 
Adequate levels of dissolved oxygen are needed to support oxygen 
consumption by fish in their early life stages (ranging from 61.78 to 
76.06 mg O2 hr-\1\ kg-\1\ for 
juveniles) (Allen and Cech, 2007). Suitable water quality would also 
include water containing acceptably low levels of contaminants (i.e., 
pesticides, organochlorines, elevated levels of heavy metals, etc.; 
acceptably low levels would be determined by NMFS on a case-by-case 
basis) that may disrupt normal development of embryonic, larval, and 
juvenile stages of green sturgeon. Water with acceptably low levels of 
such contaminants would protect green sturgeon from adverse impacts on 
growth, reproductive development, and reproductive success (e.g., 
reduced egg size and abnormal gonadal development) likely to result

[[Page 52089]]

from exposure to contaminants (Fairey et al., 1997; Foster et al., 
2001a; Foster et al., 2001b; Kruse and Scarnecchia, 2002; Feist et al., 
2005; Greenfield et al., 2005).
    (5) Migratory corridor. A migratory pathway necessary for the safe 
and timely passage of Southern DPS fish within riverine habitats and 
between riverine and estuarine habitats (e.g., an unobstructed river or 
dammed river that still allows for safe and timely passage). We define 
safe and timely passage to mean that human-induced impediments, either 
physical, chemical or biological, do not alter the migratory behavior 
of the fish such that its survival or the overall viability of the 
species is compromised (e.g., an impediment that compromises the 
ability of fish to reach their spawning habitat in time to encounter 
con-specifics and reproduce). Unimpeded migratory corridors are 
necessary for adult green sturgeon to migrate to and from spawning 
habitats, and for larval and juvenile green sturgeon to migrate 
downstream from spawning/rearing habitats within freshwater rivers to 
rearing habitats within the estuaries.
    (6) Water depth. Deep (>= 5 m) holding pools for both upstream and 
downstream holding of adult or subadult fish, with adequate water 
quality and flow to maintain the physiological needs of the holding 
adult or subadult fish (see section titled Adults and Subadults). Deep 
pools of >= 5 m depth with high associated turbulence and upwelling are 
critical for adult green sturgeon spawning and for summer holding 
within the Sacramento River (R. Corwin, USBR, and B. Poytress, USFWS, 
2008, pers. comm.). Adult green sturgeon in the Klamath and Rogue 
rivers also occupy deep holding pools for extended periods of time, 
presumably for feeding, energy conservation, and/or refuge from high 
water temperatures (Erickson et al., 2002; Benson et al., 2007).
    (7) Sediment quality. Sediment quality (i.e., chemical 
characteristics) necessary for normal behavior, growth, and viability 
of all life stages. This includes sediments free of elevated levels of 
contaminants (e.g., selenium, polyaromatic hydrocarbons (PAHs), and 
organochlorine pesticides) that may adversely affect green sturgeon. 
Based on studies of white sturgeon, bioaccumulation of contaminants 
from feeding on benthic species may adversely affect the growth, 
reproductive development, and reproductive success of green sturgeon 
(see section titled Adult and Subadults).
    The specific PCEs essential for the conservation of the Southern 
DPS in estuarine areas include:
    (1) Food resources. Abundant prey items within estuarine habitats 
and substrates for juvenile, subadult, and adult life stages. As 
described previously (see Green Sturgeon Natural History), prey species 
for juvenile, subadult, and adult green sturgeon within bays and 
estuaries primarily consist of benthic invertebrates and fishes, 
including crangonid shrimp, burrowing thalassinidean shrimp 
(particularly the burrowing ghost shrimp), amphipods, isopods, clams, 
annelid worms, crabs, sand lances, and anchovies. These prey species 
are critical for the rearing, foraging, growth, and development of 
juvenile, subadult, and adult green sturgeon within the bays and 
estuaries.
    (2) Water flow. Within bays and estuaries adjacent to the 
Sacramento River (i.e., the Sacramento-San Joaquin Delta and the 
Suisun, San Pablo, and San Francisco bays), sufficient flow into the 
bay and estuary to allow adults to successfully orient to the incoming 
flow and migrate upstream to spawning grounds. Sufficient flows are 
needed to attract adult green sturgeon to the Sacramento River to 
initiate the upstream spawning migration (Kohlhorst et al., 1991, cited 
in CDFG, 2002; J. Stuart, NMFS, 2008, pers. comm.).
    (3) Water quality. Water quality, including temperature, salinity, 
oxygen content, and other chemical characteristics, necessary for 
normal behavior, growth, and viability of all life stages. Suitable 
water temperatures for juvenile green sturgeon should be below 24 
[deg]C. At temperatures above 24 [deg]C, juvenile green sturgeon 
exhibit decreased swimming performance (Mayfield and Cech, 2004) and 
increased cellular stress (Allen et al., 2006). Suitable salinities 
range from brackish water (10 ppt) to salt water (33 ppt). Juveniles 
transitioning from brackish to salt water can tolerate prolonged 
exposure to salt water salinities, but may exhibit decreased growth and 
activity levels (Allen and Cech, 2007), whereas subadults and adults 
tolerate a wide range of salinities (Kelly et al., 2007). Subadult and 
adult green sturgeon occupy a wide range of dissolved oxygen levels, 
but may need a minimum dissolved oxygen level of at least 6.54 mg 
O2/l (Kelly et al., 2007; Moser and Lindley, 2007). As 
described above, adequate levels of dissolved oxygen are also required 
to support oxygen consumption by juveniles (ranging from 61.78 to 76.06 
mg O2 hr-\1\ kg-\1\) (Allen and Cech, 
2007). Suitable water quality also includes water with acceptably low 
levels of contaminants (e.g., pesticides, organochlorines, elevated 
levels of heavy metals; acceptable low levels as determined by NMFS on 
a case-by-case basis) that may disrupt the normal development of 
juvenile life stages, or the growth, survival, or reproduction of 
subadult or adult stages.
    (4) Migratory corridor. A migratory pathway necessary for the safe 
and timely passage of Southern DPS fish within estuarine habitats and 
between estuarine and riverine or marine habitats. We define safe and 
timely passage to mean that human-induced impediments, either physical, 
chemical or biological, do not alter the migratory behavior of the fish 
such that its survival or the overall viability of the species is 
compromised (e.g., an impediment that compromises the ability of fish 
to reach thermal refugia by the time they enter a particular life 
stage). Within the bays and estuaries adjacent to the Sacramento River, 
unimpeded passage is needed for juvenile green sturgeon to migrate from 
the river to the bays and estuaries and eventually out into the ocean. 
Passage within the bays and the Delta is also critical for adults and 
subadults for feeding and summer holding, as well as to access the 
Sacramento River for their upstream spawning migrations and to make 
their outmigration back into the ocean. Within bays and estuaries 
outside of the Delta and the Suisun, San Pablo, and San Francisco bays, 
unimpeded passage is necessary for adult and subadult green sturgeon to 
access feeding areas, holding areas, and thermal refugia, and to ensure 
passage back out into the ocean.
    (5) Water depth. A diversity of depths necessary for shelter, 
foraging, and migration of juvenile, subadult, and adult life stages. 
Subadult and adult green sturgeon occupy a diversity of depths within 
bays and estuaries for feeding and migration. Tagged adults and 
subadults within the San Francisco Bay estuary primarily occupied 
waters over shallow depths of less than 10 m, either swimming near the 
surface or foraging along the bottom (Kelly et al., 2007). In a study 
of juvenile green sturgeon in the Delta, relatively large numbers of 
juveniles were captured primarily in shallow waters from 1-3 meters 
deep, indicating juveniles may require even shallower depths for 
rearing and foraging (Radtke, 1966). Thus, a diversity of depths is 
important to support different life stages and habitat uses for green 
sturgeon within estuarine areas.

[[Page 52090]]

    (6) Sediment quality. Sediment quality (i.e., chemical 
characteristics) necessary for normal behavior, growth, and viability 
of all life stages. This includes sediments free of elevated levels of 
contaminants (e.g., selenium, PAHs, and organochlorine pesticides) that 
can cause adverse effects on all life stages of green sturgeon (see 
description of ``Sediment quality'' for riverine habitats above).
    The specific PCEs essential for the conservation of the Southern 
DPS in coastal marine areas include:
    (1) Migratory corridor. A migratory pathway necessary for the safe 
and timely passage of Southern DPS fish within marine and between 
estuarine and marine habitats. We define safe and timely passage to 
mean that human-induced impediments, either physical, chemical or 
biological, do not alter the migratory behavior of the fish such that 
its survival or the overall viability of the species is compromised 
(e.g., an impediment that compromises the ability of fish to reach 
abundant prey resources during the summer months in Northwest Pacific 
estuaries). Subadult and adult green sturgeon spend the majority of 
their time in marine and estuarine waters outside of their natal 
rivers. Unimpeded passage within coastal marine waters is critical for 
subadult and adult green sturgeon to access oversummering habitats 
within coastal bays and estuaries and overwintering habitat within 
coastal waters between Vancouver Island, BC, and southeast Alaska. 
Access to and unimpeded movement within these areas is also necessary 
for green sturgeon to forage for prey and make lengthy migrations 
necessary to reach other foraging areas (Lindley et al., 2008). Passage 
is also necessary for subadults and adults to migrate back to San 
Francisco Bay and to the Sacramento River for spawning.
    (2) Water quality. Coastal marine waters with adequate dissolved 
oxygen levels and acceptably low levels of contaminants (e.g., 
pesticides, organochlorines, heavy metals that may disrupt the normal 
behavior, growth, and viability of subadult and adult green sturgeon). 
Based on studies of tagged subadult and adult green sturgeon in the San 
Francisco Bay estuary, CA, and Willapa Bay, WA, subadults and adults 
may need a minimum dissolved oxygen level of at least 6.54 mg 
O2/l (Kelly et al., 2007; Moser and Lindley, 2007). As 
described above, exposure to and bioaccumulation of contaminants may 
adversely affect the growth, reproductive development, and reproductive 
success of subadult and adult green sturgeon. Thus, waters with 
acceptably low levels of such contaminants (as determined by NMFS on a 
case-by-case basis) are required for the normal development of green 
sturgeon for optimal survival and spawning success.
    (3) Food resources. Abundant prey items for subadults and adults, 
which may include benthic invertebrates and fishes. Green sturgeon 
spend more than half their lives in coastal marine and estuarine 
waters, spending from 3-20 years at a time out at sea. Abundant food 
resources are important to support subadults and adults over long-
distance migrations, and may be one of the factors attracting green 
sturgeon to habitats far to the north (off the coast of Vancouver 
Island and Alaska) and to the south (Monterey Bay, CA, and off the 
coast of southern California) of their natal habitat. Although the CHRT 
lacked direct evidence, prey species likely include benthic 
invertebrates and fishes similar to those fed upon by green sturgeon in 
bays and estuaries (e.g., shrimp, clams, crabs, anchovies, sand lances) 
(see section on ``Adults and subadults'').

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

    One of the first steps in the critical habitat designation process 
is to define the geographical area occupied by the species at the time 
of listing. The CHRT relied on data from tagging and tracking studies, 
genetic analyses, field observations, records of fisheries take and 
incidental take (e.g., in water diversion activities), and 
opportunistic sightings to provide information on the current range and 
distribution of green sturgeon and of the Southern DPS. The range of 
green sturgeon extends from the Bering Sea, Alaska, to Ense[ntilde]ada, 
Mexico. Within this range, Southern DPS fish are confirmed to occur 
from Graves Harbor, Alaska, to Monterey Bay, California (Lindley et 
al., 2008; S. Lindley and M. Moser, NMFS, 2008, unpublished data), 
based on telemetry data and genetic analyses. Green sturgeon have been 
observed northwest of Graves Harbor, AK, and south of Monterey Bay, CA, 
but have not been identified as belonging to either the Northern or 
Southern DPS. The CHRT concluded that there are no barriers or habitat 
conditions preventing Southern DPS fish detected in Monterey Bay, CA, 
or off Graves Harbor, AK, from moving further south or further north, 
and that the green sturgeon observed in these areas could belong to 
either the Northern DPS or the Southern DPS. Based on this reasoning, 
the geographical area occupied by the Southern DPS was defined as the 
entire range occupied by green sturgeon (i.e., from the Bering Sea, AK, 
to Ense[ntilde]ada, Mexico), encompassing all areas where the presence 
of Southern DPS fish has been confirmed, as well as areas where the 
presence of Southern DPS fish is likely (based on the presence of 
confirmed Northern DPS fish or green sturgeon of unknown DPS).
    Areas outside of the United States cannot be designated as critical 
habitat (50 CFR 424.12(h)). Thus, the occupied geographical area under 
consideration for this designation is limited to areas from the Bering 
Sea, AK, to the California/Mexico border, excluding Canadian waters. 
For freshwater rivers, the CHRT concluded that green sturgeon of each 
DPS are likely to occur throughout their natal river systems, but, 
within non-natal river systems, are likely to be limited to the 
estuaries and would not occur upstream of the head of the tide. For the 
purposes of our evaluation of critical habitat, we defined all green 
sturgeon observed upstream of the head of the tide in freshwater rivers 
south of the Eel River (i.e., the Sacramento River and its tributaries) 
as belonging to the Southern DPS, and all green sturgeon observed 
upstream of the head of the tide in freshwater rivers north of and 
including the Eel River as belonging to the Northern DPS. Thus, for 
freshwater rivers north of and including the Eel River, the areas 
upstream of the head of the tide were not considered part of the 
geographical area occupied by the Southern DPS.
    The CHRT then identified ``specific areas'' within the geographical 
area occupied. To be eligible for designation as critical habitat under 
the ESA, each specific area must contain at least one PCE that may 
require special management considerations or protection. For each 
specific occupied area, the CHRT noted whether the presence of Southern 
DPS green sturgeon is confirmed or likely (based on the presence of 
Northern DPS fish or green sturgeon of unknown DPS) and verified that 
each area contained one or more PCE(s) that may require special 
management considerations or protection. The following paragraphs 
provide a brief description of the presence and distribution of 
Southern DPS green sturgeon within each area and summarize the CHRT's 
methods for delineating the specific areas.

