[Federal Register Volume 74, Number 117 (Friday, June 19, 2009)]
[Rules and Regulations]
[Pages 29300-29341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14268]
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Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 226
Endangered and Threatened Species; Designation of Critical Habitat for
Atlantic Salmon (Salmo salar) Gulf of Maine Distinct Population
Segment; Final Rule
Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules
and Regulations
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 0808061060-9710-02]
RIN 0648-AW77
Endangered and Threatened Species; Designation of Critical
Habitat for Atlantic Salmon (Salmo salar) Gulf of Maine Distinct
Population Segment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Final rule.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a
final rule designating critical habitat for the Atlantic salmon (Salmo
salar) Gulf of Maine Distinct Population Segment (GOM DPS). We
previously determined that naturally spawned and several hatchery
populations of Atlantic salmon which constitute the GOM DPS warrant
listing as endangered under the Endangered Species Act of 1973, as
amended (ESA). We are required to designate critical habitat for the
GOM DPS as a result of this listing. We hereby designate as critical
habitat 45 specific areas occupied by Atlantic salmon at the time of
listing that comprise approximately 19,571 km of perennial river,
stream, and estuary habitat and 799 square km of lake habitat within
the range of the GOM DPS and in which are found those physical and
biological features essential to the conservation of the species. The
entire occupied range of the GOM DPS in which critical habitat is
designated is within the State of Maine. We exclude approximately 1,256
km of river, stream, and estuary habitat and 100 square km of lake
habitat from critical habitat pursuant to section 4(b)(2) of the ESA.
DATES: This rule becomes effective July 20, 2009.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, are available
for public inspection by appointment, during normal business hours, at
the National Marine Fisheries Service, NMFS, Protected Resources
Division, 55 Great Republic Drive, Gloucester, MA 01930-2276. The final
rule, maps, and other materials relating to these designations can be
found on our Web site at: http://www.nero.noaa.gov/prot_res/altsalmon/.
FOR FURTHER INFORMATION CONTACT: Dan Kircheis, National Marine
Fisheries Service, Maine Field Station, 17 Godfrey Drive, Orono, ME
04473 at (207) 866-7320, or Marta Nammack at (301) 713-1401 ext. 180.
SUPPLEMENTARY INFORMATION:
Organization of the Final Rule:
This final rule describes the critical habitat designation for the
GOM DPS of Atlantic salmon under the ESA. The pages that follow
summarize the comments and information received in response to the
proposed designation published on September 5, 2008 (73 FR 51747),
describe any changes from the proposed designation, and detail the
final designation for the GOM DPS of Atlantic salmon. To assist the
reader, the content of the document is organized as follows:
I. Background and Previous Federal Action
II. Summary of Comments and Responses
Biological Valuation
Economic Analysis
4(b)(2) Exclusion Analysis
Miscellaneous Comments
Comments Not Relevant to This Rule
Remarks
III. Summary of Revisions
IV. Methods and Criteria Used to Identify Critical Habitat
Atlantic Salmon Life History
Identify the Geographic Area Occupied by the Species and
Specific Areas Within the Geographic Area
Physical and Biological Features in Freshwater and Estuary
Specific Areas Essential to the Conservation of the Species
Special Management Considerations or Protections
Specific Areas Outside the Geographic Area Occupied by the
Species * * * Essential to the Conservation of the Species
Criteria
V. Application of ESA Section 4(a)(3)(B)(i) (Military Lands)
VI. Application of ESA Section 4(b)(2)
Assigning Biological Value
Consideration of Economic Impacts, Impacts to National Security,
and Other Relevant Impacts
Economic Impacts
National Security and Other Relevant Impacts in Relation to
Military Interests
Other Relevant Impacts: Tribal Lands
Determine Whether Exclusions Will Result in the Extinction of
the Species
VII. Effects of Critical Habitat
ESA Section 7 Consultation
Activities That May Be Affected (Section 4(b)(8))
VIII. Classification
Regulatory Planning and Review
Regulatory Flexibility Act (U.S.C. 601 et seq.)
Information Quality Act (IQA) (Section 515 of Pub. L. 106.554)
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
National Environmental Policy Act
Federalism
Takings
IX. References Cited
I. Background and Previous Federal Action
We are responsible for determining whether a species, subspecies,
or distinct population segment (DPS) of Atlantic salmon (Salmo salar)
is threatened or endangered, and for designating critical habitat for
the species, subspecies, or DPS under the ESA (16 U.S.C. 1531 et seq.).
To qualify as a DPS, an Atlantic salmon population must be
substantially reproductively isolated from other conspecific
populations and represent an important component in the evolutionary
legacy of the biological species.
We are also responsible for designating critical habitat for
species listed under our jurisdiction. Section 3 of the ESA defines
critical habitat as (1) specific areas within the geographical area
occupied by the species at the time of listing, on which are found
those physical or biological features that are essential to the
conservation of the listed species and that may require special
management considerations or protection, and (2) specific areas outside
the geographical area occupied by the species at the time of listing
that are essential for the conservation of a listed species. Our
regulations direct us to focus on the ``primary constituent elements,''
or PCEs, in identifying these physical or biological features. Section
7(a)(2) of the ESA requires that each Federal agency, in consultation
with and with the assistance of NMFS, ensure that any action
authorized, funded, or carried out by such agency is not likely to
jeopardize the continued existence of an endangered or threatened
Atlantic salmon or result in the destruction or adverse modification of
critical habitat. Section 4 of the ESA requires us to consider the
economic impacts, impacts on national security, and other relevant
impacts of specifying any particular area as critical habitat.
NMFS and the U.S. Fish and Wildlife Service (USFWS; collectively
``the Services'') issued a final rule listing the GOM DPS of Atlantic
salmon as endangered on November 17, 2000 (65 FR 69459). The GOM DPS
was defined in the 2000 rule as all naturally reproducing wild
populations and those river-specific hatchery populations of Atlantic
salmon, having historical river-specific characteristics found north of
and including tributaries of the lower Kennebec River to, but not
including, the mouth of the St. Croix River at the U.S.-Canada border
and the Penobscot
[[Page 29301]]
River above the site of the former Bangor Dam.
In September 2006, a new Status Review for Atlantic salmon in the
United States (Fay et al., 2006) was made available to the public
(http://www.nmfs.noaa.gov/pr/pdfs/statusreviews/atlanticsalmon.pdf).
The 2006 Status Review identified the GOM DPS of Atlantic salmon as
being comprised of all anadromous Atlantic salmon whose freshwater
range occurs in the watersheds of the Androscoggin River northward
along the Maine coast to the Dennys River, including all associated
conservation hatchery populations used to supplement natural
populations; currently, such populations are maintained at Green Lake
National Fish Hatchery (GLNFH) and Craig Brook National Fish Hatchery
(CBNFH). In September 2008 a proposed rule was published proposing to
list the GOM DPS of Atlantic salmon as defined in the 2006 Status
Review as endangered (73 FR 51415; September 3, 2008). In response to
public comments received on the proposed listing rule, and in review of
the critical habitat proposed rule, also published in September 2008
(73 FR 51747; September 5, 2008), the Gulf of Maine DPS was re-defined
to exclude those areas that were outside the historic range of the
species. The final rule published by NMFS and the USFWS in today's
Federal Register (see Endangered and Threatened Species; Determination
of Endangered Status for the Gulf of Maine Distinct Population Segment
of Atlantic Salmon) defines the GOM DPS as all anadromous Atlantic
salmon whose freshwater range occurs in the watersheds from the
Androscoggin River northward along the Maine coast to the Dennys River,
and wherever these fish occur in the estuarine and marine environment.
The following impassable falls delimit the upstream extent of the
freshwater range: Rumford Falls in the town of Rumford on the
Androscoggin River; Snow Falls in the town of West Paris on the Little
Androscoggin River; Grand Falls in Township 3 Range 4 BKP WKR, on the
Dead River in the Kennebec Basin; the un-named falls (impounded by
Indian Pond Dam) immediately above the Kennebec River Gorge in the town
of Indian Stream Township on the Kennebec River; Big Niagara Falls on
Nesowadnehunk Stream in Township 3 Range 10 WELS in the Penobscot
Basin; Grand Pitch on Webster Brook in Trout Brook Township in the
Penobscot Basin; and Grand Falls on the Passadumkeag River in Grand
Falls Township in the Penobscot Basin. The marine range of the GOM DPS
extends from the Gulf of Maine, throughout the Northwest Atlantic
Ocean, to the coast of Greenland. Included are all associated
conservation hatchery populations used to supplement these natural
populations; currently, such conservation hatchery populations are
maintained at GLNFH and CBNFH. Excluded are landlocked salmon and those
salmon raised in commercial hatcheries for aquaculture. The GOM DPS as
defined in the final rule has been listed as endangered under the ESA.
The most substantial difference between the 2000 GOM DPS and the
GOM DPS described in the final rule published by NMFS and the USFWS in
today's Federal Register (see Endangered and Threatened Species;
Determination of Endangered Status for the Gulf of Maine Distinct
Population Segment of Atlantic Salmon) is the inclusion of the
Androscoggin, Kennebec, and Penobscot River basins.
The timeline for completing the critical habitat designation
described in this final rule was established pursuant to litigation
between NMFS and the Center for Biological Diversity and the
Conservation Law Foundation. Upon reaching a settlement agreement, NMFS
has agreed to publish a final rule designating critical habitat for
Atlantic salmon no later than June 1, 2009.
II. Summary of Comments and Responses
As described in agency regulations at 50 CFR 424.16(c)(1), we
requested that all interested parties submit written comments on the
proposed critical habitat designation. We also contacted the
appropriate Federal and State agencies, scientific organizations, and
other interested parties and invited them to comment on the proposed
rule. To facilitate public participation, we made the proposed rule
available via the Internet as soon as the rule was published and
accepted comments by standard mail, fax, e-mail or through http://www.regulations.gov. In addition we held two public hearings: One in
Augusta, ME, on November 5, 2008; and one in Brewer, ME, on November 6,
2008. During this time 37 parties or individuals submitted written
comments on the critical habitat proposed rule. These comments were
grouped into three categories as they related to the 3 primary sections
of the Critical habitat designation: Biological Valuation; Economic
Analysis; and 4(b)(2) exclusion analysis. A fourth category is included
to address general comments and an overview of how comments were
handled that were not directly related to the critical habitat
designation. In section III we review comments and additional
information that resulted in changes to the critical habitat rule and
supporting documents.
Biological Valuation
Comment 1: One commenter stated that assuming the standard habitat
needs of salmon (240 eggs per unit, 7,200 eggs per female, 1:1 sex
ratio) and using the calculations described in the document, the
historic run size of 150,000 fish would have required 2,250,000 units
of habitat (75,000 females (assuming 1:1 sex ratio) x 7,200 eggs per
female/240 eggs per unit of habitat); seven times the amount of habitat
in the entire Penobscot Salmon Habitat Recovery Unit (SHRU).
Response: Conservation Spawning Escapement or CSE is often used as
a tool to describe the minimum number of spawners needed to provide
sufficient quantities of eggs needed to fully seed the available
habitat. The estimation of CSE is not meant to predict run sizes. The
minimum number of eggs to fully seed the habitat is 240 eggs per unit
of habitat where one unit of habitat is equivalent to 100 meters
squared. The equation described by the commenter: ( of females
x 7,200 eggs per female/240 eggs per unit of habitat = units of
habitat) incorporates the same values used to estimate the minimum
spawner requirement or CSE for a river in both national and
international forums. CSE estimates do not take into account that, in
healthy robust populations, animals are often produced in numbers
greater than what is needed to fully seed the habitat, and, therefore,
only those animals that are most fit for the given environment
successfully contribute to the next generation. This is why historic
estimates of over 100,000 adults in the Penobscot River far exceed the
minimum spawning requirement or CSE for the Penobscot of 6,838 adult
spawners. Despite the estimations that the Penobscot River had run
sizes in the 10's of thousands or even 100's of thousands, only a
fraction of the entire run would be expected to actually contribute to
the next generation due to natural selection factors (i.e., not all
adults will successfully spawn, and, of those that do, not all of the
juveniles will successfully reach maturity). We refer to this historic
estimate provided by Atkins and Foster (1868) as a reference point to
what the run potential for the Penobscot SHRU could be; not the minimum
number of spawners that would be needed to fully seed the habitat.
Furthermore, the historic estimates of 150,000 adult returns (males and
females) was not a factor in determining the run size of 2,000 adult
[[Page 29302]]
spawners (1,000 males and 1,000 females assuming a 1:1 sex ratio) used
as a recovery goal to project critical habitat for each SHRU.
Comment 2: One commenter stated that the 240 eggs per unit was
derived as a way to estimate the number of spawners needed to populate
salmon habitat with juveniles to produce 2, 3, and 4 year old smolts,
and was never intended to be used to calculate the amount of habitat
required by a given number of spawners. The commenter stated that it
was their belief that using the 240 eggs per unit of habitat to predict
habitat is an incorrect application of the work of Elson (1975) and
Symons and Heland (1978), and is very likely to greatly overestimate
the amount of habitat required to achieve recovery.
Response: As described in the response to comment 1, the 240 eggs
per unit is a target egg deposition needed to fully seed a river
(Elson, 1975) and is the same number that is used to predict CSE of a
river. The CSE is most often used to establish a conservation goal for
a river based on the amount of habitat that is available to the species
and widely used to describe the status of individual Atlantic salmon
populations. Absent better information we believe that the equation
used to estimate CSE can be applied inversely ( of females x
7,200 eggs per female/240 eggs per unit = units of habitat) to estimate
habitat needed to support the offspring from a pre-determined number of
females. We do not believe that the estimates we provide are an over
estimation, as the 240 eggs per unit were intended to take into account
natural selection factors that would limit survival of the species. In
some site specific cases, there are likely to be river reaches that
could support far more than 240 eggs per unit and conversely, there are
likely some reaches that can support fewer than 240 eggs per unit.
Comment 3: Some commenters supported the designation of critical
areas for the protection of Atlantic salmon in the Gulf of Maine, but
felt that this designation did not extend far enough. The commenters
stated that a critical habitat designation must include all habitat
within the historical range of the GOM DPS of Atlantic salmon. Some
commenters believed that the proposed critical habitat designation
arbitrarily excluded most of the historic, suitable Atlantic salmon
habitat and should include more specific areas in the Kennebec River,
the Androscoggin River main stem and its tributaries all the way to
Rumford, the entire West Branch of the Penobscot and its tributaries,
and the Passadumkeag River. Some commenters also stated that critical
habitat designation should include the Presumpscot River and the Sebago
Lake watershed. Alternatively, some commenters were opposed to the
proposed critical habitat designation on the Androscoggin River.
Response: Sections 3(5)(A)(i) and (ii) of the ESA define critical
habitat for a threatened or endangered species as the specific areas
within the geographical area occupied by the species, at the time it is
listed in accordance with the provisions of Section 4 of the ESA, 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 specific areas outside of
the geographical area occupied by the species at the time it is listed
in accordance with the provisions of section 4 of the ESA, upon a
determination by the Secretary that such areas are essential for the
conservation of the species. We determined in the Biological Valuation
process that no additional areas outside of the geographical area
occupied by the species at the time it is listed were essential for the
conservation of the species because sufficient quantities of habitat
are available to achieve conservation in the currently occupied range
(NMFS, 2009a). Therefore, we concluded that unoccupied areas, including
those specific areas within the Kennebec River above the Sandy River,
the Androscoggin River above Lewiston Falls, and the entire West Branch
of the Penobscot, did not qualify for critical habitat designation.
The Presumpcot River and Sebago Lake watershed are not included in
the geographic range of the GOM DPS, and therefore are not eligible for
designation as critical under section 3(5)(A) of the ESA.
Comment 4: Several commenters felt that our review of habitat
requirements focused on activities or conditions that may affect salmon
habitat but did not focus on activities that have impacted habitat.
Additionally, commenters stated concerns with our identification of
activities that may affect primary constituent elements and therefore
may require special management consideration. Commenters specifically
stated concerns with the following three statements: (1) The most
direct effect of logging on stream temperature is the reduction in
shade provided by riparian vegetation; (2) agricultural practices
influence all specific areas proposed for designation and negatively
impact PCE sites for spawning and rearing and migration; and (3) timber
harvesting and preparation of soil for forestry practices can decrease
large woody debris as well as increase soil erosion.
