Federal Register: October 9, 2009 (Volume 74, Number 195)
DOCID: fr09oc09-17 FR Doc E9-24067
DEPARTMENT OF COMMERCE
United States Mint
CFR Citation: 50 CFR Part 226
Docket ID: [Docket No. 080730953-91263-02]
RIN ID: RIN 0648-AX04
NOTICE: Part II
DOCID: fr09oc09-17
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Endangered and Threatened Wildlife and Plants: Final Rulemaking To Designate Critical Habitat for the Threatened Southern Distinct Population Segment of North American Green Sturgeon
DATES: This rule will take effect on November 9, 2009.
DOCUMENT SUMMARY:
We, the National Marine Fisheries Service (NMFS), designate critical habitat for the threatened Southern distinct population segment of North American green sturgeon (Southern DPS of green sturgeon) pursuant to section 4 of the Endangered Species Act (ESA). Specific areas proposed for designation include: Coastal U.S. marine waters within 60 fathoms (fm) depth from Monterey Bay, California (including Monterey Bay), north to Cape Flattery, Washington, including the Strait of Juan de Fuca, Washington, to its United States boundary; the Sacramento River, lower Feather River, and lower Yuba River in California; the SacramentoSan Joaquin Delta and Suisun, San Pablo, and San Francisco bays in California; the lower Columbia River estuary; and certain coastal bays and estuaries in California (Humboldt Bay), Oregon (Coos Bay, Winchester Bay, Yaquina Bay, and Nehalem Bay), and Washington (Willapa Bay and Grays Harbor). This rule designates approximately 515 kilometer (km) (320 miles (mi)) of freshwater river habitat, 2,323 km\2\ (897 mi\2\) of estuarine habitat, 29,581 km\2\ (11,421 mi\2\) of marine habitat, 784 km (487 mi) of habitat in the SacramentoSan Joaquin Delta, and 350 km\2\ (135 mi\2\) of habitat within the Yolo and Sutter bypasses (Sacramento River, CA) as critical habitat for the Southern DPS of green sturgeon.
This rule excludes the following areas from designation because the economic benefits of exclusion outweigh the benefits of inclusion and exclusion will not result in the extinction of the species: Coastal U.S. marine waters within 60 fm depth from the California/Mexico border north to Monterey Bay, CA, and from the Alaska/Canada border northwest to the Bering Strait; the lower Columbia River from river kilometer (RKM) 74 to the Bonneville Dam; and certain coastal bays and estuaries in California (Elkhorn Slough, Tomales Bay, Noyo Harbor, and the estuaries to the head of the tide in the Eel and Klamath/Trinity rivers), Oregon (Tillamook Bay and the estuaries to the head of the tide in the Rogue, Siuslaw, and Alsea rivers), and Washington (Puget Sound). Particular areas are also excluded based on impacts on national security and impacts on Indian lands. The areas excluded from the designation comprise approximately 0.2 km (0.1 mi) of freshwater habitat, 2,945 km\2\ (1,137 mi\2\) of estuarine habitat and 1,034,935 km\2\ (399,590 mi\2\) of marine habitat.
This final rule responds to and incorporates public comments received on the proposed rule and supporting documents, as well as peer reviewer comments received on the draft biological report and draft ESA section 4(b)(2) report.
SUMMARY:
Commerce Department, National Oceanic and Atmospheric Administration
SUPPLEMENTAL INFORMATION
Background
Under the ESA, we are responsible for determining whether certain species, subspecies, or distinct population segments (DPS) are threatened or endangered, and designating critical habitat for them (16 U.S.C. 1533). On April 7, 2006, we determined that the Southern DPS of green sturgeon is likely to become endangered in the foreseeable future throughout all or a significant portion of its range and listed the species as threatened under the ESA (71 FR 17757). A proposed critical habitat rule for the Southern DPS was published in the Federal Register on September 8, 2008 (73 FR 52084), with a technical correction and notification of a public workshop published on October 7, 2008 (73 FR 58527). Pursuant to a courtordered settlement agreement, NMFS agreed to make a final critical habitat designation for the Southern DPS by June 30, 2009. However, an extension was requested and granted, with a new deadline of October 1, 2009. This rule describes the final critical habitat designation, including responses to public comments and peer reviewer comments, a summary of changes from the proposed rule, and supporting information on green sturgeon biology, distribution, and habitat use, and the methods used to develop the final designation.
We considered various alternatives to the critical habitat designation for the green sturgeon. The alternative of not designating critical habitat for the green sturgeon would impose no economic, national security, or other relevant impacts, but would not provide any conservation benefit to the species. This alternative was considered and rejected because such an approach does not meet the legal requirements of the ESA and would not provide for the conservation of green sturgeon. The alternative of designating all potential critical habitat areas (i.e., no areas excluded) also was considered and rejected because, for a number of areas, the economic benefits of exclusion outweighed the benefits of inclusion, and NMFS did not determine that exclusion of these areas would significantly impede conservation of the species or result in extinction of the species. The total estimated annualized economic impact associated with the designation of all potential critical habitat areas would be $64 million to $578 million (discounted at 7 percent) or $63.9 million to $578 million (discounted at 3 percent).
An alternative to designating critical habitat within all of the
units considered for designation is the designation of critical habitat
within a subset of these units. Under section 4(b)(2) of the ESA, NMFS
must consider the economic impacts, impacts to national security, and
other relevant impacts of designating any particular area as critical
habitat. NMFS has the discretion to exclude an area from designation as
critical habitat if the benefits of exclusion (i.e., the impacts that
would be avoided if an area were excluded from the designation)
outweigh the benefits of designation (i.e., the conservation benefits
to the Southern DPS if an area were designated), so long as exclusion
of the area will not result in extinction of the species. Exclusion
under section 4(b)(2) of the ESA of one or more of the units considered
for designation would reduce the total impacts of designation. The
determination of which units and how many to exclude depends on NMFS'
ESA 4(b)(2) analysis, which is conducted for each unit and described [[Page 52301]]
in detail in the ESA 4(b)(2) analysis report. Under this preferred
alternative, NMFS originally proposed to exclude 13 out of 40 units
considered. The total estimated economic impact associated with the
proposed rule was $22.5 million to $76.4 million (discounted at 7
percent) or $22.5 million to $76.3 million (discounted at 3 percent).
In response to public comments and additional information received,
this final rule excludes 14 units out of 41 units considered where the
economic benefits of exclusion outweighed the conservation benefits of
designation. NMFS determined that the exclusion of these 14 units would
not significantly impede the conservation of the Southern DPS. The
total estimated economic impact associated with this final rule is
$20.2 million to $74.1 million (discounted at 7 percent) or $20.1
million to $74 million (discounted at 3 percent). NMFS selected this
alternative because it results in a critical habitat designation that
provides for the conservation of the Southern DPS while reducing the
economic impacts on entities. This alternative also meets the
requirements under the ESA and our joint NMFSUSFWS regulations concerning critical habitat.
