[Federal Register Volume 76, Number 208 (Thursday, October 27, 2011)]
[Rules and Regulations]
[Pages 66806-66844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27376]



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Vol. 76

Thursday,

No. 208

October 27, 2011

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 226





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

  Federal Register / Vol. 76 , No. 208 / Thursday, October 27, 2011 / 
Rules and Regulations  

[[Page 66806]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 100127045-1313-02]
RIN 0648-AY62


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

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

ACTION: Final rule.

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

DATES: This rule becomes effective November 28, 2011.

ADDRESSES: The final rule, maps, and supporting documents used in 
preparation of this final rule, as well as public comments and 
information received, can be obtained via the Internet at: http://swr.nmfs.noaa.gov/abalone, the Federal eRulemaking Portal at: http://www.regulations.gov (in the box that reads ``Enter Keyword or ID,'' 
enter the Docket number for this rule, which is NOAA-NMFS-2010-0191, 
and then click the Search button), or by submitting a request to the 
Assistant Regional Administrator, Protected Resources Division, 
Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, 
CA 90802-4213.

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

SUPPLEMENTARY INFORMATION: 

Background

    Under the ESA, we are responsible for determining whether certain 
species are threatened or endangered, and, to the maximum extent 
prudent and determinable, designating critical habitat for all 
endangered and threatened species (16 U.S.C. 1533). On January 14, 
2009, we determined that the black abalone (Haliotis cracherodii) is in 
danger of extinction throughout all or a significant portion of its 
range and listed the species as endangered under the ESA (74 FR 1937). 
We issued a proposed critical habitat designation for the black abalone 
on September 28, 2010 (75 FR 59900). This rule describes the final 
critical habitat designation, including a summary of and responses to 
the public comments received and a description of the methods used to 
develop the final designation. The total estimated annualized economic 
impact for this final rule ranged from $158,000 to $3,886,000. This 
range represents our estimate of the potential economic impacts based 
on the best available information regarding the Federal activities that 
may be affected by this critical habitat designation and the potential 
range of modifications that may be required to protect critical 
habitat.

Black Abalone Natural History

    The black abalone (Haliotis cracherodii, Leach, 1814) is a shallow-
living marine gastropod with a smooth, circular, and black to slate 
blue colored univalve shell and a muscular foot that allows the animal 
to clamp tightly to rocky surfaces without being dislodged by wave 
action. Black abalone historically occurred from Crescent City, 
California, USA, to southern Baja California, Mexico (Geiger 2004), but 
today the species' constricted range occurs from Point Arena, 
California, USA, to Bahia Tortugas, Mexico, and it is rare north of San 
Francisco, California, USA (Morris et al. 1980), and south of Punta 
Eugenia, Mexico (pers. comm. with Pete Raimondi, University of 
California Santa Cruz (UCSC), in 2005).
    Black abalone generally inhabit coastal and offshore island 
intertidal habitats on exposed rocky shores where bedrock provides 
deep, protective crevices for shelter (Leighton 2005). These complex 
surfaces with cracks and crevices in intertidal habitats appear to be 
crucial for juvenile recruitment and adult survival (Leighton 1959; 
Leighton and Boolootian 1963; Douros 1985, 1987; Miller and Lawrenz-
Miller 1993; VanBlaricom et al. 1993; Haaker et al. 1995). Black 
abalone range vertically from the high intertidal zone to a depth of -
6m (as measured from MLLW) and are typically found in middle intertidal 
zones. However, variation in wave exposure and where drift kelp (an 
important food item for black abalone) accumulates may result in 
animals being distributed primarily in high or low intertidal zones 
depending on the local conditions at particular locations (see 
definition of intertidal zones in Ricketts et al. 1985). Abalone are 
broadcast spawners, with a short planktonic larval stage (about 3-10 
days) before settlement and metamorphosis (e.g., McShane 1992). Larval 
black abalone are believed to settle on rocky substrate with crustose 
coralline algae, which serves as a food source for postmetamorphic 
juvenile black abalone, along with microbial and diatom films (Leighton 
1959; Leighton and Boolootian 1963; Bergen 1971). As black abalone 
grow, they transition to feeding on attached macrophytes and drift 
algae. The main sources of mortality for black abalone have been 
historical overfishing and, more recently, mass mortalities caused by 
the disease known as withering syndrome. As a result of the disease, 
most black abalone populations in Southern California have declined by 
90 to 99 percent since the late 1980s (VanBlaricom et al. 2009) and 
have fallen below estimated population densities necessary for 
recruitment success (Neuman et al. 2010).
    Detailed information on the natural history of black abalone can be 
found in the final Biological Report (NMFS 2011a) and in the proposed 
rule to designate critical habitat (75 FR 59900; September 28, 2010). 
Additional information about the status of black abalone can be found 
in the 2009 status review report (VanBlaricom et al. 2009) and in the 
proposed (73 FR 1986; January 11, 2008) and final (74 FR 1937; January 
14, 2009) rules to list black abalone as endangered under the ESA.

[[Page 66807]]

Summary of Comments and Responses

    We requested public comments on the proposed rule to designate 
critical habitat for the endangered black abalone and on the supporting 
documents (i.e., the draft Biological Report, draft Economic Analysis 
Report, and draft ESA Section 4(b)(2) Report). Public comments were 
received over a 60-day period ending on November 29, 2010. To 
facilitate public participation, the proposed rule and supporting 
documents were made available on our Southwest Region Web site (http://swr.nmfs.noaa.gov) and on the Federal eRulemaking Portal Web site 
(http://www.regulations.gov). Public comments were received via 
standard mail, email, fax, and the Federal eRulemaking Portal. The 
draft Biological Report and draft Economic Analysis Report were also 
each reviewed by three peer reviewers. All public comments and peer 
reviewer comments received have been posted on the Federal eRulemaking 
Portal (Docket Number: NOAA-NMFS-2010-0191).
    We received 4,874 written public comments on the proposed rule and 
supporting documents, of which 4,843 were form letters submitted by 
supporters of the Center for Biological Diversity (CBD) and 20 were 
nearly identical to the form letters but included additional 
information. Comments were also received from the California Department 
of Transportation (Caltrans), the CBD and their supporters, the 
Department of the Navy, the Multi-Agency Rocky Intertidal Network 
(MARINe), NOAA's National Ocean Service National Marine Sanctuaries 
Program, the U.S. Army Corps of Engineers Los Angeles District, and 
five individual members of the public. In addition to the 4,863 
identical or nearly identical letters submitted by supporters of the 
CBD in support of the proposed rule, eight other commenters were 
supportive of the proposed rule. One commenter was opposed to the 
proposed rule, and two were neither opposed nor supportive. The 
commenters and peer reviewers provided additional data to inform the 
biological and economic analyses, as well as comments regarding the 
methods used in these analyses. NMFS and the critical habitat review 
team (CHRT; a team of seven Federal biologists with relevant expertise) 
considered all of the public and peer reviewer comments in developing 
the final critical habitat designation. A summary of the public and 
peer review comments by major issue categories and the responses 
thereto are presented here. Similar comments were combined where 
appropriate.

Black Abalone Natural History

    Comment 1: One commenter stated that although the work of Burton 
2008 indicated little genetic structure over moderate distances (<100 
km), demographically important dispersal for black abalone is believed 
to be limited based on larval behavior and recruitment dynamics and 
thus the likelihood of rapid natural recovery of populations lost to 
disease is very low.
    Response: We agree that recent studies (Hamm and Burton 2000; 
Chambers et al. 2006; Gruenthal and Burton 2008) indicate low 
connectivity among black abalone populations, likely reflecting limited 
larval dispersal. We note that this information was included in the 
proposed rule (75 FR 59900; see section titled ``Population Structure'' 
on pg. 59901) and was also included in the draft Biological Report 
(NMFS 2010a).
    Comment 2: One commenter requested that the terms high, mid, and 
low intertidal zones be defined. The commenter disagreed with the 
statement that the majority of black abalone are found in the high zone 
at exposed locations. The commenter stated that on the Channel Islands, 
black abalone occur in the high zone but are predominately in the mid-
zone. The commenter also stated that at mainland sites, black abalone 
are found in the mid to low zones but not in the high zone.
    Response: We have revised the description of black abalone habitat 
in this final rule and in the final Biological Report (NMFS 2011a) to 
recognize that black abalone typically occur in the middle intertidal 
zones, but that local variation exists depending on the conditions 
(e.g., the level of exposure and where kelp may be accumulating). We 
also clarify that the high, middle, and low intertidal zones are 
defined according to Ricketts et al. (1985). On the U.S. West coast, 
the high intertidal zone is typically the zone above the mussel beds 
and extends from mean high water to the mean flood of the higher of the 
two daily lows, slightly below mean sea level. The middle intertidal 
zone extends from mean higher low water to MLLW, and may be covered and 
uncovered once or twice each day. The low intertidal zone is normally 
uncovered by minus tides only, extending from 0 to -0.6m (-1.8 feet) or 
so at Pacific Grove, and typically exposed for only a few hours each 
month. The critical habitat designation (extending from the MHHW line 
to -6m depth relative to the MLLW line) encompasses each of these three 
zones. We recognize that the definitions of the intertidal zones do not 
provide precise boundaries, but note that intertidal zones are very 
dynamic and thus are defined in somewhat general terms based on daily 
tidal fluctuations and the structure of the benthic community.
    Comment 3: One commenter disagreed with the statement that the 
primary food species for black abalone in central California habitats 
is Nereocystis leutkeana. The commenter stated that although 
Nereocystis is found at black abalone monitoring sites between Santa 
Cruz and Point Conception, Macrocystis and Egregia are more prominent 
in these central California habitats.
    Response: The CHRT agreed with the information provided by the 
commenter, which was based on observations by biologists in the Multi-
Agency Rocky Intertidal Network (MARINe). We have incorporated this 
information in this final rule and in the final Biological Report (NMFS 
2011a).
    Comment 4: One commenter stated that based on MARINe's black 
abalone monitoring data, recruitment failure appears to occur when the 
adult density falls below one abalone per m\2\, whereas the proposed 
rule states that recruitment failure occurs when adult density declines 
below 0.34 per m\2\. The commenter requested that the citation for this 
0.34 per m\2\ value be provided.
    Response: In the proposed rule, we cited a paper that was in press 
at that time but that has since been published (Neuman et al. 2010). We 
revised the final rule and final Biological Report (NMFS 2011a) to 
update the citation for this paper. To determine the critical density 
threshold below which black abalone recruitment failure is observed, 
Neuman et al. (2010) reviewed recruitment patterns in three long-term 
data sets for black abalone in California. Recruitment failure was 
found to occur when adult black abalone density declined to an 
estimated 0.25 to 0.46 per m\2\. Thus, the estimated average minimum 
adult density below which local recruitment failure occurred at the 
three sites was 0.34 per m\2\. This estimated average minimum adult 
density threshold is specific to the three sites evaluated and may 
differ for other locations.
    Comment 5: One commenter stated that the proposed critical habitat 
designation should not be approved because it will not lead to the 
recovery of black abalone populations along the California coast. The 
commenter also recommended revisions to the proposed rule to emphasize 
that predation by sea otters was a major factor that caused the decline 
in black abalone populations and that continuing predation by sea 
otters has prevented recovery of black abalone populations. The 
commenter

[[Page 66808]]

cited a paper by Micheli et al. (2008) showing that abalone fishery 
closures and no-take reserves have been effective for allowing abalone 
populations to persist but that abalone populations have not recovered 
to levels comparable to those preceding the collapse of the abalone 
fisheries despite these protections.
    Response: The comment letter was not clear regarding whether the 
commenter's objection to the proposed critical habitat designation and 
statement that the proposed designation will not lead to recovery of 
black abalone populations was based on: (a) The commenter's assertion 
that the continued threat of predation by sea otters on black abalone 
is preventing recovery of black abalone populations; (b) studies 
showing a lack of recovery of black abalone populations despite 
continued fishery closure and protection in no-take reserves; or (c) 
other reasons not stated by the commenter. Therefore, we can only 
address the commenter's concerns regarding predation by sea otters and 
the results of the Micheli et al. (2008) paper.
    The proposed rule listed several factors that contribute to 
mortality of black abalone, including predation by other species such 
as sea otters (see ``Mortality'' section, pg. 59902 in the proposed 
rule (75 FR 59900, September 28, 2010)). The proposed rule also stated 
that predicting the relative impacts of each of these factors on long-
term viability of black abalone is difficult without further study. The 
commenter did not provide references to support the statement that sea 
otter predation was a major factor contributing to black abalone 
declines and that continued sea otter predation has prevented recovery 
of populations. However, based on the best available data, the 2009 
status review report for black abalone (VanBlaricom et al. 2009) 
identified historical overfishing and mass mortalities associated with 
withering syndrome as the primary factors contributing to the recent 
declines in black abalone populations. The potential impact of sea 
otter predation on the recovery of black abalone populations is 
unknown, but the following observations indicate that sea otter 
predation was not and is not a major source of mortality for black 
abalone: (1) Sea otters were absent from southern California during the 
widespread decline of black abalone in that region; (2) the current 
last foothold for black abalone (i.e., central and north-central 
California habitats) directly overlaps with the current range of sea 
otters; and (3) one of the only places in southern California where 
black abalone populations have been increasing and where multiple 
recruitment events have occurred since 2005 (i.e., San Nicolas Island) 
is also the only place south of Point Conception where a growing 
population of southern sea otters exists, indicating that black abalone 
populations can recover and remain stable in the presence of sea 
otters. Micheli et al. (2008) identified high rates of natural 
mortality as well as potential illegal harvest of abalone as factors 
that have likely kept abalone populations along the central California 
coast from recovering to levels comparable to those attained during the 
1950s to 1960s, preceding the collapse of the abalone fishery. However, 
there is recognition that the abalone population levels in the 1950s 
and 1960s may not represent historical baseline abundances, because 
they were attained during a period when sea otter populations were 
extremely depressed. Micheli et al. (2008) states that ``[t]he current 
levels of abalone populations in central California may reflect 
conditions prior to both fishing and the near-elimination of sea otters 
from this region, characterized by intense otter predation and low but 
stable densities of abalones.'' Thus, the best available data do not 
support the idea that sea otter predation was a major factor in the 
decline of black abalone populations or that it will inhibit the 
recovery of the species. In addition, the purpose of the critical 
habitat designation is to protect habitats important for black abalone 
conservation. Although we do not expect the designation to directly 
address the issue of sea otter predation on black abalone, we do expect 
this designation to contribute to conservation of black abalone by 
protecting habitats necessary to support species recovery, despite 
uncertainties regarding the relative impacts of natural mortality on 
long-term viability of populations.

Geographical Area Occupied by the Species

    Comment 6: One commenter noted that within the areas proposed for 
designation, the habitat consists of a mixture of habitat suitable for 
black abalone (e.g., rocky substrates) and habitat unsuitable for black 
abalone (e.g., sandy beach). The commenter stated that the proposed 
critical habitat designation should be redone to only include those 
areas with habitat suitable for black abalone.
    Response: We agree with the commenter that the areas proposed for 
designation within the occupied geographic range of black abalone 
consist of a mixture of rocky habitats that are suitable to support 
black abalone and expanses of sandy habitat that are not suitable to 
support black abalone. Thus, the essential features identified for 
black abalone are unevenly dispersed throughout the specific areas 
proposed for designation. As stated in the draft Biological Report 
(NMFS 2010a), data are available to map and identify general areas of 
rocky habitat within these specific areas. However, as permitted under 
our regulations (50 CFR 424.12 (d)), we selected to draw a more 
inclusive area around habitats in close proximity to one another that 
met the requirements for designation as critical habitat. This allowed 
for a more manageable evaluation of areas. In addition, due to the risk 
of illegal harvest, the CHRT did not think it prudent to identify each 
individual rocky reef as a specific area in order to avoid disclosing 
the location of survey sites where black abalone populations have been 
found. Instead, the CHRT delineated ten segments of the California 
coast and ten offshore islands as specific areas to consider for 
designation, based on the location of survey sites where black abalone 
have been observed as well as features of the habitat. The intent of 
the proposed designation was not to designate all habitat types within 
the specific areas as critical habitat, but to designate the habitat 
within the specific areas that contain features essential to the 
conservation of the species (e.g., rocky habitat). The final rule has 
been revised to clarify that critical habitat includes only the rocky 
habitats (and the coastal marine waters above the benthos; see also 
Response to Comment 5) within the designated specific areas.

Delineation of Specific Areas Considered for Designation

    Comment 7: One commenter stated that the proposed critical habitat 
designation neglected important habitat for the planktonic larval 
stages of black abalone because the designation only included rocky 
intertidal habitat and did not include the marine waters in which 
larval black abalone occur. The commenter recommended the designation 
of certain ocean water habitat in order to protect the larval stage of 
black abalone. The commenter suggested a mechanism for determining 
whether a particular volume of water is occupied by larval and juvenile 
black abalone, noting that habitat need not be occupied continuously or 
at all to be designated as critical habitat. The commenter also 
recommended consideration of spatially and temporally dynamic 
designations, such

[[Page 66809]]

as an intermittent critical habitat designation (e.g., areas designated 
as critical habitat seasonally or only during breeding periods) or 
mobile critical habitat designations (e.g., designating critical 
habitat that moves along with the species).
    Response: We have revised the final rule to clarify that the 
designation includes not only coastal rocky habitats (from MHHW 
shoreward to the -6m depth contour relative to MLLW) within the 
designated specific areas, but also the marine waters above the rocky 
benthos within these areas. As indicated by the inclusion of water 
quality and nearshore circulation patterns on the list of proposed 
primary constituent elements (PCEs), we did intend for the designation 
to include not just the benthic substrate in the areas proposed, but 
also the water above it. Although not much is known about larval 
distribution, laboratory experiments with related species (Leighton 
1972 and 1974) indicate that larvae are distributed throughout the 
water column down to approximately -6m relative to MLLW, and possibly 
beyond.
    We note that the commenter's recommendation to consider a spatially 
or temporally dynamic designation would likely reduce the protections 
afforded to the species by the critical habitat designation. By 
designating habitat as critical habitat only during specific seasons, 
or only when the species is present, we would be missing an important 
aspect of what critical habitat is and the protections it affords a 
species by protecting its habitat even when the species is not present. 
This protection is important for maintaining the habitat for those 
times of the year when the species is using the habitat. This is one of 
the distinguishing features of a critical habitat designation versus 
the protections provided to the species under the listing.
    Comment 8: One commenter noted several incorrect citations for data 
collected at long-term monitoring sites along the California coast. The 
commenter provided the correct citations and recommended text to 
explain the history of the long-term monitoring sites and their 
establishment. The commenter also provided updated information on black 
abalone monitoring activities and data in 2009 and 2010 for Point Reyes 
National Seashore, Golden Gate National Recreation Area, and A[ntilde]o 
Nuevo Island.
    Response: We have revised the final rule and final Biological 
Report (NMFS 2011a) by: (a) Including a history of the long-term 
monitoring sites and their establishment; (b) correcting the citations 
for the long-term monitoring sites; and (c) updating the black abalone 
monitoring data for Point Reyes National Seashore, Golden Gate National 
Recreation Area, and A[ntilde]o Nuevo Island.

Activities That May Affect Black Abalone Critical Habitat

    Comment 9: One commenter stated that while the proposed rule 
recognizes that ocean acidification may be a threat to black abalone 
habitat, it does not identify the specific activities that may 
contribute to ocean acidification. The commenter stated that the 
following categories of activities contribute to ocean acidification 
and recommended that ocean acidification be identified as a threat to 
the PCEs for these activities: National Pollutant Discharge Elimination 
System (NPDES)-permitted activities, coastal development, construction 
and operation of desalination plants, construction and operation of 
liquefied natural gas projects, and mineral and petroleum exploration 
and extraction. The commenter also provided several references with 
information on the effects of ocean acidification on marine ecosystems 
and organisms and strategies for monitoring, assessing, and addressing 
ocean acidification.
    Response: The proposed rule identified ocean acidification as a 
potential factor imposing mortality on black abalone and stated that 
activities that exacerbate global climate change (e.g., fossil fuel 
combustion) contribute to ocean acidification. We recognize that 
several of the activities that may affect black abalone habitat (such 
as those listed by the commenter) may contribute to fossil fuel 
combustion and carbon emissions, thereby contributing to ocean 
acidification. Thus, in the proposed rule, we created a broad category 
of activities called ``Activities that lead to global climate change,'' 
to account for these and other activities that may result in increased 
carbon emissions and the potential effects resulting from these 
increased emissions. For this category of activities, we identified 
ocean acidification as a threat to the water quality, food resources, 
and settlement habitat PCEs. We mentioned that ocean pH values outside 
of the normal range (i.e., normal pH range = 7.5 to 8.5) may cause 
reduced growth and survivorship in abalone and that increasing partial 
pressure of carbon dioxide may reduce abundance of coralline algae (an 
important food resource and component of settlement habitat for newly 
settled abalone) (see Table 1, pg. 59918, in the proposed rule (75 FR 
59900; September 28, 2010).
    Unlike the other activities listed by the commenter, for which the 
link to ocean acidification is more indirect (e.g., coastal 
construction involves fossil fuel combustion and thus increased carbon 
emissions, which contribute to ocean acidification), NPDES-permitted 
activities may directly affect the pH of marine waters if permitted 
discharges alter the pH of receiving waters. Thus, we have revised this 
final rule and the supporting document to include ocean acidification 
as a threat to the food resources and water quality PCEs for NPDES-
permitted activities.
    Comment 10: One commenter provided additional information regarding 
the potential impacts from dredging on black abalone habitat, stating 
that dredging activities would not be expected to have direct or 
indirect impacts on black abalone habitat. The commenter explained that 
dredging activities would not ordinarily take place within black 
abalone habitat, because these activities are restricted to 
navigational channels and features associated with navigation, which 
consist of subtidal, soft bottom habitats. The commenter also reasoned 
that indirect effects of dredging activities (e.g., from increased 
turbidity or deposition) on black abalone habitat were not likely 
because the distances between dredge sites and black abalone habitat 
are great enough to avoid such impacts. If necessary, however, the 
commenter stated that projects can be conditioned to avoid direct 
impacts and measures can be implemented to control indirect impacts 
(e.g., closed buckets or turbidity curtains to control turbidity). 
Finally, the commenter recommended that ``requirements to treat 
(detoxify) dredge spoil'' be deleted from the list of possible 
modifications for dredging and disposal activities, because the Clean 
Water Act prohibits the discharge of sediments toxic to the environment 
and thus treatment is not a feasible modification.
    Response: Consistent with the information provided by the 
commenter, the draft Economic Analysis Report (NMFS 2010b) recognized 
that ``most of the dredging projects in California take place in rivers 
or in bays, to allow for vessels with deep drafts to safely navigate or 
maneuver. These types of areas are not being considered for 
designation. Thus, these data indicate that there are currently no 
dredging and disposal activities occurring in the specific areas.'' The 
draft and the final Economic Analysis Reports (NMFS 2010b and NMFS 
2011b) state that currently, no dredging and disposal activities are 
known to occur within the specific areas