Freshwater Rivers, Bypasses, and the Delta

    Green sturgeon occupy several freshwater river systems from the 
Sacramento River, CA, north to British Columbia, Canada (Moyle, 2002). 
As

[[Page 52091]]

described in the previous section, Southern DPS green sturgeon occur 
throughout their natal river systems (i.e., the Sacramento River, lower 
Feather River, and lower Yuba River), but are believed to be restricted 
to the estuaries in non-natal river systems (i.e., north of and 
including the Eel River). The CHRT defined the specific areas in the 
Sacramento, Feather, and Yuba rivers in California to include riverine 
habitat from the river mouth upstream to and including the furthest 
known site of historic and/or current sighting or capture of green 
sturgeon, as long as the site is still accessible. The specific areas 
were extended upstream to a geographically identifiable point. The 
riverine specific areas include areas that offer at least periodic 
passage of Southern DPS fish to upstream sites and include sufficient 
habitat necessary for each riverine life stage (e.g., spawning, egg 
incubation, larval rearing, juvenile feeding, passage throughout the 
river, and/or passage into and out of estuarine or marine habitat).
    The CHRT delineated specific areas where Southern DPS green 
sturgeon occur, including: the Sacramento River, the Yolo and Sutter 
bypasses, the lower Feather River, and the lower Yuba River. The CHRT 
also delineated a specific area in the Sacramento-San Joaquin Delta. 
The mainstem Sacramento River is the only area where spawning by 
Southern DPS green sturgeon has been confirmed and where all life 
stages of the Southern DPS are supported. Beginning in March and 
through early summer, adult green sturgeon migrate as far upstream as 
the Keswick Dam (rkm 486) to spawn (Brown, 2007). Spawning has been 
confirmed by the collection of larvae and juveniles at the RBDD and the 
Glenn-Colusa Irrigation District (GCID) (CDFG, 2002; Brown, 2007) and 
by the collection of green sturgeon eggs downstream of the RBDD (Brown, 
2007; B. Poytress, USFWS, 2008, pers. comm.). The Sacramento River 
provides important spawning, holding, and migratory habitat for adults 
and important rearing, feeding, and migratory habitat for larvae and 
juveniles. The Yolo and Sutter bypasses adjacent to the lower 
Sacramento River also serve as important migratory corridors for 
Southern DPS adults, subadults, and juveniles on their upstream or 
downstream migration and provide a high macroinvertebrate forage base 
that may support green sturgeon feeding. Southern DPS adults occupy the 
lower Feather River up to Oroville Dam (rkm 116) and the lower Yuba 
River up to Daguerre Dam (rkm 19). Based on observations of Southern 
DPS adults occurring right up to the dams and of spawning behavior by 
adults on the Feather River, spawning may have occurred historically in 
the lower Feather River and, to a lesser extent, in the lower Yuba 
River. However, no green sturgeon eggs, larvae, or juveniles have ever 
been collected within these rivers. Further downstream, the Sacramento-
San Joaquin Delta provides important rearing, feeding, and migratory 
habitat for juveniles, which occur throughout the Delta in all months 
of the year. Subadults and adults also occur throughout the Delta to 
feed, grow, and prepare for their outmigration to the ocean. The draft 
biological report provides more detailed information on each specific 
area, including a description of the PCEs present, special management 
considerations or protection that may be needed, and the presence and 
distribution of Southern DPS green sturgeon. The draft biological 
report is available upon request (see ADDRESSES), via our Web site at 
http://swr.nmfs.noaa.gov, or via the Federal eRulemaking Web site at 
http://www.regulations.gov. For additional discussion of the special 
management considerations or protection that may be needed for the 
PCEs, please see also the description of ``Special management 
considerations or protection'' below.

Bays and Estuaries

    Southern DPS green sturgeon occupy coastal bays and estuaries from 
Monterey Bay, CA, to Puget Sound, WA. In the Central Valley, CA, 
juvenile, subadult, and adult life stages occur throughout the Suisun, 
San Pablo, and San Francisco bays. These bays support the rearing, 
feeding, and growth of juveniles prior to their first entry into marine 
waters. The bays also serve as important feeding, rearing, and 
migratory habitat for subadult and adult Southern DPS green sturgeon.
    Outside of their natal system, subadult and adult Southern DPS fish 
occupy coastal bays and estuaries in California, Oregon, and 
Washington, including estuarine waters at the mouths of non- natal 
rivers. Subadult and adult Southern DPS green sturgeon have been 
confirmed to occupy the following coastal bays and estuaries: Monterey 
Bay, CA; Humboldt Bay, CA; Coos Bay, OR; Winchester Bay, OR; the lower 
Columbia River estuary; Willapa Bay, WA; Grays Harbor, WA; and Puget 
Sound, WA (Chadwick, 1959; Miller, 1972; Lindley et al., 2008; Pinnix, 
2008; S. Lindley and M. Moser, NMFS, 2008, unpublished data). The 
presence of Southern DPS green sturgeon is likely (based on limited 
records of confirmed Northern DPS fish or green sturgeon of unknown 
DPS), but not confirmed within the following coastal bays and 
estuaries: Elkhorn Slough, CA; Tomales Bay, CA; Noyo Harbor, CA; Eel 
River estuary, CA; Klamath/Trinity River estuary, CA; Rogue River 
estuary, OR; Siuslaw River estuary, OR; Alsea River estuary, OR; 
Yaquina Bay, OR; and Tillamook Bay, OR (Emmett et al., 1991; Moyle et 
al., 1992; Adams et al., 2002; Erickson et al., 2002; Yoklavich et al., 
2002; Farr and Kern, 2005).
    Subadult and adult green sturgeon are believed to occupy coastal 
bays and estuaries outside of their natal waters for feeding, 
optimization of growth, and thermal refugia (Moser and Lindley, 2007; 
Lindley et al., 2008). Occupied coastal bays and estuaries north of San 
Francisco Bay, CA, contain oversummering habitats for subadults and 
adults, whereas coastal bays and estuaries south of San Francisco Bay, 
CA, are believed to contain overwintering habitats (Lindley et al., 
2008). The largest concentrations of green sturgeon, including Southern 
DPS fish, occur within the lower Columbia River estuary, Willapa Bay, 
and Grays Harbor (Emmett et al., 1991; Adams et al., 2002; WDFW and 
ODFW, 2002; Israel and May, 2006; Moser and Lindley, 2007; Lindley et 
al., 2008). Large numbers of green sturgeon also occur within 
Winchester Bay, Coos Bay, and Humboldt Bay (Moyle et al., 1992; Rien et 
al., 2000; Farr et al., 2001; Adams et al., 2002; Farr and Rien, 2002, 
2003; Farr and Kern, 2004, 2005; Israel and May, 2006; Lindley et al., 
2008; Pinnix, 2008). Smaller numbers of green sturgeon occur in Tomales 
Bay, CA (Moyle et al., 1992), Yaquina Bay (Emmett et al., 1991; Rien et 
al., 2000; Farr et al., 2001; Farr and Rien, 2002, 2003; Farr and Kern, 
2004, 2005), and Puget Sound, WA (S. Lindley and M. Moser, NMFS, 2008, 
unpublished data). Based on limited available data, green sturgeon 
presence is believed to be rare in the following bays and estuaries: 
Elkhorn Slough, CA; Noyo Harbor, CA; Siuslaw River estuary, OR; Alsea 
River estuary, OR; and Tillamook Bay, OR (Emmett et al., 1991; Moyle et 
al., 1992; Rien et al., 2000; Farr et al., 2001; Farr and Rien, 2002; 
Yoklavich et al., 2002; Farr and Rien, 2003; Farr and Kern, 2004, 
2005). Green sturgeon are present in the estuaries of the Eel River, 
Klamath/Trinity rivers, and Rogue River, but are believed to most 
likely belong to the Northern DPS. This is based on the fact that the 
Eel, Klamath/Trinity, and Rogue rivers are spawning rivers for the 
Northern DPS and that, to

[[Page 52092]]

date, no tagged Southern DPS subadults or adults have been detected in 
the estuaries of the three rivers, although Southern DPS fish have been 
observed in coastal marine waters just outside the mouth of the Klamath 
River (S. Lindley, NMFS, 2008, pers. comm.).
    The CHRT included all coastal bays and estuaries for which there 
was evidence to confirm the presence of green sturgeon, noting where 
there were confirmed Southern DPS fish, confirmed Northern DPS fish, or 
confirmed green sturgeon of unknown DPS. As stated in the previous 
section, based on our definitions for the Northern DPS and Southern 
DPS, any green sturgeon observed upstream of the head of the tide in 
freshwater rivers north of and including the Eel River were assigned to 
the Northern DPS. Thus, areas upstream of the head of the tide on these 
rivers were not included as part of the occupied specific areas for the 
Southern DPS. Each specific area was defined to extend from the mouth 
of the bay or estuary upstream to the head of the tide. The boundary at 
the mouth of each bay or estuary was defined by the COLREGS demarcation 
line. COLREGS demarcation lines delineate ``those waters upon which 
mariners shall comply with the International Regulations for Preventing 
Collisions at Sea, 1972 (72 COLREGS) and those waters upon which 
mariners shall comply with the Inland Navigation Rules'' (33 CFR 
80.01). Waters inside of the 72 COLREGS lines are Inland Rules waters 
and waters outside of the 72 COLREGS lines are COLREGS waters. The 
draft biological report provides additional information for each 
specific area. For a copy of the report, see ADDRESSES, our Web site at 
http://swr.nmfs.noaa.gov, or the Federal eRulemaking Web site at http://www.regulations.gov. For additional discussion of the special 
management considerations or protection that may be needed for the 
PCEs, please see also the description of ``Special management 
considerations or protection'' below.

Coastal Marine Waters

    Subadult and adult green sturgeon spend most of their time in 
coastal marine and estuarine waters. The best available data indicate 
coastal marine waters are important for seasonal migrations from 
southern California to Alaska to reach distant foraging and aggregation 
areas. Green sturgeon occur primarily within the 110 m depth bathymetry 
(Erickson and Hightower, 2007). Green sturgeon tagged in the Rogue 
River and tracked in marine waters typically occupied the water column 
at 40-70 m depth, but made rapid vertical ascents to or near the 
surface, for reasons yet unknown (Erickson and Hightower, 2007). Green 
sturgeon use of waters < 110 m depth was confirmed by coastal Oregon 
and Washington bottom-trawl fisheries records indicating that most 
reported locations of green sturgeon occurred inside of the 110-m depth 
contour from 1993-2000, despite the fact that most of the fishing 
effort occurred in water deeper than 110 m (Erickson and Hightower, 
2007).
    Based on tagging studies of both Southern and Northern DPS fish, 
green sturgeon spend a large part of their time in coastal marine 
waters migrating between coastal bays and estuaries, including 
sustained long-distance migrations of up to 100 km per day (S. Lindley 
and M. Moser, NMFS, pers. comm. cited in BRT, 2005). These seasonal 
long-distance migrations are most likely driven by food resources. Some 
tagged individuals were observed swimming at slower speeds and spending 
several days within certain areas, suggesting that the individuals were 
feeding (S. Lindley and M. Moser, NMFS, 2008, pers. comm.).
    Within the geographical area occupied (from the California/Mexico 
border to the Bering Sea, Alaska), the CHRT divided the coastal marine 
waters into 12 specific areas between estuaries or bays confirmed to be 
occupied by the Southern DPS. The presence of green sturgeon and 
Southern DPS fish within each area was based on data from tagging and 
tracking studies, records of fisheries captures, and NOAA Observer 
Program records. Tagged Southern DPS subadults and adults have been 
detected in coastal marine waters from Monterey Bay, CA, to Graves 
Harbor, AK, including the Strait of Juan de Fuca (Lindley et al., 
2008). Green sturgeon bycatch data from NOAA's West Coast Groundfish 
Observer Program (WCGOP) support the telemetry results, showing green 
sturgeon occur from Monterey Bay, CA, to Cape Flattery, WA, with the 
greatest catch per unit effort in coastal waters from Monterey Bay to 
Humboldt Bay, CA (WCGOP, 2008, unpublished data). Because green 
sturgeon were only observed in the bottom trawl fishery, there was no 
data on green sturgeon bycatch off southeast Alaska, where bottom trawl 
fishing is prohibited. Green sturgeon have, however, been captured in 
bottom trawl fisheries along the coast off British Columbia. Although 
critical habitat cannot be designated within Canadian waters, it is 
important to note that several tagged Southern DPS green sturgeon have 
been detected off Brooks Peninsula on the northern tip of Vancouver 
Island, BC (Lindley et al., 2008.). Patterns of telemetry data suggest 
that Southern DPS fish use oversummering grounds in coastal bays and 
estuaries along northern California, Oregon, and Washington and 
overwintering grounds between Vancouver Island, BC, and southeast 
Alaska (Lindley et al., 2008).
    Based on the tagging data and the information described above 
regarding green sturgeon use of coastal bays and estuaries in 
California, Oregon, and Washington, the CHRT identified the coastal 
marine waters from Monterey Bay, CA, to Vancouver Island, BC, as the 
primary migratory/connectivity corridor for subadult and adult Southern 
DPS green sturgeon to migrate to and from oversummering habitats and 
overwintering habitats. Coastal marine waters off southeast Alaska were 
not considered part of the primary migratory/connectivity corridor for 
green sturgeon, but were recognized as an important area at the 
northern extent of the overwintering range, based on the detection of 
two tagged Southern DPS fish off Graves Harbor, AK, (S. Lindley, NMFS, 
and J. Israel, UC Davis, 2007, pers. comm.) and green sturgeon bycatch 
data along the northern coast of British Columbia (Lindley et al., 
2008). For areas northwest of southeast Alaska and south of Monterey 
Bay, CA, data on green sturgeon occurrence include the 2006 capture of 
two green sturgeon of unknown DPS in bottom trawl groundfish fisheries 
off Kodiak Island, AK, and in the Bering Sea off Unimak Island, AK (J. 
Ferdinand and D. Stevenson, NMFS, 2006, pers. comm.). In coastal marine 
waters south of Monterey Bay, a few green sturgeon of unknown DPS have 
been captured off Huntington Beach and Newport (Roedel, 1941), Point 
Vicente (Norris, 1957), Santa Barbara, and San Pedro (R. Rasmussen, 
NMFS, 2006, pers. comm.). More detailed information on the specific 
areas within coastal marine waters can be found in the draft biological 
report, available at our Web site at http://swr.nmfs.noaa.gov, at the 
Federal eRulemaking Web site at http://www.regulations.gov, or upon 
request (see ADDRESSES). For additional discussion of the special 
management considerations or protection that may be needed for the 
PCEs, please see also the description of ``Special management 
considerations or protection'' below.