Green Sturgeon Natural History
The green sturgeon (Acipenser medirostris) is an anadromous fish species that is longlived and among the most marine oriented sturgeon species in the family Acipenseridae. Green sturgeon is one of two sturgeon species occurring on the U.S. west coast, the other being white sturgeon (Acipenser transmontanus). Green sturgeon range from the Bering Sea, Alaska, to Ensenada, Mexico, with abundance increasing north of Point Conception, CA (Moyle et al. 1995). Green sturgeon occupy freshwater rivers from the Sacramento River up through British Columbia (Moyle 2002), but spawning has been confirmed in only three rivers, the Rogue River in Oregon and the Klamath and Sacramento rivers in California. Based on genetic analyses and spawning site fidelity (Adams et al. 2002; Israel et al. 2004), NMFS has determined green sturgeon are comprised of at least two distinct population segments (DPSs): (1) A Northern DPS consisting of populations originating from coastal watersheds northward of and including the Eel River (i.e., the Klamath and Rogue rivers) (``Northern DPS''); and (2) a southern DPS consisting of populations originating from coastal watersheds south of the Eel River, with the only known spawning population in the Sacramento River (``Southern DPS''). The Northern DPS and Southern DPS are distinguished based on genetic data and spawning locations, but their distribution outside of natal waters generally overlap with one another (Chadwick 1959; Miller 1972; California Department of Fish and Game (CDFG) 2002; Israel et al. 2004; Moser and Lindley 2007; Erickson and Hightower 2007; Lindley et al. 2008.). Both Northern DPS and Southern DPS green sturgeon occupy coastal estuaries and coastal marine waters from southern California to Alaska, including Humboldt Bay, the lower Columbia river estuary, Willapa Bay, Grays Harbor, and coastal waters between Vancouver Island, BC, and southeast Alaska (Israel et al. 2004; Moser and Lindley 2007; Lindley et al. 2008).
Spawning frequency is not well known, but the best information suggests adult green sturgeon spawn every 24 years (pers. comm. with Steve Lindley, NMFS, and Mary Moser, NMFS, 2004, cited in 70 FR 17386, April 6, 2005; Erickson and Webb 2007). Beginning in late February, adult green sturgeon migrate from the ocean into fresh water to begin their spawning migrations (Moyle et al. 1995). Spawning occurs from March to July, with peak activity from midApril to midJune (Emmett et al. 1991; Poytress et al. 2009). Spawning in the Sacramento River occurs in fast, deep water over gravel, cobble, or boulder substrates (Emmett et al. 1991; Moyle et al. 1995; Poytress et al. 2009). Eggs and larvae develop in freshwater, likely near the spawning site (Kynard et al. 2005). Development of early life stages is affected by water flow and temperature (optimal temperatures from 11 to 1718 [deg]C; Cech et al. 2000, cited in COSEWIC 2004; Van Eenennaam et al. 2005). Juvenile green sturgeon rear and feed in fresh and estuarine waters from 1 to 4 years prior to dispersing into marine waters as subadults (Nakamoto et al. 1995).
Adults are defined as sexually mature fish, subadults as sexually immature fish that have entered into coastal marine waters (usually at 3 years of age), and juveniles as fish that have not yet made their first entry into marine waters. Green sturgeon spend a large portion of their lives in coastal marine waters as subadults and adults. Subadult male and female green sturgeon spend at least approximately 6 and 10 years, respectively, at sea before reaching reproductive maturity and returning to freshwater to spawn for the first time (Nakamoto et al. 1995). Adult green sturgeon spend as many as 24 years at sea between spawning events (pers. comm. with Steve Lindley, NMFS, and Mary Moser, NMFS, cited in 70 FR 17386, April 6, 2005; Erickson and Webb 2007). Prior to reaching sexual maturity and between spawning years, subadults and adults occupy coastal estuaries adjacent to their natal rivers, as well as throughout the West coast, and coastal marine waters within 110 meters (m) depth. Green sturgeon inhabit certain estuaries on the northern California, Oregon, and Washington coasts during the summer, and inhabit coastal marine waters along the central California coast and between Vancouver Island, British Columbia, and southeast Alaska over the winter (Lindley et al. 2008). Green sturgeon likely inhabit these estuarine and marine waters to feed and to optimize growth (Moser and Lindley 2007). Particularly large aggregations of green sturgeon occur in the Columbia River estuary and Washington estuaries and include green sturgeon from all known spawning populations (Moser and Lindley 2007). Although adult and subadult green sturgeon occur in coastal marine waters as far north as the Bering Sea, green sturgeon have not been observed in freshwater rivers or coastal bays and estuaries in Alaska.
Detailed information on the natural history of green sturgeon is provided in the proposed rule to designate critical habitat (73 FR 52084; September 8, 2008) and in the final biological report (NMFS 2009a) prepared in support of this final rule.
Summary of Comments and Responses
We requested comments on the proposed rule to designate critical
habitat for the Southern DPS of green sturgeon (73 FR 52084; September
8, 2008) and on the supporting documents (i.e., the draft biological
report, draft economic analysis report, and draft ESA section 4(b)(2)
report). To facilitate public participation, the proposed rule and
supporting documents were made available on our Southwest Region Web
site (http://swr.nmfs.noaa.gov) and on the Federal eRulemaking Portal
Web site (http://www.regulations.gov). Public comments were accepted
via standard mail, fax, or through the Federal eRulemaking Portal. In
response to requests from the public, the original 60day public
comment period was extended an additional 45 days (73 FR 65283;
November 3, 2008), ending on December 22, 2008. A public workshop was
held in Sacramento, CA, on October 16, 2008, and attended by 21
participants, including researchers and representatives from industries
and Federal, State, and local agencies. The draft biological report and draft
[[Page 52302]]
economic analysis report were also each reviewed by three peer reviewers.
Thirtynine written public comments were received on the proposed rule and supporting documents from Federal agencies, State agencies, local entities, nongovernmental organizations, Tribes, and industry representatives. Seven comments generally supported the proposed rule, 29 comments did not agree with the designation of critical habitat in particular areas, and 3 comments provided additional information but did not support or oppose the proposed rule. Several commenters requested that certain particular areas or specific areas be considered ineligible for designation because they do not meet the definition of critical habitat. Several commenters also requested exclusion of areas based on economic impacts, impacts on national security, or impacts on Indian lands. Additional data were provided to inform the biological and economic analyses, as well as comments regarding the methods used in these analyses. NMFS considered all public and peer reviewer comments. A summary of the comments by major issue categories and the responses thereto are presented here. Similar comments are combined where appropriate.
Physical or Biological Features Essential for Conservation
Comment 1: Several commenters felt that the critical habitat designation is not supported by the relatively sparse data and that the physical or biological habitat features or primary constituent elements (PCE) identified for green sturgeon are too general and vague, such that no habitat would exist without them. One commenter noted that the level of detail provided on the PCEs in the supplementary information section of the proposed rule is greater than the level of detail provided in the regulatory text section of the proposed rule.
