[Federal Register Volume 78, Number 151 (Tuesday, August 6, 2013)]
[Proposed Rules]
[Pages 47635-47669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18832]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 130404330-3330-01]
RIN 0648-BC76
Endangered and Threatened Species; Designation of Critical
Habitat for Yelloweye Rockfish, Canary Rockfish and Bocaccio of the
Puget Sound/Georgia Basin
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to
designate critical habitat for three species of rockfish listed under
the Endangered Species Act (ESA), including the threatened Distinct
Population Segment (DPS) of yelloweye rockfish (Sebastes ruberrimus),
the threatened DPS of canary rockfish (S. pinniger), and the endangered
DPS of bocaccio (S. paucispinus) (listed rockfish). The specific areas
proposed for designation for canary rockfish and bocaccio include
approximately 1,184.75 sq mi (3,068.5 sq km) of marine habitat in Puget
Sound, Washington. The specific areas proposed for designation for
yelloweye rockfish include approximately 574.75 sq mi (1,488.6 sq km)
of marine habitat in Puget Sound, Washington. We propose to exclude
some particular areas from designation because the benefits of
exclusion outweigh the benefits of inclusion and exclusion of those
areas will not result in the extinction of the species.
We are soliciting comments from the public on all aspects of the
proposal, including information on the economic, national security, and
other relevant impacts of the proposed designations, as well as the
benefits to the species from designations. We will consider additional
information received prior to making final designations.
DATES: Comments on this proposed rule must be received by 5 p.m. P.S.T.
on
[[Page 47636]]
November 4, 2013. Requests for public hearings must be made in writing
by September 20, 2013.
ADDRESSES: You may submit comments on the proposed rule, identified by
FDMS docket number [NOAA-NMFS-2013-0105], by any one of the following
methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0105. click the ``Comment Now'' icon,
complete the required fields, and enter or attach your comments.
Fax: 206-526-6426, Attn: Dan Tonnes.
Mail: Chief, Protected Resources Division, Northwest
Region, National Marine Fisheries Service, 7600 Sand Point Way NE.,
Seattle, WA, 98115.
Instructions: You must submit comments by one of the above methods
to ensure that we receive, document, and consider them. Comments sent
by any other method, to any other address or individual, or received
after the end of the comment period may not be considered. All comments
received are a part of the public record and will generally be posted
for public viewing on http://www.regulations.gov without change. All
personal identifying information (e.g., name, address, etc.)
confidential business information, or otherwise sensitive information
submitted voluntarily by the sender will be publicly accessible. We
will accept anonymous comments (enter ``N/A'' in the required fields if
you wish to remain anonymous). Attachments to electronic comments will
be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.
The proposed rule, list of references and supporting documents
(including the Draft Biological Report (NMFS, 2013a), the Draft
Economic Analysis (NMFS, 2013b), and the Draft Section 4(b)(2) Report
(NMFS, 2013c)) are also available electronically at http://www.nwr.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Dan Tonnes, NMFS, Northwest Region,
Protected Resources Division, at the address above or at 206-526-4643;
or Dwayne Meadows, NMFS, Office of Protected Resources, Silver Spring,
MD, 301-427-8403.
SUPPLEMENTARY INFORMATION:
Background
On April 28, 2010, we listed the Puget Sound/Georgia Basin Distinct
Population Segments (DPSs) of yelloweye rockfish and canary rockfish as
threatened under the Endangered Species Act (ESA), and bocaccio as
endangered (75 FR 22276). We are responsible for determining whether
species, subspecies, or distinct population segments (DPSs) are
threatened or endangered and designating their critical habitat under
the ESA (16 U.S.C. 1531 et seq.). In our proposal to list yelloweye
rockfish, canary rockfish, and bocaccio (74 FR 18516, April 23, 2009),
we requested information on the identification of specific areas that
meet the definition of critical habitat. We also solicited biological
and economic information relevant to making a critical habitat
designation for each species. We reviewed the comments provided and the
best available scientific information, and at the time of listing we
concluded that critical habitat was not determinable for each species
because sufficient information was not available to: (1) Identify the
physical and biological features essential to conservation, and (2)
assess the impacts of a designation. In addition to the data gaps
identified at the time of listing, sufficient information was not
available to fully determine the geographical area occupied by each
species. Following promulgation of the final rule to list each species,
we continued compiling the best available information necessary to
consider a critical habitat designation and additional information is
now available for these three DPSs to better inform the designation
process.
We considered various alternatives to the proposed critical habitat
designation for yelloweye rockfish, canary rockfish, and bocaccio of
the Puget Sound/Georgia Basin. The alternative of not designating
critical habitat for each species would impose no economic, national
security, or other relevant impacts, but would not provide any
conservation benefit to the species. This alternative was considered
and rejected because it does not meet the legal requirements of the ESA
and would not provide for the conservation of each species. The
alternative of designating all potential critical habitat areas (i.e.,
no areas excluded) also was considered and rejected because for some
areas the benefits of exclusion outweighed the benefits of inclusion.
An alternative to designating all potential critical habitat areas is
the designation of critical habitat within a subset of these areas.
Under section 4(b)(2) of the ESA, we must consider the economic
impacts, impacts on national security, and other relevant impacts of
designating any particular area as critical habitat. The Secretary of
Commerce (Secretary) has the discretion to exclude an area from
designation as critical habitat if the benefits of exclusion (i.e., the
impacts that would be avoided if an area were excluded from the
designation) outweigh the benefits of designation (i.e., the
conservation benefits to these species if an area were designated) so
long as exclusion of the area will not result in extinction of the
species. We prepared an analysis describing our exercise of discretion,
which is contained in our final Section4(b)(2) Report (NMFS, 2013c).
Under this alternative we propose to exclude Indian lands as well as
several areas under the control of the Department of Defense (DOD). We
selected this alternative because it results in a critical habitat
designation that provides for the conservation of listed rockfish while
avoiding impacts to Indian lands and impacts to national security. This
alternative also meets the requirements under the ESA and our joint
NMFS-U.S. Fish and Wildlife Service (USFWS) regulations concerning
critical habitat.
Yelloweye Rockfish, Canary Rockfish, and Bocaccio Natural History and
Habitat Use
Our draft Biological Report (NMFS, 2013a) describes the life
histories of yelloweye rockfish, canary rockfish and bocaccio in
detail, which are summarized here. Their life histories include pelagic
larval and juvenile stages followed by a juvenile stage in shallower
waters, and a sub-adult/adult stage. Much of the life history of these
three species is similar, with differences noted below.
Rockfish are iteroparous (i.e., have multiple reproductive cycles
during their lifetime) and are typically long-lived (Love et al.,
2002). Yelloweye rockfish are one of the longest lived of the
rockfishes, reaching more than 100 years of age. Yelloweye rockfish
reach 50 percent maturity at sizes of 16 to 20 inches (40 to 50
centimeters) and ages of 15 to 20 years (Rosenthal et al., 1982;
Yamanaka and Kronlund, 1997). The maximum age of canary rockfish is at
least 84 years (Love et al. 2002), although 60 to 75 years is more
common (Caillet et al., 2000). Canary rockfish reach 50 percent
maturity at sizes around 16 inches (40 centimeters) and ages of 7 to 9
years. The maximum age of bocaccio is unknown, but may exceed 50 years.
Bocaccio are reproductively mature near age 6 (FishBase, 2010). Mature
females of each species produce from several thousand to over a million
eggs annually (Love et al., 2002). Being long-lived allows each species
to persist through many years of poor reproduction until a good
recruitment year occurs.
[[Page 47637]]
Rockfish fertilize their eggs internally and the young are extruded
as larvae. Upon parturition (birth), larval rockfish can occupy the
full water column but generally occur in the upper 80 m (262 feet)
(Love et al., 2002; Weis, 2004). Larval rockfish have been documented
in Puget Sound (Greene and Godersky, 2012), yet most studies have not
identified individual fish to species. There is little information
regarding the habitat requirements of rockfish larvae, though other
marine fish larvae biologically similar to rockfish larvae are
vulnerable to low dissolved oxygen levels and elevated suspended
sediment levels that can alter feeding rates and cause abrasion to
gills (Boehlert, 1984; Boehlert and Morgan, 1985; Morgan and Levings,
1989). Larvae have also been observed immediately under free-floating
algae, seagrass, and detached kelp (Shaffer et al., 1995; Love et al.,
2002). Oceanographic conditions within many areas of Puget Sound likely
result in the larvae staying within the basin where they are born
rather than being more broadly dispersed by tidal action or currents
(Drake et al., 2010).
Pelagic juveniles occur throughout the water column (Love et al.,
2002; Weis, 2004). When bocaccio and canary rockfish reach sizes of 1
to 3.5 inches (3 to 9 centimeters) or 3 to 6 months old, they settle
into shallow, intertidal, nearshore waters in rocky, cobble and sand
substrates with or without kelp (Love et al., 1991; Love et al., 2002).
This habitat feature offers a beneficial mix of warmer temperatures,
food, and refuge from predators (Love et al., 1991). Areas with
floating and submerged kelp species support the highest densities of
juvenile bocaccio and canary rockfish, as well as many other rockfish
species (Carr, 1983; Halderson and Richards, 1987; Matthews, 1989; Love
et al., 2002). Unlike bocaccio and canary rockfish, juvenile yelloweye
rockfish are not typically found in intertidal waters (Love et al.
1991; Studebaker et al. 2009), but are most frequently observed in
waters deeper than 98 feet (30 meters) near the upper depth range of
adults (Yamanaka et al., 2006).
Depth is generally the most important determinant in the
distribution of many rockfish species of the Pacific coast (Chen, 1971;
Williams and Ralston, 2002; Anderson and Yoklavich, 2007;Young et al.,
2010). Adult yelloweye rockfish, canary rockfish, and bocaccio
generally occupy habitats from approximately 30 to 425 m (90 ft to
1,394 ft) (Orr et al., 2000; Love et al., 2002), and in Federal waters
off the Pacific coast each species is considered part of the ``shelf
rockfish'' assemblage under the authorities of the Magnuson-Stevens
Fishery Conservation and Management Act because of their generally
similar habitat usages (50 CFR Part 660, Subparts C-G).
Adult yelloweye rockfish, canary rockfish, and bocaccio most
readily use habitats within and adjacent to areas that are highly
rugose (rough). These are benthic habitats with moderate to extreme
steepness; complex bathymetry; and/or substrates consisting of
fractured bedrock, rock, and boulder-cobble complexes (Yoklavich et
al., 2000; Love et al., 2002; Wang, 2005; Anderson and Yoklavich,
2007). Most of the benthic habitats in Puget Sound consist of
unconsolidated materials such as mud, sand, clays, cobbles and
boulders, and despite the relative lack of rock, some of these benthic
habitats are moderately to highly rugose. More complex marine habitats
are generally used by higher numbers of fish species relative to less
complex areas (Anderson and Yoklavich, 2007; Young et al., 2010), thus
supporting food sources for sub-adult and adult yelloweye rockfish,
canary rockfish, and bocaccio. More complex marine habitats also
provide refuge from predators and their structure may provide shelter
from currents, thus leading to energy conservation (Young et al.,
2010).
Though areas near rocky habitats or other complex structure are
most readily used by adults of each species, non-rocky benthic habitats
are also occupied. In Puget Sound, adult yelloweye rockfish, canary
rockfish, and bocaccio have been documented in areas with non-rocky
substrates such as sand, mud, and other unconsolidated sediments (Haw
and Buckley, 1971; Washington, 1977; Miller and Borton, 1980; Reum,
2006).
Prey
Food sources for yelloweye rockfish, canary rockfish, and bocaccio
occur throughout Puget Sound. However, each of the basins has unique
biomass and species compositions of fishes and invertebrates, which
vary temporally and spatially (Rice, 2007; Rice et al., 2012). Absolute
and relative abundance and species richness of most fish species in the
Puget Sound/Georgia Basin increase with latitude (Rice, 2007; Rice et
al., 2012). Despite these differences, each basin hosts common food
sources for yelloweye rockfish, canary rockfish, and bocaccio as
described below.
Larval and juvenile rockfish feed on very small organisms such as
zooplankton, copepods and phytoplankton, small crustaceans,
invertebrate eggs, krill, and other invertebrates (Moser and Boehlert,
1991; Love et al., 1991; Love et al., 2002). Larger juveniles also feed
upon small fish (Love et al., 1991). Adult yelloweye rockfish, canary
rockfish, and bocaccio have diverse diets that include many species of
fishes and invertebrates including but not limited to crabs, various
rockfish (Sebastes spp.), flatfish (Pleuronectidae spp.), juvenile
salmon (Oncorhynchus spp.), walleye pollock, (Theragra chalcogramma),
Pacific hake (Merluccius productus), Pacific cod (Gadus macrocephalus),
green sea urchin (Stongylocentrotus droebachiensis), lingcod (Ophiodon
elongates) eggs, various shrimp species (Pandalus spp.), and perch
(Rhacochilus spp.). Common forage fish that are part of their diets
include Pacific herring (Clupea harengus pallasi), surf smelt
(Hypomesus pretiosus), and Pacific sand lance (Ammodytes hexapterus)
(Washington et al., 1978; Lea et al., 1999; Love et al., 2002; Yamanaka
et al., 2006).
Statutory and Regulatory Background for Critical Habitat Designations
The ESA defines critical habitat under section 3(5)(A) as: ``(i)
The specific areas within the geographical area occupied by the
species, at the time it is listed . . . , on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) which may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed . .
. upon a determination by the Secretary [of Commerce] that such areas
are essential for the conservation of the species.''
Section 4(a) of the ESA precludes military land from designation,
where that land is covered by an Integrated Natural Resource Management
Plan that the Secretary has found in writing will benefit the listed
species.
Section 4(b)(2) of the ESA requires us to designate critical
habitat for threatened and endangered species ``on the basis of the
best scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impact, of specifying any particular area as critical
habitat.'' It grants the Secretary of Commerce (Secretary) discretion
to exclude any area from critical habitat if he determines ``the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat.'' In adopting this provision,
Congress explained that, ``[t]he consideration and weight given to any
particular impact is completely within the Secretary's discretion.''
H.R.
[[Page 47638]]
No. 95-1625, at 16-17 (1978). The Secretary's discretion to exclude is
limited, as he may not exclude areas that ``will result in the
extinction of the species.''
Once critical habitat is designated, section 7 of the ESA requires
Federal agencies to ensure they do not fund, authorize, or carry out
any actions that will destroy or adversely modify that habitat. This
requirement is in addition to the section 7 requirement that Federal
agencies ensure their actions do not jeopardize the continued existence
of listed species.
Methods and Criteria Used To Identify Specific Areas Eligible for
Critical Habitat
In the following sections, we describe the relevant definitions and
requirements in the ESA and our implementing regulations and the key
methods and criteria used to prepare this proposed critical habitat
designation. Discussion of the specific implementation of each item
occurs within the species-specific sections. In accordance with section
4(b)(2) of the ESA and our implementing regulations (50 CFR 424.12),
this proposed designation is based on the best scientific information
available concerning the species' present and historical range,
habitat, and biology, as well as threats to their habitat. In preparing
this proposed designation, we reviewed and summarized current
information on these species, including recent biological surveys and
reports, peer-reviewed literature, NMFS status reviews, and the
proposed and final rules to list these species. All of the information
gathered to create this proposed rule has been collated and analyzed in
three supporting documents: A Draft Biological Report (NMFS, 2013a); a
Draft Economic Analysis (NMFS, 2013b); and a Draft Section 4(b)(2)
Report (NMFS, 2013c). We used these reports to inform the
identification of specific areas as critical habitat. We followed a
five-step process in order to identify these specific areas: (1)
Determine the geographical area occupied by the species at the time of
listing, (2) identify physical or biological habitat features essential
to the conservation of the species, (3) delineate specific areas within
the geographical area occupied by the species on which are found the
physical or biological features, (4) determine whether the features in
a specific area may require special management considerations or
protections, and (5) determine whether any unoccupied areas are
essential for conservation. As described later, we did not identify any
unoccupied areas that are essential for conservation. Once we have
identified specific areas, we then considered the economic impact,
impact on national security, and any other relevant impacts. The
Secretary has the discretion to exclude an area from designation if he
determines the benefits of exclusion (that is, avoiding the impact that
would result from designation), outweigh the benefits of designation
based on the best available scientific and commercial information. Our
evaluation and determinations are described in detail in the following
sections, in addition to our consideration of military lands.