Response: We do not state explicitly that any activities are
negatively impacting Atlantic salmon habitat, but rather we list
activities that may negatively impact Atlantic salmon habitat. Section
4(b)(8) of the ESA states that in general we * * * ``are to include a
brief description and evaluation of those activities (whether public or
private) which, in the opinion of the Secretary, if undertaken, may
adversely modify such habitat, or may be affected by such
designation.'' The word ``may'' gives us the discretion to identify
activities that are currently affecting critical habitat as well as
activities that have the potential to affect critical habitat. In our
description of activities and the types of effects that the activities
have on critical habitat, we state that the activities may affect
critical habitat recognizing that, at times, the activity can occur and
have no affect on critical habitat, while in other circumstances the
activity may have an affect on critical habitat. Activities that may
affect critical habitat and are carried out, funded, or authorized by a
Federal agency, will require an ESA section 7 consultation. In this
rule, we identify activities and how they may affect critical habitat;
a more detailed description of activities that may affect salmon
habitat is available in our supporting document: Habitat requirements
and management considerations for Atlantic salmon (Salmo salar) in the
Gulf of Maine Distinct Population Segment (GOM DPS).
Comment 5: One commenter stated that based on the 500 fish
criterion, the Penobscot SHRU is certainly not in any danger of
extinction.
Response: In the recovery criteria we state that in order for the
DPS to be considered recovered, all three SHRUs must meet or exceed the
criteria that we have established: (1) The adult spawner population of
each SHRU must be 500 or greater in an effort to maintain sufficient
genetic variability within the population for long-term persistence.
This is to be determined or estimated through adults observed at
trapping facilities or redd counts; (2) The GOM DPS must demonstrate
self-sustaining persistence where each SHRU has less than a 50 percent
probability of falling below 500 adult spawners in the next 15 years
based on population viability analysis (PVA) projections (NMFS, 2009,
appendix A). The 50 percent assurance threshold satisfies the criterion
that the population is ``not likely'' to become an endangered
[[Page 29303]]
species, while 15 years represents the ``foreseeable future'' for which
we have determined that we can make reasonable projections based on
past demographic data available to us; (3) The entire GOM DPS must
demonstrate consistent positive population growth for at least 2
generations (10 years) before the decision to delist is made. Ten years
of pre-decision data that reflect positive population trends provide
some assurance that recent population increases are not happenstance
but more likely a reflection of sustainable positive population growth;
(4) A recovered GOM DPS must represent the natural population (i.e.,
adult returns must originate from natural reproduction that has
occurred in the wild); hatchery product cannot be counted towards
recovery because a population reliant upon hatchery product for
sustainability is indicative of a population that continues to be at
risk; (5) In order to delist the GOM DPS, the threats identified at the
time of listing must be addressed through regulatory or any other
means. These threats are identified in the five factors specified in
section 4(a)(1) of the ESA as described in the 2006 Status Review (Fay
et al., 2006). Though the Penobscot River has consistently retained a
census population of over 500 adult spawners, for the period between
1997 to 2006 approximately 9.6 percent of the Penobscot run resulted
from wild spawning or fry stocked fish with the greatest wild origin
adult return recorded in 1997 estimated at 160 adults (USASAC, 2007).
Due to the low numbers of wild origin adult returns, the entire GOM
DPS, including the Penobscot, fails to meet the objectives of recovery
on the one principle point that none of the SHRUs have a wild spawning
population greater than 500 adult spawners.
Comment 6: One commenter agreed with the analysis of choosing 500
adult spawners (both male and female) for an effective population size,
and 2,000 spawners as a number that can weather downturns in survival
as reasonable estimates for the large rivers such as those in the
Merrymeeting Bay and Penobscot SHRUs (73 FR 51747; September 5, 2008,
51760-51761), but did not agree that these are appropriate numbers for
the Downeast Coastal SHRU. The commenter urged us to consider reducing
the numbers required for an effective population size for the Downeast
Coastal SHRU to be more representative of these smaller rivers, smaller
habitat, and historically far smaller salmon numbers than the larger
rivers that make up the two other SHRUs.
Response: We believe that each of the three SHRUs, including the
Downeast Coastal SHRU, is easily capable of supporting an effective
population of 500 adult spawners. Furthermore, we believe using the
criterion that each SHRU must have enough habitat to support the
offspring of 2,000 adult spawners (See ``Specific areas outside the
geographical area occupied by the species . . . essential to the
conservation of the species'' section of this document) as a means of
buffering against downturns in survival is also very attainable and not
unreasonable for any of the three SHRUs. In the biological valuation we
estimate that there are approximately 61,400 units of historical
spawning and rearing habitat in the Downeast Coastal SHRU. Using the
methods described by Elson (1975) to establish a minimum spawning
requirement, otherwise known as the CSE, for 61,400 units of habitat,
an estimated 4,094 adult spawners is needed to fully seed the Downeast
Coastal SHRU (61,400 units / 7,200 eggs per female x 240 eggs per unit
needed to fully seed the habitat = 2,047 females or 4,094 adult
spawners assuming 1:1 sex ratio). We chose 500 adult spawners as the
minimum effective population size not in respect to the size of the
area, but rather in respect to the number of fish that we believe is
the minimum number needed to retain sufficient genetic diversity within
a SHRU. This is the case for all three SHRUs.
Comment 7: One commenter stated that recovery criteria should not
be set that cannot be met. Based on the Services' calculations, the
Downeast SHRU does not have enough functional habitat to meet recovery
criteria.
Response: There are approximately 61,400 units of habitat in the
Downeast Coastal SHRU which are considered to be equivalent to
approximately 29,111 functional units. The reduced functional value of
habitat in the Downeast SHRU is based on a reduction of habitat quality
or the presence of dams or a combination of both as described in the
biological valuation (NMFS, 2009). This means that the occupied areas
in the Downeast Coastal SHRU are functioning at approximately 47
percent of their potential. We do recognize that not all Atlantic
salmon habitat may have functioned historically at its fullest
potential due to natural factors. In Downeast Maine, habitat
degradation from roads and road crossings, dams, historic log drives,
and introduction of non-indigenous species are all factors that have
been identified as factors that reduce the functional value of habitat
(NRC, 2004; Fay et al., 2006). Improvements in habitat quality can
increase the functional value of habitat for the Downeast SHRU (e.g.,
Project SHARE's ongoing efforts that enhance fish passage and habitat
quality by improving or removing bridges, culverts, and roads adjacent
to or crossing streams). Given improvements to degraded habitat in the
occupied areas, functional habitat quantities in the Downeast SHRU
would be sufficient to meet recovery goals.
Comment 8: One commenter expressed difficulty in understanding how
we determined fractions of dams for HUC 10s.
Response: Dams were discounted based on their location within a HUC
10 watershed and the degree to which it was estimated they would impede
downstream migration of smolts. Dams with turbines were estimated to
reduce the functional capacity habitat by 15 percent based on the
findings of several studies (GNP, 1995; GNP, 1997; Holbrook, 2007;
Shepard, 1991; Spicer et al., 1995). Mainstem dams without turbines are
not expected to affect smolts in the same way as dams with turbines,
but can result in direct or indirect mortality from delays in migration
and by increased predation from predators that congregate around dams.
Therefore, dams without turbines were estimated to reduce the
functional capacity of habitat units by 7.5 percent (one half of 15
percent). Dams located at roughly the midpoint of habitat within a HUC
10 watershed were estimated to affect passage of roughly half the fish
in the HUC 10 watershed (e.g., located half way up the HUC 10
watershed) and therefore were discounted accordingly (e.g., 7.5 percent
for dams with turbines).
Comment 9: A commenter stated that we were unclear as to why dams
were treated differently than other factors that influence survival of
salmon. The commenter stated that dam mortality is applied using a
quantitative approach while all other factors are applied using an
index number. It would therefore take approximately seven dams to have
an equal effect as a quality rating of 1 (e.g., approximately 33
percent). This seems to greatly underestimate the relative effects of
dams compared to other factors (or vice-versa).
Response: Habitat quality scores address localized impacts and,
therefore, only influence the functional habitat units within a HUC 10
for which the habitat quality score is assigned. Dams were figured into
our calculations differently than habitat quality scores because they
affect not only the HUC 10 in which they are present, but also every
[[Page 29304]]
HUC 10 upstream of their location. Depending on the geographic location
of the dam in regards to habitat, a dam may influence a much larger
quantity of habitat than an individual habitat quality score.
Comment 10: A commenter stated that some habitat scores within the
Penobscot SHRU were underestimated because the Penobscot River
Restoration Project was not included in the critical habitat
designation.
Response: We did not formulate habitat estimates that included the
Penobscot River Restoration Project because it has not been completed
at this point and there is not certainty that the project will be
completed because neither the permitting nor funding has been fully
secured.
Comment 11: One commenter stated that the HUC 10 scale is too
coarse. The HUC 12 scale would be better suited to identifying critical
habitat.
Response: We considered analyzing at the HUC 12 scale in an attempt
to gain higher resolution for critical habitat designation, but we
determined that we had insufficient information to evaluate the PCEs at
the HUC 12 scale for the entire GOM DPS. In order to provide fair
representation across the GOM DPS, we determined that it would not be
appropriate to evaluate some areas at the HUC 10 scale and some areas
at the HUC 12 scale.
Comment 12: One commenter stated that the habitat amounts in some
rivers were suspect. For example, the Dennys has 1,717 units compared
to the Pleasant that is shown to have 3,025 units of habitat. Field
habitat surveys indicate that the Dennys has approximately twice the
number of habitat units as the Pleasant River. Some differences are
valid due to un-surveyed small streams; however, the gross differences
are surprising and need to be assessed.
Response: In our evaluation, we relied on a GIS based habitat
prediction model to estimate habitat for the entire GOM DPS described
in Appendix C of the Biological Valuation. Even though in some areas we
have fairly comprehensive field surveys of habitat, most of the DPS
range does not have this level of information. In constructing the
model, the outputs were cross referenced to existing habitat surveys
and were determined to be roughly 75 percent accurate at the reach
level. As the commenter stated, the field surveys often only take into
account mainstem habitat and major tributaries and do not take into
account minor tributaries, while the GIS based model does. In the
Pleasant River, Western Little River, Taylor Brook and a significant
portion of Eastern Little River contain fairly significant amounts of
habitat, but are not included in the field survey, and, therefore, may
account for some of the discrepancy between the two survey methods.
Over time as more information becomes available, we will be able to
increase the accuracy of this model, but for now this is the best
available information.
Comment 13: One commenter stated that the Nezinscot River HUC 10
watershed was assigned a final biological value of ``3'' even though
the Nezinscot is a destination and not a migratory corridor, and
another commenter stated that we designated the Little Androscoggin
River which is not occupied but arbitrarily did not include any other
unoccupied, but historically occupied, watersheds in either the
Androscoggin Basin or the Kennebec Basin.
Response: The Nezinscot River HUC 10 watershed includes the
mainstem Androscoggin River between the Little Androscoggin River HUC
10 and the Androscoggin River at Riley Dam and therefore is an
important migratory corridor.
The Little Androscoggin River HUC 10 watershed does not actually
include the Little Androscoggin River. This particular HUC 10 watershed
includes only the Androscoggin River and its tributaries from the
confluence with the Kennebec up to, but not including, the Little
Androscoggin River. These comments reflect confusion expressed by many
commenters about the names of HUC 10s as they relate to the location of
the HUC 10. In section III of this rule, we describe how we have
attempted to alleviate this confusion.
Comment 14: A commenter stated that historically inaccessible
habitat should be removed from critical habitat.
Response: No specific areas in the range of the GOM DPS where the
entire specific area was historically inaccessible were proposed as
critical habitat. However, in some cases there may be small stream
segments within a specific area identified as occupied that
historically were, and still may be, inaccessible. We are unable to
specifically identify the stream segments where critical habitat is
proposed that may have been historically inaccessible because of
insufficient information on where these barriers exist and whether they
are full barriers to migration or partial barriers to migration. As
activities occur in these areas, the section 7 consultation process
will allow us to further evaluate stream segments that may have been
historically inaccessible, and a determination of ``effect'' on the
habitat will be made accordingly. If the activity is determined to be
outside the historic range of the species, and the activity is not
believed to affect critical habitat downstream of the migration
barrier, then a determination of ``no effect'' or ``not likely to
affect'' critical habitat may be made.
Comment 15: A commenter stated that the biological value score of
the lower river migration corridors should not be based on the
biological value scores of watersheds outside the currently occupied
range.
Response: We discussed assigning biological values using two
approaches: assigning scores based on the value of habitat only within
the currently occupied range or assigning biological value based on the
historic range of the species within the GOM DPS. We concluded that
biological value scores should be assigned to HUC 10 watersheds based
on the historic range of the species regardless of the presence of dams
because areas with dams should not be under valued in terms of their
relative importance to Atlantic salmon recovery. Hence, when evaluating
the biological value of habitat, we asked biologists not to consider
dams as part of their evaluation, but they were to score areas as ``0''
if they believed the area to be historically inaccessible due to
natural barriers.
Comment 16: A commenter stated that the SHRU does not function as a
true population but rather as a collection of independent populations,
stating that this is evident by the genetic information presented in
studies by King et al. (2000, 2001) and Spidle et al. (2001, 2003).
Response: The studies by King and Spidle were referred to
extensively in our analysis of DPS structure within the Gulf of Maine
as well as the review provided by the NRC (2003). In each of these
studies, the authors do not imply that there is more than one
independent population within the Gulf of Maine DPS. Spidle et al.
(2003) and King et al. (2001) do describe Maine populations as
independent from other North American populations and may reflect a
limited number of metapopulations (a spatially separated group of
populations of the same species that interact at some level). The
National Research Council (NRC; 2004) does state that Maine rivers
appear to reflect a metapopulation structure whereby the GOM DPS
represents ``a set of local breeding populations connected by exchange
of some individuals''. The NRC, however, avoids referring to these
populations as independent populations. We discussed this issue with
Tim King (personal communication, December 9, 2008), and
[[Page 29305]]
he concurred that he was not aware of substantive information that
would suggest that there is a collection of independent populations
within the GOM DPS, and he agreed with NRC's interpretation that these
populations reflect meta-population structure. McElhany et al. (2000)
describes independent populations quite clearly as ``any collection of
one or more local breeding units whose population dynamics or
extinction risk over a 100-year time period is not substantially
altered by exchanges of individuals with other populations.'' He goes
on to state that independent populations are often smaller than the
Evolutionarily Significant Unit (ESU; similar to the scale to a DPS)
and more likely to inhabit a geographic range on the scale of an entire
river basin or major sub-basin. In the Gulf of Maine DPS there are four
HUC 6 river basins which are the Penobscot, Kennebec, Androscoggin, and
the Downeast Coastal Basin. Though we recognize that the genetic
evidence presented by King and Spidle clearly indicates populations
with strong river specificity, we do not believe that there is
compelling evidence to determine the presence of an independent
population structure in the GOM DPS whereby an independent population
is a population whose extinction risk over a 100-year time period is
not substantially altered by exchanges of individuals with other
populations.
Comment 17: A commenter stated that assigning a single population
criterion of an effective population size (Ne) of 500 adult spawners
(male and female) for each SHRU is not appropriate because each SHRU
does not function as a true population but rather a collection of
independent populations.
Response: The SHRUs are established as a geographic framework for
recovery. We did not use effective population size as a criterion for
recovery. Rather, we use the breeding population size in conjunction
with other criteria because of the inherent difficulties of calculating
effective population size for natural populations, and the further
complication of having a group of local breeding populations in which
there is limited straying among them.
We believe that assigning a single population criterion for an
entire SHRU is more appropriate than trying to allocate population
sizes on a per river basis. Assigning population values at the SHRU
level allows flexibility in recovery such that recovery can take place
anywhere within the SHRU as long as all of the criteria that we have
established are met. Therefore, a recovered population could be spread
out among multiple rivers within the SHRU or all in one river. Either
scenario would allow for a recovery determination as long as all the
criteria are met for delisting the DPS. If we assigned specific values
or goals for specific rivers, low populations in one river could
conceivably delay removing the DPS from the list.
In contrast, we do not believe that assigning population criteria
to the entire DPS is sufficient enough to allow for recovery to occur.
Assigning a population criterion without reference to geographic
distribution could allow for recovery to occur in one river for the
entire DPS. Recovery in one river could increase the population's
vulnerability to losses in genetic diversity as the population would be
exposed to less habitat diversity. Recovery in one river could also
increase the population's vulnerability to geographic stochasticity
(e.g., a catastrophic event such as a drought or flood that could
severely impact the population) and demographic stochasticity (e.g., a
significant decline in a population where recovery may require some
straying from nearby populations to increase the population size or to
increase genetic diversity to prevent inbreeding depression) (see NMFS,
2009, appendix A).