Special Management Considerations or Protection

    Joint NMFS and USFWS regulations at 50 CFR 424.02(j) define 
``special management considerations or protection'' to mean ``any 
methods or

[[Page 52093]]

procedures useful in protecting physical and biological features of the 
environment for the conservation of listed species.'' Based on 
discussions with the CHRT and consideration of the draft economic 
report, a number of activities were identified that may threaten the 
PCEs such that special management considerations or protection may be 
required. Major categories of habitat-related activities include: (1) 
Dams; (2) water diversions; (3) dredging and disposal of dredged 
material; (4) in-water construction or alterations, including channel 
modifications/diking, sand and gravel mining, gravel augmentation, road 
building and maintenance, forestry, grazing, agriculture, urbanization, 
and other activities; (5) National Pollutant Discharge Elimination 
System (NPDES) permit activities and activities generating non-point 
source pollution; (6) power plants; (7) commercial shipping; (8) 
aquaculture; (9) desalination plants; (10) proposed alternative energy 
projects; (11) liquefied natural gas (LNG) projects; (12) bottom 
trawling; and (13) habitat restoration. These activities may have an 
effect on one or more PCE(s) via their alteration of one or more of the 
following: Stream hydrology, water level and flow, water temperature, 
dissolved oxygen, erosion and sediment input/transport, physical 
habitat structure, vegetation, soils, nutrients and chemicals, fish 
passage, and stream/estuarine/marine benthic biota and prey resources. 
The CHRT identified the activities occurring within each specific area 
that may necessitate special management considerations or protection 
for the PCEs and these are described briefly in the following 
paragraphs. These activities are documented more fully in the draft 
biological report.
    Table 1 lists the specific areas and the river miles or area 
(square miles) covered, the PCEs present, and the activities that may 
affect the PCEs for each specific area and necessitate the need for 
special management considerations or protection. Several activities may 
affect the PCEs within the freshwater rivers, bypasses, and the Delta. 
Within the rivers, dams and diversions pose threats to habitat features 
essential for the Southern DPS by obstructing migration, alterating 
water flows and temperature, and modifying substrate composition within 
the rivers. Pollution from agricultural runoff and water returns, as 
well as from other point and non-point sources, adversely affects water 
quality within the rivers, bypasses and the Delta. Water management 
practices in the bypasses may pose a threat to Southern DPS fish 
residing within or migrating through the bypasses. For example, low 
water levels may obstruct passage through the bypasses, resulting in 
stranded fish. Within the Delta, activities such as dredging, pile 
driving, water diversion, and the discharge of pollutants from point 
and non-point sources can adversely affect water quality as well as 
alter the composition and distribution of bottom substrates within the 
Delta.
    Activities were also identified that may threaten the PCEs in 
coastal bays and estuaries and may necessitate the need for special 
management considerations or protection (Table 1). The application of 
pesticides may adversely affect prey resources and water quality within 
the bays and estuaries. In Willapa Bay and Grays Harbor, WA, the use of 
carbaryl in association with aquaculture operations reduces the 
abundance and availability of burrowing ghost shrimp, an important prey 
species for green sturgeon (Moser and Lindley, 2007; Dumbauld et al., 
2008). In the San Francisco, San Pablo, and Suisun bays, several 
pesticides have been detected at levels exceeding national benchmarks 
for the protection of aquatic life (Domagalski et al., 2000). These 
pesticides pose a water quality issue and may affect the abundance and 
health of prey items as well as the growth and reproductive health of 
Southern DPS green sturgeon through bioaccumulation. Other activities 
of concern include those that may disturb bottom substrates, adversely 
affect prey resources, or degrade water quality through resuspension of 
contaminated sediments (e.g., dredging operations, in-water 
construction).
    In addition, several activities were identified that may affect the 
PCEs within coastal marine areas such that the PCEs would require 
special management consideration or protection (Table 1). The fact that 
green sturgeon were only captured in the bottom trawl fishery (based on 
the WCGOP bycatch data) provides evidence that green sturgeon are 
associated with the benthos and thus exposed to activities that disturb 
the bottom. Of particular concern are activities that affect prey 
resources. Prey resources likely include species similar to those fed 
on by green sturgeon in bays and estuaries (e.g., burrowing ghost 
shrimp, mud shrimp, crangonid shrimp, amphipods, isopods, Dungeness 
crab), and these prey resources are known to occur within the marine 
specific areas. Activities that can affect these prey resources 
include: Commercial shipping and activities generating point source 
pollution (subject to National Pollutant Discharge Elimination System 
requirements) and non-point source pollution that can discharge 
contaminants and result in bioaccumulation of contaminants in green 
sturgeon; disposal of dredged materials that can bury prey resources; 
and bottom trawl fisheries that can disturb the bottom (but may result 
in beneficial or adverse effects on prey resources for green sturgeon). 
In addition, petroleum spills from commercial shipping activities and 
proposed tidal and wave energy projects may affect water quality or 
hinder the migration of green sturgeon along the coast and may 
necessitate special management of the PCEs.
    Table 1. Summary of occupied specific areas within freshwater 
rivers, the bypasses, the Sacramento-San Joaquin Delta, coastal bays 
and estuaries, and coastal marine areas (within 110 m depth). The river 
miles or surface area covered, the PCEs present, and activities that 
may affect the PCEs and necessitate the need for special management 
considerations or protection within each area are listed. PCEs: Wd = 
depth, Fd = food, Fl = water flow, P = passage, S = substrates, Sq = 
sediment quality, Wq = water quality. Activities: AG = agriculture, AQ 
= aquaculture, BOT = bottom trawl fishing, CON = in-water construction 
or alterations, DAM = dams, DESAL = desalination plants, DIV = water 
diversions, DR = dredging and deposition of dredged material, EP = 
tidal/wave energy projects, LNG = LNG projects, POLL = point and non-
point source pollution, PP = power plants, REST = restoration, SHIP = 
commercial shipping.

----------------------------------------------------------------------------------------------------------------
              Specific area                 River miles          PCEs present                 Activities
----------------------------------------------------------------------------------------------------------------
                                                Freshwater rivers
----------------------------------------------------------------------------------------------------------------
Upper Sacramento River, CA..............            58.9  Wd, Fd, Fl, P, S, Sq, Wq..  CON, DAM, DIV, POLL.
Lower Sacramento River, CA..............           182.4  Wd, Fd, Fl, P, S, Sq, Wq..  AG, CON, DAM, DIV, DR,
                                                                                       POLL.
Lower Feather River, CA.................            72.7  Wd, Fl, P, Wq.............  AG, CON, DAM, DIV, POLL.

[[Page 52094]]

 
Lower Yuba River, CA....................            11.5  Wd, Fl, P, Wq.............  AG, DAM, DIV, POLL.
----------------------------------------------------------------------------------------------------------------


 
                                             Area (sq
              Specific area                   miles)             PCEs present                 Activities
----------------------------------------------------------------------------------------------------------------
                                             Bypasses and the Delta
----------------------------------------------------------------------------------------------------------------
Yolo Bypass, CA.........................           112.3  Fd, P, Sq, Wq.............  AG.
Sutter Bypass, CA.......................            23.5  Fd, P, Sq, Wq.............  AG.
Sacramento-San Joaquin Delta, CA........           438.9  Wd, Fd, Fl, P, S, Sq, Wq..  CON, DIV, DR, POLL, PP,
                                                                                       REST.
----------------------------------------------------------------------------------------------------------------
                                           Coastal Bays and Estuaries
----------------------------------------------------------------------------------------------------------------
Elkhorn Slough, CA......................             1.0  Fd, Sq, P, Wq.............  DR, PP.
Suisun Bay, CA..........................            50.8  Wd, Fd, Fl, P, Sq, Wq.....  CON, DR, REST.
San Pablo Bay, CA.......................           127.7  Wd, Fd, P, Sq, Wq.........  CON, DR, POLL, PP, REST.
San Francisco Bay, CA...................           269.9  Wd, Fd, P, Sq, Wq.........  CON, DR, EP, POLL, PP,
                                                                                       REST.
Tomales Bay, CA.........................            11.5  Fd, P, Sq, Wq.............  DIV, POLL, REST.
Noyo Harbor, CA.........................            <0.1  Fd, P, Sq, Wq.............  DR, POLL.
Eel R. Estuary, CA......................             8.5  Fd, P, Sq, Wq.............  CON, POLL.
Humboldt Bay, CA........................            26.6  Fd, P, Sq, Wq.............  AQ, POLL.
Klamath/Trinity R. Estuary, CA..........             2.5  Fd, P, Sq, Wq.............  CON.
Rogue R. Estuary, OR....................             0.6  Fd, P, Sq, Wq.............  CON, POLL.
Coos Bay, OR............................            17.7  Fd, P, Sq, Wq.............  CON, LNG, POLL.
Winchester Bay, OR......................            10.8  Fd, P, Sq, Wq.............  CON, POLL.
Siuslaw R. Estuary, OR..................             0.4  Fd, P, Sq, Wq.............  CON, POLL.
Alsea R. Estuary, OR....................             0.8  Fd, P, Sq, Wq.............  CON, DIV, POLL.
Yaquina Bay, OR.........................             6.3  Fd, P, Sq, Wq.............  POLL.
Tillamook Bay, OR.......................            14.2  Fd, P, Sq, Wq.............  CON, POLL.
Columbia R. Estuary, OR and WA..........           236.9  Fd, P, Sq, Wq.............  CON, DAM, DR, LNG, POLL.
Willapa Bay, WA.........................           134.3  Fd, P, Sq, Wq.............  AQ, CON, EP, POLL.
Grays Harbor, WA........................            91.8  Fd, P, Sq, Wq.............  AQ, POLL, SHIP.
Puget Sound, WA.........................         1,017.8  Fd, P, Sq, Wq.............  CON, DR, EP, POLL, SHIP.
----------------------------------------------------------------------------------------------------------------
                                  Coastal Marine Waters within 110 meters depth
----------------------------------------------------------------------------------------------------------------
CA/Mexico Border to Monterey Bay, CA....         2,522.8  Fd, P, Wq.................  BOT, CON, DESAL, DR, EP,
                                                                                       LNG, POLL, PP.
Monterey Bay, CA, to San Francisco Bay,          1,495.9  Fd, P, Wq.................  BOT, DESAL, POLL, PP.
 CA.
San Francisco Bay, CA, to Humboldt Bay,          2,066.7  Fd, P, Wq.................  BOT, EP, POLL.
 CA.
Humboldt Bay, CA, to Coos Bay, OR.......         1,911.6  Fd, P, Wq.................  BOT, DR, EP, POLL.
Coos Bay, OR, to Winchester Bay, OR.....           186.5  Fd, P, Wq.................  BOT, EP.
Winchester Bay, OR, to Columbia R.               2,686.3  Fd, P, Wq.................  BOT, EP, POLL.
 Estuary.
Columbia R. Estuary to Willapa Bay, WA..           477.1  Fd, P, Wq.................  BOT.
Willapa Bay, WA, to Grays Harbor, WA....           403.0  Fd, P, Wq.................  BOT.
Grays Harbor, WA, to WA/Canada Border...         1,900.9  Fd, P, Wq.................  BOT, EP, POLL.
Strait of Juan De Fuca, WA..............           798.8  Fd, P, Wq.................  BOT, DR, POLL.
Canada/AK Border to Yakutat Bay, AK.....        19,567.9  Fd, P, Wq.................  EP, POLL, SHIP.
Coastal Alaskan Waters Northwest of            374,826.4  Fd, P, Wq.................  BOT, EP, LNG, SHIP.
 Yakutat Bay, AK, including the Bering
 Sea to the Bering Strait.
----------------------------------------------------------------------------------------------------------------

Unoccupied Areas

    Section 3(5)(A)(ii) of the ESA authorizes the designation of 
``specific areas outside the geographical area occupied at the time 
[the species] is listed'' if these areas are essential for the 
conservation of the species. Regulations at 50 CFR 424.12(e) emphasize 
that the agency ``shall designate as critical habitat areas outside the 
geographical area presently occupied by a species only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species.'' The CHRT considered that a critical 
habitat designation limited to presently occupied areas may not be 
sufficient for conservation, because such a designation would not 
address one of the major threats to the population identified by the 
Status Review Team--the concentration of spawning into one spawning 
river (i.e., the Sacramento River), and, as a consequence, the risk of 
extirpation due to a catastrophic event.
    The CHRT identified seven unoccupied areas in the Central Valley, 
California that may provide additional spawning habitat for the 
Southern DPS of green sturgeon and considered whether these areas are 
essential for the conservation of the Southern DPS. These seven areas 
include areas behind dams that are currently inaccessible to green 
sturgeon and areas below dams that are not currently occupied by green 
sturgeon. The areas include: (1) Reaches upstream of Oroville Dam on 
the Feather River; (2) reaches upstream of Daguerre Dam on the Yuba 
River; (3) areas on the Pit River upstream of Keswick and Shasta dams; 
(4) areas on the McCloud River upstream of Keswick

[[Page 52095]]

and Shasta dams; (5) areas on the upper Sacramento River upstream of 
Keswick and Shasta dams; (6) reaches on the American River; and (7) 
reaches on the San Joaquin River. Of these seven areas, the CHRT 
identified reaches upstream of Daguerre Dam on the Yuba River as the 
most important for conserving the species because: (1) The current 
habitat conditions are likely to support spawning; (2) adult Southern 
DPS fish currently occupy habitat just below the Daguerre Dam; (3) 
although the Yuba River is part of the Sacramento River drainage basin, 
it is separated spatially from the current, single spawning population 
on the upper Sacramento River such that if a catastrophic mortality 
event were to occur in the upper Sacramento River, a Yuba River 
population could help safeguard the species from a mortality event that 
would likely have significant adverse species-level effects; and (4) 
there is a greater potential for removal of the Daguerre Dam, or 
restoration of fish passage at the dam, in the near future than for any 
of the other dams located within the unoccupied areas identified by the 
CHRT. The CHRT also considered reaches on the San Joaquin River, from 
the South Delta to the Goodwin Dam on the Stanislaus River, as 
important for conserving the Southern DPS for some of the same reasons 
mentioned above, especially because the San Joaquin and Stanislaus 
rivers are part of an entirely different drainage basin than the 
current single spawning area in the upper Sacramento River. However, 
the CHRT was less certain regarding the prospects for reestablishing a 
spawning population in this area, because current conditions on the 
mainstem San Joaquin River are poor and it is uncertain whether 
conditions favorable for green sturgeon presence and spawning could be 
restored in this area in the near future.
    The CHRT was unable to determine that these seven unoccupied areas 
which may be essential, actually are essential to the conservation of 
the Southern DPS at this time. Thus, these seven unoccupied areas are 
not proposed for designation as critical habitat. The CHRT believed it 
likely that at least one additional spawning area is needed to support 
the conservation of the Southern DPS, but because of insufficient 
information regarding: (1) The historical use of the currently 
unoccupied areas by green sturgeon; and (2) the likelihood that the 
habitats within these unoccupied areas will be restored to conditions 
that would support green sturgeon presence and spawning (e.g., 
restoring fish passage and sufficient water flows and water 
temperatures) they were unable to determine which of these unoccupied 
areas would be essential for conserving the species. The development of 
a recovery plan could help address the latter question by establishing 
recovery actions (e.g., removal of barriers on the Yuba River) and 
recovery criteria (e.g., establishing at least two additional spawning 
populations for the Southern DPS in rivers south of the Eel River) in 
order to achieve downlisting and eventual delisting of the Southern 
DPS. NMFS encourages actions that would protect, conserve, and/or 
enhance habitat conditions for the Southern DPS (e.g., habitat 
restoration, removal of dams, and establishment of fish passage) within 
these areas. We request additional information from the public 
regarding these presently unoccupied areas and their historical, 
current, and potential use by green sturgeon. Additional information 
would inform our consideration of these areas for the final designation 
as well as future recovery planning for the Southern DPS.

