[Federal Register Volume 76, Number 203 (Thursday, October 20, 2011)]
[Rules and Regulations]
[Pages 65324-65352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26950]



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Vol. 76

Thursday,

No. 203

October 20, 2011

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 Species; Designation of Critical Habitat for 
the Southern Distinct Population Segment of Eulachon; Final Rule

  Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / 
Rules and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 101027536-1591-03]
RIN 0648-BA38


Endangered and Threatened Species; Designation of Critical 
Habitat for the Southern Distinct Population Segment of Eulachon

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

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a 
final rule to designate critical habitat for the southern Distinct 
Population Segment (DPS) of Pacific eulachon (Thaleichthys pacificus), 
pursuant to section 4 of the Endangered Species Act (ESA). We designate 
16 specific areas as critical habitat within the states of California, 
Oregon, and Washington. The designated areas are a combination of 
freshwater creeks and rivers and their associated estuaries, comprising 
approximately 539 km (335 mi) of habitat. The Tribal lands of four 
Indian Tribes are excluded from designation after evaluating the 
impacts of designation and benefits of exclusion associated with Tribal 
land ownership and management by the Tribes. No areas were excluded 
from designation based on economic impacts.
    This final rule responds to and incorporates public comments 
received on the proposed rule and supporting documents, as well as peer 
reviewer comments received on our draft biological report and draft 
economic report.

DATES: This rule will take effect on December 19, 2011.

ADDRESSES: Reference materials regarding this rulemaking can be 
obtained via the Internet at: http://www.nwr.noaa.gov or by submitting 
a request to the Protected Resources Division, Northwest Region, 
National Marine Fisheries Service, 1201 NE Lloyd Blvd., Suite 1100, 
Portland, OR 97232.

FOR FURTHER INFORMATION CONTACT: Marc Romano, NMFS, Northwest Region, 
503-231-2200, or Jim Simondet, NMFS, Southwest Region, 707-825-5171, or 
Dwayne Meadows, NMFS, Office of Protected Resources, 301-427-8403.

SUPPLEMENTARY INFORMATION: 

Background

    On March 18, 2010, we listed the southern DPS of eulachon as 
threatened under the ESA (75 FR 13012). A proposed critical habitat 
rule for the southern DPS of eulachon was published in the Federal 
Register on January 5, 2011 (76 FR 515). The present rule describes the 
final critical habitat designation, including responses to public 
comments and peer reviewer comments, and supporting information on 
eulachon biology, distribution, and habitat use, and the methods used 
to develop the final designation.
    We considered various alternatives to the critical habitat 
designation for the southern DPS of eulachon. The alternative of not 
designating critical habitat for the southern DPS of eulachon would 
impose no economic, national security, or other relevant impacts, but 
would not provide any conservation benefit to the species. This 
alternative was considered and rejected because such an approach does 
not meet the legal requirements of the ESA and would not provide for 
the conservation of the southern DPS of eulachon. The alternative of 
designating all potential critical habitat areas (i.e., no areas 
excluded) also was considered and rejected because for some areas the 
benefits of exclusion from designation outweighed the benefits of 
inclusion.
    An alternative to designating all potential critical habitat areas 
is the designation of critical habitat within a subset of these areas. 
Under section 4(b)(2) of the ESA, NMFS must consider the economic 
impact, impacts on national security, and any other relevant impact of 
specifying any particular area as critical habitat. The Secretary of 
Commerce (Secretary) has the discretion to exclude an area from 
designation as critical habitat if the benefits of exclusion (i.e., the 
impacts that would be avoided if an area were excluded from the 
designation) outweigh the benefits of designation (i.e., the 
conservation benefits to the southern DPS of eulachon if an area were 
designated), as long as exclusion of the area will not result in 
extinction of the species. We prepared an analysis describing our 
exercise of discretion, which is contained in our Final Section 4(b)(2) 
Report (NMFS, 2011a). Under this preferred alternative we have excluded 
Indian lands in California and Washington from designation as critical 
habitat. The total estimated economic impact of designating all 
specific areas (without any exclusions) is $512,000 (discounted at 7 
percent) or $532,000 (discounted at 3 percent). However the total 
estimated economic impact of the preferred alternative would be 
approximately $487,300 (discounted at 7 percent) or $506,300 
(discounted at 3 percent). We determined that the exclusion of Indian 
lands would not significantly impede the conservation of the southern 
DPS of eulachon nor result in extinction of the species. We selected 
this as the preferred alternative because it results in a critical 
habitat designation that supports the conservation of the southern DPS 
of eulachon while reducing other relevant impacts. This alternative 
also meets the requirements under the ESA and our joint NMFS-U.S. Fish 
and Wildlife Service (USFWS) regulations concerning critical habitat at 
50 CFR 424.19.
    Section 3 of the ESA (16 U.S.C. 1532(5)(A)) defines critical 
habitat as ``(i) the specific areas within the geographical area 
occupied by the species, at the time it is listed * * * on which are 
found those physical or biological features (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.'' Section 3 of the ESA 
(16 U.S.C. 1532(3)) also defines the terms ``conserve,'' 
``conserving,'' and ``conservation'' to mean: ``to use, and the use of, 
all methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to this chapter are no longer necessary.'' We may not 
designate critical habitat in areas outside of U. S. jurisdiction (50 
CFR 424.12(h)). Section 4 of the ESA requires that, before designating 
critical habitat, we consider economic impacts, impacts on national 
security, and other relevant impacts of specifying any particular area 
as critical habitat. The Secretary may exclude an area from critical 
habitat if he determines that the benefits of exclusion outweigh the 
benefits of designation, unless excluding an area from critical habitat 
will result in the extinction of the species concerned. Once critical 
habitat is designated, section 7(a)(2) of the ESA requires that each 
federal agency, in consultation with NMFS and with our assistance, 
ensure that any action it authorizes, funds, or carries out is not 
likely to result in the destruction or adverse modification of critical 
habitat. This requirement is additional to the

[[Page 65325]]

section 7 requirement that federal agencies ensure their actions do not 
jeopardize the continued existence of listed species.

Eulachon Natural History

    Eulachon are an anadromous fish, meaning adults migrate from the 
ocean to spawn in freshwater creeks and rivers where their offspring 
hatch and migrate back to the ocean to forage until maturity. Although 
they spend 95 to 98 percent of their lives at sea (Hay and McCarter, 
2000), current data only provides an incomplete picture concerning 
their saltwater existence. The species is endemic to the northeastern 
Pacific Ocean, ranging from northern California to the southeastern 
Bering Sea in Bristol Bay, Alaska (McAllister, 1963; Scott and 
Crossman, 1973; Willson et al., 2006). This distribution coincides 
closely with the distribution of the coastal temperate rain forest 
ecosystem on the west coast of North America (with the exception of 
populations spawning west of Cook Inlet, Alaska).
    In the portion of the species' range that lies south of the United 
States-Canada border, most eulachon production originates in the 
Columbia River basin. Within the Columbia River basin, the major and 
most consistent spawning runs return to the mainstem of the Columbia 
River and the Cowlitz River (Gustafson et al., 2010). Spawning also 
occurs in other tributaries to the Columbia River, including the Grays, 
Elochoman, Kalama, Lewis, and Sandy Rivers (WDFW and ODFW, 2001). 
Historically, the only other large river basins in the contiguous 
United States where large, consistent spawning runs of eulachon have 
been documented are the Klamath River in northern California and the 
Umpqua River in Oregon. Eulachon have been found in numerous coastal 
rivers in northern California (including the Mad River and Redwood 
Creek), Oregon (including Tenmile Creek south of Yachats, OR) and 
Washington (including the Quinault and Elwha Rivers) (Emmett et al., 
1991; Willson et al., 2006).
    Major eulachon production areas in Canada are the Fraser and Nass 
rivers (Willson et al., 2006). Numerous other river systems in central 
British Columbia and Alaska have consistent yearly runs of eulachon and 
historically supported significant levels of harvest (Willson et al., 
2006; Gustafson et al., 2010). Many sources note that runs occasionally 
occur in other rivers and streams, although these tend to be sporadic, 
appearing in some years but not others, and appearing only rarely in 
some river systems (Hay and McCarter, 2000; Willson et al., 2006).

Early Life History and Maturation

    Eulachon eggs can vary considerably in size but typically are 
approximately 1 mm (0.04 in) in diameter and average about 43 mg (0.002 
oz) in weight (Hay and McCarter, 2000). Eggs are enclosed in a double 
membrane; after fertilization in the water, the outer membrane breaks 
and turns inside out, creating a sticky stalk which acts to anchor the 
eggs to the substrate (Hart and McHugh, 1944; Hay and McCarter, 2000). 
Eulachon eggs hatch in 20 to 40 days with incubation time dependent on 
water temperature (Smith and Saalfeld, 1955; Langer et al., 1977). 
Shortly after hatching, the larvae are carried downstream and dispersed 
by estuarine, tidal, and ocean currents. Larval eulachon may remain in 
low salinity, surface waters of estuaries for several weeks or longer 
(Hay and McCarter, 2000) before entering the ocean. Similar to salmon, 
juvenile eulachon are thought to imprint on the chemical signature/
smell of their natal river basin. However, juvenile eulachon spend less 
time in freshwater environments than do juvenile salmon and researchers 
believe that this may cause returning eulachon to stray between 
spawning sites at higher rates than salmon (Hay and McCarter, 2000).
    Once juvenile eulachon enter the ocean, they move from shallow 
nearshore areas to deeper areas over the continental shelf. Larvae and 
young juveniles become widely distributed in coastal waters, where they 
are typically found near the ocean bottom in waters 20 to 150 m deep 
(66 to 292 ft) (Hay and McCarter, 2000) and sometimes as deep as 182 m 
(597 ft) (Barraclough, 1964). There is currently little information 
available about eulachon movements in nearshore marine areas and the 
open ocean. However, eulachon occur as bycatch in the ocean shrimp 
(Pandalus jordani) fishery (Hay et al., 1999; Olsen et al., 2000; 
Northwest Fishery Science Center (NWFSC), 2008; Hannah and Jones, 
2009), indicating that the distribution of these two species may 
overlap in the ocean.

Spawning Behavior

    Eulachon typically spend several years in salt water before 
returning to fresh water as a ``run'' to spawn from late winter through 
early summer. Eulachon are semelparous, meaning that they spawn once 
and then die (Gustafson et al., 2010; Hay et al., 2002). Spawning 
grounds are typically in the lower reaches of larger rivers fed by 
snowmelt (Hay and McCarter, 2000). Willson et al. (2006) concluded that 
the age distribution of eulachon in a spawning run varies considerably, 
but typically consists of fish that are 2 to 5 years old. Eulachon eggs 
commonly adhere to sand (Langer et al., 1977) or pea-sized gravel 
(Smith and Saalfeld, 1955), though eggs have been found on silt, gravel 
to cobble sized rock, and organic detritus (Smith and Saalfeld, 1955; 
Langer et al., 1977; Lewis et al., 2002). Eggs found in areas of silt 
or organic debris reportedly suffer much higher mortality than those 
found in sand or gravel (Langer et al., 1977).
    In many rivers, spawning is limited to the part of the river that 
is influenced by tides (Lewis et al., 2002), but some exceptions exist. 
In the Berners Bay system of Alaska, the greatest abundance of eulachon 
are observed in tidally-influenced reaches, but some fish ascend well 
beyond the tidal influence (Willson et al., 2006). In the Kemano River, 
Canada, water velocity greater than 0.4 meters/second begins to limit 
the upstream movements of eulachon (Lewis et al., 2002).
    Entry into the spawning rivers appears to be related to water 
temperature and the occurrence of high tides (Ricker et al., 1954; 
Smith and Saalfeld, 1955; Spangler, 2002). Spawning generally occurs in 
January, February, and March in the Columbia River, the Klamath River, 
and the coastal rivers of Washington and Oregon, and April and May in 
the Fraser River (Gustafson et al., 2010). Eulachon runs in central and 
northern British Columbia typically occur in late February and March or 
late March and early April. Attempts to characterize eulachon run 
timing are complicated by marked annual variation in timing. Willson et 
al. (2006) give several examples of spawning run timing varying by a 
month or more in rivers in British Columbia and Alaska. Climate change, 
especially as it affects ocean conditions, is considered a significant 
threat to eulachon and their habitats and may also be a factor in run 
timing (Gustafson et al., 2010). Most rivers supporting spawning runs 
of eulachon are fed by extensive snowmelt or glacial runoff, so 
elevated temperatures and changes in snow pack and the timing and 
intensity of stream flows will likely impact eulachon run timing. There 
are already indications, perhaps in response to warming conditions and/
or altered stream flow timing, that spawning runs are occurring earlier 
in several rivers within the range of the southern DPS (Moody, 2008).
    Water temperature at the time of spawning varies across the range 
of the species. Although spawning generally occurs at temperatures from 
4 to 7 [deg]C (39

[[Page 65326]]

to 45 [deg]F) in the Cowlitz River (Smith and Saalfeld, 1955), and at a 
mean temperature of 3.1 [deg]C (37.6 [deg]F) in the Kemano and Wahoo 
Rivers, peak eulachon runs occur at noticeably colder temperatures 
(between 0 and 2 [deg]C [32 and 36 [deg]F]) in the Nass River. The Nass 
River run is also earlier than the eulachon run that occurs in the 
Fraser River, which typically has warmer temperatures than the Nass 
River (Langer et al., 1977).

Prey

    Eulachon larvae and juveniles eat a variety of prey items, 
including phytoplankton, copepods, copepod eggs, mysids, barnacle 
larvae, and worm larvae (Barraclough, 1967; Barraclough and Fulton, 
1967; Robinson et al., 1968a, 1968b). Eulachon adults feed on 
zooplankton, chiefly eating crustaceans such as copepods and 
euphausiids (Hart, 1973; Scott and Crossman, 1973; Hay, 2002; Yang et 
al., 2006), unidentified malacostracans (Sturdevant, 1999), and 
cumaceans (Smith and Saalfeld, 1955). Adults and juveniles commonly 
forage at moderate depths (20-150 m [66-292 ft]) in nearshore marine 
waters (Hay and McCarter, 2000). Eulachon adults do not feed during 
spawning (McHugh, 1939; Hart and McHugh, 1944).

Summary of Comments Received and Responses

    We solicited public comment for a total of 60 days on the proposed 
designation of critical habitat for the southern DPS of eulachon. In 
addition, we held a public hearing on the proposal in Portland, Oregon 
on January 26, 2011 at which one member of the public provided oral 
testimony. This testimony was recorded and our responses to comments 
address substantive comments from that individual. We received written 
comments from eight commenters, and these are available online at: 
http://www.regulations.gov/#!docketDetail;rpp=10;po=10;D=NOAA-NMFS-
2011-0013. Summaries of the substantive comments received, and our 
responses, are organized by category and provided below.
    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review pursuant to the 
Information Quality Act (IQA). The Bulletin was published in the 
Federal Register on January 14, 2005 (70 FR 2664). The Bulletin 
established minimum peer review standards, a transparent process for 
public disclosure of peer review planning, and opportunities for public 
participation with regard to certain types of information disseminated 
by the Federal Government. The peer review requirements of the OMB 
Bulletin apply to influential or highly influential scientific 
information disseminated on or after June 16, 2005. Two documents 
supporting this final designation of critical habitat for the southern 
DPS of eulachon are considered influential scientific information and 
subject to peer review. In accordance with the OMB policies, we 
solicited technical review of the draft Biological Report (NMFS, 2010a) 
and the draft Economic Analysis (NMFS, 2010b). Each of these reports 
was reviewed by three independent experts selected from the academic 
and scientific communities.
    There was substantial overlap between the comments from the peer 
reviewers and the substantive public comments. The comments were 
sufficiently similar that we have responded to the peer reviewer's 
comments through our general responses below. Revisions resulting from 
peer review and public comments have been made to the documents 
supporting this designation (i.e., Biological Report, Economic 
Analysis, and Section 4(b)(2) Report) and the final versions of those 
documents can be found on our Web site at: http://www.nwr.noaa.gov/Other-Marine-Species/Eulachon.cfm.

Physical or Biological Features Essential for Conservation

    Comment 1: One commenter suggested that nearshore and marine waters 
are essential as a migratory corridor for the passage of eulachon, and 
passage should be included as a feature in nearshore and marine waters.
    Response: Eulachon migrate from their natal streams to marine 
waters of the continental shelf, and likely migrate throughout coastal 
waters until they return as adults to spawn. There are two difficulties 
with relying on a passage feature in the ocean for a species such as 
eulachon: (1) There is no information regarding the characteristics or 
conditions in coastal waters that would make a specific area suitable 
for passage, and (2) there is no evidence that eulachon use specific 
marine areas for migration. Regarding the first point, there is no 
information to indicate that eulachon rely on habitat features to guide 
migration, such as a particular type of current, temperature gradient, 
bathymetry, coastline, etc. Since there are no known characteristics of 
an area that would aid in delineation, one must consider whether there 
is some other evidence of a migration corridor or site, such as 
documented use for completing a portion of the life history. In the 
case of eulachon, there are no observations of eulachon migration that 
would allow us to infer the presence of migratory pathways in specific 
areas of the ocean. Absent information on the detailed characteristics 
that would allow delineation of a specific area, or information that 
eulachon actually use a defined area, we were unable to identify 
`specific areas' in the ocean that contain migratory pathways.
    Eulachon biology and habitat use differ from other species for 
which we have identified migratory pathways as an essential feature in 
marine waters. For example, green sturgeon (Acipenser medirostris) are 
primarily associated with bottom habitats in the ocean and travel along 
the coast in a migration corridor that is delimited by bathymetry 
(specifically, we identified the 60 fathom contour as the seaward 
extent of a green sturgeon migration feature) (74 FR 52300; October 9, 
2009). Green sturgeon adherence to a migration corridor shoreward of 
this depth contour is documented through tagging studies and bycatch in 
fisheries (Erickson and Hightower, 2007). While we do have some limited 
information about areas where eulachon are present either through 
fisheries bycatch reports or fisheries-independent research, this 
information suggests only that eulachon are present in these areas. It 
does not shed light on a feature, such as a migratory pathway, that is 
essential to eulachon conservation. Additional contrasting examples 
include bull trout (Salvelinus confluentus) and Puget Sound Chinook 
(Oncorhynchus tshawytscha), which migrate in marine waters along the 
shoreline. Their critical habitat areas are delineated along a depth 
contour based on the penetration of light, which creates specific 
physical and biological conditions essential for their conservation. 
For Southern Resident killer whales (Orcinus orca) we also identified a 
passage feature in marine waters, among other features. The three 
specific areas designated as killer whale critical habitat in inland 
marine waters of Washington State contained all of the identified 
features. The one specific area primarily defined by the passage 
feature was the Strait of Juan de Fuca, a relatively narrow marine 
corridor through which killer whales pass on their migrations between 
coastal waters and inland waters.
    Comment 2: One commenter believed that our reliance on evidence of 
spawning or spawning migration to designate critical habitat may be 
considered ``arbitrary,'' and they cited Alliance for Wild Rockies v. 
Lyder, 728 F. Supp. 1126, 1134 (D. Mont. 2010) in