Response: The critical habitat designation was developed using the best available scientific data, as required by the ESA. We recognize that uncertainties exist and have noted where they occur in the final rule and supporting documents. When appropriate, we incorporated additional data provided by the public comments regarding the PCEs, the biological evaluation, and the economic analysis. The level of specificity of the PCEs was consistent with that provided in previous critical habitat designations (e.g., for West coast salmon and steelhead evolutionarily significant units (ESU) and Southern Resident killer whales). In addition, specific ranges of values for the PCEs cannot be provided (e.g., water flow levels, adequately low contaminant levels), because the data are not currently available and because these values may vary based on the location, time of year, and other factors specific to an area. The level of detail provided in different sections of the proposed rule differs because the regulatory text section typically provides a more brief description of the PCEs, whereas the supplementary information section typically provides a more thorough description. The supplementary information section and the supporting documents provide additional details to describe the process of the critical habitat designation and the biological and economic analyses that were conducted in support of the designation, whereas the regulatory text reports the final designation.
Comment 2: One commenter requested clarification regarding how acceptably low levels of contaminants would be determined on a caseby case basis (as it pertains to the water quality and sediment quality PCEs). Specifically, the commenter asked whether casebycase meant that this would be determined for each Permittee/Project (and if so, what would be the basis for differentiation) or by contaminant (and if so, how this would be determined and disseminated to the public).
Response: Consultations under section 7 of the ESA on contaminants may be conducted on a casebycase basis for each project or by contaminant, depending on the scope of the consultation. NMFS has typically dealt with consultations for contaminants, such as pesticides, on a projectbyproject basis. These consultations have generally resulted in recommended measures to avoid exposure of the listed species to the contaminants in question, for example, by spatially or temporally limiting the introduction of the contaminant into waterways occupied by the species. However, the recommended measures are sitespecific and will vary depending on the site, the contaminant(s) in question, the type of use, the purpose of the project, and the species potentially affected. NMFS recently conducted two consultations on the national level with the Environmental Protection Agency (EPA) addressing the registration of pesticides containing carbaryl, carbofuran, and methomyl (NMFS 2009b) and pesticides containing chlorpyrifos, diazinon, and malathion (NMFS 2008a). In both consultations, NMFS issued a biological opinion finding that the registration of these pesticides would jeopardize the continued existence of most listed salmonids and adversely modify critical habitat. The reasonable and prudent alternatives provided to the EPA recommended labeling requirements that specify criteria for the use and application of the pesticides, including noapplication buffer zones adjacent to salmonid habitat, restrictions on application during high wind speeds and when a rain storm is predicted, reporting of any fish mortalities within four days, and implementation of a monitoring plan for offchannel habitats. To the extent the alternatives minimize entry of pesticides into water bodies and result in better information, green sturgeon and other aquatic species will benefit.
Comment 3: One commenter provided additional information from recent studies indicating that green sturgeon are more sensitive to methylmercury and selenium (two contaminants found in sediments) than white sturgeon (Kaufman et al. 2008). The commenter noted that the studies were unable to determine a ``no effect'' concentration for selenomethionine for green sturgeon, a contaminant found in bays including the San Francisco, San Pablo, and Suisun bays and the SacramentoSan Joaquin Delta (hereafter, the Delta). The commenter stated that it may be unlikely that many areas will qualify as having the sediment quality PCE as it is described in the proposed rule.
Response: We appreciate the updated information regarding the
sensitivity of green sturgeon to contaminants and have incorporated
this information into the final rule and biological report. We
recognize the concern expressed by the commenter that few, if any,
areas have sediments free of elevated levels of contaminants (i.e.,
levels at which green sturgeon are not negatively affected). This
brings up two issues. First, whether this affects the eligibility of
the specific areas considered for designation. Because all of the
proposed areas containing the sediment quality PCE also contained at
least one other PCE, the eligibility of the specific areas is not
affected. Related to this is the question of whether a PCE can be
considered to exist within an area if it has been altered and degraded
by past, current, or ongoing activities. The ESA's definition of
critical habitat focuses on PCEs that may require special management
considerations or protection. Thus, the ESA recognizes that the PCEs
may exist at varying levels of quality and allows for the consideration
of PCEs that have been or may be altered or degraded. Second, this
brings up the question of how this PCE will be addressed in consultations under section 7 of the ESA. The
[[Page 52303]]
specifics of each consultation would vary depending on each project,
but would likely focus on measures to control the introduction of
selenium into the environment. The Sacramento River basin is naturally
very low in selenium and little selenium enters the watercourses from
the surrounding watershed. Conversely, the San Joaquin River basin, due
to the geology of the west side of the valley and the human
agricultural practices conducted in this region, create conditions of
elevated selenium in the waters of the basin draining the west side and
running through the valley floor towards the Delta. It should also be
recognized that selenium is a micronutrient which is necessary for
life, though toxic at levels above trace amounts. Continued monitoring
of selenium levels in sediments and research on the sensitivity of
green sturgeon to this and other contaminants would be supported. Geographical Area Occupied by the Species
Comment 4: One commenter stated that the range of the Southern DPS needs to be clarified as previous publications in the Federal Register do not clearly define the range. Another commenter stated that the final decision to list the Southern DPS as threatened under the ESA only applied the listing to the population in California and that, although Southern DPS green sturgeon move into the Northern DPS' range outside California, the protections under the listing do not apply to Southern DPS fish once they enter the Northern DPS' range. The commenter felt that NMFS should not designate Oregon and Washington rivers and marine waters as critical habitat if the species is not listed in these areas.
Response: We acknowledge that in the final listing rule and the corresponding regulatory language at 50 CFR 223.102(a)(23), it is stated, ``Where listed: USA, CA. The southern DPS includes all spawning populations of green sturgeon south of the Eel River (exclusive), principally including the Sacramento River green sturgeon spawning population.'' This statement limits the listing to the Southern DPS of green sturgeon, but does not limit the geographic range to which the listing applies. A Southern DPS green sturgeon is defined to originate from spawning populations south of the Eel River (i.e., from the Sacramento River). Each individual Southern DPS fish carries the listing, and the protections afforded to it under the ESA, wherever it goes. In other words, a Southern DPS green sturgeon is listed as threatened and protected under the ESA no matter where that individual is found. Thus, Southern DPS green sturgeon are listed throughout their range, including waters north of California within the range of the Northern DPS.