Military Lands

    Under the Sikes Act of 1997 (Sikes Act) (16 U.S.C. 670a), ``each 
military installation that includes land and water suitable for the 
conservation and management of natural resources'' is required to 
develop and implement an integrated natural resources management plan 
(INRMP). An INRMP integrates implementation of the military mission of 
the installation with stewardship of the natural resources found there. 
Each INRMP includes: an assessment of the ecological needs on the 
military installation, including the need to provide for the 
conservation of listed species; a statement of goals and priorities; a 
detailed description of management actions to be implemented to provide 
for these ecological needs; and a monitoring and adaptive management 
plan. Each INRMP must, to the extent appropriate and applicable, 
provide for fish and wildlife management, fish and wildlife habitat 
enhancement or modification, wetland protection, enhancement, and 
restoration where necessary to support fish and wildlife and 
enforcement of applicable natural resource laws.
    The ESA was amended by the National Defense Authorization Act for 
Fiscal Year 2004 (Pub. L.108-136) to address the designation of 
military lands as critical habitat. ESA section 4(a)(3)(B)(i) states: 
``The Secretary shall not designate as critical habitat any lands or 
other geographical areas owned or controlled by the Department of 
Defense, or designated for its use, that are subject to an integrated 
natural resources management plan prepared under section 101 of the 
Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that 
such plan provides a benefit to the species for which critical habitat 
is proposed for designation.''
    We contacted the Department of Defense (DOD) and requested 
information on all INRMPs for DOD facilities that overlap with the 
specific areas considered for designation as critical habitat and that 
might provide benefits to green sturgeon. The INRMPs for one facility 
in California (Camp San Luis Obispo) and for nine facilities in Puget 
Sound, WA, were provided to us. Of these, the following six facilities 
with INRMPs were determined to overlap with the specific areas under 
consideration for critical habitat designation (all located in Puget 
Sound, WA): (1) Bremerton Naval Hospital; (2) Naval Air Station, 
Everett; (3) Naval Magazine Indian Island; (4) Naval Fuel Depot, 
Manchester; (5) Naval Undersea Warfare Center, Keyport; and (6) Naval 
Air Station, Whidbey Island. We reviewed the INRMPs for measures that 
would benefit green sturgeon. The INRMPs for four of the facilities 
(Bremerton Naval Hospital, NAS Everett, Naval Fuel Depot (Manchester), 
and Naval Magazine (Indian Island)) contain measures for listed salmon 
and bull trout that provide benefits for green sturgeon. The INRMPs for 
the two remaining facilities (NAS Whidbey Island and NUWC Keyport) do 
not contain specific requirements for listed salmon or bull trout, but 
also include measures that benefit fish species, including green 
sturgeon. Examples of the types of benefits include measures to control 
erosion, protect riparian zones and wetlands, minimize stormwater and 
construction impacts, and reduce contaminants. Based on these benefits 
provided for green sturgeon under the INRMPs, we determined that the 
areas within these six DOD facilities in Puget Sound, WA, were not 
eligible for designation as critical habitat.

Application of ESA Section 4(b)(2)

    Section 4(b)(2) of the ESA requires the Secretary to consider the 
economic, national security, and any other relevant impacts of 
designating any particular area as critical habitat. Any particular 
area may be excluded from critical habitat if the Secretary determines 
that the benefits of excluding the area outweigh the benefits of 
designating the area. The Secretary may not exclude a particular area 
from designation if exclusion will result in the extinction of the 
species. Because the authority to

[[Page 52096]]

exclude is discretionary, exclusion is not required for any areas. In 
this proposed designation, the Secretary has applied his statutory 
discretion to exclude 13 occupied areas from critical habitat where the 
benefits of exclusion outweigh the benefits of designation.
    The first step in conducting the ESA section 4(b)(2) analysis is to 
identify the ``particular areas'' to be analyzed. Where we considered 
economic impacts and weighed the economic benefits of exclusion against 
the conservation benefits of designation, we used the same 
biologically-based ``specific areas'' we identified in the previous 
sections pursuant to section 3(5)(A) of the ESA (e.g., the upper 
Sacramento River, the lower Sacramento River, the Delta, etc.). 
Delineating the ``particular areas'' as the same units as the 
``specific areas'' allowed us to most effectively consider the 
conservation value of the different areas when balancing conservation 
benefits of designation against economic benefits of exclusion. At this 
time, we have not identified any national security or other relevant 
impacts of designation; therefore, we did not delineate any particular 
areas on the basis of these impacts.
    The next step in the ESA section 4(b)(2) analysis involves 
identification of the impacts of designation: the benefits of 
designation and the benefits of exclusion, and then a more in-depth 
discussion of each. We then weigh the benefits of designation against 
the benefits of exclusion, identify areas eligible for exclusion where 
the benefits of exclusion outweigh the benefits of designation, and 
determine which areas are appropriate to propose for exclusion. These 
steps and the resulting list of areas excluded from designation are 
described in detail in the sections below.

Impacts of Designation

    The primary impact of a critical habitat designation stems from the 
requirement under section 7(a)(2) of the ESA that Federal agencies 
insure their actions are not likely to result in the destruction or 
adverse modification of critical habitat. Determining this impact is 
complicated by the fact that section 7(a)(2) contains the overlapping 
requirement that Federal agencies must also ensure their actions are 
not likely to jeopardize the species' continued existence. One 
incremental impact of designation is the extent to which Federal 
agencies modify their actions to insure their actions are not likely to 
adversely modify the critical habitat of the species, beyond any 
modifications they would make because of the listing and the jeopardy 
requirement. When a modification would be required due to impacts to 
both the species and critical habitat, the impact of the designation 
may be co-extensive with the ESA listing of the species. Additional 
impacts of designation include state and local protections that may be 
triggered as a result of the designation and the benefits from 
educating the public about the importance of each area for species 
conservation. The benefits of designation were evaluated by considering 
the conservation value of each occupied specific area to the Southern 
DPS. In the ``Benefits of Designation'' section below, we discuss how 
the conservation values of the specific areas were assessed.
    In determining the impacts of designation, we predicted the 
incremental change in Federal agency actions as a result of the 
critical habitat designation and the adverse modification prohibition, 
beyond the changes predicted to occur as a result of listing and the 
jeopardy provision. In recent critical habitat designations for salmon 
and steelhead and for Southern Resident killer whales, the ``co-
extensive'' impact of designation was considered in accordance with a 
Tenth Circuit Court decision (New Mexico Cattle Growers Association v. 
U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001)) (NMCA). 
The ``co-extensive'' impact of designation considers the predicted 
change in the Federal agency action resulting from the critical habitat 
designation and the adverse modification prohibition (whereby the 
action's effect on the PCEs and the value of the habitat is analyzed), 
even if the same change would result from application of the listing 
and the jeopardy provision (whereby the action's effect on the species 
itself and individual members of the species is analyzed). Shortly 
after the NMCA decision, however, the Court of Appeals for the Fifth 
Circuit (Sierra Club v. U.S. Fish and Wildlife Service, 243 F.3d 434 
(5th Cir. 2001) (Sierra Club)) and the Court of Appeals for the Ninth 
Circuit (Gifford Pinchot Task Force v. FWS, 378 F.3d 1059 (9th Cir. 
2004)) (Gifford Pinchot) invalidated our regulatory definition of 
``adverse modification'' of critical habitat. Following that decision, 
a District Court in Washington, D.C. issued a decision involving the 
USFWS's critical habitat designation for the piping plover (Cape 
Hatteras Access Preservation Alliance v. Norton, 344 F. Supp. 2d 1080 
(D.D.C. 2004)) (Cape Hatteras). In that decision, the Court reasoned 
that the impact of a regulation should be based on a comparison of the 
world with and without the action, and 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.
    Consistent with the Cape Hatteras decision, we estimated and 
analyzed the incremental impacts of designation, beyond the impacts 
that would result from the listing and jeopardy provision. Our methods 
for estimating the impacts of designation for economic impacts are 
summarized in the section below titled ``Determining the Benefits of 
Excluding Particular Areas.'' Because section 4(b)(2) requires a 
balancing of competing considerations, we have concluded that we must 
uniformly consider impacts and benefits. Though we do not propose 
exclusions based on national security impacts or other relevant 
impacts, we would also focus on incremental impacts in such an 
analysis. We recognize that excluding an area from designation will not 
likely avoid all of the impacts because the jeopardy provision under 
section 7 still applies. Similarly, much of the section 7 benefit would 
still apply because the jeopardy provision still applies.
    A draft economic report describes in more detail the types of 
activities that may be affected by the designation, the potential range 
of changes we might seek in those actions, and the estimated economic 
impacts that might result from such changes. A draft biological report 
describes in detail the CHRT's evaluation of the conservation value of 
each specific area and reports the final conservation value ratings. 
The draft ESA 4(b)(2) report describes the weighing of the benefits of 
designation against the benefits of exclusion for each area. We solicit 
comments on all of these reports, available on the NMFS Southwest 
Region Web site at http://swr.nmfs.noaa.gov/, on the Federal E-
Rulemaking Web site at http://www.regulations.gov, or upon request (see 
ADDRESSES).

Benefits of Designation

    The primary benefit of designation is the protection afforded under 
section 7 of the ESA, requiring all Federal agencies to insure their 
actions are not likely to destroy or adversely modify designated 
critical habitat. This is in addition to the requirement that all 
Federal agencies ensure their actions are not likely to jeopardize the 
continued existence of the species. In addition, the designation may 
provide education and outreach benefits by informing the public about 
areas and features important to species conservation. By delineating 
areas of high conservation value, the designation may help focus

[[Page 52097]]

and contribute to conservation efforts for green sturgeon and their 
habitats.
    These benefits are not directly comparable to the costs of 
designation for purposes of conducting the section 4(b)(2) analysis 
described below. Ideally, the benefits should be monetized. With 
sufficient information, it may be possible to monetize the benefits of 
a critical habitat designation by first quantifying the benefits 
expected from an ESA section 7 consultation and translating that into 
dollars. We are not aware, however, of any available data that would 
support such an analysis for green sturgeon (e.g., estimates of the 
monetary value associated with conserving the PCEs within areas 
designated as critical habitat, or with education and outreach 
benefits). As an alternative approach, we used the CHRT's conservation 
value ratings to represent the qualitative conservation benefits of 
designation for each of the particular areas identified as critical 
habitat for the Southern DPS (see the section titled Methods for 
Assessment of Specific Areas). These conservation value ratings 
represent the estimated incremental benefit of designating critical 
habitat for the species. In evaluating the conservation value of each 
specific area, the CHRT focused on the habitat features present in, 
habitat functions provided by each area, and the importance of 
protecting the habitat for the overall conservation of the species. The 
draft biological report sets forth detailed information on the 
qualitative conservation benefits of the specific areas proposed for 
designation, which is summarized briefly in the following paragraphs.

Methods for Assessment of Specific Areas

    After identifying the PCEs, the geographical area occupied, and the 
specific areas, the CHRT scored and rated the relative conservation 
value of each occupied specific area. The conservation value ratings 
provided an assessment of the relative importance of each specific area 
to the conservation of the Southern DPS. Areas rated as ``High'' were 
deemed to have a high likelihood of promoting the conservation of the 
Southern DPS. Areas rated as ``Medium'' or ``Low'' were deemed to have 
a moderate or low likelihood of promoting the conservation of the 
Southern DPS, respectively. The CHRT considered several factors in 
assigning the conservation value ratings, including the PCEs present, 
the condition of the PCEs, the life stages and habitat functions 
supported, and the historical, present, and potential future use of the 
area by green sturgeon. These factors were scored by the CHRT and 
summed to generate a total score for each specific area, which was 
considered in the CHRT's evaluation and assignment of the final 
conservation value ratings.
    The CHRT also considered the importance of connectivity among 
habitats, recognizing that green sturgeon must migrate along the coast 
to access important oversummering and overwintering habitats in coastal 
bays and estuaries. Specific areas in coastal marine waters may provide 
low to medium value habitat for green sturgeon based on the PCEs 
present. However, such areas may contain high-value connectivity 
corridors for green sturgeon migrating out of the San Francisco Bay 
system to bays and estuaries in California, Oregon, Washington, and 
Canada, without which green sturgeon would not be able to access high-
value habitats. The CHRT recognized that even within an area of Low to 
Medium conservation value, the presence of a migratory/connectivity 
corridor that provides passage to high value areas would warrant 
increasing the overall conservation value of the area to a High. To 
account for this, a separate conservation value rating was assigned to 
areas containing a migratory/connectivity corridor, equal to the rating 
of the highest-rated area for which it served as a migratory/
connectivity corridor.
    Members of the CHRT were then asked to re-examine the conservation 
value ratings for the specific areas where the presence of Southern DPS 
green sturgeon is likely (based on the presence of Northern DPS fish or 
green sturgeon of unknown origin), but not confirmed. These areas 
include the coastal marine waters within 110 m depth from the 
California/Mexico border to Monterey Bay, CA, and from Yakutat Bay, AK, 
to the Bering Strait (including the Bering Sea), as well as the 
following coastal bays and estuaries: Elkhorn Slough, CA; Tomales Bay, 
CA; Noyo Harbor, CA; Eel River estuary, CA; Klamath/Trinity River 
estuary, CA; Rogue River estuary, OR; Siuslaw River estuary, OR; Alsea 
River estuary, OR; Yaquina Bay, OR; and Tillamook Bay, OR. While these 
areas are considered occupied for the reasons provided above, the CHRT 
recognized that a lack of documented evidence for Southern DPS presence 
within these areas (perhaps because of the lack of monitoring or 
sampling effort within these areas) is indicative of a high degree of 
uncertainty as to the extent to which Southern DPS fish use these 
areas. The low occurrence of green sturgeon within these areas is also 
indicated by few observations of the species in these areas, both 
historically and recently. The CHRT scored all of these areas, except 
for Tomales Bay, CA, much lower than other areas, reflecting the CHRT's 
assessment that these areas contribute relatively little to the 
conservation of the species. For the bays and estuaries, this was based 
on the limited area and depth to support green sturgeon migration and 
feeding, as well as the low use of these areas by green sturgeon. 
Tomales Bay, CA, was given a higher score and rated as ``Medium,'' 
because it is a large, deep embayment providing good habitat for 
feeding by green sturgeon and is likely the first major bay to be 
encountered by subadults making their first migration into marine 
waters. As described above (see ``Bays and Estuaries''), green sturgeon 
are more commonly observed in the Eel River estuary, Klamath/Trinity 
River estuary, and Rogue River estuary, but are believed to primarily 
belong to the Northern DPS. Again, there is great uncertainty as to the 
extent of use of these estuaries by Southern DPS fish. For the coastal 
marine waters, the two areas are outside of the migratory/connectivity 
corridor identified by the CHRT and also lack confirmed Southern DPS 
presence. Although the CHRT did not include the area in southeast 
Alaska up to Yakutat Bay, AK, as part of the primary migratory 
corridor, this area was rated as ``Medium'' because it represents the 
northern extent of the area containing important overwintering grounds 
for Southern DPS green sturgeon (Lindley et al., 2008; S. Lindley and 
M. Moser, NMFS, 2008, unpublished data). Based on this information, the 
CHRT agreed that the conservation value ratings should be reduced by 
one rating for these specific areas where the presence of the Southern 
DPS is likely, but not confirmed. This necessitated the creation of a 
fourth conservation value rating (``Ultra-low''). Those specific areas 
that initially received a ``Low'' rating were assigned a final 
conservation value rating of ``Ultra-low,'' whereas those areas that 
initially received a ``Medium'' rating were assigned a final 
conservation value rating of ``Low.'' None of the specific areas where 
the presence of Southern DPS fish was likely but not confirmed had 
received a rating of ``High.''
    The final conservation ratings and the justifications for each 
specific area are summarized in the draft biological report (available 
via our Web site at http://swr.nmfs.noaa.gov, via the Federal 
eRulemaking Web site at http://www.regulations.gov, or upon

[[Page 52098]]

request--see ADDRESSES). The CHRT recognized that even within a rating 
category, variation exists. For example, freshwater riverine areas 
rated as ``High'' may be of greater conservation value to the species 
than coastal marine areas with the same rating. This variation was 
captured in the comments provided by the CHRT members for each specific 
area. The draft biological report describes in detail the evaluation 
process used by the CHRT to assess the specific areas, as well as the 
biological information supporting the CHRT's assessment.