[[Page 65327]]

support of their argument. The commenter stated that ``NMFS must 
consider other elements besides spawning when determining whether an 
area should be designated as critical habitat.''
    Response: Eulachon are an anadromous species that spend 95-98 
percent of their lives in the marine environment (Hay and McCarter, 
2000). The best available scientific evidence suggests that adult 
eulachon are semelparous and enter freshwater and estuarine areas only 
to spawn, and after spawning the adult fish die (Hay et al., 2002; 
Gustafson et al., 2010). Eulachon eggs develop at or near the point 
they were spawned, and larval eulachon typically outmigrate via the 
same routes that adult spawners took to reach the spawning area. 
Because eulachon are semelparous and the best available evidence 
suggests that freshwater and estuarine areas are only used by eulachon 
for spawning activities (i.e. spawning migration, spawning, egg 
incubation and larval outmigration) we used spawning data to determine 
if essential features are present. Our approach was not the same as the 
approach used by the USFWS to designate critical habitat for the Canada 
lynx that is the subject of Alliance for Wild Rockies v. Lyder. The 
Canada lynx utilizes its habitat for a variety of life cycle activities 
beyond reproduction. There the USFWS used reproduction, one of several 
life functions, as the sole test to rule out the presence of essential 
features. In the Alliance for Wild Rockies decision, the court noted, 
``[w]hile it is rational to conclude areas with evidence of 
reproduction contain the primary constituent elements and should be 
designated as critical habitat, the Service could not flip that logic 
and so it means that critical habitat only exists where there is 
evidence of reproduction.'' As a result, our reliance on evidence of 
spawning and spawning migration to identify critical habitat within 
freshwater and estuarine areas is not ``arbitrary'' according to the 
Alliance for Wild Rockies decision.
    Comment 3: One commenter stated that in making our decision on 
which specific areas qualified as critical habitat, we relied on 
``extremely limited sampling'' and, for some rivers and creeks, only 
``opportunistic sightings'' and the ``best professional judgment of 
agency and Tribal biologists familiar with the area.'' The commenter 
believes that this is ``insufficient to satisfy the requirements of the 
ESA and may make it more difficult to recover this DPS.''
    Response: Section 4(b)(2) of the ESA requires the Secretary of 
Commerce to designate critical habitat ``on the basis of the best 
scientific data available.'' In the proposed rule, and supporting 
Biological Report (NMFS, 2011b), we outlined the evidence that we used 
to identify specific areas as critical habitat. We stated in the 
proposed rule that we ``relied on data from published literature, field 
observations (including river sampling with a variety of net types), 
opportunistic sightings, commercial and recreational harvest, and 
anecdotal information.'' This final rule incorporates the findings in 
the proposed rule and the Biological Report, as well as peer review of 
the Biological Report and the Economic Analysis (NMFS, 2011c) and 
public comments on the proposed rule. Taken together, this information 
represents the best available scientific data available to inform our 
critical habitat decision.
    We relied on the most recent scientific information available to us 
to determine which areas were eligible for designation. For a limited 
number of creeks and rivers, opportunistic sightings are the only 
information that is available to identify the distribution of the 
essential features. Where the only available information was 
opportunistic sightings, we consulted agency and Tribal biologists 
familiar with the area to confirm the information and identify the 
extent of the essential features. Where such information was the only 
information available, and was confirmed by the best professional 
judgment of biologists knowledgeable about the species and the area, we 
consider it the ``best available scientific information,'' and adequate 
to inform our decisions. Our actions are thus in accordance with 
section 4(b)(2) of the ESA and our implementing regulations (50 CFR 
424.12).

Specific Areas Within the Geographical Area Occupied by the Species

    Comment 4: Two commenters agreed with our decision not to designate 
critical habitat in nearshore and offshore marine areas, and a third 
commenter recognized the problem in identifying critical habitat in 
these areas. In contrast, several commenters disagreed with our 
decision and some of these cited the availability of eulachon harvest 
and bycatch data as evidence of eulachon distribution in marine waters. 
One commenter questioned why we did not discuss in the proposed rule 
whether nearshore and marine waters may require special management 
considerations or protection. A separate commenter stated that there is 
a wide range of literature on the effects of trawling on seafloor 
habitat, and that the effects of trawling on eulachon foraging habitat 
need to be considered.
    Response: Although some data are available on the ocean 
distribution of eulachon (from fisheries bycatch and fishery-
independent surveys [summarized in Gustafson et al., 2010]) we cannot 
identify specific marine foraging areas that meet the definition of 
critical habitat under the ESA. The ESA defines critical habitat as 
``the specific areas within the geographical area occupied by the 
species, at the time it is listed on which are found those physical or 
biological features essential to the conservation of the species and 
which may require special management considerations or protection''. In 
the Pacific Ocean, we identified nearshore and offshore foraging 
habitat as an essential feature for the conservation of eulachon, and 
we determined that abundant forage species and suitable water quality 
are components of this habitat feature. Given the wide distribution of 
eulachon prey items, we could not associate them with ``specific 
areas'' within the marine environment occupied by eulachon. Moreover, 
these prey species move or drift great distances throughout the ocean 
and would be difficult to link to any ``specific'' areas as discussed 
in response to Comment 1. The concern is not that ``specific areas'' 
must be small, but rather in order to meet the definition of ``critical 
habitat'' under the ESA, they must be identifiable and connected to the 
essential feature found there. We could not discern such a linkage in 
marine areas occupied by eulachon. While we acknowledge that eulachon 
need foraging habitat in nearshore and offshore marine waters, we 
cannot identify any specific areas as required under section 3(5)(A) of 
the ESA.
    Some activities (e.g. trawling), may occur in the marine 
environment that affect eulachon prey, such that the prey may require 
special management considerations or protections. However, the steps we 
follow in designating critical habitat include first identifying the 
essential features, then identifying the specific areas where those 
features occur, then considering whether the features in those areas 
may require special management consideration or protection. We did not 
discuss the second prong of the definition of critical habitat for 
marine foraging areas in the proposed rule because we did not identify 
any specific areas within the marine environment that meet the first 
prong of the definition of critical habitat (specific areas on which 
the features are found).
    Comment 5: One commenter provided information documenting eulachon 
use of Redwood Creek, upstream of the area proposed.

[[Page 65328]]

    Response: We proposed to designate approximately 6.1 km (3.8 mi) of 
critical habitat in Redwood Creek upstream to the confluence with 
Prairie Creek, based on reports from the California Department of Fish 
and Game (CDFG; Moyle et al., 1995). However, the commenter provided a 
copy of a CDFG memorandum that describes an attempt by three 
experienced biologists familiar with eulachon who were purposely 
seeking to determine the upstream limit of eulachon spawning migration 
in Redwood Creek during April 1973. Eulachon were observed passing Tom 
McDonald Creek, a tributary located 19.4 km (12.5 mi) upstream from the 
mouth of Redwood Creek. The CDFG biologists also checked Redwood Creek 
for eulachon 6.4 km (4.0 mi) upstream of the confluence with Tom 
McDonald Creek but they did not find any eulachon at that location. 
This field observation documented fish at least as far upstream as Tom 
McDonald Creek and presents a credible observation of eulachon 
ascending Redwood Creek during the spawning run beyond the upstream 
limit that we proposed as critical habitat. As a result, we have 
extended critical habitat on Redwood Creek, upstream to the confluence 
with Tom McDonald Creek. Although the CDFG biologists speculated that 
eulachon ascended Redwood Creek beyond this point, we have no evidence 
to confirm that claim.
    Comment 6: One commenter believed that eulachon may ascend beyond 
the specific areas identified and asserted that the upstream limits of 
critical habitat proposed for Ten Mile Creek, the Elochoman River, and 
the Kalama River appear to be established at points that were simply 
advantageous survey sites and not reflective of the species' actual 
distribution.
    Response: The upstream limits of the proposed critical habitat were 
established using the best available information on eulachon 
distribution at the time of our proposed rule and informed by public 
and peer review. We relied on data from published literature, field 
observations (from a variety of agency and Tribal biologists), 
opportunistic sightings, commercial and recreational harvest, and 
anecdotal information. Information on eulachon distribution is limited 
for some creeks and rivers, particularly those that don't have a 
history of commercial or recreational harvest of eulachon. The upstream 
limit of proposed critical habitat for Ten Mile Creek, the Elochoman 
River, and the Kalama River were determined based on the most current 
information provided by ODFW for Ten Mile Creek and WDFW for the 
Elochoman and Kalama Rivers, which are the agencies responsible for 
eulachon management in the respective states. We do not know whether 
the information provided by the agencies was based on points that are 
advantageous survey sites. However, the commenter presents no credible 
information that would allow us to identify alternative end points of 
eulachon spawning areas.
    Comment 7: One commenter questioned why the upstream limit of 
critical habitat on rivers where passage is blocked by hydropower dams 
is established at the point of blockage.
    Response: We proposed as critical habitat four specific areas with 
an upstream limit that terminates at a passage barrier formed by a dam. 
Three of these dams are hydropower dams (Bonneville Dam on the Columbia 
River, Merwin Dam on the Lewis River, and Elwha Dam on the Elwha River) 
and one is a barrier dam for a salmon hatchery (Cowlitz River). Of the 
four dams, two were unlikely to have had eulachon above the dam site 
prior to dam construction due to natural barriers (Merwin and Elwha 
Dams); one may have had eulachon above the dam site before dam 
construction, but there is no evidence to support that conclusion 
(hatchery dam on the Cowlitz); and one has had confirmed eulachon 
presence upstream of the dam site both before and after construction 
(Bonneville Dam).
    Both Merwin Dam and Elwha Dam were built in areas where the river 
is constrained, with high gradient and water velocities. Prior to dam 
construction these areas were likely a natural barrier for eulachon. In 
addition, we were unable to find information supporting eulachon 
presence above these dam sites prior to dam construction. We were 
unable to find any historical accounts of eulachon ascending the 
Cowlitz River beyond the site of the salmon hatchery barrier dam prior 
to dam construction in 1968, (Mark Larivie, personal communication, 
April 15, 2011). We did not propose critical habitat upstream of the 
Merwin Dam, Elwha Dam, or the Cowlitz River salmon hatchery dam because 
we could not find evidence that eulachon used these areas prior to dam 
construction.
    There have been reports of adult eulachon ascending the Columbia 
River beyond the Bonneville Dam site, both before and after 
construction of the Bonneville Dam, with some runs large enough to 
support recreational harvest (OFC, 1953; Smith and Saalfeld, 1955; 
Stockley, 1981). Cascade Rapids (approximately 4 km [2.5 mi] upstream 
of the current Bonneville Dam site) was a natural barrier to eulachon 
migration in the Columbia River prior to the construction of Bonneville 
Dam (Oregon Fish Commission, 1953; Gustafson et al., 2010). A ship lock 
constructed at Cascade Locks in 1896 allowed fish to circumvent the 
rapids and subsequently eulachon were reported as far upstream as Hood 
River, Oregon at river kilometer (RKm) 272 (river mile [RM] 169) (Smith 
and Saalfeld, 1955). Following completion of Bonneville Dam, both 
Cascade Rapids and Cascade Locks were submerged, removing the rapids as 
a passage barrier. Currently, passage for anadromous fish at Bonneville 
Dam is maintained via fish ladders, but it is highly unlikely that 
eulachon can ascend the ladders due to the high gradient and water 
velocities within. However, eulachon have been documented passing 
through the shipping locks at the dam (Oregon Fish Commission, 1953). 
Eulachon have been reported upstream of the dam in several years, 
including significant numbers in 1945 and 1953 (Oregon Fish Commission, 
1953; Smith and Saalfeld, 1955) and more recently in 1988 (Johnsen et 
al., 1988), 2003 (U.S. Army Corps of Engineers [USACE], 2003), and 2005 
(Martinson et al., 2010).
    The area upstream of Bonneville Dam does not meet the definition of 
critical habitat because it does not contain the physical or biological 
features essential for conservation of eulachon. The physical and 
biological features essential for conservation of eulachon in 
freshwater and estuarine areas include: (1) Spawning and incubation 
sites with water flow, quality and temperature conditions and substrate 
supporting spawning and incubation; and (2) migration corridors free of 
obstruction and with water flow, quality and temperature conditions 
supporting larval and adult mobility, and with abundant prey items 
supporting larval feeding. Although they are separate features, 
spawning and incubation sites for eulachon cannot functionally exist 
without a migratory corridor to access them. In the proposed rule we 
acknowledged this relationship between the essential features when we 
stated that the migration corridor features are ``essential to 
[eulachon] conservation because they allow adult fish to swim upstream 
to reach spawning areas''. However, in the proposed rule we identified 
specific areas in freshwater and estuarine areas for designation as 
critical habitat ``which contain one or more of the essential physical 
or biological features'' without making it clear that spawning and 
incubation sites require a migration corridor to provide

[[Page 65329]]

access to the sites. The commenters' question allows us to further 
explain the functional relationship between the essential features.
    Bonneville Dam is a major obstruction to eulachon passage. Eulachon 
access to the area upstream of Bonneville Dam is limited to 
opportunistic transport through the ship locks. Due to this passage 
barrier, the migration corridor essential feature in the Columbia River 
does not extend beyond Bonneville Dam. In order for the spawning and 
incubation site essential feature to exist upstream of Bonneville Dam, 
the migration corridor essential feature would have to extend upstream 
of Bonneville Dam as well. Due to the lack of a migration corridor to 
access the area upstream of Bonneville Dam, the spawning and incubation 
essential feature cannot exist upstream of the dam. Because neither the 
migration corridor nor spawning and incubation essential features occur 
upstream of Bonneville Dam, this area does not meet the ESA section 
3(5)(A) definition of critical habitat.
    Comment 8: One commenter did not agree with the use of the COLREGS 
line (or equivalent) to demarcate the downstream boundary of critical 
habitat for rivers that directly enter the ocean. The commenter 
believes that this boundary was established as a convenient management 
tool but does not make sense as an ecologically-based boundary. The 
commenter suggested that if freshwater delivery to the ocean is the key 
feature, then the boundary could be established at the edge of the 
river plume.
    Response: As we stated previously, our regulations require that 
``Each critical habitat will be defined by specific limits using 
reference points and lines as found on standard topographic maps of the 
area'' (50 CFR 424.12(c)). In order for critical habitat to be a useful 
tool for conservation and management of the species, Federal agencies 
that are proposing actions in the vicinity of critical habitat need to 
be able to identify where critical habitat occurs. An ephemeral 
boundary, such as the maximum extent of freshwater delivery into the 
marine environment from a creek or river, would be difficult to 
identify. The COLREGS lines (where defined) were chosen as the 
downstream extent of freshwater and estuarine critical habitat because 
they are a clearly defined federal standard which incorporates 
landmarks that are found on standard topographic maps to uniformly 
depict an area of transition between freshwater and marine areas.
    Comment 9: One commenter stated that it was unclear if smaller 
secondary or tertiary streams within watersheds assessed in the 
proposed rule are included or excluded from critical habitat.
    Response: We used watersheds containing stream reaches occupied by 
eulachon as a basis for conducting our analysis of economic impacts 
associated with critical habitat designation. However, the specific 
areas identified as critical habitat were limited to the portions of 
individual creeks and rivers that contain the physical and biological 
features essential for eulachon conservation. The specific areas that 
are being designated as critical habitat are listed in this final rule 
(including the accompanying maps) and will appear in part 226, title 50 
of the Code of Federal Regulations. Secondary or tertiary streams 
within the watersheds used for the economic analysis are not designated 
as critical habitat unless they are specifically described in this rule 
and in part 226, title 50 of the Code of Federal Regulations.
    Comment 10: One commenter proposed that two locations in Washington 
State (the Toutle River in the Cowlitz Basin and Skamokawa Creek in the 
Elochoman Basin) be included in the critical habitat designation.
    Response: In our proposed rule we identified criteria to determine 
if a specific area contained either one of the essential features of 
freshwater spawning and incubation sites and freshwater and estuarine 
migration corridors (76 FR 515; January 5, 2011). These criteria are 
sites that contain: (1) Larval fish or pre-/post-spawn adults that have 
been positively identified and documented; or (2) commercial or 
recreational catches that have been documented over multiple years. 
Prior to publishing the proposed rule, we were unable to identify 
information that would satisfy these criteria for either the Toutle 
River or Skamokawa Creek.
    In the proposed rule we acknowledged that many areas within the 
geographical area occupied by the southern DPS have not been surveyed 
to determine the extent of eulachon spawning and migration (76 FR 515; 
January 5, 2011). To address this information need we funded several 
eulachon monitoring studies and surveys currently being undertaken by 
ODFW, WDFW, the Cowlitz Indian Tribe, and the Yurok Indian Tribe. 
During April 2011 biologists from the Cowlitz Indian Tribe documented 
the presence of eulachon larvae in the Toutle River and Skamokawa 
Creek, confirming eulachon spawning in these two systems (Cowlitz 
Indian Tribe, 2011). This information satisfies the criteria we used in 
our proposed rule to identify specific areas where the essential 
physical and biological features occur. As a result, these specific 
areas meet the statutory definition of critical habitat and we have 
included them in this final rule. Additional information on these two 
areas can be found below.
    Comment 11: One commenter questioned the proposed designation of 
the lower Elwha River as critical habitat on several points. First, the 
commenter noted that although eulachon have been captured in the lower 
Elwha River in small numbers, this may be consistent with straying. 
Second, the commenter asserted that there is a likely velocity barrier 
for eulachon located at approximately RKm 0.8 (RM 0.5). And finally, 
the commenter reasoned that once the Lower Elwha Tribal land is 
excluded from critical habitat designation, very little of the 
remaining river below the Elwha Dam that is accessible to eulachon 
would be eligible for designation as critical habitat.
    Response: Eulachon were documented in the Elwha River in 2005, 
although anecdotal observations suggest that eulachon ``were a regular, 
predictable feature in the Elwha until the mid 1970s'' (Shaffer et al., 
2007, p. 80). Other Olympic Peninsula rivers draining into the Strait 
of Juan de Fuca have been extensively surveyed over many years for 
salmonid migrations; however, eulachon have not been observed in any of 
these other systems (Shaffer et al., 2007; Peter Toppings, WDFW, 2011; 
Lower Elwha Tribe, 2011). Since 2005, eulachon in spawning condition 
have been observed nearly every year in the Elwha River by Lower Elwha 
Tribe Fishery Biologists (Lower Elwha Tribe, 2011). After only one year 
of catch data, Shaffer et al. (2007; p. 80) concluded that 
``observations of eulachon in the Elwha lead us to surmise that the 
Elwha eulachon are likely a remnant stock of the Elwha River rather 
than stray.'' We believe that the consistent spawning returns to the 
Elwha River in subsequent years supports the conclusion of Shaffer et 
al. (2007) that eulachon in the Elwha River are a self-sustaining 
population and not stray fish from nearby rivers.
    Mike McHenry (Fishery Biologist, Lower Elwha Tribe, personal 
communication April 4, 2011) has confirmed reports that eulachon have 
ascended the Elwha River to at least RKm 4.0 (RM 2.5). This would place 
eulachon well upstream of the potential velocity barrier at RKm 0.9 (RM 
0.5) that the commenter believes may limit their upstream movement. 
Studies from the

[[Page 65330]]

Kemano River indicate that many eulachon are unable to maintain long-
term position in the river at flow velocities greater than 0.3 m/s (1.0 
ft/s; Lewis et al., 2002). However, when water velocities were high in 
the mid-channel, eulachon travelled near the shore (Lewis et al., 2002) 
where water velocities are likely lower. Research conducted in the 
lower Elwha River has shown that water velocities can be significantly 
lower nearshore and along the bottom of the river, when compared to the 
mid-channel (USGS, 2008). It is likely that eulachon ascend beyond RKm 
0.8 (RM 0.5) in the Elwha River by migrating in the lower velocity 
water of the nearshore or river bottom.
    The Lower Elwha Tribe controls over 1,000 acres of land in the 
lower Elwha River watershed that are eligible for exclusion from this 
critical habitat designation. From the mouth of the river, upstream to 
the Elwha Dam at RKm 7.6 (RM 4.7), the Lower Elwha Tribe lands include 
approximately 2.3 km (1.4 mi) of this area. This leaves approximately 
5.3 km (3.3 mi) of river that does not overlap Tribal land and thus is 
not excluded from critical habitat. Although federal actions conducted 
on Lower Elwha Tribe land would not require section 7 consultation to 
determine the effects on critical habitat, federal activities on non-
Tribal lands would.