Geographical Area Occupied by the Species
In the status review and final ESA listing for each species, we
identified a Puget Sound/Georgia Basin DPS for yelloweye rockfish,
canary rockfish, and bocaccio (Drake et al. 2010; 75 FR 22276, April
28, 2010). Our review of the best available data confirmed that
yelloweye rockfish, canary rockfish, and bocaccio occupy each of the
major biogeographic basins of the Puget Sound/Georgia Basin (NMFS,
2013a). The range of the DPS includes portions of Canada; however, we
cannot designate areas outside U.S. jurisdiction as critical habitat
(50 CFR 424.12(h)). Puget Sound and Georgia Basin make up the southern
arm of an inland sea located on the Pacific Coast of North America and
connected to the Pacific Ocean by the Strait of Juan de Fuca. The term
``Puget Sound proper'' refers to the waters east of and including
Admiralty Inlet. Puget Sound is a fjord-like estuary covering 2,331.8
sq mi (6,039.3 sq km) and has 14 major river systems and its benthic
areas consist of a series of interconnected basins separated by
relatively shallow sills, which are bathymetric shallow areas.
Physical or Biological Features Essential to Conservation
Agency regulations at 50 CFR 424.12(b) interpret the statutory
phrase ``physical or biological features essential to the conservation
of the species.'' The regulations state that these features include,
but are not limited to, space for individual and population growth and
for normal behavior; food, water, air, light, minerals, or other
nutritional or physiological requirements; cover or shelter; sites for
breeding, reproduction, and rearing of offspring; and habitats that are
protected from disturbance or are representative of the historical
geographical and ecological distribution of a species. These
regulations go on to emphasize that the agency shall focus on ``primary
constituent elements'' within the specific areas considered for
designation. The regulations state:
Primary constituent elements may include, but are not limited
to, the following: roost sites, nesting grounds, spawning sites,
feeding sites, seasonal wetland or dryland, water quality or
quantity, host species or plant pollinator, geological formation,
vegetation type, tide, and specific soil types.
Based on the best available scientific information regarding
natural history and habitat needs, we developed a list of physical and
biological features essential to the conservation of adult and juvenile
yelloweye rockfish, canary rockfish, and bocaccio and relevant to
determining whether proposed specific areas are consistent with the
above regulations and the ESA section (3)(5)(A) definition of
``critical habitat.'' We do not currently have sufficient information
regarding the habitat requirements of larval yelloweye rockfish, canary
rockfish, and bocaccio to determine which features are essential for
conservation, and thus are not proposing to designate critical habitat
specifically for this life-stage. However, we will continue to
investigate this issue and seek comment on it as part of this proposed
rule. The physical or biological features essential to the conservation
of yelloweye rockfish, canary rockfish, and bocaccio fall into major
categories reflecting key life history phases:
Physical or Biological Features Essential to the Conservation of Adult
Canary Rockfish and Bocaccio, and Adult and Juvenile Yelloweye Rockfish
Benthic habitats or sites deeper than 30m (98ft) that possess or
are adjacent to areas of complex bathymetry consisting of rock and or
highly rugose habitat are essential to conservation because these
features support growth, survival, reproduction, and feeding
opportunities by providing the structure for rockfish to avoid
predation, seek food and persist for decades. Several attributes of
these sites determine the quality of the habitat and are useful in
considering the conservation value of the associated feature, and
whether the feature may require special management considerations or
protection. These attributes are also relevant in the evaluation of the
effects of a proposed action in a section 7 consultation if the
specific area containing the site is designated as critical habitat.
These attributes include: (1) Quantity, quality, and availability of
prey species to support individual growth, survival, reproduction, and
feeding opportunities, (2) water quality and sufficient levels of
dissolved oxygen to
[[Page 47639]]
support growth, survival, reproduction, and feeding opportunities, and
(3) the type and amount of structure and rugosity that supports feeding
opportunities and predator avoidance.
Physical and Biological Features Essential to the Conservation of
Juvenile Canary Rockfish and Bocaccio
Juvenile settlement habitats located in the nearshore with
substrates such as sand, rock and/or cobble compositions that also
support kelp (families Chordaceae, Alariaceae, Lessoniacea,
Costariaceae, and Laminaricea) are essential for conservation because
these features enable forage opportunities and refuge from predators
and enable behavioral and physiological changes needed for juveniles to
occupy deeper adult habitats. Several attributes of these sites
determine the quality of the area and are useful in considering the
conservation value of the associated feature and, in determining
whether the feature may require special management considerations or
protection. These features also are relevant to evaluating the effects
of a proposed action in a section 7 consultation if the specific area
containing the site is designated as critical habitat. These attributes
include: (1) Quantity, quality, and availability of prey species to
support individual growth, survival, reproduction, and feeding
opportunities; and (2) water quality and sufficient levels of dissolved
oxygen to support growth, survival, reproduction, and feeding
opportunities.
Specific Areas Within the Geographical Area Occupied by the Species
After determining the geographical area of the Puget Sound/Georgia
Basin occupied by adult and juvenile yelloweye rockfish, canary
rockfish, and bocaccio, and the physical and biological features
essential to their conservation, we next identified the specific areas
within the geographical area occupied by the species that contain the
essential features. The U.S. portion of Puget Sound/Georgia Basin that
is occupied by yelloweye, canary, and bocaccio can be divided into five
biogeographic basins or areas based on the presence and distribution of
adult and juvenile rockfish, geographic conditions, and habitat
features (Figure 1). These five interconnected areas are: (1) The San
Juan/Strait of Juan de Fuca Basin, (2) Main Basin, (3) Whidbey Basin,
(4) South Puget Sound, and (5) Hood Canal (Drake et al., 2010, NMFS
2013a). These interconnected basins are separated by relatively shallow
sills. The configuration of sills and deep basins results in the
partial recirculation of water masses in the Puget Sound and the
retention of contaminants, sediment, and biota (Strickland, 1983). The
sills largely define the boundaries between the basins and contribute
to the generation of relatively fast water currents during portions of
the tidal cycle. The sills, in combination with bathymetry, freshwater
input, and tidal exchange, influence environmental conditions such as
the movement and exchange of biota from one region to the next, water
temperatures and water quality, and they also restrict water exchange
(Ebbesmeyer et al., 1984; Burns, 1985; Rice, 2007). In addition, each
basin differs in biological condition; depth profiles and contours;
sub-tidal benthic, intertidal habitats; and shoreline composition and
condition (Downing, 1983; Ebbesmeyer et al., 1984; Burns, 1985; Rice,
2007; Drake et al., 2010). These areas also meet the definition of
specific areas under ESA section (3)(5)(A) because each one contains
the essential physical and biological features for juvenile rearing
and/or adult reproduction, sheltering, or feeding for yelloweye
rockfish, canary rockfish, and bocaccio. We do not currently have
sufficient information regarding the habitat requirements of larval
yelloweye rockfish, canary rockfish, and bocaccio to allow us to
determine essential features specific to the larval life stage.
BILLING CODE 3501-2210-P
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[GRAPHIC] [TIFF OMITTED] TP06AU13.043
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We considered the distribution of the essential features within
these areas. We used available geographic data to
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delineate and map the essential features within each of the specific
areas.
Delineating and Mapping Areas of Complex Bathymetry Deeper than 30
Meters Containing Features Essential to the Conservation of Adult
Canary, Yelloweye and Bocaccio Rockfish and Juvenile Yelloweye
To determine the distribution of essential features of benthic
habitats deeper than 30 m (98 ft) with complex bathymetry, we relied on
benthic habitat characterizations of each of the five basins of Puget
Sound. We used the Benthic Terrain Model (BTM) developed by the NMFS
Northwest Fisheries Science Center, which classifies terrain in all
five basins (Davies, 2009). We also assessed recent benthic maps in the
San Juan Basin (Greene and Barrie, 2011; Greene, 2012). We used these
information sources to assess the presence of complex bathymetry in
waters deeper than 30 m (98 ft).
The BTM is a collection of ArcGIS-based terrain visualization tools
that can be used to examine the deepwater benthic environment using
input bathymetric data sets. High resolution bathymetric data, most
often obtained through acoustic means such as multibeam sonar mapping
instruments, creates a digital representation of seafloor topography.
The spatial analysis functions of a geographic information system (GIS)
allow for the extraction of several derived products from bathymetric
data, such as slope, bathymetric position, and rugosity. The BTM can
also be used to classify data based on a combination of slope (a first-
order derivative of bathymetry), and broad- and fine-scaled bathymetric
position indices (Bathymetric Position Index, second-order derivatives
of bathymetry) describing the depth of a specific point relative to the
surrounding bathymetry, and produces grid layers of terrain-based zones
and structures. The BTM classifies benthic terrain at a 30 m (98 ft)
grid scale in several categories that include flats, depressions,
crests, shelves, and slopes, but does not delineate benthic substrate
type. The BTM also provides a ``rugosity'' value, which is a
measurement of variations or amplitude in the height of a surface--in
this case, the seafloor (Kvitek et al., 2003; Dunn and Halpin, 2009).
Rugosity values range from 0 (i.e., flat habitat) to 5.7 (very complex
habitat). We refer to benthic areas with rugosity values of 1.005 or
higher as ``high rugosity.'' We selected a rugosity value of 1.005 and
higher as representing the presence of this essential feature because
the spatial area mapped as proposed critical habitat at that level of
rugosity encompassed the vast majority of the documented occurrences
with precise spatial data of yelloweye rockfish (90%), canary rockfish
(86%), and bocaccio (92%) within the DPSs (NMFS, 2013a). Rugosity
values can be used as a surrogate for reef fish diversity when other
data on habitats are lacking (Pittman et al. 2007). Similarly, areas of
high rugosity have been used as an indicator of hard-bottomed habitat
(Dunn and Halpin 2009).
In addition to the BTM, we used available benthic maps to assess
rockfish habitat in the San Juan Basin. Unlike the rest of the basins
of the Puget Sound, comprehensive seafloor characterization and mapping
has occurred in most of the San Juan Archipelago and southern Georgia
Strait (Greene and Barrie, 2011; Greene, 2012). This mapping was
generated by multibeam and backscatter sonar surveys. These habitat
maps provide information on the benthic terrain for most of the San
Juan area, including specific benthic terrain types (i.e., ``fractured
bedrock'' and ``hummocky unconsolidated sediments''), which can be used
to identify complex bathymetry.
We analyzed whether the BTM encompassed the rocky habitats of the
San Juan Islands mapped by Green and Barrie (2011) and found just over
1 sq mi (1.6 sq km) was composed of rock but not identified as having
rugosity values equal to or greater than 1.005 by the BTM. This is just
2 percent of the overall amount of rocky areas mapped by Green and
Barrie (2011). This assessment served as verification that the BTM's
rugosity values of equal to or greater than 1.005 encompass most rocky
terrain in the San Juan Basin. In addition to the areas identified as
high rugosity by the BTM, we concluded that the 2 percent of rocky
areas in the San Juan Basin not characterized as high rugosity contain
the essential features of rockfish critical habitat and were added to
the final distribution map for this essential feature (NMFS, 2013a).
Delineating and Mapping Settlement Sites Containing Features Essential
to the Conservation of Juvenile Canary and Boccacio Rockfish
In delineating juvenile settlement sites in Puget Sound, we focused
on the area contiguous with the shoreline from extreme high water out
to a depth no greater than 30 meters relative to mean lower low water
because this area coincides with the maximum depth of the photic zone
in Puget Sound and thus, with appropriate substrates that can support
the growth of kelp and rearing canary rockfish and bocaccio. To
determine the distribution of essential features of nearshore habitats
for juvenile canary rockfish and bocaccio, we used the Washington State
Department of Natural Resources' (DNR) shorezone inventory (Berry,
2001) in combination with the benthic habitat classifications of the
BTM related to the locations where moderate and large rivers enter
Puget Sound (NMFS, 2013a).
The DNR shorezone habitat classifications are available for all of
the shoreline within the ranges of the DPSs. We used the habitat
characteristics described in the shorezone inventory to assist in
determining if essential features for juvenile canary rockfish and
bocaccio occur along particular nearshore areas. The shorezone
inventory was conducted by aerial visual surveys between 1994 and 2000
along all of Washington State's shorelines (Berry et al., 2001). The
DNR subdivided beaches into units that are sections of beach with
similar geomorphic characteristics. Within each unit, the DNR
documented the presence of eelgrass or kelp, among other biological
parameters. There are 6,856 shoreline segments in the range of the
rockfish DPSs, ranging from 0.02 to 14 kilometers (0.01 to 8.7 mi) in
length. The DNR delineated 15 different geomorphic shoreline types. The
DNR's mapping of aquatic vegetation had limitations, because shoreline
segments were observed by aerial surveys during different years and
months. Aquatic vegetation growth, including kelp, is variable from
month to month and year to year. Some kelp species are annuals, thus
surveys that took place during non-growing seasons may have not mapped
kelp beds where they actually occur. Non-floating kelp species in
particular may have also been underestimated by the DNR survey methods
because they were more difficult to document than floating kelp. In
particular, all kelp species mapped were usually not visible to their
lower depth limit because of poor visibility through the water column.
While beds of vegetation may have been visible underwater, often it was
not possible to determine what particular type of vegetation was
present because of a lack of color characteristics. In addition,
because floating kelp occurs in shallow waters, off-shore of the area
visible from the aircraft, it was not mapped in many cases. For these
reasons, the mapped kelp within the shorezone database represents an
underestimation of the total amount of kelp along Puget Sound
shorelines.
To determine which shorelines contained the essential features for
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juvenile canary rockfish and bocaccio, we reviewed their geomorphic
classifications to see if they possessed ``substrates such as sand,
rock and/or cobble compositions.'' In addition, we assessed the
relative overlap of mapped kelp in these shoreline types. All but the
``Estuary Wetland'' and ``Mud Flat'' type shoreline segments had at
least 20 percent of the segment with ``continuous'' or ``sporadic''
kelp mapped by DNR. The Estuary Wetland and Mud Flat type segments had
very small portions of kelp (1.5 and 2.6 percent, respectively). We
found that the Estuary Wetland and Mud Flat type shoreline segments
longer than one-half lineal mile in length lack essential features for
canary rockfish and bocaccio.
To assess nearshore estuaries and deltas of moderate and large
rivers that enter Puget Sound, we used information from Burns (1983)
and Teizeen (2012) to determine the location and annual flows of these
rivers. These rivers input various volumes of sediment and fresh water
into Puget Sound (Downing, 1983; Burns, 1985; Czuba et al., 2011) and
profoundly influence local benthic habitat characteristics, salinity
levels, and local biota. The nearshore areas adjacent to moderate-to-
large river deltas are characterized by the input of fresh water and
fine sediments that create relatively flat habitats (termed ``shelves''
by the BTM) that do not support the growth of kelp (NMFS, 2013a). In
addition, the net outward flow of these deltas may prevent post-
settlement juvenile canary rockfish or bocaccio from readily using
these habitats. For these reasons we found that these nearshore areas
do not contain the essential features of rearing sites for canary
rockfish or bocaccio (juvenile yelloweye rockfish most commonly occupy
waters deeper than the nearshore).