[[Page 66810]]

considered for designation. Therefore, no costs were identified for 
dredging and disposal activities as a result of the critical habitat 
designation. The proposed and final rules and supporting documents 
still include and discuss dredging and disposal activities, however, to 
inform Federal agencies of the potential effects on black abalone 
critical habitat if the footprint of the activities were to overlap 
with rocky habitat within the specific areas.
    As the commenter stated, the Clean Water Act, along with the Marine 
Protection, Research, and Sanctuaries Act of 1972, prohibits the 
discharge or disposal of dredged material in aquatic and marine waters 
if the material does not meet Environmental Protection Agency (EPA) and 
U.S. Army Corps of Engineers (USACE) regulations and standards 
regarding contaminants. These regulations and the current location, 
depth, and use of designated ocean disposal sites likely minimize 
impacts on the water quality PCE for black abalone. As recommended by 
the commenter, we have revised the possible modifications described for 
dredging and disposal activities by removing ``requirements to treat 
(detoxify) dredge spoil'' and replacing it with ``requirements to 
monitor dredge spoil for specific contaminants that may affect black 
abalone.'' This revised language is intended to inform Federal agencies 
that if the disposal of dredge spoil may affect black abalone critical 
habitat, then they may be required to monitor levels of contaminants 
within the potentially affected area in order to address impacts on the 
water quality PCE. The specifics of the monitoring activities (e.g., 
contaminants of interest, methods, frequency, duration), as well as 
what actions would be taken if adverse effects on black abalone and its 
habitat are found, would be determined on a case-by-case basis through 
the consultation process under section 7 of the ESA.
    Comment 11: One commenter stated that the designation of critical 
habitat for black abalone has the potential to affect the routine 
issuance of permits for currently permitted activities in the Gulf of 
the Farallones, Monterey Bay, and Channel Islands National Marine 
Sanctuaries. The commenter requested that NMFS provide clear, concise 
advice and guidance on impacts that NMFS believes may affect the 
species and its critical habitat. The commenter also expressed concern 
regarding the expected time frame of one year or more for NMFS to issue 
permits for activities that may impact black abalone, stating that such 
a time frame would not be consistent with the National Marine 
Sanctuaries' time frame for evaluating and issuing permits. The 
commenter requested a formal meeting between staff from NMFS and the 
National Marine Sanctuaries to establish a framework, protocol, and 
plan for evaluating activities that may affect black abalone and its 
critical habitat.
    Response: Under section 7 of the ESA, Federal agencies must insure 
that actions they fund, permit, or carry out are not likely to 
jeopardize the continued existence of threatened or endangered species, 
or result in the destruction or adverse modification of designated 
critical habitat. The proposed rule (75 FR 59900; see section on 
``Special Management Considerations or Protection'') and draft Economic 
Analysis (NMFS 2010b) identified categories of activities that may 
affect black abalone critical habitat and therefore may be subject to 
such an analysis under section 7 of the ESA. The proposed rule and 
draft Economic Analysis also describe the nature of the threats posed 
by those activities to black abalone habitat and the potential 
modifications to those activities that may be required to avoid or 
minimize adverse effects on black abalone critical habitat. That list 
of activities and their descriptions provide information that can be 
used to evaluate activities for potential effects on black abalone and 
its habitat; however, NMFS recognizes that there may be additional 
activities that we are not aware of at this time that may affect black 
abalone critical habitat. We understand the commenter's concern 
regarding the need for guidance on what impacts may or may not affect 
black abalone and its habitat. However, determining whether a Federal 
action and its impacts may affect black abalone and its habitat 
requires an analysis of the details of the action, such as the 
location, duration, nature, scope, frequency, and time frame of the 
action and its impacts. Thus, this determination must often be made on 
a case-by-case basis given the details of each action. NMFS and 
National Marine Sanctuaries staffs have agreed to coordinate regarding 
upcoming actions, to provide technical assistance to Federal agencies 
undertaking, authorizing, or funding an action in determining whether 
the action may affect black abalone and its habitat. We also clarify 
that should it be determined that a Federal action may affect black 
abalone and its habitat, the action would be subject to consultation 
under section 7 of the ESA. The result of this consultation would not 
be a permit, but an analysis of whether the Federal agency has insured 
that the action is not likely to jeopardize black abalone and is not 
likely to result in the destruction or adverse modification of critical 
habitat. These consultations would be subject to the time frames 
specified in section 7 of the ESA and implementing regulations 
(typically 135 days). Regardless of the critical habitat designation 
for black abalone, consultations under section 7 of the ESA were and 
will be required for any Federal action that may affect black abalone 
or any other species listed under the ESA. The designation of critical 
habitat for black abalone does not alter the consultation time frames 
established under the ESA or implementing regulations.
    Comment 12: Two commenters stated that the term ``sidecasting'' is 
vague, undefined, and brings to mind the tossing of material off the 
highway with no subsequent management of the material. One of the two 
commenters recommended that the term ``sidecasting'' be replaced with 
the term ``sediment disposal'' or another term that better represents 
the range of methods used to dispose of excess sediment. The other 
commenter recommended that the term ``sidecasting'' be more clearly 
defined as direct sediment input or deposition into a water body. The 
commenters provided information explaining that excess sediment 
generated during road maintenance, repair, and construction activities 
is disposed of in approved areas and managed to minimize impacts to 
marine resources, using methods such as compaction of the material 
followed by revegetation. The commenters also provided information on 
three existing coastal development permits, stating that the management 
and disposal of excess sediment under these permits provides for public 
safety on California Highway 1 and is conducted in such a way as to 
best mimic nature, in order to minimize detrimental effects to the 
marine environment.
    Response: In response to the comments received, we revised the 
final rule by removing the term ``sidecasting'' and replacing it with 
the term ``sediment disposal activities associated with road 
maintenance, repair, and construction.'' We also revised the 
description of this activity to clarify that it involves the management 
and disposal of excess sediments generated from road maintenance, 
repair, and construction activities, with the material being placed in 
disposal areas that have been approved by the appropriate authorities 
and managed using methods (e.g., compaction and revegetation) to 
minimize the movement of sediment into the marine environment. We 
clarify

[[Page 66811]]

that the sediment disposal activities of concern are those that result 
in destruction or adverse modification of black abalone habitat (e.g., 
by increasing sediment input into coastal rocky habitats). If sediment 
disposal activities may result in the destruction or adverse 
modification of black abalone critical habitat, then the Federal agency 
funding, authorizing, or carrying out those activities would be 
required to consult with NMFS under section 7 of the ESA.
    Comment 13: One commenter stated that the potential modification to 
sidecasting activities of placing excess material at a stable site at a 
``safe distance'' from rocky intertidal habitats was too vague. The 
commenter stated that the ``safe distance'' requirement is subject to 
interpretation and provides an unacceptable level of uncertainty for 
materials management on Highway 1.
    Response: We acknowledge that the ``safe distance'' requirement is 
not clearly defined, but also recognize that the critical habitat 
designation is not the appropriate stage at which to define what that 
safe distance would be for the placement of sediments to avoid impacts 
to rocky intertidal and subtidal habitat. The distance at which excess 
materials would need to be placed to avoid impacts to rocky intertidal 
and subtidal habitat would depend on several factors, including the 
volume and characteristics of material to be placed at the site, the 
time of year, specific features of the site, and what management 
methods would be used (e.g., compaction, revegetation). These factors 
may vary and would need to be evaluated on a case-by-case basis during 
ESA section 7 consultations to determine the appropriate safe distance.
    Comment 14: One commenter agreed that the prediction of potential 
effects from coastal wave energy projects on black abalone populations 
is highly speculative. The commenter stated that MARINe is planning to 
monitor changes in physical parameters (e.g., pH, wave intensity, and 
temperature) in rocky intertidal habitat across the range of black 
abalone. The commenter stated that these data may provide information 
on changing physical parameters for black abalone resulting from 
climate change and coastal tidal and wave energy projects.
    Response: We intend to collaborate with MARINe on obtaining data to 
assess the effects of climate change and coastal tidal and wave energy 
projects on black abalone habitat.
    Comment 15: One commenter asked why agricultural irrigation was 
identified as an activity that may affect the PCEs on Anacapa Island 
(Specific area 16), stating that irrigation on Anacapa Island is 
limited to a greenhouse area and does not run-off the island.
    Response: In order to identify and estimate the acreage of 
irrigated farmland within each specific area, the economic analysis 
used data on Prime Farmlands, Farmlands of Statewide Importance, and 
Farmlands of Local Importance from the US Department of Agriculture 
(USDA) Natural Resources Conservation Service (NRCS) Soil Survey 
Geographic Database (SSURGO). Based on the SSURGO data, irrigated 
farmland was identified on Anacapa Island and therefore the proposed 
rule identified agricultural irrigation as an activity of concern for 
this specific area in the proposed rule. However, we have since been 
informed by the National Park Service (NPS) that irrigation activities 
on Anacapa Island are limited to a greenhouse where native plants are 
grown for a habitat restoration project (pers. comm. with Dan Richards, 
CINP, on September 21, 2011). Water use is conservative and limited to 
occasional hand watering, with water in the greenhouse recaptured and 
recycled. Based on the new information provided by the NPS, we have 
determined that agricultural irrigation is not an activity of concern 
on Anacapa Island and have revised this final rule and the final 
economic analysis report to remove agricultural irrigation as an 
activity that may affect the PCEs on Anacapa Island. We also revised 
the economic analysis to remove the economic impacts associated with 
agricultural irrigation activities on Anacapa Island (estimated to 
range from $0 to $21,900, with a midpoint of $10,950). As a result, the 
total annualized economic impacts estimate across all activities for 
Anacapa Island decreased.

Unoccupied Areas

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

Critical Habitat Boundaries

    Comment 17: One commenter recommended two revisions to clarify the 
lateral extent of designated critical habitat and what habitats are 
designated. First, the commenter recommended that a depth reference be 
provided wherever depths are given (e.g., a depth of -6m relative to 
the MLLW line). Second, the commenter recommended that the description 
of critical habitat be revised to include not just rocky intertidal 
habitat, but both rocky intertidal and subtidal habitats to a depth of 
-6m MLLW, because habitat from approximately -1m to -6m

[[Page 66812]]

MLLW would not be considered intertidal but is subtidal.
    Response: We have made the suggested changes by revising the 
language in this final rule and in the supporting documents to clarify 
that the critical habitat designation includes rocky intertidal and 
subtidal habitats from MHHW to a depth of -6m, measured relative to 
MLLW.
    Comment 18: One commenter recommended that the specific areas 
proposed for designation should be delineated by latitude and 
bathymetric specifications (e.g., MHHW), but should not be delineated 
by longitude. The commenter stated that this would allow the critical 
habitat designation to continue providing protection to black abalone 
habitat should the location of that habitat shift due to sea level rise 
associated with the effects of climate change.
    Response: In the proposed rule, we provided latitude and longitude 
coordinates to define the northern and southern boundaries of each 
specific area along the California coast. The latitude and longitude 
coordinates provided were not meant to also define the seaward and 
shoreward boundaries of the specific areas. We have revised the 
regulatory text in this final rule to clarify that the latitude and 
longitude coordinates define the northern and southern boundaries of 
the designated critical habitat areas, whereas the seaward and 
shoreward boundaries are defined by the following bathymetric 
specifications: The MHHW line (shoreward boundary) and the -6m depth 
contour relative to the MLLW line (seaward boundary).

Economic Impacts Analysis

    Comment 19: One commenter stated that the use of a ``mean'' in 
developing the cost estimates needs to be explained. Specifically, the 
commenter stated that because the mean reported in the economic 
analysis is actually the midpoint of a low cost and high cost range, 
the implicit assumption is that the probable distribution of costs is 
symmetric (and uniform, if there are no prior expectations to indicate 
that any value is more likely than any other) between the low and high 
cost estimates, which is an acceptable assumption as long as the low 
and high cost estimates are not hugely different. The commenter 
recommended that the final economic report should state the assumptions 
made in using the midpoint as the ``mean'' or expected level of costs.
    Response: The commenter is correct that the mean reported in the 
draft Economic Analysis Report (NMFS 2010b) is actually the midpoint of 
a low cost and high cost estimate. Because the economic analysis for 
this designation involves analyzing the economic impacts of a 
regulation that is not yet in place, empirical data are not available 
to inform the analysis. Instead, the analysis uses the best available 
data (e.g., from consultations on similar activities or species) to 
estimate the likely range of economic impacts associated with the 
critical habitat designation. Lacking empirical data, we made the 
assumption that the distribution of costs is symmetric and uniform 
within this range. We then used the midpoint (a measure of central 
tendency) between the low cost and high cost estimates as the 
representative cost estimate. In this analysis, the midpoint also 
represents the ``mean'', based on our assumption of a symmetric and 
uniform distribution of costs. For clarity, however, we have revised 
this final rule and the final Economic Analysis Report (NMFS 2011b) to 
remove the term ``mean'' and replace it with the term ``midpoint.'' The 
following paragraph was also added to section 1.4.6 in the final 
Economic Analysis Report (NMFS 2011b) to explain the assumptions made 
in the economic analysis regarding the ``midpoint'' or ``mid'' 
annualized economic impact estimate: ``In almost all cases, a range of 
possible modification costs is presented. Because the data sources for 
the cost estimates do not constitute a random sample, an average over 
the range of estimated costs cannot be used as the ``representative'' 
estimate. This analysis therefore assumes that the endpoints of the 
range represent the minimum and maximum values of a symmetric cost 
distribution, and uses the midpoint of the range as the representative 
cost estimate.''
    Comment 20: One commenter recommended that, in light of the recent 
economic climate, the discount rates used in the economic analysis 
should be reanalyzed.
    Response: OMB Circular A-94 states that a 7 percent discount rate 
should be used as a base-case for regulatory analysis to approximate 
the marginal pre-tax rate of return on an average investment in the 
private sector in recent years (before 1992). OMB Circular A-4 adds 
that estimates using a 3 percent discount rate should also be provided 
for regulatory analyses. Thus, the economic analysis provides present 
discounted values using discount rates of 3 percent and 7 percent. 
Given the present low interest rate environment, we consider the 
present values discounted at 3 percent to better reflect current 
economic conditions. Appendix D of the economic analysis report 
presents a sensitivity analysis of our assumptions by comparing the 
present values discounted at 3 percent and 7 percent with those 
discounted at 2.1 percent.
    We also note that in the draft economic analysis report, the 
annualized impacts were incorrectly labeled as having been discounted 
at 7 percent within the report and at 3 percent in the sensitivity 
analysis (Appendix D). The discount rates were only used to calculate 
present values and were not applied to calculate annualized impacts. In 
the final economic analysis report, we have removed the text 
``discounted at 7 percent'' and ``discounted at 3 percent'' from the 
tables that present annualized impacts. In addition, we have revised 
Appendix D to remove the tables of annualized impacts from Appendix D 
and to include only the table of present discounted values (comparing 
values discounted at 3, 7, and 2.1 percent discount rates).
    Comment 21: One commenter expressed concern that small businesses 
in the specific areas proposed for designation may experience large 
economic impacts and recommended that a more detailed economic analysis 
be conducted to consider the impacts to all types of potentially 
affected small businesses. The commenter also stated that the proposed 
rule said that most small businesses are outside of the limited 
protected area. The commenter felt this statement was speculative and 
urged NMFS to confirm this statement using county data.
    Response: NMFS refers the commenter to the Initial and Final 
Regulatory Flexibility Analyses in the draft and final Economic 
Analysis Reports (Appendix E in NMFS 2010b and 2011b). We used U.S. 
Census Bureau county data and NAICS codes to identify the number of 
small businesses that may be affected by the critical habitat 
designation for each activity type. We were not able to analyze the 
impacts to all types of small businesses, however, because we were able 
to attribute a NAICS code (or codes) to only 10 of the 17 activities. 
Thus, we were only able to estimate the number of and economic impacts 
to small businesses that may be affected for those 10 activities.
    Although the proposed rule stated that ``all of the identified 
small businesses are unlikely to be located in close proximity of the 
specific areas,'' the economic analysis did incorporate county data and 
analyzed the impacts to potentially affected small businesses 
identified throughout the counties

[[Page 66813]]

adjacent to the specific areas (see section titled ``Regulatory 
Flexibility Act'' on pg. 59925 in the proposed rule (75 FR 59900; 
September 28, 2010)). Thus, the analysis provides a maximum number of 
small businesses that could be affected for the 10 types of activities 
analyzed. We could not provide a more precise estimate of the number of 
potentially affected small entities, because business activity data is 
maintained at the county level.
    Comment 22: One commenter provided additional information for 
analyzing the economic impacts to ``sidecasting'' activities (revised 
name: ``Sediment disposal activities associated with road maintenance, 
repair, and construction; see Response to Comment 12). Specifically, 
the commenter provided data on the costs associated with sidecasting 
material versus hauling material off site (the potential modification 
analyzed in the draft Economic Analysis (NMFS 2010b) for activities 
conducted under the Waddell Bluffs Talus Disposal project and under the 
Basin Complex Fire Debris Material Management project.
    Response: We have incorporated the information into the final 
Economic Analysis (NMFS 2011b) for sediment disposal activities 
associated with road maintenance, repair, and construction.
    Comment 23: One commenter recommended that power plants be treated 
as a special case, as the estimates of the ``mean'' or midpoint cost 
are highly sensitive to the assumptions made regarding the distribution 
of costs within the range of estimated costs (see Comment 19 and 
Response above). The commenter questioned whether the low cost estimate 
of $26,000 was just as likely as the high cost estimate of $75 million. 
The commenter stated that the probable distribution of costs between 
the high and low cost estimates needs to be more explicitly addressed.
    Response: The Diablo Canyon Nuclear Power Plant (DCNPP; located in 
specific area 10) was the only power plant identified within the 
specific areas that may be affected by the critical habitat 
designation. As described in the proposed rule and draft economic 
analysis report, the estimated economic impacts to the DCNPP were 
highly uncertain. The high cost estimate was based on the costs 
required to retrofit the DCNPP with closed-system wet cooling towers. 
The low cost estimate was based on the costs required to comply with 
temperature control criteria in order to minimize the effects of 
thermal effluent on the black abalone habitat. In the proposed rule, 
the estimated economic impacts ranged from $26,500 to approximately 
$150 million, and we noted that the high cost estimate was likely an 
overestimate, because there may be less costly and more feasible 
actions that could be taken to address effects on black abalone 
habitat. Since the proposed rule, we have obtained additional 
information from the EPA and California State Water Resources Control 
Board (SWRCB) that have led us to revise the analysis of economic 
impacts to the DCNPP. As a result of these revisions, we have concluded 
that the designation of black abalone critical habitat is not likely to 
have incremental economic impacts on the DCNPP (i.e., the revised 
estimated economic impact is zero). In the following paragraphs, we 
describe the additional information received and the revisions leading 
to this conclusion.
    To address the high level of uncertainty associated with the 
estimated economic impacts to the DCNPP in our proposed rule, we 
investigated alternative methods that could feasibly be employed to 
minimize or eliminate the effects of thermal effluent. We also sought 
out information from the EPA and the SWRCB to increase certainty 
regarding baseline protections provided to the habitat under existing 
regulations. The additional information obtained led us to revise the 
economic impact analysis for the DCNPP.
    Further investigation of potential modifications to DCNPP suggested 
there is a high degree of uncertainty regarding the economic and 
technical feasibility of the modifications originally considered. 
Conclusions regarding several modifications are subject to evaluation 
studies to be conducted by the DCNPP in cooperation with the SWRCB. The 
studies are planned for 2012. In the proposed rule, we considered low 
cost modifications associated with compliance with NPDES permitting 
requirements (i.e., temperature control criteria), including 
alterations to plant operations to reduce the intake of water and thus 
the amount of water discharged. However, additional information 
provided by the EPA indicated that such modifications are not 
applicable to the DCNPP. Altering operations to reduce water intake 
when the facility is not producing power would not work at the DCNPP, 
because it is a nuclear power plant and needs to take in water for 
cooling purposes even when the plant is not producing power (pers. 
comm. with Paul Shriner, EPA, on October 4, 2011). Thus, the low cost 
modifications analyzed in the proposed rule are considered to be 
infeasible based on the best available information.
    In the proposed rule, we also considered the high cost modification 
of retrofitting the DCNPP from a once-through cooling system to a 
closed-cycle cooling system. While this option may address the issue of 
thermal effluent by reducing the volume of heated water that is 
discharged, it would not directly address the effects of thermal 
effluent. Further, a study conducted by the Central Coast Regional 
Water Quality Control Board (Central Coast RWQCB 2005) concluded that 
closed-cycle cooling systems would not be feasible for the DCNPP, 
because the massive physical area required for the cooling towers does 
not exist near the DCNPP. Although a report prepared for the California 
Ocean Protection Council (OPC) in 2008 (Tetra Tech Inc. 2008) stated 
that retrofitting to a closed-cycle cooling system is feasible at the 
DCNPP, it also noted that the location and layout of existing 
structures at the DCNPP ``complicates the identification of suitable 
areas in which to place cooling towers'' and acknowledges that 
considerations outside the scope of the study may limit the 
practicality or overall feasibility of a wet cooling tower retrofit at 
the DCNPP. Hence, the feasibility of a wet cooling tower retrofit at 
the DCNPP is questionable.
    Other options that more directly address the issue of thermal 
effluent and that would likely be associated with lower costs include 
the use of helper cooling towers, in which water is cooled prior to 
discharge, but not re-circulated, thus reducing the costs compared to 
closed-system cooling towers, and the re-routing of the heated 
discharge further offshore, rather than discharging directly into 
Diablo Cove (pers. comm. with Paul Shriner, EPA, on October 4, 2011). 
The feasibility of installing helper cooling towers has not yet been 
evaluated, nor will it be considered in the evaluation study planned in 
2012. Therefore, the feasibility of this modification remains 
uncertain. Similar to closed-system wet cooling towers, the use of 
helper cooling towers may be constrained by limited space in the area 
around DCNPP, depending on the size of the towers that would need to be 
constructed. In addition, the Central Coast RWQCB's (2005) study 
concluded that moving discharge structures offshore is not feasible for 
the DCNPP, given the bathymetry of the habitat, which is steep, rocky, 
and rapidly drops off in depth offshore. Therefore, these two potential 
modifications are considered to be infeasible, based on the best 
available information.
    Based on this additional information, we have determined that 
neither the low costs (associated with altering power plant operations 
to reduce water intake and discharge, in compliance with

[[Page 66814]]

temperature control criteria) nor the high costs (associated with 
retrofitting the DCNPP with closed-system wet cooling towers) analyzed 
in the proposed rule can be reasonably expected to be incurred due to 
the black abalone critical habitat designation. In addition, we note 
that regulations under the CWA provide a high level of baseline 
protection for black abalone critical habitat. The SWRCB has been 
delegated the authority to implement the federal Clean Water Act (CWA). 
Section 316(a) of the CWA requires the thermal component of a discharge 
be limited, taking into account the interaction of this thermal 
component with other pollutants, to assure the protection and 
propagation of balanced, indigenous populations of shellfish, fish, and 
wildlife in the receiving water. California State's Water Quality 
Control Plan for the control of temperature in coastal waters requires 
that elevated temperature effluent from existing discharges, such as 
the DCNPP's discharge, ``shall comply with limitations necessary to 
assure protection of the beneficial uses and areas of special 
biological significance.'' Thus, under Section 316(a) of the CWA, the 
DCNPP would already be required to take measures to address the effects 
of the facility's discharge on water quality. Based on this 
information, we determined that it is unlikely that this critical 
habitat designation would require modifications above and beyond what 
would already be required under the existing regulations. Therefore, we 
conclude that this designation is not likely to result in incremental 
impacts to the cost of operating the DCNPP.
    This final rule and the supporting documents have been revised with 
the economic impact estimate of $0 for the DCNPP. As a result of this 
revision, the total mid-annualized economic impact estimate for 
specific area 10 decreased from about $75.5 million to about $456,000 
and specific area 10 is no longer eligible for exclusion based on 
economic impacts (see section on ``Benefits of Exclusion based on 
Economic Impacts and Final Exclusions'').
    Comment 24: One commenter suggested that Table 1.4-1 (summarizing 
the basis for the incremental scores) of the draft Economic Analysis 
Report (NMFS 2010b) be revised to clarify that the incremental scores 
can be affected by other baseline protections, and not just by an 
overlap with existing critical habitat designations. For example, the 
commenter noted that the incremental score can be affected by an 
overlap with other existing protected areas, such as National Marine 
Sanctuaries (NMS). In addition, the commenter recommended including a 
table that summarizes the application of the guidelines to each 
activity and the resulting incremental score(s).
    Response: The baseline protections, including NMS regulations, are 
represented on Table 1.4-1 in the heading ``Existing Federal, state, 
and local standards and regulations.'' We included additional text in 
Section 1.4.4 of the final Economic Analysis Report to make this more 
explicit. In addition, Section 2 of the draft and final Economic 
Analysis Reports includes a detailed description of the economic 
analysis for each category of activity considered. Included in these 
descriptions is an explanation of how the incremental scores were 
determined for each category of activity. Because the baseline 
protections differ between specific areas, the incremental scores also 
differ between specific areas for each category of activity. Rather 
than creating one table listing the incremental scores for each 
specific area and each category of activity, we provide summary tables 
for each category of activity, listing the incremental scores for each 
specific area and the resulting estimated economic impacts.
    Comment 25: One commenter stated that small boat wrecks and 
associated oil spills may not be captured in the economic analysis, 
because the analysis focuses on medium to large spill events. The 
commenter recommended that small boat wrecks should be included in the 
analysis of oil and chemical spills and vessel grounding incidents 
because these wrecks can result in the discharge of fuel and in 
physical damage to habitat. As an example, the commenter stated that in 
1995 a 40-foot vessel wrecked at Point Reyes Headland within the area 
of proposed black abalone critical habitat and discharged 400 gallons 
of diesel into the marine environment. The commenter stated that the 
cumulative effects of small incidents could add up to a medium-sized 
spill, with as many as ten boat wrecks a year occurring at Point Reyes 
National Seashore. The commenter provided additional data on small boat 
wrecks and associated oil spills in the Point Reyes National Seashore 
for the years 1995 through 2005.
    Response: In response to this comment, we re-evaluated our analysis 
of the economic impacts to oil and chemical spill response activities 
in Section 2.7 of the economic analysis report to incorporate the 
additional information provided by the NPS on small boat wrecks and 
associated oil spills in the Point Reyes National Seashore (in Specific 
Area 2). This re-evaluation led us to revise our approach to the 
economic analysis for oil and chemical spill response activities. In 
the draft economic analysis prepared for the proposed rule, we 
presented a quantitative estimate of the economic impacts to oil and 
chemical spill response activities. We used a model developed by Etkin 
(2000) and populated with data from past spill events (e.g., location, 
spill size, amount of shoreline impacted by oil) to develop a range of 
cost estimates representing the range in total spill cleanup costs 
associated with a spill incident in each specific area. Because 
existing Federal, State, and local standards and regulations associated 
with oil and chemical spill response activities offer black abalone 
critical habitat a high level of baseline protection, the draft 
economic analysis assumed that approximately 20 percent of spill 
cleanup costs were attributable to black abalone critical habitat. 
Therefore, the range of cost estimates was adjusted by an incremental 
score of 0.2, to generate the incremental economic impacts of the 
designation on oil and chemical spill response activities. This 
approach was based on the following assumptions: (a) The designation of 
black abalone critical habitat would likely restrict or modify the type 
of responses taken in a spill incident; (b) we are able to predict 
these restrictions or modifications; and (c) these restrictions or 
modifications would be different from what would already be required if 
black abalone critical habitat were not designated and thus would 
result in additional costs, making up 20 percent of the total spill 
response costs. We also stated that the existence of black abalone 
critical habitat could increase the number of responses by requiring a 
response where one was not required before.
    In evaluating how to incorporate the new information provided by 
the NPS on small boat wrecks and associated oil spills, we considered 
how the designation of critical habitat for black abalone may modify 
the response to such incidents. We obtained additional information from 
NOAA regarding spill response activities that led us to re-consider how 
the critical habitat designation may modify the response to spill 
incidents. The additional information obtained led us to conclude that 
there is great uncertainty regarding how the designation may affect 
spill response activities, because of the unpredictability of 
incidents, the incident-specific nature of response

[[Page 66815]]

strategies, and the baseline protections provided by strategies already 
in place for other sensitive resources (including black abalone). 
Historical data show that past spill events often result from vessel 
groundings or collisions, which are difficult to predict and thus are 
subject to emergency consultation under section 7 of the ESA. The 
decision of whether to respond to a spill, as well as how to respond, 
varies on a case-by-case basis depending on specific factors associated 
with a spill (e.g., the location, size, type of oil, sea state). In 
addition, a consultation under section 7 of the ESA can modify a 
Federal agency's action, but cannot compel an agency to take an action 
it normally would not take. The existence of black abalone critical 
habitat in an area may affect spill response activities by prioritizing 
black abalone critical habitat areas for shoreline protection (e.g., by 
the use of mechanical recovery methods, deployment of boom, or 
application of dispersants to keep oil offshore) or requiring shoreline 
assessments and nearshore water quality monitoring during and after the 
spill. However, these response activities would likely already be 
considered or required due to the presence of black abalone and/or 
other sensitive resources in the area, regardless of the presence of 
black abalone critical habitat. Thus, the presence of black abalone 
critical habitat may have little effect on spill response activities. 
Until more information is available from future spill events and 
response activities, it is difficult to determine the incremental 
impacts of this designation on spill response activities. Recognizing 
these uncertainties, we revised the analysis to a qualitative 
discussion of the potential impacts on spill response activities. We 
note that working with the relevant State and Federal agencies on spill 
response plans may be the most effective way to address our concerns 
regarding the potential impacts of spill response activities on 
critical habitat. NMFS plans to work with the U.S. Coast Guard and 
California's Office of Spill Prevention and Response to incorporate 
information on black abalone critical habitat into spill response plans 
and identify strategies to protect this habitat during spill response 
activities.
    We also re-evaluated our analysis of the economic impact to vessel 
grounding incidents and response activities. The draft economic 
analysis report had identified only one vessel grounding incident in 
Specific Area 8. The analysis did not provide a quantitative assessment 
of the economic impacts to vessel grounding incidents because 
information was not available regarding the extent of the impacts of 
the incident on black abalone habitat. Because of this, NMFS was unable 
to determine specifically how this threat would be alleviated for 
Specific Area 8. We revised the economic analysis report to include the 
data provided by the NPS on vessel grounding incidents at Point Reyes 
National Seashore (in Specific Area 2). However, the additional data 
did not provide information on the extent of impacts to black abalone 
critical habitat or on specific ways this threat could be alleviated in 
the future. Due to uncertainty regarding the extent of impacts and how 
the activity may be modified to protect black abalone critical habitat, 
NMFS was still unable to present a quantitative assessment for the 
potential economic impacts to vessel grounding and response activities.