NMFS recognizes that previous publications in the Federal Register have defined the range of Southern DPS green sturgeon with varying levels of specificity and that this may have resulted in confusion. The range of the Southern DPS is more clearly defined in the proposed critical habitat rule and in the draft biological report (NMFS 2008b). We restate this definition here to further clarify the definition and range of the Southern DPS of green sturgeon. The proposed critical habitat rule (73 FR 52084, September 8, 2008) and the draft biological report (NMFS 2008b) define the Southern DPS as consisting of populations originating from coastal watersheds south of the Eel River, with the only confirmed spawning population in the Sacramento River. The Northern DPS consists of populations originating from coastal watersheds northward of and including the Eel River, with the only confirmed spawning populations in the Klamath and Rogue rivers. Thus, the Northern DPS and the Southern DPS of green sturgeon are defined based on their natal streams. However, the ranges of the Northern DPS and Southern DPS are defined by the distribution of each DPS including and beyond their natal waters. Based on genetic information and telemetry data from tagged Southern DPS green sturgeon, the occupied geographic range of the Southern DPS extends from Monterey Bay, CA, to Graves Harbor, AK. Within this geographic range, the presence of Southern DPS green sturgeon has been confirmed in the following areas: Sacramento River, CA; lower Feather River, CA; lower Yuba River, CA; the SacramentoSan Joaquin Delta, CA; Suisun Bay, CA; San Pablo Bay, CA; San Francisco Bay, CA; Monterey Bay, CA; Humboldt Bay, CA; Coos Bay, OR; Winchester Bay, OR; Yaquina Bay, OR; the lower Columbia River and estuary; Willapa Bay, WA; Grays Harbor, WA; the Strait of Juan de Fuca, WA; Puget Sound, WA; and Graves Harbor, AK (see final biological report (NMFS 2009a) for references for each area). Northern DPS and Southern DPS green sturgeon cooccur across much of their occupied ranges, are not morphologically distinguishable, and, based on the best available data at this time, do not appear to differ in temporal or spatial distribution within areas where their ranges overlap. Thus, within areas where the Southern DPS has been confirmed, protections for the Southern DPS would apply to all green sturgeon based on similarity of appearance. The critical habitat designation recognizes not only the importance of natal habitats, but of habitats throughout their range for the conservation of Southern DPS green sturgeon.
Comment 5: One commenter stated that the genetic analysis does not provide sufficient information to determine the presence or absence of Southern DPS green sturgeon in the bays and estuaries on the Oregon coast.
Response: To determine the presence of Southern DPS green sturgeon in an area, a critical habitat review team (CHRT), comprised of 9 Federal biologists from various agencies, primarily relied on the best available information from tagging studies. Monitoring of tagged Southern DPS green sturgeon has confirmed their use of several coastal bays and estuaries from Monterey Bay, California, north to Puget Sound, Washington (Moser and Lindley 2007; Lindley et al. 2008; pers. comm. with Steve Lindley, NMFS, and Mary Moser, NMFS, February 2425, 2008). Therefore, presence has already generally been established based on the tagging data. The available genetic data supports the tagging data by assigning or confirming the DPS of individuals (e.g., assigning individuals caught in nonnatal waters to the Northern DPS or Southern DPS) and has also been useful in estimating what proportion of green sturgeon observed in nonnatal estuaries belong to the Southern DPS. In addition, the genetic data would provide supplemental presence information once the data set is large enough to ensure detection of Southern DPS fish, particularly if the estuary or bay has a low frequency of use.
Comment 6: One commenter requested that additional telemetry data regarding green sturgeon use of coastal marine waters at Siletz Reef and Seal Rock Reef off the coast of Oregon be incorporated into the final biological report and considered in the final critical habitat designation. The commenter also requested that additional information be included to support the designation of coastal marine waters from 0 to 20 m depth and from 90 to 110 m depth.
Response: NMFS is currently analyzing the data on green sturgeon
detections off the Oregon coast. Preliminary results indicate that
green sturgeon use deeper depths (between 40 to 80 m) more than
shallower depths, but reasons for this observation are not known.
Detection data for shallower depths may be affected by noise. However, because these data represent
[[Page 52304]]
only two areas along the Oregon coast, it may not be appropriate to
extrapolate these observations to other areas along the West coast.
Other available data indicate that green sturgeon occur throughout all
depths from 0 to 110 m depth. Some green sturgeon have been caught
deeper than 110 m depth, but the majority occur in waters shallower than 110 m depth (Erickson and Hightower 2007).
Specific Areas
Comment 7: Two commenters felt that the areas proposed for designation as critical habitat were too broad. One commenter stated that NMFS failed to show that the areas are essential for conservation of the Southern DPS. Another commenter suggested that the areas be refined based on the spatial and temporal presence of the PCEs. For example, the commenter stated that riverine areas designated as critical habitat for spawning purposes should be designated only if actually used for spawning and only during the time of year that spawning occurs, because areas spatially or temporally outside of this would not contain the PCEs for spawning. The commenter stated that such refinement would help ensure that the designation is not applied in an overly restrictive manner to activities that occur in areas where no green sturgeon spawn and that this reasoning can be applied to other PCEs and habitat uses.
Response: The joint NMFS/U.S. Fish and Wildlife Service (USFWS) regulations regarding the designation of critical habitat focus on the primary biological or physical constituent elements (PCEs) that are essential to the conservation of the species. The ESA states that an area qualifies as critical habitat if it is occupied and has one or more PCE(s) that may require special management considerations or protection. Specific areas are eligible for designation if they meet these criteria. Neither the ESA definition of critical habitat nor the joint NMFS/USFWS regulations require that critical habitat be designated only within the most important core habitats of the species.
In addition, the ESA focuses on the spatial presence of the PCEs, but does not mention the temporal presence of the PCEs. The level of refinement described by the commenter is typically considered during the consultation process under section 7 of the ESA, not during the critical habitat designation process. Consistent with ESA section 7 consultation practices, spatial and temporal considerations are commonly assessed during the impact analysis of the proposed action. While temporal considerations generally look at impacts to individual fish (i.e., avoidance of exposure as inferred by work windows), actions can, and often do, affect the habitat that fish use or occupy after the action is completed. The commenter's example of spawning areas does not address what potential impacts the ``action'' may have on the quality of the spawning area after the action is completed. Actions that temporally avoid areas of use (i.e., spawning activities on the spawning grounds) during the implementation of the action may still impact the use of the area after the action is completed. For example, installing bridge piers upstream of a spawning area still impacts the spawning area afterthefact through road runoff entering the river channel from the bridge, traffic vibrations being transmitted through the column into the substrate of the river channel during ``normal use,'' and sedimentation from roadway runoff and altered riparian habitat. Furthermore, actions that do not occur exactly in the same place as the area of concern may nonetheless still affect the area of concern. For example, wastewater discharge upstream of a spawning area can generate an effluent plume that travels downstream to spawning areas, and reservoir releases occurring upstream may affect water flow, velocity, and temperature in the area of concern. Thus, details such as the specific activities being conducted, the location, and the spatial and temporal scale are considered in order to determine the potential effects of the activity on critical habitat and, ultimately, whether the activity is likely to destroy or adversely modify critical habitat. Then a determination is made of what, if any, additional actions or modifications to the proposed action will need to be implemented to provide protection to the species and their designated critical habitat. The section 7 consultation process allows NMFS to address the action's impacts on a casebycase basis and incorporate the appropriate level of analysis as needed. A categorical exemption would not allow this level of review to occur and in fact would diminish the ability to consistently and accurately assess action impacts and adjust actions to fit the current status of the species and the condition of the critical habitat used by the species.