Special Management Considerations

    Comment 12: One commenter wanted to know why dams and water 
diversions were listed as an activity that may require special 
management considerations in Redwood Creek given that there are no dams 
or surface water diversions on Redwood Creek.
    Response: Although summer seasonal dams have existed on the 
mainstem of Redwood Creek in the past, they have been removed and are 
no longer allowed. The commenter rightly points out that dams and water 
diversions are not activities in Redwood Creek that may require special 
management considerations and we have removed them from the list of 
special management considerations for Redwood Creek.
    Comment 13: One commenter suggested that the construction and 
maintenance of the Redwood Creek Flood Control Project levees (that 
line the lower 5.5 km [3.4 miles] of Redwood Creek), should be 
considered in-water construction or alteration and listed as an 
activity that may require special management consideration.
    Response: We agree and have updated our report to include this 
category of activity.

Unoccupied Areas

    Comment 14: One commenter suggested that we should give greater 
consideration to the potential designation of unoccupied habitats. The 
commenter stated that NMFS ``must consider physical and biological 
features of historically occupied areas, not just presence and 
production, before determining that these areas are not essential for 
the conservation of the species.''
    Response: Section 3(5)(A)(ii) of the ESA authorizes the Secretary 
of Commerce to designate ``specific areas outside the geographical area 
occupied at the time [the species] is listed'' if the Secretary 
determines that these areas are essential for the conservation of the 
species. Section 4(b)(2) of the ESA directs the Secretary to designate 
critical habitat ``on the basis of the best scientific data available'' 
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 commenter states that NMFS must base its decision to designate 
critical habitat in unoccupied areas on whether those areas might 
contain the physical or biological features essential to the 
conservation of the species. However, the ESA's definition of critical 
habitat in unoccupied areas does not rely on the presence of physical 
or biological features, but on the determination that the area is 
essential for the conservation of the species. Our implementing 
regulations provide that we may only designate unoccupied areas if we 
determine that currently occupied areas are not adequate for 
conservation (50 CFR 424.12(e)). In the case of the southern DPS of 
eulachon, we are unable to make such a determination at this time. In 
the process of recovery planning we may determine that additional areas 
are necessary for conservation and revise the designation.
    In addition, the commenter incorrectly states that we based our 
decision to not designate critical habitat in unoccupied areas ``on a 
lack of documentation of the presence of eulachon in those areas.'' 
Based on the best available science, we determined that nearly all of 
the historical and current presence and production of the southern DPS 
of eulachon comes from within the geographical area occupied at the 
time the species was listed (and particularly the Klamath, Umpqua, 
Columbia and Fraser Rivers). Sightings of southern DPS eulachon from 
creeks or rivers outside of the geographical area occupied by the 
species have been extremely infrequent, and have consisted of very few 
fish (Gustafson et al., 2010). Due to such an overwhelming proportion 
of the historical and current abundance and production of the southern 
DPS of eulachon occurring within the geographical area occupied by the 
species, we could not determine that currently occupied areas are 
inadequate to conserve the species. We received no new information on 
this subject during the comment and peer review process of the Proposed 
Critical Habitat Designation (76 FR 515; January 5, 2011). Therefore, 
we are not designating any unoccupied areas as critical habitat for the 
DPS. This is an issue that we will continue to investigate during the 
recovery planning process and we will update the critical habitat 
designation if needed.

Economic Impacts of Critical Habitat Designation

    Comment 15: One commenter put forth the argument that contemporary 
forest management activities have little impact on aquatic organisms 
such as eulachon. The commenter also believes that ``it is troubling 
that forest management is listed as the activity likely to have the 
second most section 7 actions as a result of the critical habitat 
designation.''
    Response: In the proposed rule we identified a number of activities 
that may affect the physical and biological features essential to 
conservation of the southern DPS of eulachon (76 FR 515; January 5, 
2011). One of the major types of activity was pollution and runoff from 
point and non-point sources including industrial activities, 
urbanization, grazing, agriculture, and forestry operations. Nearly all 
of the watersheds that contain specific areas proposed as critical 
habitat for eulachon have been or are still subject to forest 
management activities. While we acknowledge that modern forest practice 
rules have greatly reduced the impact of forest management activities 
on aquatic environments (Cafferata and Spittler, 1998), there is a 
large body of information demonstrating that such activities continue 
to require special management considerations to ensure they do not 
impair eulachon habitat. For example, Rashin et al. (2006) state that 
``[t]imber harvest activities have the potential to increase sediment 
loading to streams from harvest site erosion and to cause direct 
physical disturbance of stream channels and riparian zones.'' Gomi et 
al. (2005) report that ``[f]orest management practices can increase 
fine

[[Page 65331]]

sediment supply though soil disturbance and accelerated landsliding.'' 
These authors go on to state ``[s]oil disturbance and sediment delivery 
to streams are commonly associated with construction of roads and 
landings, slash burning, and log skidding (Reid and Dunne, 1984; 
Christie and Fletcher, 1999; Jordan, 2001; Kreutzwiser et al., 2001). 
The hydrologic and geomorphic effects of forest roads in particular 
have been the focus of many studies, given their demonstrated potential 
for negative impacts (Luce and Wemple, 2001).''
    As part of our estimate of the potential economic impact of 
critical habitat designation for the southern DPS of eulachon we 
projected the future administrative costs of engaging in ESA section 7 
consultations. In our Draft Economic Analysis (NMFS, 2010b), we 
provided a forecast of the annual number of future section 7 actions, 
organized by affected watershed and activity, that may require 
consultation with NMFS. Forest management was one of the ten broad 
activity groups that were identified that may require some form of 
section 7 consultation in the future. We have an extensive consultation 
history for other anadromous species (including West Coast salmon and 
steelhead) in the watersheds that we proposed as eulachon critical 
habitat. Estimates of the future annual number of section 7 actions 
related to eulachon were based on the average number of past actions 
that required consultation for these species in these watersheds 
between 2000 and 2009.
    While forest management is the activity that we forecast to have 
the second-most section 7 actions as a result of eulachon critical 
habitat designation, it is important to keep the estimates in 
perspective. We chose the individual watersheds that encompass each 
stream reach proposed as eulachon critical habitat as our assessment 
area for economic impacts (specifically, we used 5th field hydrologic 
units as designated by the U.S. Geological Survey). The total land area 
included in our assessment area is approximately 9,500 km\2\ (2.3 
million acres). We estimate that forest management activities will 
result in approximately seven ESA section 7 consultations per year as a 
result of eulachon critical habitat designation, and of these, only one 
will require formal consultation. Given that forest management is one 
of the most dominant land uses across our assessment area, the 
estimated number of related consultations that may need to address 
eulachon critical habitat is comparatively small for an area so large.
    Comment 16: One commenter believed designating ocean areas as 
critical habitat would have an adverse economic impact on shrimp 
fisheries off the Pacific Coast.
    Response: We did not propose to designate critical habitat in 
marine waters because we were unable to identify specific areas in the 
marine environment that meet the definition of critical habitat under 
section 3(5)(A). Therefore we did not assess the economic impact of 
designating marine areas as critical habitat, including any economic 
impacts to ocean shrimp fisheries.
    Comment 17: One commenter expressed concern that the designation of 
critical habitat in the Elwha River could lead to changes in the timing 
of the upcoming removal of the Elwha and Glines Canyon Dams. The 
commenter believes that any changes in the timing of dam removal could 
potentially have high associated costs that were not factored into 
NMFS' economic analysis.
    Response: In 2010, we completed our consultation with the National 
Park Service on removal of the Elwha and Glines Canyon Dams and their 
effects on eulachon (NMFS, 2010c). Removal of the dams will result in 
the release of accumulated sediment that is likely to harm eulachon and 
their habitat. In our consultation we considered the direct effects to 
eulachon as well as the indirect effects that would result from habitat 
alteration. The Biological Opinion contains terms and conditions that 
require the Park Service to maintain consistent sediment loads during 
March through May to minimize impacts to spawning eulachon. Designation 
of critical habitat in the Elwha River will require reinitiation of 
consultation with the Park Service. It is possible that during the 
course of the consultation our analysis may lead to additional terms 
and conditions, but at this time there are none that we can reasonably 
anticipate (NMFS 2010c; Zach Hughes, NMFS, Washington State Habitat 
Office, personal communication, 9/12/2011). Our economic analysis 
therefore includes as a cost of designation only the added 
administrative cost of completing a new consultation.

Indian Lands Exclusions

    Comment 18: One commenter believed that Tribal lands should not be 
excluded from critical habitat because doing so would diminish the 
conservation value of the designation. A separate commenter believed 
that Tribal lands should only be excluded if the affected Tribes agree 
to address eulachon protections in their conservation plans.
    Response: Section 4(b)(2) of the ESA provides the Secretary with 
discretion to exclude areas from the designation of critical habitat if 
the Secretary determines that the benefits of exclusion outweigh the 
benefits of designation, and the Secretary finds that exclusion of the 
area will not result in extinction of the species. Tribal lands are 
managed by Indian Tribes in accordance with Tribal goals and objectives 
within the framework of applicable treaties and laws. Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
outlines the policies and responsibilities of the Federal Government in 
matters affecting Tribal interests (recently confirmed by Presidential 
Memorandum; 74 FR 57879; November 9, 2009). In addition to Executive 
Order 13175, we have Department of Commerce policy direction, via 
Secretarial Order 3206, stating that Indian lands shall not be 
designated as critical habitat, nor areas where the ``Tribal trust 
resources * * * or the exercise of Tribal rights'' will be impacted, 
unless such lands or areas are determined ``essential to conserve a 
listed species.'' In such cases we ``shall evaluate and document the 
extent to which the conservation needs of the listed species can be 
achieved by designating only other lands.''
    In our proposed rule, we determined that excluding Tribal lands 
from critical habitat designation would have the benefit of promoting 
federal policies regarding Tribal sovereignty and self-governance 
(e.g., Executive Order 13175). In addition, we determined that 
exclusion of Tribal lands would have the benefit of promoting a 
positive working relationship between NMFS and the Tribes (in 
accordance with Secretarial Order 3206), with a very small reduction in 
the benefits of designation (primarily the loss of section 7 
consultation to consider adverse modification of critical habitat). 
Although these specific areas have a high conservation value for 
eulachon, their extent is relatively small (approximately 5% of the 
total area designated). In the decision Center for Biological 
Diversity, v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court 
held that a positive working relationship with Indian Tribes is a 
relevant impact that can be considered when weighing the relative 
benefits of a critical habitat designation.
    The Tribes affected by this critical habitat designation have 
played and continue to play an active role in the conservation and 
management of this species. These Tribal governments are also co-
managers of a variety of other freshwater and marine species and

[[Page 65332]]

resources throughout the region. The co-manager relationship crosses 
Tribal, Federal, and state boundaries, due to the migratory 
characteristics of these species. As we move forward with eulachon 
recovery planning, a positive working relationship with the Tribes will 
be crucial to the management and recovery of eulachon.
    While it is possible that exclusion of Indian lands may result in a 
small reduction in the conservation benefits of the designation, the 
species is still protected under the jeopardy standard of ESA section 
7, and activities that occur on non-Tribal lands near or adjacent to 
excluded Tribal lands will still be subject to section 7 consultation 
for adverse modification of critical habitat. In addition, there are 
several management plans that guide Tribal activities in the affected 
watersheds (e.g., the Quinault Reservation Forest Management Plan, 
Elwha River Fish Restoration Plan, and the Lower Klamath River Sub-
Basin Watershed Restoration Plan) and provide protection to eulachon 
habitat.
    Comment 19: One commenter believed that we should not exclude lands 
covered by a Habitat Conservation Plan (HCP) unless the plan contains 
adequate protections for eulachon.
    Response: We agree that adequate protections for eulachon within an 
existing HCP should be a requirement for any landowner seeking to have 
land excluded from critical habitat designation. There are two existing 
HCPs that overlap areas that were proposed as critical habitat for the 
southern DPS of eulachon; the Green Diamond Timber HCP (covering the 
company's operations in northern California, including portions of the 
Klamath River), and the Humboldt Bay Municipal Water District HCP 
(covering their operations in the Mad River, California). Neither of 
these HCPs address conservation of eulachon, and it is unclear what, if 
any, conservation benefits they might provide to eulachon. In addition, 
neither of the HCP holders requested that their lands be excluded from 
critical habitat. Therefore, we have decided not to exclude any land 
covered by these HCPs from this critical habitat designation.

Summary of Revisions

    We evaluated the comments and new information received on the 
proposed rule to ensure that they represented the best scientific data 
available and made a number of changes to the critical habitat 
designations, including:
    (1) We revised the number of specific areas included in our 
critical habitat designation based on comments received and new 
scientific information that became available following publication of 
the proposed rule. Specifically, we added Skamokawa Creek, and the 
Toutle River (both in Washington State) to the list of specific areas.
    (2) We extended the upstream extent of critical habitat for three 
specific areas based on comments received and new scientific 
information. Critical habitat was extended on Redwood Creek, 
California, and the Elochoman and Kalama Rivers in Washington. In 
addition we revised the Lewis River specific area to include the East 
Fork of the Lewis River.
    (3) We further explained and clarified the functional relationship 
between the spawning and incubation essential feature and the migration 
corridor essential feature based on comments received.
    (4) We revised our economic analysis based on additions to the 
specific areas included in the critical habitat designation. 
Specifically, we added a new 5th field hydrologic unit to our analysis 
(HUC 1708000205: East Fork Lewis River).
    (5) We have designated critical habitat in the Quinault River, 
Washington, and the Klamath River, California. These specific areas 
were excluded entirely from the proposed critical habitat rule. Upon 
further review, based on more complete information on land ownership, 
we determined that only the portions of these rivers that overlap with 
Indian lands are eligible for exclusion. Critical habitat does not 
include any Tribal lands of the Lower Elwha Tribe, Quinault Tribe, 
Resighini Rancheria, or Yurok Tribe.

Methods and Criteria Used To Identify Critical Habitat

    In accordance with section 4(b)(2) of the ESA and our implementing 
regulations (50 CFR 424.12), this final 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 eulachon, including recent biological surveys and 
reports, peer-reviewed literature, NMFS status reviews for the southern 
DPS of eulachon (Gustafson et al., 2010), the proposed rule to list 
eulachon (74 FR 10857; March 13, 2009), and the final listing 
determination for eulachon (75 FR 13012; March 18, 2010) and 
information provided during the comment process. All of the information 
gathered to create this final rule has been collated and analyzed in 
three supporting documents: The Eulachon Biological Report (NMFS, 
2011b); the Eulachon Economic Analysis (NMFS, 2011c); and, the Eulachon 
Section 4(b)(2) Report (NMFS, 2011a).
    We used this information to identify specific areas that qualify as 
critical habitat for the southern DPS. We followed a five-step process 
in order to identify these specific areas: (1) Determine the 
geographical area occupied by the species, (2) identify physical or 
biological habitat features essential to the conservation of the 
species, (3) delineate specific areas within the geographical area 
occupied by the species on which are found the physical or biological 
features, (4) determine whether the features in a specific area may 
require special management considerations or protections, and (5) 
determine whether any unoccupied areas are essential for conservation. 
Our evaluation and conclusions are described in detail in the following 
sections.

Geographical Area Occupied by the Species

    As described in the proposed rule, the first step in designating 
critical habitat is to identify the geographical area occupied by the 
species at the time of listing. In our proposed critical habitat 
designation we interpreted the ``geographical area occupied'' in ESA 
section 3(3) as equivalent to the range of the species at the time of 
listing. In our March 2010 final ESA listing rule, and in the proposed 
critical habitat designation, we identified the range of the southern 
DPS of eulachon as extending from the Skeena River in British Columbia, 
Canada, to the Mad River in California (Gustafson et al., 2010). We 
cannot designate areas outside U.S. jurisdiction as critical habitat 
(see above), thus, we limited our consideration of the range of the 
southern DPS of eulachon to the geographical area from the 
international border with Canada to the Mad River in California. We did 
not attempt to further refine our identification of the ``geographical 
area occupied by the species'' at the time of listing because of the 
process we followed in the subsequent steps of our designation. As 
explained more fully below, we identified freshwater spawning and 
incubation sites as a ``physical or biological feature essential to 
conservation'' of the species. In determining the ``specific areas'' 
that contain those sites, we confirmed that eulachon were documented 
using the sites for spawning. Thus our process of confirming that a 
specific area contains the essential features also allowed us to

[[Page 65333]]

confirm that the area was indeed occupied. Given the highly migratory 
nature of eulachon and limited marine sampling, we do not know how far 
offshore the southern DPS of eulachon are distributed and thus how far 
offshore the geographical area occupied by the species extends. We 
consider the marine extent of the geographical area occupied by the 
species as undeterminable at this time.