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

    Comment 26: One commenter stated that the economic impacts to the 
proposed South Orange Coastal Desalination Project in specific area 12 
(from Corona Del Mar State Beach to Dana Point in Orange County, 
California) were overestimated and do not support excluding this 
specific area. The commenter recommended that the estimated economic 
costs to the proposed desalination plant for treating hypersaline 
effluent or for finding an alternate method of brine disposal should 
not be attributed to the black abalone critical habitat designation, 
but should be considered baseline costs associated with the listing of 
the species. The commenter also stated that the estimated costs for an 
alternate means of brine disposal (i.e., injection wells) should not be 
applied to the proposed desalination plant because the proposed 
desalination plant plans to combine the residual brine from 
desalination with treated wastewater to be discharged 1.5 miles 
offshore through an existing outfall. The commenter stated that there 
is no indication that the proposed desalination plant would require 
injection wells to avoid adversely affecting black abalone critical 
habitat, because the proposed method of brine disposal would minimize 
or avoid harm to black abalone critical habitat. The commenter 
recommended that the estimated economic impacts to the proposed 
desalination plant in specific area 12 be revised to reflect this new 
information and that specific area 12 should be designated because it 
historically supported black abalone and one individual was found there 
as recently as January 2010.
    Response: We agree with the commenter that because the construction 
and operation of desalination projects require Federal permits, the 
Federal agency or agencies involved would need to comply with section 7 
of the ESA to insure that their actions do not jeopardize the continued 
existence of black abalone, regardless of the critical habitat 
designation. If black abalone critical habitat were designated within 
the action area, however, the Federal agency or agencies would also 
need to insure that their actions do not result in the destruction or 
adverse modification of that critical habitat. Thus, some of the costs 
of treating or disposing of residual brine would be attributed to the 
listing and would be considered baseline costs, but some of the costs 
may also be attributed to the critical habitat designation. The 
economic analysis attempts to estimate the incremental costs of the 
critical habitat designation by applying an incremental score to the 
total estimated costs. The incremental score represents the estimated 
proportion of the costs that can be attributed to the critical habitat 
designation.
    In the draft Economic Analysis Report (NMFS 2010b), we considered a 
range of costs to desalination plants from low (i.e., minimal or zero 
costs if the desalination plant is co-located with a power plant in 
order to mix the residual brine with the power plant's wastewater prior 
to discharge) to high (i.e., costs to use an alternate method of brine 
disposal, such as injection wells). The proposed method for brine 
disposal at the South Orange Coastal Desalination Plant (i.e., 
combining the residual brine with treated wastewater, to be discharged 
through an existing outfall at 1.5 miles offshore) is similar to the 
example provided in the draft Economic Analysis of desalination plants 
being co-located with power plants. We do not know at this time what 
the potential effects of the proposed brine disposal method would be on 
black abalone critical habitat and cannot state with certainty what the 
potential requirement might be to avoid those effects. However, we 
agree with the commenter that any modifications required to avoid 
adversely affecting black abalone critical habitat would likely be less 
costly than the cost of using injection wells. Thus, the economic costs 
to the proposed desalination project as a result of the critical 
habitat designation would likely be at the low end of the range of 
potential costs (essentially zero, because the low cost estimate could 
not be quantified). The final economic analysis has been revised to 
reflect these

[[Page 66816]]

changes. Based on this change, the mid-annualized economic impact 
estimate for specific area 12 was reduced from $1,564,400 (low 
estimate: $11,500; high estimate: $3,117,300) to $104,400 (low 
estimate: $11,500; high estimate: $197,300). Despite this reduction in 
the estimated economic impacts, specific area 12 was still eligible for 
exclusion based on our decision rule for low conservation value areas 
(i.e., areas with a low conservation value are eligible for exclusion 
if the mid-annualized economic impact exceeds $100,000). We did not 
receive any additional information to support increasing the 
conservation value rating for this area, or to show that exclusion of 
this area would significantly impede conservation of black abalone or 
lead to the extinction of the species. Therefore, we determined that 
the economic benefits of exclusion outweigh the conservation benefits 
of designation for specific area 12 and exclude this area from the 
final designation (for more details, see the section titled ``Benefits 
of Exclusion and Final Exclusions Based on Economic Impacts'' as well 
as the final ESA 4(b)(2) Report (NMFS 2011c)).
    In addition, after further review of the identified desalination 
plants for all of the specific areas, we found that a majority of the 
facilities also plan to mix the residual brine with water from wells or 
wastewater prior to discharge. Based on this information, we determined 
that the high cost estimate for the use of injection wells was no 
longer applicable. Therefore, the analysis of economic impacts to 
desalination plants was revised to remove the high cost estimate. In 
the final Economic Analysis Report, the economic impacts to 
desalination plants are discussed qualitatively, because the low cost 
estimate could not be quantified.

General Comments

    Comment 27: One commenter stated that the proposed rule was 
incomplete because the list of references and certain references that 
were stated as available on the Web site (e.g., the supporting 
documents) were not posted on the Web site. The commenter recommended 
that all references be made available on the Web site and that web 
addresses take users directly to the documents cited and not to the 
NMFS regional Web site. The commenter also requested that the public 
comment period be extended once the complete list of references is 
posted, to allow time for review and comment on the entire proposed 
rule.
    Response: The supporting documents cited in the proposed rule were 
posted and available on the NMFS Southwest Region Web site (http://swr.nmfs.noaa.gov) as well as on the Federal eRulemaking Portal Web 
site (http://www.regulations.gov) during the public comment period. The 
commenter was correct, however, that the list of references was not 
made available on the Web site during the public comment period. We 
have since posted the list of references on the NMFS Southwest Region 
Web site. In response to the commenter's request, we have provided a 
Web site link in this final rule that takes users directly to the final 
rule and supporting documents, and have provided more detailed 
instructions on how to find the final rule and supporting documents on 
the Federal eRulemaking Portal Web site (see ADDRESSES section of this 
final rule). Although we recognize the commenter's concern regarding 
the unavailability of the list of references, we did not extend the 
public comment period due to the need to publish the final rule by the 
court-approved deadline of October 18, 2011. However, we informed the 
commenter when the list of references had been posted, and the 
commenter indicated that they did not have any additional comments on 
the proposed rule.
    Comment 28: One commenter recommended that NMFS undertake a 
stronger education and outreach approach to publicize the critical 
habitat designation effort, so that State, Federal, and local 
municipalities, as well as affected stakeholders, can better understand 
the requirements for protecting black abalone and its habitat. The 
commenter suggested that conducting a workshop to explain the critical 
habitat designation would meet this goal.
    Response: We typically do not share specific information about a 
rule prior to publication of a proposed or final rule, because 
decisions may change as the agency undergoes deliberations, and sharing 
information with the public during this deliberative process may create 
confusion as to the agency's official proposal and decision. However, 
once a proposed or final rule is published, we publicize the rule 
widely to ensure that all potentially affected entities and interested 
members of the public are aware of the proposed or final decisions. 
NMFS typically publicizes proposed and final rules through press 
releases, the Federal Register, and posting of the rules and supporting 
documents on the Southwest Region Web site and the Federal eRulemaking 
Portal Web site. NMFS also holds public hearings when one is requested 
by the appropriate date during the public comment period (no requests 
for a public hearing were made for the proposed black abalone critical 
habitat rule). We would appreciate recommendations for more effectively 
publicizing the critical habitat designation and helping potentially 
affected entities understand what the designation means and the 
requirements for protecting black abalone and its habitat.
    Comment 29: In one of the form letters submitted by a supporter of 
CBD, one commenter stated that there are many species of plants and 
animals that deserve to be placed on the ESA list, but have been put 
off. The commenter stated that these creatures need protection before 
they go extinct.
    Response: It is not clear whether the commenter was referring to 
species that were petitioned for ESA listing but not placed on the ESA 
list, or whether the commenter was referring in general to all species 
that may or may not have been considered for ESA listing. It is also 
not clear whether the commenter was referring to species solely under 
the jurisdiction of NMFS or to all species in general. Critical habitat 
designations are for species that are already listed under the ESA and, 
therefore, this comment is not relevant to the designation of critical 
habitat for black abalone. However, we note that both the NMFS and 
USFWS (the Services) follow an established process under section 4 of 
the ESA for evaluating species for listing. This process is based on 
the best available scientific and commercial data.
    Comment 30: Several commenters provided anecdotal accounts of black 
abalone presence and abundance in Southern California and the offshore 
islands. In general, the commenters noted that black abalone were once 
abundant along the rocky shores of California and the offshore islands, 
including Catalina Island, and supported recreational and commercial 
harvest, but that their populations have declined to near extirpation 
in many areas due to factors including overharvest, illegal harvest, 
and disease. The commenters voiced support for the critical habitat 
designation to protect areas for the recovery of black abalone.
    Response: The anecdotal information provided by the commenters is 
consistent with trends observed through long-term monitoring studies of 
declining black abalone populations throughout the coast and offshore 
islands of Southern California.
    Comment 31: Several commenters expressed concerns regarding 
overfishing and illegal harvest and the damaging effects of these 
activities on abalone species as well as coastal areas. One commenter 
stated that since the 1950s and 1960s, we have lost almost all

[[Page 66817]]

abalone due to overexploitation, whether legal or illegal, and 
``critical habitat designation and severe enforcement of penalties is 
becoming necessary to preserve or restore such once-common species as 
these.'' One commenter noted that abalone are constantly being over-
harvested illegally along the coast of Northern California. Another 
commenter stated that all harvest of black abalone should be banned 
until the numbers have recovered substantially.
    Response: The Status Review Team (SRT) for black abalone identified 
poaching as a continuing threat (VanBlaricom et al. 2009). However, the 
relative impact of poaching-related mortality to black abalone is 
poorly understood. The California Department of Fish and Game (CDFG) 
has documented several black abalone poaching cases from 1993 to 2003 
involving removal of tens to hundreds of black abalone across all size 
categories (unpublished data by Ian Taniguchi, CDFG, cited in 
VanBlaricom et al. 2009). CDFG wardens estimate that 80 percent of 
seized abalone were returned alive to the wild. Although this critical 
habitat designation would not directly address the threat of poaching, 
it can help CDFG wardens and other enforcement officials focus their 
monitoring efforts on areas important to black abalone.
    The SRT also identified historical overfishing as a threat that has 
contributed to the decline in black abalone populations (VanBlaricom et 
al. 2009). This critical habitat designation would not directly address 
overfishing. Overfishing of abalone has been addressed by CDFG 
regulations prohibiting abalone harvest south of San Francisco Bay. 
Section 9 of the ESA also prohibits the take of black abalone 
throughout its range, thus prohibiting any harvest of black abalone and 
adding additional penalties to those already being enforced by the 
state for illegal harvest of black abalone.
    Comment 32: One commenter requested that the recovery plan for 
black abalone address the threats of climate change as it is associated 
with withering syndrome and ocean acidification.
    Response: NMFS plans to initiate recovery planning for black 
abalone following publication of this final critical habitat 
designation. Throughout the recovery planning process, NMFS will assess 
the threats to black abalone and develop a recovery strategy, with 
input from stakeholders and the general public. NMFS will likely 
consider the threats from climate change during the recovery planning 
process.
    Comment 33: Two commenters stated they would like to see black 
abalone recover to the extent that they could be harvested for 
consumption again. One of the commenters recommended that upon recovery 
of black abalone populations, a recreational fishery may be operated at 
a level to maintain the population by imposing a slot limit to allow 
harvest of medium-sized abalone, thereby protecting young and older 
abalone. The commenter stated that black abalone are capable of rapidly 
repopulating an area if sufficient critical habitat is established and 
the abalone and their habitat are properly protected.
    Response: Harvest of black abalone is prohibited as long as the 
species is listed as endangered under the ESA. Recovery plans require 
that certain criteria (i.e., demographic, threats-based, and long-term 
monitoring criteria) be met in order to down-list or de-list an ESA 
protected species. These criteria have not yet been established for 
black abalone, but will be developed in the near future. Upon recovery 
and delisting of the species, re-establishment of a fishery for black 
abalone could be considered under the appropriate state and Federal 
processes. The black abalone SRT stated that the natural recovery of 
severely-reduced black abalone populations would likely be a slow 
process due to the low reproductive efficiency of widely dispersed 
adult populations and short larval dispersal distances (VanBlaricom et 
al. 2009). However, the designation of critical habitat has been found 
to benefit the status and recovery of ESA-listed species (Harvey et al. 
2002; Lundquist et al. 2002; Taylor et al. 2005; Hagen and Hodges 
2006).
    Comment 34: Numerous commenters submitted form letters in support 
of the designation of critical habitat for black abalone, specifically 
to protect black abalone from climate change. The commenters emphasized 
the importance of curbing climate change and ocean acidification in 
order to protect critical habitat, because global warming is 
exacerbating the outbreak and spread of withering syndrome and ocean 
acidification is threatening abalone growth and reproduction as well as 
the abundance of juvenile settlement habitat (i.e., coralline algae). 
Three of the commenters stated that the threats of global warming and 
climate change should be high items on our national priorities list 
because of the broad effects on listed species and other aspects of the 
marine, aquatic, terrestrial, and human environment. One commenter 
specifically identified the need to control carbon emissions. However, 
another commenter stated that many members of the public may be 
concerned about the conservation of abalone and other life forms, but 
do not subscribe to the global warming hypothesis. Another commenter 
stated that the actions of people that contribute to destruction of 
habitat, such as activities that dump poisons in the environment, must 
be modified.
    Response: We recognize the commenters' concerns regarding 
activities that affect black abalone and its habitat as well as other 
aspects of the natural and human environment. Once this final critical 
habitat designation takes effect, section 7 of the ESA requires that 
Federal agencies insure that their actions are not likely to result in 
the destruction or adverse modification of black abalone critical 
habitat. The CHRT identified several categories of activities that may 
affect the biological and physical habitat features essential for the 
conservation of black abalone, including NPDES-permitted activities and 
activities that lead to global climate change. Thus, the protections 
afforded to black abalone critical habitat under section 7 of the ESA 
may result in changes to these activities to avoid the destruction or 
adverse modification of critical habitat. However, the requirements 
under section 7 of the ESA apply only to actions that have a Federal 
nexus (i.e., actions funded, permitted, or carried out by a Federal 
agency or agencies) and may not apply to all actions related to global 
climate change and habitat destruction. For activities leading to 
global climate change, it is uncertain at this time how the black 
abalone critical habitat designation may affect these activities or if 
a Federal nexus exists for these activities.
    Comment 35: One commenter stated that the Minerals Management 
Service (MMS) has been renamed the Bureau of Ocean Energy Management, 
Regulation, and Enforcement (BOEMRE) and requested that the final rule 
and all supporting documents be revised to refer to the current agency 
name.
    Response: We have revised the final rule and supporting documents 
to refer to BOEMRE instead of the MMS, explaining that BOEMRE was 
formerly MMS.

Methods and Criteria Used To Identify Critical Habitat

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

[[Page 66818]]

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

Physical or Biological Features Essential for Conservation

    Joint NMFS-USFWS regulations, at 50 CFR 424.12(b), state that in 
determining what areas are critical habitat, the agencies ``shall 
consider those physical and biological features that are essential to 
the conservation of a given species and that may require special 
management considerations or protection.'' Features to consider may 
include, but are not limited to: ``(1) Space for individual and 
population growth, and for normal behavior; (2) Food, water, air, 
light, minerals, or other nutritional or physiological requirements; 
(3) Cover or shelter; (4) Sites for breeding, reproduction, rearing of 
offspring, germination, or seed dispersal; and generally; (5) Habitats 
that are protected from disturbance or are representative of the 
historic geographical and ecological distributions of a species.'' The 
regulations also require the agencies to ``focus on the principal 
biological or physical constituent elements'' (hereafter referred to as 
``Primary Constituent Elements'' or PCEs) within the specific areas 
considered for designation that are essential to conservation of the 
species, which ``may include, but are not limited to, the following: * 
* * spawning sites, feeding sites, seasonal wetland or dryland, water 
quality or quantity, * * * geological formation, vegetation type, tide, 
and specific soil types.''
    Based on the best available scientific information, the CHRT 
identified the following PCEs essential for the conservation of black 
abalone:
    (1) Rocky substrate. Suitable rocky substrate includes rocky 
benches formed from consolidated rock of various geological origins 
(e.g., igneous, metamorphic, and sedimentary) that contain channels 
with macro- and micro- crevices or large boulders (greater than or 
equal to 1 m in diameter) and occur from MHHW to a depth of -6 m 
relative to MLLW. All types of relief (high, medium and low; 0.5 to 
greater than 2 m vertical relief; Wentworth 1922) support black abalone 
and complex configurations of rock surfaces likely afford protection 
from predators, direct impacts of breaking waves, wave-born 
projectiles, and excessive solar heating during daytime low tides. 
Black abalone typically occupy the middle intertidal zones, although in 
some areas black abalone may predominately occupy the high or low 
intertidal zones. Local variation exists, depending on conditions such 
as the level of exposure and where drift kelp (an important food 
resource for black abalone) may be accumulating at particular 
locations. Leighton (1959) found evidence for ontogenetic shifts in 
depth distribution among juvenile abalone on the Palos Verdes 
Peninsula. Juvenile black abalone (10-30 mm) were found at mid-
intertidal depths on undersides of rock providing clear beneath-rock 
open space while juveniles in the 5-10 mm size range were found at 
higher intertidal zones in narrow crevices and in depressions abraded 
into rock surfaces by the intertidal chiton, Nutallina californica 
(Reeve 1847). Black abalone observed at greater depths (3-6 m) 
typically were mature adults. California contains approximately 848.5 
miles (1365.5 km) of consolidated rocky coastline, and 548.5 miles 
(882.8 km) or 65 percent of it falls within the areas considered in 
this critical habitat designation.
    (2) Food resources. Abundant food resources including bacterial and 
diatom films, crustose coralline algae, and a source of detrital 
macroalgae, are required for growth and survival of all stages of black 
abalone. From post-larval metamorphosis to a size of about 20 mm, black 
abalone consume microbial and possibly diatom films (Leighton 1959; 
Leighton and Boolootian 1963; Bergen 1971) and crustose coralline 
algae. At roughly 20 mm black abalone begin feeding on both attached 
macrophytes and pieces of drift plants cast into the intertidal zone by 
waves and currents. The primary macroalgae consumed by juvenile and 
adult black abalone are giant kelp (Macrocystis pyrifera) and feather 
boa kelp (Egregia menziesii) in southern California (i.e., south of 
Point Conception) habitats, and bull kelp (Nereocystis leutkeana) in 
central and northern California habitats (i.e., north of Santa Cruz), 
although Macrocystis and Egregia may be more prominent than Nereocystis 
in central California habitats between Point Conception and Santa Cruz 
(public comment submitted by MARINe). Southern sea palm (Eisenia 
arborea), elk kelp (Pelagophycus porra), stalked kelp (Pterygophora 
californica), and other brown kelps (Laminaria sp.) may also be 
consumed by black abalone.
    (3) Juvenile settlement habitat. Rocky intertidal and subtidal 
habitat containing crustose coralline algae and crevices or cryptic 
biogenic structures (e.g., urchins, mussels, chiton holes, 
conspecifics, anemones) is important for successful larval recruitment 
and juvenile growth and survival of black abalone less than 
approximately 25 mm shell length. The presence of adult abalone may 
facilitate larval settlement and metamorphosis, because adults may: (1) 
Promote the maintenance of substantial substratum cover by crustose 
coralline algae by grazing other algal species that could compete with 
crustose coralline algae; and/or (2) outcompete encrusting sessile 
invertebrates (e.g. tube worms and tube snails) for space on rocky 
substrates, thereby promoting the growth of crustose coralline algae 
and settlement of larvae; and/or (3) emit chemical cues necessary to 
induce larval settlement (Miner et al. 2006; Toonen and Pawlick 1994). 
Increasing partial pressure of CO2 may decrease 
calcification rates of coralline algae, thereby reducing their 
abundance and ultimately affecting the survival of newly settled black 
abalone (Feely et al. 2004; Hall-Spencer et al.