Recovery criteria were developed to aid in designating critical
habitat (NMFS, 2009, appendix A), though final recovery criteria will
be more fully developed as part of the recovery planning process
following the final listing.
Comment 18: A commenter stated that many extant populations in
Maine have not regularly achieved Ne > 500 nor Nb (breeding population)
> than 500 over the last 100 years or more, and clearly many extant
populations would have been unlikely to ever exceed the 1,000-2,000
fish level that may be needed to achieve delisting under the proposed
criteria.
Response: We agree that many extant breeding populations may not
have exceeded 1,000-2,000 spawners historically, but we do believe that
1,000-2,000 spawners within a SHRU is a realistic goal given the number
of breeding populations within a SHRU. Even though we have little
population data that pre-dates dam construction on any of the rivers in
Maine, Atkins' assessments of populations in both the Kennebec and
Penobscot (estimates range between 100,000 and 200,000 adult spawners
annually for the Penobscot and Kennebec) (Foster and Atkins, 1869) are
reasonable estimates given that these were based on harvest estimates.
We also avoid stating that only extant populations within the SHRUs can
be used to recover the SHRUs, understanding that, given current low
abundances, especially in the Merrymeeting Bay SHRU, common garden
experiments that use a mixed stock of fish from populations outside the
SHRU may be the most appropriate means to re-establish populations.
This concept fits well with the metapopulation paradigm, where limited
straying does occur between populations, and in fact is necessary in
supporting genetic diversity as well as re-colonization of populations
that have been extirpated or face near extirpation. We do state
however, that in most circumstances it would be appropriate, given
metapopulation dynamics, to use nearby or proximate populations as a
source of fish for re-establishing depleted stocks, as these fish are
most likely to retain the genetic and physical characteristics most
suitable for re-establishing the targeted river.
Comment 19: A commenter felt that the PVA simulation used to
project habitat needed to support a recovered population seems overly
pessimistic since it uses return rates from 1991-2006 to model a 50-
year time horizon. The commenter suggested that it would be more
realistic to use a longer time series of return rates to better reflect
the types of variability likely to be seen over 50 years.
Response: In Appendix B of the Biological Valuation, an example is
given of the PVA model and how it is used to project extinction risks
using a time horizon of 50 years. For the actual calculations, the PVA
was used in conjunction with the DRAFT Recovery Criteria to estimate
how many spawners would be needed in each SHRU to withstand a period of
low marine survival as experienced between the years of 1991 to 2006.
The output of the model was then used in the critical habitat analysis
to determine how much habitat in each SHRU would be needed to support a
population capable of withstanding the period of low marine survival as
experienced between the years of 1991 and 2006. This period of
reference was used to reflect what we have seen as a worst case
scenario. The outcome of the model revealed that 2,000 adult spawners
would be needed in each SHRU in order to ensure that the population of
each SHRU is ``not likely'' (<50 percent) to fall below 500 adult
spawners in the ``foreseeable future'' (15 years or 3 generations).
This particular time frame was used because our goal was to determine
how much habitat we would need to support a population that could
withstand another period of low marine survival such as experienced
[[Page 29306]]
during the time period between 1991 and 2006.
Comment 20: One commenter stated that while the concept of
effective population size (Ne) of 500 adult spawners is established in
the literature, the decision to use a census size of 500 adult spawners
as a minimum does not seem defensible.
Response: We recognize the difference between effective population
size (the number of individuals in a population who contribute
offspring to the next generation) and census population size (the
actual population, in this case the actual number of adult spawners)
and acknowledge the difficulties in calculating the effective
population size for Atlantic salmon throughout the range of the Gulf of
Maine DPS. In most circumstances though, the effective population size
of a species is much smaller than the actual census population size,
given that not all breeders are likely to contribute to the next
generation of breeders (e.g., a census population of 1,000 individuals
may only have 800 individuals that are effective breeders) (Allendorf
and Luikart, 2007). However, for Atlantic salmon where the breeding
population consists of multiple generations, including parr, 1 sea
winter, 2 sea winter, and multi-sea winter spawners, calculating the
effective population size relative to the census population size is far
more difficult than if all individuals were to reach maturity at the
same age. Furthermore, the ratio of effective population size to census
population size of adult spawner may be much closer to one for
populations with multiple generations (including parr) participating in
spawning activities than for populations that all mature at the same
age.
Genetic data is one means of calculating the effective population
size of natural populations, though extensive genetic data from all the
breeding populations across the DPS would need to be gathered to
accurately make these calculations. In this case, we make an assumption
that the census population size is equal to the effective population
size, and assume that all returning adults will be effective spawners.
The census population size of adult returns determined through redd
counts or adult trap catch is what the State of Maine and the Federal
agencies have principally relied upon as a gauge to describe population
health of Atlantic salmon in Maine and elsewhere throughout the United
States (USASAC 2007), and, therefore, we believe that using this same
metric to calculate recovery is reasonable. For lack of better
information, we believe that a census population size of 500 fish with
the added criterion identified in the recovery criteria is a very
reasonable goal and adequate enough to maintain within population
spatial structure and sufficient genetic diversity within each of the
three SHRUs.
Comment 21: One commenter stated that the GIS-based Atlantic salmon
model promises to be a powerful tool for making fisheries management
decisions and directing habitat restoration or protections. The
commenter went on to state though that several improvements to this
model and data set could be made, including: use a digital elevation
model to estimate drainage areas in the smaller basins; investigate the
discrepancies and identify variables that appear to underestimate
stream widths and, therefore, appear to underestimate salmon habitat in
some reaches; validate the GIS model with existing field habitat
surveys; check the GIS model for missing line segments; and check the
model to exclude areas above known, impassible natural barriers.
Response: The GIS based habitat prediction model development was
expedited for the purpose of designating critical habitat. We do
recognize that there are many attributes that could improve the output
of the model. These improvements could not be completed in the time
available for critical habitat designation given the schedule for
publishing the final critical habitat designation outlined in the
settlement agreement negotiated in the Conservation Law Foundation and
Center for Biological Diversity lawsuit. Regardless, the model output
conservatively predicts the presence of habitat to near 75 percent
accuracy and, as the commenter indicates, the model slightly
underestimates habitat because of some underestimation of stream
widths. We feel that the 75 percent accuracy provides us with the best
available information at this time and is sufficient to designate
critical habitat for Atlantic salmon at the HUC 10 level (NMFS, 2009,
Appendix C).
Comment 22: One commenter stated that factors outside of forestry
and land management appear to be the major limiting factors to northern
Atlantic salmon populations and stated that climate change may be
having an even larger effect on the species by changing runoff timing,
raising stream temperatures, and changing the timing of salmon runs.
Critical habitat designation does not address these issues and instead
places greater emphasis on secondary or historic practices that are
having at most a minor impact on the species.
Response: The statutory language of the ESA states that we shall
identify and evaluate those activities (whether private or public)
which, in the opinion of the Secretary, if undertaken, may adversely
modify such habitat, or may be affected by such designation.
Climate change in itself is not an activity, but rather a term that
describes the cumulative effects of many activities on the environment.
Even though Atlantic salmon managers and scientists are concerned about
the potential impacts of climate change on Atlantic salmon, at this
point we have very little evidence on the effects that climate change
has had or may have on Atlantic salmon in the GOM DPS. Furthermore, we
are unable to support the inclusion of the activities that contribute
to climate change due to a lack of scientific evidence that links the
impact of a specific activity that contributes to climate change to an
adverse modification of the physical and biological features essential
to the conservation of the GOM DPS.
We also do not believe that we placed greater emphasis on secondary
or historic practices that are having only minor impacts on the
species. In our assessment, we focused on those activities that may
affect critical habitat. Most notably, dams represent one activity that
we have identified as having an effect on critical habitat. The NRC
report (2004) concluded that ``the greatest impediment to the increase
of salmon populations in Maine is the obstruction of their passage up
and down streams and degradation of their habitat caused by dams.'' The
importance of dams in limiting Atlantic salmon recovery is further
elaborated in Fay et al. (2006). In conclusion, we believe that we are
focusing our efforts on activities that have the potential to impact
salmon habitat, as supported by observation and scientific data.
Economic Analysis
Comment 23: Several commenters stated that the economic analysis
fails to address the potential cost of lost generation due to the
diversion of flows for fishway operation. While it may be difficult to
predict the costs associated with the potential for changes in minimum
flows and similar operation changes, one commenter argued that the loss
in generation value due to fishway flows can and should be quantified
in the economic analysis. For example, a number of commenters assert
that the Services' own ``rule of thumb'' is that they may recommend
licensees divert approximately three to four percent of the turbine
hydraulic capacity for use as fish passage flows. The commenters
[[Page 29307]]
further assert that this equates directly to a loss of electric
generation at these facilities, thereby increasing costs born to hydro-
electric operators.
Response: Section 3.4.2 of the draft economic analysis describes
qualitatively and quantitatively potential impacts associated with
operational changes. This section explains that, absent information
regarding how NMFS may regulate flows at specific dam sites following a
critical habitat designation, impacts associated with potential
operational changes are not included in the total estimated impacts
presented in the report. To provide context on the potential magnitude
of operational impacts, the analysis considers a hypothetical scenario
in which all hydropower operations within the study area are precluded
from generating power during the month of May (peak season for
downstream smolt migration). According to this scenario, energy costs
could be expected to increase by up to $11.3 million.
The final economic analysis includes in its impact estimates a
scenario incorporating a three to four percent loss of electric
generation at the projects for which fish passage costs are estimated.
The analysis also incorporates a discussion on the uncertainties
associated with these impacts.
Comment 24: One commenter stated that the economic analysis needs
to consider additional costs associated with fish passage facilities
including: operational and maintenance costs, costs of effectiveness
studies, stocking and managing for the species, and incremental costs
of consultation.
Response: As described in Exhibit 3-6, the draft economic analysis
quantifies the following costs associated with fish passage facilities:
installation, species survival studies, installation and maintenance of
fish screens, and water quality and temperature controls. The analysis
also includes administrative costs of consultation. The final economic
analysis incorporates new information on the potential operation and
maintenance costs for fish passage facilities. Stocking and management
of the species is not considered to be related to critical habitat and
is, therefore, appropriately not quantified in the economic analysis.
Comment 25: Verso Paper Corporation comments that it operates four
hydropower dams to power its mill on the Androscoggin. The draft
economic analysis estimated that the cost of constructing fish lifts
for fish passage at each dam would be approximately $2.5 million each.
While $2.5 million constitutes only a moderate impact according to the
NMFS 4(b)(2) report, the combined effect of $10 million for all four
dams is a significant economic impact. Further, these estimates do not
include costs of conducting species survival or water quality studies,
or installing fish screens. These costs, along with increases in energy
costs and impacts of programmatic changes, make it clear that the
economic impacts to the Androscoggin mill are very high.
Response: The 4(b)(2) analysis was not conducted on a project-by-
project basis, but on the sub-watershed (ten digit hydrologic unit
code, or HUC) scale. That is, the total economic impacts of salmon
conservation to all economic activities were summed by HUC. Of the four
dams discussed here that support the Androscoggin mill, three (Riley,
Jay, and Livermore) occur within the same HUC; the remaining dam (Otis)
occurs in a separate HUC. Economic impacts by HUC therefore include the
costs of fish lift construction for all dams within the HUC, as well as
the impacts of conducting species survival and water quality studies,
and installing fish screens (see exhibit 3-8 of IEc, 2009). As
described in the economic analysis, to the extent that programmatic
changes may also be requested as a result of critical habitat, the
quantified impacts are an underestimate of the total impacts.
We believe that the HUC 10 watershed scale is an appropriate scale
in which to conduct the ESA section 4(b)(2) analysis as there is
insufficient information to accurately describe the economic impact for
all individual projects within the DPS, nor is there sufficient
information to accurate describe the physical and biological features
directly associated with each project. Even though there may be
sufficient information for some projects to conduct this scale of
analysis, by not having sufficient records for all projects in the DPS
we can not fairly conduct a cost benefit analysis by conducting a
project based analysis for some, and a watershed based analysis for
others.
Comment 26: A commenter stated that the hydropower analysis
incorrectly assumes a 50-year license term for the re-licensing of
hydroelectric projects over which impacts are discounted at an annual
rate of seven percent. While the license for a new project may be for
terms up to 50 years, a typical term for the re-licensing of an
existing project is 30 years.
Response: The draft economic analysis uses information from the
FERC re-licensing schedule on the re-licensing dates for each dam and
calculates present value impacts according to the expected year of re-
licensing. The analysis does not assume that all licenses have a 50-
year term. The present value impacts are then annualized over the full
50-year time frame of the analysis.
Comment 27: One commenter stated that the draft economic analysis
assumes that a fishway for fish passage would be needed at the Milford
Project's Gilman Falls Dam. This dam, however, contains a free-flowing
``breach'' section of river that negates the need for any type of fish
passage.
Response: As described in Section 3.4.1, the draft economic
analysis applies a ``rule of thumb'' to determine whether and what type
of fish passage may be requested at each dam. For main stem dams, we
anticipate that fish lifts would serve as the preferred method of fish
passage. The Gilman Falls Dam occurs on the main stem Penobscot River;
the draft economic analysis therefore assumed a fish lift may be
required. We believe that salmon should be able to pass this dam at
most, but not all, times of the year, as it is a low head dam. While
another type of fish passage may therefore be appropriate at this site
(e.g., a fish ladder), the economic analysis conservatively assumes it
is possible that fish passage will need to be incorporated at this
site.
Comment 28: One commenter stated that the draft economic analysis
relies heavily on overly generalized assumptions and provides an
example of the main stem Milford Dam. For this project, the draft
economic analysis estimated present value impacts of $232 (IEc, 2008),
compared with the company's estimate of $7.6 million to implement the
agreed upon fish passage measures that include installation of a fish
lift as part of the Penobscot River Restoration Plan.
Response: Section 3.4.1 of the draft economic analysis notes that
it does not include economic impacts associated with providing fish
passage at Milford and a bypass at Howland Dam where plans to improve
fish passage have already been developed. The $7.6 million dollar cost
will be incurred independent of any critical habitat decision and is
therefore not an impact of the rule. At these facilities, the impact of
the rule is limited to the administrative costs of conducting a section
7 consultation at the time of dam relicensing.
Comment 29: One commenter asks whether the analysis of the impact
on electricity production would change if the Penobscot River
Restoration Project (PRRP) were taken into account.
Response: The economic analysis attempts to isolate and quantify
the
[[Page 29308]]
costs of potential project modifications that result specifically from
the designation of critical habitat. With regard to the PRRP, a plan
has already been established independent of the designation of critical
habitat for four projects on the Penobscot River. This plan
incorporates project modifications that meet or exceed the measures
that might otherwise be requested to avoid or minimize adverse
modification of critical habitat. As a result, we do not anticipate
that critical habitat designation would affect the design or
implementation of the PRRP, nor do we anticipate that the designation
of critical habitat would affect the project's costs. Accordingly, the
economic analysis assumes that the designation of critical habitat will
have no impact on the PRRP.
Comment 30: One commenter requested that NMFS fully assess and
quantify the economic impact that the listing of the Atlantic salmon
will have on manufacturers and their employees. Specifically, the
commenter suggested that it is unclear how facilities that are
compliant with State standards for discharge may be affected by the
listing. It further expressed concern that the listing may add
uncertainty to the issuance of Maine Pollutant Discharge Elimination
System (MPDES) permits, thereby affecting the ability of permitted
facilities to secure financing.
Response: The ESA does not allow for consideration of economic
impacts in making decisions regarding whether to list species as
endangered or threatened. Economic impacts are considered in
designating critical habitat for listed species.
Comment 31: One commenter stated that the ``baseline approach'' of
the draft economic analysis considers only the economic impacts
attributable solely to critical habitat designation and not those
impacts that may be attributed co-extensively to the proposed DPS
listing. The comment asserts that this approach was invalidated by the
Tenth Circuit Court in New Mexico Cattle Growers Association v. USFWS,
248 F 3d 1277, 1285 (10th Cir 2001), which held that the Services must
consider all impacts of a proposed designation, even those attributed
coextensively to the listing. The commenter stated that the Tenth
Circuit is the only Federal Circuit Court of Appeals that has
considered the issue. In addition, the commenter stated that because
the status of the listing is uncertain, attempts to measure incremental
impacts as distinct from listing are tentative and misleading.