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.'' These physical and 
biological features 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.''
    Based on the best available scientific information, we developed a 
list of physical and biological features essential to the conservation 
of eulachon and relevant to determining whether occupied areas are 
consistent with the above regulations and the ESA section (3)(5)(A) 
definition of ``critical habitat.'' The physical or biological features 
essential to the conservation of the southern DPS fall into three major 
categories reflecting key life history phases of eulachon:
    (1) Freshwater spawning and incubation sites with water flow, 
quality and temperature conditions and substrate supporting spawning 
and incubation, and with migratory access for adults and juveniles. 
These features are essential to conservation because without them the 
species cannot successfully spawn and produce offspring.
    (2) Freshwater and estuarine migration corridors associated with 
spawning and incubation sites that are free of obstruction and with 
water flow, quality and temperature conditions supporting larval and 
adult mobility, and with abundant prey items supporting larval feeding 
after the yolk sac is depleted. These features are essential to 
conservation because they allow adult fish to swim upstream to reach 
spawning areas and they allow larval fish to proceed downstream and 
reach the ocean.
    (3) Nearshore and offshore marine foraging habitat with water 
quality and available prey, supporting juveniles and adult survival. 
Eulachon prey on a wide variety of species including crustaceans such 
as copepods and euphausiids (Hay and McCarter, 2000; WDFW and ODFW, 
2001), unidentified malacostracans (Sturdevant, 1999), cumaceans (Smith 
and Saalfeld, 1955) mysids, barnacle larvae, and worm larvae (WDFW and 
ODFW, 2001). These features are essential to conservation because they 
allow juvenile fish to survive, grow, and reach maturity, and they 
allow adult fish to survive and return to freshwater systems to spawn.
    The components of the freshwater spawning and incubation sites 
include:
    Flow: A flow regime (i.e., the magnitude, frequency, duration, 
seasonality, and rate-of-change of freshwater discharge over time) that 
supports spawning, and survival of all life stages. Most spawning 
rivers experience a spring freshet characteristic of rivers draining 
large snow packs or glaciers (Hay and McCarter, 2000). In general, 
eulachon spawn at lower water levels before spring freshets (Lewis et 
al., 2002). In the Kemano River, British Columbia, eulachon preferred 
water velocities from 0.1 to 0.7 m/s (Lewis et al., 2002). Sufficient 
flow may also be needed to flush silt and debris from spawning 
substrate surfaces to prevent suffocation of developing eggs.
    Water Quality: Water quality suitable for spawning and viability of 
all eulachon life stages. Sublethal concentrations of contaminants 
affect the survival of aquatic species by increasing stress, 
predisposing organisms to disease, delaying development, and disrupting 
physiological processes, including reproduction. Adult eulachon can 
take up and store pollutants from their spawning rivers, despite the 
fact that they do not feed in fresh water and remain there only a few 
weeks (Rogers et al., 1990; WDFW and ODFW, 2001). Eulachon have also 
been shown to avoid polluted waters when possible (Smith and Saalfeld, 
1955).
    Water Temperature: Suitable water temperatures, within natural 
ranges, in eulachon spawning reaches. Water temperature between 4 
[deg]C and 10 [deg]C (39 [deg]F and 50 [deg]F) in the Columbia River is 
preferred for spawning (WDFW and ODFW, 2001) although temperatures 
during spawning can be much colder in northern rivers (e.g., 0 [deg]C 
to 2 [deg]C [32 [deg]F to 36 [deg]F] in the Nass River; Willson et al., 
2006). High water temperatures can lead to adult mortality and spawning 
failure (Blahm and McConnell, 1971).
    Substrate: Spawning substrates for eulachon egg deposition and 
development. Spawning substrates typically consist of silt, sand, 
gravel, cobble, or detritus (Gustafson et al., 2010). However, pea-
sized gravel (Smith and Saalfeld, 1955) and coarse sand (Langer et al., 
1977) are the most commonly used. Water depth for spawning can range 
from 8 cm (3 in) to at least 7.6 m (25 ft) (Willson et al., 2006).
    The components of the freshwater and estuarine migration corridor 
essential feature include:
    Migratory Corridor: Safe and unobstructed migratory pathways for 
eulachon adults to pass from the ocean through estuarine areas to 
riverine habitats in order to spawn, and for larval eulachon to access 
rearing habitats within the estuaries and juvenile and adults to access 
habitats in the ocean. Lower reaches of larger river systems (e.g., the 
Columbia River) are used as migration routes to upriver or tributary 
spawning areas. Out-migrating larval eulachon are distributed 
throughout the water column in some rivers (e.g., the Fraser River) but 
are more abundant in mid-water and bottom portions of the water column 
in others (e.g., the Columbia River; Smith and Saalfeld, 1955; Howell 
et al., 2001).
    Flow: A flow regime (i.e., the magnitude, frequency, duration, 
seasonality, and rate-of-change of freshwater discharge over time) that 
supports spawning migration of adults and outmigration of larval 
eulachon from spawning sites. Most eulachon spawning rivers experience 
a spring freshet (Hay and McCarter, 2000) that may influence the timing 
of spawning adult migration. In general, eulachon spawn at low water 
levels before spring freshets (Lewis et al., 2002). In the Kemano River 
water velocity greater than 0.4 m/s (1.3 ft/s) begins to limit upstream 
movements (Lewis et al., 2002).
    Water Quality: Water quality suitable for survival and migration of 
spawning adults and larval eulachon. Adult eulachon can take up and 
store pollutants from their spawning rivers, despite the fact that they 
do not feed in fresh water and remain there only a few weeks (Rogers et 
al., 1990; WDFW and ODFW, 2001). Eulachon avoid polluted waters when 
possible (Smith and Saalfeld, 1955).
    Water Temperature: Water temperature suitable for survival and 
migration. Eulachon run timing may be

[[Page 65334]]

influenced by water temperature (Willson et al., 2006), and high water 
temperatures can increase adult mortality (Blahm and McConnell, 1971). 
Given the range of temperatures in which eulachon spawn, Langer et al. 
(1977) suggested that the contrast between ocean and river temperatures 
might be more critical than absolute river or ocean temperatures.
    Food: Prey resources to support larval eulachon survival. Eulachon 
larvae need abundant prey items (especially copepod larvae; Hart, 1973) 
when they begin exogenous feeding after the yolk sac is depleted. The 
eulachon yolk sac can be depleted between 6 and 21 days after hatching 
(Howell, 2001), and larvae may be retained in low salinity, surface 
waters of the natal estuary for several weeks or longer (Hay and 
McCarter, 2000), making this an important component in migratory 
corridor habitat.
    The components of the nearshore and offshore marine foraging 
essential feature include:
    Food: Prey items, in a concentration that supports foraging leading 
to adequate growth and reproductive development for juveniles and 
adults in the marine environment. Eulachon larvae and juveniles eat a 
variety of prey items, including phytoplankton, copepods, copepod eggs, 
mysids, barnacle larvae, and worm larvae (Barraclough, 1967; 
Barraclough and Fulton, 1967; Robinson et al., 1968a, 1968b). Eulachon 
adults feed on zooplankton, chiefly eating crustaceans such as copepods 
and euphausiids (Hart, 1973; Scott and Crossman, 1973; Hay, 2002; Yang 
et al., 2006), unidentified malacostracans (Sturdevant, 1999), and 
cumaceans (Smith and Saalfeld, 1955).
    Water Quality: Water quality suitable for adequate growth and 
reproductive development. The water quality requirements for eulachon 
in marine habitats are largely unknown, but they would likely include 
adequate dissolved oxygen levels, adequate temperature, and lack of 
contaminants (such as pesticides, organochlorines, elevated levels of 
heavy metals) that may disrupt behavior, growth, and viability of 
eulachon and their prey.

Specific Areas Within the Geographical Area Occupied by the Species

    After determining the geographical area occupied by the southern 
DPS of eulachon, and identifying the physical and biological features 
essential to their conservation, we next identified the specific areas 
that meet the statutory definition of critical habitat. Critical 
habitat is defined in Section 3(5)(A)(i) of the ESA as the ``specific 
areas within the geographical area occupied by the species * * * on 
which are found those physical and biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protection''. All of the essential 
physical and biological features we identified for freshwater and 
estuarine habitat occur within either spawning and incubation areas, or 
migratory corridors. In order to identify specific areas where the 
essential features occur, we developed criteria to determine if an area 
contained either spawning and incubation sites, or a migratory 
corridor. These criteria are areas that contain: (1) Larval fish or 
pre-/post-spawn adults that have been positively identified and 
documented; or (2) commercial or recreational eulachon fishery that has 
been documented over multiple years. There are 42 creeks and rivers 
with known or possible eulachon spawning within the U.S. range of the 
southern DPS of eulachon (Gustafson et al., 2010; NMFS, 2011b). Of 
these, we identified 16 that meet at least one of the criteria for the 
presence of the physical or biological features essential for eulachon 
conservation. We then determined the distribution of the essential 
features within these creeks or rivers. We relied on evidence of adult 
and larval eulachon presence to delineate the extent of the specific 
areas where the spawning and incubation sites and migration corridors 
are found.
    We used the most recent scientific information available to us 
(including data from published literature, field observations, 
opportunistic sightings, commercial and recreational harvest, and 
anecdotal information) to determine the presence and distribution of 
the essential features within the creeks and rivers with known or 
possible presence of eulachon. For a limited number of areas, 
opportunistic sightings are the only information that is available to 
identify the presence and distribution of the essential features. Where 
the only available information was opportunistic sightings, we 
consulted agency and Tribal biologists familiar with the area to 
confirm the information and identify the presence and extent of the 
essential features. For these areas we consider this the ``best 
available scientific information,'' necessary to inform our decisions.
    The 16 specific freshwater and estuarine areas which contain one or 
more of the essential physical or biological features are described 
below and summarized in Table 1, which appears at the end of the 
Special Management Considerations section. The Eulachon Biological 
Report (NMFS, 2011b) provides more detailed information on each 
specific area, including a description of the essential physical and 
biological features, special management considerations or protection 
that may be needed, and the presence and distribution of the southern 
DPS of eulachon.
    (1) Mad River, CA: The Mad River is located in northwestern 
California. It flows for approximately 150 km (95 mi) in a roughly 
northwest direction through Trinity and Humboldt Counties, draining a 
1,290 km\2\ (497 mi\2\) basin into the Pacific Ocean near 
McKinleyville, California. The river's headwaters are in the Coast 
Range mountains near South Kelsey Ridge.
    Eulachon consistently spawned in large numbers in the Mad River as 
recently as the 1960s and 1970s (Moyle et al., 1995; Moyle, 2002; 
Gustafson et al., 2010). However, in recent years eulachon numbers have 
declined, and they are now considered rare (Sweetnam et al., 2001). 
Based on observations by the California Department of Fish and Game 
(CDFG), spawning occurs as far upstream as the confluence with the 
North Fork of the Mad River (CDFG, 2009). The river below this point 
contains overlapping spawning and incubation sites and migration 
corridor features.
    (2) Redwood Creek, CA: Redwood Creek is located entirely in 
Humboldt County, in northwestern California. The basin is approximately 
105 km (65 mi) long, and drains approximately 738 km\2\ (285 mi\2\), 
most of which is forested and mountainous terrain (Cannata et al., 
2006).
    Eulachon have been reported from Redwood Creek by a variety of 
sources (Young, 1984; Ridenhour and Hofstra, 1994; Moyle et al., 1995; 
Larson and Belchik, 1998), and runs large enough to be noted in 
available local newspaper accounts occurred in 1963 and 1967. Eulachon 
returns to Redwood Creek have declined drastically in recent years, and 
they are now considered rare (Sweetnam et al., 2001). CDFG reported 
that during the early 1970s eulachon regularly spawned between the 
ocean and the mouth of Prairie Creek (the first major tributary on 
Redwood Creek; Moyle et al., 1995). During April 1973, a spawning run 
of eulachon were observed passing Tom McDonald Creek (CDFG, 1973), a 
tributary located approximately 19.7 km (12.2 miles) upstream from the 
mouth of Redwood Creek, indicating that this area contains the 
essential features of spawning and incubation, and a migration 
corridor. Spawning also occurred in the lower 0.5

[[Page 65335]]

km (0.3 mi) of Prairie Creek (Moyle et al., 1995), sporadically up to 
the 1970s.
    The lower reach of Redwood Creek alternates between an open estuary 
and a closed coastal lagoon depending on the season. During early 
summer a sand bar typically forms across the river mouth creating a 
lagoon. Rains during the fall typically clear the sand bar away and 
open up the river mouth to the ocean (Cannata et al., 2006).
    (3) Klamath River, CA: The Klamath River basin drains approximately 
25,100 km\2\ (9,690 mi\2\) in southern Oregon and northern California, 
making it the second largest river in California (after the Sacramento 
River). Historically, the Klamath River has been a major producer of 
anadromous fish, and once was the third most productive salmon and 
steelhead fishery in the continental United States, prior to recent 
significant declines (Powers et al., 2005).
    Historically, large aggregations of eulachon consistently spawned 
in the Klamath River (Fry, 1979; Moyle et al., 1995; Larson and 
Belchik, 1998; Moyle, 2002; Hamilton et al., 2005), and a commercial 
fishery occurred there in 1963 (Odemar, 1964). During the spawning run, 
fish were regularly caught from the mouth of the river upstream to 
Brooks Riffle, near the confluence with Omogar Creek (Larson and 
Belchik, 1998), indicating that this area contains the spawning and 
incubation, and migration corridor essential features.
    The only reported commercial catch of eulachon in Northern 
California occurred in 1963 when a combined total of 25 metric tons 
(56,000 lbs) was landed from the Klamath River, the Mad River, and 
Redwood Creek (Odemar, 1964). Since 1963, the run size has declined to 
the point that only a few individual fish have been caught in recent 
years. According to accounts of Yurok Tribal elders, the last 
noticeable runs of eulachon were observed in the Klamath River in 1988 
and 1989 by Tribal fishers (Larson and Belchik, 1998). However, in 
January 2007, and again in February 2011, a small number of eulachon 
were reportedly caught by Tribal fishers on the Klamath River (Yurok 
Tribe, 2008; McCovey, 2011). Larson and Belchik (1998) report that 
eulachon have not been of commercial importance in the Klamath in 
recent years and are unstudied as to their current run strengths.
    Approximately 68 km (42 mi) of the lower Klamath River is bordered 
by the Yurok Indian Reservation. The lower Klamath River is listed as a 
National Wild and Scenic River from the mouth, upstream to just below 
Iron Gate Dam, for a total of 460 km (286 mi). Of these, 19 km (12 mi) 
are designated Wild, 39 km (24 mi) are designated Scenic, and 402 km 
(250 mi) are designated Recreational.
    (4) Umpqua River/Winchester Bay, OR: The Umpqua River Basin 
consists of a 10,925 km\2\ (4,220 mi\2\) drainage area comprised of the 
main Umpqua River, the North Umpqua River, the South Umpqua River, and 
associated tributary streams (Snyder et al., 2006). The Umpqua River 
drains a varied landscape, from steep-sloped uplands, to low gradient 
broad floodplains. Upstream, the Umpqua River collects water from 
tributaries as far east as the Cascade Mountains.
    Historically, a large and consistent run of eulachon returned to 
the Umpqua River, and both recreational and commercial fisheries 
occurred. The Umpqua River eulachon sport fishery was active for many 
years during the 1970s and 1980s, with the majority of fishing activity 
centered near the town of Scottsburg. A commercial fishery also 
harvested eulachon during that time. Approximately 1,800 to 2,300 kg 
(4,000 to 5,000 lbs) of eulachon were landed by two commercial 
fishermen in the Umpqua River during 31 days of drift gill net fishing 
from late December 1966 to mid-March 1967 (OFC, 1970). Numbers of fish 
returning to the Umpqua seem to have declined in the 1980s and do not 
appear to have rebounded to previous levels. Johnson et al. (1986) list 
eulachon as occurring in trace amounts in their trawl and beach-seine 
samples from April 1977 to January 1986. Williams (2009) reported on 
the results of seine collections conducted during March to November 
from 1995 to 2003 in Winchester Bay estuary on the Lower Umpqua River, 
which confirmed the presence of eulachon in four of the years in which 
sampling occurred.
    Eulachon have been documented in the lower Umpqua River during 
spawning, from the mouth upstream to the confluence of Mill Creek, just 
below Scottsburg (Williams, 2009). This indicates that the area 
downstream from this confluence contains the spawning and incubation, 
and migration corridor essential features.
    (5) Tenmile Creek, OR: The Tenmile Creek watershed lies entirely 
within Lane County, Oregon and encompasses approximately 60 km\2\ (23 
mi\2\) on the central Oregon Coast (Johnson, 1999). The watershed is in 
a unique location, between the Cummins Creek and Rock Creek wilderness 
areas, which are protected from development.
    Eulachon are regularly caught in salmonid smolt traps operated in 
the lower reaches of Tenmile Creek by ODFW. During previous sampling 
efforts, 80-90 percent of the eulachon captured in the traps were 
spawned out and several fish were found dead (Williams, 2009). Given 
the timing of the sampling (February to May), it is very likely that 
spawning occurs regularly in Tenmile Creek. It is not known how far 
adult eulachon ascend the creek to spawn, but the location of the ODFW 
trap (just upstream of the Highway 101 bridge) is the confirmed 
upstream extent of adult eulachon in spawning condition, and we 
conclude that the specific area containing spawning and incubation 
sites extends upstream at least to this point (ODFW, 2009).
    (6) Sandy River, OR: The Sandy River and its tributaries drain 
1,316 km\2\ (508 mi\2\). Most of the headwaters of the Sandy River are 
within Clackamas County, while the lower mainstem of the river lies 
within Multnomah County. The Sandy River originates from glaciers on 
Mount Hood and flows for 90 km (56 mi) to join the Columbia River near 
the City of Troutdale (Sandy River Basin Watershed Council, 1999). The 
segment of the Sandy River from Dodge Park to Dabney State Park was 
designated as a National Wild and Scenic River in October 1988.
    Large commercial and recreational fisheries have occurred in the 
Sandy River in the past. The most recent commercial harvest in the 
Sandy River was in 2003 and resulted in a catch of 10,400 kg (23,000 
lbs) (Joint Columbia River Management Staff [JCRMS], 2009). During 
spawning, eulachon extent in the Sandy River is typically upstream to 
the confluence with Gordon Creek (Anderson, 2009), indicating that this 
area contains the spawning and incubation, and migration corridor 
essential features.
    (7) Lower Columbia River, OR and WA: The lower Columbia River and 
its tributaries support the largest known spawning run of eulachon. The 
mainstem of the lower Columbia River provides spawning and incubation 
sites, and a large migratory corridor to spawning areas in the 
tributaries. Major tributaries of the Columbia River that have 
supported eulachon runs in the past include the Grays, Elochoman, 
Cowlitz, Kalama and Lewis Rivers in Washington and the Sandy River in 
Oregon (WDFW and ODFW, 2001; Gustafson et al., 2010; the Columbia River 
tributaries in Washington State are discussed below as separate 
specific areas).
    Although direct estimates of adult spawning stock abundance in the 
Columbia River are unavailable, records of commercial fishery landings 
begin in

[[Page 65336]]