Comment 8: One commenter suggested that the shoreward boundary for coastal marine habitats should extend to the line of mean lower low water (MLLW) instead of extreme high tide, and that the seaward boundary of 110 m depth should be rounded to the 60 fm contour line.
Response: The CHRT, a team of Federal biologists who conducted the biological analysis, considered and agreed with the recommendations. The area between the MLLW line and the extreme high tide line along the coast is small and likely not occupied by green sturgeon. Whereas studies indicate that intertidal zones within estuaries and protected bays are important habitat for green sturgeon, green sturgeon likely do not occupy shallow intertidal areas or high energy surf zones along the open coast. The CHRT compared the MLLW line along the coast with the extreme high tide line and found that the area that would be excluded by defining the shoreward boundary using the MLLW line would be small and would not contain any areas identified to be important for green sturgeon. Thus, the CHRT agreed to extend the coastal marine areas to the area inundated by mean lower low water, rather than to the extreme high tide. The CHRT also agreed to round the 110 m depth contour line to the 60 fm contour line, because the 60fm contour is already described in Federal regulations for the West Coast groundfish bottom trawl fishery and is approximately equal to 110 m (60 fm = 109.7 m).
Comment 9: Several comments were received regarding the proposed designation of the lower Columbia River estuary. The commenters felt that the geographic definition of the estuary used was too broad and that the boundary for the estuary in the lower Columbia River should be defined by the maximum extent of saltwater intrusion, which was defined by one commenter to occur at RKM 64 and another commenter to occur at RKM 74. The commenters recommended that the Willamette River and the lower Columbia River from RKM 64 or RKM 74 to Bonneville Dam should be excluded from the designation. One commenter asserted that there are no data indicating that green sturgeon captured above Columbia RKM 64 are part of the Southern DPS, and that because recent green sturgeon tagging data indicate that Northern DPS green sturgeon occupy more interior habitats in the Columbia River estuary than Southern DPS green sturgeon, a smaller critical habitat area for the Columbia River estuary is justified.
Response: In the proposed rule, the specific area in the lower
Columbia River estuary was defined as the area from the river mouth to
the Bonneville Dam (RKM 146). The CHRT considered the comments received and agreed that this specific area should be divided into
[[Page 52305]]
two specific areas as follows: (1) The lower Columbia River estuary
from the river mouth to RKM 74; and (2) the lower Columbia River from
RKM 74 to the Bonneville Dam (RKM 146). This division was based on
differences in environmental parameters and green sturgeon use and
presence between the lower estuary (river mouth to RKM 74) and the
lower river (RKM 74 to Bonneville Dam). River kilometer 74 marks the
approximate location of the maximum extent of saltwater intrusion into
the lower Columbia River and has been used in other reports as the
location to divide the lower estuary and tidal freshwater (Johnson et
al. 2003). Commercial gillnet harvest data for green sturgeon from
19812004 (Washington Department of Fish and Wildlife (WDFW) 2007, ESA
informal consultation) indicate the greatest numbers of green sturgeon
catch in zone 1 (RKM 132; 29,124 green sturgeon harvested) and zone 2
(RKM 3284; 8,082 green sturgeon harvested). Green sturgeon catch
declines sharply upstream of RKM 84, with a total of 290 green sturgeon
caught in zones 35 (RKM 84227) from 19812004. Observations by WDFW
and Oregon Department of Fish and Wildlife (ODFW) also indicate
concentrations of green sturgeon in the lower estuary with fewer
numbers moving upstream. Unpublished telemetry data support these
observations, showing greater numbers of detections of both Southern
DPS and Northern DPS green sturgeon in the lower portion of the estuary
compared to the upper portion (pers. comm. with Mary Moser, NMFS,
February 25, 2009). However, because the most upstream monitor location
is at RKM 74, the telemetry data provide data on the distribution of
tagged Southern DPS and Northern DPS fish within the lower estuary but
do not provide data on the movement and distribution of tagged green
sturgeon upstream of RKM 74. Tagged Southern DPS green sturgeon have
been detected at the monitor at RKM 74 and are able to access the lower
Columbia River upstream of RKM 74, though data are not available to
determine the number of Southern DPS green sturgeon moving upstream of
RKM 74 or the relative levels of Southern DPS and Northern DPS fish in
this area. Based on information provided in the public comments
indicating that green sturgeon have not been observed in the lower
Willamette River, the CHRT agreed that the Willamette River should not
be included in the areas considered for designation. Thus, the specific
area delineated in the lower Columbia River from RKM 74 to the
Bonneville Dam does not now include the Willamette River. The CHRT's
evaluation of the two specific areas resulted in a conservation value
rating of High for the lower Columbia River estuary from the river
mouth to RKM 74 and a conservation value rating of Low for the lower
Columbia River from RKM 74 to RKM 146 (see response to Comment 14 and
the section titled ``Methods for Assessment of Specific Areas'' for an
explanation of how the conservation value ratings were determined). The
final biological report (NMFS 2009a) provides additional information about the CHRT's evaluation of each specific area.
Comment 10: One commenter recommended that South San Francisco Bay be considered a separate area from Central San Francisco Bay and that South San Francisco Bay should be excluded from the designation because use of the area by green sturgeon is moderate and it is not needed for any life history stage that is not supported by the northern reach of the Bay.
Response: The CHRT acknowledged that Central San Francisco Bay and South San Francisco Bay can be distinguished by different environmental and oceanographic features. However, these differences likely do not affect green sturgeon use of the areas. The best available catch data for the San Francisco Bay indicate that comparably low numbers of green sturgeon have been caught in both Central and South San Francisco Bay. In 2006, a local sport fishing group reported 2 green sturgeon caught in Central San Francisco Bay, 3 caught in SouthCentral San Francisco Bay, and 4 caught in South San Francisco Bay (pers. comm. with Pete Davidson, Coastside Fishing Club, May 31, 2006). The total green sturgeon catch in the sport fishery for 2006 is not known, because sturgeon report cards were not required in California until March 2007 (Gleason 2007). Low numbers of green sturgeon were caught in CDFG's otter trawl (1980 to 2004) and midwater trawl (1980 to 2001) surveys in the bays and the Delta (Delta: n = 19; Suisun Bay/Carquinez Strait: n = 27; San Pablo Bay: n = 9; Central San Francisco Bay: n = 8; South San Francisco Bay: n = 2) (Jahn 2006). It is important to note that the surveys and sampling gear were not designed to target green sturgeon, and thus the data may not be truly representative of the relative levels of green sturgeon use among the bays and the Delta. For example, given that all green sturgeon must migrate through Central San Francisco Bay in their migrations to and from the ocean, much larger numbers of green sturgeon catch would be expected in this area. In addition, the catch data do not provide information about the distribution of juvenile green sturgeon throughout the bays and the Delta. Based on the best available information, juvenile green sturgeon are believed to distribute widely throughout the bays and Delta for feeding and rearing and are present in all months of the year (Ganssle 1966, CDFG 2002, Bay Delta and Tributaries Project 2005). Thus, the CHRT determined that the best available information does not support dividing the specific area in San Francisco Bay into Central San Francisco Bay and South San Francisco Bay, and reconfirmed that this specific area has a High conservation value for the Southern DPS (see response to Comment 14 and the section titled ``Methods for Assessment of Specific Areas'' for an explanation of how the conservation value ratings were determined). Based on the CHRT's assessment of San Francisco Bay, NMFS determined that this area should be included in the final critical habitat designation. Studies focused on green sturgeon, particularly on the juvenile life stages, would help address the data gaps and inform ESA section 7 consultations resulting from this critical habitat designation as well as future revisions to the designation.