[[Page 66819]]

2008). Laboratory experiments have shown that the presence of 
pesticides (e.g., dichlorodiphenyltrichloroethane (DDT), 2,4-
dichlorophenoxyacetic acid (2,4-D), methoxychlor, dieldrin) interfered 
with larval settlement of abalone, because the chemical cues emitted by 
coralline algae and its associated diatom films, which trigger abalone 
settlement, are blocked (Morse et al. 1979). The pesticide oxadiazon 
was found to severely reduce algal growth (Silver and Riley 2001). 
During the public comment period on the proposed rule, we solicited the 
public for additional information regarding processes that mediate 
crustose coralline algal abundance, however, we did not receive any 
additional information and data are still lacking regarding what other 
factors may be controlling crustose coralline algal abundance.
    (4) Suitable water quality. Suitable water quality includes 
temperature, salinity, pH, and other chemical characteristics necessary 
for normal settlement, growth, behavior, and viability of black 
abalone. The biogeographical water temperature range of black abalone 
is from 12 to 25 [deg]C, but they are most abundant in areas where the 
water temperature ranges from 18 to 22 [deg]C (Hines et al. 1980). 
There is increased mortality due to withering syndrome (WS) during 
periods following elevated sea surface temperature (Raimondi et al. 
2002). The CHRT did not consider the presence of the bacteria that 
causes WS when evaluating the condition of this PCE because it is 
thought to be present throughout a large portion of the species' 
current range (greater than 60 percent), including all coastal specific 
areas as far north as San Mateo County, as well as at Bodega Head 
(though not found in a sample collected from Point Reyes in 2009) and 
the Farallon Islands (pers. comm. with Jim Moore, CDFG, on June 8, 
2011). Instead the CHRT relied on sea surface temperature information 
to evaluate water quality in terms of disease virulence, recognizing 
that elevated sea surface temperatures are correlated with increased 
rates of WS transmission and manifestation in abalone. Elevated levels 
of contaminants (e.g., copper, oil, polycyclic aromatic hydrocarbon 
(PAH) endocrine disrupters, persistent organic compounds (POC)) can 
cause mortality of black abalone. In 1975, toxic levels of copper in 
the cooling water effluent of a nuclear power plant near Diablo Canyon, 
California, were associated with abalone mortalities in a nearshore 
cove that received significant effluent flows (Shepherd and Breen 1992; 
Martin et al. 1977). As mentioned above for the Juvenile settlement 
habitat PCE, laboratory experiments have shown that the presence of 
some pesticides interfere with larval settlement of abalone (Morse et 
al. 1979) and can severely reduce algal growth (Silver and Riley 2001). 
The suitable salinity range for black abalone is from 30 to 35 parts 
per thousand (ppt), and the suitable pH range is 7.5-8.5. Ocean pH 
values that are outside of the normal range for seawater (i.e., pH less 
than 7.5 or greater than 8.5; http://www.marinebio.net/marinescience/02ocean/swcomposition.htm) may cause reduced growth and survivorship in 
abalone as has been observed in other marine gastropods (Shirayama and 
Thornton 2005). Specifically, with increasing uptake of atmospheric 
CO2 by the ocean, the pH of seawater becomes more acidic, 
which may decrease calcification rates in marine organisms and result 
in negative impacts to black abalone in at least two ways: (1) By 
disrupting an abalone's ability to maintain and grow its protective 
shell; and/or (2) by reducing abundance of coralline algae (and 
associated diatom films and bacteria), which may mediate larval 
settlement through chemical cues and support and provide food sources 
for newly settled abalone (Feely et al. 2004; Hall-Spencer et al. 
2008).
    (5) Suitable nearshore circulation patterns. Suitable circulation 
patterns are those that retain eggs, sperm, fertilized eggs, and ready-
to-settle larvae enough so that successful fertilization and settlement 
to suitable habitat can take place. Nearshore circulation patterns are 
controlled by a variety of factors including wind speed and direction, 
current speed and direction, tidal fluctuation, geomorphology of the 
coastline, and bathymetry of subtidal habitats adjacent to the 
coastline. Anthropogenic activities may also have the capacity to 
influence nearshore circulation patterns (e.g., intake pipes, sand 
replenishment, dredging, in water construction, etc.). These factors, 
in combination with the early life history dynamics of black abalone, 
may influence retention or dispersal rates of eggs, sperm, fertilized 
eggs, and ready-to-settle larvae (Siegel et al. 2008). Forces that 
disperse larvae offshore (i.e., by distances on the order of greater 
than tens of kilometers) may decrease the likelihood that abalone 
larvae will successfully settle to suitable habitats, given that: (a) 
Black abalone gamete and larval durations are relatively short; (b) 
larvae have little control over their position in the water column; and 
(c) ready-to-settle larvae require shallow, intertidal habitat for 
settlement. However, retention of larvae inshore due to bottom friction 
and minimal advective flows near kelp beds (the ``sticky water'' 
phenomenon; Wolanski and Spagnol 2000; Zeidberg and Hamner 2002) may 
increase the likelihood that larvae will successfully settle to 
suitable habitats.

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

    One of the first steps in the critical habitat designation process 
is to define the geographical area occupied by the species at the time 
of listing and to identify specific areas, within this geographically 
occupied area, that contain at least one PCE that may require special 
management considerations or protection. In the January 2009 final ESA 
listing rule, the range of black abalone was defined to extend from 
Crescent City (Del Norte County, California) to Cape San Lucas, Baja 
California, Mexico, including all offshore islands. The northern and 
southern extent of the range was determined based on museum specimens 
collected more than 10 years prior to the listing of the species 
(Geiger 2004). Because this range was based on dated records, and 
because we cannot designate critical habitat in areas outside of the 
United States (see 50 CFR 424.12(h)), the CHRT reconsidered the scope 
of the current (i.e., at the time of the final ESA listing) occupied 
range of black abalone. The CHRT examined data from ongoing monitoring 
studies along the California coast (Neuman et al. 2010) and literature 
references to determine that, within the United States, the 
geographical area currently occupied by black abalone extends from the 
Del Mar Landing Ecological Reserve in Sonoma County, California, to 
Dana Point, Orange County, California, on the mainland and includes the 
Farallon Islands, A[ntilde]o Nuevo Island, and all of the California 
Channel Islands. The CHRT noted that there are pockets of unoccupied 
habitat within this broader area of occupation (NMFS 2011a). Within 
this geographically occupied area, black abalone typically inhabit 
coastal and offshore island rocky intertidal and subtidal habitats from 
MHHW to depths of -6 m (relative to MLLW) (Leighton, 2005). The CHRT 
then identified ``specific areas'' within the geographical area 
occupied by the species that may be eligible for designation as 
critical habitat under the ESA. For an occupied specific area to be 
eligible for designation it must contain at least one PCE that may 
require special

[[Page 66820]]

management considerations or protection. For each occupied specific 
area, the CHRT reviewed the available data regarding black abalone 
presence and verified that each area contained one or more PCE(s) that 
may require special management considerations or protection. The CHRT 
determined that for all specific areas, unless otherwise noted, MHHW 
delineates the landward boundary, and the -6 m (relative to MLLW) 
bathymetric contour delineates the seaward boundary. The CHRT also 
agreed to consider naturally occurring geomorphological formations and 
size (i.e., area) to delineate the northern and southern boundaries of 
the specific areas. The CHRT intentionally aimed to delineate specific 
areas of similar sizes in order to minimize biases in the economic cost 
estimates for the specific areas.
    The CHRT scored and rated the relative conservation value of each 
occupied specific area. Areas rated as ``High'' were deemed to have a 
high likelihood of promoting the conservation of the species. Areas 
rated as ``Medium'' or ``Low'' were deemed to have a moderate or low 
likelihood of promoting the conservation of the species, respectively. 
The CHRT considered several factors in assigning the conservation value 
ratings, including the PCEs present, the condition of the PCEs, and the 
historical, present, and potential future use of the specific area by 
black abalone. These factors were scored by the CHRT and summed to 
generate a total score for each specific area, which was considered in 
the CHRT's evaluation and assignment of the final conservation value 
ratings. The final Biological Report (NMFS 2011a; available via our Web 
site at http://swr.nmfs.noaa.gov, via the Federal eRulemaking Web site 
at http://www.regulations.gov, or upon request--see ADDRESSES) 
describes in detail the methods used by the CHRT in their assessment of 
the specific areas and provides the biological information supporting 
the CHRT's assessment as well as the final conservation value ratings 
and justifications. The following paragraphs provide a brief 
description of the presence and distribution of black abalone within 
each specific area, additional detail regarding the CHRT's methods for 
delineating the specific areas, and the justification for assigning 
conservation scores. The following paragraphs also provide a brief 
description of the activities within each specific area that may 
threaten the quality of the PCEs, which are discussed in more detail in 
the Special Management Considerations or Protection section below and 
in the final Economic Report (NMFS 2011b). Activities that exacerbate 
global climate change (most notably fossil fuel combustion, which 
contributes to an increase in atmospheric CO2 levels and the 
indirect outcomes of sea level rise, sea surface temperature elevation, 
and ocean acidification) were identified as a concern for all of the 
specific areas. The Black Abalone Critical Habitat Designation maps (in 
the regulatory text section), as well as the final Biological Report 
(NMFS 2011a), show the location of each specific area considered for 
designation.
    Specific Area 1. Specific Area 1 includes the rocky intertidal and 
subtidal habitats from the Del Mar Landing Ecological Reserve to Bodega 
Head in Sonoma County, CA. Bodega Head is a small peninsula that 
creates a natural barrier between it and the coastline that lies to the 
east and south. In addition, the geological origin of Bodega Head 
differs from that of the coastline to the east and south of it. For 
these reasons, this location was chosen to delineate the southern 
boundary of Specific Area 1. The CHRT scored the conservation value of 
this area as ``High,'' because, although the best available data 
indicate that black abalone are rare in this area, the area may serve 
as a refuge from WS and contains high quality habitat that can support 
large numbers of black abalone. Based on the limited historical data 
available for this area (Geiger 2003; State Water Resources Control 
Board (SWRCB)1979a; pers. comm. with J. Sones, Bodega Marine Reserve 
(BMR), University of California Davis, on January 7, 2010), black 
abalone were encountered occasionally in some locations. Black abalone 
have been present in this area in low numbers since the Partnership for 
Interdisciplinary Studies of Coastal Oceans (PISCO) and UCSC began its 
long-term intertidal sampling program in the early 2000s. Black abalone 
are currently considered to be rare (i.e., difficult to find with some 
search effort and rarely seen at sampling sites; pers. comm. with J. 
Sones, BMR, on January 7, 2010). The CHRT expressed uncertainty 
regarding the area's ability to support early life stages of black 
abalone because historical and current data are lacking. However, the 
presence of good to excellent quality rocky substrate (e.g., 87 percent 
of rocky substrate available is consolidated), food resources, and 
water quality (SWRCB 1979a) and fair to good settlement habitat led the 
CHRT to conclude that the area could support a larger black abalone 
population comprised of multiple size classes. There are several 
activities occurring within this area that may threaten the quality of 
the PCEs including waste-water discharge, agricultural pesticide 
application and irrigation, construction and operation of tidal and 
wave energy projects, and activities that exacerbate global climate 
change (e.g., fossil fuel combustion). This area is at the limit of the 
species' northern range, which may explain the rarity of black abalone 
here. However, it is also one of the few areas along the California 
coast that has not yet been affected by WS and serves as a refuge from 
the disease. In addition, the CHRT was of the opinion that, should the 
population shift northward along the coast with predicted increases in 
sea surface temperatures, this area would provide suitable habitat to 
support large densities of black abalone.
    Specific Area 2. Specific Area 2 includes rocky intertidal and 
subtidal habitats from Bodega Head in Sonoma County, CA, to Point 
Bonita in Marin County, CA. Point Bonita was chosen to delineate the 
southern boundary of this specific area because it sits at the southern 
point of the Marin Headlands, the final promontory encountered as one 
moves south along the coast before reaching the entrance to San 
Francisco Bay. The CHRT scored the conservation value of this area as 
``High,'' because, although black abalone are considered rare in this 
area, the area may serve as a refuge from WS and contains high quality 
habitat that can support large numbers of black abalone. Historical 
presence of black abalone within this area is limited, but in locations 
where black abalone were observed, they were considered rare (Light 
1941; SWRCB 1980a and 1980b; pers. comm. with S. Allen, Point Reyes 
National Seashore, on January 6, 2010). Since the mid-2000s, Point 
Reyes National Seashore and Golden Gate National Recreation Area staff 
have observed black abalone at several locations, but their qualitative 
abundance is considered to be rare (see definition of rare above). This 
was confirmed in 2010 through surveys conducted by PISCO, NMFS, and 
UCSC. This area contains good to excellent quality consolidated rocky 
substrate (e.g., 71 percent of rocky substrate available is 
consolidated), food resources, and water quality, and fair to good 
settlement habitat. There are several activities occurring within this 
area that may threaten the quality of the PCEs, including: Sand 
replenishment, waste-water discharge, coastal development, non-native 
species introduction and management, activities

[[Page 66821]]

that exacerbate global climate change, and agricultural pesticide 
application and irrigation. This area is near the limit of the species' 
northern range, which may explain the rarity of black abalone here, but 
it is also one of the few areas along the California coast that has not 
yet been affected by WS. The CHRT was of the opinion that the area 
could support greater densities and multiple size classes of black 
abalone in the future if habitat changes (e.g., sea surface temperature 
rise) cause black abalone populations to shift northward along the 
coast.
    Specific Area 3. Specific Area 3 includes the rocky intertidal and 
subtidal habitats surrounding the Farallon Islands, San Francisco 
County, CA. This area is a group of islands and rocks found in the Gulf 
of the Farallones, 27 miles (43 km) west of the entrance to San 
Francisco Bay and 20 miles (32 km) south of Point Reyes. The islands 
are a National Wildlife Refuge and are currently managed by the USFWS, 
in conjunction with the Point Reyes Bird Observatory Conservation 
Science. The waters surrounding the islands are part of the Gulf of the 
Farallones NMS. The CHRT scored the conservation value of this area as 
``Medium,'' because the area contains high quality habitat to support 
black abalone populations and has not yet been affected by WS. 
Historical presence of black abalone in intertidal habitats surrounding 
the Farallon Islands was noted in the late 1970s (SWRCB 1979c) and 
again in the early 1990s (E. Ueber, NPS (retired), unpublished data). 
Black abalone have been observed in Specific Area 3 during limited 
surveys conducted since 2005 (pers. comm. with Jan Roletto, Gulf of the 
Farallones NMS, on February 27, 2010). Researchers have confirmed that 
all of the PCEs are present and of good to excellent quality, and 
adverse impacts due to anthropogenic activities on these isolated 
islands are relatively low. However, the CHRT expressed concern over 
the following activities that may affect habitat features important for 
black abalone conservation and recovery, including: Waste-water 
discharge, agricultural pesticide application and irrigation, non-
native species introduction and management, oil and chemical spills and 
clean-up, and activities that exacerbate global climate change.
    Specific Area 4. Specific Area 4 extends from the land mass framing 
the southern entrance to San Francisco Bay to Moss Beach, San Mateo 
County, CA, and includes all rocky intertidal and subtidal habitats 
within this area. The CHRT scored the conservation value of this area 
as ``Medium,'' because, although black abalone are present in the area, 
the habitat is of lower quality compared to the specific areas to the 
north due to an abundance of sand and steep and narrow habitats that 
are not likely to support black abalone. There is limited historical 
and current information regarding black abalone occurrence and 
abundance along this stretch of the coast. At the one site where black 
abalone were noted historically, they were considered to be rare (Light 
1941). PISCO and UCSC researchers found ten individuals within this 
specific area during limited surveys conducted since 2007. The CHRT 
considered the PCEs within the area to be of fair to good quality. 
While the CHRT was uncertain about this area's ability to support early 
life stages because data are lacking, it was more confident that the 
area can support the long-term survival of juveniles and adults based 
on several lines of evidence from historical records (Light 1941; pers. 
comm. with J. Sones, BMR, on January 7, 2010; pers. comm. with M. 
Miner, UCSC, on February 11-12, 2010). The CHRT noted that the 
following activities may threaten the quality of the PCEs within this 
specific area: Sand replenishment, waste-water discharge, coastal 
development, agricultural pesticide application and irrigation, non-
native species introduction and management, oil and chemical spills and 
clean-up, and activities that exacerbate global climate change.
    Specific Area 5. Specific Area 5 includes rocky intertidal and 
subtidal habitats from Moss Beach to Pescadero State Beach, San Mateo 
County, CA. This area was considered separately from Specific Area 4, 
even though each area alone is smaller in size compared to the majority 
of the other specific areas and both Specific Areas 4 and 5 were given 
a conservation value of ``Medium.'' The reasons for separate 
consideration were that: (1) The CHRT team viewed the PCEs in Specific 
Area 5 as being of lower quality overall than those contained within 
Specific Area 4; and (2) the level of certainty the CHRT had in 
evaluating the conservation value of Specific Area 4 was higher than 
that for Specific Area 5. The CHRT scored the conservation value of 
this area as ``Medium,'' recognizing that all of the PCEs were present 
in the area and their current quality ranged from poor to good. The 
CHRT also recognized that this area lies to the north of areas that 
have experienced population declines, and thus the habitat in this area 
may still provide a refuge from the devastating effects of WS. The CHRT 
expressed a high degree of uncertainty regarding the area's ability to 
support early life stages and long-term survival of juveniles and 
adults, however, because limited surveys have only been conducted (by 
Point Reyes National Seashore and Golden Gate National Recreation Area 
researchers as well as by PISCO, NMFS, and UCSC) in the area since the 
species was listed in 2009 and only one black abalone was found during 
these surveys. Waste-water discharge, oil and chemical spills and 
clean-up, and activities that exacerbate global climate change may 
compromise the quality of the PCEs within this specific area.
    Specific Area 6. Specific Area 6 includes the rocky intertidal and 
subtidal habitats surrounding A[ntilde]o Nuevo Island, San Mateo 
County, CA. The island lies 50 miles (74 km) south of San Francisco Bay 
and, 200 years ago, it was connected to the mainland by a narrow 
peninsula. Today it is separated from the mainland by a channel that 
grows wider with each winter storm. A[ntilde]o Nuevo Island is managed 
by the UCSC Long Marine Laboratory under an agreement with the 
California Department of Parks and Recreation. The A[ntilde]o Nuevo 
Island Reserve, including the island and surrounding waters, comprises 
approximately 25 of the 4,000 acres (10 of 1,600 ha) of the A[ntilde]o 
Nuevo State Reserve, the rest of which is on the mainland opposite the 
island. The CHRT scored the conservation value of this area as 
``High,'' because the area contains good habitat to support black 
abalone and, although surveys have not been conducted in this area 
since the mid-1990s, historical data indicate the area supported high 
densities of black abalone. Black abalone were common in intertidal 
habitats surrounding the island during surveys conducted from 1987-
1995, with mean densities ranging from 6-8 per m\2\ (Tissot 2007; 
VanBlaricom et al. 2009). PISCO and UCSC reestablished monitoring on 
A[ntilde]o Nuevo Island in 2010. In a limited search of one of the 
areas previously sampled by Tissot, approximately 50 black abalone 
(individuals ranged between 60-180mm in size) were found. The CHRT 
verified that good to excellent quality rocky substrate, food 
resources, and water quality, and fair to good settlement habitat exist 
at A[ntilde]o Nuevo Island, but expressed uncertainty regarding whether 
the area currently supports early life stages and long-term survival of 
juveniles and adults. The impact of global climate change on the 
habitat features important to black

[[Page 66822]]

abalone was the concern identified within this specific area.
    Specific Area 7. Specific Area 7 includes the rocky intertidal and 
subtidal habitats from Pescadero State Beach, San Mateo County, CA, to 
Natural Bridges State Beach, Santa Cruz County, CA. Situated to the 
north of Monterey Bay, Natural Bridges State Beach marks the last 
stretch of rocky intertidal habitat before reaching the primarily fine-
to medium-grained sand beaches of Monterey Bay (http://www.sanctuarysimon.org/monterey/sections/beaches/b_overview_map.php). 
The CHRT scored the conservation value of this area as ``High,'' 
because the area contains good to excellent quality habitat that 
historically supported and currently supports recruitment and juvenile 
and adult survival. Historical data are limited, but the information 
available suggests that black abalone were common at a couple of sites 
within this specific area in the late 1970s and early 1980s and rare at 
the majority of sites (unpublished data available online at: http://www.sanctuarysimon.org/monterey/sections/rockyShores/project_info.php?projectID=100281&sec=rs (accessed June 7, 2011)). PISCO and 
UCSC began intertidal black abalone surveys in this area in 1999 and, 
at that time, qualitative abundance ranged from rare to common, 
depending on the specific site. Sampling by PISCO, the MBNMS, Sea 
Grant, and UCSC within the last 6 years indicates that black abalone 
are present and common at about 50 percent of the sites within this 
area, but that abundance may be declining at a few of these sites. At 
the other sites, black abalone are either present, but rare, or 
completely absent. The CHRT confirmed that all of the PCEs are present 
and of good to excellent quality here. PISCO data (Raimondi et al. 
2002; Tissot 2007) provide evidence that the area supports early life 
stages (i.e., small individuals (< 30mm) are present currently; see 
definition in NMFS 2011a) and long-term survival of juveniles and 
adults (i.e., there is stable or increasing abundance, and multiple 
size classes of black abalone evident in length-frequency 
distributions; see definition in NMFS 2011a). The CHRT identified the 
following activities that may threaten the quality of habitat features 
essential to black abalone within this area: Sand replenishment, waste-
water discharge, coastal development, sediment disposal activities 
(associated with road maintenance, repair, and construction), 
agricultural pesticide application and irrigation, oil and chemical 
spills and clean-up, construction and operation of desalination plants, 
vessel grounding incidents and response, non-native species 
introduction and management, kelp harvesting, and activities that 
exacerbate global climate change.
    Specific Area 8. Specific Area 8 includes rocky intertidal and 
subtidal habitats from Pacific Grove to Prewitt Creek, Monterey County, 
CA. Pacific Grove marks the first stretch of rocky intertidal habitat 
to the south of the fine-to medium-grained sand beaches of Monterey Bay 
(http://www.sanctuarysimon.org/monterey/sections/beaches/b_overview_map.php). The CHRT scored the conservation value of this area as 
``High,'' because the area contains high quality habitat that has 
historically supported and currently supports black abalone recruitment 
and juvenile and adult survival. Surveys conducted prior to 2004 
indicated that black abalone encompassing a range of sizes were present 
and common at all of the sampled sites within this area (SWRCB1979b and 
1979d; Raimondi et al. 2002; Tissot 2007). More recent information 
gathered within the last 6 years by PISCO, MBNMS, Sea Grant, and UCSC 
indicates that black abalone encompassing a range of sizes remain at 
all sites sampled and are considered common at 93 percent of the sites. 
The CHRT confirmed that all of the PCEs are present and of good to 
excellent quality, but may be threatened by waste-water discharge, 
coastal development, agricultural pesticide application and irrigation, 
oil and chemical spills and clean-up, construction and operation of 
desalination plants, kelp harvesting, and activities that exacerbate 
global climate change. PISCO data (Raimondi et al. 2002; Tissot 2007) 
provide evidence that the area supports early life stages and long-term 
survival of juveniles and adults (see NMFS 2011a for details).
    Specific Area 9. Specific Area 9 includes rocky intertidal and 
subtidal habitats from Prewitt Creek, Monterey County, CA, to Cayucos, 
San Luis Obispo County, CA. Situated on the northern edge of Estero 
Bay, Cayucos marks the last stretch of rocky intertidal habitat before 
reaching the primarily fine-to medium-grained sand beaches of Estero 
Bay. The CHRT scored the conservation value of this area as ``High,'' 
because the area contains high quality habitat that has historically 
supported and currently supports black abalone recruitment and juvenile 
and adult survival. BOEMRE, MBNMS, PISCO, Sea Grant, and UCSC 
established long-term monitoring sites within this area between 1995 
and 2008. Surveys conducted prior to 2004 indicated that black abalone 
of a range of sizes were present and common at all but one of the sites 
surveyed within this area (Raimondi et al. 2002; Tissot 2007). More 
recent information gathered by PISCO and UCSC indicates that black 
abalone of a range of sizes are present at all sites within the area 
and are commonly found at 57 percent of the sites, occasionally found 
with some search effort at 14 percent of the sites, and rarely found at 
29 percent of the sites. The CHRT confirmed that all of the PCEs are 
present and of good to excellent quality. The area supports early life 
stages and long-term survival of juveniles and adults (see NMFS 2011a 
for details). However, the CHRT also noted that PISCO researchers have 
reported recent population declines at 57 percent of the sites sampled 
within this area and in at least one site, the population decline has 
been severe. Activities that may threaten the habitat features 
important for black abalone conservation are: waste-water discharge, 
agricultural pesticide application and irrigation, oil and chemical 
spills and clean-up, construction and operation of desalination plants, 
kelp harvesting, and activities that exacerbate global climate change.
    Specific Area 10. Specific Area 10 includes rocky intertidal and 
subtidal habitats from Monta[ntilde]a de Oro State Park in San Luis 
Obispo County, CA, to just south of Government Point, Santa Barbara 
County, CA. Monta[ntilde]a de Oro State Park is the first stretch of 
rocky intertidal habitat encountered to the south of the sandy beaches 
of Estero Bay, thus it was chosen to delineate the northern boundary of 
this specific area. The southern boundary of this area, Government 
Point, is where the Santa Barbara Channel meets the Pacific Ocean, the 
mostly north-south trending portion of coast transitions to a mostly 
east-west trending part of the coast, and a natural division between 
Southern and Central California occurs. For these reasons, it was 
chosen as the southern boundary of this specific area. The CHRT scored 
the conservation value of this area as ``High,'' because the area 
contains good habitat to support black abalone populations. However, 
declines in black abalone populations have occurred at some survey 
sites due to WS, resulting in changes to the habitat in the absence of 
black abalone. Historical data indicates that black abalone were 
present at 100 percent of the sites sampled within this specific area 
and that they were considered to be common at a majority of the sites 
sampled (Raimondi et al. 2002; Tissot 2007). BOEMRE and University of 
California Santa Barbara (UCSB)