Determining the Benefits of Excluding Particular Areas

    To determine the benefits of excluding particular areas from 
designation, we considered the Federal activities that may be subject 
to an ESA section 7 consultation and the range of potential changes 
that may be required for each of these activities under the adverse 
modification provision, regardless of whether those changes may also be 
required under the jeopardy provision. These consultation and project 
modification costs represent the economic benefits of excluding each 
particular area (that is, the economic costs that would be avoided if 
an area were excluded from the designation).
    The CHRT identified and examined the types of Federal activities 
that occur within each of the specific areas and that may affect 
Southern DPS green sturgeon and the critical habitat (also see the 
section on ``Special Management Considerations or Protection''). 
Because the Southern DPS was recently listed under the ESA in 2006, we 
lack an extensive consultation history. Thus, the CHRT relied on NMFS' 
experience in conducting ESA section 7 consultations and their best 
professional judgment to identify the types of Federal activities that 
might trigger a section 7 consultation. These include: (1) The 
installation and operation of dams; (2) the installation and operation 
of water diversions; (3) in-water construction or alterations; (4) 
dredging operations and disposal of dredge material; (5) NPDES permit 
activities and activities generating non-point source pollution, such 
as agricultural runoff; (6) power plant operations; (7) operations of 
liquefied natural gas (LNG) projects; (8) discharges from desalination 
plants; (9) commercial shipping (e.g., discharges, oil spills); (10) 
aquaculture; (11) tidal or wave energy projects; (12) bottom trawl 
fisheries; and (13) habitat restoration. While we relied on the best, 
currently available information to predict the number of these types of 
activities within the areas considered for designation as critical 
habitat, we recognize that some of these activities, in particular 
tidal or wave energy projects, are relatively new and anticipated to 
increase in number in the future. Relevant information received during 
the comment period on the number and nature of such projects expected 
to occur within the proposed critical habitat will inform any final 
designation of critical habitat. In addition, relevant information 
concerning the potential impacts to activities, particularly LNG and 
hydropower activities, will also inform any final designation, 
including our determinations of whether to exclude any particular area 
from the designation.
    We then considered the range of modifications we might seek in 
these activities to avoid destroying or adversely modifying critical 
habitat of the Southern DPS. Because of the limited consultation 
history, we relied on information from consultations conducted for 
salmon and steelhead, comments received during green sturgeon public 
scoping workshops conducted for the development of protective 
regulations, and information from green sturgeon and section 7 
biologists to determine the types of activities and potential range of 
changes. While we recognize that differences between the biology of 
Southern DPS green sturgeon and listed salmonids exist, there is also 
overlap in the types of habitat they use, their life history strategies 
and their behavior. Given the limited amount of direct information 
regarding the types of modifications we might seek to avoid adverse 
modification of Southern DPS critical habitat, we relied on the best 
information available for analog species (i.e., the listed salmonids) 
to guide our decision making. Additional information on differences in 
the habitat needs, life history strategies, and behavior of these 
species may allow us to refine our analysis. For each potential impact, 
we tried to provide information on whether the impact is more closely 
associated with adverse modification or with jeopardy, to distinguish 
the impacts of applying the jeopardy provision versus the adverse 
modification provision.
    We were able to monetize estimates of the economic impacts 
resulting from a critical habitat designation; however, because of the 
limited consultation history for green sturgeon and uncertainty about 
specific management actions likely to be required under a consultation, 
there was a great degree of uncertainty in the cost estimates for some 
specific areas. Several factors were considered in developing the 
estimated economic impacts, including the level of economic activity 
within each area, the level of baseline protection afforded to green 
sturgeon by existing regulations for each economic activity within each 
area, and the estimated economic impact (in dollars) associated with 
each activity type. The baseline included the protections afforded to 
green sturgeon by the listing and jeopardy provision, as well as 
protections provided for salmon and steelhead and their critical 
habitat including existing laws, regulations, and initiatives. 
Estimates of the economic costs were based on project modifications 
that might be required during consultation to avoid the destruction or 
adverse modification of critical habitat (see draft Economic Analysis 
Report for additional details). Thus, the estimated economic impacts 
represent the incremental impact of the designation. The draft economic 
analysis sets forth detailed information on the economic impacts of 
designating particular areas as critical habitat, as well as 
consultation costs anticipated as a result of this proposed 
designation.
    Our determination of these incremental economic impacts was based 
on the best available information. We solicit comment on the 
incremental values assigned in the economic report and will consider 
any relevant information received, including relevant differences in 
the biology of listed salmonids and green sturgeon, in developing the 
economic analysis supporting any final designation.

Exclusions Based on Economic Impacts

    A draft ESA 4(b)(2) report describes in detail our approach to 
weighing the benefit of designation against the economic benefit of 
exclusion. The results of our analysis contained in this report are 
summarized below.
    The benefits associated with species conservation are not directly 
comparable to the economic benefit, benefit to national security, or 
other relevant benefit that would result if an area were excluded from 
designation. We had sufficient information to monetize the economic 
benefits of excluding an area, but were not able to monetize the 
conservation benefits of designating an area. Thus, for each area we 
compared the qualitative conservation value against the monetary 
economic impact estimate to determine if the cost estimate exceeded a 
threshold dollar amount. Areas where the economic benefit of exclusion 
outweighed the benefit of designation were considered for exclusion 
from designation as critical habitat.

[[Page 52099]]

    We identified areas eligible for exclusion based on four decision 
rules: (1) All areas with a conservation value rating of ``High'' were 
not eligible for exclusion regardless of the level of economic impact, 
because of the threatened status of the Southern DPS of green sturgeon; 
(2) areas with a conservation value rating of ``Medium'' were eligible 
for exclusion if the estimated economic impact exceeded $100,000; (3) 
areas with a conservation value rating of ``Low'' were eligible for 
exclusion if the estimated economic impact exceeded $10,000; and (4) 
areas with a conservation value rating of ``Ultra-low'' were eligible 
for exclusion if the estimated economic impact exceeded $0 (see draft 
4(b)(2) Report for additional details). These dollar thresholds do not 
represent an objective judgment that Medium-value areas are worth no 
more than $100,000, Low-value areas are worth no more than $10,000, or 
Ultra-Low value areas are worth $0. Under the ESA, we are to weigh 
dissimilar impacts given limited time and information. The statute 
emphasizes that the decision to exclude is discretionary. Thus, the 
economic impact level at which the economic benefits of exclusion 
outweigh the conservation benefits of designation is a matter of 
discretion and depends on the policy context. For critical habitat, the 
ESA directs us to consider exclusions to avoid high economic impacts, 
but also requires that the areas designated as critical habitat are 
sufficient to support the conservation of the species and to avoid 
extinction. In this policy context, we selected dollar thresholds 
representing the levels at which the economic impact associated with a 
specific area would outweigh the conservation benefits of designating 
that area. These dollar thresholds and decision rules provided a 
relatively simple process to identify, in a limited amount of time, 
specific areas warranting consideration for exclusion.
    Based on this analysis, we identified 15 occupied areas as eligible 
for exclusion: (1) Elkhorn Slough, CA; (2) the lower Feather River, CA; 
(3) Tomales Bay, CA; (4) Noyo Harbor, CA; (5) Eel River estuary, CA; 
(6) Klamath/Trinity River estuary, CA; (7) Rogue River estuary, OR; (8) 
Coos Bay, OR; (9) Siuslaw River estuary, OR; (10) Alsea River estuary, 
OR; (11) Tillamook Bay, OR; (12) Puget Sound, WA; (13) coastal marine 
waters within 110 m depth from the CA-Mexico border to Monterey Bay, 
CA; (14) coastal marine waters within 110 m depth from the Alaska/
Canada border to Yakutat Bay, AK; and (15) coastal marine waters within 
110 m depth northwest of Yakutat Bay, AK, to the Bering Strait 
(including the Bering Sea).
    We asked the CHRT whether excluding any of the areas eligible for 
exclusion would significantly impede conservation of the Southern DPS 
or result in extinction of the species. The CHRT considered these 
questions in the context of all of the areas eligible for exclusion, as 
well as the information they had developed in determining the 
conservation value ratings.
    The CHRT determined, and we concur, that exclusion of the following 
11 areas eligible for exclusion would not significantly impede 
conservation or result in extinction of the species: (1) Elkhorn 
Slough, CA; (2) Tomales Bay, CA; (3) Noyo Harbor, CA; (4) Eel River 
estuary, CA; (5) Klamath/Trinity River estuary, CA; (6) Rogue River 
estuary, OR; (7) Siuslaw River estuary, OR; (8) Alsea River estuary, 
OR; (9) Tillamook Bay, OR; (10) coastal marine waters within 110 m 
depth from the California/Mexico border to Monterey Bay, CA; and (11) 
coastal marine waters within 110 m depth northwest of Yakutat Bay, AK, 
to the Bering Strait (including the Bering Sea). The CHRT based their 
determination on the fact that each of these 11 areas was assigned a 
Low or Ultra-low conservation value and Southern DPS fish have not been 
documented to use these areas extensively. The CHRT discussed the fact 
that the bays and estuaries eligible for exclusion listed above may not 
be used often by the Southern DPS because: (1) They are relatively 
small systems compared to other bays and estuaries that are used 
extensively and consequently received higher conservation ratings; and 
(2) Southern DPS fish do not appear to use Northern DPS spawning 
systems extensively. The CHRT discussed the fact that few green 
sturgeon (of unknown DPS) have been observed in coastal marine waters 
within 110 m depth from the California/Mexico border to Monterey Bay, 
CA; and northwest of Yakutat Bay, AK, to the Bering Strait (including 
the Bering Sea). For these reasons, the CHRT concluded that excluding 
the bays, estuaries and coastal marine areas mentioned above from the 
designation would not significantly impede conservation of the Southern 
DPS nor result in extinction of the species. Thus, we propose to 
exclude these 11 areas from the critical habitat designation for the 
Southern DPS. We recognize that the lack of documented evidence for 
Southern DPS presence in these areas may be because these areas are not 
adequately monitored for green sturgeon. We would encourage directed 
surveys to be conducted in these areas.
    The CHRT also reevaluated the four areas of medium conservation 
value that were eligible for exclusion (lower Feather River, CA; Coos 
Bay, OR; Puget Sound, WA; and coastal marine waters within 110 m depth 
from the Alaska/Canada border to Yakutat Bay, AK) to determine whether 
excluding them would significantly impede conservation of the Southern 
DPS or result in extinction of the species. The CHRT determined that 
exclusion of Puget Sound would not significantly impede conservation of 
the Southern DPS. Observations of green sturgeon in Puget Sound are 
much less common compared to the other estuaries in Washington. 
Although two confirmed Southern DPS fish were detected there in 2006, 
the extent to which Southern DPS green sturgeon use Puget Sound remains 
uncertain. Despite the fact that Puget Sound has a long history of 
commercial and recreational fishing and fishery-independent monitoring 
of other species that use habitats similar to those of green sturgeon, 
very few green sturgeon have been observed there. In addition, Puget 
Sound does not appear to be part of the coastal migratory corridor that 
Southern DPS fish use to reach overwintering grounds north of Vancouver 
Island (S. Lindley and M. Moser, NMFS, 2008, pers. comm.), thus 
corroborating the assertion that Southern DPS do not use Puget Sound 
extensively. The economic cost of designating this area was well above 
the $100 K threshold because of the large number of activities 
affecting sediment and water quality (i.e., dredging, in-water 
construction, and point and non-point sources of pollution) that might 
require special management if critical habitat were to be designated. 
Thus, we propose to exclude Puget Sound as critical habitat for the 
Southern DPS, because the benefits of designation are outweighed by the 
benefits of exclusion, and because the exclusion of this area will not 
result in the extinction of the species.
    The CHRT unanimously agreed that exclusion of the lower Feather 
River would significantly impede conservation of the Southern DPS. The 
CHRT identified the lower Feather River as an important area for the 
conservation of the Southern DPS, because it has been consistently 
occupied by the species and most likely contains spawning habitat for 
the Southern DPS, potentially providing a spawning river for the 
Southern DPS in addition to the Sacramento River. The CHRT had assigned 
the lower Feather River a Medium conservation value, but

[[Page 52100]]