The DNR shorezone survey did not delineate the geomorphic extent of
shoreline segments associated with estuaries and deltas. Thus we
determined the geographical extent of these estuaries and shelves from
the BTM ``shelf'' seafloor designation associated with the particular
river because it indicates the geomorphic extension of the tidal and
sub-tidal delta where fresh water enters Puget Sound. Not all of the
shorelines associated with estuaries and deltas were labeled as
``estuary wetland'' and ``mud flat'' by DNR, thus we delineated
juvenile settlement sites located in the nearshore at the border of
these deltas at either the geomorphic terminus of the delta at the 30 m
(98 ft) contour, and/or at the shoreline segment mapped with kelp by
the DNR. By doing this, we eliminated some of the other shorezone
geomorphic shoreline types from proposed critical habitat designation
because available information did not support the presence of essential
features at some specific areas adjacent to moderate to large rivers
(see NMFS, 2013a).
Special Management Considerations or Protection
An occupied area cannot be designated as critical habitat unless it
contains physical or biological features that ``may require special
management considerations or protection.'' Agency 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.'' Many forms of human activities have the potential to affect
the essential features of listed rockfish species: (1) Nearshore
development and in-water construction (e.g., beach armoring, pier
construction, jetty or harbor construction, pile driving construction,
residential and commercial construction); (2) dredging and disposal of
dredged material; (3) pollution and runoff; (4) underwater construction
and operation of alternative energy hydrokinetic projects (tidal or
wave energy projects) and cable laying; (5) kelp harvest; (6)
fisheries; (7) non-indigenous species introduction and management; (8)
artificial habitats; (9) research activities; and (10) aquaculture. All
of these activities may have an effect on one or more physical or
biological features via their potential alteration of one or more of
the following: adult habitats, food resources, juvenile settlement
habitat, and water quality. Further detail regarding the biological and
ecological effect of these species management considerations is found
in the draft Biological Report (NMFS, 2013a).
Descriptions of Essential Features and Special Management
Considerations in Each Specific Area
We describe the five basins (the specific areas) of the Puget Sound
below in terms of their biological condition and attributes, and full
details are found in the biological report supporting this proposed
designation (NMFS, 2013a). Each basin has different levels of human
impacts related to the sensitivity of the local environment, and degree
and type of human-derived impacts. We have also included examples of
some of the activities that occur within these basins that affect the
essential features such that they may require special management
considerations or protection.
The San Juan/Strait of Juan de Fuca Basin--This basin is the
northwestern boundary of the U.S. portion of the DPSs. The basin is
delimited to the north by the Canadian border and includes Bellingham
Bay, to the west by the entrance to the Strait of Juan de Fuca, to the
south by the Olympic Peninsula and Admiralty Inlet, and to the east by
Whidbey Island and the mainland between Anacortes and Blaine,
Washington. The predominant feature of this basin is the Strait of Juan
de Fuca, which is 99.4 mi (160 km) long and varies from 13.7 mi (22 km)
wide at its western end to over 24.9 mi (40 km) wide at its eastern end
(Thomson, 1994). Drake et al. (2010) considered the western boundary of
the DPSs as the Victoria Sill because it is hypothesized to control
larval dispersal for rockfish (and other biota) of the region. Water
temperatures are lower and more similar to coastal marine waters than
to Puget Sound proper, and circulation in the strait consists of a
seaward surface flow of diluted seawater (<30.0 practical salinity
units [psu]) in the upper layer and an inshore flow of saline oceanic
water (>33.0 psu) at depth (Drake et al., 2010). Water exchange in this
basin has not been determined because, unlike the rest of the basins of
the DPSs, it is more oceanic in character and water circulation is not
nearly as constrained by geography and sills as it is in the other
basins.
The San Juan/Strait of Juan de Fuca Basin has the most rocky
shoreline and benthic habitats of the U.S. portion of the DPSs. Most of
the basin's numerous islands have rocky shorelines with extensive,
submerged aquatic vegetation and floating kelp beds necessary for
juvenile canary rockfish and bocaccio settlement sites.
This basin also contains abundant sites deeper than 30 meters that
possess or are adjacent to areas of complex bathymetry. Approximately
93 percent of the rocky benthic habitats of the U.S. portion of the
range of all three DPSs are in this basin (Palsson et al., 2009). Plate
tectonic processes and glacial scouring/deposition have produced a
complex of fjords, grooved and polished bedrock outcrops, and erratic
boulders and moraines along the seafloor of the San Juan Archipelago
(Greene, 2012). Banks of till and glacial advance outwash deposits have
also formed and contribute to the variety of relief and habitat within
the basin. These processes have contributed to the development of
benthic areas with complex bathymetry.
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Yelloweye rockfish, canary rockfish, and bocaccio have been
documented in the San Juan Archipelago, in addition to the southern
portion of this basin along the Strait of Juan de Fuca (Washington,
1977; Moulton and Miller, 1987; Pacunski, 2013). The southern portion
of this basin has several pinnacles that include Hein, Eastern, Middle,
MacArthur, Partridge, and Coyote Banks. Yelloweye rockfish were once
commonly caught by anglers along these areas, particularly Middle Bank
(Olander, 1991).
As described in more detail in the biological report (NMFS, 2013a),
there are several activities that occur in this basin that affect the
essential features such that they may require special management
considerations. Commercial and recreational fisheries occur here, as
well as scientific research. The highest concentration of derelict
fishing nets in the DPSs remain here, including over 100 nets in waters
deeper than 100 ft (30.5 m) (NRC, 2010), and an estimated 705 nets in
waters shallower than 100 ft (30.5 m) (Northwest Straits Initiative,
2011). Because this basin has the most kelp in the DPSs, commercial
harvest of kelp could be proposed for the San Juan Islands area. The
Ports of Bellingham and Anacortes are located in this basin, and
numerous dredging and dredge disposal projects and nearshore
development, such as new docks, piers, and bulkheads occur in this
basin. These development actions have the potential to alter juvenile
settlement sites of canary rockfish and bocaccio. Two open-water dredge
disposal sites are located in the basin, one in Rosario Strait and the
other northwest of Port Townsend. These are termed dispersive sites
because they have higher current velocities; thus, dredged material
does not accumulate at the disposal site and settles on benthic
environments over a broad area (Army Corps of Engineers, 2010).
Sediment disposal activities in this specific area may temporarily
alter water quality (dissolved oxygen levels) and feeding opportunities
(the ability of juvenile rockfish to seek out prey). There are several
areas with contaminated sediments along the eastern portion of this
basin, particularly in Bellingham Bay and Guemes Channel near
Anacortes.
Whidbey Basin--The Whidbey Basin includes the marine waters east of
Whidbey Island and is delimited to the south by a line between
Possession Point on Whidbey Island and Meadowdale, south of Mukilteo.
The northern boundary is Deception Pass at the northern tip of Whidbey
Island. The Skagit, Snohomish, and Stillaguamish Rivers flow into this
basin and contribute the largest influx of freshwater inflow to Puget
Sound (Burns, 1985). Water retention is approximately 5.4 months due to
the geography and sills at Deception Pass (Ebbesmeyer et al., 1984).
Most of the nearshore of the Whidbey Basin consists of bluff-backed
beaches with unconsolidated materials ranging from mud and sand to
mixes or gravels and cobbles (McBride 2006). Some of these nearshore
areas support the growth of kelp. Some of the northern part of this
basin is relatively shallow with moderately flat bathymetry near the
Skagit, Stillaguamish and Snohomish River deltas and does not support
kelp growth because it lacks suitable areas for holdfast attachment,
such as rock and cobble.
Benthic areas in this basin contain sites deeper than 30 meters
that possess or are adjacent to areas of complex bathymetry. The
southern portion of the basin has more complex bathymetry compared to
the north, with deeper waters adjacent to Whidbey Island, southern
Camano Island, and near the City of Mukilteo.
Yelloweye rockfish, canary rockfish, and bocaccio have been
documented in the Whidbey basin, with most occurrences within the
southern portion near south Camano Island, Hat (Gedney) Island, and
offshore of the City of Mukilteo. It is not known if the southern
portion of the Whidbey basin has more attractive rockfish habitat
compared to the northern portion, or if most documented occurrences are
a reflection of uneven sampling effort over the years.
As described in more detail in the biological report, there are
several activities that occur in this basin that affect the essential
features such that they may require special management considerations.
Activities include commercial and recreational fisheries, scientific
research, dredging projects and dredge disposal operations, nearshore
development projects, aquaculture and tidal energy projects. An
estimated 18 derelict nets remain in waters shallower than 100 ft (30.5
m) in this basin (Northwest Straits Initiative, 2011). A potential
tidal energy site is located within the Deception Pass area, at the
northern tip of Whidbey Island. Pollution and runoff are also concerns
in this basin, mostly near the Port Gardner area. There are several
areas with contaminated sediments along the eastern portion of this
basin, particularly near the Cities of Mukilteo and Everett.
Main Basin--The 62.1 mi (100 km) long Main Basin is delimited to
the north by a line between Point Wilson near Port Townsend and
Partridge Point on Whidbey Island, to the south by Tacoma Narrows, and
to the east by a line between Possession Point on Whidbey Island and
Meadow Point. The sill at the border of Admiralty Inlet and the eastern
Straits of Juan de Fuca regulates water exchange of Puget Sound (Burns,
1985). The Main Basin is the largest basin, holding 60 percent of the
water in Puget Sound proper. Water retention is estimated to be one
month due to the sills at Admiralty Inlet and Deception Pass
(Ebbesmeyer et al., 1984).
Approximately 33 percent (439.3 mi (707 km)) of Puget Sound's
shoreline occurs within this basin and nearshore habitats consist of
bluff-backed beaches with unconsolidated materials ranging from mud and
sand to mixes or gravels and cobbles (Drake et al., 2010). Some of
these nearshore areas support the growth of kelp. Subtidal surface
sediments in Admiralty Inlet tend to consist largely of sand and
gravel, whereas sediments just south of the inlet and southwest of
Whidbey Island are primarily sand. Areas deeper than 30 meters in the
Main Basin have varying amounts of sites that possess or are adjacent
to areas of complex bathymetry. Sediments in the deeper areas of the
central portion of the Main Basin generally consist of mud or sandy mud
(Bailey et al., 1998) and are generally not complex. Possession Point
is centrally located within this basin at the southern end of Whidbey
Island, and has relatively steep eastern, southern, and western edges
and also has some rocky substrates (Squire and Smith, 1977). There are
benthic areas deeper than 98 ft (30 m) along Possession Point,
Admiralty Inlet and the rims of Puget Sound beyond the nearshore that
feature complex bathymetry, with slopes and areas of high rugosity.
Yelloweye rockfish, canary rockfish, and bocaccio have been
documented at Possession Point, near the port of Kingston and Apple
Cove, and along much of the eastern shoreline of this basin
(Washington, 1977; Moulton and Miller, 1987).
As described in more detail in the biological report, there are
several activities that occur in this basin that affect the essential
features such that they may require special management considerations.
Activities include commercial and recreational fisheries, scientific
research, dredging projects and dredge disposal operations, nearshore
development projects, aquaculture and tidal energy projects. An
estimated 75 derelict nets in waters
[[Page 47644]]
shallower than 100 ft (30.5 m) remain in this basin (Northwest Straits
Initiative, 2011). A planned tidal energy site is located within the
Admiralty Inlet area off Whidbey Island. Pollution and runoff are also
concerns in this basin because of extensive amounts of impervious
surface located on its eastern side. Two open-water dredge disposal
sites are located in the basin, one located in Elliot Bay and the other
in Commencement Bay. These are non-dispersive disposal sites, which are
areas where currents are slow enough that dredged material is deposited
on the disposal target area rather than dispersing broadly with
prevailing currents (Army Corps of Engineers, 2010). An estimated 36
percent of the shoreline in this area has been modified by human
activities (Drake et al., 2010) and bulkhead/pier repair projects and
new docks/piers are proposed regularly in this basin. There are several
areas with contaminated sediments in this basin, particularly in Elliot
Bay, Sinclair Inlet, and Commencement Bay.
South Puget Sound--This basin includes all waterways south of
Tacoma Narrows, and is characterized by numerous islands and shallow
(generally <65 ft (20 m)) inlets with extensive shoreline areas. The
sill at Tacoma Narrows restricts water exchange between the South Puget
Sound and the Main Basin and water retention is an estimated 1.9 months
(Ebbesmeyer et al., 1984). This restricted water exchange influences
environmental characteristics of the South Puget Sound such as nutrient
levels and dissolved oxygen, and perhaps its biotic communities
(Ebbesmeyer et al., 1984; Rice, 2007).
Wide assortments of sediments are found in the nearshore and
intertidal areas of this basin (Bailey et al., 1998). The most common
sediments and the percent of the intertidal area they cover (with 95
percent confidence limits) are: Mud, 38.3 29.3 percent;
sand, 21.7 23.9 percent; mixed fine, 22.9
16.1 percent; and gravel, 11.1 4.9 percent. Subtidal areas
have a similar diversity of surface sediments, with shallower areas
consisting of mixtures of mud and sand and deeper areas consisting of
mud (Puget Sound Water Quality Authority, 1987). The southern inlets of
this basin include Oakland Bay, Totten Inlet, Bud Inlet and Eld Inlet,
in addition to the Nisqually River delta. These inlets have relatively
muddy habitats that do not support essential nearshore features such as
holdfasts for kelp, and rock and cobble areas for rearing juvenile
canary rockfish and bocaccio. Despite the prevalence of muddy and sandy
substrate in the southern portion of this basin, some of these
nearshore areas support the growth of kelp and therefore contain
juvenile settlement sites.
With a mean depth of 121 ft (37 m), this basin is the shallowest of
the five basins (Burns 1985). Benthic areas deeper than 98 ft (30 m)
occur in portions of the Tacoma Narrows and Dana Passage and around the
rims of the basin. Sediments in Tacoma Narrows and Dana Passage consist
primarily of gravel and sand. The rims of South Puget Sound beyond the
nearshore feature complex bathymetry, with slopes and areas of high
rugosity.
Yelloweye rockfish, canary rockfish, and bocaccio have been
documented within the South Puget Sound (NMFS, 2013a). Canary rockfish
may have been historically most abundant in the South Sound (Drake et
al., 2010).
As described in more detail in the biological report, there are
several activities that occur in this basin that affect the essential
features such that they may require special management considerations.
Activities include commercial and recreational fisheries, scientific
research, dredging and dredge disposal, nearshore development,
pollution and runoff, aquaculture operations, and potential tidal
energy projects. An estimated 4 derelict nets in waters shallower than
100 ft (30.5 m) remain in this basin (Northwest Straits Initiative,
2011). A non-dispersive dredge disposal site is located off Anderson/
Ketron Island (Army Corps of Engineers, 2010). A potential tidal energy
site is located in the Tacoma Narrows area. Important point sources of
waste include sewage treatment facilities, and about 5 percent of the
nutrients (as inorganic nitrogen) entering greater Puget Sound enter
this basin through nonpoint sources (Embrey and Inkpen, 1998). An
estimated 34 percent of the shoreline in this area has been modified by
human activities (Drake et al., 2010), and bulkhead/pier repair
projects and new docks/piers are proposed regularly in this basin. The
major urban areas, and thus more pollution and runoff into the South
Puget Sound, are found in the western portions of Pierce County. Other
urban centers in Southern Puget Sound include Olympia and Shelton.
There are several areas with contaminated sediments in this basin in
Carr Inlet and near Olympia.
Hood Canal--Hood Canal branches off the northwest part of the Main
Basin near Admiralty Inlet and is the smallest of the greater Puget
Sound basins, being 55.9 mi (90 km) long and 0.6 to 1.2 mi (1 to 2 km)
wide (Drake et al., 2010). Water retention is estimated at 9.3 months;
exchange in Hood Canal is regulated by a 164-foot (50-meter) deep sill
near its entrance that limits the transport of deep marine waters in
and out of Hood Canal (Ebbesmeyer et al., 1984; Burns, 1985). The major
components of this basin consist of the Hood Canal entrance, Dabob Bay,
the central basin, and the Great Bend at the southern end. A
combination of relatively little freshwater inflow, the sill at
Admiralty Inlet, and bathymetry lead to relatively slow currents; thus,
water residence time within Hood Canal is the longest of the
biogeographic basins, with net surface flow generally northward
(Ebbesmeyer et al., 1984).