1888 and continue as a nearly uninterrupted data set to 2010 (Gustafson 
et al., 2010). A large recreational dipnet fishery, for which catch 
records have not been maintained, has taken place concurrent with the 
commercial fishery (WDFW and ODFW, 2001). However, the dipnet fishery 
took place almost entirely within the tributaries. During spawning, 
adult eulachon are found in the lower Columbia River from the mouth of 
the river to immediately downstream of Bonneville Dam (WDFW and ODFW, 
2008), indicating that the area contains the essential feature of 
migration corridors. Eulachon eggs have been collected, and spawning 
presumed, from river km 56 (river mi 35) to river km 117 (river mi 73) 
(Romano et al., 2002) indicating that this area contains the spawning 
and incubation essential feature. However, due to the limited range of 
the study, the entire range of eulachon spawning in the mainstem of the 
Columbia River remains unknown (Romano et al., 2002). As noted above in 
response to Comment 7, eulachon have historically been reported as far 
upstream as Hood River but have rarely passed Bonneville Dam since its 
completion in 1937.
    The Columbia River, estimated to have historically represented half 
of the species' abundance, experienced a sudden decline in its 
commercial eulachon fishery landings in 1993-1994 (WDFW and ODFW, 2001; 
JCRMS, 2009). Commercial catch levels were consistently high (usually 
greater than 500 metric tons [550 tons] and often greater than 1,000 
metric tons [1,100 tons]) for the three quarters of a century from 
about 1915 to 1992. In 1993, catches declined greatly to 233 metric 
tons (257 tons) and to an average of less than 40 metric tons (44 tons) 
between 1994 and 2000. From 2001 to 2004, the catches increased to an 
average of 266 metric tons (293 tons), before falling to an average of 
less than 5 metric tons (5.5 tons) from 2005 to 2008. Some of this 
pattern is due to fishery restrictions put in place in response to the 
apparent sharp declines in the species abundance. Persistent low 
returns and landings of eulachon in the Columbia River from 1993 to 
2000 prompted the states of Oregon and Washington to adopt a Joint 
State Eulachon Management Plan in 2001 that provides for restricted 
harvest management when parental run strength, juvenile production, and 
ocean productivity forecast a poor return (WDFW and ODFW, 2001). 
Despite a brief period of improved returns in 2001-2003, the returns 
and associated commercial landings declined to the very low levels 
observed in the mid-1990s (JCRMS, 2009), and the fishery operated at 
the most conservative level allowed in the Joint State Eulachon 
Management Plan from 2005 to 2010 (JCRMS, 2009). All commercial and 
recreational fisheries for eulachon were closed in Oregon and 
Washington for 2011.
    (8) Grays River, WA: The Grays River watershed is located in 
Pacific and Wahkiakum counties, in Washington State. The Grays River is 
a tributary of the Columbia River, which it enters near the town of 
Oneida, Washington. The Grays River watershed encompasses 322 km\2\ 
(124 mi\2\) (May and Geist, 2007).
    From 1980 to 1989 the annual commercial harvest of eulachon in the 
Grays River varied from 0 to 16 metric tons (0 to 35,000 lbs.). No 
commercial harvest has been recorded for the Grays River from 1990 to 
the present, but larval sampling has confirmed successful spawning in 
recent years (JCRMS, 2009). During spawning, eulachon typically ascend 
the river as far as the covered bridge near the unincorporated town of 
Grays River, WA (Anderson, 2009), indicating that this area contains 
the spawning and incubation, and migration corridor essential features.
    (9) Skamokawa Creek, WA: Skamokawa Creek is a tributary of the 
Columbia River located in southwest Washington. Skamokawa Creek drains 
a relatively small (161 km\2\ [63 mi\2\]) watershed that lies entirely 
within Wahkiakum County.
    During April 2011, biologists from the Cowlitz Indian Tribe 
documented the presence of eulachon larvae in Skamokawa Creek, 
confirming eulachon spawning in this system (Cowlitz Indian Tribe, 
2011). These biologists used a systematic sampling protocol to 
determine that the bridge crossing at Petersen was the likely upstream 
limit of spawning. We consider this recent information as the best 
available indicating that this area contains the spawning and 
incubation, and migration corridor essential features for eulachon.
    (10) Elochoman River, WA: The Elochoman River is a tributary of the 
Columbia River in southwest Washington and it originates in the Willapa 
Hills. The watershed lies within Lewis, Cowlitz, and Wahkiakum counties 
and flows generally south to the Columbia River. The Elochoman 
watershed area is approximately 261 km\2\ (101 mi\2\) (Lower Columbia 
Fish Recovery Board [LCFRB], 2004a).
    Eulachon spawn occasionally in the Elochoman River, although there 
is no history of commercial or recreational harvest of eulachon for the 
Elochoman River. Sampling of outmigrating larval eulachon by WDFW has 
confirmed spawning in the river 7 times in the last 15 years (JCRMS, 
2011), most recently in 2011 (Chris Wagemann, WDFW, personal 
communication, 4/18/2011). In the past, WDFW has observed spawning 
eulachon in the Elochoman River as far the Washington State Highway 4 
bridge crossing (Anderson, 2009). However, in April 2011, biologists 
from the Cowlitz Indian Tribe documented the presence of larval 
eulachon in the Elochoman River to the Monroe Drive bridge crossing 
(Cowlitz Tribe, 2011), indicating that a more extensive area contains 
the spawning and incubation, and migration corridor essential features. 
If eulachon ascend the river beyond this point, the water intake dam at 
the old Beaver Creek Hatchery (located on the Elochoman River at river 
km 11.5 [river mi 7.1]) may be a barrier to any further upstream 
migration of eulachon (Wade, 2002).
    (11) Cowlitz River, WA: The Cowlitz River flows from its source on 
the west slope of the Cascade Mountains through the towns of Kelso and 
Longview, Washington, and empties into the Columbia River about 109 km 
(68 mi) upstream from the Pacific Ocean. The Cowlitz River drains 
approximately 6,400 km\2\ (2,480 mi\2\) over a distance of 243 km (151 
mi) (Dammers et al., 2002). Principal tributaries to the Cowlitz River 
include the Coweeman, Toutle, Tilton, and Cispus Rivers.
    The Cowlitz River is likely the most productive and important 
spawning river for eulachon within the Columbia River system (Wydoski 
and Whitney, 2003). Spawning adults typically move upstream about 26 km 
(16 mi) to the town of Castle Rock, WA or beyond to the confluence with 
the Toutle River. Adults are regularly sighted from the mouth of the 
river to 55 km (34 mi) upstream (near the town of Toledo, WA). Eulachon 
are occasionally sighted as far as 80 km (50 mi) upstream, to the 
barrier dam at the Cowlitz Salmon Hatchery (WDFW and ODFW, 2008; 
Anderson, 2009), indicating that this area contains the spawning and 
incubation, and migration corridor essential features.
    The Cowlitz River currently has 3 major hydroelectric dams and 
several small-scale hydropower and sediment retention structures 
located on tributaries within the Cowlitz Basin. Mayfield Dam is 
located at river km 84 (river mi 52) and is a complete barrier to 
upstream migration of anadromous fishes (LCFRB, 2004b) (although the 
salmon hatchery barrier dam at river km 80 (river mi 50) may also be a 
complete barrier to eulachon).

[[Page 65337]]

    (12) Toutle River, WA: The Toutle River is a tributary of the 
Cowlitz River, and it occurs in portions of Lewis, Cowlitz, and 
Skamania Counties in southwestern Washington State. The Toutle River is 
one of the major tributaries of the lower Cowlitz River and their 
confluence occurs 32 km (20 mi) upstream of the mouth of the Cowlitz 
River, just north of the town of Castle Rock, Washington. The basin 
encompasses approximately 1,329 km\2\ (513 mi\2\) of mostly forested 
land. The Toutle River drains the north and west sides of Mount St. 
Helens and elevations in the watershed range from near sea level at the 
mouth to 2,550 m (8,365 ft) at the summit of Mount St. Helens. The 
watershed contains three main drainages: The North Fork Toutle, the 
South Fork Toutle, and the Green River. Most of the North and South 
Fork were impacted severely by the 1980 eruption of Mount St. Helens 
and the resulting massive debris torrents and mudflows (LCFRB, 2004b).
    During April 2011, biologists from the Cowlitz Indian Tribe 
documented the presence of eulachon larvae in the Toutle River, 
confirming eulachon spawning in this system (Craig Olds, Cowlitz Indian 
Tribe, personal communication, April 22, 2011). In the past, spawned 
out eulachon adults have been collected in the Cowlitz River near the 
mouth of the Toutle River. But the recent surveys provide the first 
evidence of spawning in the Toutle River. The Cowlitz Tribe biologists 
captured eulachon larvae in the Toutle River up to the bridge crossing 
at Tower Road, which is 10.5 km (6.6 mi) upstream from the confluence 
with the Cowlitz River. We consider this recent information as the best 
available indicating that this area contains the spawning and 
incubation, and migration corridor essential features for eulachon.
    (13) Kalama River, WA: The Kalama River basin is a 531 km\2\ (205 
mi\2\) watershed extending from the southwest slopes of Mount St. 
Helens to the Columbia River (LCFRB, 2004e). The headwaters of the 
Kalama River begin in Skamania County, WA, but the majority of the 72 
km (45 mi) of river flows within Cowlitz County. At river km 16 (river 
mi 10), a concrete barrier dam and fish ladder prevent upstream 
movement of all anadromous fishes with the exception of summer 
steelhead and spring Chinook salmon (LCFRB, 2004c).
    The extent of spawning within the Kalama River is from the 
confluence with the Columbia River to the confluence with Indian Creek 
(Cowlitz Indian Tribe, 2011), indicating that this area contains the 
spawning and incubation, and migration corridor essential features. 
Although the last commercial harvest of eulachon in the Kalama River 
occurred in 1993, sampling for larval eulachon has confirmed spawning 
in the Kalama River as recently as 2011 (Cowlitz Indian Tribe, 2011).
    (14) Lewis River, WA: The Lewis River enters the Columbia River 104 
km (87 mi) upstream from the mouth of the Columbia River, a few 
kilometers north of the town of Ridgefield, Washington. The majority of 
the 1,893 km\2\ (731 mi\2\) watershed lies within Clark, Cowlitz and 
Skamania Counties (LCFRB, 2004d). Although generally not considered as 
large a eulachon run as the Cowlitz River, the Lewis River has produced 
very large runs periodically. Nearly half of the total commercial 
eulachon catch for the Columbia River Basin in 2002 and 2003 came from 
the Lewis River. Larval eulachon have been caught in the Lewis River 
during sampling efforts by WDFW and the Cowlitz Indian Tribe, (JCRMS, 
2009; Cowlitz Indian Tribe, 2011). During spawning, eulachon typically 
move upstream in the Lewis River about 16 km (10 mi; to Eagle Island), 
but they have been observed upstream to the Merwin Dam (WDFW and ODFW, 
2008; Anderson, 2009). Larval eulachon have also been caught in the 
East Fork of the Lewis River, up to the confluence with Mason Creek, 
9.2 km (5.7 mi) from the confluence with the mainstem of the Lewis 
River (Cowlitz Indian Tribe, 2011). The capture of larval eulachon in 
the mainstem and east fork of the Lewis River indicates that these 
areas contain the spawning and incubation, and migration corridor 
essential features.
    Merwin Dam, completed in 1931, is 240 feet high and currently 
presents a passage barrier to all anadromous fish, including eulachon 
(LCFRB, 2004d). We are unable to find information to determine whether 
eulachon ascended the river beyond river km 31.4 (river mi 19.5) prior 
to construction of the dam. However, Merwin Dam was built in an area 
where the Lewis River became constricted, with increased gradient and 
higher water velocities. Prior to dam construction this area was likely 
a natural passage barrier for eulachon. For this reason, the area 
upstream of the current Merwin Dam site was not considered for 
inclusion as critical habitat.
    (15) Quinault River, WA: The headwaters of the Quinault River 
originate in the Olympic Mountains within Olympic National Park. The 
river then crosses into the Quinault Indian Reservation where it flows 
into Lake Quinault. Downstream of the lake, the Quinault River remains 
within the Quinault Indian Reservation for another 53 km (33 mi) to the 
Pacific Ocean. The total watershed area is 1,190 km\2\ (460 mi\2\) 
(Smith and Caldwell, 2001).
    Although there is currently no monitoring for eulachon in the 
Quinault River, WDFW and ODFW (2001) reported that eulachon ``were 
noted in large abundance in the Quinault'' River in 1993. A noticeable 
number of eulachon make an appearance in the Quinault River, and to a 
lesser extent the Queets River, at 5 to 6 year intervals and were last 
observed in the Quinault River in the winter of 2004-2005 (Quinault 
Indian Nation, 2008). There is very little information on eulachon 
spawning distribution in the Quinault River, but Tribal fishermen 
targeting eulachon typically catch fish in the lower three miles of the 
river (Quinault Indian Nation, 2008). It is reasonable to conclude that 
this area contains the spawning and incubation, and migration corridor 
essential features.
    Although eulachon are currently only occasionally recorded in the 
Quinault River, during the late 19th and early 20th century eulachon 
were regularly caught by members of the Quinault Indian Tribe 
(Willoughby, 1889; Olson, 1936). Fish were typically taken in the ocean 
surf but often ascended the river for several miles (Olson, 1936). 
Olson (1936) reported that there was usually a large run of eulachon in 
the Quinault River every three or four years, and the run timing 
varied, usually occurring between January and April. The Washington 
Department of Fisheries annual report for 1960 (Starlund, 1960) listed 
commercial eulachon landings in the Quinault River in 1936, 1940, 1953, 
1958 and 1960. The commercial catches ranged from a low of 61 kg (135 
lbs.) in 1960, to a high of 42,449 kg (93,387 lbs.) in 1953.
    Nearly half of the watershed lies within Olympic National Park, 
under the jurisdiction of the National Park Service, while the Quinault 
Indian reservation comprises about one third (32 percent) of the 
watershed, including most of the area downstream of Lake Quinault 
(Quinault Indian Nation and U.S. Forest Service, 1999). The U.S. Forest 
Service manages 13 percent of the watershed, and private landholdings 
comprise only 4 percent of the lands in the watershed (Smith and 
Caldwell, 2001).
    (16) Elwha River, WA: The Elwha River mainstem is approximately 72 
km (45 mi) long, and it drains 831 km\2\ (321 mi\2\) of the Olympic 
Peninsula. A majority of the drainage (83 percent) is within Olympic 
National Park (Elwha-Dungeness Planning Unit, 2005). The historical 
condition of the river has been

[[Page 65338]]

altered by two major hydroelectric developments: The Elwha Dam and the 
Glines Canyon Dam (located just upstream of the Elwha Dam).
    In 2005, eulachon were observed in the Elwha River for the first 
time since the 1970s (Shaffer et al., 2007). Since 2005, adult eulachon 
have been captured in the Elwha River every year (2006-2010) (Lower 
Elwha Tribe, 2010). Several of the fish captured in 2005 were ripe 
(egg-extruding) females, indicating that eulachon likely spawn in the 
Elwha River (Shaffer et al., 2007). The Elwha Dam serves as a complete 
barrier to upstream fish migration, and thus it is reasonable to assume 
that the spawning and incubation, and migration corridor essential 
features only extend to that point in the Elwha River. It is not known 
if eulachon ascended the Elwha River beyond the present site of the 
Elwha Dam prior to construction. However, the dam was built in an area 
where the Elwha River became constricted, with increased gradient and 
higher water velocities. Prior to dam construction this area was likely 
a natural passage barrier for eulachon. For this reason, the area 
upstream of the current Elwha Dam site was not considered for inclusion 
as critical habitat. As part of a comprehensive restoration of the 
watershed's ecosystem and its fisheries, the Elwha and Glines Canyon 
dams were acquired by the Federal Government in 2000 and their removal 
began in September 2011.
    All Areas: We delineated each specific area as extending from the 
mouth of the river or creek (or its associated estuary when applicable) 
upstream to a fixed location. We delineated the upstream extent based 
on evidence of eulachon spawning or presence, or the presence of an 
impassable barrier. The boundary at the mouth of each specific area 
that flows directly into marine waters was defined by the demarcation 
lines which 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). For those specific 
areas that do not have a COLREGS line delineated, the boundary at the 
mouth of those specific areas was defined as a line drawn from the 
northernmost seaward extremity of the mouth of the creek or river to 
the southernmost seaward extremity of the mouth (with the exception of 
the boundary at the mouth of the Elwha River, which was defined as a 
line drawn from the easternmost seaward extremity of the mouth of the 
river to the westernmost seaward extremity of the mouth). Our 
regulations state that ``[e]ach critical habitat will be defined by 
specific limits using reference points and lines as found on standard 
topographic maps of the area'' (50 CFR 424.12 (c)). The COLREGS lines 
(where defined) were chosen as the downstream extent of freshwater and 
estuarine critical habitat because they are a clearly defined federal 
standard, separating marine and inland waters, which incorporates 
landmarks that are found on standard topographic maps.

Occupied Areas Not Designated at This Time

    In the Pacific Ocean, we identified nearshore and offshore foraging 
sites as an essential habitat feature for the conservation of eulachon, 
and we determined that abundant forage species and suitable water 
quality are specific components of this habitat feature. However, we 
were unable to identify any specific areas in marine waters that meet 
the definition of critical habitat under section 3(5)(A)(i) of the ESA. 
Given the unknown, but potentially wide, distribution of eulachon prey 
items, we could not identify ``specific areas'' where either component 
of the essential features is found within marine areas believed to be 
occupied by eulachon. Moreover, prey species move or drift great 
distances throughout the ocean and would be difficult to link to any 
``specific'' areas.

Special Management Considerations

    Physical or biological features meet the definition of critical 
habitat if they ``may require special management considerations or 
protection.'' Joint NMFS and USFWS regulations at 50 CFR 424.02(j) 
define ``special management considerations or protection'' to mean 
``any methods or procedures useful in protecting physical and 
biological features of the environment for the conservation of listed 
species.'' We identified a number of activities that may affect the 
physical and biological features essential to the southern DPS of 
eulachon such that special management considerations or protection may 
be required. Major categories of such activities include: (1) Dams and 
water diversions; (2) dredging and disposal of dredged material; (3) 
in-water construction or alterations; (4) pollution and runoff from 
point and non-point sources; (5) tidal, wind, or wave energy projects; 
(6) port and shipping terminals; and (7) habitat restoration projects. 
All of these activities may have an effect on one or more of the 
essential physical and biological features 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 estuarine/marine prey resources.
    In the following paragraphs, we describe the potential effects of 
certain activities on essential physical or biological features, and we 
summarize the occurrence of these activities in the specific areas in 
Table 1 below (examples of activities that may require special 
management considerations for each of the specific areas are listed in 
the Eulachon Biological Report (NMFS, 2011b)). This is not an 
exhaustive list of potential effects, but rather a description of the 
primary concerns and potential effects that we are aware of at this 
time and that should be considered in the analysis of these activities 
under section 7 of the ESA.
    (1) Dams and Water Diversions: Physical structures associated with 
dams and water diversions may impede or delay passage of eulachon. The 
operation of dams and water diversions may also affect water flow, 
water quality parameters, substrate quality, and depth, and further 
compromise the ability of adult eulachon to reproduce successfully. 
Optimum flow and temperature requirements for spawning and incubation 
are unclear, but effects on water flow and associated effects on water 
quality (e.g., water temperature) and substrate composition may affect 
adult spawning activity, egg viability, and larval growth, development, 
and survival. Many uncertainties remain about how large-scale 
hydropower development (e.g., the Federal Columbia River Power System) 
affects eulachon habitat.
    (2) Dredging: Dredging activities, which include the disposal of 
dredged material, may affect depth, sediment quality, water quality, 
and prey resources for eulachon. Dredging and the in-river disposal of 
dredged material may remove, and/or alter the composition of, substrate 
materials at the dredge site, as well as bury them at the disposal site 
(potentially altering the quality of substrate for use as a spawning 
site). In addition, dredging operations and disposal of dredged 
materials may result in the re-suspension and spread of contaminated 
sediments, which may adversely affect eulachon migration and spawning, 
as well as larval growth and development. The effects of dredging and 
disposal activities on critical habitat would depend on factors such as 
the location, seasonality, scale, frequency, and duration of these 
activities.