Comment 11: One commenter recommended consideration of Nehalem Bay, Oregon, as a specific area and designation of critical habitat in Tillamook Bay, Oregon. Sport fish catch from 1986 to 2007 indicate that 279 green sturgeon were taken in the fishery in Tillamook Bay (corrected catch data provided via pers. comm. with Mary Hanson, ODFW, July 16, 2009). The habitat in Tillamook Bay is comparable to other Oregon Bays and estuaries, and genetic analyses have not excluded the presence of southern DPS green sturgeon. Nehalem Bay was not considered in the designation and had a sport fish catch record of 254 green sturgeon from 1986 to 2007 (corrected catch data provided via pers. comm. with Mary Hanson, ODFW, July 16, 2009). Another commenter stated that a tagged Southern DPS green sturgeon was detected in Yaquina Bay, Oregon, in May 2006 and recommended that the biological report be revised to state that the presence of the Southern DPS in this area is confirmed.
Response: Based on the additional green sturgeon catch and
telemetry data provided by the commenters, the CHRT added Nehalem Bay
as a new specific area to be considered and reevaluated Tillamook Bay and Yaquina Bay. The
[[Page 52306]]
CHRT assigned Nehalem Bay a Medium conservation value rating based on
the large number of green sturgeon captured from 1986 to 2007 and its
location between Tillamook Bay and the Columbia River. The CHRT also
assigned Tillamook Bay a Medium conservation value rating (compared to
its previous Low conservation value rating), based on the large number
of green sturgeon captured in this bay from 1986 to 2007 and
information indicating that Tillamook Bay contains suitable depths for
green sturgeon. The CHRT assigned Yaquina Bay a Low conservation value
rating, which was the same rating given previously. The CHRT then
considered whether Southern DPS presence has been confirmed within the
areas. If Southern DPS green sturgeon presence is likely, but not yet
confirmed, the conservation value rating was reduced by one level.
Because Southern DPS green sturgeon have not yet been confirmed in
Nehalem Bay and Tillamook Bay, the conservation value ratings were
reduced to Low. Because Southern DPS green sturgeon have been confirmed
in Yaquina Bay, the conservation value rating stayed at Low and was not
reduced to UltraLow. These ratings were then used as the final
conservation value ratings for the areas. The final biological report
provides more information about the CHRT's evaluation of Nehalem Bay
and reevaluation of Tillamook Bay and Yaquina Bay. Ultimately only
Tillamook Bay was excluded because the benefits of exclusion outweigh the benefits of designation.
Comment 12: Two commenters felt that the Umpqua River may warrant designation because green sturgeon occur in this river, and it was identified as a potential spawning river in the 2005 status review.
Response: The CHRT evaluated Winchester Bay, the estuary at the mouth of the Umpqua River, as a specific area eligible for designation as critical habitat. The Southern DPS consists of green sturgeon originating from coastal watersheds south of the Eel River, CA (currently, the only confirmed spawning river is the Sacramento River, CA). The Northern DPS consists of green sturgeon originating from coastal watersheds north of and including the Eel River, CA (confirmed spawning rivers are the Klamath River, CA, and Rogue River, OR). As described in the proposed rule and biological report, NMFS defined the Southern DPS' occupied range to include coastal bays and estuaries upstream to the head of the tide in areas north of and including the Eel River. In waters north of and including the Eel River, green sturgeon occurring upstream of the head of the tide are presumed to belong to the Northern DPS because it is unlikely that Southern DPS green sturgeon would venture further into nonnatal streams beyond the head of tide. Thus, green sturgeon observed in the Umpqua River upstream of the head of tide are presumed to be Northern DPS fish. Genetic analyses have confirmed the presence of Southern DPS green sturgeon in Winchester Bay and Umpqua River, but the tissue samples were collected downstream of the head of tide on the Umpqua River (between RKM 6.4 and 19.3). Thus, the available genetic data also do not provide information on the presence of Southern DPS green sturgeon in the Umpqua River upstream of the head of tide (pers. comm. with Josh Israel, University of California, Davis (UC Davis), July 10, 2009). The Umpqua River was therefore not identified as an area occupied by the Southern DPS.
Comment 13: One commenter felt that Chinook salmon should be used as a surrogate species in place of white sturgeon, because green sturgeon do not have populations that are isolated from the sea. The commenter presented a Chinook salmonbased conceptual model for the life history of green sturgeon in San Francisco Bay, which indicated that, like Chinook, juvenile green sturgeon most likely migrate from the San Francisco Bay as soon as possible to coastal marine waters where food is abundant for feeding and growth.
Response: The CHRT considered the Chinook salmonbased conceptual model. The CHRT noted that, while green sturgeon may share some similarities with Chinook salmon with regard to habitat use and needs, the best available data indicate there are several important differences between the life history and distribution of green sturgeon and Chinook salmon that limit the application of the Chinook salmon based conceptual model to green sturgeon. Unlike Chinook salmon, green sturgeon will transit through the San Francisco Bay and Delta complex several times during their lifetime. Laboratory studies indicate that Chinook salmon juveniles may occupy fresh to brackish waters at any age, but do not completely transition to salt water until about 1.5 years of age. Studies in the Klamath River show that juvenile green sturgeon rear in fresh and estuarine waters for 1 to 4 years before dispersing into salt water, at lengths of about 300 to 750 mm. Although there have been few studies on juvenile green sturgeon distribution throughout the San Francisco Bay, the available data indicate that juvenile green sturgeon also rear in the area's bays and estuaries for 1 to 4 years before migrating out to coastal marine waters as subadults. Residence times in the Delta appear to be variable, based on the temporal frequency of juvenile fish recovered at the fish salvage facilities of the Central Valley Project and State Water Project and the data collected from both the 2007 and 2008 sturgeon report cards from CDFG (Gleason 2008). Green sturgeon can be found in any month of the year, and apparently multiple year classes are present in the Delta based on the size distribution of catches, although for green sturgeon few fish were actually measured (sizes ranged from 12 inches to 68 inches, 19 fish measured out of 240 reported caught; Gleason 2008). Based on the 2008 report cards, adult green sturgeon were caught by sport fishermen in every season of the year in the Delta and in the Sacramento River (from Rio Vista to Chipps Island and from Red Bluff to Colusa). This yearround presence of adult and juvenile green sturgeon in the Central Valley differs from the typical Chinook salmon life history as described by the commenter's conceptual model, in which juveniles rear in freshwater prior to migrating to the San Francisco Bay estuary, through which they move rapidly to get to marine waters, where conditions are better for feeding and growth. In addition, subadult and adult green sturgeon migrate throughout the West coast from southern California to Alaska, and are known to occupy oversummering habitats in coastal bays and estuaries from northern California to Washington (including Humboldt Bay, Coos Bay, Winchester Bay, the lower Columbia River estuary, Willapa Bay, and Grays Harbor) for weeks to months to feed during multiple summers over the course of their lives. In contrast, Chinook salmon generally use estuaries only at the beginning and end of their ocean residence (Quinn 2005). Unlike green sturgeon, they spend their summers in the ocean and do not rely nearly as heavily on estuarine habitats over their lifespans. Biological Evaluation of Conservation Value
Comment 14: One commenter stated that the qualitative approach used
by the CHRT to assess the biological conservation benefits of
designation was not adequate because the approach did not provide an
objective estimate of the relative conservation benefit of including a
specific area or a clear standard to compare with the estimated economic impacts. The commenter
[[Page 52307]]
noted that the approach did not contain an estimate of the species'
current population level, the increase in survival or abundance
expected from the designation of critical habitat, or an estimate of
the economic or monetary value of the conservation benefits.