[[Page 66823]]

established long-term monitoring sites within this area in 1991, which 
have been biannually monitored to the present, and are currently 
monitored by BOEMRE and UCSC. PISCO and BOEMRE added biodiversity sites 
(sites established under the Coastal Biodiversity Survey to measure 
diversity and abundance of algal and invertebrate communities living on 
the rocky intertidal; http://cbsurveys.ucsc.edu/) in 2001, which are 
currently monitored periodically by PISCO and UCSC+. Since 2005, 
population declines have been noted at most locations within this 
specific area, with local extinction occurring in at least one sampling 
site. Despite declines in abundance and lack of evidence of recent 
recruitment in this specific area, the CHRT confirmed that the PCEs 
range from fair to excellent quality along this stretch of the 
California coast. The CHRT identified several activities that may 
threaten the quality of the PCEs within this specific area, including: 
In-water construction, waste-water discharge, coastal development, 
agricultural pesticide application and irrigation, construction and 
operation of power generating and desalination plants, mineral and 
petroleum exploration and extraction, non-native species introduction 
and management, kelp harvesting and activities that exacerbate global 
climate change.
    Specific Area 11. Specific Area 11 includes rocky intertidal and 
subtidal habitats surrounding the Palos Verdes Peninsula and extends 
from the Palos Verdes/Torrance border to Los Angeles Harbor in 
southwestern Los Angeles County, CA. This small peninsula is one of 
only two areas within Santa Monica Bay that contain intertidal and 
subtidal rocky substrate suitable for supporting black abalone. The 
limited extent of rocky intertidal habitat is what defines the northern 
and southern boundaries of this specific area. The CHRT scored the 
conservation value of this area as ``Medium.'' Currently, there is no 
evidence that this area supports recruitment, and, given the extremely 
low numbers of juveniles and adults, it is suspected that the area does 
not support long-term persistence of this population (Miller and 
Lawrenz-Miller 1993; pers. comm. with J. Kalman, Cabrillo Marine 
Aquarium (CMA), on February 12, 2010; pers. comm. with B. Allen, 
California State University Long Beach (CSULB), on February 5, 2010). 
However, many of the habitat features important to black abalone are 
still present and are in fair to excellent condition, which led to the 
CHRT's conclusion that this area is of ``Medium'' conservation value. 
Long-term intertidal monitoring on the Peninsula conducted by the CSULB 
and the CMA began in 1975, and, at that time, densities ranged from 2 
to 7 per m\2\. Densities declined throughout the 1980s, and by the 
1990s black abalone were locally extinct at a majority of sampling 
sites within the area. Good to high quality rocky substrate and food 
resources and fair to good settlement habitat persist within this area. 
The CHRT recognized that water quality within this area is in poor 
condition. Unlike the majority of the other areas where significant 
declines in black abalone abundance have occurred recently (since the 
1980s) due to WS, declines in this area occurred prior to the onset of 
WS and have been attributed to the combined effects of significant El 
Ni[ntilde]o events and poor water quality resulting from large-volume 
domestic sewage discharge by Los Angeles County during the 1950s and 
1960s (Leighton 1959; Cox 1962; Young 1964; Miller and Lawrenz-Miller 
1993). From the mid-1970s to 1997, however, improved wastewater 
treatment processes resulted in an 80 percent reduction in the 
discharge of total suspended solids from the White Point outfall. That, 
along with kelp replanting efforts in the 1970s, resulted in a 
remarkable increase in the kelp canopy from a low of 5 acres (2 
hectares) in 1974 to a peak of more than 1,100 acres (445 hectares) in 
1989. More recently, erosion and sedimentation have threatened the kelp 
beds off the Palos Verdes Peninsula. Since 1980, an active landslide at 
Portuguese Bend on the Palos Verdes Peninsula has supplied more than 
seven times the suspended solids as the Whites Point outfall (Los 
Angeles County Sanitation District 1997). The activities that may 
threaten the habitat features important to the conservation of black 
abalone are sand replenishment, waste-water management, non-native 
species introduction and management, kelp harvesting, and activities 
that exacerbate global climate change.
    Specific Area 12. Specific Area 12 includes rocky intertidal and 
subtidal habitats from Corona Del Mar State Beach to Dana Point in 
Orange County, CA. The limited extent of rocky intertidal habitat is 
what defines the northern and southern boundaries of this specific 
area. The CHRT scored this area of ``Low'' conservation value primarily 
because the quality of the PCEs is relatively low and because black 
abalone have not been identified at regularly monitored sampling 
locations since 2005. Historical information for this area indicates 
that black abalone were present along this stretch of coastline, and 
limited abundance information suggests densities of less than one per 
m\2\ (Tissot 2007; pers. comm. with S. Murray, California State 
University Fullerton (CSUF), on January 8, 2010) in the late 1970s and 
early 1980s. Thus, there is uncertainty regarding whether these 
populations were viable at that time. By 1986, local extinction of 
black abalone at one sampling location within this specific area was 
reported (Tissot 2007). The CSUF began monitoring four sites within 
this area in 1996, and no black abalone have been observed at these 
locations since 2005. A putative black abalone was observed at one 
additional location in January, 2010. The area contains rocky substrate 
(88 percent of rocky substrate is consolidated) and food resources that 
are in fair to good condition, but settlement habitat and water quality 
are in poor to fair condition. Abundance of crustose coralline algae is 
limited in the rocky intertidal area and the extirpation of abalone 
from the habitat has resulted in a shift in its biogenic structure, 
rendering the area less suitable for settling abalone larvae. Water 
quality may be tainted by waste-water discharge, agricultural pesticide 
application and irrigation, construction and operation of desalination 
plants, and changes in the thermal and chemical properties of sea water 
through global climate change. Food resources within this area may be 
impacted by kelp harvesting activities.
    Specific Areas 13-16. Specific Areas 13-16 include the rocky 
intertidal and subtidal habitats surrounding the Northern California 
Channel Islands: San Miguel Island (Specific Area 13), Santa Rosa 
Island (Specific Area 14), and Santa Cruz Island (Specific Area 15) in 
Santa Barbara County, CA, and Anacapa Island (Specific Area 16) in 
Ventura County, CA. The Northern Channel Islands lie just off 
California's southern coast in the Santa Barbara Channel and remain 
somewhat isolated from mainland anthropogenic impacts. In 1980, 
Congress designated these islands and approximately 100,000 acres (405 
km\2\) of submerged land surrounding them as a national park because of 
their unique natural and cultural resources. This area was augmented by 
the designation of the Channel Islands NMS later that year. The 
sanctuary boundaries stretch 6 nautical miles (11 km) offshore, 
including their interconnecting channels. Channel Islands National Park 
(CINP) began an intertidal monitoring

[[Page 66824]]

program on San Miguel, Santa Rosa, and Anacapa islands in the early to 
mid-1980s, while monitoring on Santa Cruz Island did not begin until 
1994. The CHRT scored the conservation value of these areas as 
``High,'' recognizing that although the black abalone populations in 
these areas have experienced declines due to WS and currently lack 
multiple size classes, the habitat remains in fair to excellent 
condition and there is evidence of small-scale recruitment at a few 
locations. Historically, black abalone were present and common at 76 
percent of the sampling locations within these specific areas (SWRCB 
1979f; SWRCB 1982a and 1982b; Tissot, 2007; pers. comm. with Dan 
Richards, NPS, on February 11-12, 2010). Severe population declines 
began in 1986. By the 1990s, declines in abundance of >99 percent were 
observed at all of the CINP sampling sites. Since 2005, abundance at 
most locations remains depressed; however, at a small number of sites 
abundance has increased and repeated recruitment events have occurred. 
These specific areas contain fair to excellent rocky substrate, food 
resources, settlement habitat and water quality, despite the fact that 
abundance has declined dramatically since the 1980s. Because these 
islands are somewhat remote, there is a limited list of activities that 
may threaten the PCEs in these specific areas and they include: Oil and 
chemical spills and clean-up on Santa Cruz Island; waste-water 
discharge and agricultural pesticide application on Anacapa Island and 
kelp harvesting and activities that exacerbate global warming.
    Specific Areas 17-20. Specific Areas 17-20 include the rocky 
intertidal and subtidal habitats surrounding the Southern California 
Channel Islands: San Nicolas Island (Specific Area 17) in Ventura 
County, CA, Santa Barbara Island (Specific Area 18) in Santa Barbara 
County, CA, and Santa Catalina Island (Specific Area 19) and San 
Clemente Island (Specific Area 20) in Los Angeles County, CA. The 
Southern Channel Islands are part of the same archipelago that includes 
the Northern Channel Islands. San Nicolas and San Clemente islands have 
been owned and operated by the U.S. Navy since the early 1930s. These 
islands accommodate a variety of Navy training, testing, and evaluation 
activities, including naval surface fire support, air-to-ground 
ordnance delivery operations, special operations, surface weapon launch 
support, and radar testing. Santa Barbara Island and its surrounding 
waters out to six nautical miles (11km) were designated as part of the 
CINP and the Channel Islands NMS in 1980. Since 1972, Santa Catalina 
Island has been owned primarily by a nonprofit organization, the 
Catalina Island Conservancy, whose mission is to preserve and conserve 
the island.
    The CHRT scored the conservation value of San Nicolas Island as 
``High,'' because the area contains good to excellent habitat that 
supports black abalone recruitment and juvenile and adult survival, 
despite severe declines in black abalone populations due to WS. Since 
1981, the U. S. Geological Survey (USGS) and the University of 
Washington (UW) have monitored multiple sites around San Nicolas 
Island. Black abalone were considered common at all of the sites up 
until approximately 1993, when mass mortalities due to WS swept through 
the island (VanBlaricom et al. 2009). Since 2005, slight increases in 
abundance have been observed at 33 percent of the sampled sites and 
moderate increases in abundance at one site. At 55 percent of the 
sampled sites, abundance remains low with densities less than 2 percent 
of their former values prior to population declines. Recent repeated 
recruitment events have occurred at a few sites as evidenced by the 
presence of small individuals (< 30 mm; G. VanBlaricom, USGS and UW, 
unpublished data). Thus, this specific area supports early life stages. 
However, the long-term survival of juveniles and adults is 
questionable, given that relative abundance levels remain low and 
evidence of multiple size classes is still lacking at the majority of 
sampling sites. All of the PCEs are present and are of good to 
excellent quality. The CHRT identified the following activities that 
may compromise the quality of habitat features essential to the 
conservation of black abalone within this specific area: In-water 
construction, waste-water management, coastal development, construction 
and operation of desalination plants, kelp harvesting, and activities 
that exacerbate global climate change.
    The CHRT scored the conservation value of Santa Barbara Island as 
``Medium,'' because, although the PCEs are of fair to excellent 
quality, there is a lack of evidence of recruitment both historically 
and currently. In addition, Santa Barbara Island has very low numbers 
of juvenile and adult black abalone. CINP began limited sampling at 
Santa Barbara Island in 1985. At that time black abalone were present 
on the island, and their qualitative abundance levels ranged from rare 
to common. Since 2005, black abalone have disappeared from one sampling 
site and remain present, but rare, at another. The CHRT considered the 
rocky substrate and settlement habitat to be of fair to good quality, 
food resources to be of poor to fair quality, and water quality to be 
good to excellent. The only activities that threaten the PCEs and that 
may require special management on Santa Barbara Island are those that 
alter the thermal and chemical properties of sea water through global 
climate change, most notably activities involving fossil fuel 
combustion.
    The CHRT scored the conservation value of Catalina Island as 
``High,'' despite uncertainty in the demographic history and current 
status of black abalone populations on the island, because the habitat 
is in good condition, has supported black abalone populations 
historically, and could support black abalone populations currently and 
in the future. Surveys conducted around Catalina Island in the 1960s, 
1970s, and 1980s confirm that black abalone were present at a variety 
of locations around the island, but size distribution and abundance 
information are lacking. The CINP and UCSB established a long-term 
sampling site at Bird Rock in 1982, and a second site was added by UCSB 
through California Coastal Commission funding in 1995. They are 
currently monitored by Tatman Foundation and UCSB. Since the 1990s, 
black abalone have not been encountered at these sites. All of the PCEs 
are present and are in fair to excellent condition. There is a great 
deal of uncertainty regarding whether the island supports early life 
stages and the long-term survival of juveniles and adults because data 
are lacking. Several activities may compromise the generally good 
habitat quality surrounding Catalina Island, including in-water 
construction, waste-water discharge, coastal development, oil and 
chemical spills and clean-up, construction and operation of 
desalination plants and tidal and wave energy projects, kelp 
harvesting, and activities that exacerbate global climate change.
    The CHRT scored the conservation value of San Clemente Island as 
``High,'' recognizing that the habitat in this area is in good 
condition and likely supported high densities of black abalone 
historically (pre-WS). San Clemente Island was surveyed by the CDFG 
from 1988-1993. As late as October 1988, black abalone were present and 
populations were robust at a number of locations, but by 1990, 
population declines due to WS were underway (CDFG 1993). Densities 
decreased to less than one per m\2\ by 1993 (CDFG 1993). The Navy 
initiated a San Clemente Island-wide investigation to determine the 
current extent of

[[Page 66825]]

remaining black abalone populations on the island in 2008. During 30-
minute timed searches at 61 locations that each covered approximately 
1500 m\2\ of potential black abalone habitat, ten black abalone (all 
greater than 100 mm in size) were identified and all but two of the 
animals were solitary individuals (Tierra Data Inc. 2008). The Navy 
conducted additional black abalone surveys in January and March of 
2011, finding an additional 17 black abalone ranging in size from 80 to 
190 mm (Navy 2011). All of the PCEs are present and are in good to 
excellent condition, despite the fact that there is no evidence of 
recruitment and the island currently does not support long-term 
survival of adults. In order to protect these high quality PCEs and 
promote the conservation of black abalone, certain activities may 
require modification, such as in-water construction, coastal 
development, kelp harvesting, and activities that exacerbate global 
climate change.

Special Management Considerations or Protection

    Joint NMFS and USFWS regulations at 50 CFR 424.02(j) define 
``special management considerations or protection'' to mean ``any 
methods or procedures useful in protecting physical and biological 
features of the environment for the conservation of listed species.'' 
The CHRT identified several threats to black abalone PCEs and the areas 
in which those threats occur. NMFS and the CHRT then determined whether 
at least one PCE in each specific area may require special management 
considerations or protection because of a threat or threats. NMFS and 
the CHRT worked together to identify activities that could be linked to 
threats, and when possible, identified ways in which activities might 
be altered in order to protect the quality of the PCEs. These 
activities are described briefly in the following paragraphs and Table 
1. These activities are documented more fully in the final Biological 
Report (NMFS 2011a) and final Economic Analysis Report (NMFS 2011b), 
which provide a description of the potential effects of each category 
of activities on the PCEs.
    The major categories of activities that may affect black abalone 
habitat include: (1) Coastal development (e.g., construction or 
expansion of stormwater outfalls, residential and commercial 
construction); (2) in-water construction (e.g., coastal armoring, pier 
construction, jetty or harbor construction, pile driving); (3) sand 
replenishment or beach nourishment activities; (4) dredging and 
disposal of dredged material; (5) agricultural activities (e.g., 
irrigation, livestock farming, pesticide application); (6) NPDES 
activities and activities generating non-point source pollution; (7) 
sediment disposal activities associated with road maintenance, repair, 
and construction (previously called ``sidecasting''); (8) oil and 
chemical spills and clean-up activities; (9) mineral and petroleum 
exploration or extraction activities; (10) power generation operations 
involving water withdrawal from and discharge to marine coastal waters; 
(11) construction and operation of alternative energy hydrokinetic 
projects (tidal or wave energy projects); (12) construction and 
operation of desalination plants; (13) construction and operation of 
liquefied natural gas (LNG) projects; (14) vessel grounding incidents 
and response; (15) non-native species introduction and management (from 
commercial shipping and aquaculture); (16) kelp harvesting activities; 
and (17) activities that exacerbate global climate change (e.g., fossil 
fuel combustion).
    The final Biological Report (NMFS 2011a) and final Economic 
Analysis Report (NMFS 2011b) provide a description of the potential 
effects of each category of activities and threats on the PCEs. For 
example, activities such as in-water construction, coastal development, 
dredging and disposal, sediment disposal (``sidecasting''), mineral and 
petroleum exploration and extraction, and sand replenishment may result 
in increased sedimentation, erosion, turbidity, or scouring in rocky 
intertidal and subtidal habitats and may have adverse impacts on rocky 
substrate, settlement habitat, food resources, water quality, or 
nearshore circulation patterns. The construction of proposed energy and 
desalination projects along the coast would result in increased in-
water construction and coastal development. The operation of these 
energy projects and desalination projects may also increase local water 
temperatures with the discharge of heated effluent, introduce elevated 
levels of certain metals or contaminants into the water, or alter 
nearshore water circulation patterns. The discharge of contaminants 
from activities such as NPDES activities may affect water quality, food 
resources (by affecting the algal community), and settlement habitat 
(by affecting the ability of larvae to settle). Introduction of non-
native species may also affect food resources and settlement habitat if 
these species alter the natural algal communities. Shifts in water 
temperatures and sea level related to global climate change may also 
affect black abalone habitat. For example, coastal water temperatures 
may increase to levels above the optimal range for black abalone, and 
sea level rise may alter the distribution of rocky intertidal habitats 
along the California coast.

 Table 1--Summary of Activities That May Affect Black Abalone PCEs, Including: the Area(s) in Which the Activity
Is Located, the PCE(s) the Activity Could Affect and the Nature of That Threat, the ESA Section 7 Nexus for That
 Activity, and the Possible Modifications to the Activity Due to the Black Abalone Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                                                                                   Possible
            Activity                Specific areas     PCE and nature of    Section 7 nexus   modification(s) to
                                                          the threat                             the activity
----------------------------------------------------------------------------------------------------------------
Dredging and disposal of dredged  Unknown...........  Rocky substrate     The U.S. Army       Restrictions on
 material.                                             PCE--Dredging       Corps of            the spatial and
                                                       that does occur     Engineers (USACE)   temporal extent
                                                       near rocky          issues permits      of dredging
                                                       intertidal and      pursuant to         activities and
                                                       subtidal areas      Section 404 of      the deposition of
                                                       may increase        the Clean Water     dredge spoil.
                                                       sedimentation       Act (CWA), among    Requirements to
                                                       into the rocky      several others.     monitor the
                                                       habitat. A                              effects of dredge
                                                       variety of                              spoil deposition
                                                       harmful                                 on black abalone
                                                       substances,                             habitat.
                                                       including heavy
                                                       metals, oil,
                                                       tributyltin
                                                       (TBT),
                                                       polychlorinated
                                                       biphenyls (PCBs)
                                                       and pesticides,
                                                       can be absorbed
                                                       into the seabed
                                                       sediments and
                                                       contaminate them.

[[Page 66826]]

 
                                                      Water quality PCE--
                                                       Dredging and
                                                       disposal
                                                       processes can
                                                       release
                                                       contaminants into
                                                       the water column,
                                                       affecting water
                                                       quality, and
                                                       making them
                                                       available to be
                                                       taken up by
                                                       animals and
                                                       plants, which
                                                       could cause
                                                       morphological or
                                                       reproductive
                                                       disorders.
In-water construction...........  10, 17, 19, and 20  Rocky substrate     The USACE issues    Bank stabilization
                                                       PCE--Increased      permits pursuant    measures and more
                                                       sedimentation, a    to Section 10 of    natural erosion
                                                       side effect of      the Rivers and      control.
                                                       some in-water       Harbors Act of
                                                       construction        1899 (RHA) among
                                                       projects, can       several others.
                                                       reduce the          Although in-water
                                                       quality and/or      construction
                                                       quantity of rocky   projects are
                                                       substrate.          commonly
                                                                           undertaken by
                                                                           private or non-
                                                                           Federal parties,
                                                                           in most cases
                                                                           they must obtain
                                                                           a USACE permit.
                                                      Food resources
                                                       PCE--The presence
                                                       of in-water
                                                       structures may
                                                       affect black
                                                       abalone habitat
                                                       by affecting the
                                                       distribution and
                                                       abundance of
                                                       algal species
                                                       that provide food
                                                       for abalone or
                                                       the distribution
                                                       and abundance of
                                                       other intertidal
                                                       invertebrate
                                                       species.
                                                      Settlement habitat
                                                       PCE--Changes in
                                                       algal communities
                                                       could affect
                                                       settlement of
                                                       larval abalone
                                                       (believed to be
                                                       influenced by the
                                                       presence of
                                                       coralline algae).
                                                      Nearshore
                                                       circulation
                                                       pattern PCE--
                                                       Nearshore
                                                       circulation
                                                       patterns may
                                                       affect intertidal
                                                       communities by
                                                       providing
                                                       stepping-stones
                                                       between
                                                       populations,
                                                       resulting in
                                                       range extensions
                                                       for species with
                                                       limited dispersal
                                                       distances.
                                                       Artificial
                                                       structures, like
                                                       breakwaters, may
                                                       also alter the
                                                       physical
                                                       environment by
                                                       reducing wave
                                                       action and
                                                       modifying
                                                       nearshore
                                                       circulation and
                                                       sediment
                                                       transport..
Sand replenishment..............  2, 4, 7, and 11...  Rocky substrate     The USACE is        Monitor the water
                                                       PCE--Sand           responsible for     quality
                                                       movements could     administering       (turbidity)
                                                       cover up rocky      Section 404         during and after
                                                       substrate thereby   permits under the   the project.
                                                       reducing its        CWA, which are      Place a buffer
                                                       quality and/or      required for sand   around pertinent
                                                       quantity.           replenishment       areas within
                                                                           activities.         critical habitat
                                                                                               that sand
                                                                                               replenishment
                                                                                               projects have to
                                                                                               work around.
                                                                                               Ensure any dredge
                                                                                               discharge
                                                                                               pipelines are
                                                                                               sited to avoid
                                                                                               rocky intertidal
                                                                                               habitat.
                                                                                               Construct
                                                                                               training dikes to
                                                                                               help retain the
                                                                                               sand at the
                                                                                               receiving
                                                                                               location, which
                                                                                               should minimize
                                                                                               movement of sand
                                                                                               into the rocky
                                                                                               intertidal areas.

[[Page 66827]]

 
NPDES-permitted activities......  1, 2, 3, 4, 5, 7,   Food resources      Issuance of CWA     Where Federal
                                   8, 9, 10, 11, 12,   PCE--Sewage         permits. State      permits are
                                   16, 17, and 19..    outfalls may        water quality       necessary, ensure
                                                       affect food         standards are       discharge meets
                                                       resources by        subject to an ESA   standards
                                                       causing light       section 7           relevant for
                                                       levels to be        consultation        black abalone.
                                                       reduced to levels   between NMFS and   Require measures
                                                       too low to          the EPA and NMFS    to prevent or
                                                       support             can review          respond to a
                                                       Macrocystis         individual NPDES    catastrophic
                                                       germination and     permit              event (i.e.,
                                                       growth.             applications for    using best
                                                       Eutrophication      impacts on ESA-     technology to
                                                       occurs around       listed species.     avoid unnecessary
                                                       southern                                discharges).
                                                       California sewage
                                                       outfalls where
                                                       phytoplankton
                                                       crops and primary
                                                       production exceed
                                                       typical levels
                                                       and approach
                                                       values
                                                       characteristic of
                                                       upwelling
                                                       periods.
                                                       Discharge that
                                                       results in
                                                       reduced ocean pH
                                                       could reduce the
                                                       abundance of
                                                       coralline algae.
                                                      Water quality PCE--
                                                       Exposure to heavy
                                                       metals can affect
                                                       growth of marine
                                                       organisms, either
                                                       promoting or
                                                       inhibiting growth
                                                       depending on the
                                                       combination and
                                                       concentrations of
                                                       metals. There is
                                                       little
                                                       information on
                                                       these effects on
                                                       black abalone,
                                                       however.
                                                       Discharge that
                                                       results in ocean
                                                       pH values outside
                                                       the normal range
                                                       for seawater
                                                       (e.g., typically
                                                       ranging from 7.5
                                                       to 8.5) may cause
                                                       reduced growth
                                                       and survival of
                                                       abalone, as has
                                                       been observed in
                                                       other marine
                                                       gastropods
                                                       (Shirayama and
                                                       Thornton 2005).
Coastal development.............  2, 4, 7, 8, 10,     Rocky substrate     The USACE permits   Stormwater
                                   17, 19, and 20.     PCE--Increased      construction or     pollution
                                                       sediment load       expansion of        prevention plan;
                                                       that may result     stormwater          permanent
                                                       from urbanization   outfalls,           stormwater site
                                                       of the coast and    discharge or fill   plan; and
                                                       of watersheds       of wetlands,        stormwater best
                                                       (increased          flood control       management
                                                       transport of fine   projects, bank      practice
                                                       sediments into      stabilization,      operations and
                                                       the coastal zone    and in-stream       maintenance.
                                                       by rivers or        work.
                                                       runoff) can
                                                       reduce the
                                                       quality and/or
                                                       quantity of rocky
                                                       substrate. In
                                                       addition,
                                                       construction of
                                                       coastal armoring
                                                       is often
                                                       associated with
                                                       coastal urban
                                                       development to
                                                       protect
                                                       structures from
                                                       wave action or
                                                       prevent erosion.
                                                      Food resources
                                                       PCE--Increased
                                                       sedimentation may
                                                       also affect
                                                       feeding by
                                                       covering up food
                                                       resources,
                                                       altering algal
                                                       communities
                                                       (including algal
                                                       communities on
                                                       the rocky reef
                                                       and the growth of
                                                       kelp forests that
                                                       supply drift
                                                       algae), and
                                                       altering
                                                       invertebrate
                                                       communities
                                                       (affecting
                                                       biological
                                                       interactions).
                                                       Ephemeral and
                                                       turf-forming
                                                       algae were found
                                                       to be favored in
                                                       rocky intertidal
                                                       areas that
                                                       experience
                                                       intermittent
                                                       inundation
                                                       (Airoldi 1998,
                                                       cited in Thompson
                                                       et al. 2002).
                                                      Settlement habitat
                                                       PCE--Increased
                                                       sedimentation may
                                                       affect settlement
                                                       of larvae and
                                                       propagules by
                                                       covering up
                                                       settlement
                                                       habitat as well
                                                       as affecting the
                                                       growth of
                                                       encrusting
                                                       coralline algae
                                                       (Steneck et al.
                                                       1997, cited in
                                                       Airoldi 2003),
                                                       thought to be
                                                       important for
                                                       settlement.