The intertidal and nearshore zone consists mostly of mud (53.4
89.3 percent of the intertidal area), with similar amounts
of mixed fine sediment and sand (18.0 18.5 percent and
16.7 13.7 percent, respectively) (Bailey et al., 1998).
Some of the nearshore areas of Hood Canal have cobble and gravel
substrates intermixed with sand that support the growth of kelp.
Surface sediments in the subtidal areas also consist primarily of mud
and cobbles (Puget Sound Water Quality Authority, 1987). The shallow
areas of the Great Bend, Dabob Bay, and the Hamma Hamma, Quilcene,
Duckabusch, Dosewallips, Tahuya and Skokomish River deltas feature
relatively muddy habitats that lack holdfasts for kelp, such as rock
and cobble areas, and thus do not support kelp growth. Such areas thus
lack the essential feature of juvenile settlement sites for juvenile
canary rockfish and bocaccio.
Benthic areas deeper than 98 ft (30 m) occur along the rim of
nearly all of Hood Canal, and these areas feature complex bathymetry,
with slopes and areas of high rugosity.
Bocaccio have been documented in Hood Canal (NMFS, 2013a).
Yelloweye and canary rockfish have also been documented at several
locations and have been caught in relatively low numbers for the past
several years (WDFW, 2011).
As described in more detail in the biological report, there are
several activities that occur in this basin that affect the essential
features such that they may require special management considerations.
Activities in Hood Canal include commercial and recreational fisheries,
scientific research, nearshore development, non-indigenous species
management, aquaculture, and pollution and runoff. An estimated 81
derelict nets in waters shallower than 100 ft (30.5 m) remain in this
basin (Northwest Straits Initiative, 2011). The unique bathymetry and
low water exchange have led to episodic periods of low dissolved oxygen
(Newton et al., 2007),
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though the relative role of nutrient input from humans in exacerbating
these periods of hypoxia is in doubt (Cope and Roberts, 2012).
Dissolved oxygen levels have decreased to levels that cause behavioral
changes and kill some rockfish (i.e., below 1.0 mg/L (1 ppm)) (Palsson
et al., 2008). An estimated 34 percent of the shoreline in this area
has been modified by human activities (Drake et al., 2010), and
bulkhead/pier repairs and new docks/piers are regularly proposed in
this basin. The non-indigenous tunicate (Ciona savignyi) has been
document at 86 percent of sites surveyed in Hood Canal (Drake et al.,
2010), and may impact benthic habitat function that include rearing and
settlement habitat for rockfish.
Depicting Proposed Critical Habitat With Maps
As previously described, we first used available geographic data to
identify the locations of benthic sites with or adjacent to complex
bathymetry and shoreline sites with sand, rock and/or cobble
compositions that also support kelp, as described in more detail in the
draft Biological Report (NMFS, 2013a). Once we identified these sites,
we aggregated sites located in close proximity through Geographic
Information Systems methods described in NMFS (2013a), consistent with
the regulatory guidance regarding designation of an inclusive area for
habitats in close proximity (50 CFR 424.12(d)).
The specific areas we identified are large and we relied on recent
agency rulemaking to refine the designation and provide a critical
habitat map that clearly delineates where the essential features are
found within the specific areas. The agency recently amended its
critical habitat regulations to state that instead of designating
critical habitat using lines on a map, we will show critical habitat on
a map, with additional information discussed in the preamble of the
rulemaking and in agency records (50 CFR 424.12(c)), rather than
requiring long textual description in the Code of Federal Regulations
(CFR). In adopting this amendment to our regulations, we stated in
response to comments:
[I]n instances where there are areas within a bigger area that
do not contain the physical and biological features necessary for
the conservation of the species, the Services would have the option
of drawing the map to reflect only those parts of the area that do
contain those features (77 FR 25611, May 1, 2012).
The maps we developed for the present designation conform to this
new regulation. In addition, in agency records, and available on our
Web site, we provide the GIS plot points used to create these maps, so
interested persons may determine whether any place of interest is
within critical habitat boundaries (http://www.nwr.noaa.gov).
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.'' We conducted a review of the
documented occurrences of each listed rockfish in the five
biogeographic basins of Puget Sound (NMFS, 2013a). We found that each
of the basins is currently occupied by listed rockfish and our
biological review did not identify any unoccupied areas that are
essential to conservation and thus have not identified any unoccupied
areas as candidates for critical habitat designation (NMFS, 2013a).
However, we will continue to investigate this issue and seek comment on
this issue as part of this proposed rule.
Section 3(5)(C) of the ESA provides that ``[e]xcept in those
circumstances determined by the Secretary, critical habitat shall not
include the entire geographical area which can be occupied by the
threatened or endangered species.'' In this case we are proposing to
designate all the specific areas that possess essential features that
can be mapped (such as complex bathymetry in waters deeper than 30
meters, and nearshore areas such as sand, rock and/or cobble
compositions that also support kelp) and as described above, we are
only designating those portions of the specific areas that actually
contain the essential features. We acknowledge that some listed
rockfish have been documented to occur outside of the mapped areas that
we propose to designate as critical habitat (NMFS, 2013a) and that
larval listed rockfish could occur throughout the specific areas.
Therefore, although each specific area contains habitat proposed for
designation, we conclude that the proposed designation does not
constitute ``the entire geographical area which can be occupied'' by
the listed rockfish species.
Identifying Military Lands Ineligible for Designation
Section 4(a)(3) of the ESA precludes the Secretary from designating
military lands as critical habitat if those lands are subject to an
Integrated Natural Resource Management Plan (INRMP) under the Sikes Act
that the Secretary certifies in writing benefits the listed species. We
consulted with the DOD and determined that there are several
installations with INRMPs which overlap with marine habitats occupied
by listed rockfish: (1) Joint base Lewis-McCord: (2) Manchester Fuel
Department, (3) Naval Air Station Whidbey Island, (4) Naval Station
Everett, and (5) Naval Station Kitsap.
We found that Naval Station Everett does not overlap with essential
features for listed rockfish in the nearshore and thus the area covered
by the INRMP is not proposed for critical habitat designation. We
identified habitat meeting the statutory definition of critical habitat
at all of the other installations and reviewed the INRMPs, as well as
other information available, regarding the management of these military
lands. Our preliminary review indicates that each of these INRMPs
addresses listed rockfish habitat, and all contain measures that
provide benefits to the listed rockfish DPSs. Examples of the types of
benefits include actions that improve shoreline conditions, control
erosion and water quality, prevention of and prompt response to
chemical and oil spills, and monitoring of listed species and their
habitats. As a result, we conclude that the areas identified with
INRMPs are not eligible for critical habitat designation (see appendix
c of NMFS, 2013c).
Summary of Areas Meeting the Definition for Proposed Critical Habitat
Designation
We have determined that approximately 643.7 sq mi (1,665.5 sq km)
of nearshore habitat for juvenile canary rockfish and bocaccio, and
610.1 sq mi (1,580.95 sq km) of deepwater habitat for yelloweye
rockfish, canary rockfish, and bocaccio meet the definition of proposed
critical habitat (Table 1).
[[Page 47646]]
Table 1--Physical and Biological Features and Management Considerations for Yelloweye Rockfish, Canary Rockfish and Bocaccio in Areas Meeting the
Definition of Critical Habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
DPS basin Nearshore sq Deepwater sq Physical or biological features Activities
mi. (for mi. (for adult
juvenile and juvenile
canary and yelloweye
bocaccio only) rockfish,
adult canary
rockfish, and
adult
bocaccio)
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Juan/Strait of Juan de Fuca..... 352.2 298.98 Deepwater sites <30 Nearshore juvenile 1, 2, 3, 6, 9, 10
meters) that support rearing sites with
growth survival sand, rock and/or
reproduction and cobbles to support
feeding opportunities. forage and refuge.
Whidbey Basin....................... 51.44 41.47 1, 2, 3, 4, 6, 9, 10
Main Basin.......................... 145.75 179.74 1, 2, 3, 4, 6, 7, 9, 10
South Puget Sound................... 73.72 40.12 1, 2, 3, 4, 6, 7, 9, 10
Hood Canal.......................... 20 50.06 1, 2, 3, 6, 7, 9, 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Management Considerations Codes: (1) Nearshore development and in-
water construction (e.g., beach armoring, pier construction, jetty or
harbor construction, pile driving construction, residential and
commercial construction); (2) dredging and disposal of dredged
material; (3) pollution and runoff; (4) underwater construction and
operation of alternative energy hydrokinetic projects (tidal or wave
energy projects) and cable laying; (5) kelp harvest; (6) fisheries; (7)
non-indigenous species introduction and management; (8) artificial
habitats; (9) research; and (10) aquaculture. Commercial kelp harvest
does not occur presently, but would probably be concentrated in the San
Juan/Georgia Basin. Artificial habitats could be proposed to be placed
in each of the basins. Non-indigenous species introduction and
management could occur in each basin.
Application of ESA Section 4(b)(2)
The foregoing discussion describes those areas that are eligible
for designation as critical habitat--the specific areas that fall
within the ESA section 3(5)(A) definition of critical habitat, not
including lands owned or controlled by the DOD, or designated for its
use, that are covered by an INRMP that the Secretary has determined in
writing provides a benefit to the species. Specific areas eligible for
designation are not automatically designated as critical habitat. As
described above, Section 4(b)(2) of the ESA requires that the Secretary
first consider the economic impact, impact on national security, and
any other relevant impact. The Secretary has the discretion to exclude
an area from designation if he determines the benefits of exclusion
(that is, avoiding the impact that would result from designation),
outweigh the benefits of designation based on the best available
scientific and commercial information. The Secretary may not exclude an
area from designation if exclusion will result in the extinction of the
species. Because the authority to exclude is wholly discretionary,
exclusion is not required for any areas.
The first step in conducting an ESA section 4(b)(2) analysis is to
identify the ``particular areas'' to be analyzed. Section 3(5)(A) of
the ESA defines critical habitat as ``specific areas,'' while section
4(b)(2) of the ESA requires the agency to consider certain factors
before designating any ``particular area.'' Depending on the biology of
the species, the characteristics of its habitat, and the nature of the
impacts of designation, ``specific'' areas might be different from, or
the same as, ``particular'' areas. For this designation, we identified
the ``specific'' areas as (1) The San Juan/Strait of Juan de Fuca
Basin, (2) Main Basin, (3) Whidbey Basin, (4) South Puget Sound, and
(5) Hood Canal. For our economic impact analysis we defined the
``particular'' areas as equivalent to the ``specific'' areas. This
approach allowed us to most effectively consider the conservation value
of the different areas when balancing conservation benefits of
designation against economic benefits of exclusion. However, to assess
impacts of designation on national security and Indian lands, we
instead used a delineation of ``particular'' areas based on ownership
or control of the area. These ``particular'' areas consisted of marine
areas that overlap with designated military areas and Indian lands.
This approach allowed us to consider impacts and benefits associated
with management by the military or land ownership and management by
Indian tribes.
Identify and Determining the Impacts of Designation
Section 4(b)(2) of the ESA provides that the Secretary shall
consider ``the economic impact, impact on national security, and any
other relevant impact of specifying any particular area as critical
habitat.'' The primary impact of a critical habitat designation stems
from the requirement under section 7(a)(2) of the ESA that Federal
agencies ensure their actions are not likely to result in the
destruction or adverse modification of critical habitat. Determining
this impact is complicated by the fact that section 7(a)(2) contains
the overlapping requirement that Federal agencies must ensure their
actions are not likely to jeopardize the species' continued existence.
The true impact of designation is the extent to which Federal agencies
modify their actions to ensure their actions are not likely to destroy
or adversely modify the critical habitat of the species, beyond any
modifications they would make because of listing and the jeopardy
requirement for the species. Additional impacts of designation include
state and local protections that may be triggered as a result of the
designation.
In determining the impacts of designation, we assessed the
incremental change in Federal agency actions as a result of critical
habitat designation and the adverse modification prohibition, beyond
the changes predicted to occur as a result of listing and the jeopardy
provision. In August 2012 the USFWS and NOAA published a proposed rule
to amend our joint regulations at 50 CFR 424.19 to
[[Page 47647]]
make clear that in considering impacts of designation as required by
Section 4(b)(2) we would consider the incremental impacts (77 FR 51503,
August 24, 2012). This approach is in contrast to our 2005 critical
habitat designations for salmon and steelhead (70 FR 52630, September
2, 2005) where we considered the ``coextensive'' impact of designation.
The consideration of co-extensive impacts was in accordance with a
Tenth Circuit Court decision (New Mexico Cattle Growers Association v.
U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001)). More
recently, several courts (including the 9th Circuit Court of Appeals)
have approved an approach that considers the incremental impact of
designation. The Federal Register notice (77 FR 5103, August 24, 2012)
announcing the proposed policy on considering impacts of designation
describes and discusses these court cases: Arizona Cattlegrowers' Ass'n
v. Salazar, 606 F3.d 1160, 1172-74 (9th Cir. 2010), cert. denied, 131
S. Ct. 1471, 179 L. Ed. 2d 300 (2011); Homebuilders Ass'n v. FWS, 616
F3d 983, 991093j (9th Cir. 2010) cert. denied, 131 S. Ct. 1475, 179 L.
Ed. 2d 301 (2011). The notice also discusses a Department of Interior
Solicitor's memo (M-3706 The Secretary's Authority to Exclude Areas
from Critical Habitat Designation Under 4(b)(2) of the Endangered
Species Act (Oct. 3, 2008) (DOI 2008)). In more recent critical habitat
designations, both NMFS and the USFWS have considered the incremental
impact of critical habitat designation (for example, NMFS' designation
of critical habitat for the Southern DPS of green sturgeon (74 FR
52300, October 9, 2009) and the Southern DPS of Pacific eulachon (76 FR
65324, October 20, 2011), and the U.S. Fish and Wildlife's designation
of critical habitat for the Oregon chub (75 FR 11031, March 10, 2010)).
Consistent with our proposed regulatory amendments (77 FR 51503,
August 24, 2012), the more recent court cases, and more recent agency
practice, we estimated the incremental impacts of designation, beyond
the impacts that would result from the listing and jeopardy provision.
In addition, because these proposed designations almost completely
overlap our previous salmonid, killer whale and green sturgeon critical
habitat designations in Puget Sound, and the essential features defined
for those species in previous designations are similar to those for
listed rockfish (NMFS, 2013a), we estimated only the incremental
impacts of designation beyond the impacts already imposed by those
prior designations.
To determine the impact of designation, we examined what the state
of the world would be with and without the designation of critical
habitat for listed rockfish. The ``without critical habitat'' scenario
represents the baseline for the analysis. It includes process
requirements and habitat protections already afforded listed rockfish
under their Federal listing or under other Federal, state, and local
regulations. Such regulations include protections afforded listed
rockfish habitat from other co-occurring ESA listings and critical
habitat designations, such as those for Pacific salmon and steelhead
(70 FR 52630, September 2, 2005), North American green sturgeon (74 FR
52300, October 9, 2009), Southern Resident Killer Whales (71 FR 69054,
November 29, 2006), and bull trout (75 FR 63898, October 18, 2010) (see
the Final Economic Analysis for listed rockfish (NMFS, 2013a) for
examples of protections for other species that would benefit listed
rockfish). The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for listed rockfish. The primary impacts of critical
habitat designation we found were: (1) The economic costs associated
with additional administrative effort of including a critical habitat
analysis in section 7 consultations for these three DPSs, (2) impacts
to national security, and (3) the possible harm to our working
relationship with Indian tribes and landowners and entities with
conservation plans.
Economic Impacts
Our economic analysis sought to determine the impacts on land uses
and other activities from the proposed designation of critical habitat,
above and beyond--or incremental to--those ``baseline'' impacts due to
existing or planned conservation efforts being undertaken due to other
Federal, state, and local regulations or guidelines (NMFS, 2013b).
Other Federal agencies, as well as state and local governments, may
also seek to protect the natural resources under their jurisdiction. If
compliance with the Clean Water Act or state environmental quality
laws, for example, protects habitat for the species, such protective
efforts are considered to be baseline protections and costs associated
with these efforts are not quantified as impacts of critical habitat
designation.