[[Page 65339]]

    (3) In-water Construction or Alterations: This category consists of 
a broad range of activities associated with in-water structures or 
activities that alter habitat within rivers, estuaries, and coastal 
marine waters. The primary concerns are with activities that may affect 
water quality, water flow, sediment quality, substrate composition, or 
migratory corridors. Activities that may affect water quality include 
the installation of in-water structures (such as pilings) with 
protective coatings containing chemicals that may leach into the water. 
Activities that affect flow, sediment quality and substrate composition 
include those that result in increased erosion and sedimentation (such 
as road maintenance and construction, bridge construction, construction 
of levees and other flood control devices, construction or repair of 
breakwaters, docks, piers, pilings, bulkheads, and boat ramps) and 
those that directly alter substrates (such as sand and gravel mining or 
gravel augmentation). Activities that may affect migratory corridors 
include the construction of in-water structures, such as docks, piers, 
pilings, and ramps.
    (4) Pollution and Runoff: The discharge of pollutants and runoff 
from point and non-point sources (including but not limited to: 
Industrial discharges, urbanization, grazing, agriculture, road 
surfaces, road construction, and forestry operations) may adversely 
affect the water quality, sediment quality, and substrate composition 
of eulachon critical habitat. Exposure to contaminants may disrupt 
eulachon spawning migration patterns, and high concentrations may be 
lethal to young fish (Smith and Saalfeld, 1955). Excessive runoff may 
increase turbidity and alter the quality of spawning substrates.
    (5) Tidal, Wind, or Wave Energy Projects: Tidal, wind, or wave 
energy projects generally require energy generating equipment and 
supporting structures to be anchored on the bottom. However, there are 
a wide range of designs currently being tested and potential impacts of 
individual projects will vary depending on the type of unit being 
deployed. Projects are typically proposed for location in coastal 
marine waters or coastal estuaries. Some designs may result in physical 
structures that impede or delay passage of eulachon. In addition, 
construction and maintenance of these energy projects may require in-
water construction or alterations, which would include the potential 
effects described above.
    (6) Port and Shipping Terminals: The operation of port and shipping 
terminals poses the risk of leaks, spills, or pipeline breakage and may 
affect water quality. Vessel ballast water management (including the 
introduction of competitors or parasites) may also affect water 
quality. In addition, activities associated with the construction, 
operation, and maintenance of port and shipping terminals may affect 
water quality, sediment quality, and prey resources for larval 
eulachon. For example, dredging operations and in-water and shoreline 
construction activities associated with the construction and operation 
of port and shipping terminals may result in increased erosion and 
sedimentation, increased turbidity, and the re-suspension of 
contaminated sediments.
    (7) Habitat Restoration Projects: Habitat restoration activities 
are efforts undertaken to improve habitat, and can include the 
installation of fish passage structures and fish screens, in-stream 
barrier modification, bank stabilization, installation of instream 
structures (e.g., engineered log jams), placement of gravel, planting 
of riparian vegetation, and many other habitat-related activities. 
Although the primary purpose of these activities is to improve natural 
habitats for the benefit of native species, these activities 
nonetheless modify the habitat and need to be evaluated to ensure that 
they do not adversely affect the habitat features essential to 
eulachon. While habitat restoration activities would be encouraged as 
long as they promote the conservation of the species, project 
modifications in the form of spatial and temporal restrictions may be 
required as a result of this designation.

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.''
    Nearly all of the documented historical and current presence and 
production of the southern DPS of eulachon comes from within the 
geographical area occupied by the southern DPS at the time of listing, 
and no new information on this subject was received during the comment 
and peer review process of the Proposed Critical Habitat Designation 
(76 FR 515; January 5, 2011). Sightings of southern DPS eulachon from 
creeks or rivers outside of this area have been extremely infrequent, 
and have consisted of very few fish (Gustafson et al., 2010). 
Therefore, we are not considering any unoccupied areas as critical 
habitat for the DPS.

  Table 1--Summary of Occupied Specific Areas That Contain the Physical or Biological Features Essential to the
                                  Conservation of the Southern DPS of Eulachon
   [The river miles containing the essential physical and biological features present, and activities that may
   affect the essential features and necessitate the need for special management considerations or protection
  within each area are listed. DAM = dams and water diversions; DR = dredging and disposal of dredged material;
 CON = in-water construction or alterations, including channel modifications/diking; POLL = pollution and runoff
   from point and non-point sources; ENER = tidal energy or wave energy projects; PORT = operation of port and
                            shipping terminals; REST = habitat restoration projects.]
----------------------------------------------------------------------------------------------------------------
                                       River
          Specific area             kilometers/     Physical or biological               Activities
                                       miles               features
----------------------------------------------------------------------------------------------------------------
(1) Mad River, CA...............        21.0/13.0  Migration, Spawning....  DAM, CON, POLL
(2) Redwood Creek, CA...........        19.7/12.2  Migration, Spawning....  CON, POLL
(3) Klamath River, CA...........        17.2/10.7  Migration, Spawning....  DAM, DR, CON, POLL
(4) Umpqua River, OR............        39.0/24.2  Migration, Spawning....  DAM, DR, POLL
(5) Tenmile Creek, OR...........          0.4/0.2  Migration, Spawning....  CON, POLL
(6) Sandy River, OR.............        20.0/12.4  Migration, Spawning....  DAM, CON, POLL
(7) Columbia River, OR and WA...      230.5/143.2  Migration, Spawning....  DAM, DR, CON, POLL, ENER, PORT, REST
(8) Skamokawa Creek.............          7.8/4.8  Migration, Spawning....  CON, POLL

[[Page 65340]]

 
(9) Grays River, WA.............        17.9/11.1  Migration, Spawning....  DAM, DR, CON, POLL
(10) Elochoman River, WA........          8.4/5.2  Migration, Spawning....  CON, POLL
(11) Cowlitz River, WA..........        80.8/50.2  Migration, Spawning....  DAM, DR, CON, POLL, PORT, REST
(12) Toutle River...............         10.5/6.6  Migration, Spawning....  DAM, CON, POLL
(13) Kalama River, WA...........         12.6/7.8  Migration, Spawning....  DAM, CON, POLL
(14) Lewis River, WA............        31.1/19.3  Migration, Spawning....  DAM, CON, POLL
    East Fork, Lewis River, WA..          9.2/5.7  Migration, Spawning....  CON, POLL
(15) Quinault River, WA.........          4.8/3.0  Migration, Spawning....  CON, POLL
(16) Elwha River, WA............          7.6/4.7  Migration, Spawning....  DAM, CON, POLL, REST
----------------------------------------------------------------------------------------------------------------

Military Lands

    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.'' Department of Defense lands do not 
overlap with, nor are adjacent to, any areas that we proposed for 
designation as critical habitat for the southern DPS so there are no 
known potential areas that would be removed from this final designation 
under ESA Section 4(a)(3)(B)(i).

Application of ESA Section 4(b)(2)

    The foregoing discussion describes the specific areas that fall 
within the ESA section 3(5) definition of critical habitat and are 
eligible for designation as critical habitat. Specific areas eligible 
for designation are not automatically designated as critical habitat. 
Section 4(b)(2) of the ESA requires the Secretary to first consider the 
economic impact, impact on national security, and any other relevant 
impact of designation. The Secretary has the discretion to exclude an 
area from designation if he determines the benefits of exclusion (that 
is, avoiding the impact that would result from designation) outweigh 
the benefits of designation based upon the best scientific and 
commercial data available. In adopting this provision, Congress 
explained that, ``[t]he consideration and weight given to any 
particular impact is completely within the Secretary's discretion.'' H. 
R. Rep. No. 95-1625, at 16-17 (1978). The Secretary may not exclude an 
area from designation if exclusion will result in the extinction of the 
species. Because the authority to exclude is discretionary, exclusion 
is not required for any area.
    The first step in conducting an ESA section 4(b)(2) analysis is to 
identify the ``particular areas'' to be analyzed. Section 3(5) of the 
ESA defines critical habitat as ``specific areas,'' while section 
4(b)(2) requires the agency to consider certain factors before 
designating any ``particular area.'' Depending on the biology of the 
species, the characteristics of its habitat, and the nature of the 
impacts of designation, ``specific'' areas might be different from, or 
the same as, ``particular'' areas. For this designation, we analyzed 
two types of ``particular'' areas. 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 had identified under section 3(5)(A). 
Specifically, these areas were the occupied freshwater and estuarine 
areas that contain the physical and biological features essential to 
the conservation of the southern DPS of eulachon. Because upslope and 
upstream activities may impact critical habitat, we chose to use the 
watershed (specifically, individual 5th field hydrologic units as 
designated by the U.S. Geological Survey) as our assessment area for 
economic impacts (see the Eulachon Economic Analysis Report [NMFS, 
2011c] for definition of the 5th field hydrologic units and more 
information). Where we considered impacts on Indian lands, however, we 
instead used a delineation of ``particular'' areas based on ownership 
or control of the area. Specifically, these particular areas consisted 
of occupied freshwater and estuarine areas that overlap with Indian 
lands. (We defined Indian lands in accordance with our past practice, 
as described in the Eulachon Section 4(b)(2) Report [NMFS, 2011a].) 
This approach allowed us to consider impacts and benefits associated 
with Tribal land ownership and management by Indian Tribes.

Benefits of Designation

    The primary benefit of designation is the protection afforded under 
the ESA section 7 requirement that all federal agencies ensure their 
actions are not likely to destroy or adversely modify designated 
critical habitat. This type of benefit is sometimes referred to as an 
incremental benefit because the protections afforded to the species 
from critical habitat designation are 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 enhance the conservation of habitat by informing the 
public about areas and features important to species conservation. This 
may help focus and contribute to conservation efforts for eulachon and 
their habitats.
    With sufficient information, it may be possible to monetize these 
benefits of 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 to monetize the benefits of 
designation (e.g., estimates of

[[Page 65341]]

the monetary value of the physical and biological features within 
specific areas that meet the definition of critical habitat, or of the 
monetary value of general benefits such as education and outreach). In 
an alternative approach that we have commonly used in the past, we 
qualitatively assessed the benefit of designation for each of the 
specific areas identified as meeting the definition of critical habitat 
for the southern DPS. Our qualitative consideration began with an 
evaluation of the conservation value of each area. We considered a 
number of factors to determine the conservation value of an area, 
including the quantity and quality of physical or biological features, 
the relationship of the area to other areas within the DPS, and the 
significance to the DPS of the population occupying that area.
    To evaluate the quantity and quality of features of the specific 
areas, we considered existing information on the consistency of 
spawning in each area, the typical size of runs in the area, and the 
amount of habitat available to and used by eulachon in the area. We 
found that eulachon habitat and habitat use varies widely among the 
areas, and may vary within the same area across different years. It is 
difficult to identify differences between the areas that could be 
driving variation in run size and frequency, and variation in habitat 
use. Eulachon spawn in systems as large as the Columbia River (the 
largest river in the Pacific Northwest), and as small as Tenmile Creek 
(a watershed of approximately 60 km\2\ [23 mi\2\]). While some rivers 
consistently produce large spawning runs of eulachon (e.g., the 
Columbia and Cowlitz Rivers), spawning can be sporadic in others (e.g. 
Grays, Kalama, Sandy, and Quinault Rivers). Still other areas, either 
currently or in the past, produce small yet consistent runs of eulachon 
(e.g., Tenmile Creek and Elwha River).
    Another factor we considered in evaluating the conservation value 
of the specific areas is the geographic distribution of the areas. 
Nearly the entire production of eulachon in the conterminous United 
States originates in the 16 specific areas we have identified. These 
specific areas are widely distributed across the geographic extent of 
the DPS. Compared to salmon, steelhead, and other anadromous fishes, 
these relatively small areas historically produced a very large biomass 
of eulachon. The loss of any one of these areas could potentially leave 
a large gap in the spawning distribution of the DPS, and the loss to 
eulachon production could represent a significant impact on the ability 
of the southern DPS to survive and recover. Utilizing a diversity of 
stream/estuary sizes across a wide geographic area can be a useful 
strategy to buffer the species against localized environmental 
catastrophes (such as the Mount St. Helens eruption of May 18, 1980). 
For the above reasons, we conclude that all of the specific areas that 
we identified have a high conservation value.
    There are many federal activities that occur within the specific 
areas that could impact the conservation value of these areas. 
Regardless of designation, federal agencies are required under section 
7 of the ESA to ensure these activities are not likely to jeopardize 
the continued existence of the southern DPS of eulachon. For the 
specific areas designated as critical habitat, federal agencies are 
additionally required to ensure their actions are not likely to 
adversely modify the critical habitat. In order to conduct our economic 
analysis we grouped the potential federal activities that may be 
subject to this additional protection into several broad categories: 
Dams, water supply, agriculture, transportation, forest management, 
mining, in-water construction and restoration, water quality 
management/monitoring, and other activities. (The Eulachon Economic 
Analysis [NMFS, 2011c] includes a detailed description of the industry 
sectors associated with these activities).
    The benefit of designating a particular area depends upon the 
likelihood of a section 7 consultation occurring in that area and the 
degree to which a consultation would yield conservation benefits for 
the species. Based on past consultations for other migratory fish 
species, we estimated that a total of 39 actions would require section 
7 consultation annually within the particular areas designated as 
eulachon critical habitat (NMFS, 2011c). The most common activity type 
subject to consultation would be in-stream work (estimated 13.3 
consultations annually), followed by transportation projects (estimated 
6.9 consultations annually) and forest management (estimated 6.7 
consultations annually). A complete list of the estimated annual 
actions, divided by particular area, is included in the Eulachon 
Economic Analysis (NMFS, 2011c). These activities have the potential to 
adversely affect water quality, sediment quality, substrate 
composition, or migratory corridors for eulachon. Consultation would 
yield conservation benefits for the species by preventing or 
ameliorating such habitat effects.

Impacts of Designation

    Section 4(b)(2) of the ESA provides that the Secretary shall 
consider ``the economic impact, impact to national security, and any 
other relevant impact of specifying any particular area as critical 
habitat.'' The primary impact of a critical habitat designation stems 
from the requirement under section 7(a)(2) of the ESA that federal 
agencies ensure 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 ensure their 
actions are not likely to jeopardize the species' continued existence. 
The true impact of designation is the extent to which federal agencies 
modify their actions to ensure their actions are not likely to destroy 
or adversely modify the critical habitat of the species, beyond any 
modifications they would make because of listing and the jeopardy 
requirement. Additional impacts of designation include state and local 
protections that may be triggered as a result of the designation.
    In determining the impacts of designation, we predicted the 
incremental change in federal agency actions as a result of critical 
habitat designation and the adverse modification prohibition, beyond 
the changes predicted to occur as a result of listing and the jeopardy 
provision. In critical habitat designations for salmon and steelhead 
(70 FR 52630; September 2, 2005) we considered the ``coextensive'' 
impact of designation, 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)). More recently, 
however, several courts (including the 9th Circuit Court of Appeals in 
Arizona Cattlegrowers v. Salazar, 606 F.3d 1160 (9th Cir. 2010); 
Homebuilders Association of Northern California v. U.S. Fish and 
Wildlife, 616 F.3d 983 (9th Cir. 2010)) have approved an approach that 
examines only the incremental impact of designation (see also: Cape 
Hatteras Access Preservation Alliance v. Norton, 344 F. Supp. 2d 1080 
(D.D.C. 2004)). In more recent critical habitat designations, both NMFS 
and the USFWS have considered the incremental impact of critical 
habitat designation (for example, NMFS' designation of critical habitat 
for the Southern DPS of green sturgeon (74 FR 52300; October 9, 2009); 
U.S. Fish and Wildlife's designation of critical habitat for the Oregon 
chub (75 FR 11031; March 10, 2010)). Consistent with this

[[Page 65342]]

more recent practice, we estimated the incremental impacts of 
designation, beyond the impacts that would result from the listing and 
jeopardy provision.
    To determine the impact of designation, we examined what the state 
of the world would be with and without the designation of critical 
habitat for eulachon. The ``without critical habitat'' scenario 
represents the baseline for the analysis. It includes process 
requirements and habitat protections already afforded eulachon under 
its federal listing or under other Federal, state, and local 
regulations. Such regulations include protections afforded eulachon 
habitat from other co-occurring ESA listings and critical habitat 
designations, such as for Pacific salmon and steelhead (70 FR 52630; 
September 2, 2005), North American green sturgeon (74 FR 52300; October 
9, 2009), and bull trout (75 FR 63898; October 18, 2010) (see the 
Eulachon Economic Analysis (NMFS, 2011c) for examples of protections 
for other species that would benefit eulachon). The ``with critical 
habitat'' scenario describes the incremental impacts associated 
specifically with the designation of critical habitat for eulachon. The 
primary impacts of critical habitat designation we found were: (1) The 
additional administrative effort of including a eulachon critical 
habitat analysis in section 7 consultations, (2) the project 
modifications required solely to avoid destruction or adverse 
modification of eulachon critical habitat, and (3) the perception of 
Indian Tribes that designation of Indian lands is an unwarranted 
intrusion into Tribal sovereignty and self-governance.