noted that future improvements to habitat conditions (e.g., improved 
passage, restoration of water flow) are both logistically and 
financially feasible and if they were carried out, would raise the 
conservation value to a High. We propose to designate the lower Feather 
River as critical habitat for the Southern DPS to protect the high 
conservation potential of this area and reduce extinction risk. We 
solicit additional data and comments from the public regarding 
designation of the Lower Feather River, particularly information 
regarding the economic costs associated with activities that may be 
affected by a critical habitat designation and on the conservation 
benefits to green sturgeon provided by this area.
    The CHRT also determined that exclusion of Coos Bay would 
significantly impede the conservation of the species. The CHRT 
identified Coos Bay as an important area for the Southern DPS because 
it is the largest and deepest estuary along the Oregon coast presently 
occupied by green sturgeon, has a large mixing zone, provides a 
protected area for green sturgeon aggregation and feeding, and is an 
important ``stepping-stone'' estuary between San Francisco Bay and the 
lower Columbia River estuary. There is a great degree of uncertainty 
regarding the economic costs associated with a designation in this 
area. The estimated costs ranged from $19,000 to $16 million, spanning 
the threshold value over which an area was considered eligible for 
exclusion ($100,000 for areas with a Medium conservation value). This 
uncertainty was driven largely by the possible placement of one LNG 
terminal inside the bay, a limited understanding of how LNG projects 
would affect the PCEs, and uncertainty regarding how LNG activities 
might be altered to avoid adverse modification of green sturgeon 
critical habitat. Because there is great uncertainty regarding the LNG 
project at this time, we considered the lower economic impact estimate 
($19,000) in developing this proposed rule. Based on this information, 
we propose to designate Coos Bay as critical habitat for the Southern 
DPS, because the conservation value of the area outweighs what we 
consider to be the more realistic economic cost of designation (i.e., 
approximately $19,000). At this time, we propose that designating 
critical habitat in Coos Bay will provide conservation value to the 
species and reduce extinction risk. However, we acknowledge that 
$19,000 is likely a low estimate of the impact likely to occur as a 
result of this proposed critical habitat designation. During the 
comment period we seek from the public and will request from relevant 
Federal agencies additional data and information, in particular 
information regarding additional costs incurred by the LNG industry, to 
develop a more accurate assessment of the likely costs of this proposed 
designation in Coos Bay and other areas in the lower Columbia River 
estuary. We will use such information in our economic analysis and ESA 
4(b)(2) weighing process such that a reconsideration of the proposed 
designation of Coos Bay and other areas along the lower Columbia River 
estuary may be warranted. Therefore, we solicit additional data and 
comments regarding designation of Coos Bay and other areas along the 
lower Columbia River estuary, particularly information regarding the 
economic costs associated with LNG projects that may occur as a result 
of a critical habitat designation.
    The CHRT also looked closely at the possible exclusion of the 
coastal marine waters within 110 m depth from the Alaska/Canada border 
to Yakutat Bay, AK. Some CHRT members noted that the exclusion of this 
area from the designation might impede conservation of the Southern 
DPS, because this area may be an important component of the 
overwintering range for the species. Although only two tagged Southern 
DPS green sturgeon have been detected in this area, the fact that the 
detection system in Graves Harbor, AK, is not designed to detect green 
sturgeon and that the data have only been collected from 2005-2006 
suggests that Southern DPS use of the area may be greater than 
indicated by the available data. Other CHRT members stated that the 
relatively low number of Southern DPS detections in the area, in 
combination with the uncertainty surrounding the activities occurring 
in southeast Alaska, suggests that excluding this area from the 
designation would not significantly impede conservation or result in 
the extinction of the species. At this time, we propose to exclude the 
coastal marine waters within 110 m depth from the Alaska/Canada border 
to Yakutat Bay, AK, from the designation because the economic impacts 
outweigh the conservation benefit of designation in this area. We 
solicit the public for more information regarding: (1) The presence of 
green sturgeon in coastal waters off southeast Alaska; (2) the spatial 
distribution of the PCEs in southeast Alaska; (3) activities occurring 
in the area that may affect the PCEs; (4) the types of changes that 
might be proposed for these activities to avoid impacts to the PCEs; 
and (5) estimated costs associated with making these changes.
    In summary, we propose to exclude the following 13 specific areas 
from the critical habitat designation: (1) Elkhorn Slough, CA; (2) 
Tomales Bay, CA; (3) Noyo Harbor, CA; (4) Eel River estuary, CA; (5) 
Klamath/Trinity River estuary, CA; (6) Rogue River estuary, OR; (7) 
Siuslaw River estuary, OR; (8) Alsea River estuary, OR; (9) Tillamook 
Bay, OR; (10) Puget Sound, WA; (11) coastal marine waters within 110 m 
depth from the California/Mexico border to Monterey Bay, CA; (12) 
coastal marine waters within 110 m depth from the Alaska/Canada border 
to Yakutat Bay, AK; and (13) coastal marine waters within 110 m depth 
northwest of Yakutat Bay, AK, to the Bering Strait (including the 
Bering Sea). Based on the best scientific and commercial data 
available, we have determined that the exclusion of these 13 areas from 
the designation would not result in the extinction of the species.

Exclusions Based on Impacts on National Security

    We have contacted the DOD regarding any DOD lands that may overlap 
with areas proposed for designation as critical habitat for the 
Southern DPS. At this time, we have not received information 
identifying impacts on national security that may result from the 
designation. However, we solicit comments from the public and from the 
DOD regarding any national security concerns for the areas proposed for 
designation. We are aware of DOD sites in the Strait of Juan de Fuca 
that have been excluded on the basis of national security impacts for 
Southern Resident killer whales and Puget Sound salmon, as well as DOD 
sites off the coasts of California and Washington that may be affected 
by a critical habitat designation. We request information specifically 
pertaining to whether the designation for such sites as critical 
habitat for the Southern DPS would result in national security impacts 
that would outweigh the benefits of designation.

Other Relevant Impacts

    We did not propose exclusions based on other relevant impacts of 
designation, particularly impacts on Indian tribes.
    For this proposed critical habitat designation for Southern DPS 
green sturgeon, we reviewed maps indicating that very few if any areas 
under consideration as critical habitat actually overlap with Indian 
lands. Nearshore coastal areas comprise the vast majority of these 
possible overlap areas, but it is unclear which if any Indian lands are

[[Page 52101]]

subject to consideration for possible exclusion. In particular, we lack 
information regarding where Indian land boundaries lie in relation to 
shoreline tidal boundaries used to identify the lateral extent in this 
proposed rule. Our preliminary assessment indicates that the following 
federally-recognized tribes (73 FR 18553, April 4, 2008) have lands 
that may be in close proximity to areas under consideration for 
designation as critical habitat for Southern DPS green sturgeon: the 
Hoh, Jamestown S'Klallam, Lower Elwha, Makah, Quileute, Quinault, and 
Shoalwater Bay tribes in Washington; the Confederated Tribes of Coos 
Lower Umpqua and Siuslaw Indians and the Coquille Tribe in Oregon; and 
the Cachil DeHe Band of Wintun Indians of the Colusa Indian Community, 
Wiyot Tribe, and Yurok Tribe in California.
    We seek comments regarding these areas and will continue to 
investigate whether any Indian lands overlap, and may warrant exclusion 
from, critical habitat for Southern DPS green sturgeon. Indian lands 
are those defined in the Secretarial Order ``American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act'' (June 5, 1997), including: (1) Lands held in trust by the 
United States for the benefit of any Indian tribe; (2) land held in 
trust by the United States for any Indian Tribe or individual subject 
to restrictions by the United States against alienation; (3) fee lands, 
either within or outside the reservation boundaries, owned by the 
tribal government; and (4) fee lands within the reservation boundaries 
owned by individual Indians.
    If such areas are identified, the benefits of exclusion could 
include those we identified in recent critical habitat designations for 
Pacific salmon and steelhead (70 FR 52630; September 2, 2005), 
specifically: (1) The furtherance of established national policies, our 
Federal trust obligations and our deference to the tribes in management 
of natural resources on their lands; (2) the maintenance of effective 
long-term working relationships to promote species conservation on an 
ecosystem-wide basis; (3) the allowance for continued meaningful 
collaboration and cooperation in scientific work to learn more about 
the conservation needs of the species on an ecosystem-wide basis; and 
(4) continued respect for tribal sovereignty over management of natural 
resources on Indian lands through established tribal natural resource 
programs.
    We also seek information from affected tribes concerning other 
tribal activities that may be affected in areas other than tribal lands 
(i.e., bottom trawling and alternative energy projects in marine 
areas).

Critical Habitat Designation

    We propose to designate approximately 325 miles (524 km) of 
riverine habitat and 1,058 square miles (2,739 sq km) of estuarine 
habitat in California, Oregon, and Washington, and 11,927 square miles 
(30,890 sq km) of coastal marine habitat off California, Oregon, and 
Washington within the geographical area presently occupied by the 
Southern DPS of green sturgeon. We also propose to designate 
approximately 136 square miles (352 sq km) of habitat within the Yolo 
and Sutter bypasses, adjacent to the Sacramento River, California. The 
proposed critical habitat areas contain physical or biological features 
essential to the conservation of the species that may require special 
management considerations or protection. We propose to exclude 13 areas 
from designation for which the benefit of exclusion outweighing the 
benefit of inclusion. We conclude that the exclusion of these areas 
will not result in the extinction of the Southern DPS. Although we have 
identified 7 presently unoccupied areas that may be later determined to 
be essential to conservation, we are not proposing any unoccupied areas 
for designation as critical habitat at this time, because we do not 
have sufficient information to determine that any of the unoccupied 
areas are essential to the conservation of the species.

Lateral Extent of Critical Habitat

    For freshwater riverine habitats, we described the lateral extent 
of critical habitat units as the width of the stream channel defined by 
the ordinary high-water line, as defined by the U.S. Army Corps of 
Engineers (COE) in 33 CFR 329.11. The ordinary high-water line on non-
tidal rivers is defined as ``the line on the shore established by the 
fluctuations of water and indicated by physical characteristics such as 
a clear, natural line impressed on the bank; shelving; changes in the 
character of soil; destruction of terrestrial vegetation; the presence 
of litter and debris, or other appropriate means that consider the 
characteristics of the surrounding areas'' (33 CFR 329.11(a)(1)). In 
areas for which the ordinary high-water line has not been defined 
pursuant to 33 CFR 329.11, we defined the width of the stream channel 
by its bankfull elevation. Bankfull elevation is the level at which 
water begins to leave the channel and move into the floodplain (Rosgen, 
1996) and is reached at a discharge which generally has a recurrence 
interval of 1 to 2 years on the annual flood series (Leopold et al., 
1992). For bays and estuarine areas, we defined the lateral extent by 
the mean higher high water (MHHW) line. For coastal marine habitats, 
the lateral extent to the west is defined by the 110 m depth bathymetry 
contour relative to the line of mean lower low water (MLLW) and 
shoreward to the area that is inundated by extreme high tide, or to the 
COLREGS demarcation lines delineating the boundary between estuarine 
and marine habitats. The textual descriptions of critical habitat in 
the section titled ``226.215 Critical habitat for the Southern Distinct 
Population Segment of North American Green Sturgeon (Acipenser 
medirostris)'' are the definitive source for determining the critical 
habitat boundaries. The overview maps provided in section ``226.215 
Critical habitat for the Southern Distinct Population Segment of North 
American Green Sturgeon (Acipenser medirostris)'' are provided for 
general guidance purposes only and not as a definitive source for 
determining critical habitat boundaries.
    As discussed in previous critical habitat designations, the quality 
of aquatic and estuarine habitats within stream channels and bays and 
estuaries is intrinsically related to the adjacent riparian zones and 
floodplain, to surrounding wetlands and uplands, and to non-fish-
bearing streams above occupied stream reaches. Human activities that 
occur outside of designated streams, bays, or estuaries can destroy or 
adversely modify the essential physical and biological features within 
these areas. In addition, human activities occurring within and 
adjacent to reaches upstream or downstream of designated stream reaches 
or estuaries can also destroy or adversely modify the essential 
physical and biological features of these areas. Similarly, human 
activities that occur outside of designated coastal marine areas 
inundated by extreme high tide can destroy or adversely modify the 
essential physical and biological features of these areas. This 
designation will help to ensure that Federal agencies are aware of 
these important habitat linkages.

Effects of Critical Habitat Designation

ESA Section 7 Consultation

    Section 7(a)(2) of the ESA requires Federal agencies, including 
NMFS, to insure that any action authorized, funded, or carried out by 
the agency

[[Page 52102]]

(agency action) does not jeopardize the continued existence of any 
threatened or endangered species or destroy or adversely modify 
designated critical habitat.
    Federal agencies are also required to confer with NMFS regarding 
any actions likely to jeopardize a species proposed for listing under 
the ESA, or likely to destroy or adversely modify proposed critical 
habitat, pursuant to section 7(a)(4). A conference involves informal 
discussions in which NMFS may recommend conservation measures to 
minimize or avoid adverse effects. The discussions and conservation 
recommendations are to be documented in a conference report provided to 
the Federal agency. If requested by the Federal agency, a formal 
conference report may be issued, including a biological opinion 
prepared according to 50 CFR 402.14. A formal conference report may be 
adopted as the biological opinion when the species is listed or 
critical habitat designated, if no significant new information or 
changes to the action alter the content of the opinion.
    When a species is listed or critical habitat is designated, Federal 
agencies must consult with NMFS on any agency actions to be conducted 
in an area where the species is present and that may affect the species 
or its critical habitat. During the consultation, NMFS would evaluate 
the agency action to determine whether the action may adversely affect 
listed species or critical habitat and issue its findings in a 
biological opinion. If NMFS concludes in the biological opinion that 
the agency action would likely result in the destruction or adverse 
modification of critical habitat, NMFS would also recommend any 
reasonable and prudent alternatives to the action. Reasonable and 
prudent alternatives are defined in 50 CFR 402.02 as alternative 
actions identified during formal consultation that can be implemented 
in a manner consistent with the intended purpose of the action, that 
are consistent with the scope of the Federal agency's legal authority 
and jurisdiction, that are economically and technologically feasible, 
and that would avoid the destruction or adverse modification of 
critical habitat.
    Regulations at 50 CFR 402.16 require Federal agencies that have 
retained discretionary involvement or control over an action, or where 
such discretionary involvement or control is authorized by law, to 
reinitiate consultation on previously reviewed actions in instances 
where: (1) Critical habitat is subsequently designated; or (2) new 
information or changes to the action may result in effects to critical 
habitat not previously considered in the biological opinion. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with NMFS on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Activities subject to the ESA section 7 consultation process 
include activities on Federal lands and activities on private or state 
lands requiring a permit from a Federal agency (e.g., a section 
10(a)(1)(B) permit from NMFS) or some other Federal action, including 
funding (e.g., Federal Highway Administration (FHA) or Federal 
Emergency Management Agency (FEMA) funding). ESA section 7 consultation 
would not be required for Federal actions that do not affect listed 
species or critical habitat and for actions on non-Federal and private 
lands that are not Federally funded, authorized, or carried out.

Activities Likely To Be Affected

    ESA section 4(b)(8) requires in any proposed or final regulation to 
designate critical habitat an evaluation and brief description of those 
activities (whether public or private) that may adversely modify such 
habitat or that may be affected by such designation. A wide variety of 
activities may affect the proposed critical habitat and may be subject 
to the ESA section 7 consultation process when carried out, funded, or 
authorized by a Federal agency. These include water and land management 
actions of Federal agencies (e.g., U.S. Forest Service (USFS), Bureau 
of Land Management (BLM), Army Corps of Engineers (COE), U.S. Bureau of 
Reclamation (BOR), Natural Resource Conservation Service (NRCS), 
National Park Service (NPS), Bureau of Indian Affairs (BIA), the 
Federal Energy Regulatory Commission (FERC), and the Nuclear Regulatory 
Commission (NRC)) and related or similar Federally-regulated projects 
and activities Federal lands, including hydropower sites and proposed 
tidal/wave energy projects licensed by the FERC; nuclear power sites 
licensed by the NRC; dams built or operated by the COE or BOR; timber 
sales and other vegetation management activities conducted by the USFS, 
BLM and BIA; irrigation diversions authorized by the USFS and BLM; and 
road building and maintenance activities authorized by the USFS, BLM, 
NPA, and BIA. Other actions of concern include dredge and fill, mining, 
diking, and bank stabilization activities authorized or conducted by 
the COE, habitat modifications authorized by the FEMA, and approval of 
water quality standards and pesticide labeling and use restrictions 
administered by the Environmental Protection Agency (EPA).
    Private entities may also be affected by this proposed critical 
habitat designation if a Federal permit is required, Federal funding is 
received, or the entity is involved in or receives benefits from a 
Federal project. For example, private entities may have special use 
permits to convey water or build access roads across Federal land; they 
may require Federal permits to construct irrigation withdrawal 
facilities, or build or repair docks; they may obtain water from 
Federally funded and operated irrigation projects; or they may apply 
pesticides that are only available with Federal agency approval. These 
activities will need to be evaluated with respect to their potential to 
destroy or adversely modify critical habitat. Changes to the actions to 
minimize or avoid destruction or adverse modification of proposed 
critical habitat may result in changes to some activities, such as the 
operations of dams and dredging activities. Transportation and 
utilities sectors may need to modify the placement of culverts, 
bridges, and utility conveyances (e.g., water, sewer, and power lines) 
to avoid barriers to fish migration. Developments (e.g., marinas, 
residential, or industrial facilities) occurring in or near streams, 
estuaries, or marine waters designated as critical habitat that require 
Federal authorization or funding may need to be altered or built in a 
manner to ensure that critical habitat is not destroyed or adversely 
modified as a result of the construction or subsequent operation of the 
facility.
    Questions regarding whether specific activities will constitute 
destruction or adverse modification of critical habitat should be 
directed to NMFS (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).