When critical habitat is designated, section 7 requires Federal
agencies to ensure that their actions will not result in the
destruction or adverse modification of critical habitat, in addition to
ensuring that the actions are not likely to jeopardize the continued
existence of the species. The added administrative costs of considering
critical habitat in section 7 consultations and the additional impacts
of implementing project modifications to protect critical habitat are
the direct result of the designation of critical habitat. These costs
are not in the baseline, and are considered incremental impacts of the
rulemaking.
Incremental economic impacts may include the direct costs
associated with additional effort for future consultations, reinitiated
consultations, new consultations occurring specifically because of the
designation, and additional project modifications that would not have
been required to avoid jeopardizing the continued existence of the
species. Additionally, incremental economic impacts may include
indirect impacts resulting from reaction to the potential designation
of critical habitat (e.g., developing habitat conservation plans in an
effort to avoid designation of critical habitat), triggering of
additional requirements under State or local laws intended to protect
sensitive habitat, and uncertainty and perceptional effects on markets.
To evaluate the potential administrative and project modification
costs of designating critical habitat we examined our ESA section 7
consultation record for rockfish for the years 2010 and 2011. As
further explained in the supporting economic report (NMFS, 2013b), to
quantify the economic impact of designation, we employed the following
three steps:
(1) Define the geographic study area for the analysis, and identify
the units of analysis (the ``particular areas''). In this case, we
defined the five biogeographic basins of the Puget Sound/Georgia Basin
that encompass occupied marine areas as the particular areas.
(2) Identify potentially affected economic activities and determine
how management may increase due to the designation of listed rockfish
critical habitat, both in terms of project administration and potential
project modification.
(3) Estimate the economic impacts associated with both potential
administrative costs and costs from project modifications. In this
proposed critical habitat designation we did not identify potential
systematic project modification costs (NMFS, 2013b).
We estimated that the additional effort to address adverse
modification of critical habitat in a section 7
[[Page 47648]]
consultation is equivalent to one third of the effort already devoted
to the consultation to consider the species. This is based on estimates
of additional U.S. Fish and Wildlife Service effort for bull trout
consultations in the Northwest, and which was considered relevant to
the current critical habitat designation (NMFS, 2013b). That is, for
every three hours spent considering a jeopardy analysis for rockfish,
an additional hour would be needed to consider rockfish critical
habitat. Based on that assumption, we estimated a total annualized
incremental administrative cost of approximately $123,000 (discounted
at 7 percent) for designating the five specific areas as listed
rockfish critical habitat. The greatest costs are associated with
nearshore work, transportation, water quality, and utilities (see NMFS,
2013b for more details). The estimated annual incremental costs across
the five biogeographic basins range from $32,100 in the San Juan/Strait
of Juan de Fuca Basin to $10,200 in Hood Canal (NMFS, 2013b).
For the second category of impacts, we consider it unlikely there
will be incremental costs for project modifications specific to
rockfish critical habitat for most individual project types. This is
because of the existing high level of protection afforded by previous
salmonid, green sturgeon and killer whale critical habitat designations
that have generally similar biological features, and the protections
already afforded listed rockfish through the separate jeopardy analysis
(see NMFS, 2013b for more details). The results of our economic
analysis are discussed in greater detail in a separate report that is
available for public review and comment (NMFS, 2013b).
Impacts to National Security
During preparations for the proposed designation we sent a letter
to the DOD seeking information to better understand their activities
taking place in areas owned or controlled by them and the potential
impact of designating critical habitat in these areas. We received two
letters from the DOD in response to our initial inquiry. A single
letter from the U.S. Air Force and U.S. Army stated that these services
did not foresee any adverse impacts to their national security or
training missions from proposed rockfish critical habitat designations.
The second letter, from the U.S. Navy, identified 14 Restricted Areas,
Operating Areas and Danger Zones within the range of listed rockfish in
each of the five basins of the Puget Sound. The Navy confirmed that it
uses all of these areas, and assessed the potential for critical
habitat designation to adversely affect operations, testing, training,
and other essential military activities. Of the 14 areas identified by
the Navy, only one area is already designated as critical habitat for
other ESA-listed species (southern resident killer whales). The Navy
letter identified several aspects of potential impacts to national
security from critical habitat designation and requested that areas
owned or controlled by the Navy be excluded from designation. We had
several conversations with the Navy subsequent to their letter to
further understand their uses of the areas, concerns identified in
their response letter, and any related habitat protections resulting
from Navy policies and initiatives (NMFS, 2013c).
Other Relevant Impacts--Impacts to Tribal Sovereignty and Self-
Governance
During preparations for the proposed designation we sent a letter
to Puget Sound Indian tribes, notifying them of our intent to propose
critical habitat for listed rockfish. We identified several areas under
consideration for critical habitat designation that overlap with Indian
lands in each of the specific areas (Figures 2 and 3). The federally
recognized tribes with lands potentially affected are the Lummi,
Swinomish, Tulalip, Puyallup, Squaxin Island, Skokomish, Port Gamble,
and Port Madison. In addition to the economic impacts described above,
designating these tribes' Indian lands would have an impact on Federal
policies promoting tribal sovereignty and self-governance. The
longstanding and distinctive relationship between the Federal and
tribal governments is defined by treaties, statutes, executive orders,
secretarial orders, judicial decisions, and agreements, which
differentiate tribal governments from the other entities that deal
with, or are affected by, the U.S. Government. This relationship has
given rise to a special Federal trust responsibility involving the
legal responsibilities and obligations of the U.S. toward Indian tribes
with respect to Indian lands, tribal trust resources, and the exercise
of tribal rights. Pursuant to these authorities, lands have been
retained by Indian tribes or have been set aside for tribal use. These
lands are managed by Indian tribes in accordance with tribal goals and
objectives within the framework of applicable treaties and laws.
Tribal governments have a unique status with respect to salmon,
steelhead, and other marine resources in the Pacific Northwest, where
they are co-managers of these resources throughout the region. The co-
manager relationship crosses tribal, federal, and state boundaries, and
addresses all aspects of the species' life cycle. The positive working
relationship between the federal government and tribes can be seen in
federal-tribal participation within the U.S. v. Oregon and U.S. v.
Washington framework and the participation of tribes on interstate
(Pacific Fisheries Management Council) and international (Pacific
Salmon Commission) management bodies. Additionally, there are
innumerable local and regional forums and planning efforts in which the
tribes are engaged with the federal government, including ESA section 6
species recovery grants to the tribes. While many of these activities
currently concentrate on recovery of listed salmon and steelhead in
Puget Sound, they nonetheless result in several benefits to habitats
used by listed rockfish through the conservation of habitats and prey
sources of rockfish (NMFS, 2013c).
Other Relevant Impacts--Impacts to Landowners/Entities With Contractual
Commitments to Conservation
Section 10(a)(1)(B) of the ESA authorizes us to issue to non-
Federal entities a permit for the incidental take of endangered and
threatened species. This permit allows a non-Federal landowner/entity
to proceed with an activity that is legal in all other respects, but
that results in the incidental taking of a listed species (i.e., take
that is incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity). The ESA specifies that an application for
an incidental take permit (ITP) must be accompanied by a conservation
plan, and specifies the content of such a plan. The purpose of such
conservation plans is to describe and ensure that the effects of the
permitted action on covered species are adequately minimized and
mitigated, and that the action does not appreciably reduce the
likelihood of the survival and recovery of the species. Conservation
plans that cover habitat actions are common for terrestrial and
freshwater species and can benefit species threatened by land use
activities. Conservation plans that cover fisheries are less common and
can benefit species and habitats threatened by fishing activities.
Conservation agreements with non-Federal landowners and other
entities enhance species conservation by extending species' protections
beyond those available through section 7 consultations. We have
encouraged non-Federal landowners to enter into conservation
agreements, based on a
[[Page 47649]]
view that we can achieve greater species' conservation on non-Federal
land through such partnerships than we can through coercive methods (61
FR 63854, December 2, 1996). In past critical habitat designations we
have found there is a benefit to excluding some areas covered by
conservation agreements when there was affirmative evidence that the
conservation partner considered exclusion beneficial to our
relationship and beneficial to implementation of the conservation
agreement (e.g., for Pacific salmon 70 FR 52630, September 2, 2005). We
considered the benefit of exclusion to be a conservation benefit to the
affected species because of the enhanced implementation of the
agreement and the incentive for others to enter into conservation
agreements with us to further protect the species.
In the case of the listed rockfish species, there are two
conservation agreements that partially or wholly overlap with proposed
critical habitat. The first is with the Washington Department of
Natural Resources (WDNR) and covers geoduck harvest on lands managed by
the department. The second is with the Washington Department of Fish
and Wildlife (WDFW) and covers fisheries and research in Puget Sound
that incidentally takes the listed rockfish and other listed species
and may also affect rockfish habitat.
Determine Whether To Exercise the Discretion To Exclude
Benefits of critical habitat designation are those conservation
benefits to the species, while benefits of exclusion result from
avoiding the impacts of designation identified above. For the present
designation, we decided to balance benefits of designation against
benefits of exclusion because some impacts of designation implicate
competing Federal values, such as national security and tribal
sovereignty and self-governance (see NMFS, 2013c).
Benefits of Designation
The principal benefit of designating critical habitat is that ESA
section 7 requires every Federal agency to ensure that any action it
authorizes funds or carries out is not likely to result in the
destruction or adverse modification of designated critical habitat.
This complements the Section 7 provision that federal agencies ensure
their actions are not likely to jeopardize the continued existence of a
listed species. The requirement that agencies avoid adversely modifying
critical habitat is in addition to the requirement that they avoid
jeopardy to the species, thus the benefit of designating critical
habitat is ``incremental'' to the benefit that comes with listing.
Another possible benefit is that the designation of critical habitat
can serve to educate the public regarding the potential conservation
value of an area. Systematic analysis and delineation of important
rockfish habitat has not been previously conducted in the Puget Sound,
so designating critical habitat may focus and contribute to
conservation efforts by clearly delineating areas that are important to
species conservation.
Ideally the consideration and balancing of benefits would involve
first translating all benefits into a common metric. Executive branch
guidance from the Office of Management and Budget (OMB) suggests that
benefits should first be monetized--converted into dollars. Benefits
that cannot be monetized should be quantified (for example, numbers of
fish saved). Where benefits can neither be monetized nor quantified,
agencies are to describe the expected benefits (OMB, 2003).
It may be possible to monetize benefits of critical habitat
designation for a threatened or endangered species in terms of
willingness-to-pay (OMB, 2003). However, we are not aware of any
available data at the scale of our designation (the five basins of
Puget Sound Sound) that would support such an analysis for listed
rockfish. In addition, section 4(b)(2) requires analysis of impacts
other than economic impacts that are equally difficult to monetize,
such as benefits to national security of excluding areas from critical
habitat. In the case of rockfish designations, impacts to Northwest
Indian tribes or to our program to promote voluntary conservation
agreements are ``other relevant'' impacts that also may be difficult to
monetize.
Because we could not monetize or quantify the conservation benefit
of designating the particular areas, we qualitatively describe their
conservation value to the listed species. The rockfish critical habitat
we have identified consists of only five areas. Each area is a
biogeographic basin that represents a unique ecological setting with
unique habitats and biological communities. This diversity of habitats
is important to maintaining long-term viability of the DPSs. Four of
the five areas are also relatively spatially isolated in terms of water
circulation and exchange of some biota. Although we lack detailed
genetic information to confirm that this isolation has led to
reproductive isolation among basins, it is likely that there is some
degree of reproductive isolation and that the unique habitat conditions
in each basin have therefore resulted in important adaptations. The
diversity this creates in the population, like the diversity in
habitats, is important to long-term viability. These factors suggest
that all of the populations and basins are important in maintaining the
diversity and spatial structure of each DPS. Though we have not yet
developed a recovery plan for these DPSs, it is likely that all five
areas are important to recovery of the listed DPSs and therefore have
high conservation value (NMFS, 2013a).
Balancing Economic Impacts
In our 2005 final and 2013 proposed critical habitat designations
for salmon and steelhead, we balanced conservation benefits of
designation against economic benefits of exclusion and excluded
particular areas for many of the affected species. Our approach was
informed by both biology and policy (78 FR 2725, January 14, 2013; 70
FR 52630, September 2, 2005). In deciding to balance benefits, we noted
that salmon and steelhead are widely distributed and their range
includes areas that have both high and low conservation value; thus, it
may be possible to construct different scenarios for achieving
conservation. We also noted Administration policy regarding
regulations, as expressed in Executive Order 12866, which directs
agencies to select regulatory approaches that ``maximize net
benefits,'' and to ``design regulations in the most cost-effective
manner to achieve the regulatory objective.''
For the salmon and steelhead designations, we used a cost
effectiveness approach in which we identified areas to consider for
economic exclusion by balancing relative conservation value against
relative economic impact. Where the relative conservation value of an
area was lower than the relative economic impact, we considered the
area eligible for exclusion. Relying on policies that promote
conservation of threatened and endangered species in general and salmon
in particular, we did not consider areas for exclusion if exclusion
would significantly impede conservation. We concluded that exclusion of
high conservation value areas would significantly impede conservation
and therefore we did not consider any high conservation value areas for
exclusion for salmon and steelhead.
In considering economic exclusions for listed rockfish, we
considered the following factors: (1) Section 2 of the ESA provides
that a purpose of the act is ``to provide a means whereby the
ecosystems upon which endangered
[[Page 47650]]
species and threatened species depend may be conserved.''; (2) in
listing the three listed rockfish DPSs under the ESA, we concluded that
degradation of rocky habitat, loss of eelgrass and kelp, introduction
of non-native habitat-modifying species, and degraded water quality
were all threats to the species. We also noted that rocky habitats are
rare in Puget Sound and have been affected by or are threatened by
derelict fishing gear, development, and construction and dredging
activities; (3) as described above, there are only five habitat areas
and all are of high conservation value; and (4) the economic impacts of
designating any particular area are small (the largest impact is
$32,100 in the San Juan/Strait of Juan de Fuca Basin), as is the
economic impact of designating the entire area ($123,000).
For these reasons, we conclude that the economic benefit of
excluding any of these particular areas does not outweigh the
conservation benefit of designation. Therefore, none of the areas were
eligible for exclusion based on economic impacts.
Balancing Impacts to Tribal Sovereignty and Self-Determination
We balanced the conservation benefits to rockfish of designation
against the benefits of exclusion for Indian lands in light of the
unique Federal tribal relationship, the unique status of Indian lands,
and the Federal policies promoting tribal sovereignty and self-
determination, among others. Indian lands potentially affected by a
critical habitat designation occur within the range of the listed
rockfish and are specific to nearshore juvenile rearing sites for
canary rockfish and bocaccio. We are not proposing any nearshore areas
of Puget Sound as critical habitat for yelloweye rockfish (NMFS,
2013a). There are eight tribes with Indian lands that overlap the
proposed critical habitat in all five basins. Approximately 55.1 lineal
miles of shoreline within reservation boundaries overlap with the
nearshore component of proposed critical habitat.
The principal benefit of designating critical habitat is section
7's requirement that Federal agencies ensure their actions are not
likely to result in adverse modification of that habitat. To understand
the benefit of designating critical habitat on Indian lands, we
considered the number of miles of shoreline affected, and the types of
activities occurring there that would be likely to undergo a section 7
consultation along this relatively small amount of shoreline area. The
types of activities occurring in these areas that would be likely to
undergo a section 7 consultation include activities associated with:
Nearshore development, utilities, dredging, water quality projects,
transportation, and other project types.