Economic Impacts

    To quantify the economic impact of designation, we employed the 
following three steps:
    (1) Define the geographic study area for the analysis, and identify 
the units of analysis (the ``particular areas''). In this case, we 
defined 5th field hydrologic units that encompass occupied stream 
reaches as the study area.
    (2) Identify potentially affected economic activities and determine 
how management costs may increase due to the designation of eulachon 
critical habitat, both in terms of project administration and project 
modification.
    (3) Estimate the economic impacts associated with these changes in 
management.
    We estimated a total annualized incremental administrative cost of 
approximately $512,000 for designating the 16 specific areas as 
eulachon critical habitat. The greatest costs are associated with water 
supply, mining, and forest management activities (see NMFS, 2011c for 
more details). The lower Mad River and Columbia River--Hayden Island 
5th field hydrologic units have the largest estimated annual impacts 
($63,500 and $32,200), due to mining activities and water supply 
activities, respectively (NMFS, 2011c). For 5th field hydrologic units 
other than the lower Mad River and Columbia River--Hayden Island, we 
estimate the incremental impacts of critical habitat designation would 
be less than $31,000/year.
    For the second category of impacts, we identified three areas where 
critical habitat designation for eulachon might result in modifications 
to activities beyond those already resulting from the ESA listing of 
eulachon. Although we could not quantify the economic impacts, we 
anticipate these costs would be small, for the reasons described below.
    (1) Disposal of dredge material in the Lower Columbia River. 
Eulachon spawning habitat has the potential to be modified by the 
disposal of dredge material in the Lower Columbia River, particularly 
if material is disposed in shallow water. If we conclude that disposing 
of dredge material in shallow water could destroy or adversely modify 
critical habitat, the USACE or the party seeking disposal may need to 
find alternative disposal sites, thereby incurring additional project 
costs. Because disposal of dredge material in shallow water is already 
quite limited in the Lower Columbia River and its cost is already 
relatively high, requiring another disposal method may have minimal 
added costs.
    (2) Elwha River Dam removal. Removal of the Elwha and Glines Canyon 
dams on the Elwha River began in September 2011. Because protections 
are already in place (as a result of an ESA section 7 consultation) to 
reduce the impact of the project on salmonid habitat, consideration of 
eulachon critical habitat is unlikely to result in recommendations to 
change the project.
    (3) Mayfield Dam flow regime. As outlined in the eulachon final 
listing determination (75 FR 13012; March 18, 2010), dams and water 
diversions are moderate threats to eulachon in the Columbia River 
Basin. To benefit salmon and steelhead species, Tacoma Power Company 
currently follows a flow regime for Mayfield Dam on the Cowlitz River. 
If we conclude the existing flow regime could destroy or adversely 
modify eulachon critical habitat, Tacoma Power Company may need to 
change the timing or amount of water releases. This could change the 
timing of energy production, with an associated decrease in revenue 
from energy sales. We would expect any such decreases to be small 
because the effect would be to change the timing of energy production 
and not the total amount of energy produced.
    Without conducting a complete analysis on a specific project, it is 
difficult to evaluate the extent to which NMFS might recommend changes 
in any of these activities to avoid destroying or adversely modifying 
critical habitat. Any changes required solely to avoid destroying or 
adversely modifying critical habitat would be an impact of designation.

Impacts to National Security

    Department of Defense lands or related activities do not overlap 
with, nor are adjacent to, any areas that we proposed for designation 
as critical habitat for the southern DPS. Thus, we did not identify any 
direct impacts to national security for any of the specific areas that 
we have designated as critical habitat.

Other Relevant Impacts--Impacts to Tribal Sovereignty and Self-
Governance

    We identified three rivers with areas under consideration for 
critical habitat designation that overlap with Indian lands--the Elwha 
and Quinault Rivers in Washington, and the Klamath River in California 
(eulachon do not ascend into the Oregon portion of the Klamath River). 
The federally-recognized Tribes (74 FR 40218; August 11, 2009) 
potentially affected are the Lower Elwha Tribe, the Quinault Tribe, the 
Yurok Tribe, and the Resighini Rancheria. In addition to the economic 
impacts described above, designating these Tribes' Indian lands would 
have an impact on federal policies promoting Tribal sovereignty and 
self-governance. 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 U.S. 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 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

[[Page 65343]]

the framework of applicable treaties and laws. Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments, outlines 
the policies and the responsibilities of the Federal Government in 
matters affecting Tribal interests (recently confirmed by Presidential 
Memorandum; 74 FR 57879; November 9, 2009). In addition to Executive 
Order 13175, we have Department of Commerce policy direction, via 
Secretarial Order 3206, stating that Indian lands shall not be 
designated as critical habitat, nor areas where the ``Tribal trust 
resources * * * or the exercise of Tribal rights'' will be impacted, 
unless such lands or areas are determined ``essential to conserve a 
listed species.'' In such cases we ``shall evaluate and document the 
extent to which the conservation needs of the listed species can be 
achieved by designating only other lands.''
    Designation would also have impacts to NMFS' relationship with the 
affected Tribes. In the decision Center for Biological Diversity, v. 
Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court held that a 
positive working relationship with Indian Tribes is a relevant impact 
that can be considered when weighing the relative benefits of a 
critical habitat designation. We contacted the governments of each of 
the potentially affected Tribes to determine what impact a critical 
habitat designation on Indian lands would have on the working 
relationship between NMFS and the Tribes. All four advised us via e-
mail that they would view critical habitat designation on their lands 
as an unwanted intrusion, which would have a negative impact on Tribal 
sovereignty and self-governance and on the relationship between the 
Tribe and the agency. This response was consistent with responses NMFS 
has received from Indian Tribes in past designations (for example, the 
designation of critical habitat for 12 ESUs of West Coast salmon and 
steelhead (70 FR 52630; September 2, 2005)).

Other Relevant Impacts--Impacts to Landowners With Contractual 
Commitments to Conservation

    Conservation agreements with non- federal landowners (e.g., HCPs) 
enhance species conservation by extending species' protections beyond 
those available through section 7 consultations. We have encouraged 
non-federal landowners to enter into conservation agreements, based on 
a view that we can achieve greater species' conservation on non-federal 
land through such partnerships than we can through coercive methods (61 
FR 63854; December 2, 1996).
    Section 10(a)(1)(B) of the ESA authorizes us to issue to non-
federal entities a permit for the incidental take of endangered and 
threatened species. This permit allows a non-federal landowner to 
proceed with an activity that is legal in all other respects, but that 
results in the incidental taking of a listed species (i.e., take that 
is incidental to, and not the purpose of, the carrying out of an 
otherwise lawful activity). The ESA specifies that an application for 
an incidental take permit must be accompanied by a conservation plan, 
and specifies the content of such a plan. The purpose of such an HCP is 
to describe and ensure that the effects of the permitted action on 
covered species are adequately minimized and mitigated, and that the 
action does not appreciably reduce the likelihood of the survival and 
recovery of the species.
    In previous critical habitat designations, we have exercised 
discretion to exclude some (but not all) lands covered by an HCP from 
designation (e.g., for Pacific salmon (70 FR 52630; September 2, 
2005)), after concluding that benefits of exclusion outweighed the 
benefits of designation. For lands covered by an HCP, the benefits of 
designation typically arise from section 7 protections as well as 
enhanced public awareness. The benefits of exclusion generally include 
relieving regulatory burdens on existing conservation partners, 
maintaining good working relationships with them (thus enhancing 
implementation of existing HCPs), and encouraging the development of 
new partnerships.
    There are two landowners with conservation agreements that overlap 
areas we are designating as critical habitat for the southern DPS of 
eulachon; the Green Diamond Timber Company (covering the company's 
operations in northern California, including portions of the Klamath 
River), and the Humboldt Bay Municipal Water District (covering their 
operations in the Mad River, California).

Balancing Benefits of Designation Against Benefits of Exclusion

    A final ESA section 4(b)(2) report (NMFS 2011a) describes in detail 
our approach to weighing the benefit of designation against the benefit 
of exclusion. The results of our analysis contained in this report are 
summarized below.

Economic Exclusions

    As described above, the economic benefits of excluding particular 
areas are small, totaling about $512,000. For each particular area, 
estimated economic impacts range from $13,600 to $63,500. We consider 
all 16 particular areas meeting the definition of critical habitat to 
have a high conservation value and a high benefit of designation. When 
we listed eulachon as a threatened species we cited, among other 
reasons, the present or threatened destruction, modification, or 
curtailment of its habitat. Identified threats to eulachon habitat 
include climate-induced change to freshwater habitats; dams and water 
diversions (particularly in the Columbia and Klamath Rivers); and 
degraded water quality. Designating these areas as critical habitat 
enhances our ability to address some of these threats through section 7 
consultations and through public outreach and education. We concluded 
that the economic benefits of excluding each particular area do not 
outweigh the conservation benefits of designating each particular area 
as critical habitat, given the following considerations: (1) The 
economic impact of designating all areas is small (not more than 
$63,500 for any particular area); (2) eulachon are likely to become 
endangered in the foreseeable future; (3) threats to freshwater habitat 
were a primary concern leading to our decision to list the species as 
threatened; (4) there are a limited number of spawning areas available 
throughout the coast-wide range of eulachon; (5) the conservation value 
of each area is high; and (6) designation enhances the ability of a 
section 7 consultation to protect the habitat through the 
identification of areas of particular concern and through the added 
protection of the adverse modification provision.

HCP Exclusions

    The conservation benefits of designating lands covered by an HCP 
are the same as the benefits of designating other lands, which are 
public notice and the protection that arises from the ESA section 7 
requirement that Federal agencies ensure their actions do not adversely 
modify that habitat. Where an HCP covers the species in question, or a 
species with similar distribution and habitat needs, these benefits 
might be reduced somewhat because the landowner is already aware of the 
importance of the habitat, and because the HCP might already protect 
the habitat beyond the section 7 requirements.
    In the case of eulachon there are two HCPs that overlap with the 
proposed critical habitat in the Klamath and Mad Rivers. We estimate 
that annually, 0.3 forest management actions in the

[[Page 65344]]

Klamath River, and 0.2 water supply actions in the Mad River, will 
require ESA section 7 consultations as a result of this critical 
habitat designation. We rated these areas as having a high conservation 
value. The primary benefit of designation is thus the protection 
afforded these high conservation areas in a section 7 consultation.
    Regarding the benefits of excluding these areas, we have considered 
two primary impacts of designating critical habitat on lands covered by 
an HCP. The first is the additional cost incurred in an ESA section 7 
consultation, either an administrative cost or the cost of having to 
change the action to avoid adverse modification of the habitat. In this 
case the administrative costs are small for each specific area, and 
even smaller for the lands covered by the HCPs, which represent only a 
portion of two specific areas. The second potential impact of 
designation is the effect on our relationship with the landowner. In 
past designations, some landowners have indicated that they welcome 
designation, while others have opposed designation and expressed the 
view that designation will harm their relationship with us and affect 
implementation of the HCP. In the latter case, the benefit of exclusion 
may therefore be a conservation benefit to the species. In the present 
designation, we contacted both HCP holders. Neither requested that 
their lands be excluded from critical habitat or otherwise indicated 
that a designation of eulachon critical habitat on their land would 
affect our relationship or their implementation of the HCP. Given that 
fact, we determined that our working relationship with the HCP holders 
would not be significantly impacted by this critical habitat 
designation, thus the benefit of exclusion based on effects to a 
relationship do not outweigh the benefits of designation.

Indian Lands Exclusions

    The eulachon critical habitat Section 4(b)(2) report (NMFS, 2011a) 
details our consideration of excluding Indian lands in this critical 
habitat designation. The discussion here summarizes that consideration.
    The designation of critical habitat for eulachon on Indian lands 
would have an impact on federal policies promoting Tribal sovereignty 
and self-governance. It would also have an impact on the relationship 
between NMFS and each of the Tribes because of their perception that 
designation is an intrusion on Tribal sovereignty and self-governance. 
The benefit of excluding Indian lands would be to avoid these impacts.
    Balanced against these benefits of exclusion, a benefit of 
designating the Indian lands would be to achieve the added protection 
from ESA section 7's critical habitat provisions for these specific 
areas, all of which have been determined to have a high conservation 
value. The benefit of designating a particular area depends on the 
likelihood of section 7 consultation occurring in the area and the 
degree to which consultation would yield conservation benefits for the 
species. This protection would apply to all federal activities, which 
we expect would include dam operations, water supply, forest 
management, instream construction, mining, agriculture, water quality, 
transportation projects, and habitat restoration. As described above, 
ESA section 7 consultations for Federal actions on Indian lands would 
still need to consider whether the action jeopardized the continued 
existence of the species, and Federal actions on non-Indian lands may 
still need to consider designated critical habitat elsewhere in the 
watershed, thus some of the benefits of a section 7 consultation could 
still apply even if the Indian lands were excluded.
    Another benefit of designation would be to educate the public about 
the importance of these Indian lands to eulachon conservation. Because 
these are not public or private lands, and because the Tribes 
themselves are keenly aware of the importance of their lands to 
eulachon conservation, we consider the education benefit of designating 
these Indian lands to be low.
    Quinault Indian Nation Lands. Although the lands of the Quinault 
Indian Nation encompass most of the area occupied by eulachon in the 
Quinault River, activities that occur on non-Indian lands would still 
require ESA section 7 consultation to consider adverse modification of 
critical habitat. The Quinault Tribe has completed a Forest Management 
Plan (FMP), on which the USFWS prepared a programmatic biological 
opinion. The FMP takes into account significant restrictions on in-
water construction activities imposed by the State of Washington 
(USFWS, 2003; Washington State Law, Chapter 77.55). Project 
modifications included in the biological opinion for the FMP include 
requirements that in-water or near-stream activities may only be 
conducted during specific timeframes outlined in the FMP, construction 
of new roads is to be minimized ``to the maximum extent practicable,'' 
and construction of fill roads is allowable only when absolutely 
necessary. These project modifications would likely benefit eulachon 
habitat as well by limiting runoff which can adversely affect water 
quality, sediment quality, and substrate composition.
    Exclusion of the portion of the Quinault River that runs through 
Tribal lands would have the benefit of promoting federal policies 
regarding Tribal sovereignty and self-governance (e.g., Executive Order 
13175). It would also have the benefit of promoting a positive 
relationship between NMFS and the Tribe (in accordance with Secretarial 
Order 3206), with a very small reduction in the benefits of designation 
(primarily the loss of section 7 consultation to consider adverse 
modification of critical habitat on 4.8 km (3 mi) of stream habitat). 
The current FMP provides some protection for eulachon habitat and will 
provide a structure for future coordination and communication between 
the Quinault Tribe, USFWS, and NMFS. For these reasons, we conclude 
that the benefits of exclusion outweigh the benefits of designation.
    Lower Elwha Tribal Lands. Indian lands of the Lower Elwha Tribe 
overlap with approximately 2.3 km (1.4 mi), or 29 percent, of the areas 
occupied by eulachon in the Elwha River. As explained above, federal 
agencies would still need to consult on the effects of their actions on 
areas designated as critical habitat elsewhere in the basin. Exclusion 
of the portion of the lower Elwha River that runs through Tribal lands 
would have the benefit of promoting federal policies regarding Tribal 
sovereignty and self-governance (e.g., Executive Order 13175). It would 
also have the benefit of promoting a positive relationship between NMFS 
and the Tribe (in accordance with Secretarial Order 3206), with a very 
small reduction in the benefits of designation (i.e., primarily, the 
loss of section 7 consultation to consider adverse modification of 
critical habitat). For these reasons, we conclude that the benefits of 
exclusion outweigh the benefits of designation.
    Resighini Rancheria Lands. Indian lands of the Resighini Rancheria 
overlap with approximately 0.5 km (0.3 mi), or 3 percent, of the areas 
occupied by eulachon in the Klamath River. Exclusion of these Rancheria 
lands would have the benefit of promoting federal policies regarding 
Tribal sovereignty and self-governance. It would also foster a positive 
relationship between NMFS and the Tribe, with a very small reduction in 
the benefits of designation (primarily the loss of ESA section 7 
consultation to consider adverse modification of critical habitat).

[[Page 65345]]

For these reasons, we conclude that the benefits of exclusion outweigh 
the benefits of designation.
    Yurok Tribal Lands. The boundaries of the Yurok Indian Reservation 
encompass the entire 17.5 km (10.9 mi) of the areas occupied by 
eulachon in the Klamath River. However, land ownership within the 
reservation boundary includes a mixture of Federal, state, Tribal, and 
private ownerships. Exclusion from critical habitat designation would 
only apply to Indian lands. Federal agencies would still need to 
consult on the effects of their actions on areas designated as critical 
habitat elsewhere in the basin.
    As managers of the Klamath River fisheries and their resources, the 
Tribe oversees and protects fish and fish habitat through various land 
and water management practices, plans, and cooperative efforts. Tribal 
forest practices and land management are guided by a Forest Management 
Plan (FMP), a primary objective of which is to protect and enhance 
Tribal trust fisheries. The Tribe has an established water quality 
control plan on the Reservation (Yurok Tribe, 2004) with standards that 
have been approved by the Environmental Protection Agency (EPA). In 
conjunction with Federal, state, and private partners, the Yurok Tribe 
has initiated a large-scale, coordinated watershed restoration effort 
in the Lower Klamath sub-basin to protect and improve instream, 
intertidal, and floodplain habitats that support viable, self-
sustaining populations of native fishes. More recently, the Yurok Tribe 
fisheries program has started monitoring eulachon to determine their 
current abundance and distribution in the Klamath River.
    Exclusion of Yurok Tribal lands in the Klamath River basin from 
critical habitat designation would have the benefit of promoting 
federal policies regarding Tribal sovereignty and self-governance. It 
would also have the benefit of promoting a positive relationship 
between NMFS and the Tribe. The current forest management and water 
quality control plans provide some protection for eulachon habitat and 
will provide a structure for future coordination and communication 
between the Yurok Tribe and NMFS. For these reasons, we conclude that 
the benefits of exclusion outweigh the benefits of designation.
    All Indian lands. Although economic impacts were not considered in 
our decision to exclude Indian lands from critical habitat designation, 
designation of these lands would have economic impacts, and exclusion 
would therefore have economic benefits. It is difficult to quantify 
those impacts (and corresponding benefits) for Indian lands on the 
Elwha River and the Klamath River because Tribal lands do not encompass 
the entire area that is being considered for designation for these two 
rivers. Some types of actions on non-Indian lands in these watersheds 
could affect areas that are not excluded from designation. Therefore, 
an ESA section 7 consultation for non-Indian lands would still need to 
consider the effects on critical habitat. Administrative costs of 
designation would still be incurred, along with any costs associated 
with project modifications. The Quinault Tribe's lands encompass nearly 
the entire watershed of the specific area identified as critical 
habitat on the Quinault River, thus exclusion would relieve nearly all 
of the administrative costs of considering effects of actions on the 
specific area. We estimated a total annualized incremental 
administrative cost of approximately $512,000 for designating all 16 
specific areas as eulachon critical habitat. The exclusion of Indian 
Lands from critical habitat designation would decrease the total 
annualized incremental administrative cost by at least $24,700. With 
Indian Lands excluded, the total annualized incremental administrative 
cost of designating eulachon critical habitat would be no greater than 
$487,300.

Extinction Risk Due to Exclusions

    Section 4(b)(2) of the ESA limits our discretion to exclude areas 
from designation if exclusion will result in extinction of the species. 
The overwhelming majority of production for the southern DPS of 
eulachon occurs in the Columbia River (and tributaries) and the Fraser 
River in Canada (Gustafson et al., 2010). While abundance estimates are 
not available for the three rivers (Quinault, Elwha, and Klamath) that 
overlap Indian lands, the runs on these rivers are believed to be very 
small (Gustafson et al., 2010) and likely contribute only a small 
fraction to the total DPS abundance. Because the overall percentage of 
critical habitat on Indian lands is small and the likelihood that 
eulachon production on these lands represents a very small percent of 
the total annual production for the DPS, we conclude that exclusion 
will not result in extinction of the southern DPS of eulachon.