[[Page 66828]]

 
Sediment disposal associated      7 and 8...........  Rocky substrate     National Marine     Haul away (or
 with road maintenance, repair,                        and settlement      Sanctuary (NMS)     store locally)
 and construction                                      habitat PCEs--      regulations         excess material
 (``Sidecasting'').                                    Increased           prohibit            from road
                                                       likelihood of       discharge of        maintenance
                                                       sediment input      materials within    activities; place
                                                       into rocky          its boundaries,     excess material
                                                       intertidal and      as well as          at a stable site
                                                       subtidal habitats   outside its         at a safe
                                                       may reduce its      boundaries if the   distance from
                                                       quality and         material may        rocky intertidal
                                                       quantity.           enter the           habitats; and use
                                                      Food resources       sanctuary and       mulch or
                                                       PCE--May result     harm sanctuary      vegetation to
                                                       in possible         resources.          stabilize the
                                                       reductions or       However, under      material.
                                                       changes to food     certain
                                                       resources. See      circumstances, a
                                                       sedimentation       permit may be
                                                       effects as          obtained from the
                                                       described under     MBNMS to allow
                                                       ``Coastal           for a prohibited
                                                       development'',      activity.
                                                       above.
Agricultural activities           1, 2, 3, 4, 7, 8,   Rocky substrate     Irrigation--water   For irrigated
 (including pesticide              9, 10, 12, and 16.  PCE--Soil erosion   suppliers may       agriculture:
 application, irrigation, and                          from intensive      provide water via   conservation crop
 livestock farming).                                   irrigated           contract with       rotation,
                                                       agriculture or      U.S. Bureau of      underground
                                                       livestock farming   Reclamation         outlets, land
                                                       of areas adjacent   (USBR) or using     smoothing,
                                                       to the coast can    infrastructure      structures for
                                                       cause increased     owned or            water control,
                                                       sedimentation       maintained by the   subsurface
                                                       thereby reducing    USBR. Privately     drains, field
                                                       the quality and     owned diversions    ditches, mains or
                                                       quantity of rocky   may require a       laterals, and
                                                       substrate.          Federal permit      toxic salt
                                                                           from USACE under    reduction.
                                                                           sections 401 or
                                                                           404 of the CWA.
                                                      Food resources      Pesticide           For pesticides
                                                       PCE--Herbicides     Application--Envi   application:
                                                       are designed to     ronmental           restrictions on
                                                       kill plants, thus   Protection Agency   application of
                                                       herbicide           (EPA)               some pesticides
                                                       contamination of    consultation on     within certain
                                                       water could have    the Federal         distances from
                                                       devastating         Insecticide,        streams.
                                                       effects on          Fungicide, and
                                                       aquatic plants.     Rodenticide Act
                                                                           (FIFRA),
                                                                           pesticide
                                                                           registration
                                                                           program, and
                                                                           NPDES permits for
                                                                           aquatic
                                                                           pesticides.
                                                      Settlement habitat  Livestock farming-- For livestock
                                                       PCE--Laboratory     Bureau of Land      farming: fencing
                                                       experiments         Management (BLM)    riparian areas;
                                                       showed that the     and the U.S.        placing salt or
                                                       presence of         Forest Service      mineral
                                                       pesticides (those   (USFS).             supplements to
                                                       examined in the                         draw cattle away
                                                       study were DDT,                         from rivers;
                                                       methoxychlor,                           total rest of
                                                       dieldrin, and 2,4-                      allotments when
                                                       D) interfered                           possible; and
                                                       with larval                             frequent
                                                       settlement.                             monitoring.
                                                       Presence of
                                                       pesticides had a
                                                       much lesser
                                                       effect on
                                                       survival of
                                                       larvae.
                                                      Water quality PCE--
                                                       Pesticides alter
                                                       the chemical
                                                       properties of sea
                                                       water such that
                                                       they can
                                                       interfere with
                                                       settlement cues
                                                       emitted by
                                                       coralline algae
                                                       and associated
                                                       diatom films, and/
                                                       or they may
                                                       inhibit growth of
                                                       marine algae upon
                                                       which black
                                                       abalone depend
                                                       for food. There
                                                       is little
                                                       information on
                                                       these effects on
                                                       black abalone or
                                                       related species,
                                                       however,
                                                       especially for
                                                       pesticides that
                                                       are currently in
                                                       use.

[[Page 66829]]

 
Oil & chemical spills & response  2, 4, 5, 7, 8, 9,   Rocky substrate     Review of oil       Modifications are
                                   12, 15, and 19.     and settlement      spill response      uncertain, but
                                                       habitat PCEs--Oil   plan from United    could include
                                                       spill clean-up      States Coast        measures to
                                                       activities may be   Guard (USCG).       prevent or
                                                       as destructive,     Regulations under   minimize the
                                                       or more             the Water           spill from coming
                                                       destructive, than   Pollution Control   onshore (e.g.,
                                                       the oil spill       Act.                deploy boom,
                                                       itself. Oil spill                       apply
                                                       clean-up may                            dispersants,
                                                       involve                                 mechanical
                                                       application of                          recovery of
                                                       toxic dispersants                       spilled
                                                       and the use of                          substance) and
                                                       physical cleaning                       monitoring of the
                                                       methods such as                         shoreline and
                                                       the use of high                         water quality
                                                       pressure and/or                         during and after
                                                       high temperature                        the spill. These
                                                       water to flush                          measures may
                                                       out oil which may                       already be
                                                       decrease the                            considered due to
                                                       quality of rocky                        the presence of
                                                       substrate and                           other sensitive
                                                       settlement                              resources.
                                                       habitat in an
                                                       area. Oil, oil/
                                                       dispersant
                                                       mixtures, and
                                                       dispersants used
                                                       in oil spill
                                                       clean-up may
                                                       adversely affect
                                                       grazing mollusks
                                                       like abalone in
                                                       rocky intertidal
                                                       areas, although
                                                       less-toxic
                                                       dispersants have
                                                       been developed in
                                                       recent years.
                                                      Food resources
                                                       PCE--The use of
                                                       dispersants and
                                                       physical cleaning
                                                       methods may
                                                       affect black
                                                       abalone food
                                                       resources (algal
                                                       community).
                                                       Chemical spills
                                                       could also affect
                                                       food resources,
                                                       if the chemicals
                                                       kill algae or
                                                       affect algal
                                                       growth.
                                                      Water quality PCE--
                                                       Effects of oil
                                                       spills vary from
                                                       no discernable
                                                       differences to
                                                       widespread
                                                       mortality of
                                                       marine
                                                       invertebrates
                                                       over a large area
                                                       and reduced
                                                       densities
                                                       persisting a year
                                                       after the spill.
Vessel grounding incidents and    2 and 8...........  Rocky substrate     The USCG has the    Best management
 response.                                             and settlement      authority to        practices (BMP)
                                                       habitat PCEs--      respond to all      for oil spill and
                                                       Vessel grounding    oil and hazardous   debris clean-up
                                                       can affect the      substance spills    to reduce
                                                       rocky substrate     in the offshore/    trampling.
                                                       and have            coastal zone,       Education of
                                                       substantial         while the EPA has   USCG, NMS
                                                       effects on the      the authority to    biologists, and
                                                       environment,        respond in the      others involved
                                                       ranging from        inland zone.        in clean-up to
                                                       minor                                   raise awareness
                                                       displacement of                         of black abalone.
                                                       sediment to
                                                       catastrophic
                                                       damage to reefs.
                                                       Wave activity may
                                                       also cause the
                                                       vessel to roll
                                                       excessively and
                                                       do more damage to
                                                       the ocean floor.
                                                      Food resources and
                                                       water quality
                                                       PCEs--The risk of
                                                       invasion by
                                                       foreign species
                                                       attached to the
                                                       ship's hull into
                                                       a local
                                                       environment. The
                                                       wreck of an ocean-
                                                       going vessel can
                                                       result in large
                                                       masses of steel
                                                       distributed over
                                                       substantial areas
                                                       of seabed,
                                                       particularly in
                                                       high energy,
                                                       shallow water
                                                       environments. The
                                                       wreckage may be a
                                                       chronic source of
                                                       dissolved iron.
                                                       Elevated levels
                                                       of iron may
                                                       affect water
                                                       quality and
                                                       result in an
                                                       increase of
                                                       opportunistic
                                                       algae blooms.
Construction and operation of     10................  Water quality PCE-- The Diablo Canyon   Modifications are
 power plants.                                         The power plants'   Nuclear Power       uncertain at this
                                                       use of coastal      Plant (the only     time. The
                                                       waters for          power plant         feasibility of
                                                       cooling and         identified within   closed-system wet
                                                       subsequently        the specific        cooling towers is
                                                       discharging of      areas; located in   questionable.
                                                       heated water back   specific area 10)   Because the CWA
                                                       into the marine     is licensed         provides a high
                                                       environment may     through the         level of baseline
                                                       raise water         Nuclear             protections,
                                                       temperatures and    Regulatory          black abalone
                                                       introduce           Commission.         critical habitat
                                                       contaminants into                       is not likely to
                                                       the water.                              result in
                                                       Elevated water                          additional
                                                       temperatures have                       modifications.
                                                       been linked to
                                                       increased
                                                       virulence of WS.

[[Page 66830]]

 
Construction and operation of     4, 7, 8, 9, 10,     Water quality PCE-- A desalination      Potential
 desalination plants.              12, 17, and 19.     Discharge of        facility may        conservation
                                                       hyper-saline        require a Section   efforts to
                                                       water results in    404 permit under    mitigate
                                                       increased           the CWA from the    desalination
                                                       salinity and        USACE if it         impacts may
                                                       fluctuating         involves placing    include the
                                                       salinity            fill in navigable   treatment of
                                                       conditions that     waters, and a       hyper-saline
                                                       may affect          Section 10 permit   effluent to
                                                       sensitive           under the RHA if    ensure that
                                                       organisms near      the proposal        salinity levels
                                                       the outfall. The    involves placing    are restored to
                                                       impacts of brine    a structure in a    normal values.
                                                       effluent are        navigable           The costs of
                                                       generally more      waterway.           treating hyper-
                                                       severe in rocky                         saline effluent
                                                       substrate than on                       or finding an
                                                       sandy seafloor                          alternate manner
                                                       habitats.                               of brine disposal
                                                       However, more                           can vary widely
                                                       research is                             across plants
                                                       needed on the                           depending on
                                                       tolerance level                         plant capacity
                                                       of black abalone                        and design.
                                                       for different
                                                       salinities. Other
                                                       effects of the
                                                       discharge on
                                                       water quality
                                                       include increased
                                                       turbidity,
                                                       concentration of
                                                       organic
                                                       substances and
                                                       metals contained
                                                       in the feed
                                                       waters,
                                                       concentration of
                                                       metals picked up
                                                       through contact
                                                       with the plant
                                                       components,
                                                       thermal
                                                       pollution, and
                                                       decreased oxygen
                                                       levels.
                                                       Entrainment and
                                                       impingement of
                                                       black abalone
                                                       larvae may also
                                                       occur from water
                                                       intake at
                                                       desalination
                                                       plants, but this
                                                       is primarily a
                                                       take issue.
Construction and operation of     1 and 19..........  Rocky substrate     Subject to the      Use of non-toxic
 tidal and wave energy projects.                       PCE--Impacts on     Federal Energy      fluids instead of
                                                       rocky substrate     Regulatory          toxic fluids.
                                                       may result from     Commission (FERC)   When the project
                                                       the installation    permitting and      requires the use
                                                       of power lines to   licensing           of power lines,
                                                       transport power     requirements, as    use existing
                                                       to shore. These     well as             power lines,
                                                       projects            requirements        instead of
                                                       typically involve   under Section 401   constructing new
                                                       placement of        of the CWA.         ones, and avoid
                                                       structures, such                        rocky intertidal
                                                       as buoys, cables,                       areas.
                                                       and turbines, in
                                                       the water column.
                                                      Water quality PCE--
                                                       Alternative
                                                       energy projects
                                                       may result in
                                                       reduced wave
                                                       height by as much
                                                       as 5 to 13
                                                       percent, which
                                                       may benefit
                                                       abalone habitat.
                                                       Effects on wave
                                                       height would
                                                       generally only be
                                                       observed 1-2 km
                                                       away from the
                                                       wave energy
                                                       device. Another
                                                       concern is the
                                                       potential for
                                                       liquids used in
                                                       the system to
                                                       leak or be
                                                       accidentally
                                                       spilled,
                                                       resulting in
                                                       release of toxic
                                                       fluids. Toxins
                                                       may also be
                                                       released in the
                                                       use of biocides
                                                       to control the
                                                       growth of marine
                                                       organisms. The
                                                       potential effects
                                                       of coastal wave
                                                       and tidal energy
                                                       projects on black
                                                       abalone habitat
                                                       are uncertain,
                                                       because these
                                                       projects are
                                                       relatively new
                                                       and the impacts
                                                       are very site-
                                                       specific.

[[Page 66831]]

 
Construction and operation of     Unknown...........  Rocky substrate     FERC has license    Offshore
 liquefied natural gas (LNG)                           PCE--Onshore LNG    authority for       facilities: In
 projects.                                             terminals involve   terminals built     the installation
                                                       construction of     onshore and in      of pipelines,
                                                       breakwaters,        state waters. The   avoid rocky
                                                       jetties, or other   Maritime            intertidal
                                                       shoreline           Administration      habitats or use
                                                       structures. The     and USCG have       existing
                                                       activities          siting and          pipelines.
                                                       associated with     permitting          Onshore siting
                                                       construction        authority for       considerations:
                                                       (e.g., dredging)    deepwater ports     Avoid siting LNG
                                                       may affect black    in Federal          projects within
                                                       abalone habitat.    waters. CWA         or adjacent to
                                                       Offshore LNG        permits under       rocky intertidal
                                                       terminals involve   section 401         habitats.
                                                       construction of     (water quality
                                                       pipelines to        certificate) and/
                                                       transport LNG       or section 404 (a
                                                       onshore and may     dredge and fill
                                                       affect rocky        permit) and Clean
                                                       habitat. See        Air Act permits
                                                       sedimentation       under section 502
                                                       effects described   may be required.
                                                       under
                                                       ``dredging'',
                                                       ``in-water
                                                       construction'',
                                                       and ``coastal
                                                       development''.
                                                      Food resource and
                                                       water quality
                                                       PCEs--There is an
                                                       increased
                                                       potential for oil
                                                       spills and
                                                       potential effects
                                                       on water quality
                                                       from the presence
                                                       of vessels
                                                       transporting and
                                                       offloading LNG at
                                                       the terminals.
Mineral and petroleum             10................  Rocky substrate     BOEMRE manages the  Adoption of
 exploration and extraction.                           PCE--This           nation's offshore   erosion control
                                                       activity may        energy and          measures;
                                                       result in           mineral             adoption of oil
                                                       increased           resources,          spill clean-up
                                                       sedimentation       including oil,      protocols and oil
                                                       into rocky          gas, and            spill prevention
                                                       intertidal          alternative         plans; more Clean
                                                       habitats. See       energy sources,     Seas boats as
                                                       sedimentation       as well as sand,    first responders
                                                       effects described   gravel and other    to prevent oil
                                                       under               hard minerals on    spills from
                                                       ``dredging'',       the outer           coming onshore;
                                                       ``in-water          continental shelf.  and relocation of
                                                       construction'',                         proposed oil
                                                       and ``coastal                           platforms further
                                                       development''.                          away from black
                                                                                               abalone habitats.
                                                      Food resources and
                                                       settlement
                                                       habitat PCE--In a
                                                       laboratory study,
                                                       water-based
                                                       drilling muds
                                                       from an active
                                                       platform were
                                                       found to
                                                       negatively affect
                                                       the settlement of
                                                       red abalone
                                                       larvae on
                                                       coralline algae,
                                                       but fertilization
                                                       and early
                                                       development were
                                                       not affected.
                                                      Water quality PCE--
                                                       The activity may
                                                       cause an
                                                       increased risk of
                                                       oil spills or
                                                       leaks and
                                                       increased
                                                       sedimentation
                                                       thereby affecting
                                                       water quality.
Non-native species introduction   2, 4, 8, 10, and    Food resources      The National        For commercial
 and management.                   11.                 PCE--The release    Invasive Species    shipping: safe
                                                       of wastewater,      Act of 1996         (non-
                                                       sewage, and         (NISA) and the      contaminated)
                                                       ballast water       Nonindigenous       ballast disposal;
                                                       from commercial     Aquatic Nuisance    rinse anchors and
                                                       shipping presents   Prevention and      anchor chains
                                                       a risk to kelp      Control Act of      when retrieving
                                                       and other           1990 under the      the anchor to
                                                       macroalgal          USCG.               remove organisms
                                                       species because                         and sediments at
                                                       of the potential                        their place of
                                                       introduction of                         origin; remove
                                                       exotic species.                         hull fouling
                                                                                               organisms from
                                                                                               hull, piping,
                                                                                               propellers, sea
                                                                                               chests, and other
                                                                                               submerged
                                                                                               portions of a
                                                                                               vessel, on a
                                                                                               regular basis,
                                                                                               and dispose of
                                                                                               removed
                                                                                               substances in
                                                                                               accordance with
                                                                                               local, state, and
                                                                                               Federal law.
                                                      Settlement habitat  ..................  For aquaculture:
                                                       PCE--Non-native                         inspect
                                                       species may                             aquaculture
                                                       displace native                         facilities to
                                                       organisms by                            prevent non-
                                                       preying on them                         native species
                                                       or out-competing                        transport in
                                                       them for                                packing
                                                       resources such as                       materials.
                                                       food, space or
                                                       both. Non-native
                                                       species may
                                                       introduce disease-
                                                       causing organisms
                                                       and can cause
                                                       substantial
                                                       population,
                                                       community, and
                                                       habitat changes.

[[Page 66832]]

 
Kelp harvesting.................  7-20..............  Food resources      None..............  None.
                                                       PCE--Kelp is the
                                                       primary source of
                                                       food for black
                                                       abalone. Kelp is
                                                       harvested for
                                                       algin, which is
                                                       used as a binder,
                                                       emulsifier, and
                                                       molding material
                                                       in a broad range
                                                       of products, and
                                                       as a food source
                                                       in abalone
                                                       aquaculture
                                                       operations. The
                                                       harvest is small,
                                                       but the kelp
                                                       grows quickly,
                                                       and harvest could
                                                       generate drift
                                                       (which can
                                                       potentially be
                                                       beneficial to
                                                       black abalone).
                                                       Potential impacts
                                                       related to kelp
                                                       harvesting are
                                                       unclear.
Activities leading to global      1-20..............  Affects all PCEs.   Uncertain.........  Uncertain.
 climate change (e.g., fossil                          There is little
 fuel combustion).                                     information on
                                                       these effects,
                                                       however.
                                                      Water quality PCE--
                                                       Sea surface water
                                                       temperatures that
                                                       exceed 25 [deg]C
                                                       may increase
                                                       risks to black
                                                       abalone. Ocean pH
                                                       values that are
                                                       outside of the
                                                       normal range for
                                                       seawater (i.e.,
                                                       pH less than 7.5
                                                       or greater than
                                                       8.5) may cause
                                                       reduced growth
                                                       and survivorship
                                                       in abalone as has
                                                       been observed in
                                                       other marine
                                                       gastropods
                                                       (Shirayama and
                                                       Thornton 2005).
                                                      Food resources and
                                                       settlement
                                                       habitat PCE-
                                                       Increasing
                                                       partial pressure
                                                       of carbon dioxide
                                                       may reduce
                                                       abundance of
                                                       coralline algae
                                                       and thereby
                                                       affect the
                                                       survival of newly
                                                       settled black
                                                       abalone (Feely et
                                                       al. 2004; Hall-
                                                       Spencer et al.
                                                       2008).
----------------------------------------------------------------------------------------------------------------

Unoccupied Areas

    Section 3(5)(A)(ii) of the ESA authorizes the designation of 
``specific areas outside the geographical area occupied at the time 
[the species] is listed'' if these areas are essential for the 
conservation of the species. Regulations at 50 CFR 424.12(e) emphasize 
that the agency ``shall designate as critical habitat areas outside the 
geographical area presently occupied by a species only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species.'' The CHRT identified potential 
unoccupied areas to consider for designation. These areas represent 
segments of the California and Oregon coast that contain rocky 
intertidal habitats that historically supported black abalone and that 
may support black abalone populations in the future. The CHRT 
identified the following unoccupied areas: (1) From Cape Arago State 
Park, Oregon, to Del Mar Landing Ecological Reserve, California; (2) 
from just south of Government Point to Point Dume State Beach, 
California; and (3) from Cardiff State Beach in Encinitas, California, 
to Cabrillo National Monument, California.
    In each of these areas, black abalone have not been observed in 
surveys since 2005. In the area from Cape Arago, Oregon, to the Del Mar 
Landing Ecological Reserve, California, four museum specimens of black 
abalone were noted from two survey sites (Geiger 2004), one specimen 
was noted from another site where red abalone are considered common 
(Thompson 1920), and no data on black abalone were available for the 
other sites. Black abalone were not observed during rocky intertidal 
surveys conducted in the 1970s and 1980s at several sites within this 
area (pers. comm. with J. DeMartini, Humboldt State University, on 
February 11, 2010). In the area from just south of Government Point to 
Point Dume State Beach in California, black abalone were reported as 
rare at one site (Morin and Harrington 1979), but have never been 
observed at the other survey sites. In the area from Cardiff State 
Beach to Cabrillo National Monument in California, black abalone were 
noted to be historically present at a few sites (Zedler 1976, 1978) and 
rare at one site (California

[[Page 66833]]

State Water Resources Control Board 1979e).
    In the proposed rule, we solicited information from the public 
regarding the historical, current, and potential condition of the 
habitat and of black abalone populations within the unoccupied areas 
identified above and the importance of these areas to conservation of 
the species. Although we received public comments in support of 
designating these unoccupied areas, we did not receive any additional 
information to inform our analysis of whether these unoccupied areas 
are essential for conservation of black abalone. At this time, the CHRT 
concluded that the three unoccupied areas may be essential for 
conservation, but that there is currently insufficient data to conclude 
that any of the areas are essential for conservation. For the 
unoccupied area from Cape Arago, Oregon, to the Del Mar Landing 
Ecological Reserve, California, the historical presence of black 
abalone was uncertain, because the only specimens available were museum 
specimens for which the origin was questionable. For the unoccupied 
areas from Government Point to Point Dume State Beach and from Cardiff 
State Beach to Cabrillo National Monument in California, there was 
insufficient information to indicate that expansion of black abalone 
populations into the areas is essential for recovery of the species. 
For example, we lack information needed to understand the historical 
importance of the populations within these unoccupied areas to the 
species as a whole (e.g., as a source or sink population, or for 
connectivity with other populations throughout the coast). Therefore, 
the three presently unoccupied areas were not considered in further 
analyses. We note that we may revise the critical habitat designation 
as information about these areas becomes available in the future.