The benefit of excluding these areas is that Federal agencies
acting on behalf of, funding, or issuing permits to the tribes would
not need to reinitiate consultation on ongoing activities for which
consultation has been completed. Reinitiation of consultation would
likely require some commitment of resources on the part of the affected
tribe. Moreover, in a reinitiated consultation, or in any future
consultation, it is possible that tribes may be required to modify some
of their activities to ensure the activities would not be likely to
adversely modify the critical habitat (though given the small
proportion of shoreline length with essential features, and tribal
shoreline management this is unlikely). The benefits of excluding
Indian lands from designation include: (1) The furtherance of
established national policies, our Federal trust obligations, and our
deference to the tribes in management of natural resources on their
lands; (2) the maintenance of effective long-term working relationships
to promote the conservation of rockfish; (3) the allowance for
continued meaningful collaboration and cooperation in scientific work
to learn more about the conservation needs of the species; and (4)
continued respect for tribal sovereignty over management of natural
resources on Indian lands through established tribal natural resource
programs. We also considered the degree to which the tribes believe
designation will affect their participation in regional management
forums and their ability to manage their lands.
Based on our consideration, and given the following factors, we
concluded that the benefits to conservation of listed rockfish from
full tribal participation in Puget Sound recovery efforts mitigates the
potential loss of conservation benefits that could result from
designation of tribal lands. With this mitigating conservation benefit
in mind, we further concluded that the benefits to tribal governments,
with whom the Federal government has a unique trust relationship,
particularly with regard to land held by the Federal government in
trust for the tribes, outweigh the conservation benefits of designation
for listed rockfish (NMFS, 2013c).
The Indian lands specifically proposed for exclusion are those
defined in the Secretarial Order 3206, including: (1) Lands held in
trust by the United States for the benefit of any Indian tribe; (2)
land held in trust by the United States for any Indian tribe or
individual subject to restrictions by the United States against
alienation; (3) fee lands, either within or outside the reservation
boundaries, owned by the tribal government; and, (4) fee lands within
the reservation boundaries owned by individual Indians. Our
consideration of whether these exclusions would result in extinction of
listed rockfish is described below.
Balancing Impacts to Landowners/Entities With Contractual Commitments
to Conservation
Our consideration of the WDNR and the WDFW conservation plans is
described in detail in NMFS (2013c). We balanced the conservation
benefits to rockfish of proposed critical habitat against the benefits
of exclusion (referring to the impacts of designation section above) of
the areas covered in each conservation plan. Each plan covers several
activities that may take listed species and harm habitats we propose as
listed rockfish critical habitat in Puget Sound. Congress added section
10 to the ESA to encourage ``creative partnerships between the private
sector and local, state, and Federal agencies for the protection of
endangered species and habitat conservation'' (H.R. Rep. No. 835, 97th
Congress, 2nd Session 31; Reprinted in 1982 U.S. Code Congressional and
Administrative News 2807, 2831). If excluding areas from critical
habitat designation promotes such conservation partnerships, such
exclusions may have conservation benefits that offset the loss of
conservation benefit that would have resulted from designation.
The covered areas of the WDNR conservation plan overlap with
approximately 30,000 acres of nearshore proposed critical habitat for
canary rockfish and bocaccio. The covered areas of the WDFW
conservation plan overlap with the entire proposed critical habitat for
yelloweye rockfish, canary rockfish, and bocaccio. The WDNR covered
activities are geoduck research and harvest management. The WDFW
covered activities are the management of recreational bottom fish
fishing and commercial shrimp trawls. The types of activities occurring
in these areas that would be likely to undergo a section 7 consultation
include nearshore development, dredging, aquaculture operations,
fisheries management, alternative energy projects and cable laying, and
others (NMFS, 2013a).
In general, the benefits of designating the covered areas of each
conservation plan is, that once critical habitat is
[[Page 47651]]
designated, section 7(a)(2) of the ESA provides that Federal agencies
must ensure any actions they authorize, fund, or carry out are not
likely to result in the destruction or adverse modification of
designated critical habitat. An additional benefit of inclusion is that
a systematic analysis and delineation of important rockfish habitat has
not been previously conducted in the Puget Sound. Thus, for non-Federal
activities occurring in the covered areas, designation may raise public
awareness of habitats important to rockfish and encourage additional
conservation measures and voluntary conservation agreements within the
section 10 program. The benefits of designating areas covered by these
two conservation plans may be less than what they would be on areas not
covered by conservation plans because of the fact that the permit
holder has put conservation measures in place through provisions of the
plan. These measures provide protection when actions are allowed that
could affect critical habitat (geoduck harvest and management by WDNR,
and fisheries by WDFW). However, these conservation plans are unlike
other land-based conservation plans in the Northwest (such as forestry
conservation plans) because the WDNR and WDFW plans cover a small
subset of potential actions that could be affected by future Federal
actions in Puget Sound (i.e., Federal permits for nearshore
development, fisheries that cause new derelict fishing nets, tidal
energy or cable-laying, and others).
The benefits of excluding these covered areas from designation
include the potential furtherance of our ongoing relationship with
these entities; in particular, the potential that the exclusion of
these areas may provide an incentive for other entities to seek
conservation plans, and the general promotion of the section 10
conservation program. Conservation agreements on non-federally
controlled areas of Puget Sound provide important benefits to listed
species. Section 7 applies to only Federal agency actions. Its
requirements protect listed fishes only when a Federal permit or
funding is involved; thus, its reach is limited. Neither WDNR nor WDFW
identified any potential impacts to our relationship or implementation
of each conservation plan.
For each rockfish DPS we considered the areas each conservation
plan covered and the types of Federal activities in those areas that
would likely undergo section 7 consultation. We also considered the
degree to which the WDNR and WDFW believe the designation would affect
the ongoing relationship that is essential to the continued successful
implementation of the conservation plan and the extent to which
exclusion provides an incentive to other entities.
Based on our consideration, and given the following factors, we
concluded that the benefits of excluding the areas covered by each
conservation plan do not outweigh the benefits of designation. We
considered the following factors in reaching this conclusion: (1) The
WDNR and WDFW did not identify any impacts to our ongoing relationship;
(2) the WDNR and WDFW did not identify any impacts to their
implementation of the existing conservation plans; and (3) the WDNR and
WDFW conservation plans only cover a subset of activities that could
affect rockfish critical habitat conducted by other entities such as
private landowners, municipalities, and Federal agencies in the covered
areas. Thus, designation would not impact our relationship with WDNR
and WDFW nor harm the implementation of their conservation plans. In
general, designation would benefit rockfish conservation by enabling
section 7 consultations for activities not covered by each conservation
plan to ensure adverse modification is avoided by Federal activities.
Balancing Impacts to National Security
Based on information provided by the three branches of the military
on impacts to national security of potential critical habitat
designations described above, we consulted with the DOD to better
understand the potential impact of designating critical habitat at
these sites. The DOD confirmed that all of the Areas are used by the
Navy, and confirmed the potential for critical habitat designation to
impact national security by adversely affect their ability to conduct
operations, testing, training, and other essential military activities.
The Navy letter identified several aspects of potential impacts from
critical habitat designation that include the possible prevention,
restriction, or delay of training or testing exercises and delayed
response time for ship deployments. We had several conversations with
the Navy subsequent to their letter to further understand their uses of
the Areas, concerns identified in their response letter, and any
related habitat protections derived by Navy policies and initiatives.
We also had further discussions with the Navy regarding the extent of
the proposed designation associated with these sites. The Navy agreed
to refine the delineation of offshore areas in Puget Sound where the
Navy has established security zones. Similar to the salmonid critical
habitat designation (NMFS, 2005) the Navy agreed that the military zone
could be delineated in terms of the mean lower low tide without raising
national security concerns at all but one site at Dabob Bay. Because
many of the activities affecting rockfish in the nearshore zone are
land-based, this refinement allowed us to retain most of the
conservation benefit of designating nearshore areas as critical habitat
while still retaining the benefit to national security of excluding
offshore military areas (NMFS, 2013c).
We balanced the conservation benefits of designation to rockfish
against the benefits of exclusion for Naval Areas as ultimately defined
by the Navy in the Puget Sound/Georgia Basin. The Navy requested that
14 areas be excluded from critical habitat designation, including four
in the San Juan/Strait of Juan de Fuca Basin, three in Hood Canal, two
in the Whidbey Basin, four in the Main Basin, and one in South Puget
Sound based on the impacts to national security. The factors we
consider relevant to assessing the impact to national security and the
benefits of exclusion include: (1) The percent of the military area
that would be designated; and (2) the importance of the area activity
to national security and likelihood an activity would need to be
changed to avoid adverse modification.
The factors we consider relevant to assessing the benefits of
designation to rockfish conservation include: (1) The percent of the
nearshore and deepwater critical habitat that would be designated in
that basin; (2) uniqueness and conservation role of the habitat in
particular DOD area; (3) the likelihood that Navy activities would
destroy or adversely modify critical habitat; and (4) the likelihood
habitat would be adversely modified by other Federal or non-Federal
activities, considering Navy protections (this factor considers the
type and frequency of Navy actions that occur in each site and their
potential effect on rockfish habitat features, which informs the
benefit to conservation that would occur by a section 7 consultation
that considers rockfish critical habitat).
All but the quantitative factors were given a qualitative rating of
high, medium, or low (NMFS, 2013c). Based on our analysis, we recommend
excluding 13 of the 14 areas requested by the Navy. We do not propose
to exclude Operating Area R-6713 (Navy 3). This area is a polygon off
the western side of Naval Air Station Whidbey Island (appearing on NOAA
Chart 18400) which is used in conjunction with the restricted area
under 33 CFR
[[Page 47652]]
334.1180 for surface vessel training activities. The total proposed
excluded areas total approximately 33.1 nearshore sq mi and 35.6
deepwater sq mi of potential critical habitat.
Critical habitat is proposed in a narrow nearshore zone (from the
extreme high tide datum down to mean lower low water (MLLW)) within
Navy security zone areas that are not subject to an approved INRMP or
associated with Department of Defense easements or rights-of-way with
the exception of NAS Whidbey Island, Crescent Harbor and a small area
of the Hood Canal and Dabob Bay Naval Non-Explosive Torpedo Testing
Area. The following Department of Defense areas are proposed for
exclusion:
(1) Small Arms Danger Zone off Western Side of Naval Air Station
Whidbey Island and additional Accident Potential Zone restricted
areas--In the waters located in the San Juan De Fuca Strait
beginning on the beach of NAS Whidbey Island, Oak Harbor, Washington
at latitude 48[deg]19'20.00'' N, longitude 122[deg]42'6.92'' W;
thence southerly, along the mean high water mark, to latitude
48[deg]17'41'' N, longitude 122[deg]43'35'' W; thence southwesterly
to latitude 48[deg]17'23'' N, longitude 122[deg]45'14'' W; thence
northerly to latitude 48[deg]20'00'' N, longitude 122[deg]44'00'' W;
thence easterly, landward to the point of origin. Accident Potential
Zone Area No. 1 is bounded by a line commencing at latitude
48[deg]20'57'' N, longitude 122[deg]40'39'' W; thence to latitude
48[deg]20'40'' N, longitude 122[deg]42'59'' W; thence to latitude
48[deg]21'19'' N, longitude 122[deg]43'02'' W; thence to latitude
48[deg]21'13'' N, longitude 122[deg]40'26'' W; and thence along the
shore line to the point of beginning. Accident Potential Zone Area
No. 2 is bounded by a line commencing at latitude 48[deg]21'53'' N,
longitude 122[deg]40'00'' W; thence to latitude 48[deg]23'12'' N,
longitude 122[deg]41'17'' W; thence to latitude 48[deg]23'29'' N,
longitude 122[deg]40'22'' W; thence to latitude 48[deg]22'21'' N,
longitude 122[deg]39'50'' W; and thence along the shore line to the
point of beginning.
(2) Strait of Juan de Fuca Naval Air-to-Surface Weapon Range
Restricted Area--A circular area immediately west of Smith Island
with a radius of 1.25 nautical mi having its center at latitude
48[deg]19'11'' N and longitude 122[deg]54'12'' W.
(3) Hood Canal and Dabob Bay Naval Non-Explosive Torpedo Testing
Area--All waters of Hood Canal between latitude 47[deg]46'00'' N and
latitude 47[deg]42'00'' W, exclusive of navigation lanes one-fourth
nautical mile wide along the west shore and along the east shore
south from the town of Bangor (latitude 47[deg]43'28'' N). All
waters of Dabob Bay beginning at latitude 47[deg]39'27'' N,
longitude 122[deg]52'22'' W; thence northeasterly to latitude
47[deg]40'19'' N, longitude 122[deg]50'10'' W; thence northeasterly
to a point on the mean high water line at Takutsko Pt.; thence
northerly along the mean high water line to latitude 47[deg]48'00''
N; thence west on latitude 47[deg]48'00'' N to the mean high water
line on the Bolton Peninsula; thence southwesterly along the mean
high water line of the Bolton Peninsula to a point on longitude
122[deg]51'06'' N; thence south on longitude 122[deg]51'06'' W to
the mean high water line at Whitney Pt.; thence along the mean water
line to a point on longitude 122[deg]51'15'' W; thence southwesterly
to the point of beginning. The nearshore from Tsuktsko Pt.
47[deg]41'30.0'' sec N latitude, 122[deg]49'48'' W longitude to the
north at 47[deg]50'0.0'' sec N latitude, 122[deg]47'30'' W
longitude.
(4) Admiralty Inlet Naval Restricted Area -- This area begins at
Point Wilson Light thence southwesterly along the coast line to
latitude 48[deg]07' N; thence northwesterly to a point at latitude
48[deg]15'00'' N longitude 123[deg]00'00'' W; thence due east to
Whidbey Island; thence southerly along the coast line to latitude
48[deg]12'30'' N; thence southerly to the point of beginning.
(5) Port Gardner, Everett Naval Base, Naval Restricted Area--The
waters of Port Gardner and East Waterway surrounding Naval Station
Everett begin at a point near the northwest corner of Naval Station
Everett at latitude 47[deg]59'40'' N, longitude 122[deg]13'23.5'' W
and thence to latitude 47[deg]59'40'' N, longitude 122[deg]13'30''
W; thence to latitude 47[deg]59'20'' N, longitude 122[deg]13'33'' W;
thence to latitude 47[deg]59'13'' N, longitude 122[deg]13'38'' W;
thence to latitude 47[deg]59'05.5'' N, longitude 122[deg]13'48.5''
W; thence to latitude 47[deg]58'51'' N, longitude 122[deg]14'04'' W;
thence to latitude 47[deg]58'45.5'' N, longitude 122[deg]13'53'' W;
thence to latitude 47[deg]58'45.5'' N, longitude 122[deg]13'44'' W;
thence to latitude 47[deg]58'48'' N, longitude 122[deg]13'40'' W;
thence to latitude 47[deg]58'59'' N, longitude 122[deg]13'30'' W;
thence to latitude 47[deg]59'14'' N, longitude 122[deg]13'18'' W
(Point 11); thence to latitude 47[deg]59'13'' N, longitude
122[deg]13'12'' W; thence to latitude 47[deg]59'20'' N, longitude
122[deg]13'08'' W; thence to latitude 47[deg]59'20'' N, longitude
122[deg]13'02.5'' W, a point upon the Naval Station's shore in the
northeast corner of East Waterway.
(6) Hood Canal, Bangor Naval Restricted Areas--The Naval
restricted area described in 33 CFR 334.1220 has two areas. Area No.
1 is bounded by a line commencing on the east shore of Hood Canal in
relation to the property boundary and area No. 2 compasses waters of
Hood Canal with a 1,000 yard radius diameter from a central point.
Area No. 1 is bounded by a line commencing on the east shore of Hood
Canal at latitude 47[deg]46'18'' N longitude 122[deg]42'18'' W;
thence to latitude 47[deg]46'32'' N, longitude 122[deg]42'20'' W;
thence to latitude 47[deg]46'38'' N, longitude 122[deg]42'52'' W;
thence to latitude 47[deg]44'15'' N, longitude 122[deg]44'50'' W;
thence to latitude 47[deg]43'53'' N, longitude 122[deg]44'58'' W;
thence to latitude 47[deg]43'17'' N, longitude 122[deg]44'49'' W.