Response: As noted in the response to Comment 30, above, the ESA
precludes consideration of economic impacts in making listing
determinations but allows consideration of such impacts in conjunction
with designating critical habitat. To the extent possible, the economic
analysis attempts to quantify the impacts associated specifically with
the designation of critical habitat, as these are the economic impacts
that stand to be affected by a critical habitat designation decision.
In some cases, the analysis acknowledges that it is difficult to
determine what may be the causative factor for a conservation measure--
the listing or the critical habitat designation. In these cases, the
draft economic analysis conservatively includes such impacts and notes
the uncertainty. The economic analysis does not include, however,
impacts of conservation measures determined by NMFS to be solely due to
the listing, and not associated with the critical habitat designation,
as these impacts are expected to occur regardless of the critical
habitat designation decision.
Since the Tenth Circuit Court decision, courts in other cases have
held that an incremental analysis of impacts stemming solely from the
critical habitat rulemaking is proper (Cape Hatteras Access
Preservation Alliance v. Department of Interior, 344 F. Supp. 2d 108
(D.D.C. 2004); Center for Biological Diversity v. United States Bureau
of Land Management 422 F. Supp. 2d 1115 (N.D. Cal. 2006). For example,
in the March 2006 ruling that the August 2004 critical habitat rule for
the Peirson's milk-vetch was arbitrary and capricious, the United
States District Court for the Northern District of California stated,
``The Court is not persuaded by the reasoning of New Mexico
Cattle Growers, and instead agrees with the reasoning and holding of
Cape Hatteras Access Preservation Alliance v. U.S. Dep't of the
Interior, 344 F. Supp 2d 108 (D.D.C. 2004). That case also involved
a challenge to the Service's baseline approach and the court held
that the baseline approach was both consistent with the language and
purpose of the ESA and that it was a reasonable method for assessing
the actual costs of a particular critical habitat designation (Id at
130). `To find the true cost of a designation, the world with the
designation must be compared to the world without it.' ''
In this final rule we use an approach consistent with the Cape
Hatteras line of cases.
Comment 32: One commenter argued that additional time should be
taken to fully assess and quantify the economic impact the listing will
likely have on manufacturers and their employees located along Maine's
working rivers. Specifically, the commenter suggested that it is
unclear how facilities that are compliant with State standards for
discharge may be affected by the listing. The commenter further
expressed concern that the listing may add uncertainty to the issuance
of MPDES permits, thereby affecting the ability of permitting
facilities to secure financing.
Response: As mentioned in the response to Comment 30, economic
impacts are not allowed to be considered in relation to listing
decisions, but the ESA allows consideration of such impacts in
conjunction with designating critical habitat. Section 5.3.1 of the
economic analysis considers the potential effect of critical habitat
designation on licensed discharge facilities. Specifically, this
section notes that NMFS records indicate that there have been no
section 7 consultations regarding discharge permits since the Atlantic
salmon was listed. Further, EPA has not objected to and federalized any
MPDES permits due to concerns for salmon. The economic analysis,
therefore, does not anticipate that the issuance of these permits is
likely to result in consultation regarding salmon and its habitat.
ESA Section 4(b)(2) Report
Comment 33: Several commenters expressed concern that we only chose
to exclude areas if the specific area had low biological value and a
correspondingly higher economic cost, but if the area had no dams, then
those areas were also ineligible for exclusion.
Response: The Secretary of Commerce (Secretary) has discretion in
balancing the statutory factors, including what weight to give those
factors. The ESA provides the Secretary with the discretion to consider
areas for exclusion based on the economic impact, or any other relevant
impact, so long as a determination is made that the benefits of
exclusion outweigh the benefits of designation, and so long as the
exclusion will not result in extinction of the species concerned. The
benefits of designation are to ensure that there is sufficient habitat
with essential features needed to support recovery objectives. Given
that Atlantic salmon are in danger of extinction in the foreseeable
future, we used our discretion to only consider those areas for
exclusion that have relatively low biological value and correspondingly
higher economic cost.
In our analysis, we set criteria to weigh the economic cost of
designating critical habitat against the biological benefit of
designating critical habitat in order to assure that sufficient habitat
would remain available to achieve conservation of the species. Given
that the species is in danger of extinction, we believe that all
habitat of medium or high biological value, and all habitat not
[[Page 29309]]
impeded by dams is essential to achieve conservation of the species. In
this rule, in the section entitled ``Consideration of Economic Impacts,
Impacts to National Security, and Other Relevant Impacts,'' subsection
``Economic Impacts'', we expounded upon our decision to consider for
exclusion only those areas with a biological value of ``1''.
We did consider a more straight forward approach for exclusion such
that any areas for which the costs of designation were greater than the
biological value of the area to the species would qualify for
exclusion. We chose, however, to consider for exclusion only those
areas that have a biological value score of ``1'' (unless the area is
without dams) because excluding all specific areas for which the costs
of designation were greater than the biological value of the area to
the species would reduce the quantity of habitat below what is needed
to achieve conservation of the species.
Comment 34: One commenter stated that the ESA 4(b)(2) analysis is
flawed because NMFS's determination of whether an economic impact was
low, moderate, or high was done on a comparative basis as opposed to an
absolute basis. NMFS did not actually determine the economic impact to
an area of a proposed critical habitat designation.
Response: The framework used to inform the section 4(b)(2) analysis
was a modified cost-effectiveness analysis. The cost-effectiveness
analysis allows us to compare a monetized estimate of the ``benefits of
exclusion'' against the biological ``benefits of inclusion'' for any
particular area. The commenter is suggesting that the only accepted way
to conduct an ESA 4(b)(2) exclusion analysis is with a cost benefit
analysis. However, the approach we used, a cost-effectiveness analysis,
is acceptable for 4(b)(2) exclusion analysis (U.S. OMB, 2003).
The Office of Management and Budget has acknowledged the cost-
effectiveness analysis (CEA) as an appropriate alternative to benefit-
cost-analysis (U.S. OMB, 2003). The CEA provides a rigorous way to
identify options that achieve the most effective use of the resources
available without requiring monetization of all of the relevant
benefits or costs. The CEA was used in designating critical habitat for
the Gulf of Maine DPS of Atlantic salmon, whereby we differentiated
among habitat areas based on their relative contribution to
conservation based on habitat characteristics and best professional
judgment. These qualitative ordinal valuations were then combined with
estimates of the monetized economic costs of critical habitat
designation. In essence, individual habitat areas are assessed using
both their biological valuation and economic cost, so that areas with
high conservation value and lower economic cost have a higher priority
for designation, and areas with low conservation value and higher
economic cost have a higher priority for exclusion. Using the
Secretary's discretion in balancing the statutory factors, only those
areas with low biological value were considered for economic exclusion,
given that excluding areas of higher biological value would remove
protections to habitat needed to achieve conservation of the species.
Comment 35: One commenter stated that, ``[p]roposed designated
critical habitat on Plum Creek lands does not require special
management or protection * * * [we] implement practices that provide
on-the-ground conservation outcomes that benefit Atlantic salmon and
address the primary constituent elements (PCEs) of salmon habitat in
Maine.''
Response: As stated in section 4(b)(2) of the ESA, the Services may
exclude any area from critical habitat if it is determined that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat. Based on the best scientific and
commercial data available, including Federal and State natural resource
protection regulations, we determined that designation of critical
habitat in Maine, including Plum Creek lands, is necessary to protect
Atlantic salmon from extinction. Furthermore, the fact that on-the-
ground conservation measures are being implemented for Atlantic salmon
habitat is evidence of the need to manage the essential features of the
habitat.
We recognize that many organizations implement practices that
provide on-the-ground outcomes that benefit Atlantic salmon, but these
practices have not been provided to the Services for thorough review to
determine their conservation benefit to Atlantic salmon. Plum Creek
states that it fully complies with Maine's Best Management Practices
(BMPs) and believes these practices to be protective of salmon habitat.
While many of the BMPs do provide protections to Atlantic salmon, there
are many aspects that we feel may affect Atlantic salmon habitat and,
therefore, require further review. For example, we state that a 30-
meter buffer is generally required to provide protections to critical
habitat. The 30-meter buffer has been identified as what is generally
required to maintain or restore optimal habitat in fish-bearing streams
(Murphy, 1995) and necessary to protect invertebrate communities (Erman
and Mahoney, 1983) that salmon require for forage. Murphy (1995)
further states that narrower buffers or selective harvest within the
buffers may not provide for maintenance of large woody debris
contributions into the stream over the long term. Plum Creek's review
of Maine's BMPs prescribe a tiered approach where some streams have no
buffer protection, others have a 75-foot (22.9-m) buffer, and others
have up to a 250-foot (76.2-m) buffer but still allow for removal of up
to 40 percent of the canopy. Based on the best scientific and
commercial data available, including Federal and State natural resource
protection regulations, we determined that designation of critical
habitat in Maine, including Plum Creek lands, is necessary to protect
Atlantic salmon from extinction.
Miscellaneous Comments
Comment 36: Two commenters stated that appropriate documentation
under the National Environmental Policy Act (NEPA) must be prepared by
the Services and published for the public review process prior to any
final rules on critical habitat designation that impact the physical
environment.
Response: NEPA does not apply to designations of critical habitat
under the ESA. The reasons underlying this determination, mainly that
designation of critical habitat is a non-discretionary statutory
obligation in relation to the listing of a species under the ESA,
reflects an opinion from the Ninth Circuit Court of Appeals (see
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied,
116 S.Ct. 698 (1996)). In accordance with the decisions of the Ninth
Circuit Court, we believe that NEPA documentation is not required for
the designation of critical habitat within the range of the GOM DPS.
Comment 37: A commenter requested that we revise the critical
habitat designation proposal for the Penobscot and Kennebec watersheds.
The revised proposal should, at a minimum, exclude potential critical
habitat designation for Atlantic salmon in the Androscoggin River and
other areas, as appropriate, based upon the updated analyses.
The commenter felt that critical habitat for the expanded DPS
should be published separate from the Downeast River final rule, but
not before the end of the 1-year window permitted in the ESA following
the initial September 5, 2009, proposal. The Notice should request, and
give adequate time for, public comments on the revised
[[Page 29310]]
proposal prior to issuance of any final rule or designation in the
Penobscot or Kennebec Rivers.
Response: The ESA states that a final regulation designating
critical habitat of an endangered species or threatened species shall
be published concurrently with the final regulation implementing the
determination that such species is endangered or threatened. Exceptions
to this are if critical habitat of such species is not determinable, in
which we would be allowed 1 year from the time of listing to make such
a determination. For Atlantic salmon, we have an abundance of
information on which a determination of critical habitat can be based,
and, therefore, a ``not determinable'' decision is not supportable in
this case.
Comment 38: Two commenters requested that both the critical habitat
rule and DPS listing rule be delayed until additional information
relating to the adequacies of regulations pertaining to waste water
discharge and water withdrawal programs can be further reviewed.
Response: The June 1, 2009, publication due date for the final rule
designating critical habitat for Atlantic salmon was determined by a
judicially approved settlement agreement between the Center for
Biological Diversity, Conservation Law Foundation, and NMFS. We feel
that asking the plaintiffs and the court to agree to an extension of
that date to conduct further evaluation of existing regulations is
unwarranted. The adequacy of existing regulatory mechanisms is
evaluated in the listing determination, though it is not something that
is considered in designating critical habitat. Designating critical
habitat is designed to protect habitat features essential to the
conservation of the endangered or threatened species. In doing so, we
are required to identify the habitat features that may require special
management or protections. As such, several activities were identified
as affecting habitat features or as activities that we believe may have
an effect on habitat features either now or in the near future. By
identifying these activities, we are stating that if a Federal action
agency were to fund, carry out, or authorize one or more of these
activities, then the Federal action agency should consult with the
Services on that action. At that point, the Services, in conjunction
with the action agency, will make a determination, specific to that
project, on whether or not existing regulatory mechanisms are
sufficiently protective of the habitat features that we identified, or
whether the action may affect the habitat features and, therefore, may
require formal or informal consultation. During this consultation
process, modifications to the project may be required to minimize or
eliminate the effect on the habitat feature.
Comment 39: One commenter stated that the Federal Register notice
for critical habitat correctly identifies dams as the primary threat to
Atlantic salmon, but falls short of recognizing or recommending that
the cumulative impacts of dams be addressed if Atlantic salmon are
going to be restored in the Androscoggin, Kennebec, and Penobscot
Rivers. The commenter urges us to directly address the need for dam
removal rather than focus on fishways that we know cannot ameliorate
the cumulative impact of dams.
Response: The biological valuation portion of the critical habitat
designation does account for cumulative impacts of dams in the
determination of the ``functional habitat units'' score of habitat
units within the range of the GOM DPS. Through our scoring system, the
functional habitat units score accounts for dams not only within a
particular HUC 10, but also downstream of that HUC 10, thereby
addressing the issue of cumulative impacts associated with each dam
encountered by a fish making its way to or from a particular HUC 10.
We do not address the needs of dam removal directly in the critical
habitat designation as this would not add information necessary in
making a determination of critical habitat. When conducting the
economic analysis, we had to determine a course of action that may be
required of the hydropower companies in order to estimate the economic
impact. Given that we do not have the resources or the time to fully
assess the most appropriate course of action for each and every dam
within the Gulf of Maine DPS, we developed a general list of the types
of modifications that may be required by the dam owner if their dam is
within critical habitat. In some circumstances, these modifications may
be the most appropriate course of action. In other circumstances, more
or less stringent modifications may be required of the dam owner
depending on the amount the project affects critical habitat and what
is required to prevent jeopardy or adverse modification and achieve
recovery of the species. The need for dam removal or improved fish
passage for specific projects will be addressed in a recovery plan for
the expanded GOM DPS and in individual section 7 consultations on
projects during re-licensing or licensing.
Comment 40: A commenter stated that the Services need to be more
aggressive in dealing with numerous and well-documented problems
associated with elevated levels of acidity, low buffering capacity, and
lack of important nutrients in our rivers and strongly recommend
pursuing a pilot terrestrial liming/calcium enhancement project on a
meaningful scale in order to address these known problems.
Response: Acidification of surface waters has been identified in
numerous planning documents, including the NRC report on Atlantic
salmon in Maine (2004), the Final Recovery Plan for Atlantic Salmon
(NMFS and FWS, 2005) and the Status Review for Atlantic Salmon (Fay et
al., 2006). Acidification of surface waters has been well documented to
have detrimental effects on Atlantic salmon, particularly smolts.
Whether anthropogenic acidification of surface waters is affecting the
GOM DPS, and to what extent, is still widely debated. A combination of
low pH and high labile aluminum can reduce the physiological function
of the gill membrane and in turn, cause direct or indirect mortality to
a smolt as it attempts to enter sea water. Since the 1980s, researchers
have been working hard to understand acidification of surface waters in
Maine, particularly in the region east of the Penobscot River. Haines
et al. (1990) reported that, when Atlantic salmon smolts were subjected
to elevated acidity and elevated aluminum concentrations, a combination
of pH less than 5.5 and exchangeable aluminum concentration greater
than 200 mg/l caused osmoregulatory stress. Since this time, numerous
and extensive efforts have been undertaken to understand the role of
acidification on Atlantic salmon survival, particularly in the Downeast
Region of Maine. Furthermore, even though it has been widely
acknowledged that emissions of sulfates and nitrates contribute
significantly to acidification of surface waters, in Maine there are
differing views as to how much of the acidity is directly associated
with these emissions. In Downeast Maine, there is uncertainty among
researchers and biologists on how much of the acidity in Downeast
rivers is naturally occurring from the high levels of dissolved organic
matter and what portion of the acidity originates from exogenous
sources such as sulfate and nitrate emissions, marine aerosols, or
land-use activities (e.g., forestry and agricultural practices). At
this point, we recognize that some rivers and streams are impaired by
low pH and high aluminum concentrations, but we do not believe that
there is substantive information to suggest that the GOM
[[Page 29311]]
DPS is significantly impaired at the population level as a result of
anthropogenic acidification. Whether the Services should undertake
liming or calcium enhancement to offset the effects of low pH is an
issue that will need to be pursued in the development of a recovery
plan and is not related to the designation of critical habitat.