Military Lands

    Under the Sikes Act of 1997 (Sikes Act) (16 U.S.C. 670a), ``each 
military installation that includes land and water suitable for the 
conservation and management of natural resources'' is required to 
develop and implement an integrated natural resources management plan 
(INRMP). An INRMP integrates implementation of the military mission of 
the installation with stewardship of the natural resources found there. 
Each INRMP includes: An assessment of the ecological needs on the 
military installation, including the need to provide for the 
conservation of listed species; a statement of goals and priorities; a 
detailed description of management actions to be implemented to provide 
for these ecological needs; and a monitoring and adaptive management 
plan. Each INRMP must, to the extent appropriate and applicable, 
provide for: Fish and wildlife management; fish and wildlife habitat 
enhancement or modification; wetland protection, enhancement, and 
restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws. The ESA was amended by 
the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 
108-136) to address the designation of military lands as critical 
habitat. ESA section 4(a)(3)(B)(i) states: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    The Navy's facilities at San Nicolas Island are covered by an INRMP 
that was recently revised and approved in May 2011. Under the revised 
San Nicolas Island INRMP, the Navy will conduct the following measures 
to address black abalone protection and conservation: (1) Continue to 
support black abalone surveys and studies on San Nicolas Island, such 
as Dr. Glenn VanBlaricom's ongoing monitoring surveys of black abalone; 
(2) conduct its own intertidal surveys to monitor black abalone and 
other intertidal species on San Nicolas Island; (3) develop and update 
outreach and education materials to incorporate information on black 
abalone and restrictions to protect the species; (4) maintain and 
enforce restricted areas on the south side of San Nicolas Island; and 
(5) continue to employ an adaptive management strategy for black 
abalone at San Nicolas Island by evaluating information collected 
through monitoring and research studies and incorporating management 
strategies based on that information into the INRMP. We concluded that 
the measures under the revised INRMP provide protection for black 
abalone populations and habitat on San Nicolas Island. In addition, the 
ongoing surveys have and will continue to inform conservation and 
management strategies for the recovery of black abalone on San Nicolas 
Island. Based on the benefits provided to black abalone under the 
revised San Nicolas Island INRMP, we determined under section 
4(a)(3)(B) of the ESA that San Nicolas Island is no longer eligible for 
designation as critical habitat.
    The Navy's facilities at San Clemente Island are covered by an 
INRMP that is scheduled to be revised in the next year. To provide for 
black abalone protection and conservation during the interim, the Navy 
has developed and adopted an amendment to the existing 2002 San 
Clemente Island INRMP. The amendment, signed and adopted in June 2011, 
contains several measures to address black abalone protection, 
management, and conservation on San Clemente Island. The amendment 
describes ongoing efforts by the Navy to benefit black abalone, 
including but not limited to: (1) Facilitating access to intertidal 
areas on San Clemente Island for scientific studies on black abalone; 
(2) continued bi-annual rocky intertidal surveys at four established 
MARINe sites on San Clemente Island; (3) continued enforcement of 
safety zone closures around San Clemente Island that prohibit or limit 
access to intertidal regions of the island; and (4) continued 
participation in programs such as the Southern California Mussel Watch 
Program and monitoring efforts in compliance with the State Water 
Resources Control Board Area of Special Biological Significance 
discharge regulations. Under the amendment, the Navy will also: (1) 
Create a rocky intertidal monitoring database for San Clemente Island, 
to be updated annually; (2) support and develop the monitoring of 
relevant environmental variables for black abalone, such as water 
temperature; and (3) update education and outreach materials to include 
information on black abalone and no-take restrictions for all abalone 
species, to prevent illegal harvest of abalone. Finally, the Navy will 
collaborate with NMFS and black abalone experts to develop a black 
abalone management plan for San Clemente Island, to include: (1) Data 
from historical black abalone abundance and habitat surveys; (2) a 
black abalone monitoring program; (3) a plan for regular reporting of 
information from the Navy to NMFS; and (4) a plan for continued 
coordination between the Navy and NMFS. We concluded that the amended 
INRMP provides for the protection of black abalone and its habitat on 
San Clemente Island. In addition, the ongoing surveys and future 
management plan will inform black abalone recovery efforts on San 
Clemente Island and provide a mechanism for NMFS and the Navy to 
collaborate closely on these efforts. Based on the benefits provided 
for black

[[Page 66834]]

abalone under the amendment to the 2002 San Clemente Island INRMP, we 
determined under section 4(a)(3)(B) of the ESA that San Clemente Island 
is no longer eligible for designation as critical habitat.
    NMFS plans to coordinate with the Navy and participate in annual 
reviews of the implementation of the INRMPs. If NMFS determines that 
implementation of the INRMPs is not adequate to provide benefits to 
black abalone, NMFS may consider revising the critical habitat 
designation to re-evaluate the eligibility of San Nicolas Island and 
San Clemente Island for designation.
Application of ESA Section 4(b)(2)
    Section 4(b)(2) of the ESA requires the Secretary of Commerce 
(Secretary) to consider the economic, national security, and any other 
relevant impacts of designating any particular area as critical 
habitat. Any particular area may be excluded from critical habitat if 
the Secretary determines that the benefits of excluding the area 
outweigh the benefits of designating the area. However, the Secretary 
may not exclude a particular 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 areas. We 
exclude one occupied specific area (i.e., Corona Del Mar State Beach to 
Dana Point, Orange County, CA) from the critical habitat designation 
because the economic benefits of exclusion outweigh the benefits of 
designation.
    The first step in conducting the ESA section 4(b)(2) analysis is to 
identify the ``particular areas'' to be analyzed. Where we considered 
economic impacts and weighed the economic benefits of exclusion against 
the conservation benefits of designation, we used the same 
biologically-based ``specific areas'' we identified in the previous 
sections pursuant to section 3(5)(A) of the ESA (e.g., Del Mar Landing 
Ecological Reserve to Bodega Head, Bodega Head to Point Bonita, 
Farallon Islands, etc.). Delineating the ``particular areas'' as the 
same units as the ``specific areas'' allowed us to most effectively 
compare conservation benefits of designation with economic benefits of 
exclusion. Delineating particular areas based on impacts to national 
security or other relevant impacts was based on land ownership or 
control (e.g., land controlled by the Department of Defense (DOD) 
within which national security impacts may exist, or Indian lands). We 
requested but did not receive information on any other relevant impacts 
that should be considered. Thus, our ESA section 4(b)(2) analysis 
focused on the economic impacts and impacts to national security.
    The next step in the ESA section 4(b)(2) analysis involves 
identification of the impacts of designation (i.e., the benefits of 
designation and the benefits of exclusion). We then weigh the benefits 
of designation against the benefits of exclusion to identify areas 
where the benefits of exclusion may outweigh the benefits of 
designation. The benefits of designation include the protections 
afforded to black abalone and its habitat by the critical habitat 
designation and the application of ESA section 7(a)(2). The benefits of 
exclusion, in this case, include the economic benefits and impacts on 
national security that would be avoided if a particular area were 
excluded from the critical habitat designation. The following sections 
describe how we determined the benefits of designation and the benefits 
of exclusion and how these benefits were weighed to identify particular 
areas that may be eligible for exclusion from the designation. We also 
summarize the results of this weighing process and our determinations 
regarding exclusion of any particular areas.

Impacts of Designation

    The primary impact of a critical habitat designation stems from the 
requirement under section 7(a)(2) of the ESA that Federal agencies 
insure their actions are not likely to result in the destruction or 
adverse modification of critical habitat. Determining this impact is 
complicated by the fact that section 7(a)(2) of the ESA contains the 
overlapping requirement that Federal agencies must also insure their 
actions are not likely to jeopardize the species' continued existence. 
One incremental impact of designation is the extent to which Federal 
agencies modify their actions to insure their actions are not likely to 
destroy or adversely modify the critical habitat of the species, beyond 
any modifications they would make because of the listing and the 
jeopardy requirement. When a modification would be required due to 
impacts to both the species and critical habitat, the impact of the 
designation is considered co-extensive with the ESA listing of the 
species. Additional impacts of designation include state and local 
protections that may be triggered as a result of the designation and 
the benefits from educating the public about the importance of each 
area for species conservation. Thus, the impacts of the designation 
include conservation impacts for black abalone and its habitat, 
economic impacts, impacts on national security, and other relevant 
impacts that may result from the designation and the application of ESA 
section 7(a)(2).
    In determining the impacts of the designation, we focused on the 
incremental change in Federal agency actions as a result of the 
critical habitat designation and the destruction/adverse modification 
provision, beyond the changes predicted to occur as a result of listing 
and the jeopardy provision (see Arizona Cattle Growers v. Salazar, 606 
F. 3d 1160 (9th Cir. 2010)). We analyzed the impact of this designation 
based on a comparison of the world with and without black abalone 
critical habitat. We focused on the potential incremental impacts 
beyond the impacts that would result from the listing and jeopardy 
provision, and other baseline protections identified for black abalone 
habitat. In some instances where it was difficult to exclude potential 
impacts that may already occur under the baseline, we used our best 
professional judgment to identify and estimate the incremental impacts 
of the critical habitat designation.

Benefits of Designation

    The primary benefit of designation is the protection afforded under 
section 7 of the ESA, requiring all Federal agencies to insure their 
actions are not likely to destroy or adversely modify designated 
critical habitat. This is in addition to the requirement that all 
Federal agencies insure their actions are not likely to jeopardize the 
continued existence of the species. In addition, the designation may 
provide education and outreach benefits by informing the public about 
areas and features important to the conservation of black abalone. By 
delineating areas of high conservation value, the designation may help 
focus and contribute to conservation efforts for black abalone and 
their habitats.
    The designation of critical habitat has been found to benefit the 
status and recovery of ESA-listed species. Recent reports by the USFWS 
indicate that species with critical habitat are more likely to have 
increased and less likely to have declined than species without 
critical habitat (Taylor et al. 2005). In addition, species with 
critical habitat are also more likely to have a recovery plan and to 
have these plans implemented, compared to species without critical 
habitat (Harvey et al. 2002; Lundquist et al. 2002). These benefits may 
result from the unique, species-specific protections afforded by 
critical habitat (e.g., enhanced habitat protection, increased public 
awareness and education of important habitats) that are more 
comprehensive than other

[[Page 66835]]

existing regulations (Hagen and Hodges 2006).
    The benefits of designation are not directly comparable to the 
benefits of exclusion for the purposes of weighing the benefits under 
the ESA section 4(b)(2) analysis as described below. Ideally, the 
benefits of designation and benefits of exclusion should be monetized 
in order to directly compare and weigh them. With sufficient 
information, it may be possible to monetize the benefits of a critical 
habitat designation by first quantifying the benefits expected from an 
ESA section 7 consultation and translating that into dollars. We are 
not aware, however, of any available data to monetize the benefits of 
designation (e.g., estimates of the monetary value of the PCEs within 
areas designated as critical habitat, or of the monetary value of 
education and outreach benefits). As an alternative approach, we 
determined the benefits of designation based on the CHRT's biological 
analysis of the specific areas. We used the CHRT's conservation value 
ratings (High, Medium, and Low) to represent the qualitative 
conservation benefits of designation for each of the specific areas 
considered for designation. In evaluating the conservation value of 
each specific area, the CHRT focused on the habitat features present in 
each area, the habitat functions provided by each area, and the 
importance of protecting the habitat for the overall conservation of 
the species. The CHRT considered a number of factors to determine the 
conservation value of each specific area, including: (a) The present 
condition of the primary constituent elements or PCEs; (b) the level at 
which the habitat supports recruitment of early life stages, based on 
the level of recruitment observed at survey sites within the area; and 
(c) the level at which the habitat supports long-term survival of 
juvenile and adult black abalone, based on trends in the abundance and 
size frequencies of black abalone populations observed at survey sites 
within the area. These conservation value ratings represent the 
estimated conservation impact to black abalone and its habitat if the 
area were designated as critical habitat, and thus were used to 
represent the benefit of designation. The final Biological Report (NMFS 
2011a) provides detailed information on the CHRT's biological analysis 
and evaluation of each specific area.

Benefits of Exclusion Based on Economic Impacts and Final Exclusions

    The economic benefits of exclusion are the economic impacts that 
would be avoided by excluding particular areas from the designation. To 
determine these economic impacts, we first asked the CHRT to identify 
activities within each specific area that may affect black abalone and 
its critical habitat. The 17 categories of activities identified by the 
CHRT are identified in the ``Special Management Considerations and 
Protections'' section above. We then considered the range of 
modifications NMFS might seek in these activities to avoid destroying 
or adversely modifying black abalone critical habitat. Where possible, 
we focused on modifications beyond those that may be required under the 
jeopardy provision. Because of the limited consultation history, we 
relied on information from other ESA section 7 consultations and the 
CHRT's expertise to determine the types of activities and potential 
range of modifications. For each potential impact, we tried to provide 
information on whether the impact is more closely associated with 
destruction/adverse modification or with jeopardy, to distinguish the 
impacts of applying the jeopardy provision versus the destruction/
adverse modification provision.
    While the statute and our agency guidance directs us to identify 
activities that may affect the habitat features important to black 
abalone conservation within a specific area in order to determine its 
eligibility for designation, not all of these activities may be 
affected by the critical habitat designation (i.e., subject to an ESA 
section 7 consultation) and sustain an economic impact. It is only 
those activities with a federal nexus (i.e., actions funded, 
authorized, or carried out by a Federal agency or agencies) that could 
sustain an economic impact as a result of the designation. Within the 
set of activities identified in the ``Special Management Considerations 
and Protections'' section above, we were only able to estimate economic 
impacts for a subset of them because of: (1) The limited consultation 
history; (2) uncertainty in the types of modification that would be 
required; (3) uncertainty in the number and locations of activities 
based on currently available data; and (4) the lack of available cost 
data. The final Economic Analysis Report (NMFS 2011b) analyzes the 
potential economic impacts to the following categories of activities: 
(1) Coastal development; (2) in-water construction; (3) sand 
replenishment or beach nourishment activities; (4) agricultural 
activities (e.g., irrigation); (5) NPDES-permitted activities and 
activities generating non-point source pollution; (6) sediment disposal 
activities associated with road maintenance, repair, and construction 
(``sidecasting''); and (7) construction and operation of alternative 
energy hydrokinetic projects (tidal or wave energy projects). The 
following activities were discussed qualitatively: Dredging and 
disposal of dredged material; agricultural pesticide application and 
livestock farming; mineral and petroleum exploration or extraction; 
construction and operation of LNG projects; construction and operation 
of desalination plants; oil and chemical spills and response; power 
generation operations involving water withdrawal from and discharge to 
marine coastal waters (e.g., coastal power plants with once-through 
cooling systems); vessel grounding incidents and response; non-native 
species introduction and management; kelp harvesting; and activities 
that lead to global climate change. The economic impacts of the 
designation on these activities could not be quantified because a 
federal nexus does not exist (i.e., for kelp harvesting activities) or 
is uncertain (i.e., for activities that lead to global climate change), 
or because the potential economic impacts are uncertain, for the 
reasons described above. The final Economic Analysis Report (NMFS 
2011b) provides a more detailed description and analysis of the 
potential economic impacts to each of these categories of activities.
    We had sufficient information to monetize the economic benefits of 
exclusion, but were not able to monetize the conservation benefits of 
designation. Thus, to weigh the benefits of designation against the 
economic benefits of exclusion, we compared the conservation value 
ratings with economic impact ratings that were based on the mid-
annualized economic impact estimates (i.e., the midpoint between the 
low and high annualized economic impact estimates; see final Economic 
Analysis Report (NMFS 2011b) for additional details) for each specific 
area. To develop the economic impact ratings, we examined the mid-
annualized economic impacts across all of the specific areas. We then 
divided the economic impacts into four economic impact rating 
categories corresponding to ``Low'' ($0 to $90,000), ``Medium'' 
(greater than $90,000 to $400,000), ``High'' (greater than $400,000 to 
$1 million), and ``Very High'' (greater than $1 million) economic 
impact ratings. We note that these thresholds differ from the 
thresholds applied in the proposed rule (i.e., ``Low'' = $0 to 
$100,000, ``Medium'' = greater than $100,000 to

[[Page 66836]]

$500,000), ``High'' = greater than $500,000 to $10 million, and ``Very 
High'' = greater than $10 million). Revisions made to the economic 
impacts analysis for power plants and oil and chemical spill response 
activities resulted in revised economic impact estimates (see Response 
to Comments 23 and 25). The revised mid-annualized economic impact 
estimates decreased from a total of about $77 million to about $2 
million. As a result, we revised the thresholds, using the same 
approach as we used in the proposed rule to establish the thresholds. 
The four economic impact rating categories were determined by examining 
all of the economic impact values and identifying natural breakpoints 
in the data where the estimated economic impacts showed a large 
increase. Because the overall range of mid-annualized economic impact 
estimates per specific area was low (ranging from $0 to $508,000), we 
established the threshold for the ``Very High'' economic impact rating 
based on the highest ``high'' total annualized impact estimate for a 
specific area (i.e., $1,004,000 for specific area 7). We then balanced 
these economic impact ratings (representing the benefits of exclusion) 
with the conservation value ratings (representing the benefits of 
designation), applying the following decision rules: (1) Areas with a 
conservation value rating of ``High'' were eligible for exclusion if 
the mid- annualized economic impact estimate exceeded $1 million (i.e., 
the economic impact rating was ``Very High''); (2) areas with a 
conservation value rating of ``Medium'' were eligible for exclusion if 
the mid-annualized economic impact estimate exceeded $400,000 (i.e., 
the economic impact rating was at least a ``High''); and (3) areas with 
a conservation value rating of ``Low'' were eligible for exclusion if 
the mid-annualized economic impact estimate exceeded $90,000 (i.e., the 
economic impact rating was at least a ``Medium''). These dollar 
thresholds should not be interpreted as estimates of the dollar value 
of High, Medium, or Low conservation value areas.
    For critical habitat, the ESA directs us to consider exclusions to 
avoid high economic impacts, but also requires that the areas 
designated as critical habitat are sufficient to support the 
conservation of the species and to avoid extinction. And, under the 
ESA, the decision to exclude is discretionary. It is within this 
framework that we developed decision rules with thresholds representing 
the levels at which we believe the economic benefit of exclusion 
associated with a specific area should be compared against the 
conservation benefits of designation. These dollar thresholds and 
decision rules provided a relatively straightforward process to 
identify, using the best available data, specific areas warranting 
consideration for exclusion based on economic impacts.
    Based on this analysis, one area was identified preliminarily as 
eligible for exclusion: Specific area 12, from Corona Del Mar State 
Beach to Dana Point. We presented the area to the CHRT to help us 
further characterize the benefits of designation by determining whether 
excluding this area would significantly impede conservation of black 
abalone. If exclusion of an area would significantly impede 
conservation, then the benefits of exclusion would likely not outweigh 
the benefits of designation for that area. The CHRT considered this 
question in the context of the information they had developed in 
providing the conservation value ratings. If the CHRT determined that 
exclusion of the area would significantly impede conservation of black 
abalone, the conservation benefits of designation were increased one 
level in the weighing process. This necessitated the creation of a Very 
High conservation value rating. Areas rated as ``Very High'' were 
deemed to have a very high likelihood of promoting the conservation of 
the species.
    The CHRT determined, and we concur, that exclusion of specific area 
12 (from Corona Del Mar State Beach to Dana Point) would not 
significantly impede conservation of black abalone and that the 
economic benefit of exclusion for this area outweighs the conservation 
benefit of designation. Based on the CHRT's biological assessment as 
described below, we also determined that exclusion of specific area 12 
will not result in the extinction of black abalone. The CHRT based 
their determinations on the best available data regarding the present 
condition of the habitat and black abalone populations in the area. The 
CHRT gave the area a ``Low'' conservation value, because the current 
habitat conditions are of lower quality compared to other areas along 
the coast. While rocky intertidal habitat of good quality occurs within 
the area, these habitats are patchy and may be affected by sand scour 
due to the presence of many sandy beaches. In addition, the rocky 
habitat within the area consists of narrow benches and fewer crevices 
compared to other areas and has been degraded by the establishment of 
sandcastle worm (Phragmatopoma californica) colonies. There is also 
little to no coralline algae to provide adequate larval settlement 
habitat. Low densities of black abalone were observed at a few sites in 
the area in the 1970s and 1980s. However, no recruitment has been 
observed and black abalone have been absent from the area except for 
one black abalone found in January 2010. For these reasons, the CHRT 
concluded that excluding specific area 12 (from Corona Del Mar State 
Beach to Dana Point) from the designation would not significantly 
impede the conservation of black abalone. We also concluded that 
excluding specific area 12 will not result in the extinction of the 
species, based on the CHRT's assessment that the area contains habitat 
of lower quality for black abalone and the lack of evidence to indicate 
that this area historically supported high densities of black abalone. 
The estimated economic impact rating for this area was a Medium, with a 
mid-annualized economic impact estimate of $104,400. Most of the costs 
for this area were attributed to NPDES-permitted activities, 
agricultural irrigation, and oil and chemical spill prevention and 
clean-up. Previously, the economic impact estimate for this specific 
area included high costs to a proposed desalination plant, based on the 
costs for using alternate methods of brine disposal (i.e., injection 
wells). However, based on information provided through public comments, 
it was determined that the proposed desalination plant plans to dispose 
of its residual brine by mixing it with wastewater to be discharged 
through an existing outfall at 1.5 miles offshore. It is uncertain 
whether there would be effects on black abalone habitat, and thus the 
costs to this proposed desalination plant were discussed qualitatively 
rather than quantitatively (i.e., essentially considered as zero costs 
in the total annualized economic impact estimate).
    We note that in the proposed rule, specific area 10 (from 
Monta[ntilde]a de Oro State Park to just south of Government Point) was 
eligible for exclusion based on a Very High economic impact rating. 
However, based on revised economic impact estimates for the DCNPP (see 
Response to Comment 23 above), the total mid-annualized economic impact 
estimate for this area decreased from about $75.5 million to about 
$456,000. Based on this revised economic impact estimate, specific area 
10 (rated as a High conservation value area) is no longer eligible for 
exclusion based on economic impacts.
    In summary, we are excluding specific area 12 (from Corona Del Mar 
State Beach to Dana Point) from the critical habitat designation. Based 
on the best scientific and commercial data

[[Page 66837]]

currently available, we have determined that exclusion of this area 
will not result in the extinction of the species, because the area 
contains habitat of low quality for black abalone and historically did 
not support high densities of black abalone.

Benefits of Exclusion Based on National Security and Final Exclusions

    The national security benefits of exclusion are the impacts on 
national security that would be avoided by excluding particular areas 
from the designation. We contacted representatives of the DOD to 
request information on potential national security impacts that may 
result from the designation of particular areas as critical habitat for 
black abalone. In a letter dated May 20, 2010 (5090 Ser N40 JJR.cs/
0011), representatives of the DOD identified the following particular 
areas owned or controlled by the U.S. Navy and requested exclusion of 
these areas from the designation based on potential national security 
impacts: (1) Naval Auxiliary Landing Field (NALF) San Clemente Island; 
(2) Outlying Landing Field (OLF) San Nicolas Island; (3) Naval Support 
Detachment Monterey; (4) Naval Weapons Station Seal Beach; and (5) 
Naval Base Ventura County (Point Mugu and Port Hueneme). As stated in 
the proposed rule, we determined that the Naval Support Detachment 
Monterey, Naval Weapons Station Seal Beach, and Naval Base Ventura 
County do not occur within the specific areas being considered for 
designation, but that San Clemente Island and San Nicolas Island do 
occur within the specific areas being considered for designation.
    During the public comment period, we received a comment letter from 
the U.S. Navy, requesting the exclusion of San Clemente Island from the 
designation based on national security impacts, as well as based on the 
forthcoming amendment to the existing San Clemente Island INRMP. As 
stated in the ``Military Lands'' section above, we have coordinated 
with the Navy to develop an amendment to the existing 2002 San Clemente 
Island INRMP to address black abalone protection and conservation. Upon 
adoption of the amendment to the 2002 San Clemente Island INRMP, we 
determined under section 4(a)(3)(B) of the ESA that San Clemente Island 
is no longer eligible for designation, based on the benefits to black 
abalone conservation under the amended INRMP. Thus, consideration of 
exclusion based on national security impacts is no longer necessary.
    In the comment letter, the Navy did not request exclusion of San 
Nicolas Island based on national security impacts, instead requesting 
that San Nicolas Island be found ineligible for designation under 
section 4(a)(3)(B) of the ESA based on the benefits to black abalone 
conservation under the revised San Nicolas Island INRMP (see ``Military 
Lands'' section of this rule). Thus, consideration of exclusion based 
on national security impacts again is no longer necessary.

Benefits of Exclusion for Other Relevant Impacts

    The only other relevant impacts of the designation identified were 
potential impacts on Indian lands. As stated in the proposed rule, we 
reviewed maps indicating that none of the specific areas under 
consideration for designation as critical habitat overlap with Indian 
lands. We solicited information from the public regarding any Indian 
lands that may overlap with and may warrant exclusion from the 
designation, but did not receive any additional information on Indian 
lands or any other relevant impacts. Therefore, no areas were 
considered for exclusion based on impacts on Indian lands or any other 
relevant impacts.

Critical Habitat Designation

    This rule designates approximately 360 square kilometers of habitat 
in California within the geographical area presently occupied by black 
abalone as critical habitat. These critical habitat areas contain 
physical or biological features essential to the conservation of the 
species that may require special management considerations or 
protection. This rule excludes from the designation the area from 
Corona Del Mar State Beach to Dana Point, Orange County, CA. Although 
we have identified three presently unoccupied areas, we are not 
designating any unoccupied areas as critical habitat at this time, 
because we do not have sufficient information to determine that any of 
the unoccupied areas are essential to the conservation of the species.

Lateral Extent of Critical Habitat

    The lateral extent of the critical habitat designation offshore is 
defined by the -6 m depth bathymetry contour relative to the MLLW line 
and shoreward to the MHHW line. The textual descriptions of critical 
habitat in the section titled ``226.220 Critical habitat for the black 
abalone (Haliotis cracherodii)'' are the definitive source for 
determining the critical habitat boundaries. The overview maps provided 
in the section titled ``226.220 Critical habitat for the black abalone 
(Haliotis cracherodii)'' are provided for general guidance purposes 
only and not as a definitive source for determining critical habitat 
boundaries. As discussed in previous critical habitat designations, 
human activities that occur outside of designated critical habitat can 
destroy or adversely modify the essential physical and biological 
features of these areas. This designation will help to ensure that 
Federal agencies are aware of the impacts that activities occurring 
inside and outside of the critical habitat area (e.g., coastal 
development, activities that exacerbate global warming, agricultural 
irrigation and pesticide application) may have on black abalone 
critical habitat.