Area 2 is waters of Hood Canal within a circle of 1,000 yards
diameter centered on a point located at latitude 47[deg]46'26'' N,
longitude 122[deg]42'49'' W.
(7) Port Orchard Naval Restricted Area--The Naval restricted
area described in 33 CFR 334.1230 is shoreward of a line beginning
at a point on the west shoreline of Port Orchard bearing 90[deg]
from stack (at latitude 47[deg]42'01'' N, longitude 122[deg]36'54''
W); thence 90[deg], approximately 190 yards, to a point 350 yards
from stack; thence 165[deg], 6,000 yards, to a point bearing
179[deg], 1,280 yards, from Battle Point Light; thence westerly to
the shoreline at latitude 47[deg]39'08'' N (approximate location of
the Brownsville Pier).
(8) Sinclair Inlet Naval Restricted Areas--The Naval restricted
area described in 33 CFR 334.1240 to include: Area No. 1--All the
waters of Sinclair Inlet westerly of a line drawn from the Bremerton
Ferry Landing at latitude 47[deg]33'48'' N, longitude
122[deg]37'23'' W on the north shore of Sinclair Inlet and latitude
47[deg]32'52'' N, longitude 122[deg]36'58'' W on the south shore of
Sinclair Inlet; and Area No. 2--That area of Sinclair Inlet to the
north and west of an area bounded by a line commencing at latitude
47[deg]33'43'' N, longitude 122[deg]37'31'' W thence south to
latitude 47[deg]33'39'' N, longitude 122[deg]37'27'' W thence
southwest to latitude 47[deg]33'23'' N, longitude 122[deg]37'45'' W
thence southwest to latitude 47[deg]33'19'' N, longitude
122[deg]38'12'' W thence southwest to latitude 47[deg]33'10'' N,
longitude 122[deg]38'19'' W thence southwest to latitude
47[deg]33'07'' N, longitude 122[deg]38'29'' W thence west to
latitude 47[deg]33'07'' N, longitude 122[deg]38'58'' W thence
southwest to latitude 47[deg]33'04'' N, longitude 122[deg]39'07'' W
thence west to the north shore of Sinclair Inlet at latitude
47[deg]33'04.11'' N, longitude 122[deg]39'41.92'' W.
(9) Dabob Bay, Whitney Point Naval Restricted Area--The Naval
restricted area described in 33 CFR 334.1260 beginning at the high
water line along the westerly shore of Dabob Bay at the Naval
Control Building located at latitude 47[deg]45'36'' N and longitude
122[deg]51'00'' W. The western shoreline boundary is 100 yards north
and 100 yards south from that point. From the north and south
points, go eastward 2,000 yards into Dabob Bay. The eastern boundary
is a virtual vertical line between the two points (200 yards in
length).
(10) Carr Inlet, Naval Restricted Area--The Naval restricted
area described in 33 CFR 334.1250 to include: The area in the Waters
of Carr Inlet bounded on the southeast by a line running from Gibson
Point on Fox Island to Hyde Point on McNeil Island, on the northwest
by a line running from Green Point (at latitude 47[deg]16'54'' N,
longitude 122[deg]41'33'' W) to Penrose Point; plus that portion of
Pitt Passage extending from Carr Inlet to Pitt Island, and that
portion of Hale Passage extending from Carr Inlet southeasterly to a
line drawn perpendicular to the channel 500 yards northwesterly of
the Fox Island Bridge.
(11) Port Townsend, Indian Island, Walan Point Naval Restricted
Area--The Naval restricted area described in 33 CFR 334.1270 to
include: The waters of Port Townsend Bay bounded by a line
commencing on the north shore of Walan Point at latitude
48[deg]04'42'' N, longitude 122[deg]44'30'' W; thence to latitude
48[deg]04'50'' N, longitude 122[deg]44'38'' W; thence to latitude
48[deg]04'52'' N, longitude 122[deg]44'57'' West; thence to latitude
48[deg]04'44'' N, longitude 122[deg]45'12'' W; thence to latitude
48[deg]04'26'' N, longitude 122[deg]45'21'' W; thence to latitude
48[deg]04'10'' N, longitude 122[deg]45'15'' W; thence to latitude
48[deg]04'07'' N, longitude 122[deg]44'49'' W; thence to a point on
the Walan Point shoreline at latitude 48[deg]04'16'' N, longitude
122[deg]44'37'' W.
(12) NAS Whidbey Island, Crescent Harbor--The Navy did not
provide a textual description of this Restricted Area.
(13) Puget Sound, Manchester Fuel Depot, Naval Restricted
Areas--The waters of Puget
[[Page 47653]]
Sound surrounding the Manchester Fuel Depot bounded by a line
commencing along the northern shoreline of the Manchester Fuel Depot
at latitude 47[deg]33'55'' N, longitude 122[deg]31'55'' W; thence to
latitude 47[deg]33'37'' North, longitude 122[deg]31'50'' W; thence
to latitude 47[deg]33'32'' N, longitude 122[deg]32'06'' W; thence to
latitude 47[deg]33'45.9'' North, longitude 122[deg]32'16.04'' W, a
point in Puget Sound on the southern shoreline of the Manchester
Fuel Depot then back to the original point.
Exclusion Will Not Result in Extinction of the Species
Section 4(b)(2) of the ESA limits our discretion to exclude areas
from designation if exclusion will result in extinction of the species.
We do not propose to exclude any habitat areas based on economic
impacts or 10(a)(1)(B) permits (conservation plans). We do propose to
exclude 55.1 lineal mi (88.7 km) of marine habitat adjacent to Indian
lands and a total of approximately 68.7 sq mi of marine habitat area
(33.1 sq mi of nearshore, 35.6 sq mi of deepwater) controlled by the
Navy as described above. We conclude that excluding Indian lands--and
thereby furthering the federal government's policy of promoting respect
for tribal sovereignty and self-governance--in addition to several
areas controlled by the Navy, will not result in extinction of listed
rockfish. Listed rockfish habitat on Indian lands represents a small
proportion of total area occupied by these DPSs, and the Tribes are
actively engaged in fisheries management, habitat management and Puget
Sound ecosystem recovery programs that benefit listed rockfish.
Listed rockfish habitat within areas controlled by the Navy
represents approximately 5 percent of the nearshore area and
approximately 5 percent of the deepwater area we determined to have
essential features. In addition to the small size of these proposed
exclusions, the Navy actively seeks to protect actions that would
impact their mission and these protections provide ancillary
protections to rockfish habitat by restricting actions that may harm
the Navy mission and rockfish in the respective area (NMFS, 2013c).
Thus the benefit of designating these areas as critical habitat would
be reduced.
For the following reasons, we conclude that the exclusions
described above, in combination, will not result in the extinction of
the yelloweye rockfish, canary rockfish or bocaccio DPSs: (1) The
proposed Indian land exclusions involve nearshore habitats that are
already managed by the tribes for conservation; (2) The proposed Navy
exclusions involve nearshore and deepwater habitats that are already
afforded some protections by the Navy, and; (3) The extent of Indian
lands exclusions and Navy exclusions are spread amongst each of the
five biogeographic basins of Puget Sound, and cumulatively total a
fraction of the overall habitats that have essential features for
listed rockfish.
Proposed Critical Habitat Designation
In total we propose to designate approximately 610.0 sq mi of
nearshore habitat for canary rockfish and bocaccio, and 574.8 sq mi of
deepwater habitat for yelloweye rockfish, canary rockfish and bocaccio
within the geographical area of the DPSs occupied by each species
(Figures 2 and 3). Aside from some deepwater areas proposed as critical
habitat for rockfish in Hood Canal, all other proposed critical habitat
overlaps with designated critical habitat for other species. Other co-
occurring ESA-listed species with designated critical habitat that,
collectively, almost completely overlap with proposed rockfish critical
habitat include Pacific salmon (70 FR 52630, September 2, 2005), North
American green sturgeon (74 FR 52300, October 9, 2009), Southern
Resident Killer Whales (71 FR 69054, November 29, 2006), and bull trout
(75 FR 63898, October 18, 2010). The areas proposed for designation are
all within the geographical area occupied by the species and contain
physical and biological features essential to the conservation of the
species and that may require special management considerations or
protection. No unoccupied areas were identified that are considered
essential for the conservation of the species. All of the areas
proposed for designation have high conservation value (NMFS, 2013a). As
a result of the balancing process for some military areas and tribal
lands described above, we are proposing to exclude from the designation
small areas listed in Table 2 (see Figures 1 and 2 for locations of
tribal lands). As a result of the balancing process for economic
impacts described above, we conclude that the economic benefit of
excluding any of these particular areas does not outweigh the
conservation benefit of designation. Therefore none of the areas were
eligible for exclusion based on economic impacts. As a result of the
balancing process for areas covered by Conservation Plans we concluded
that the benefits of excluding the areas covered by each conservation
plan do not outweigh the benefits of designation (NMFS, 2013c). As a
result of the balancing process for tribal areas we concluded that the
benefits of excluding these areas outweigh the benefits of designation
(NMFS, 2013c).
BILLNG CODE 3510-22-P
[[Page 47654]]
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[GRAPHIC] [TIFF OMITTED] TP06AU13.045
BILLING CODE 3510-22-C
On May 1, 2012, NMFS and the USFWS revised the critical habitat
implementing regulations to eliminate the requirement to publish
textual
[[Page 47656]]
descriptions of proposed (NMFS only) and final (NMFS and USFWS)
critical habitat boundaries in the Regulation Promulgation section of
the Federal Register for codification and printing in the CFR (77 FR
25611, May 1, 2012). The regulations instead provide that the map(s),
as clarified or refined by any textual language within the preamble of
the proposed or final rule, constitutes the definition of the
boundaries of a critical habitat (50 CFR 17.94(b), 226.101, 424.12(c),
424.16(b) and (c)(1)(ii), and 424.18(a)). The revised regulations
provide that the boundaries of critical habitat as mapped or otherwise
described in the Regulation Promulgation section of a rulemaking
published in the Federal Register will be the official delineation of
the designation (50 CFR 424.12). In this proposed designation we
include some latitude-longitude coordinates (to delineate certain
Department of Defense controlled boundaries) to provide clarity on the
location of DOD areas proposed for exclusion but also rely on the maps
to depict critical habitat for yelloweye rockfish, canary rockfish and
bocaccio. The Geographical Information System data that the maps have
been generated from are included in the administrative record located
on our Web site.
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.'' We conducted a review of the
documented occurrences of each listed rockfish in the five
biogeographic basins (NMFS, 2013a). We found that each of the basins is
currently occupied by yelloweye rockfish, canary rockfish, and
bocaccio. We have not identified any unoccupied areas as candidates for
critical habitat designation.
Table 2--Habitat Areas Within the Geographical Range of for Yelloweye Rockfish, Canary Rockfish and Bocaccio Proposed for Exclusion From Critical
Habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Indian lands
annualized DOD areas exclusions Exclusions for
Specific area Conservation value estimated Economic exclusions proposed proposed by conservation plan
economic exclusion from ``particular permit holders
impacts (7%) critical habitat areas'' proposed
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Juan/Straits of Juan de High.................. $32,100 No................... Yes............. Yes............. No.
Fuca.
Whidbey Basin................. High.................. 30,100 No................... Yes............. Yes............. No.
Main Basin.................... High.................. 29,000 No................... Yes............. Yes............. No.
Hood Canal.................... High.................. 10,200 No................... Yes............. Yes............. No.
South Puget Sound............. High.................. 21,200 No................... Yes............. Yes............. No.
-------------------------------------------------------------------------------------------------------------------------
Totals.................... na.................... 123,000 na................... 35.6 sq mi 55.1 lineal mi.. na.
deepwater.
33.1 sq mi
nearshore.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects of Critical Habitat Designation
Section 7(a)(2) of the ESA requires Federal agencies 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. Federal agencies are also required to confer with us
regarding any actions likely to jeopardize a species proposed for
listing under the ESA, or likely to destroy or adversely modify
proposed critical habitat, pursuant to section 7(a)(4). A conference
involves informal discussions in which we may recommend conservation
measures to minimize or avoid adverse effects. The discussions and
conservation recommendations are to be documented in a conference
report provided to the Federal agency. If requested by the Federal
agency, a formal conference report may be issued (including a
biological opinion prepared according to 50 CFR 402.14). A formal
conference report may be adopted as the biological opinion when the
species is listed or critical habitat designated, if no significant new
information or changes to the action alter the content of the opinion.
When a species is listed or critical habitat is designated, Federal
agencies must consult with NMFS on any agency actions to be conducted
in an area where the species is present or that may affect the species
or its critical habitat. During the consultation, we would evaluate the
agency action to determine whether the action may adversely affect
listed species or critical habitat and issue our findings in a
biological opinion or concurrence letter. If we conclude in the
biological opinion that the agency action would likely result in the
destruction or adverse modification of critical habitat, we would also
recommend any reasonable and prudent alternatives to the action.
Reasonable and prudent alternatives (defined in 50 CFR 402.02) are
alternative actions identified during formal consultation that can be
implemented in a manner consistent with the intended purpose of the
action, that are consistent with the scope of the Federal agency's
legal authority and jurisdiction, that are economically and
technologically feasible, and that would avoid the destruction or
adverse modification of critical habitat.
Regulations at 50 CFR 402.16 require Federal agencies that have
retained discretionary involvement or control over an action, or where
such discretionary involvement or control is authorized by law, to
reinitiate consultation on previously reviewed actions in instances
where: (1) Critical habitat is subsequently designated; or (2) new
information or changes to the action may result in effects to critical
habitat not previously considered in the biological opinion.
Consequently, some Federal agencies may request reinitiation of a
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
Activities subject to the ESA section 7 consultation process
include activities on Federal lands and activities on private or state
lands requiring a permit from a Federal agency (e.g., a Clean Water
Act, Section 404 dredge or fill permit from U.S. Army Corps of
Engineers) or some other Federal action,
[[Page 47657]]
including funding (e.g., Federal Highway Administration funding for
transportation projects). ESA section 7 consultation would not be
required for Federal actions that do not affect listed species or
critical habitat and for actions on non-Federal and private lands that
are not Federally funded, authorized, or carried out.
Activities Affected by Critical Habitat Designation
ESA section 4(b)(8) requires in any proposed or final regulation to
designate critical habitat an evaluation and brief description of those
activities (whether public or private) that may adversely modify such
habitat or that may be affected by such designation. A wide variety of
activities may affect the proposed critical habitat and may be subject
to the ESA section 7 consultation process when carried out, funded, or
authorized by a Federal agency. These include water and land management
actions of Federal agencies (e.g., the Department of Defense, U.S. Army
Corps of Engineers (USACE), the Department of Defense, the Federal
Energy Regulatory Commission, and the Environmental Protection Agency
and related or similar federally regulated projects). Other actions of
concern include dredging and filling, and bank stabilization activities
authorized or conducted by the USACE, and approval of water quality
standards and pesticide labeling and use restrictions administered by
the EPA.
Private or non-Federal entities may also be affected by these
proposed critical habitat designations if a Federal permit is required,
if Federal funding is received or the entity is involved in or receives
benefits from a Federal project. For example, private entities may need
Federal permits to build or repair a bulkhead, or install an artificial
reef. These activities will need to be evaluated with respect to their
potential to destroy or adversely modify critical habitat for yelloweye
rockfish, canary rockfish, or bocaccio of the Puget Sound/Georgia
Basin.
Questions regarding whether specific activities will constitute
destruction or adverse modification of critical habitat should be
directed to NMFS (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).
Public Comments Solicited
We solicit comments or suggestions from the public, other concerned
governments and agencies, the scientific community, industry, non-
governmental organizations, or any other interested party concerning
the proposed designations and exclusions as well as the documents
supporting this proposed rulemaking. We are particularly interested in
comments and information in the following areas: (1) Information
describing the abundance, distribution, and habitat use of yelloweye
rockfish, canary rockfish, and bocaccio of the Puget Sound/Georgia
Basin, including any unoccupied areas and habitats used by larval
rockfish; (2) information on the identification, location, and the
quality of physical or biological features that may be essential to the
conservation of the species; (3) information regarding potential
benefits of designating any particular area as critical habitat,
including information on the types of Federal actions that may affect
the area's physical and biological features; (4) information regarding
potential impacts of designating any particular area, including the
types of Federal actions that may trigger an ESA section 7 consultation
and the possible modifications that may be required of those
activities; (5) current or planned activities in the areas proposed as
critical habitat and costs of potential modifications to those
activities due to critical habitat designation; and (6) any foreseeable
economic, national security, or other relevant impact resulting from
the proposed designations.