Comment 41: One commenter stated that the critical habitat
designation fails to consider the essential migratory nature of
Atlantic salmon * * * Atlantic salmon will not stay in just those areas
of a watershed that are designated as critical habitat.
Response: During our designation process we identified all areas
currently occupied by the listed GOM DPS of Atlantic salmon. All areas
currently occupied by the species have been designated as critical
habitat, with exceptions of areas excluded as part of the 4(b)(2)
process and marine areas as described in this final rule, section
titled: Identifying the Geographical Area Occupied by the Species and
Specific Areas within the Geographical Area. Areas not designated as
critical habitat within the GOM DPS are areas that are currently
inaccessible to Atlantic salmon due to either natural or man-made
barriers or areas that do not have the physical and biological features
essential to the conservation of the species. In order to designate
critical habitat outside the current GOM DPS we would need to make the
determination that those areas are essential to the conservation of the
species. At present, we have determined that enough habitat is
available within the occupied portions of the GOM DPS to conserve the
species regardless of whether salmon migrate outside this habitat area.
Therefore, habitat in unoccupied areas within or outside of the GOM DPS
is not essential to the conservation of salmon and not appropriate for
designation as critical habitat.
Comment 42: A commenter felt we should provide more region specific
review of habitat variability and threats in our source document
(Habitat Requirements and Management Considerations for Atlantic salmon
in the GOM DPS).
Response: The biological valuation (NMFS, 2009a) does provide SHRU
specific biological reports that describe the variability of physical
and biological features essential to the conservation of the species
within and among the individual SHRUs. Additionally, these SHRU
specific biological reports provide general descriptions of activities
that may affect the physical and biological features essential to the
conservation of the GOM DPS within each SHRU.
Comment 43: One commenter stated that the effects of dams are
overstated. The commenter felt that even though dams do impact
migration and survival, marine survival is the biggest factor limiting
recovery. The commenter further states that dams are not the driving
force in the decline as evidenced by rivers with no barriers to
migration but with the same declines as rivers with barriers.
Response: In the 4(b)(2) report (NMFS, 2009b), we fully acknowledge
the importance of marine survival and the fact that it is a very
significant limiting factor in the recovery of the GOM DPS. However,
critical habitat may not be designated within foreign countries or in
other areas outside of the jurisdiction of the United States (50 CFR
424.12(h)). Furthermore, we are not able, at this time, to identify the
specific features characteristic of marine migration and feeding
habitat within waters under U.S. jurisdiction essential to the
conservation of Atlantic salmon and are, therefore, unable to identify
the specific areas in the marine environment where such features exist.
Therefore, specific areas of marine habitat are not designated as
critical habitat. We also do not feel that the effect of dams is
overstated. The National Research Council stated in 2004 that the
greatest impediment to self-sustaining Atlantic salmon populations in
Maine is obstructed fish passage and degraded habitat caused by dams.
As the commenter acknowledged, we relied heavily on Fay et al. (2006),
which provides a comprehensive review of the studies that support this
conclusion. Dams have been found to result in direct loss of production
habitat, alteration of hydrology and geomorphology, interruption of
natural sediment and debris transport, and changes in temperature
regimes (Wheaton et al., 2004). Riverine areas above impoundments are
typically replaced by lacustrine (lake or pond) habitat following
construction. Dramatic changes to both upstream and downstream habitat
caused by dams directly result in changes in the composition of aquatic
communities, predator/ prey assemblages, and species composition (NRC,
2004; Fay et al., 2006; Holbrook, 2007). Upstream changes in habitat
are known to create conditions that are ideal for Atlantic salmon
predators such as chain pickerel, smallmouth bass, and double crested
cormorants (Fay et al., 2006). Furthermore, dams not only change
predator/prey assemblages, dam passage is known to negatively affect
predator detection and avoidance in salmonids (Raymond, 1979; Mesa,
1994; Blackwell and Krohn, 1997; Holbrook 2007). Adults may also be
susceptible to predation when they are attempting to locate and pass an
upstream passage facility at a dam in conjunction with higher summer
temperatures (Fay et al., 2006; Power and McCleave, 1980).
Providing highly effective fish passage both upstream and
downstream at impoundments is very important. However, that does not
negate the fact that even passage facilities contribute to Atlantic
salmon mortality. Passage inefficiency and delays occur at biologically
significant levels, resulting in incremental losses of pre-spawn
adults, smolts, and kelts. Dams are known to typically injure or kill
between 10 and 30 percent of all fish entrained at turbines (EPRI,
1992). With rivers containing multiple hydropower dams, these
cumulative losses could compromise entire year classes of Atlantic
salmon. Studies in the Columbia River system have shown that fish
generally take longer to pass a dam on a second attempt after fallback
compared to the first (Bjornn et al., 1999). Thus, cumulative losses at
passage facilities can be significant and are an important
consideration.
Comments on Issues Outside of the Scope of this Rule
There were a number of comments and suggestions that are not
directly related to the designation of critical habitat. These included
suggestions on collaboration versus regulation, comments on the
inadequacy of existing State regulations, comments on the National
Pollution Discharge Elimination System (NPDES), comments on river
classification, comments related to the listing of Atlantic salmon in
particular rivers under the ESA (inclusion or exclusion of certain
rivers), and remarks on the timing of the critical habitat designation
given the U.S. economic slow down. Given that these comments do not
affect the critical habitat designation process, we will not be
providing detailed responses in this rule. Comments that were submitted
in response to the proposed critical habitat designation, but appear to
be more related to the listing rule, will be addressed in that listing
action.
Remarks
(1) After the close of the comment period, we were informed that
the watershed delineations represented as HUCs had recently undergone
some revisions that would alter the boundaries of some of the HUC 10
watersheds used to represent specific
[[Page 29312]]
areas within the GOM DPS. In our determination of specific areas, we
identified the HUC 10 watershed scale as appropriate given that the HUC
10 watershed is the approximate scale in which Atlantic salmon are
currently managed. The HUC 10 scale was also appropriate because we had
sufficient information to analyze each specific area for habitat value
and economic cost. When we were made aware of the modifications, we
carefully assessed the implications of the modifications and whether it
would be necessary to reconfigure our designation based on the
modifications. ESA section 3(5)(A) states that we are to identify
specific areas within the geographical area on which are found those
physical and biological features essential to the conservation of the
species and which may require special management or protections.
Section 3(5)(C) further states that, except in circumstances determined
by the Secretary, critical habitat shall not include the entire
geographical area which can be occupied by the threatened or endangered
species. The Services' regulations further state in 50 CFR 424.12(c)
that each critical habitat will be defined by specific limits using
reference points and lines as found on standard topographic maps of the
area. Each area will be referenced to the State(s), county(ies), or
other local governmental units within which all or part of the critical
habitat is located. Unless otherwise indicated within the critical
habitat descriptions, the names of the State(s) and county(ies) are
provided for information only and do not constitute the boundaries of
the area. Ephemeral reference points (e.g., trees, sand bars) shall not
be used in defining critical habitat. Based on the ESA and agency
regulations, we concluded that reconfiguration of the HUC 10 watersheds
based on this update was unnecessary for the following reasons: (1)
Considering the guidance, we have a fair amount of discretion in
defining the scale, size, and shape of the area used to represent the
specific area in which critical habitat is analyzed; (2) the HUC 10
watershed scale, regardless of size or shape, does not influence salmon
biology or salmon behavior; (3) we can make available to the public
maps that clearly identify the specific areas and the critical habitat
within those areas; and (4) we clearly identify the specific State(s),
county(ies), and town(s) in which all or part of the critical habitat
is located.
(2) In the proposed rule (50 CFR 51747; September 5, 2008) summary
paragraph, we stated that there were 203,781 km of perennial river,
stream, and estuary habitat proposed for designation as critical
habitat. This number was in error, and the actual kilometers proposed
for designation was 20,378 km. The habitat kilometers in the summary
tables in Part 226 of the proposed rule were correct.
III. Summary of Revisions
We evaluated the comments and the new information received in
response to the proposed rule to ensure that our final rule contained
the best scientific data available. Some of the comments and new
information has resulted in a number of general changes to the critical
habitat designations. A review of the comments that triggered those
changes and a summary of the changes that were made are included in
this section:
(1) One commenter noted that on Page 9, Criterion (a) of the
biological valuation (NMFS, 2008a) we do not specify the time frame in
which salmon have been documented in a specific area for the area to be
considered occupied. Another commenter expressed concern over our
perceived use of the ``Fish Friends'' program overseen by the Atlantic
Salmon Federation as a criterion for occupation. On page 9 of the
biological valuation we identify two criteria, that if either are met,
would warrant the area to be considered occupied by the species.
The text in criterion (a) has been modified to include the
timeframe of 6 years, which is consistent with the timeframe expressed
in criteria (b), and we did remove reference to the Fish Friends
program on the basis that under no circumstance were specific areas
determined to be occupied solely based on the stocking of fry from this
program. These modifications were made in the final rule section titled
Identifying the Geographical Area Occupied by the Species and Specific
Areas within the Geographical Area.
(2) Several commenters asked that we clarify the approach used to
bin economic costs as well as how cost thresholds were assigned and how
specific areas were considered for economic exclusions.
In order to compare economic cost to biological value in the
exclusion process we needed to assign a value with which we could
compare unlike values (e.g., dollar amounts vs. biological value). In
order to create like values for both the economic costs and final
biological values we chose to bin the biological and economic data into
three categories (high, medium, low) in order to consider exclusions.
In the proposed rule we state that we binned the economic costs into
three categories to represent low, medium and high economic costs, but
did not explain why or how we did this binning. We modified the text in
the final rule section--Consideration of Economic Impacts, Impacts to
National Security, and Any Other Relevant Impacts to explain why and
how we did the binning of the economic cost.
(3) A commenter stated that the algorithm used to arrive at
functional habitat units is difficult to follow, in part because it is
described in two separate sections. A unified section describing this
process would be helpful, as would a formulaic representation of the
process.
The section of the final rule ``Specific areas outside the
geographical area occupied by the species * * * essential to the
conservation of the species'' has been modified by consolidating the
explanation of how functional habitat units were derived and developing
a formulaic expression for the process used to calculate functional
habitat units.
(4) A commenter noted that Belfast Bay is missing from the economic
exclusion in the table on pg 51780 of the proposed rule.
In 50 CFR 226.217(b)(6), Table (ii) of the proposed rule we outline
all the specific areas that contain critical habitat, the quantity of
critical habitat within the specific areas as well as the quantity of
critical habitat that we proposed for exclusion, and the type of
exclusion. In the Penobscot Bay sub-basin, we identified Belfast Bay
(HUC code 0105000218) as having 177 km of river, stream, and estuary,
and 9 square km of lake critical habitat. The area was identified in
the preamble and in the maps of 50 CFR Part 226.217(b)(6) of the
proposed rule as being proposed for exclusion based on economics. We
have modified the table to show that the habitat in Belfast Bay is
excluded from critical habitat on the basis of economic cost in
comparison with biological value.
(5) A commenter questioned our use of the language ``not likely to
become threatened'' that was used in the development of recovery
criteria described in the section entitled Specific areas outside the
geographical area occupied by the species * * * essential to the
conservation of the species of the final rule, and suggested that our
targets should be referred to as benchmarks for recovery. We modified
this section of the final rule as well as the biological valuation by
removing the language ``not likely to become threatened''. A recovered
population is one that is neither threatened nor
[[Page 29313]]
endangered, or otherwise a population that is not likely to become an
endangered species in the foreseeable future. The specific criteria
that we have proposed for recovery for the sake of estimating the
quantity of habitat needed to support a recovered population has not
changed. The recovery criteria will remain as draft until they are more
thoroughly examined through the recovery planning process.
(6) According to multiple comments, the draft economic analysis
underestimates the impacts of providing fish passage at hydropower
facilities. Specifically, one comment notes that the draft economic
analysis estimates the average cost of installing a fish lift to be
$2.7 million whereas the installation of three known fish lifts over
the past 15 years ranged in cost from $3.3 million to $7.8 million.
Specific information on the fish lift and ladder costs were provided
for FPL Energy hydro projects by the commenter. Likewise, Topsham Hydro
Partners stated that its fish passage facilities cost in excess of $4
million.
To address this, the final economic analysis incorporates the
available project-specific cost estimates for fish ladders and lifts
provided by the commenters to estimate the average costs of these
project modifications.
(7) Exhibit 3-10 in the draft economic analysis presents a range of
impacts associated with decreased power production in May in the case
that changes in operations are requested for the purposes of salmon
conservation. A commenter stated that the range presented is misleading
as the low end cost represents the lost power generation being replaced
by the next cheapest source of energy. By virtue of being a lower cost,
however, this next cheapest source would already be on line. Therefore,
only the highest cost replacement power would occur and only the high
end costs should be considered.
The final economic analysis was modified to address this comment by
removing the low end cost of the range presented in the draft economic
analysis, assuming the replacement generation will most likely come
from natural gas.
(8) A commenter stated that the draft economic analysis fails to
show how the present value costs for each dam were calculated from the
averages provided in the report.
To address this comment exhibit 3-7 from the draft economic
analysis has been revised in the final economic analysis to make
transparent the derivation of the per dam present value costs.
(9) A commenter stated that NMFS should consider that hydropower is
a clean and renewable energy source, and reducing its production and
replacing it with increased burning of fossil fuels would have
environmental costs.
In the final economic analysis and energy impact analysis we
incorporated a qualitative discussion recognizing that environmental
costs would occur in the case that lost hydropower generation were
replaced with increased burning of fossil fuels.
(10) Brookfield Renewable Power Inc. commented that the draft
economic analysis fails to include all of its dams within the study
area, missing five dams on the West Branch of the Penobscot River which
are part of Federal Energy Regulatory Commission (FERC) No. 2634.
Further, in the case of the Caucomgomoc Dam, the draft economic
analysis does not accurately portray existing fish passages.
The draft economic analysis considers four Brookfield Power dams on
the Penobscot River as part of FERC No. 2634. Due to information
provided by Brookfield in follow up to this comment, the final economic
analysis considers an additional four previously unlicensed dams that
are now licensed and will be in operation this year along the West
Branch of the Penobscot. Brookfield additionally provided information
on the fish passage status of these dams.
(11) The FERC stated that the draft economic analysis
underestimates the number of tidal/wave energy projects that may be
licensed over the 20-year time period of the analysis. The FERC
anticipates that there may be as many as 134 permit applications
leading to about 13 projects over the next 20 years.
Chapter 3 of the final economic analysis has been revised to
incorporate more information on the potential for future projects and
their locations. To provide additional context, the analysis also
describes modifications to hydrokinetic projects on the west coast that
have been requested for projects affecting Pacific salmon.
(12) The Regulatory Flexibility Analysis (RFA) describes the
potential impact to small farms in terms of the percentage of estimated
annual revenues. A commenter stated that a true impact on a small farm
would be the impact on net income because the farm may benefit from
economies of scale. For small farms, any reduction in income may put
them out of business.
In the RFA, the impacts to small farmers are presented as a
percentage of annual revenue to provide perspective on the level of
impact. We agree that presenting impacts as a percentage of net income
would be appropriate and would do so if sufficient data were available.
A qualitative discussion addressing this issue is incorporated in the
final economic analysis.
(13) A commenter stated that we were unclear on whether both
upstream and downstream passage efficiency estimates were figured into
the 85 percent passage efficiency when calculating the functional
habitat units.
To determine whether any unoccupied habitat in the GOM DPS should
be designated as critical habitat, we assessed the quantity of habitat
for each HUC 10 watershed. The total quantity of habitat was then
discounted to provide a functional habitat value based on the habitat's
quality and the number of dams within and below the HUC 10 watershed.
Therefore, the functional value of areas with low quality habitat or
dams would be less than the total measured habitat quantity. In the
proposed rule we did not state whether the dams were figured into the
equation to account for upstream, downstream, or both upstream and
downstream migration. We modified the section of the final rule
entitled ``Specific areas outside the geographical area occupied by the
species * * * essential to the conservation of the species'' to clarify
that only downstream passage efficiency was figured into the equation
to calculate functional habitat units.
This was done because we designated habitat based on what was
sufficient to support the offspring of a recovered population. We
identified a recovered population for the purpose of designating
critical habitat as 2,000 adult spawners within each SHRU. The next
generation of adult returns does not directly influence the quantity of
nursery habitat needed to support the offspring of the original 2,000
adult spawners. Assuring that passage is sufficient to sustain the
recovered population is part of the recovery strategy and is something
that will be addressed in the recovery plan.