Effects of Critical Habitat Designation

ESA Section 7 Consultation

    Section 7(a)(2) of the ESA requires Federal agencies, including 
NMFS, to ensure 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 the 
consultation, NMFS evaluates the agency action to determine whether the 
action may adversely affect listed species or critical habitat and 
issues its findings in a biological opinion. If NMFS concludes in the 
biological opinion that the agency action would likely result in the 
destruction or adverse modification of critical habitat, NMFS would 
also recommend any reasonable and prudent alternatives to the action. 
Reasonable and prudent alternatives are defined in 50 CFR 402.02 as 
alternative actions identified during formal consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that would avoid the destruction or 
adverse modification of critical habitat. Regulations at 50 CFR 402.16 
require Federal agencies that have retained discretionary involvement 
or control over an action, or where such discretionary involvement or 
control is authorized by law, to reinitiate consultation on previously 
reviewed actions in instances where: (1) Critical habitat is 
subsequently designated; or (2) new information or changes to the

[[Page 66838]]

action may result in effects to critical habitat not previously 
considered in the biological opinion. Consequently, some Federal 
agencies may request reinitiation of consultation or conference with 
NMFS on actions for which formal consultation has been completed, if 
those actions may affect designated critical habitat. Activities 
subject to the ESA section 7 consultation process include activities on 
Federal lands and activities on private or state lands requiring a 
permit from a Federal agency (e.g., a section 10(a)(1)(B) permit from 
NMFS) or some other Federal action, including funding (e.g., Federal 
Highway Administration (FHA) or Federal Emergency Management Agency 
(FEMA) funding). ESA section 7 consultation would not be required for 
Federal actions that do not affect listed species or critical habitat 
nor for actions on non-Federal and private lands that are not federally 
funded, authorized, or carried out.

Activities Likely To Be Affected

    ESA section 4(b)(8) requires, to the maximum extent practicable, in 
any 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 black abalone 
critical habitat and may be subject to the ESA section 7 consultation 
process when carried out, funded, or authorized by a Federal agency. 
The activities most likely to be affected by this critical habitat 
designation are: (1) Coastal development; (2) in-water construction; 
(3) sand replenishment or beach nourishment activities; (4) 
agricultural activities (e.g., irrigation); (5) NPDES-permitted 
activities and activities generating non-point source pollution; (6) 
sediment disposal activities associated with road maintenance, repair, 
and construction (sidecasting); (7) oil and chemical spills and clean-
up activities; (8) construction and operation of power plants that take 
in and discharge water from the ocean; (9) construction and operation 
of alternative energy hydrokinetic projects (tidal or wave energy 
projects); and (10) construction and operation of desalination plants. 
Private entities may also be affected by this critical habitat 
designation if a Federal permit is required or Federal funding is 
received. These activities would need to be evaluated with respect to 
their potential to destroy or adversely modify critical habitat. 
Changes to the actions to minimize or avoid destruction or adverse 
modification of designated critical habitat may result in changes to 
some activities. Please see the final Economic Analysis Report (NMFS 
2011b) for more details and examples of changes that may need to occur 
in order for activities to minimize or avoid destruction or adverse 
modification of designated critical habitat. Questions regarding 
whether specific activities would constitute destruction or adverse 
modification of critical habitat should be directed to NMFS (see 
ADDRESSES and FOR FURTHER INFORMATION CONTACT).

Peer Review

    On December 16, 2004, the Office of Management and Budget (OMB) 
issued its Final Information Quality Bulletin for Peer Review 
(Bulletin). The Bulletin was published in the Federal Register on 
January 14, 2005 (70 FR 2664), and went into effect on June 16, 2005. 
The primary purpose of the Bulletin is to improve the quality and 
credibility of scientific information disseminated by the Federal 
government by requiring peer review of ``influential scientific 
information'' and ``highly influential scientific information'' prior 
to public dissemination. Influential scientific information is defined 
as ``information the agency reasonably can determine will have or does 
have a clear and substantial impact on important public policies or 
private sector decisions.'' The Bulletin provides agencies broad 
discretion in determining the appropriate process and level of peer 
review. Stricter standards were established for the peer review of 
``highly influential scientific assessments,'' defined as information 
whose ``dissemination could have a potential impact of more than $500 
million in any one year on either the public or private sector or that 
the dissemination is novel, controversial, or precedent-setting, or has 
significant interagency interest.'' The final Biological Report and 
final Economic Analysis Report supporting this rule to designate 
critical habitat for the black abalone are considered influential 
scientific information and subject to peer review. These two reports 
were each distributed to three independent peer reviewers for review 
during the public comment period. The peer reviewer comments were 
compiled into a peer review report and are available on the Federal 
eRulemaking Portal Web site (see ADDRESSES).

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    This rule has been determined to be significant for purposes of 
Executive Order (E.O.) 12866. A final Economic Analysis Report and ESA 
Section 4(b)(2) Report have been prepared to support the exclusion 
process under section 4(b)(2) of the ESA and our consideration of 
alternatives to this rulemaking as required under E.O. 12866. The 
reports are available on the Southwest Region Web site at http://swr.nmfs.noaa.gov/abalone, on the Federal eRulemaking Web site at 
http://www.regulations.gov, or upon request (see ADDRESSES).

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

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency publishes a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis describing the effects 
of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). We have prepared a 
final regulatory flexibility analysis (FRFA), which is part of the 
final Economic Analysis Report (NMFS 2011b). This document is available 
upon request (see ADDRESSES), via our Web site at http://swr.nmfs.noaa.gov, or via the Federal eRulemaking Web site at http://www.regulations.gov.
    In summary, the FRFA did not consider all types of small businesses 
that could be affected by the black abalone critical habitat 
designation due to lack of information needed to identify the number of 
potentially affected small businesses for each activity type and to 
conduct a quantitative analysis of the costs for small businesses of 
each activity type. Impacts to small businesses involved in 8 
activities were considered: (1) In-Water construction; (2) dredging and 
disposal of dredged material; (3) NPDES-permitted facilities that 
discharge water into or adjacent to the coastal marine environment; (4) 
coastal urban development; (5) agriculture (including pesticide use, 
irrigation, and livestock farming); (6) construction and operation of 
tidal and wave energy projects; (7) construction and operation of LNG 
projects; and (8) mineral and petroleum exploration and extraction. The 
FRFA estimates the potential number of small businesses that may be 
affected by this rule, and the average annualized impact per entity for 
a given area and activity type. Specifically, based on an examination 
of the North American Industry Classification System (NAICS), this 
analysis classifies the potentially affected economic activities into

[[Page 66839]]

industry sectors and provides an estimate of the number of small 
businesses affected in each sector based on the applicable NAICS codes. 
We were only able to identify NAICS codes for the 8 activity types 
listed above.
    The specific areas considered for designation as critical habitat, 
and hence the action area for this rule, span from the Del Mar Landing 
Ecological Reserve to Dana Point in California, including several 
offshore islands. Although the areas of concern include marine areas 
off the coast, the small business analysis is focused on land based 
areas where most economic activities occur and which could be affected 
by the designation.
    Ideally, this analysis would directly identify the number of small 
entities that are located within the coastal areas adjacent to the 
specific areas. However, it is not possible to directly determine the 
number of firms in each industry sector within these areas because 
business activity data is maintained at the county level. Therefore, 
this analysis provides a maximum number of small businesses that could 
be affected. This number is most likely inflated since all of the 
identified small businesses are unlikely to be located in close 
proximity to the specific areas.
    After determining the number of small entities, this analysis 
estimates the impact per entity for each area and industry sector. The 
following steps were used to provide these estimates: (1) Total impact 
for every area and activity type was determined based on the results 
presented in the final Economic Analysis Report (NMFS 2011b); (2) the 
proportion of businesses that were small was calculated for every area 
for every activity type; (3) the impact to small businesses for every 
area and activity type was estimated by multiplying the total impacts 
estimated for all businesses with the proportion of businesses that 
were determined to be small; and (4) the average impact per small 
businesses was estimated by taking the ratio of the total estimated 
impacts to the total number of small businesses.
    There is a maximum of 3,560 small businesses involved in activities 
most likely to be affected by this rule. This is based on the 
assumption that all small businesses counted across areas and activity 
types are separate entities. However, it is likely that a particular 
small business may appear multiple times as being affected by 
conservation measures for multiple areas and activity types. Hence, 
total small business estimates across areas and activity types are 
likely to be overestimated. The potential annualized impacts borne by 
small entities were highest for specific area 3 (Farallon Islands) with 
potential impacts estimated at $194,000. This was mainly due to the 
impacts on the NPDES-permitted facilities, which account for 100 
percent of the total costs. It is important to note here that these 
costs are likely overestimated, due to the fact that the spatial scope 
for analyzing the impacts of the designation on NPDES-permitted 
facilities for specific area 3 included NPDES-permitted facilities in 
the counties surrounding San Francisco Bay (see Section 1.4.1 of the 
final economic analysis report). Specific areas 2, 3, 4, 11, and 19 
each had total estimated annualized small business impacts between 
$100,000 to $200,000.
    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 black abalone. The alternative of 
not designating critical habitat for the black abalone was considered 
and rejected because such an approach does not meet the legal 
requirements of the ESA. We considered the alternative of designating 
all specific areas (i.e., no areas excluded). The total estimated 
annualized economic impact (for all potentially affected entities) 
associated with this alternative ranged from $169,000 to $4,083,000. 
However, the benefits of excluding specific area 12 (Corona Del Mar to 
Dana Point) outweighed the benefits of including it in the designation. 
Thus, NMFS also considered the alternative of designating all specific 
areas, but excluding specific area 12. The total estimated annualized 
economic impact (for all potentially affected entities) associated with 
this alternative ranged from $158,000 to $3,886,000. This alternative 
helps to reduce the number of small businesses potentially affected 
from 3,509 to 3,060. The total potential annualized economic impact to 
small businesses is also reduced from $817,000 to $789,000.

E.O. 13211

    On May 18, 2001, the President issued an Executive Order on 
regulations that significantly affect energy supply, distribution, and 
use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking an action expected to lead to the promulgation 
of a final rule or regulation that is a significant regulatory action 
under E.O. 12866 and is likely to have a significant adverse effect on 
the supply, distribution, or use of energy. An energy impacts analysis 
was prepared under E.O. 13211 and is available as part of the final 
Economic Analysis Report (NMFS 2011b). The results of the analysis are 
summarized here.
    The Office of Management and Budget (OMB) provides guidance for 
implementing this Executive Order, outlining nine outcomes that may 
constitute ``a significant adverse effect'' when compared with the 
regulatory action under consideration: (1) Reductions in crude oil 
supply in excess of 10,000 barrels per day (bbls); (2) reductions in 
fuel production in excess of 4,000 bbls; (3) reductions in coal 
production in excess of 5 million tons per year; (4) reductions in 
natural gas production in excess of 25 million cubic feet per year; (5) 
reductions in electricity production in excess of 1 billion kilowatts-
hours per year or in excess of 500 megawatts of installed capacity; (6) 
increases in energy use required by the regulatory action that exceed 
the thresholds above; (7) increases in the cost of energy production in 
excess of one percent; (8) increases in the cost of energy distribution 
in excess of one percent; or (9) other similarly adverse outcomes.
    Of these, the most relevant criteria to this analysis are potential 
changes in natural gas and electricity production, as well as changes 
in the cost of energy production. Possible energy impacts may occur as 
the result of requested project modifications to power plants, tidal 
and wave energy projects, and LNG facilities. There is currently only 
one power plant, the Diablo Canyon Nuclear Power Plant (DCNPP), located 
within an area that could be affected by black abalone critical 
habitat. As described previously, the high level of baseline 
protections provided under the CWA make it highly unlikely that 
additional modifications beyond those required under existing 
regulations would result due to this black abalone critical habitat 
designation. Therefore, we concluded that this designation is not 
likely to result in incremental impacts to the cost of operating the 
DCNPP and, consequently, is not likely to result in impacts to energy 
production and associated costs.
    The number of future tidal and wave energy projects that will be 
constructed within the specific areas is unknown. Currently, there are 
no actively-generating wave or tidal energy projects located within the 
study area. However, four projects have received preliminary permits 
from FERC (FERC. Issued and valid hydrokinetic projects preliminary 
permit. Accessed at: http://www.ferc.gov/industries/hydropower/indus-act/hydrokinetics/permits-issued.xls on April 5, 2010). Future 
management and required project modifications for black abalone 
critical

[[Page 66840]]

habitat related to tidal and wave energy projects are uncertain and 
could vary widely in scope from project to project. Moreover, because 
the proposed projects are still in the preliminary stages, the 
potential impact of possible black abalone conservation efforts on the 
project's energy production and the associated cost of that energy are 
unclear. Proposed tidal and wave energy projects within the study area 
have a combined production capacity of 21 megawatts. It is more likely 
that any additional cost of black abalone conservation efforts would be 
passed on to the consumer in the form of slightly higher energy prices. 
That said, any increase in energy prices as a result of black abalone 
conservation would have to be balanced against changes in energy prices 
resulting from the development of these projects. That is, the 
construction of tidal and wave energy projects may result in a general 
reduction in energy prices in affected areas. Without information about 
the effect of the tidal and wave projects on future electricity prices 
and more specific information about recommended conservation measures 
for black abalone, this analysis is unable to forecast potential energy 
impacts resulting from changes to tidal and wave energy projects.
    Similar to tidal and wave energy projects, the number of future LNG 
projects that will be built within the specific areas is unknown. Many 
LNG projects are likely to be abandoned during the development stages 
for reasons unrelated to black abalone critical habitat. In addition, 
the potential impact of LNG facilities on black abalone habitat remains 
uncertain, as is the nature of any project modifications that might be 
requested to mitigate adverse impacts. Since there are no LNG projects 
in the development stage, the potential impact of possible black 
abalone conservation efforts on the project's energy production and the 
associated cost of that energy are unclear. Project modifications may 
include biological monitoring, spatial restrictions on project 
installation, and specific measures to prevent or respond to 
catastrophes. Out of these project modifications, spatial restrictions 
on project installation could have effects on energy production. This 
modification could increase LNG construction costs, which may result in 
higher natural gas costs. However, the construction of LNG facilities 
and associated increased energy supplies to consumers aim to generally 
result in lower energy prices than would have otherwise been expected. 
Therefore, this analysis is unable to forecast potential energy impacts 
resulting from changes to LNG projects without specific information 
about recommended black abalone conservation measures or future 
forecasts of energy prices that reflect future markets with increased 
energy supplies from LNG projects.

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 would 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. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.'' The designation of critical habitat does 
not impose an enforceable duty on non-Federal government entities or 
private parties. The only regulatory effect of a critical habitat 
designation is that Federal agencies must ensure that their actions do 
not destroy or adversely modify critical habitat under ESA section 7. 
Non-Federal entities that receive funding, assistance, or permits from 
Federal agencies, or otherwise require approval or authorization from a 
Federal agency for an action may be indirectly affected by the 
designation of critical habitat. Furthermore, to the extent that non-
Federal entities are indirectly impacted because they receive Federal 
assistance or participate in a voluntary Federal aid program, the 
Unfunded Mandates Reform Act would not apply, nor would critical 
habitat shift the costs of the large entitlement programs listed above 
to state governments.
    (B) Due to the prohibition against take of black abalone both 
within and outside of the designated areas, we do not anticipate that 
this final rule would significantly or uniquely affect small 
governments. As such, a Small Government Agency Plan is not required.

Takings

    Under E.O. 12630, Federal agencies must consider the effects of 
their actions on constitutionally protected private property rights and 
avoid unnecessary takings of property. A taking of property includes 
actions that result in physical invasion or occupancy of private 
property, and regulations imposed on private property that 
substantially affect its value or use. In accordance with E.O. 12630, 
this final rule would not have significant takings implications. A 
takings implication assessment is not required. The designation of 
critical habitat affects only Federal agency actions. This final rule 
would not increase or decrease the current restrictions on private 
property concerning take of black abalone, nor do we expect the 
critical habitat designation to impose substantial additional burdens 
on land use or substantially affect property values. Additionally, the 
critical habitat designation would 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 would continue to have the opportunity to use their 
property in ways consistent with the survival of endangered black 
abalone.

Federalism

    In accordance with E.O. 13132, we determined that this final rule 
would not have significant Federalism effects and that a Federalism 
assessment is not required. This designation may have some benefit to 
state and local resource agencies in that the areas essential to the 
conservation of the species are more clearly defined, and the PCEs of 
the habitat necessary for the survival of black abalone are 
specifically identified. While this designation would not alter where 
and what non-federally sponsored activities may occur, it may assist 
local governments in long-range planning.

[[Page 66841]]

Civil Justice Reform

    In accordance with E.O. 12988, we have determined that this final 
rule would not unduly burden the judicial system and meets the 
requirements of sections 3(a) and 3(b)(2) of the E.O. We are 
designating critical habitat in accordance with the provisions of the 
ESA. This final rule uses standard property descriptions and identifies 
the PCEs within the designated areas to assist the public in 
understanding the habitat needs of black abalone.

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

    This final rule does not contain new or revised information 
collections that require approval by the OMB under the Paperwork 
Reduction Act. This final rule would not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations.

National Environmental Policy Act of 1969 (NEPA)

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

Coastal Zone Management Act of 1972 (CZMA)

    The CZMA emphasizes the primacy of state decision-making regarding 
the coastal zone. Section 307 of the CZMA (16 U.S.C. 1456), called the 
Federal consistency provision, is a major incentive for states to join 
the national coastal management program and is a powerful tool that 
states use to manage coastal uses and resources and to facilitate 
cooperation and coordination with federal agencies.
    Federal consistency is the CZMA requirement where Federal agency 
activities that have reasonably foreseeable effects on any land or 
water use or natural resource of the coastal zone (also referred to as 
coastal uses or resources and coastal effects) must be consistent to 
the maximum extent practicable with the enforceable policies of a 
coastal state's federally approved coastal management program. We have 
determined that this final critical habitat designation is consistent 
to the maximum extent practicable with the enforceable policies of the 
approved Coastal Zone Management Program of California. This 
determination was submitted for review by the California Coastal 
Commission.

Government-to-Government Relationship With Tribes

    As described in the section above titled ``Exclusions Based on 
Other Relevant Impacts,'' we have not identified any tribal lands that 
overlap with the critical habitat designation for black abalone.

References Cited

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

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: October 18, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 226 is amended 
as set forth below:

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.  226.221 to read as follows:


Sec.  226.221  Critical habitat for black abalone (Haliotis 
cracherodii).

    Critical habitat is designated for black abalone as described in 
this section. The textual descriptions of critical habitat in this 
section are the definitive source for determining the critical habitat 
boundaries. The overview maps are provided for general guidance 
purposes only and not as a definitive source for determining critical 
habitat boundaries.
    (a) Critical habitat boundaries--(1) Coastal Marine Areas: The 
critical habitat designation for black abalone within each coastal 
marine area below along the California coast is defined by four 
latitude and longitude coordinates that set the northern and southern 
boundaries, as well as by bathymetric specifications that set the 
shoreward and seaward boundaries. The northern boundary is the straight 
line between the northern coordinates and the southern boundary is the 
straight line between the southern coordinates, extending out as far as 
the seaward boundary, defined by the -6 m depth bathymetry line 
(relative to mean lower low water (MLLW)), and the shoreward boundary, 
defined by the line that marks mean higher high water (MHHW). Critical 
habitat only includes rocky intertidal and subtidal habitats within 
these areas from the MHHW line to a depth of -6 m relative to MLLW, as 
well as the marine waters above the rocky habitats.
    (i) Del Mar Landing Ecological Reserve in Sonoma County to Point 
Bonita in Marin County, California: northern coordinates: 
38[deg]44'25.04'' N, 123[deg]30'52.067'' W and 38[deg]44'25.948'' N, 
123[deg]30'19.175'' W; southern coordinates: 37[deg]49'3.404'' N, 
122[deg]31'56.339'' W and 37[deg]49'3.082'' N, 122[deg]31'50.549'' W.
    (ii) South of San Francisco Bay in San Francisco County to Natural 
Bridges State Beach in Santa Cruz County, California: northern 
coordinates: 37[deg]47'17.078'' N, 122[deg]31'13.59'' W and 
37[deg]47'17.524'' N, 122[deg]30'21.458'' W; southern coordinates: 
36[deg]57'11.547'' N, 121[deg]58'36.276'' W and 36[deg]57'15.208'' N, 
121[deg]58'31.424'' W.
    (iii) Pacific Grove in Monterey County to Cayucos in San Luis 
Obispo County, California: northern coordinates: 36[deg]36'41.16'' N, 
121[deg]53'30.453'' W and 36[deg]36'41.616'' N, 121[deg]53'47.763'' W; 
southern coordinates: 35[deg]26'22.887'' N, 120[deg]54'6.264'' W and 
35[deg]26'23.708'' N, 120[deg]53'39.427'' W.
    (iv) Monta[ntilde]a de Oro State Park in San Luis Obispo County, 
California to just south of Government Point in Santa Barbara County, 
California: northern coordinates: 35[deg]17'15.72'' N, 
120[deg]53'30.537'' W and 35[deg]17'15.965'' N, 120[deg]52'59.583'' W; 
southern coordinates: 34[deg]27'12.95'' N, 120[deg]22'10.341'' W and 
34[deg]27'25.11'' N, 120[deg]22'3.731'' W.
    (v) Palos Verdes Peninsula extending from the Palos Verdes/Torrance 
border to Los Angeles Harbor in southwestern Los Angeles County, 
California: northern coordinates: 33[deg]48'22.604'' N, 
118[deg]24'3.534'' W and 33[deg]48'22.268'' N, 118[deg]23'35.504'' W; 
southern coordinates: 33[deg]42'10.303'' N, 118[deg]16'50.17'' W and 
33[deg]42'25.816'' N, 118[deg]16'41.059'' W.
    (2) Coastal Offshore Islands: The black abalone critical habitat 
areas surrounding the coastal offshore islands listed below are defined 
by a seaward boundary that extends offshore to the -6m depth bathymetry 
line (relative to MLLW), and a shoreward boundary that is the line 
marking MHHW. Critical habitat only includes rocky intertidal and 
subtidal habitats from MHHW to a depth of -6 m relative to MLLW, 
including the marine waters above the rocky substrate.
    (i) Farallon Islands, San Francisco County, California.
    (ii) A[ntilde]o Nuevo Island, San Mateo County, California.
    (iii) San Miguel Island, Santa Barbara County, California.
    (iv) Santa Rosa Island, Santa Barbara County, California.
    (v) Santa Cruz Island, Santa Barbara County, California.

[[Page 66842]]

    (vi) Anacapa Island, Ventura County, California.
    (vii) Santa Barbara Island, Santa Barbara County, California.
    (viii) Santa Catalina Island, Los Angeles County, California.
    (b) Primary constituent elements. The primary constituent elements 
essential for the conservation of the black abalone are:
    (1) Rocky substrate. Suitable rocky substrate includes rocky 
benches formed from consolidated rock of various geological origins 
(e.g., igneous, metamorphic, and sedimentary) that contain channels 
with macro- and micro-crevices or large boulders (greater than or equal 
to 1 m in diameter) and occur from MHHW to a depth of -6 m relative to 
MLLW. All types of relief (high, medium and low; 0.5 to greater than 2 
m vertical relief) support black abalone.
    (2) Food resources. Abundant food resources including bacterial and 
diatom films, crustose coralline algae, and a source of detrital 
macroalgae, are required for growth and survival of all stages of black 
abalone. The primary macroalgae consumed by juvenile and adult black 
abalone are giant kelp (Macrocystis pyrifera) and feather boa kelp 
(Egregia menziesii) in southern California (i.e., south of Point 
Conception) habitats, and bull kelp (Nereocystis leutkeana) in central 
and northern California habitats (i.e., north of Santa Cruz), although 
Macrocystis and Egregia may be more prominent in the habitat and diet 
in areas south of Santa Cruz. Southern sea palm (Eisenia arborea), elk 
kelp (Pelagophycus porra), stalked kelp (Pterygophora californica), and 
other brown kelps (Laminaria sp.) may also be consumed by black 
abalone.
    (3) Juvenile settlement habitat. Rocky intertidal and subtidal 
habitat containing crustose coralline algae and crevices or cryptic 
biogenic structures (e.g., urchins, mussels, chiton holes, 
conspecifics, anemones) is important for successful larval recruitment 
and juvenile growth and survival of black abalone less than 
approximately 25 mm shell length. Adult abalone may facilitate larval 
settlement and metamorphosis by grazing down algal competitors and 
thereby promoting the maintenance of substantial substratum cover by 
crustose coralline algae, outcompeting encrusting sessile invertebrates 
(e.g. tube worms and tube snails) for space and thereby promoting the 
maintenance of substantial substratum cover by crustose coralline algae 
as well as creating space for settling abalone, and emitting chemical 
cues that may induce settlement of abalone larvae.
    (4) Suitable water quality. Suitable water quality includes 
temperature (i.e., tolerance range: 12 to 25 [deg]C; optimal range: 18 
to 22 [deg]C), salinity (i.e., 30 to 35 ppt), pH (i.e., 7.5 to 8.5), 
and other chemical characteristics necessary for normal settlement, 
growth, behavior, and viability of black abalone.
    (5) Suitable nearshore circulation patterns. Suitable circulation 
patterns are those that retain eggs, sperm, fertilized eggs, and ready-
to-settle larvae within 100 km from shore so that successful 
fertilization and settlement to shallow intertidal habitat can take 
place.
    (c) Overview maps of black abalone critical habitat follow:
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[FR Doc. 2011-27376 Filed 10-26-11; 8:45 am]
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