You may submit your comments and materials concerning this proposal
by any one of several methods (see ADDRESSES). Copies of the proposed
rule and supporting documentation can be found on the NMFS Web site
http://www.nwr.noaa.gov. In preparing the final rule, we will consider
all comments pertaining to these designations received during the
comment period; comments must be received by November 4, 2013.
Accordingly, the final decision may differ from this proposed rule.
Public Hearings
Agency regulations at 50 CFR 424.16(c)(3) require the Secretary to
promptly hold at least one public hearing if any person requests one
within 45 days of publication of a proposed rule to designate critical
habitat. Public hearings provide the opportunity for interested
individuals and parties to give comments, exchange information and
opinions, and engage in a constructive dialogue concerning this
proposed rule. We encourage the public's involvement in such ESA
matters. Requests for a public hearing(s) must be made in writing (see
ADDRESSES) by September 20, 2013.
Information Quality Act and Peer Review
The data and analyses supporting this proposed action have
undergone a pre-dissemination review and have been determined to be in
compliance with applicable information quality guidelines implementing
the Information Quality Act (IQA) (Section 515 of Pub. L. 106-554). In
December 2004, OMB issued a Final Information Quality Bulletin for Peer
Review pursuant to the IQA. The Bulletin was published in the Federal
Register on January 14, 2005 (70 FR 2664). The Bulletin established
minimum peer review standards, a transparent process for public
disclosure of peer review planning, and opportunities for public
participation with regard to certain types of information disseminated
by the Federal Government. The peer review requirements of the OMB
Bulletin apply to influential or highly influential scientific
information disseminated on or after June 16, 2005. Two documents
supporting these critical habitat proposals are considered influential
scientific information and subject to peer review. These documents are
the draft Biological Report (NMFS, 2013a) and draft Economic Analysis
(NMFS, 2013b). We distributed the draft Biological Report for pre-
dissemination peer review pursuant to Section 515 of Public Law 106-
554, and will distribute the Economic Analysis for peer review. The
peer review report is available on our Web site at http://www.nwr.noaa.gov. We will distribute the economic report for
independent peer review and will address comments received in
developing the final drafts of the two reports. Both documents are
available on our Web site at http://www.nwr.noaa.gov, on the Federal
eRulemaking Web site at http://www.regulations.gov,
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0105, or upon
request (see ADDRESSES). We will announce the availability of comments
received from peer reviewers (for the economic report) and the public
and make them available via our Web site as soon as practicable during
the comment period and in advance of a final rule.
Classification
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996), whenever an agency publishes a notice of rulemaking for any
proposed or final rule, it must
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prepare and make available for public comment a regulatory flexibility
analysis describing the effects of the rule on small entities (i.e.,
small businesses, small organizations, and small government
jurisdictions). We have prepared an initial regulatory flexibility
analysis, which is part of the draft economic analysis (NMFS, 2013b).
This document is available upon request (see ADDRESSES), via our Web
site at http://nwr.noaa.gov, or via the Federal eRulemaking Web site at
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0105. The results
of the initial regulatory flexibility analysis are summarized below.
The impacts to small businesses were assessed for the following
broad categories of activities: Utilities, nearshore work,
transportation, water quality and other activities. Small entities were
defined by the Small Business Administration size standards for each
activity type. We did not forecast any costs to small entities related
to utilities projects because the only consultation associated with
utilities are pre-consultation/technical assistance and programmatic
consultations, which do not include any cost to third parties;
therefore, we do not expect any impacts to small entities related to
utilities.
We estimated the annualized costs associated with ESA section 7
consultations incurred per small business under a scenario intended to
provide a measure of uncertainty regarding the number of small entities
that may be affected by the designations for each project category
(NMFS, 2013c). It is uncertain whether small entities will be project
proponents for these types of consultations, so the analysis
conservatively assumes that all consultations will be undertaken by
small entities, and that all such consultation will be formal. Under
these assumptions, the costs to entities engaged in nearshore work are
an estimated $27,000 annually, or $1,900 per entity. This cost
represents less that 0.1 percent of annual revenues in this sector. The
costs to entities engaged in transportation projects are an estimated
$46,000 annually, or $7,700 for entities in this sector. This cost
represents 0.29 percent of annual revenues. The costs to entities
engaged in water quality projects is an estimated $23,000 annually, or
$9,100 per entity. This cost represents 1.3 percent of annual revenues
for entities in this sector. The costs for other entities, including
fishing would be approximately $18,000 annually, or $2,600 per entity.
This cost represents 1.1 percent of annual revenues for entities in
this sector.
In accordance with the requirements of the Regulatory Flexibility
Act (as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996) this analysis considered various alternatives to the
critical habitat designations for these DPSs. The alternative of not
designating critical habitat for these DPSs was considered and rejected
because such an approach does not meet the legal requirements of the
ESA.
Executive Order 12866
At the guidance of OMB and in compliance with Executive Order
12866, ``Regulatory Planning and Review,'' Federal agencies measure
changes in economic efficiency in order to understand how society, as a
whole, will be affected by a regulatory action. Our draft analysis of
economic impacts can be found in NMFS (2013b), and this proposed rule
has been determined to be not significant under Executive Order 12866.
Executive Order 13211
On May 18, 2001, the President issued an executive order on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking any action that promulgates or is
expected to lead to the promulgation of a final rule or regulation that
(1) is a significant regulatory action under Executive Order 12866 and
(2) is likely to have a significant adverse effect on the supply,
distribution, or use of energy.
We have considered the potential impacts of this action on the
supply, distribution, or use of energy and find the designation of
critical habitat will not have impacts that exceed the thresholds
identified above (NMFS, 2013b).
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, NMFS makes the
following findings:
(a) This proposed rule will not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute or
regulation that would impose an enforceable duty upon state, local,
tribal governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to state,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the state, local, or tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement.)
``Federal private sector mandate'' includes a regulation that
``would impose an enforceable duty upon the private sector, except (i)
a condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.'' The designation of
critical habitat does not impose a legally binding duty on non-Federal
government entities or private parties. Under the ESA, the only
regulatory effect is that Federal agencies must ensure that their
actions do not destroy or adversely modify critical habitat under
section 7. While non-Federal entities which receive Federal funding,
assistance, permits or otherwise require approval or authorization from
a Federal agency for an action may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency. Furthermore, to the extent that non-Federal
entities are indirectly impacted because they receive Federal
assistance or participate in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would not apply; nor would critical
habitat shift the costs of the large entitlement programs listed above
to state governments.
(b) Due to the existing protection afforded to the proposed
critical habitat from existing critical habitat for salmon (70 FR
52630, September 2, 2005), Southern DPS of green sturgeon (74 FR 52300,
October 9, 2009), bull trout (70 FR 56212, September 26, 2005), and the
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southern resident killer whale (71 FR 69054, November 29, 2006), we do
not anticipate that this proposed rule will significantly or uniquely
affect small governments. As such, a Small Government Agency Plan is
not required
Takings
Under Executive Order 12630, Federal agencies must consider the
effects of their actions on constitutionally protected private property
rights and avoid unnecessary takings of property. A taking of property
includes actions that result in physical invasion or occupancy of
private property, and regulations imposed on private property that
substantially affect its value or use. In accordance with Executive
Order 12630, this proposed rule does not have significant takings
implications. A takings implication assessment is not required. The
designation of critical habitat affects only Federal agency actions. We
do not expect the proposed critical habitat designations will impose
additional burdens on land use or affect property values. Additionally,
the proposed critical habitat designations do not preclude the
development of Conservation Plans and issuance of incidental take
permits for non-Federal actions. Owners of areas included within the
proposed critical habitat designations would continue to have the
opportunity to use their property in ways consistent with the survival
of listed rockfish.
Federalism
In accordance with Executive Order 13132, we determined that this
proposed rule does not have significant Federalism effects and that a
Federalism assessment is not required. In keeping with Department of
Commerce policies, we request information from, and will coordinate
development of these proposed critical habitat designations with,
appropriate state resource agencies in Washington. The proposed
designations 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 essential features of the habitat necessary
for the survival of the subject DPSs are specifically identified. It
may also assist local governments in long-range planning (rather than
waiting for case-by-case ESA section 7 consultations to occur).
Government-to-Government Relationship With Tribes
Pursuant to Executive Order 13175 and Secretarial Order 3206, we
contacted the affected Indian Tribes when considering the designation
of critical habitat in an area that may impact tribal trust resources,
tribally owned fee lands or the exercise of tribal rights. The
responding tribes expressed concern about the intrusion into tribal
sovereignty that critical habitat designation represents. These
concerns are consistent with previous responses from tribes when we
developed critical habitat designations for salmon and steelhead in
2005 (70 FR 52630, September 2, 2005). The Secretarial Order defines
Indian lands as ``any lands title to which is either: (1) Held in trust
by the United States for the benefit of any Indian tribe or (2) held by
an Indian Tribe or individual subject to restrictions by the United
States against alienation.'' Our conversations with the tribes indicate
that they view the designation of Indian lands as an unwanted intrusion
into tribal self-governance, compromising the government-to-government
relationship that is essential to achieving our mutual goal of
conserving threatened and endangered salmonids.
For the general reasons described in the Impacts to Tribal
Sovereignty and Self-Governance section above, the draft ESA 4(b)(2)
analysis has led us to propose the exclusion of all Indian lands in our
proposed designations for yelloweye rockfish, canary rockfish, and
bocaccio. Consistent with other proposed exclusions, any exclusion in
the final rule will be made only after consideration of all comments
received.
Civil Justice Reform
The Department of Commerce has determined that this proposed rule
does not unduly burden the judicial system and meets the requirements
of sections 3(a) and 3(b)(2) of Executive Order 12988. We are proposing
to designate critical habitat in accordance with the provisions of the
ESA. This proposed rule uses standard property descriptions and
identifies the essential features within the designated areas to assist
the public in understanding the habitat needs of yelloweye rockfish,
canary rockfish, and bocaccio of the Puget Sound/Georgia Basin.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain new or revised information
collection requirements for which OMB approval is required under the
Paperwork Reduction Act (PRA). This proposed rule will not impose
recordkeeping or reporting requirements on state or local governments,
individuals, businesses, or organizations. Notwithstanding any other
provision of the law, no person is required to respond to, nor shall
any person be subject to a penalty for failure to comply with, a
collection of information subject to the requirements of the PRA,
unless that collection of information displays a currently valid OMB
Control Number.
National Environmental Policy Act of 1969 (NEPA)
We have determined that an environmental analysis as provided for
under NEPA is not required for critical habitat designations made
pursuant to the ESA. See Douglas County v. Babbitt, 48 F.3d 1495 (9th
Cir. 1995), cert. denied, 116 S. Ct. 698 (1996).
Coastal Zone Management Act
Section 307(c)(1) of the Federal Coastal Zone Management Act of
1972 (16 U.S.C. 1456) requires that all Federal activities that affect
the land or water use or natural resource of the coastal zone be
consistent with approved state coastal zone management programs to the
maximum extent practicable. We have determined that these proposed
designations of critical habitat are consistent to the maximum extent
practicable with the enforceable policies of approved Coastal Zone
Management Programs of Washington. The determination will be submitted
for review by the responsible state agency.
References Cited
A complete list of all references cited in this proposed rulemaking
can be found on our Web site at http://www.nwr.noaa.gov/ and is
available upon request from the NMFS office in Seattle, Washington (see
ADDRESSES).
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: July 30, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, Performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
For the reasons set out in the preamble, we propose to amend part
226, title 50 of the Code of Federal Regulations as set forth below:
PART 226--DESIGNATED CRITICAL HABITAT
0
1. The authority citation for part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
2. Add Sec. 226.2124 to read as follows:
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Sec. 226.2124 Critical habitat for the Puget Sound/Georgia Basin DPS
of yelloweye rockfish (Sebastes ruberrimus), canary rockfish (S.
pinniger), and bocaccio (S. paucispinus).
Critical habitat is designated in the following states and counties
for the following DPSs as depicted in the maps below and described in
paragraphs (a) through (d) of this section. The maps can be viewed or
obtained with greater resolution (http://www.nwr.noaa.gov/) to enable a
more precise inspection of proposed critical habitat for yelloweye
rockfish, canary rockfish and bocaccio.
(a) Critical habitat is designated for the following DPSs in the
following state and counties:
------------------------------------------------------------------------
DPS State--Counties
------------------------------------------------------------------------
Yelloweye rockfish........... Wa--San Juan, Whatcom, Skagit, Island,
Clallam, Jefferson Snohomish, King,
Pierce, Kitsap, Thurston, Mason.
Canary rockfish.............. Wa--San Juan, Whatcom, Skagit, Island,
Clallam, Jefferson Snohomish, King,
Pierce, Kitsap, Thurston, Mason.
Bocaccio..................... Wa--San Juan, Whatcom, Skagit, Island,
Clallam, Jefferson Snohomish, King,
Pierce, Kitsap, Thurston, Mason.
------------------------------------------------------------------------
(b) Critical habitat boundaries. In delineating nearshore
(shallower than 30 m (98 ft)) areas in Puget Sound, we define proposed
critical habitat for canary rockfish and bocaccio, as depicted in the
maps below, as occurring from the shoreline from extreme high water out
to a depth no greater than 30 m (98 ft) relative to mean lower low
water. Deepwater proposed critical habitat for yelloweye rockfish,
canary rockfish and bocaccio occurs in some areas, as depicted in the
maps below, from depths greater than 30 m (98ft).
(c) Essential features for juvenile canary rockfish and bocaccio.
Juvenile settlement habitats located in the nearshore with substrates
such as sand, rock and/or cobble compositions that also support kelp
are essential for conservation because these features enable forage
opportunities and refuge from predators and enable behavioral and
physiological changes needed for juveniles to occupy deeper adult
habitats. Several attributes of these sites determine the quality of
the area and are useful in considering the conservation value of the
associated feature and, in determining whether the feature may require
special management considerations or protection. These features also
are relevant to evaluating the effects of a proposed action in a
section 7 consultation if the specific area containing the site is
designated as critical habitat. These attributes include quantity,
quality, and availability of prey species to support individual growth,
survival, reproduction, and feeding opportunities; and water quality
and sufficient levels of dissolved oxygen to support growth, survival,
reproduction, and feeding opportunities. Nearshore areas are contiguous
with the shoreline from the line of extreme high water out to a depth
no greater than 30 meters (98 ft) relative to mean lower low water.
(d) Essential features for adult canary rockfish and bocaccio, and
adult and juvenile yelloweye rockfish. Benthic habitats or sites deeper
than 30m (98ft) that possess or are adjacent to areas of complex
bathymetry consisting of rock and or highly rugose habitat are
essential to conservation because these features support growth,
survival, reproduction, and feeding opportunities by providing the
structure for rockfish to avoid predation, seek food and persist for
decades. Several attributes of these sites determine the quality of the
habitat and are useful in considering the conservation value of the
associated feature, and whether the feature may require special
management considerations or protection. These attributes are also
relevant in the evaluation of the effects of a proposed action in a
section 7 consultation if the specific area containing the site is
designated as critical habitat. These attributes include:
(1) Quantity, quality, and availability of prey species to support
individual growth, survival, reproduction, and feeding opportunities,
(2) water quality and sufficient levels of dissolved oxygen to
support growth, survival, reproduction, and feeding opportunities, and
(3) the type and amount of structure and rugosity that supports
feeding opportunities and predator avoidance.
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[FR Doc. 2013-18832 Filed 8-5-13; 8:45 am]
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