(14) Several commenters indicated that the HUC labels are confusing
and make interpretation difficult.
The HUC 10 watershed delineations are pre-established watershed
delineations made available through USGS. We used the names and HUC
codes already established in the dataset for describing critical
habitat. We acknowledge that some of the names can be misleading, but
these codes and names are standardized by the USGS. In order to address
the confusion regarding the names of the HUC 10s and where
[[Page 29314]]
the HUC 10 watersheds are specifically, we have provided a more
detailed map in the end of the final rule and have also made detailed
maps available on our Web site at http://www.nero.noaa.gov/prot_res/altsalmon/.
HUC 0104000203 and 0104000204 were identified as being easily
confused because both HUCs were assigned the name ``Ellis River.'' HUC
0104000204 is below Rumford Falls and includes the Swift River and is
historical Atlantic salmon habitat while HUC 0104000203 is above
Rumford Falls and historically was not Atlantic salmon habitat.
(15) One commenter stated that the approach outlined in the
proposed critical habitat to assign cost thresholds and how specific
areas were considered for economic exclusions needed further
clarification.
In the 4(b)(2) analysis, in order to compare economic cost to
biological value, we needed to assign a value with which we could
compare unlike values (e.g., dollar amounts vs. biological value). In
order to create like values for both the economic costs and final
biological values, we chose to bin the original data into three
categories (high, medium, low) in order to make determinations of
exclusions between the two variables. Clarification of the procedures
used to bin economic cost is included in the 4(b)(2) report (NMFS,
2009b) and in section III of this final rule.
(16) The Navy commented stating that they are opposed to critical
habitat for the Atlantic salmon on properties owned, controlled by, or
designated for use by the Department of Defense pursuant to section
4(a)(3)(B)(i) and 4(b)(2) of the ESA. Military sites with military
missions excluded from critical habitat include: Brunswick Naval Air
Station's Main Station in Brunswick, ME; the Brunswick Naval Air
Station's Great Pond Outdoor Adventure Center (OAC) in the town of
Great Pond; the Brunswick Naval Air Stations Cold Weather Survival,
Evasion, Resistance, and Escape School (SERE) in Redington Township
near Rangeley, ME, and the Brunswick Naval Air Station's Naval Computer
and Telecommunications Atlantic Detachment Center in Cutler, Maine. The
Navy further requests that Bath Iron Works (BIW) in Bath, ME, be
excluded from critical habitat. The Navy asserts that BIW conducts
activities essential to the operations of the Navy's fleet and the Navy
describes these activities as inherent to national security.
In the proposed rule we stated that we had contacted the Department
of Defense and requested information on the existence of INRMPs for the
Brunswick Naval Air Station's Maine Station in Brunswick, and the Naval
Air Station's Cold Weather Survival, Evasion, Resistance, and Escape
school and the benefits any INRMPs would provide to Atlantic salmon. If
any INRMPs covering these sites were determined, in writing, to provide
a benefit to Atlantic salmon, we would be precluded from designating
the habitat within these sites (section 4(a)(3)(B)(i) of the ESA).
INRMPs that provide a benefit to Atlantic salmon are in place for these
two areas, and, therefore, these areas do not meet the definition of
critical habitat and are not be included in this final rule. In this
final rule we also exclude the Great Pond Outdoor Adventure Center in
Great Pond, ME, the Brunswick Naval Air Station's Naval Computer and
Telecommunications Atlantic Detachment Center in Cutler, Maine, and
Bath Iron Works in Bath, ME, based on the required benefits analysis of
section 4(b)(2) of the ESA. A full description of military lands that
do not meet the definition of critical habitat (section 4(a)(3)(B)(i)
of the ESA or that are excluded under section 4(b)(2) of the ESA is
included in this final rule under section V (Application of ESA Section
4(a)(3)(B)(i)) and section VI (Application of ESA Section 4(b)(2)).
(17) A commenter stated that though it may not be the intent of the
NMFS, the commenter believes the current wording that implies that the
presence of an Atlantic Salmon Federation (ASF) Fish Friends school
program qualifies a watershed for designation as critical habitat. ASF
wants to make sure that no areas within the DPS were considered
occupied solely and exclusively because of the presence of juvenile
salmon from the Fish Friends program.
In the final rule section Identifying the Geographical Area
Occupied by the Species and Specific Areas within the Geographical
Area, we have taken out the reference to the Fish Friends school
program as being an impetus for designating critical habitat in a
specific area as there are no circumstances where a HUC 10 watershed
was considered for designation as critical habitat solely based on the
stocking of fish through the Fish Friends program.
(18) In the final listing rule, the GOM DPS was redefined to
exclude those areas outside the historic range of the species. In the
re-defined DPS, the following impassable falls delimit the upstream
extent of the freshwater range: Rumford Falls in the town of Rumford on
the Androscoggin River; Snow Falls in the town of West Paris on the
Little Androscoggin River; Grand Falls in Township 3 Range 4 BKP WKR,
on the Dead River in the Kennebec Basin; the un-named falls (impounded
by Indian Pond Dam) immediately above the Kennebec River Gorge in the
town of Indian Stream Township on the Kennebec River; Big Niagara Falls
on Nesowadnehunk Stream in Township 3 Range 10 WELS in the Penobscot
Basin; Grand Pitch on Webster Brook in Trout Brook Township in the
Penobscot Basin; and Grand Falls on the Passadumkeag River in Grand
Falls Township in the Penobscot Basin.
In the critical habitat analysis, we analyzed the entire Penobscot,
Androscoggin, Kennebec, and Downeast Coastal Basins. All of the HUC 10
watersheds outside the historic range were determined to have no
biological value to Atlantic salmon and were subsequently not evaluated
for critical habitat with the exception of the Passadumkeag watershed
(HUC code 0102000503) in the Penobscot River watershed. The
Passadumkeag watershed was determined to be occupied up to Grand Falls
in Grand Falls Township, though it was assigned a biological value of
``1'' because of biological quality and habitat quantity. In the ESA
section 4(b)(2) exclusion analysis, the Passadumkeag was excluded from
designation because it was assigned an economic score of ``2'',
subsequently qualifying this watershed for exclusion. Upon the
redelineation of the GOM DPS, the Passadumkeag HUC 10 watershed was cut
in half so that the portion of the watershed below Grand Falls is
within the GOM DPS, and the portion of the watershed above Grand Falls
is outside the DPS. Given the new delineation, we needed to re-assess
the biological value and economic cost scores, given that these
evaluations were conducted for the entire HUC 10 watershed. In doing
so, the biological value of the Passadumkeag retained its score of
``1,'' given that during the biological valuation, these falls were
taken into account. The economic analysis did not take into account
Grand Falls in the assessment and therefore the economic impact for the
Passadumkeag needed to be re-examined. In doing so, the economic impact
to the Passadumkeag watershed was reduced to an estimated high impact
of $550,000, though this is not below the threshold of $338,000 which
would subsequently reduce the economic score from a 2 to a 1. Thus, the
Passadumkeag Watershed is eligible for exclusion under the criteria
that we established.
(19) In the proposed rule (73 FR 51747; September 5, 2008) summary
paragraph, we stated that there were 203,781 km of perennial river,
stream, and estuary habitat proposed for designation as critical
habitat. This
[[Page 29315]]
number was in error, and the actual kilometers proposed for designation
was 20,378 km. The habitat kilometers in the summary tables in part 226
of the proposed rule were correct.
IV. Methods and Criteria Used To Identify Critical Habitat
The following sections describe the relevant definitions and
guidance found in the ESA and our implementing regulations, and the key
methods and criteria we used to make these final critical habitat
designations after incorporating, as appropriate, comments and
information received on the proposed rule. Section 4 of the ESA (16
U.S.C. 1533(b)(2)) and our regulations at 50 CFR 424.12(a) require that
we designate critical habitat, and make revisions thereto, ``on the
basis of the best scientific data available.''
Critical habitat is defined by section 3 of the ESA (and 50 CFR
424.02(d)) as ``(i) the specific areas within the geographic area
occupied by the species, at the time it is listed in accordance with
the provisions of [section 4 of this Act], 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 in
accordance with the provisions of [section 4 of this Act], upon a
determination by the Secretary that such areas are essential for the
conservation of the species.'' Section 3 of the ESA (16 U.S.C. 1532(3))
also defines the terms ``conserve,'' ``conserving,'' and
``conservation'' to mean ``to use, and the use of, all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to this chapter are no longer necessary.''
Pursuant to our regulations, when identifying physical or
biological features essential to conservation, we consider the
following requirements of the species: (1) Space for individual and
population growth, and for normal behavior; (2) food, water, air,
light, minerals, or other nutritional or physiological requirements;
(3) cover or shelter; (4) sites for breeding, reproduction, or rearing
of offspring; and, generally, (5) habitat that is protected from
disturbance or representative of the historical geographical and
ecological distribution of the species (see 50 CFR 424.12(b)). In
addition to these factors, we also focus on the known physical and
biological features (primary constituent elements or PCEs) within the
occupied areas that are essential to the conservation of the species.
The regulations identify PCEs as including, but not limited to, the
following: roost sites, nesting grounds, spawning sites, feeding sites,
seasonal wetland or dry land, water quality or quantity, host species
or plant pollinator[s], geological formation, vegetation type, tide,
and specific soil types. For an area containing PCEs to meet the
definition of critical habitat, we must conclude that the PCEs in that
area ``may require special management considerations for protection.''
Our regulations define special management considerations or protection
as ``any methods or procedures useful in protecting physical and
biological features of the environment for the conservation of listed
species.'' Both the ESA and our regulations, in recognition of the
divergent biological needs of species, establish criteria that are fact
specific rather than ones that represent a ``one size fits all''
approach.
Our regulations state that, ``[t]he Secretary shall designate as
critical habitat areas outside the geographic area presently occupied
by the species only when a designation limited to its present range
would be inadequate to ensure the conservation of the species'' (50 CFR
424.12(e)). Accordingly, when the best available scientific data do not
demonstrate that the conservation needs of the species so require, we
will not designate critical habitat in areas outside the geographic
area occupied by the species.
Section 4 of the ESA (16 U.S.C. 1533(b)(2)) requires that, before
designating critical habitat we must consider the economic impacts,
impacts on national security, and other relevant impacts of specifying
any particular area as critical habitat, and the Secretary may exclude
any area from critical habitat if the benefits of exclusion outweigh
the benefits of designation, unless excluding an area from critical
habitat will result in the extinction of the species. This exercise of
discretion must be based upon the best scientific and commercial data
(16 U.S.C. 1536(a)(2)). Once critical habitat is designated, section
7(a)(2) of the ESA requires that Federal agencies, in consultation with
and with the assistance of NMFS, ensure that any action they authorize,
fund, or carry out is not likely to result in the destruction or
adverse modification of critical habitat.
Atlantic Salmon Life History
Atlantic salmon have a complex life history that ranges from
territorial rearing in rivers to extensive feeding migrations on the
high seas. During their life cycle, Atlantic salmon go through several
distinct phases that are identified by specific changes in behavior,
physiology, morphology, and habitat requirements.
Adult Atlantic salmon return to rivers from the sea and migrate to
their natal stream to spawn. Adults ascend the rivers of New England
beginning in the spring. The ascent of adult salmon continues into the
fall. Although spawning does not occur until late fall, the majority of
Atlantic salmon in Maine enter freshwater between May and mid-July
(Meister, 1958; Baum, 1997). Early migration is an adaptive trait that
ensures adults have sufficient time to effectively reach spawning areas
despite the occurrence of temporarily unfavorable conditions that occur
naturally (Bjornn and Reiser, 1991). Salmon that return in early spring
spend nearly 5 months in the river before spawning; often seeking cool
water refuge (e.g., deep pools, springs, and mouths of smaller
tributaries) during the summer months.
In the fall, female Atlantic salmon select sites for spawning.
Spawning sites are positioned within flowing water, particularly where
upwelling of groundwater occurs to allow for percolation of water
through the gravel (Danie et al., 1984). These sites are most often
positioned at the head of a riffle (Beland et al., 1982), the tail of a
pool, or the upstream edge of a gravel bar where water depth is
decreasing, water velocity is increasing (McLaughlin and Knight, 1987;
White, 1942), and hydraulic head allows for permeation of water through
the redd (a gravel depression where eggs are deposited). Female salmon
use their caudal fin to scour or dig redds. The digging behavior also
serves to clean the substrate of fine sediments that can embed the
cobble/gravel substrate needed for spawning and reduce egg survival
(Gibson, 1993). As the female deposits eggs in the redd, one or more
males fertilize the eggs (Jordan and Beland, 1981). The female then
continues digging upstream of the last deposition site, burying the
fertilized eggs with clean gravel. A single female may create several
redds before depositing all of her eggs. Female anadromous Atlantic
salmon produce a total of 1,500 to 1,800 eggs per kilogram of body
weight, yielding an average of 7,500 eggs per 2 sea-winter (SW) female
(an adult female that has spent 2 winters at sea before returning to
spawn) (Baum and Meister, 1971). After spawning, Atlantic salmon may
either return to sea immediately or remain in freshwater until the
following spring before returning to the sea (Fay et al., 2006). From
1967 to 2003, approximately three
[[Page 29316]]
percent of the wild and naturally reared adults that returned to rivers
where adult returns are monitored--mainly the Penobscot River--were
repeat spawners (USASAC, 2004).
Embryos develop in the redd for a period of 175 to 195 days,
hatching in late March or April (Danie et al., 1984). Newly hatched
salmon, referred to as larval fry, alevin, or sac fry, remain in the
redd for approximately 6 weeks after hatching and are nourished by
their yolk sac (Gustafson-Greenwood and Moring, 1991). Survival from
the egg to fry stage in Maine is estimated to range from 15 to 35
percent (Jordan and Beland, 1981). Survival rates of eggs and larvae
are a function of stream gradient, overwinter temperatures,
interstitial flow, predation, disease, and competition (Bley and
Moring, 1988). Once larval fry emerge from the gravel and begin active
feeding, they are referred to as fry. The majority of fry (>95 percent)
emerge from redds at night (Gustafson-Marjanen and Dowse, 1983).
When fry reach approximately 4 cm in length, the young salmon are
termed parr (Danie et al., 1984). Parr have eight to eleven pigmented
vertical bands on their sides that are believed to serve as camouflage
(Baum, 1997). A territorial behavior, first apparent during the fry
stage, grows more pronounced during the parr stage as the parr actively
defend territories (Allen, 1940; Kalleberg, 1958; Danie et al., 1984).
Most parr remain in the river for 2 to 3 years before undergoing
smoltification, the process in which parr go through physiological
changes in order to transition from a freshwater environment to a
saltwater marine environment. Some male parr may not go through
smoltification and will become sexually mature and participate in
spawning with sea-run adult females. These males are referred to as
``precocious parr.''
First year parr are often characterized as being small parr or 0+
parr (4 to 7 cm long), whereas second and third year parr are
characterized as large parr (greater than 7 cm long) (Haines, 1992).
Parr growth is a function of water temperature (Elliott, 1991), parr
density (Randall, 1982), photoperiod (Lundqvist, 1980), interaction
with other fish, birds, and mammals (Bjornn and Reiser, 1991), and food
supply (Swansburg et al., 2002). Parr movement may be quite limited in
the winter (Cunjak, 1988; Heggenes, 1990); however, movement in the
winter does occur (Hiscock et al., 2002) and is often necessary, as ice
formation reduces total habitat availability (Whalen et al., 1999a).
Parr have been documented using riverine, lake, and estuarine habitats;
incorporating opportunistic and active feeding strategies; defending
territories from competitors including other parr; and working together
in small schools to actively pursue prey (Gibson, 1993; Marschall et
al., 1998; Pepper, 1976; Pepper et al., 1984; Hutchings, 1986; Erkinaro
et al., 1998; Halvorsen and Svenning, 2000; O'Connell and Ash, 1993;
Dempson et al., 1996; Klemetsen et al., 2003).