Response: The ESA requires that a critical habitat designation be based on the best available scientific data. Data are not available regarding the current absolute population abundance of the Southern DPS or green sturgeon in general. Data are also not available to estimate the monetary value of the conservation benefits of designation and thereby make a direct comparison to the economic impacts of designation. In the absence of these data, a qualitative conservation value rating approach was developed to evaluate the conservation benefits of designation. The approach incorporated the best available data and allowed for consideration of the best professional judgment of the CHRT. The conservation value ratings (High, Medium, Low, Ultralow) provided a relative measure of the benefits of designation for each specific area, at a level appropriate for the level of data available. This approach has been used in critical habitat designations for salmonids and has been recognized as an appropriate alternative where data are not available to monetize the benefits of designation.
Comment 15: One commenter recommended that further evaluation of whether green sturgeon use particular coastal estuaries and their habitat value be conducted prior to designation of these areas as critical habitat. The commenter focused on the coastal estuaries considered for designation in Oregon, stating that the proposed rule did not provide information regarding the use or extent of use by green sturgeon in these areas or the habitat value of these areas to green sturgeon. Specifically, the commenter stated that: (1) The genetic analyses do not provide sufficient information to determine the presence of Southern DPS green sturgeon in Winchester Bay and more sampling is needed; (2) it is not clear whether tissue samples collected for genetic analyses were taken from green sturgeon in Winchester Bay or in the Umpqua River and the results regarding the proportion of Southern DPS green sturgeon in the area may be affected by sample size; (3) it is not clear why the Rogue River was excluded, but Coos Bay was not; and (4) reasons for the designation of Yaquina Bay and the exclusion of Tillamook Bay and the Siuslaw River estuary are not clear.
Response: We agree that additional studies are needed to address information gaps regarding the extent of use of coastal estuaries by Northern DPS and Southern DPS green sturgeon and to better understand the habitat function and value of these areas for the species. However, the ESA requires that NMFS use the best available scientific and commercial data to designate critical habitat within specific statutory timelines. Thus, in the face of uncertainty and varying levels of information available for different areas, NMFS relied on the best available information and used its best professional judgment where data were lacking or uncertainty was great.
To evaluate specific areas considered for designation as critical habitat, the CHRT considered both the use of each area by green sturgeon and the value of the habitat to green sturgeon. Specifically, the CHRT evaluated the presence and condition of the PCEs, the habitat functions provided, and the life stages of green sturgeon confirmed or most likely to occur there. To confirm the presence of the PCEs, the CHRT used the presence of green sturgeon, along with the best available habitat data. To evaluate the relative habitat value of each area, the CHRT considered the abundance of green sturgeon along with the best available data on the life stages and uses supported, the consistency of use, and the temporal and spatial distribution of green sturgeon within an area. To determine the extent to which Southern DPS green sturgeon used an area, and the relative value of each area to the Southern DPS, the CHRT used the best available tagging and genetic data. The CHRT's analyses and the data used are summarized in this final rule and described in greater detail in the final biological report (NMFS 2009a). In the following paragraph, we summarize the relevant information in response to the comments on specific coastal estuaries in Oregon.
First, the presence of Southern DPS green sturgeon within coastal estuaries in Oregon was primarily confirmed by telemetry data and supported by genetic data, where available. For Winchester Bay, genetic tissue samples were collected between RKM 6.4 and 19.3, which is downstream of the head of tide in Umpqua River (head of tide = RKM 40) and within the boundaries of the specific area delineated for the bay (pers. comm. with Josh Israel, UC Davis, July 10, 2009; pers. comm. with Pete Baki, ODFW, July 17, 2009). It is possible that the sample size affected the analysis of the proportion of Southern DPS green sturgeon in the bay, but that does not negate the use of these data to confirm the presence of Southern DPS fish in this area. The CHRT assigned Winchester Bay a Medium conservation value rating based on high use of the area by green sturgeon and the presence of suitable habitat features (see final biological report, NMFS 2009a).
Second, certain coastal estuaries in Oregon were excluded from the
designation because the economic benefits of exclusion outweighed the
conservation benefits of designation. Coastal estuaries in Oregon are
primarily occupied by green sturgeon during the summer and contain PCEs
(including prey resources, water quality, and migratory corridors) that
support feeding and aggregation of subadult and adult green sturgeon.
During the public comment period, additional data were provided by the
ODFW regarding green sturgeon sport catch records in coastal Oregon
estuaries. These data were used to update the data reported in the
draft biological report (NMFS 2008b). The data were considered by the
CHRT and incorporated into the final rule and biological report (see
response to Comment 11). The data indicate that from 1986 to 2007, the
largest numbers of green sturgeon were caught in Winchester Bay (n =
1,889), Tillamook Bay (n = 279), and Nehalem Bay (n = 254), followed by
Coos Bay and Yaquina Bay (n = 201) (ODFW 2009a, b). Southern DPS green
sturgeon tagged in the Sacramento River and San Pablo Bay have been
detected in Coos Bay, Winchester Bay, and Yaquina Bay (pers. comm. with
Steve Lindley, NMFS, and Mary Moser, NMFS, February 2425, 2008; pers.
comm. with Dan Erickson, ODFW, September 3, 2008). The CHRT initially
assigned a Medium conservation value to Winchester Bay, Coos Bay,
Tillamook Bay, and Nehalem Bay, based on data indicating consistent use
by and relatively large numbers of green sturgeon in these estuaries.
However, the conservation value for Tillamook Bay and Nehalem Bay was
reduced by one level to Low, because there was no evidence to confirm
that any green sturgeon in those areas belong to the Southern DPS.