Critical Habitat Designation

    We are designating approximately 539 km (335 mi) of riverine and 
estuarine habitat in California, Oregon, and Washington within the 
geographical area occupied by the southern DPS of eulachon. The 
designated critical habitat areas contain one or more of the physical 
or biological features essential to the conservation of the species 
that may require special management considerations or protection. We 
are excluding from designation all lands of the Lower Elwha Tribe, 
Quinault Tribe, Yurok Tribe and Reshigini Rancheria, upon a 
determination that the benefits of exclusion outweigh the benefits of 
designation (NMFS, 2011a). We conclude that the exclusion of these 
areas will not result in the extinction of the southern DPS because the 
overall percentage of critical habitat on Indian lands is so small 
(approximately 5% of the total are designated), and it is likely that 
eulachon production on these lands represents a very small percent of 
the total annual production for the DPS. We have not identified any 
unoccupied areas that are essential to conservation, and thus we have 
not designated any unoccupied areas as critical habitat at this time.

Lateral Extent of Critical Habitat

    We describe the lateral extent of critical habitat as the width of 
the stream channel defined by the ordinary high water line, as defined 
by the USACE 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 define 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).
    As discussed in previous critical habitat designations for Pacific 
salmon and steelhead (70 FR 52630; September 2, 2005) and North 
American green sturgeon (74 FR 52300; October 9, 2009), 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.

[[Page 65346]]

Human activities that occur outside of designated critical habitat 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. This 
designation will help to ensure that federal agencies are aware of 
these important habitat linkages.

Effects of Critical Habitat Designation

    Section 7(a)(2) of the ESA requires federal agencies to insure that 
any action authorized, funded, or carried out by the agency (agency 
action) does not jeopardize the continued existence of any threatened 
or endangered species or destroy or adversely modify designated 
critical habitat. 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 
consultation, we evaluate the agency action to determine whether the 
action may adversely affect listed species or critical habitat and 
issue our findings in a biological opinion or concurrence letter. If we 
conclude in the biological opinion that the agency action would likely 
result in the destruction or adverse modification of critical habitat, 
we would also recommend any reasonable and prudent alternatives to the 
action. Reasonable and prudent alternatives (defined in 50 CFR 402.02) 
are 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 re-initiation of a 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
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 Clean Water 
Act, Section 404 dredge or fill permit from USACE) or some other 
federal action, including funding (e.g., Federal Highway Administration 
funding for transportation projects). ESA section 7 consultation is not 
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 That May Be Affected

    ESA section 4(b)(8) requires in any 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 designated 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), USACE, 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 on federal lands, including hydropower sites licensed by 
the FERC; nuclear power sites licensed by the NRC; dams built or 
operated by the USACE 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, NPS, and BIA. Other 
actions of concern include dredging and filling, mining, diking, and 
bank stabilization activities authorized or conducted by the USACE, 
habitat modifications authorized by the Federal Emergency Management 
Agency, and approval of water quality standards and pesticide labeling 
and use restrictions administered by the EPA.
    Private entities may also be affected by this critical habitat 
designation if a federal permit is required, if 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 for eulachon. Changes to 
some activities, such as the operations of dams and dredging 
activities, may be necessary to minimize or avoid destruction or 
adverse modification of designated critical habitat. 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).

Information Quality Act and Peer Review

    The data and analyses supporting this action have undergone a pre-
dissemination review and have been determined to be in compliance with 
applicable information quality guidelines implementing the Information 
Quality Act (IQA) (Section 515 of Pub. L. 106-554). In December 2004, 
the Office of Management and Budget (OMB) issued a Final Information 
Quality Bulletin for Peer Review pursuant to the IQA. The Bulletin was 
published in the Federal Register on January 14, 2005 (70 FR 2664). The 
Bulletin established minimum peer review standards, a transparent 
process for public disclosure of peer review planning, and 
opportunities for public participation with regard to certain types of 
information disseminated by the Federal Government. The peer review 
requirements of the OMB Bulletin apply to influential or highly 
influential scientific information disseminated on

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or after June 16, 2005. Two documents supporting this designation of 
critical habitat for the southern DPS of eulachon are considered 
influential scientific information and subject to peer review. These 
documents are the Eulachon Biological Report (NMFS, 2011b) and Eulachon 
Economic Analysis (NMFS, 2011c). We distributed drafts of the 
Biological Report and Economic Analysis for independent peer review and 
have addressed comments received in developing the final drafts of the 
two reports. Both documents are available on our Web site at http://www.nwr.noaa.gov/, or upon request (see ADDRESSES).

Classification

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 
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 a final regulatory 
flexibility analysis (FRFA), which is part of the Economic Analysis 
(NMFS, 2011c). The FRFA incorporates the Initial Regulatory Flexibility 
Analysis (IRFA), which was part of the draft economic analysis that 
accompanied the proposed rule to designate critical habitat. The FRFA 
also incorporates comments received on the IRFA and on the economic 
impacts of the rule generally. The results of the IRFA are summarized 
below.
    A statement of the need for and objectives of this final rule is 
provided earlier in the preamble and is not repeated here. This final 
rule will not impose any recordkeeping or reporting requirements.
    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 critical habitat designation. In 
addition, given the short consultation history for eulachon, 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. In order to estimate the number and activity 
type of future ESA section 7 consultations for eulachon, we relied on 
the past consultation history for other anadromous fish species in 
watersheds being designated as critical habitat. While this provides a 
reasonable estimate of future activities that may require section 7 
consultation, differences in life history between eulachon and other 
listed anadromous fish species will likely result in differences in the 
number and type of activities that trigger consultation for eulachon. 
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.
    The impacts to small businesses were assessed for the following 
eight broad categories of activities: Dams and water supply, 
agriculture and grazing, transportation, forest management, mining, in-
water construction and restoration, water quality management/monitoring 
(and other activities resulting in non-point pollution), and other 
activities. Small entities were defined by the Small Business 
Administration size standards for each activity type. The majority 
(approximately 97 percent) of entities affected within each specific 
area would be considered a small entity. A total of approximately 607 
small businesses involved in the activities listed above would most 
likely be affected by the critical habitat designation. Total 
annualized impacts to small entities are conservatively assumed to be 
$510,000, or approximately 99.6 percent of total incremental impacts 
anticipated as a result of this rule.
    We estimated the annualized costs associated with section 7 
consultations incurred per small business under two different 
scenarios. These scenarios are intended to provide a measure of the 
range of potential impacts to small entities given the level of 
uncertainty referred to above. Under the first scenario the analysis 
estimated the number of small entities located within areas affected by 
this critical habitat designation (approximately 607), and assumes that 
incremental impacts are distributed evenly across all entities in each 
affected industry. Under this scenario, a small entity may bear costs 
up to $3,372, representing between < 0.01 and 0.10 percent of average 
revenues (depending on the industry). Under the second scenario, the 
analysis assumes the costs of each anticipated future consultation are 
borne by a distinct small business most likely to be involved in a 
section 7 consultation (approximately 39 entities). Under this 
scenario, each small entity may bear costs of between $1,900 and 
$158,200, representing between 0.01 and 4.57 percent of average annual 
revenues, depending on the industry.
    In accordance with the requirements of the RFA (as amended by 
SBREFA of 1996) this analysis considered various alternatives to the 
critical habitat designation for the southern DPS. The alternative of 
not designating critical habitat for the southern DPS of eulachon was 
considered and rejected because such an approach does not meet the 
legal requirements of the ESA and would not provide for the 
conservation of the southern DPS of eulachon. A second alternative of 
designating all potential critical habitat areas (i.e., no areas 
excluded) also was considered and rejected because for some areas the 
benefits of exclusion from designation outweighed the benefits of 
inclusion (NMFS, 2011a).
    As an alternative to designating all potential critical habitat 
areas, NMFS considered the alternative of designating critical habitat 
within a subset of these areas (preferred alternative). Under section 
4(b)(2) of the ESA, NMFS must consider the economic impact, impacts on 
national security, and any other relevant impact of specifying any 
particular area as critical habitat. The Secretary has the discretion 
to exclude an area from designation as critical habitat if the benefits 
of exclusion (i.e., the impacts that would be avoided if an area were 
excluded from the designation) outweigh the benefits of designation 
(i.e., the conservation benefits to the southern DPS of eulachon if an 
area were designated), as long as exclusion of the area will not result 
in extinction of the species. We prepared an analysis describing our 
exercise of discretion, which is contained in our Final Section 4(b)(2) 
Report (NMFS, 2011a). Under this preferred alternative we have excluded 
Indian lands in California and Washington from designation as critical 
habitat. This preferred alternative reduces the number of small 
businesses potentially affected from 607 to approximately 591, and the 
total potential annualized economic impact to small businesses would be 
reduced from $510,000 to approximately $485,300.

Executive Order 12866

    This rule has been determined to be not significant under E.O. 
12866.

Executive Order 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 any

[[Page 65348]]

action that promulgates or is expected to lead to the promulgation of a 
final rule or regulation that (1) is a significant regulatory action 
under E.O. 12866 and (2) 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 and find the designation of 
critical habitat will not have impacts that exceed the thresholds 
identified above (NMFS, 2011a).

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 final 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 
governments ``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 a legally binding duty on non-Federal 
Government entities or private parties. Under the ESA, the only 
regulatory effect is that federal agencies must ensure that their 
actions do not destroy or adversely modify critical habitat under 
section 7. While non-federal entities which receive federal funding, 
assistance, permits or otherwise require approval or authorization from 
a federal agency for an action may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the federal agency. 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 existing protection afforded to the critical habitat 
from existing critical habitat designations for salmon and steelhead 
(70 FR 52630; September 2, 2005), Southern DPS of green sturgeon (74 FR 
52300; October 9, 2009), and/or bull trout (70 FR 56212; September 26, 
2005), we do not anticipate that this final rule will significantly or 
uniquely affect small governments. As such, a Small Government Agency 
Plan is not required.

Takings

    Under Executive Order 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 final rule does not have significant takings implications. A 
takings implication assessment is not required. The designation of 
critical habitat affects only federal agency actions. We do not expect 
the critical habitat designation to impose additional burdens on land 
use or affect property values. Additionally, the 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 critical habitat designation will 
continue to have the opportunity to use their property in ways 
consistent with the survival of the southern DPS of eulachon.

Coastal Zone Management Act

    Section 307(c)(1) of the Federal Coastal Zone Management Act of 
1972 (16 U.S.C. 1456) requires that all federal activities that affect 
the land or water use or natural resource of the coastal zone be 
consistent with approved state coastal zone management programs to the 
maximum extent practicable. We have determined that this designation of 
critical habitat is consistent to the maximum extent practicable with 
the enforceable policies of approved Coastal Zone Management Programs 
of California, Oregon, and Washington.

Federalism

    In accordance with Executive Order 13132, we determined that this 
final rule does not have significant federalism effects and that a 
federalism assessment is not required. In keeping with Department of 
Commerce policies, we will continue to coordinate with appropriate 
state resource agencies in California, Oregon, and Washington regarding 
this critical habitat designation. The designation may have some 
benefit to state and local resource agencies in that the areas and 
habitat features essential to the conservation of the southern DPS of 
eulachon are specifically identified. It may also assist local 
governments in long-range planning (rather than waiting for case-by-
case ESA section 7 consultations to occur).

Civil Justice Reform

    The Department of Commerce has determined that this final rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of Executive Order 12988. We are designating 
critical habitat in accordance with the provisions of the ESA. This 
final rule uses standard property descriptions and identifies the 
essential features within the designated areas to assist the public in 
understanding the habitat needs of the southern DPS of eulachon.

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

    This final rule does not contain new or revised information 
collection requirements for which Office of Management and Budget (OMB) 
approval is required under the Paperwork Reduction Act. This rule will 
not impose recordkeeping or reporting requirements on state or local 
governments, individuals, businesses, or organizations. Notwithstanding 
any other provision of the law, no person is

[[Page 65349]]

required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

National Environmental Policy Act of 1969 (NEPA)

    We have determined that an environmental analysis as provided for 
under NEPA is not required for critical habitat designations made 
pursuant to the ESA. 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

    Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments, outlines the responsibilities of the Federal 
Government in matters affecting Tribal interests. If NMFS issues a 
regulation with Tribal implications (defined as having a substantial 
direct effect on one or more Indian Tribes, on the relationship between 
the Federal Government and Indian Tribes, or on the distribution of 
power and responsibilities between the Federal Government and Indian 
Tribes) we must consult with those governments or the Federal 
Government must provide funds necessary to pay direct compliance costs 
incurred by Tribal governments.
    Pursuant to Executive Order 13175 and Secretarial Order 3206, we 
consulted with the affected Indian Tribes when considering the 
designation of critical habitat in an area that may impact Tribal trust 
resources, Tribally owned fee lands or the exercise of Tribal rights. 
All of the Tribes we consulted expressed concern about the intrusion 
into Tribal sovereignty that critical habitat designation represents. 
The Secretarial Order defines Indian lands as ``any lands title to 
which is either: (1) Held in trust by the United States for the benefit 
of any Indian Tribe or (2) held by an Indian Tribe or individual 
subject to restrictions by the United States against alienation.'' Our 
conversations with the Tribes indicate that they view the designation 
of Indian lands as an unwanted intrusion into Tribal self-governance, 
compromising the government-to-government relationship that is 
essential to achieving our mutual goal of conserving eulachon and other 
anadromous species.
    For the general reasons described in the Other Relevant Impacts--
Impacts to Tribal Sovereignty and Self-Governance section above, the 
ESA section 4(b)(2) analysis has led us to exclude all Indian lands 
from designation as critical habitat for the southern DPS of eulachon.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on our Web site at http://www.nwr.noaa.gov/ and is available upon 
request from the NMFS office in Portland, Oregon (see ADDRESSES.)

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: October 12, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, part 226, title 50 of the 
Code of Federal Regulations is amended to read as follows:

PART 226--DESIGNATED CRITICAL HABITAT

0
1. The authority citation of part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533.


0
2. Add Sec.  226.222, to read as follows:


Sec.  226.222  Critical habitat for the southern Distinct Population 
Segment of eulachon (Thaleichthys pacificus).

    Critical habitat is designated for the southern Distinct Population 
Segment of eulachon (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 only and not as a 
definitive source for determining critical habitat boundaries. In 
freshwater areas, critical habitat includes the stream channel and a 
lateral extent as defined by the ordinary high-water line (33 CFR 
329.11). In areas where the ordinary high-water line has not been 
defined, 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 to 2 years on the annual 
flood series. In estuarine areas, critical habitat includes tidally 
influenced areas as defined by the elevation of mean higher high water.
    (a) Critical habitat boundaries. Critical habitat is designated to 
include the following areas in California, Oregon, and Washington:
    (1) Mad River, California. From the mouth of the Mad River 
(40[deg]57'37'' N./124[deg]7'36'' W.) upstream to the confluence with 
the North Fork Mad River (40[deg]52'32'' N./123[deg]59'30'' W.).
    (2) Redwood Creek, California. From the mouth of Redwood Creek 
(41[deg]17'35'' N./124[deg]5'30'' W.) upstream to the confluence with 
Tom McDonald Creek (41[deg]12'25'' N./124[deg]0'39'' W.).
    (3) Klamath River, California. From the mouth of the Klamath River 
(41[deg]32'52'' N./124[deg]4'58'' W.) upstream to the confluence with 
Omogar Creek (41[deg]29'13'' N./123[deg]57'39'' W.)
    (4) Umpqua River, Oregon. From the mouth of the Umpqua River 
(43[deg]40'7'' N./124[deg]13'6'' W.) upstream to the confluence with 
Mill Creek (43[deg]39'20'' N./123[deg]52'35'' W.).
    (5) Tenmile Creek, Oregon. From the mouth of Tenmile Creek 
(44[deg]13'34'' N./124[deg]6'45'' W.) upstream to the Highway 101 
bridge crossing (44[deg]13'27'' N./124[deg]6'35'' W.).
    (6) Sandy River, Oregon. From the confluence with the Columbia 
River upstream to the confluence with Gordon Creek (45[deg]29'45'' N./
122[deg]16'41'' W.).
    (7) Columbia River, Oregon and Washington. From the mouth of the 
Columbia River (46[deg]14'48'' N./124[deg]4'33'' W.) upstream to 
Bonneville Dam (45[deg]38'40'' N./121[deg]56'28'' W.).
    (8) Grays River, Washington. From the confluence with the Columbia 
River upstream to Covered Bridge Road (46[deg]21'18'' N./
123[deg]34'52'' W.).
    (9) Skamokawa Creek, Washington. From the confluence with the 
Columbia River upstream to Peterson Road Bridge (46[deg]18'52'' N./
123[deg]27'10'' W.).
    (10) Elochoman River, Washington. From the confluence with the 
Columbia River upstream to Monroe Road bridge crossing (46[deg]13'33'' 
N./123[deg]21'34'' W.).
    (11) Cowlitz River, Washington. From the confluence with the 
Columbia River upstream to the Cowlitz Salmon Hatchery barrier dam 
(46[deg]30'45'' N./122[deg]38'0'' W.).
    (12) Toutle River, Washington. From the confluence with the Cowlitz 
River upstream to Tower Road Bridge (46[deg]20'4'' N./122[deg]50'26'' 
W.).
    (13) Kalama River, Washington. From the confluence with the 
Columbia River upstream to the confluence with Indian Creek 
(46[deg]2'22'' N./122[deg]46'7'' W.).
    (14) Lewis River, Washington. Lewis River mainstem, from the 
confluence with the Columbia River upstream to Merwin Dam 
(45[deg]57'24'' N./122[deg]33'22'' W.); East Fork of the Lewis River, 
from the confluence with the mainstem of the Lewis River upstream to 
the confluence with Mason Creek (45[deg]50'13'' N./122[deg]38'37'' W.).

[[Page 65350]]

    (15) Quinault River, Washington. From the mouth of the Quinault 
River (47[deg]20'58'' N./124[deg]18'2'' W.) upstream to 47[deg]19'58'' 
N./124[deg]15'1'' W.
    (16) Elwha River, Washington. From the mouth of the Elwha River 
(48[deg]8'51'' N./123[deg]34'1'' W.) upstream to Elwha Dam 
(48[deg]5'42'' N./123[deg]33'22'' W.).
    (b) Physical or biological features essential for conservation. The 
physical or biological features essential for conservation of the 
southern DPS of eulachon are:
    (1) Freshwater spawning and incubation sites with water flow, 
quality and temperature conditions and substrate supporting spawning 
and incubation.
    (2) Freshwater and estuarine migration corridors free of 
obstruction and with water flow, quality and temperature conditions 
supporting larval and adult mobility, and with abundant prey items 
supporting larval feeding after the yolk sac is depleted.
    (3) Nearshore and offshore marine foraging habitat with water 
quality and available prey, supporting juveniles and adult survival.
    (c) Indian lands. Critical habitat does not include any Indian 
lands of the following Federally-recognized Tribes in the States of 
California, Oregon, and Washington:
    (1) Lower Elwha Tribe, Washington;
    (2) Quinault Tribe, Washington;
    (3) Yurok Tribe, California; and
    (4) Resighini Rancheria, California.
    (d) Maps of critical habitat for the southern DPS of eulachon 
follow:
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[FR Doc. 2011-26950 Filed 10-19-11; 8:45 am]
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