In a parr's second or third spring (age 1 or age 2 respectively),
when it has grown to 12.5 to 15 cm in length, a series of
physiological, morphological, and behavioral changes occurs (Schaffer
and Elson, 1975). This process, called ``smoltification,'' prepares the
parr for migration to the ocean and life in salt water. In Maine, the
vast majority of naturally reared parr remain in freshwater for 2 years
(90 percent or more), with the balance remaining for either 1 or 3
years (USASAC, 2005). In order for parr to undergo smoltification, they
must reach a critical size of 10 cm total length at the end of the
previous growing season (Hoar, 1988). During the smoltification
process, parr markings fade and the body becomes streamlined and
silvery with a pronounced fork in the tail. Naturally reared smolts in
Maine range in size from 13 to 17 cm, and most smolts enter the sea
during May to begin their first ocean migration (USASAC, 2004). During
this migration, smolts must contend with changes in salinity, water
temperature, pH, dissolved oxygen, pollution levels, and predator
assemblages. The physiological changes that occur during smoltification
prepare the fish for the dramatic change in osmoregulatory needs that
come with the transition from a fresh to a salt water habitat (Ruggles,
1980; Bley, 1987; McCormick and Saunders, 1987; McCormick et al.,
1998). Smolts' transition into seawater is usually gradual as they pass
through a zone of fresh and saltwater mixing that typically occurs in a
river's estuary. Given that smolts undergo smoltification while they
are still in the river, they are pre-adapted to make a direct entry
into seawater with minimal acclimation (McCormick et al., 1998). This
pre-adaptation to seawater is necessary under some circumstances where
there is very little transition zone between freshwater and the marine
environment.
The spring migration of post-smolts out of the coastal environment
is generally rapid, within several tidal cycles, and follows a direct
route (Hyvarinen et al., 2006; Lacroix and McCurdy, 1996; Lacroix et
al., 2004, 2005). Post-smolts generally travel out of coastal systems
on the ebb tide, and may be delayed by flood tides (Hyvarinen et al.,
2006; Lacroix and McCurdy, 1996; Lacroix et al., 2004, 2005), though
Lacroix and McCurdy (1996) found that post-smolts exhibit active,
directed swimming in areas with strong tidal currents. Studies in the
Bay of Fundy and Passamaquoddy Bay suggest that post-smolts aggregate
together and move near the coast in ``common corridors'' and that post-
smolt movement is closely related to surface currents in the bay
(Hyvarinen et al., 2006; Lacroix and McCurdy, 1996; Lacroix et al.,
2004). European post-smolts tend to use the open ocean for a nursery
zone, while North American post-smolts appear to have a more near-shore
distribution (Friedland et al., 2003). Post-smolt distribution may
reflect water temperatures (Reddin and Shearer, 1987) and/or the major
surface-current vectors (Lacroix and Knox, 2005). Post-smolts live
mainly on the surface of the water column and form shoals, possibly of
fish from the same river (Shelton et al., 1997).
During the late summer/autumn of the first year, North American
post-smolts are concentrated in the Labrador Sea and off of the west
coast of Greenland, with the highest concentrations between 56[deg] N.
and 58[deg] N. (Reddin, 1985; Reddin and Short, 1991; Reddin and
Friedland, 1993). The salmon located off Greenland are composed of 1
sea winter (1SW) fish; fish that have spent multiple years at sea
(multi-sea winter fish, or MSW); and immature salmon from both North
American and European stocks (Reddin, 1988; Reddin et al., 1988). The
first winter at sea regulates annual recruitment, and the distribution
of winter habitat in the Labrador Sea and Denmark Strait may be
critical for North American populations (Friedland et al., 1993). In
the spring, North American post-smolts are generally located in the
Gulf of St. Lawrence, off the coast of Newfoundland, and on the east
coast of the Grand Banks (Reddin, 1985; Dutil and Coutu, 1988; Ritter,
1989; Reddin and Friedland, 1993; Friedland et al., 1999).
Some salmon may remain at sea for another year or more before
maturing. After their second winter at sea, the salmon over-winter in
the area of the Grand Banks before returning to their natal rivers to
spawn (Reddin and Shearer, 1987). Reddin and Friedland (1993) found
non-maturing adults located along the coasts of Newfoundland, Labrador,
and Greenland, and in the Labrador and Irminger Sea in the later
summer/autumn.
[[Page 29317]]
Identifying the Geographical Area Occupied by the Species and Specific
Areas Within the Geographical Area
To designate critical habitat for Atlantic salmon, as defined under
Section 3(5)(A) of the ESA, we must identify specific areas within the
geographical area occupied by the species at the time it is listed. The
geographic range occupied by the GOM DPS of Atlantic salmon includes
historically accessible freshwater habitat ranging from the
Androscoggin River watershed in the south to the Dennys River watershed
in the north (Fay et al., 2006), as well as the adjacent estuaries and
bays through which smolts and adults migrate.
The geographic range occupied by the species extends out to the
waters off Canada and Greenland, where post smolts complete their
marine migration. However, critical habitat may not be designated
within foreign countries or in other areas outside of the jurisdiction
of the United States (50 CFR 424.12(h)). Therefore, for the purposes of
critical habitat designation, the geographic area occupied by the
species will be restricted to areas within the jurisdiction of the
United States. This does not diminish the importance of habitat outside
of the jurisdiction of the United States for the GOM DPS. In fact, a
very significant factor limiting recovery for the species is marine
survival, and increasing marine survival is a conservation priority in
the recovery of the species. Though marine migration routes and feeding
habitat off Canada and Greenland are critical to the survival and
recovery of Atlantic salmon, the regulations prohibit designation of
these areas as critical habitat. In designating critical habitat for
Atlantic salmon, the emphasis is two fold: (1) Assuring that critical
habitat essential for a recovered population is protected so that when
marine conditions improve, sufficient habitat is available to support
recovery; and (2) enacting appropriate management measures to enhance
and improve critical habitat areas that are not fully functional
because the features have been degraded from anthropogenic causes.
Atlantic salmon are anadromous and spend a portion of life in
freshwater and the remaining portion in the marine environment.
Therefore, it is conceivable that some freshwater habitat may be vacant
for up to 3 years under circumstances where populations are extremely
low. While there may be no documented spawning in these areas for that
period of time, they would still be considered occupied because salmon
at sea would return to these areas to spawn.
Current stock management and assessment efforts also need to be
considered in deciding which areas are occupied, including the stocking
program managed by USFWS and the Maine Department of Marine Resources
(MDMR). Furthermore, in addition to stocking programs, straying from
natural populations can result in the occupation of habitat.
Hydrologic Unit Code (HUC) 10 (Level 5 watersheds) described by
Seaber et al. (1994) are considered the appropriate ``specific areas''
within the geographic area occupied by Atlantic salmon to be examined
for the presence of physical or biological features and for the
potential need for special management considerations or protections for
these features.
The HUC system was developed by the USGS Office of Water Data
Coordination in conjunction with the Water Resources Council (Seaber et
al., 1994) and provides (1) a nationally accessible, coherent system of
water-use data exchange; (2) a means of grouping hydrographical data;
and (3) a standardized, scientifically grounded reference system
(Laitta et al., 2004). The HUC system currently includes six nationally
consistent, hierarchical levels of divisions, with HUC 2 (Level 1)
``Regions'' being the largest (avg. 459,878 sq. km.), and HUC 12 (Level
6) ``sub-watersheds'' being the smallest (avg. 41-163 sq. km.).
The HUC 10 (level 5) watersheds were used to identify ``specific
areas'' because this scale accommodates the local adaptation and homing
tendencies of Atlantic salmon, and provides a framework in which we can
reasonably aggregate occupied river, stream, lake, and estuary habitats
that contain the physical and biological features essential to the
conservation of the species. Furthermore, many Atlantic salmon
populations in the GOM DPS are currently managed at the HUC 10
watershed scale. Therefore, we have a better understanding of the
population status and the biology of salmon at the HUC 10 level,
whereas less is known at the smaller HUC 12 sub-watershed scale.
Specific areas delineated at the HUC 10 watershed level correspond
well to the biology and life history characteristics of Atlantic
salmon. Atlantic salmon, like many other anadromous salmonids, exhibit
strong homing tendencies (Stabell, 1984). Strong homing tendencies
enhance a given individual's chance of spawning with individuals having
similar life history characteristics (Dittman and Quinn, 1996) that
lead to the evolution and maintenance of local adaptations, and may
also enhance their progeny's ability to exploit a given set of
resources (Gharrett and Smoker, 1993). Local adaptations allow local
populations to survive and reproduce at higher rates than exogenous
populations (Reisenbichler, 1988; Tallman and Healey, 1994). Strong
homing tendencies have been observed in many Atlantic salmon
populations. Stabell (1984) reported that fewer than 3 of every 100
salmon in North America and Europe stray from their natal river. In
Maine, Baum and Spencer (1990) reported that 98 percent of hatchery-
reared smolts returned to the watershed where they were stocked. Given
the strong homing tendencies and life history characteristics of
Atlantic salmon (Riddell and Leggett, 1981), we believe that the HUC 10
watershed level accommodates these local adaptations and the biological
needs of the species and, therefore, is the most appropriate unit of
habitat to delineate ``specific areas'' for consideration as part of
the critical habitat designation process.
Within the United States, the freshwater geographic range that the
GOM DPS of Atlantic salmon occupies includes perennial river, lake,
stream, and estuary habitat connected to the marine environment,
ranging from the Androscoggin River watershed to the Dennys River
watershed. Within this range, HUC 10 watersheds were considered
``occupied'' if they contained either of the PCEs (e.g., sites for
spawning and rearing or sites for migration, described in more detail
below) along with the features necessary to support spawning, rearing
and/or migration. Additionally, the HUC 10 watershed must meet either
of the following criteria. The area is occupied if:
(a) Redds or any life-stage of salmon have been documented in the
HUC 10 in the last 6 years, or the HUC 10 is believed to be occupied
and contain the PCEs based on the best scientific information available
and the best professional judgment of State and Federal biologists; or
(b) The HUC is currently managed by the MDMR and the USFWS through
an active stocking program in an effort to enhance or restore Atlantic
salmon populations, or the area has been stocked within the last 6
years by MDMR or the USFWS, and juvenile salmon could reasonably be
expected to migrate to the marine environment and return to that area
as adults and spawn.
One hundred and five HUC 10 watersheds within the Penobscot,
Kennebec, Androscoggin, and Downeast
[[Page 29318]]
Coastal basins were examined for occupancy based on the above criteria.
Eighteen HUCs were determined to be outside the historic range of the
species, and subsequently, populations in these HUCs were not included
in the GOM DPS in the final listing rule. Though the HUC 10 watersheds
outside the historic range of the species were included in the critical
habitat biological valuation and economic analysis, since they are not
occupied, they were not considered for designation and, therefore, not
included in the critical habitat 4(b)(2) exclusion analysis. Of the
remaining 86 HUCs in the range of the GOM DPS as defined in the final
rule, we concluded that 48 HUC 10 watersheds within the geographic
range are occupied by the species at the time of listing. Estuaries and
bays within the occupied HUC 10 watersheds within the range of the GOM
DPS are also included in the geographic range occupied by the species.
Occupied areas also extend outside the estuary and bays of the GOM
DPS as adults return from the marine environment to spawn and smolts
migrate towards Greenland for feeding. We are not able at this time to
identify the specific features characteristic of marine migration and
feeding habitat within waters under U.S. jurisdiction essential to the
conservation of Atlantic salmon and are, therefore, unable to identify
the specific areas where such features exist. Therefore, specific areas
of marine habitat are not designated as critical habitat.
Physical and Biological Features in Freshwater and Estuary Specific
Areas Essential to the Conservation of the Species
We identify the physical and biological features essential for the
conservation of Atlantic salmon that are found within the specific
occupied areas identified in the previous section. To determine which
features are essential to the conservation of the GOM DPS of Atlantic
salmon, we first define what conservation means for this species.
Conservation is defined in the ESA as using all methods and procedures
which are necessary to bring any endangered or threatened species to
the point at which the measures provided by the ESA are no longer
necessary. Conservation, therefore, describes those activities and
efforts undertaken to achieve recovery. For the GOM DPS, we have
determined that the successful return of adult salmon to spawning
habitat, spawning, egg incubation and hatching, juvenile survival
during the rearing time in freshwater, and smolt migration out of the
rivers to the ocean are all essential to the conservation of Atlantic
salmon. Therefore, we identify features essential to successful
completion of these life cycle activities. Although successful marine
migration is also essential to the conservation of the species, we are
not able to identify the essential features of marine migration and
feeding habitat at this time. Therefore, as noted above, marine habitat
areas are not designated as critical habitat.
Within the occupied range of the Gulf of Maine DPS, Atlantic salmon
PCEs include sites for spawning and incubation, sites for juvenile
rearing, and sites for migration. The physical and biological features
of the PCEs that allow these sites to be used successfully for
spawning, incubation, rearing, and migration are the features of
habitat within the GOM DPS that are essential to the conservation of
the species. A detailed review of the physical and biological features
required by Atlantic salmon is provided in Kircheis and Liebich (2007).
As stated above, Atlantic salmon also use marine sites for growth and
migration; however, we did not identify critical habitat within the
marine environment because the specific physical and biological
features of marine habitat that are essential for the conservation of
the GOM DPS (and the specific areas on which these features might be
found) cannot be identified. Unlike Pacific salmonids, some of which
use near-shore marine environments for juvenile feeding and growth,
Atlantic salmon migrate through the near-shore marine areas quickly
during the month of May and early June. We have limited knowledge of
the physical and biological features that the species uses in the
marine environment. However, we have very little information on the
specifics of these physical and biological features and how they may
require special management considerations or protection. Therefore, we
cannot accurately identify the specific areas where these features
exist or what types of management considerations or protections may be
necessary to protect these physical and biological features during the
migration period.
Detailed habitat surveys have been conducted in some areas within
the range of the GOM DPS of Atlantic salmon, providing clear estimates
of and distinctions between those sites most suited for spawning and
incubation and those sites most used for juvenile rearing. These
surveys are most complete for seven coastal watersheds: Dennys, East
Machias, Machias, Pleasant, Narraguagus, Ducktrap, and Sheepscot
watersheds; and portions of the Penobscot Basin, including portions of
the East Branch Penobscot, portions of the Piscataquis and
Mattawamkeag, Kenduskeag Stream, Marsh Stream, and Cove Brook; and
portions of the Kennebec Basin, including a portion of the lower
mainstem around the site of the old Edwards Dam and portions of the
Sandy River. Throughout most of the range of the GOM DPS, however, this
level of survey has not been conducted, and, therefore, this level of
detail is not available.
In order to determine habitat quantity for each HUC 10 we relied on
a GIS based habitat prediction model (See appendix C of NMFS, 2009a).
The model was developed using data from existing habitat surveys
conducted in the Machias, Sheepscot, Dennys, Sandy, Piscataquis,
Mattawamkeag, and Souadabscook Rivers. A combination of reach slope
(change in elevation of a stream segment) derived from contour and
digital elevation model (DEM) datasets, cumulative drainage area, and
physiographic province were used to predict the total amount of rearing
habitat within a reach. These features help to reveal stream segments
with gradients that would likely represent areas of riffles or fast
moving water, habitat most frequently used for spawning and rearing of
Atlantic salmon. The variables included in the model accurately predict
the presence of rearing habitat approximately 75 percent of the time.
We relied on the model to generate the habitat quantity present within
each HUC 10 to provide consistent data across the range of the entire
DPS and on existing habitat surveys to validate the output of the
model.
Although we have found the model to be nearly 75 percent accurate
in predicting the presence of sites for spawning and rearing within
specific areas, and we have an abundance of institutional knowledge on
the physical and biological features that distinguish sites for
spawning and sites for rearing, the model cannot be used to distinguish
between sites for spawning and sites for rearing across the entire
geographic range. This is because: (1) Sites used for spawning are also
used for rearing; and (2) the model is unable to identify substrate
features most frequently used for spawning activity, but rather uses
landscape features to identify where stream gradient conducive to both
spawning and rearing activity exists. As such, we have chosen to group
sites for spawning and sites for rearing into one PCE. Therefore, sites
for spawning and sites for rearing are discussed together throughout
this analysis as sites for spawning and rearing.
[[Page 29319]]
In the section below, we identify the essential physical and
biological features of spawning and rearing sites and migration sites
found in the occupied areas described in the previous section.
(A) Physical and Biological Features of the Spawning and Rearing PCE
1. Deep, oxygenated pools and cover (e.g., boulders, woody debris,
vegetation, etc.), near freshwater spawning sites, necessary to support
adult migrants during the summer while they await spawning in the fall.