Although Southern DPS presence has been confirmed in Yaquina Bay, the
CHRT assigned the area a Low conservation value (NMFS 2009a). Finally,
the estuaries at the mouths of the Siuslaw and Alsea rivers were
assigned a Low conservation value based on relatively low numbers of
green sturgeon recorded in the sport catch data (sport catch = 50 green
sturgeon in Siuslaw estuary and 30 green sturgeon in Alsea estuary from
1986 to 2007; ODFW 2009a, b). The conservation value was reduced to an [[Page 52308]]
Ultralow because we lack data to confirm the presence of Southern DPS green sturgeon in these estuaries.
Under section 4(b)(2) of the ESA, NMFS has the discretion to exclude an area from the designation if the benefits of exclusion outweigh the benefits of designation. Tillamook Bay, Siuslaw River estuary, Alsea River estuary, Coos Bay, and the Rogue River estuary were all determined to be potentially eligible for exclusion under ESA section 4(b)(2) based on economic impacts. All of these, except for Coos Bay, were excluded based on NMFS' determination that the economic benefits of exclusion outweighed the conservation benefits of designation. Although data demonstrate that the Rogue River estuary is consistently used by large numbers of green sturgeon, the area was assigned an UltraLow conservation value because the best available data indicate that the green sturgeon observed there belong to the Northern DPS. Thus, the designation of critical habitat in the Rogue River estuary would not likely benefit the conservation of the Southern DPS. Coos Bay was not excluded, because the data indicate consistent use by relatively large numbers of green sturgeon that include Southern DPS fish. The CHRT determined that protection of Coos Bay as critical habitat is important for the conservation of green sturgeon, and exclusion of Coos Bay would significantly impede conservation. Based on the CHRT's recommendation, NMFS determined that the economic benefits of exclusion do not outweigh the conservation benefits of designation for Coos Bay and included Coos Bay in the final critical habitat designation. We recognize that the level of data available varies across areas and may affect the evaluation of these areas. We encourage additional studies of green sturgeon distribution in, and use of, coastal estuaries to inform NMFS' consultations under section 7 of the ESA, recovery planning and implementation, and future revisions to the critical habitat designation for the Southern DPS.
Comment 16: One commenter noted that many of the coastal marine and estuarine areas proposed for designation as critical habitat are already altered habitats, wanting NMFS to recognize that routine, regular maintenance activities (including maintenance dredging of navigation channels) are conducted within these areas by the U.S. Army Corps of Engineers to support ongoing multipurpose projects.
Response: NMFS acknowledges that many of the coastal marine and estuarine areas proposed for designation as critical habitat contain habitats that have been altered by past and ongoing activities. These past and ongoing activities have likely affected the PCEs within each area, but have not degraded the PCEs such that they no longer exist within the areas. The continued presence and use by green sturgeon of each area indicate that the PCEs exist and still provide habitat functions to support the species. In addition, the presence of regular routine maintenance indicates that the PCEs within the coastal marine and estuarine areas may require special management considerations or protection.
Comment 17: One commenter noted that the proposed rule incorrectly stated that green sturgeon present in estuaries of the Eel, Klamath/ Trinity, and Rogue rivers are believed to belong to the Northern DPS, based on the fact that these are spawning rivers for the Northern DPS (73 FR page 52091, bottom of third column). The commenter requested clarification that green sturgeon spawning has not been confirmed in the Eel River.
Response: We acknowledge this error in the proposed rule. The final rule corrects this error and states that green sturgeon present in estuaries of the Klamath/Trinity and Rogue rivers are presumed to belong to the Northern DPS because these are spawning rivers for the Northern DPS and no tagged Southern DPS green sturgeon have ever been detected in the estuaries. Green sturgeon in the Eel River estuary are presumed to belong to the Northern DPS based on the definition of the Northern DPS (which includes the Eel River). In 2008, a hydroacoustic array was installed in the Eel River estuary and detected one tagged Northern DPS green sturgeon. More data from tagging and genetics studies are needed to confirm whether or not Southern DPS green sturgeon occupy the Eel River estuary.
Comment 18: Commenters requested additional information to be presented in the biological report, including: A table citing the references used to determine the presence of green sturgeon in each specific area; the results from the CHRT's three approaches for evaluating the conservation value of the species areas; and additional telemetry data and references provided by reviewers and commenters. Two commenters also noted an error in Table 5 of the draft biological report regarding the tally of conservation value rating votes for Grays Harbor, WA.
Response: The final biological report incorporates the changes requested and the additional information provided by the peer reviewers and public comments. First, a table listing each specific area, the life stages of green sturgeon that are present, and the relevant references was added to the report. Second, the CHRT had used three different approaches for assigning conservation values to the specific areas, but only the results of the final method were reported in the draft biological report. The final biological report provides the results for all three approaches for comparison. Third, additional telemetry data and information regarding green sturgeon spawning in the Sacramento River were incorporated into the report and considered by the CHRT. Finally, corrections were made to the conservation value rating tally for Grays Harbor in Table 7 of the final biological report (formerly Table 5 in the draft biological report). Specifically, the draft biological report incorrectly reported 6 votes for Medium and 2 votes for Low conservation values. The correct tally was 6 votes for High and 2 votes for Medium conservation values.
Special Management Considerations
Comment 19: One commenter stated that most of the 13 types of activities that potentially require special management are already regulated under existing environmental regulations that address effects on the PCEs. The commenter requested additional information to describe the cause/effect relationship between the PCEs and each of the 13 types of activities that potentially require special management.
Response: This comment raises the concern of whether the specific
areas considered for designation as critical habitat are eligible for
designation. To be eligible for designation, the specific area must
meet the definition of critical habitat. That is, the specific area
must contain at least one PCE that may require special management
considerations or protection. The focus of this comment is on whether
the ``special management considerations or protection'' criterion is
satisfied. Special management considerations or protection mean ``any
methods or procedures useful in protecting physical and biological
features of the environment for the conservation of listed species''
(50 CFR 424.02). In determining whether a specific area met the
definition of critical habitat, the CHRT was asked to identify whether
any PCE could be found in the specific area, whether there were any
actions (either ongoing or anticipated) occurring in the area that may
threaten the PCE(s), and whether there would be any methods or procedures useful in protecting the PCE(s). The CHRT based
[[Page 52309]]
their assessment on their knowledge of the areas and the PCEs and their
experience conducting section 7 consultations or field research on
green sturgeon in the areas. The CHRT was not asked to identify
existing protections within each area, nor was the CHRT asked to
evaluate whether existing protections were adequate. The existence of
environmental regulations does not negate the fact that the PCEs within
an area may require special management considerations or protection.
Thus, the existence of environmental regulations that already regulate
the activities of concern was not a factor to be considered by the CHRT
FOR FURTHER INFORMATION CONTACT
Melissa Neuman, NMFS, Southwest Region (562) 9804115; Steve Stone, NMFS, Northwest Region (503) 2312317; or Lisa Manning, NMFS, Office of Protected Resources (301) 7131401.