Public Comments Solicited

    To ensure the final action resulting from this proposal will be as 
accurate and as effective as possible, we solicit comments and 
suggestions from the public, other concerned governments and agencies, 
the scientific community, industry, or any other interested party 
concerning this proposed rule. Specifically, public comments are sought 
concerning: (1) Information describing the abundance, distribution, and 
habitat use of Southern DPS green sturgeon in freshwater rivers, bays, 
estuaries, and coastal marine waters; (2)

[[Page 52103]]

Information on the identification, location, and quality of physical or 
biological features which may be essential to the conservation of the 
Southern DPS; (3) Information regarding potential impacts of 
designating any particular area, including the types of Federal 
activities that may trigger an ESA section 7 consultation and the 
possible modifications that may be required of those activities as a 
result of section 7 consultation; (4) Information regarding the 
benefits of designating any particular area of the proposed critical 
habitat; (5) Information regarding the benefits of excluding particular 
areas from the critical habitat designation; (6) Current or planned 
activities in the areas proposed for designation and their possible 
impacts on proposed critical habitat; and (7) Any foreseeable economic, 
national security, or other relevant impacts resulting from the 
proposed designations.
    We encourage comments on this proposal. You may submit your 
comments and materials by any one of several methods (see ADDRESSES). 
The proposed rule, maps, references, and other materials relating to 
this proposal can be found on our Web site at http://swr.nmfs.noaa.gov. 
We will consider all comments and information received during the 
comment period for this proposed rule in preparing the final rule.

Public Hearings

    Regulations at 50 CFR 424.16(c)(3) require the Secretary to 
promptly hold at least one public hearing if any person requests one 
within 45 days of publication of a proposed rule to designate critical 
habitat. Requests for a public hearing must be made in writing (see 
ADDRESSES) by October 23, 2008. If a public hearing is requested, a 
notice detailing the specific hearing location and time will be 
published in the Federal Register at least 15 days before the hearing 
is to be held. Information on specific hearing locations and times will 
also be posted on our Web site at http://swr.nmfs.noaa.gov. These 
hearings provide the opportunity for interested individuals and parties 
to give comments, exchange information and opinions, and engage in a 
constructive dialogue concerning this proposed rule. We encourage the 
public's involvement in such ESA matters.

Peer Review

    On July 1, 1994, a joint USFWS/NMFS policy for peer review was 
issued stating that the Services would solicit independent peer review 
to ensure the best biological and commercial data is used in the 
development of rulemaking actions and draft recovery plans under the 
ESA (59 FR 34270). On December 16, 2004, the Office of Management and 
Budget (OMB) issued its Final Information Quality Bulletin for Peer 
Review (Bulletin). The Bulletin was published in the Federal Register 
on January 14, 2005 (70 FR 2664), and went into effect on June 16, 
2005. The primary purpose of the Bulletin is to improve the quality and 
credibility of scientific information disseminated by the Federal 
government by requiring peer review of ``influential scientific 
information'' and highly influential scientific information'' prior to 
public dissemination. Influential scientific information is defined as 
``information the agency reasonably can determine will have or does 
have a clear and substantial impact on important public policies or 
private sector decisions.'' The Bulletin provides agencies broad 
discretion in determining the appropriate process and level of peer 
review. Stricter standards were established for the peer review of 
``highly influential scientific assessments,'' defined as information 
whose ``dissemination could have a potential impact of more than $500 
million in any one year on either the public or private sector or that 
the dissemination is novel, controversial, or precedent-setting, or has 
significant interagency interest.'' Two documents supporting this 
proposal to designate critical habitat for the Southern DPS of green 
sturgeon are considered influential scientific information and subject 
to peer review. These documents are the draft Biological Report and 
draft Economic Analysis. We have distributed the draft Biological 
Report and draft Economic Analysis for independent peer review and will 
address any comments received in developing the final drafts of the two 
reports. Both documents are available on our Web site at http://swr.nmfs.noaa.gov, on the Federal eRulemaking Web site at http://www.regulations.gov, or upon request (see ADDRESSES).

Required Determinations

Clarity of the Rule

    Section I(12) of Executive Order (E.O.) 12866 requires each agency 
to write regulations and notices that are easy to understand. NMFS 
invites your comments on how to make this proposed rule easier to 
understand, including answers to questions such as the following: (1) 
Are the requirements in the rule clearly stated? (2) Does the rule 
contain technical language or jargon that interferes with its clarity? 
(3) Does the format of the rule (grouping and order of sections, use of 
headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the 
rule be easier to understand if it were divided into more (but shorter) 
sections? (5) Is the description of the rule in the SUPPLEMENTARY 
INFORMATION section of the preamble helpful in understanding the rule? 
(6) What else could NMFS do to make the rule easier to understand? You 
may submit comments on how we could make this proposed rule easier to 
understand by any one of several methods (see ADDRESSES).

Regulatory Planning and Review (E.O. 12866)

    This proposed rule has been determined to be significant for 
purposes of E.O. 12866. A draft economic report and ESA section 4(b)(2) 
report have been prepared to support the exclusion process under 
section 4(b)(2) of the ESA.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency publishes a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis describing the effects 
of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). We have prepared an 
initial regulatory flexibility analysis (IRFA), which is part of the 
draft Economic Analysis. This document is available upon request (see 
ADDRESSES), via our Web site at http://swr.nmfs.noaa.gov, or via the 
Federal eRulemaking Web site at http://www.regulations.gov. The results 
of the IRFA are summarized below.
    At the present time, little information exists regarding the cost 
structure and operational procedures and strategies in the sectors that 
may be directly affected by the potential critical habitat designation. 
In addition, given the short consultation history for green sturgeon, 
there is significant uncertainty regarding the activities that may 
trigger an ESA section 7 consultation or how those activities may be 
modified as a result of consultation. With these limitations in mind, 
we considered which of the potential economic impacts we analyzed might 
affect small entities. These estimates should not be considered exact 
estimates of the impacts of potential critical habitat to individual 
businesses.

[[Page 52104]]

    The impacts to small businesses were assessed for the following 
eight activities: dredging, in-water construction or alterations, NPDES 
activities and other activities resulting in non-point pollution, 
agriculture, dam operations, water diversion operations, bottom trawl 
fisheries, and power plant operations. The impacts on small entities 
were not assessed for LNG projects, desalination plants, tidal and wave 
energy projects, and restoration projects because there is great 
uncertainty regarding impacts to these activities, the activities are 
unlikely to be conducted by small entities, or the impacts to small 
businesses are expected to be minor.
    Small entities were defined by the Small Business Administration 
size standards for each activity type. The majority (> 80 percent) of 
entities affected within each specific area would be considered a small 
entity. A total of 11,002 small businesses involved in the activities 
listed above would most likely be affected by the proposed critical 
habitat designation. The estimated annualized costs associated with 
section 7 consultations incurred per small entity range from $0 to 
$130,000, with the largest annualized impacts estimated for entities 
involved in bottom trawl fisheries ($10 to $130,000) and the operation 
of dams and water diversions ($0 to $89,000). The total estimated 
annualized costs of section 7 consultation incurred by small entities 
is estimated to range from $467,600 to $640,661 (the range is costs is 
due to varying costs associated with bottom trawl fisheries). The 
estimated economic impacts on small entities vary depending on the 
activity type and location.
    As required by the RFA (as amended by the SBREFA), we considered 
various alternatives to the proposed critical habitat designation for 
the Southern DPS. We considered and rejected the alternative of not 
designating critical habitat for the Southern DPS because such an 
approach does not meet the legal requirements of the ESA. We also 
considered and rejected the alternative of proposing the designation of 
all potential critical habitat areas of the Southern DPS (i.e., no 
areas are excluded), because for several areas, the economic benefits 
of exclusion outweighed the benefits of inclusion and we did not 
determine that exclusion of these areas would significantly impede 
conservation of the species or result in extinction of the species. We 
have considered and evaluated each of these alternatives in the context 
of the section 4(b)(2) process of weighing benefits of exclusion 
against benefits of designation, and determined that the current 
proposal provides an appropriate balance between conservation needs and 
the associated economic and other relevant impacts. It is estimated 
that small entities will save from $165,842 to $268,882 in compliance 
costs, due to the proposed exclusions made in this designation.

E.O. 13211

    On May 18, 2001, the President issued an Executive Order on 
regulations that significantly affect energy supply, distribution, and 
use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking an action expected to lead to the promulgation 
of a final rule or regulation that is a significant regulatory action 
under E.O. 12866 and is likely to have a significant adverse effect on 
the supply, distribution, or use of energy.
    We have considered the potential impacts of this action on the 
supply, distribution, or use of energy (see draft economic analysis 
report). Activities associated with the supply, distribution, or use of 
energy that may be affected by the critical habitat designation include 
the operation of: (1) Dams and dam facilities; (2) power plants; (3) 
proposed alternative energy projects; and (4) LNG projects.
    All of the 189 dams analyzed in the economic analysis exist within 
the areas occupied by Southern DPS green sturgeon and may be affected 
by the potential critical habitat designation. The dams are located 
within the Central Valley, CA, and in the lower Columbia River estuary. 
Owners or operators of the dams may be required to undertake specific 
modifications to avoid destroying or adversely modifying the proposed 
critical habitat for green sturgeon. Given substantial variation in the 
potential for effects on green sturgeon and critical habitat, such 
modifications would be determined on a case-by-case basis, and costs 
would vary widely. Because the areas overlap with existing critical 
habitat designations for salmon species, and because the guidelines we 
have in place for dam modifications focus on listed salmonids, we will 
likely recommend modifications to dams that are similar to those we 
recommend for salmonids until additional information on green sturgeon 
indicates otherwise. Thus, the additional effects of the critical 
habitat designation for green sturgeon would likely be minimal. In 
addition, modifications required for the protection of critical habitat 
would likely be similar to those required under the jeopardy standard.
    Of the 58 power plants analyzed in the economic analysis, 
approximately 56 power plants exist within the areas occupied by 
Southern DPS green sturgeon and may be affected by the potential 
critical habitat designation. The installation of new technology to 
cool thermal effluents may be required under an ESA section 7 
consultation. All of the power plants except for one located on the 
California coast are subject to existing protections for salmon 
species. For similar reasons given in the previous paragraph, we would 
likely recommend modifications to power plants that are similar to 
those we recommend for protecting listed salmonid critical habitat 
until additional information indicates otherwise. For the one coastal 
power plant, modifications required for the protection of critical 
habitat would likely be similar to those required under the jeopardy 
standard.
    Of the 36 alternative energy projects analyzed in the economic 
analysis, approximately 18 alternative energy projects have pending 
applications or have received preliminary permits to operate within 
bays, estuaries, and coastal marine waters proposed for designation as 
critical habitat for the Southern DPS of green sturgeon. Given the 
necessary timeframes for project construction, it may be reasonable to 
assume that this set of projects will incur project modification costs 
related to green sturgeon critical habitat within the next 20 years. 
However, it should also be noted that other new permit applications are 
likely to be filed in the future, and that rate of application may be 
increasing. The Federal Energy Regulatory Commission (FERC) points out 
that while it received only one application between 2004 and 2005 for 
hydrokinetic (tidal- and wave-energy) projects, it received seven 
preliminary permit applications in both 2006 and 2007 within the 
critical habitat study area, excluding Alaska waters. We seek comment 
on the likely number of projects within the timeframe of this analysis. 
Relevant information received will inform our final analysis.
    Because these projects are in their preliminary stages, it is not 
clear what effects the projects will have on habitats and natural 
resources, nor what effects a critical habitat designation would have 
on these projects. Concerns over the entrainment or impingement of 
green sturgeon in structures associated with alternative energy 
projects would be addressed under the jeopardy standard, whereas 
impacts on passage and water quality would be addressed under the 
adverse modification provision. Such impacts are of concern

[[Page 52105]]

for other fish species as well as for green sturgeon (McIsaac, 2008, 
Letter from the Pacific Fishery Management Council to Randall Luthi, 
Minerals Management Service). It is likely that management measures to 
minimize or avoid habitat impacts for other species will be required 
for alternative energy projects. Based on the best available 
information, the project modifications we would require to protect 
green sturgeon critical habitat would likely be similar to those 
applied for the protection of other marine species.
    Of the 12 LNG projects analyzed in the economic analysis, there are 
4 proposed LNG projects within the areas proposed for designation as 
critical habitat, one within Coos Bay and three within the lower 
Columbia River. Like the alternative energy projects, there is a high 
degree of uncertainty regarding whether these proposed projects will be 
implemented. As a result, it is unclear at this time what effects a 
critical habitat designation would have on these proposed LNG projects. 
In cases where listed salmon and steelhead species or critical habitat 
designated for these species occurs within the areas where proposed LNG 
projects are located (e.g., in the Lower Columbia River), the best 
available information indicates that measures implemented for the 
protection of these species would be similar to those required to 
protect critical habitat for green sturgeon. In areas where listed 
salmon and steelhead or critical habitat areas designated for these 
species are not present (e.g., in Coos Bay, where critical habitat has 
not been designated for salmon and steelhead), measures implemented to 
avoid adverse modification of green sturgeon habitat may result in 
energy impacts.
    Based on this preliminary analysis, we have initially determined 
that the designation of critical habitat for Southern DPS green 
sturgeon would not result in significant impacts on the supply, 
distribution, or use of energy.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act, NMFS makes the 
following findings:
    (A) This proposed rule will not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, 
tribal governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
government's ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement.) ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (I) a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.'' The designation of critical habitat does 
not impose an enforceable duty on non-Federal government entities or 
private parties. The only regulatory effect of a critical habitat 
designation is that Federal agencies must ensure that their actions do 
not destroy or adversely modify critical habitat under ESA section 7. 
Non-Federal entities who receive funding, assistance, or permits from 
Federal agencies, or otherwise require approval or authorization from a 
Federal agency for an action may be indirectly affected by the 
designation of critical habitat. Furthermore, to the extent that non-
Federal entities are indirectly impacted because they receive Federal 
assistance or participate in a voluntary Federal aid program, the 
Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
to state governments.
    (b) Due to the prohibition against take of the Southern DPS both 
within and outside of the designated areas, we do not anticipate that 
this proposed rule will significantly or uniquely affect small 
governments. As such, a Small Government Agency Plan is not required.

Takings

    Under E.O. 12630, Federal agencies must consider the effects of 
their actions on constitutionally protected private property rights and 
avoid unnecessary takings of property. A taking of property includes 
actions that result in physical invasion or occupancy of private 
property, and regulations imposed on private property that 
substantially affect its value or use. In accordance with E.O. 12630, 
this proposed rule does not have significant takings implications. A 
takings implication assessment is not required. The designation of 
critical habitat affects only Federal agency actions. This proposed 
rule would not increase or decrease the current restrictions on private 
property concerning take of Southern DPS fish, nor do we expect the 
proposed critical habitat designation to impose additional burdens on 
land use or affect property values. Additionally, the proposed critical 
habitat designation does not preclude the development of Habitat 
Conservation Plans and issuance of incidental take permits for non-
Federal actions. Owners of areas included within the proposed critical 
habitat designation would continue to have the opportunity to use their 
property in ways consistent with the survival of listed Southern DPS.

Federalism

    In accordance with E.O. 13132, we determined that this proposed 
rule does not have significant Federalism effects and that a Federalism 
assessment is not required. In keeping with Department of Commerce 
policies, we request information from, and will coordinate development 
of this proposed critical habitat designation with, appropriate state 
resource agencies in California, Oregon, Washington, and Alaska. The 
proposed designation may have some benefit to state and local resource 
agencies in that the areas essential to the conservation of the species 
are more clearly defined, and the PCEs of the habitat necessary for the 
survival of the Southern DPS of green sturgeon are specifically 
identified. While this designation does not alter where and what 
Federally sponsored activities may occur, it may assist local 
governments in long-range planning (rather than waiting for case-by-
case ESA section 7 consultations to occur).

Civil Justice Reform

    In accordance with E.O. 12988, we have determined that this 
proposed rule does not unduly burden the judicial system and meets the 
requirements of sections 3(a) and 3(b)(2) of the E.O. We

[[Page 52106]]

are proposing to designate critical habitat in accordance with the 
provisions of the ESA. This proposed rule uses standard property 
descriptions and identifies the PCEs within the designated areas to 
assist the public in understanding the habitat needs of the Southern 
DPS of green sturgeon.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This proposed rule does not contain new or revised information 
collections that require approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act. This proposed rule will 
not impose recordkeeping or reporting requirements on State or local 
governments, individuals, businesses, or organizations. An agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act of 1969 (NEPA)

    NMFS has determined that an environmental analysis as provided for 
under the NEPA of 1969 for critical habitat designations made pursuant 
to the ESA is not required. See Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. Denied, 116 S.Ct 698 (1996).

Government-to-Government Relationship With Tribes

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian Tribes and the 
application of fiduciary standards of due care with respect to Indian 
lands, tribal trust resources, and the exercise of tribal rights. 
Pursuant to these authorities lands have been retained by Indian Tribes 
or have been set aside for tribal use. These lands are managed by 
Indian Tribes in accordance with tribal goals and objectives within the 
framework of applicable treaties and laws. E.O. 13175, Consultation and 
Coordination with Indian Tribal Governments, outlines the 
responsibilities of the Federal Government in matters affecting tribal 
interests.
    There is a broad array of activities on Indian lands that may 
trigger ESA section 7 consultations. In the case of Southern DPS green 
sturgeon, we reviewed maps indicating that very few if any areas under 
consideration as critical habitat actually overlap with Indian lands. 
Nearshore coastal areas comprise the vast majority of these possible 
overlap areas, but it is unclear which if any Indian lands are subject 
to consideration for possible exclusion. In particular, we lack 
information regarding where Indian land boundaries lie in relation to 
shoreline tidal boundaries used to identify the lateral extent in this 
proposed rule. Our preliminary assessment indicates that the following 
federally recognized tribes (73 FR 18553, April 4, 2008) have lands 
that may be in close proximity to areas under consideration for 
designation as critical habitat for Southern DPS green sturgeon: The 
Hoh, Jamestown S'Klallam, Lower Elwha, Makah, Quileute, Quinault, and 
Shoalwater Bay tribes in Washington; the Confederated Tribes of Coos 
Lower Umpqua and Siuslaw Indians and the Coquille Tribe in Oregon; and 
the Cachil DeHe Band of Wintun Indians of the Colusa Indian Community, 
Wiyot Tribe, and Yurok Tribe in California.
    We seek comments regarding these areas and will continue to 
investigate whether any Indian lands overlap, and may warrant exclusion 
from, critical habitat for Southern DPS green sturgeon. Indian lands 
are those defined in the Secretarial Order ``American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act'' (June 5, 1997), including: (1) Lands held in trust by the 
United States for the benefit of any Indian tribe; (2) land held in 
trust by the United States for any Indian Tribe or individual subject 
to restrictions by the United States against alienation; (3) fee lands, 
either within or outside the reservation boundaries, owned by the 
tribal government; and (4) fee lands within the reservation boundaries 
owned by individual Indians.
    If such areas are identified, the benefits of exclusion could 
include those we identified in recent critical habitat designations for 
Pacific salmon and steelhead (70 FR 52630; September 2, 2005), 
specifically: (1) The furtherance of established national policies, our 
Federal trust obligations and our deference to the tribes in management 
of natural resources on their lands; (2) the maintenance of effective 
long-term working relationships to promote species conservation on an 
ecosystem-wide basis; (3) the allowance for continued meaningful 
collaboration and cooperation in scientific work to learn more about 
the conservation needs of the species on an ecosystem-wide basis; and 
(4) continued respect for tribal sovereignty over management of natural 
resources on Indian lands through established tribal natural resource 
programs.
    We also seek information from affected tribes concerning other 
tribal activities that may be affected in areas other than tribal lands 
(i.e., bottom trawling and alternative energy projects in marine 
areas).

References Cited

    A complete list of all references cited herein is available upon 
request (see ADDRESSES section) or via our Web site at http://swr.nmfs.noaa.gov.

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: August 29, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, we propose to amend part 
226, title 50 of the Code of Federal Regulations as set forth below:

PART 226--DESIGNATED CRITICAL HABITAT

    1. The authority citation of part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533.

    2. Add Sec.  226.216, to read as follows:


Sec.  226.216  Critical habitat for the Southern Distinct Population 
Segment of North American Green Sturgeon (Acipenser medirostris).

    Critical habitat is designated for the Southern Distinct Population 
Segment of North American green sturgeon (Southern DPS) as described in 
this section. The textual descriptions of critical habitat in this 
section are the definitive source for determining the critical habitat 
boundaries. The overview maps are provided for general guidance 
purposes only and not as a definitive source for determining critical 
habitat boundaries.
    (a) Critical habitat boundaries. Critical habitat in freshwater 
riverine areas includes the stream channels and a lateral extent as 
defined by the ordinary high-water line (33 CFR 329.11). In areas for 
which the ordinary high-water line has not been defined pursuant to 33 
CFR 329.11, the lateral extent will be defined by the bankfull 
elevation. Bankfull elevation is the level at which water begins to 
leave the channel and move into the floodplain and is reached at a 
discharge which generally has a recurrence interval of 1

[[Page 52107]]

to 2 years on the annual flood series. Critical habitat in bays and 
estuaries includes tidally influenced areas as defined by the elevation 
of mean higher high water. The boundary between nearshore coastal 
marine areas and bays and estuaries are delineated by the COLREGS lines 
(33 CFR part 80). Critical habitat in coastal marine areas is defined 
by the zone between the 110 m depth bathymetry line and the line on 
shore reached by extreme high water, or to the COLREGS lines.
    (1) Coastal marine areas: All U.S. coastal marine waters out to the 
110 m depth bathymetry line (relative to MLLW) from Monterey Bay, 
California (36[deg]38'12'' N./ 121[deg]56'13'' W.) north and east to 
include waters in the Strait of Juan de Fuca, Washington. The Strait of 
Juan de Fuca includes all U.S. marine waters: In Clallam County east of 
a line connecting Cape Flattery (48[deg]23'10'' N./ 124[deg]43'32'' 
W.), Tatoosh Island (48[deg]23'30'' N./ 124[deg]44'12'' W.), and 
Bonilla Point, British Columbia (48[deg]35'30'' N./ 124[deg]43'00'' 
W.); in Jefferson and Island counties north and west of a line 
connecting Point Wilson (48[deg]08'38'' N./ 122[deg]45'07'' W.) and 
Admiralty Head (48[deg]09'18'' N./ 122[deg]40'41'' W.); and in San Juan 
and Skagit counties south of lines connecting the U.S.-Canada border 
(48[deg]27'27'' N./ 123[deg]09'46'' W.) and Pile Point (48[deg]28'56'' 
N./ 123[deg]05'33'' W.), Cattle Point (48[deg]27'1'' N./ 
122[deg]57'39'' W.) and Davis Point (48[deg]27'21'' N./ 122[deg]56'03'' 
W.), and Fidalgo Head (48[deg]29'34'' N./ 122[deg]42'07'' W.) and Lopez 
Island (48[deg]28'43'' N./ 122[deg]49'08'' W.).
    (2) Freshwater riverine habitats: Critical habitat is designated to 
include the following freshwater riverine areas in California:
    (i) Sacramento River, California. From the Sacramento I-Street 
Bridge upstream to Keswick Dam (40[deg]36'39'' N./ 122[deg]26'41'' W.), 
including the waters encompassed by the Yolo Bypass and the Sutter 
Bypass areas.
    (ii) Lower Feather River, California. From the confluence with the 
mainstem Sacramento River upstream to Oroville Dam (39[deg]32'35'' N./ 
121[deg]29'27'' W.).
    (iii) Lower Yuba River, California. From the confluence with the 
mainstem Feather River upstream to Daguerre Dam (39[deg]12'35'' N./ 
121[deg]26'33'' W.).
    (3) Coastal bays and estuaries: Critical habitat is designated to 
include the following coastal bays and estuaries in California, Oregon, 
and Washington:
    (i) Central Valley, California. All tidally influenced areas of San 
Francisco Bay, San Pablo Bay, Suisun Bay, and the Sacramento-San 
Joaquin Delta up to the elevation of mean higher high water, including 
tributaries upstream to the head of tide. Designated areas in the 
Sacramento-San Joaquin Delta include all waterways within the area 
defined in California Water Code Section 12220, except for the 
following excluded slough areas: Fivemile Slough (all reaches upstream 
from its confluence with Fourteenmile Slough at 38[deg]00'50'' N./ 
121[deg]22'09'' W.); Sevenmile Slough (all reaches between Threemile 
Slough at 38[deg]06'55'' N./ 121[deg]40'55'' W. and Jackson Slough at 
38[deg]06'59'' N./ 121[deg]37'44'' W.); Snodgrass Slough (all reaches 
upstream from Lambert Road at 38[deg]19'14'' N./ 121[deg]31'08'' W.); 
Tom Paine Slough (all reaches upstream from its confluence with Middle 
River at 37[deg]47'25'' N./ 121[deg]25'08'' W.); and Trapper Slough 
(all reaches upstream from 37[deg]53'36'' N./ 121[deg]29'15'' W.).
    (ii) Humboldt Bay, California: All tidally influenced areas of 
Humboldt Bay up to the elevation of mean higher high water, including 
tributaries upstream to the head of tide.
    (iii) Coos Bay, Oregon. All tidally influenced areas of Coos Bay up 
to the elevation of mean higher high water, including tributaries 
upstream to the head of tide.
    (iv) Winchester Bay, Oregon. All tidally influenced areas of 
Winchester Bay up to the elevation of mean higher high water, including 
tributaries upstream to the head of tide.
    (v) Yaquina Bay, Oregon. All tidally influenced areas of Yaquina 
Bay up to the elevation of mean higher high water, including 
tributaries upstream to the head of tide.
    (vi) Lower Columbia River, Washington and Oregon. All tidally 
influenced areas of the Columbia and Willamette Rivers downstream of 
Bonneville Dam and Willamette Falls and up to the elevation of mean 
higher high water, including tributaries upstream to the head of tide.
    (vii) Willapa Bay, Washington. All tidally influenced areas of 
Willapa Bay up to the elevation of mean higher high water, including 
tributaries upstream to the head of tide.
    (viii) Grays Harbor, Washington. All tidally influenced areas of 
Grays Harbor up to the elevation of mean higher high water, including 
tributaries upstream to the head of tide.
    (b) Primary constituent elements. The primary constituent elements 
essential for the conservation of the Southern DPS of green sturgeon 
are:
    (1) For freshwater riverine systems:
    (i) Food resources. Abundant prey items for larval, juvenile, 
subadult, and adult life stages.
    (ii) Substrate type or size (i.e., structural features of 
substrates). Substrates suitable for egg deposition and development 
(e.g., bedrock sills and shelves, cobble and gravel, or hard clean 
sand, with interstices or irregular surfaces to ``collect'' eggs and 
provide protection from predators, and free of excessive silt and 
debris that could smother eggs during incubation), larval development 
(e.g., substrates with interstices or voids providing refuge from 
predators and from high flow conditions), and subadults and adults 
(e.g., substrates for holding and spawning).
    (iii) Water flow. A flow regime (i.e., the magnitude, frequency, 
duration, seasonality, and rate-of-change of fresh water discharge over 
time) necessary for normal behavior, growth, and survival of all life 
stages.
    (iv) Water quality. Water quality, including temperature, salinity, 
oxygen content, and other chemical characteristics, necessary for 
normal behavior, growth, and viability of all life stages.
    (v) Migratory corridor. A migratory pathway necessary for the safe 
and timely passage of Southern DPS fish within riverine habitats and 
between riverine and estuarine habitats (e.g., an unobstructed river or 
dammed river that still allows for safe and timely passage).
    (vi) Depth. Deep (>=5 m) holding pools for both upstream and 
downstream holding of adult or subadult fish, with adequate water 
quality and flow to maintain the physiological needs of the holding 
adult or subadult fish.
    (vii) Sediment quality. Sediment quality (i.e., chemical 
characteristics) necessary for normal behavior, growth, and viability 
of all life stages.
    (2) For estuarine habitats:
    (i) Food resources. Abundant prey items within estuarine habitats 
and substrates for juvenile, subadult, and adult life stages.
    (ii) Water flow. Within bays and estuaries adjacent to the 
Sacramento River (i.e., the Sacramento-San Joaquin Delta and the 
Suisun, San Pablo, and San Francisco bays), sufficient flow into the 
bay and estuary to allow adults to successfully orient to the incoming 
flow and migrate upstream to spawning grounds.
    (iii) Water quality. Water quality, including temperature, 
salinity, oxygen content, and other chemical characteristics, necessary 
for normal behavior, growth, and viability of all life stages.
    (iv) Migratory corridor. A migratory pathway necessary for the safe 
and timely passage of Southern DPS fish within estuarine habitats and 
between estuarine and riverine or marine habitats.

[[Page 52108]]

    (v) Depth. A diversity of depths necessary for shelter, foraging, 
and migration of juvenile, subadult, and adult life stages.
    (vi) Sediment quality. Sediment quality (i.e., chemical 
characteristics) necessary for normal behavior, growth, and viability 
of all life stages.
    (3) For nearshore coastal marine areas:
    (i) Migratory corridor. A migratory pathway necessary for the safe 
and timely passage of Southern DPS fish within marine and between 
estuarine and marine habitats.
    (ii) Water quality. Nearshore marine waters with adequate dissolved 
oxygen levels and acceptably low levels of contaminants (e.g., 
pesticides, organochlorines, elevated levels of heavy metals) that may 
disrupt the normal behavior, growth, and viability of subadult and 
adult green sturgeon.
    (iii) Food resources. Abundant prey items for subadults and adults, 
which may include benthic invertebrates and fishes.
    (c) Maps of proposed critical habitat for the Southern DPS of green 
sturgeon follow:
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