Adult salmon can arrive at spawning grounds several months in advance
of spawning activity. Adults that arrive early require holding areas in
freshwater and estuarine areas that provide shade, protection from
predators, and protection from other environmental variables such as
high flows, high temperatures, and sedimentation. Early migration is an
adaptive trait that ensures adults sufficient time to reach spawning
areas despite the occurrence of temporarily unfavorable conditions that
occur naturally (Bjornn and Reiser, 1991). Salmon that return in early
spring spend nearly 5 months in the river before spawning; often
seeking cool water refuge (e.g., deep pools, springs, and mouths of
smaller tributaries) during the summer months. Large boulders or rocks,
over-hanging trees, logs, woody debris, submerged vegetation, and
undercut banks provide shade, reduce velocities needed for resting, and
offer protection from predators (Giger, 1973). These features are
essential to the conservation of the species to help ensure the
survival and successful spawning of adult salmon.
2. Freshwater spawning sites that contain clean, permeable gravel
and cobble substrate with oxygenated water and cool water temperatures
to support spawning activity, egg incubation, and larval development.
Spawning activity in the Gulf of Maine DPS of Atlantic salmon typically
occurs between mid-October and mid-November (Baum, 1997) and is
believed to be triggered by a combination of water temperature and
photoperiod (Bjornn and Reiser, 1991). Water quantity and quality, as
well as substrate type, are important for successful Atlantic salmon
spawning. Water quantity can determine habitat availability, and water
quality may influence spawning success. Substrate often determines
where spawning occurs, and cover can influence survival rates of both
adults and newly hatched salmon.
Preferred spawning habitat contains gravel substrate with adequate
water circulation to keep buried eggs well oxygenated (Peterson, 1978).
Eggs in a redd are entirely dependent upon sub-surface movement of
water to provide adequate oxygen for survival and growth (Decola,
1970). Water velocity and permeability of substrate allow for adequate
transport of well-oxygenated water for egg respiration (Wickett, 1954)
and removal of metabolic waste that may accumulate in the redd during
egg development (Decola, 1970; Jordan and Beland, 1981). Substrate
permeability as deep as the egg pit throughout the incubation period is
important because eggs are typically deposited at the bottom of the egg
pit.
Dissolved oxygen (DO) content is important for proper embryonic
development and hatching. Embryos can survive when DO concentrations
are below saturation levels, but their development is often subnormal
due to delayed growth and maturation, performance, or delayed hatching
(Doudoroff and Warren, 1965). In addition, embryos consume more oxygen
(i.e., the metabolism of the embryo increases) when temperature
increases (Decola, 1970). An increase in water temperature, however,
decreases the amount of oxygen that the water can hold. During the
embryonic stage when tissue and organs are developing and the demand
for oxygen is quite high, embryos can only tolerate a narrow range of
temperatures. These sites are essential for the conservation of the
species because, without them, embryo development would not be
successful.
3. Freshwater spawning and rearing sites with clean, permeable
gravel and cobble substrate with oxygenated water and cool water
temperatures to support emergence, territorial development, and feeding
activities of Atlantic salmon fry. The period of emergence and the
establishment of feeding territories is a critical period in the salmon
life cycle since at this time mortality can be very high. When fry
leave the redd, they emerge through the interstitial spaces in the
gravel to reach the surface. When the interstitial spaces become
embedded with fine organic material or fine sand, emergence can be
significantly impeded or prevented. Newly emerged fry prefer shallow,
low velocity, riffle habitat with a clean gravel substrate. Territories
are quickly established by seeking out areas of low velocities that
occur in eddies in front of or behind larger particles that are
embedded in areas of higher velocities to maximize drift of prey
sources (Armstrong et al., 2002). Once a territory has been
established, fry use a sit-and-wait strategy, feeding opportunistically
on invertebrate drift. This strategy enables the fish to minimize
energy expenditure while maximizing energy intake (Bachman, 1984).
These sites are essential for the conservation of the species because,
without them, fry emergence would not be successful.
4. Freshwater rearing sites with space to accommodate growth and
survival of Atlantic salmon parr. When fry reach approximately 4 cm in
length, the young salmon are termed parr (Danie et al., 1984). The
habitat in Maine rivers currently supports on average between five and
ten large parr (age 1 or older) per 100 square meters of habitat, or
one habitat unit (Elson, 1975; Baum, 1997). The amount of space
available for juvenile salmon occupancy is a function of biotic and
abiotic habitat features, including stream morphology, substrate,
gradient, and cover; the availability and abundance of food; and the
makeup of predators and competitors (Bjornn and Reiser, 1991). Further
limiting the amount of space available to parr is their strong
territorial instinct. Parr actively defend territories against other
fish, including other parr, to maximize their opportunity to capture
prey items. The size of the territory that a parr will defend is a
function of the size and density of parr, food availability, the size
and roughness of the substrate, and current velocity (Kalleberg, 1958;
Grant et al., 1998). The amount of space needed by an individual
increases with age and size (Bjornn and Reiser, 1991). Cover, including
undercut banks, overhanging trees and vegetation, diverse substrates
and depths, and some types of aquatic vegetation, can make habitat
suitable for occupancy (Bjornn and Reiser, 1991). Cover can provide a
buffer against extreme temperatures; protection from predators;
increased food abundance; and protection from environmental variables
such as high flow events and sedimentation. These features are
essential to the conservation of the species because, without them,
juvenile salmon would have limited areas for foraging and protection
from predators.
5. Freshwater rearing sites with a combination of river, stream,
and lake habitats that accommodate parr's ability to occupy many niches
and maximize parr production. Parr prefer, but are not limited to,
riffle habitat associated with diverse rough gravel substrate. The
preference for these habitats by parr that use river and stream
habitats supports a sit-and-wait feeding strategy intended to minimize
energy expenditure while maximizing growth. Overall, large Atlantic
salmon parr using river and stream habitats select for diverse
substrates that predominately consist of boulder and cobble (Symons and
[[Page 29320]]
Heland, 1978; Heggenes, 1990; Heggenes et al., 1999).
Parr can also move great distances into or out of tributaries and
mainstems to seek out habitat that is more conducive to growth and
survival (McCormick et al., 1998). This occurs most frequently as parr
grow and they move from their natal spawning grounds to areas that have
much rougher substrate, providing more suitable over-wintering habitat
and more food organisms (McCormick et al., 1998). In the fall, large
parr that are likely to become smolts the following spring have been
documented leaving summer rearing areas in some head-water tributaries
and migrating downstream, though not necessarily entering the estuary
or marine environment (McCormick et al., 1998).
Though parr are typically stream dwellers, they also use pools
within rivers and streams, dead-waters (sections of river or stream
with very little to no gradient), and lakes within a river system as a
secondary nursery area after emergence (Cunjak, 1996; Morantz et al.,
1987; Erkinaro et al., 1998). It is known that parr will use pool
habitats during periods of low water, most likely as refuge from high
temperatures (McCormick et al., 1998) and during the winter months to
minimize energy expenditure and avoid areas that are prone to freezing
or de-watering (Rimmer et al., 1984). Salmon parr may also spend weeks
or months in the estuary during the summer (Cunjak et al., 1989, 1990;
Power and Shooner, 1966). These areas are essential to the conservation
of the species to ensure survival and species persistence when
particular habitats become less suitable or unsuitable for survival
during periods of extreme conditions such as extreme high temperatures,
extreme low temperatures, and droughts.
6. Freshwater rearing sites with cool, oxygenated water to support
growth and survival of Atlantic salmon parr. Atlantic salmon are cold
water fish and have a thermal tolerance zone where activity and growth
is optimal (Decola, 1970). Small parr and large parr have similar
temperature tolerances (Elliott, 1991). Water temperature influences
growth, survival, and behavior of juvenile Atlantic salmon. Juvenile
salmon can be exposed to very warm temperatures (> 20 [deg]C) in the
summer and near freezing temperatures in the winter, and have evolved
with a series of physiological and behavioral strategies that enables
them to adapt to the wide range of thermal conditions that they may
encounter. Parr's optimal temperature for feeding and growth ranges
from 15 [deg] to 19 [deg]C (Decola, 1970). When water temperatures
surpass 19 [deg]C, feeding and behavioral activities are directed
towards maintenance and survival. During the winter when temperatures
approach freezing, parr reduce energy expenditures by spending less
time defending territories, feeding less, and moving into slower
velocity microhabitats (Cunjak, 1996).
Oxygen consumption by parr is a function of temperature. As
temperature increases, the demand for oxygen increases (Decola, 1970).
Parr require highly oxygenated waters to support their active feeding
strategy. Though salmon parr can tolerate oxygen levels below 6mg/l,
both swimming activity and growth rates are restricted. These features
are essential to the conservation of the species because high and low
water temperatures and low oxygen concentrations can result in the
cessation of feeding activities necessary for juvenile growth and
survival and can result in direct mortality.
7. Freshwater rearing sites with diverse food resources to support
growth and survival of Atlantic salmon parr. Atlantic salmon require
sufficient energy to meet their basic metabolic needs for growth and
reproduction (Spence et al., 1996). Parr largely depend on invertebrate
drift for foraging, and actively defend territories to assure adequate
food resources needed for growth. Parr feed on larvae of mayflies,
stoneflies, chironomids, caddisflies, blackflies, aquatic annelids, and
mollusks, as well as numerous terrestrial invertebrates that fall into
the river (Scott and Crossman, 1973; Nislow et al., 1999). As parr
grow, they will occasionally eat small fishes, such as alewives, dace,
or minnows (Baum, 1997).
Atlantic salmon attain energy from food sources that originate from
both allochthonous (outside the stream) and autochthonous (within the
stream) sources. What food is available to parr and how food is
obtained is a function of a river's hydrology, geomorphology, biology,
water quality, and connectivity (Annear et al., 2004). The riparian
zone is a fundamental component to both watershed and ecosystem
function, as it provides critical physical and biological linkages
between terrestrial and aquatic environments (Gregory et al., 1991).
Flooding of the riparian zone is an important mechanism needed to
support the lateral transport of nutrients from the floodplain back to
the river (Annear et al., 2004). Lateral transport of nutrients and
organic matter from the riparian zone to the river supports the growth
of plant, plankton, and invertebrate communities. Stream invertebrates
are the principle linkage between the primary producers and higher
trophic levels, including salmon parr. These features are essential to
the conservation of the species, as parr require these food items for
growth and survival.
(B) Physical and Biological Features of the Migration PCE
1. Freshwater and estuary migratory sites free from physical and
biological barriers that delay or prevent access of adult salmon
seeking spawning grounds needed to support recovered populations. Adult
Atlantic salmon returning to their natal rivers or streams require
migration sites free from barriers that obstruct or delay passage to
reach their spawning grounds at the proper time for effective spawning
(Bjornn and Reiser, 1991). Physical and biological barriers within
migration sites can prevent adult salmon from effectively spawning
either by preventing access to spawning habitat or impairing a fish's
ability to spawn effectively by delaying migration or impairing the
health of the fish. Migration sites free from physical and biological
barriers are essential to the conservation of the species because,
without them, adult Atlantic salmon would not be able to access
spawning grounds needed for egg deposition and embryo development.
2. Freshwater and estuary migration sites with pool, lake, and
instream habitat that provide cool, oxygenated water and cover items
(e.g., boulders, woody debris, and vegetation) to serve as temporary
holding and resting areas during upstream migration of adult salmon.
Atlantic salmon may travel as far as 965 km upstream to spawn (NEFMC,
1998). During migration, adult salmon require holding and resting areas
that provide the necessary cover, temperature, flow, and water quality
conditions needed to survive. Holding areas can include areas in rivers
and streams, lakes, ponds, and even the ocean (Bjornn and Reiser,
1991). Holding areas are necessary below temporary seasonal migration
barriers such as those created by flow, temperature, turbidity, and
temporary obstructions such as debris jams and beaver dams, and
adjacent to spawning areas. Adult salmon can become fatigued when
ascending high velocity riffles or falls and require resting areas
within and around high velocity waters where they can recover until
they are able to continue their migration. Holding areas near spawning
areas are necessary when upstream migration is not delayed and adults
reach spawning areas before they are ready to spawn. These features are
essential to the conservation of the species because,
[[Page 29321]]
without them, adult Atlantic salmon would be subject to fatigue,
predation, and mortality from exposure to unfavorable conditions,
significantly reducing spawning success.
3. Freshwater and estuary migration sites with abundant, diverse
native fish communities to serve as a protective buffer against
predation. Adult Atlantic salmon and Atlantic salmon smolts interact
with other diadromous species indirectly. Adult and smolt migration
through the estuary often coincides with the presence of alewives
(Alosa spp.), American shad (Alosa sapidissima), blueback herring
(Alosa aestivalis), and striped bass (Morone saxatilis). The abundance
of diadromous species present during adult migration may serve as an
alternative prey source for seals, porpoises and otters (Saunders et
al., 2006). As an example, pre-spawned adult shad enter rivers and
begin their upstream spawning migration at approximately the same time
as early migrating adult salmon (Fay et al., 2006). Historically, shad
runs were considerably larger than salmon runs (Atkins and Foster,
1867; Stevenson, 1898). Thus, native predators of medium to large size
fish in the estuarine and lower river zones could have preyed on these
1.5 to 2.5 kg size fish readily (Fay et al., 2006; Saunders et al.,
2006). In the absence or reduced abundance of these diadromous fish
communities, it would be expected that Atlantic salmon will likely
become increasingly targeted as forage by large predators (Saunders et
al., 2006).
As Atlantic salmon smolts pass through the estuary during migration
from their freshwater rearing sites to the marine environment, they
experience high levels of predation. Predation rates through the
estuary often result in up to 50 percent mortality during this
transition period between freshwater to the marine environment
(Larsson, 1985). There is, however, large annual variation in estuarine
mortality, which is believed to be dependent upon the abundance and
availability of other prey items including alewives, blueback herring,
and American shad, as well as the spatial and temporal distribution and
abundance of predators (Anthony, 1994).
The presence and absence of co-evolutionary diadromous species such
as alewives, blueback herring, and American shad likely play an
important role in mitigating the magnitude of predation on smolts from
predators such as striped bass, double-crested cormorants
(Phalacrocorax auritus), and ospreys (Pandion haliaetus). The migration
time of pre-spawned adult alewives overlaps in time and space with the
migration of Atlantic salmon smolts (Saunders et al., 2006). Given that
when alewife populations are robust, alewife numbers not only likely
greatly exceed densities of Atlantic salmon smolts, making them more
available to predators, but the caloric content per individual alewife
is greater than that of an Atlantic salmon smolt (Schulze, 1996),
likely making the alewife a more desirable prey species (Saunders et
al., 2006). These features are essential to the conservation of the
species because, without highly prolific abundant alternate prey
species such as alewives and shad, the less prolific Atlantic salmon
will likely become a preferred prey species.
4. Freshwater and estuary migration sites free from physical and
biological barriers that delay or prevent emigration of smolts to the
marine environment. Atlantic salmon smolts require an open migration
corridor from their juvenile rearing habitat to the marine environment.
Seaward migration of smolts is initiated by increases in river flow and
temperature in the early spring (McCleave, 1978; Thorpe and Morgan,
1978). Migration through the estuary is believed to be the most
challenging period for smolts (Lacroix and McCurdy, 1996). Although it
is difficult to generalize migration trends because of the variety of
estuaries, Atlantic salmon post-smolts tend to move quickly through the
estuary and enter the ocean within a few days or less (Lacroix et al.,
2004; Hyvarinen et al., 2006; McCleave, 1978). In the upper estuary,
where river flow is strong, Atlantic salmon smolts use passive drift to
travel (Moore et al., 1995; Fried et al., 1978; LaBar et al., 1978). In
the lower estuary smolts display active swimming, although their
movement is influenced by currents and tides (Lacroix and McCurdy,
1996; Moore et al., 1995; Holm et al., 1982; Fried et al., 1978). In
addition, although some individuals seem to utilize a period of
saltwater acclimation, some fish have no apparent period of acclimation
(Lacroix et al., 2004). Stefansson et al. (2003) found that post-smolts
adapt to seawater without any long-term physiological impairment.
Several studies also suggest that there is a ``survival window'' which
is open for several weeks in the spring, and gradually closes through
the summer, during which time salmon can migrate more successfully
(Larsson, 1977; Hansen and Jonsson, 1989; Hansen and Quinn, 1998).
These features are essential to the conservation of the species because
a delay in migration of smolts can result in the loss of the smolts'
ability to osmoregulate in the marine environment, a necessary
adaptation for smolt survival.
5. Freshwater and estuary migration sites with sufficiently cool
water temperatures and water flows that coincide with diurnal cues to
stimulate smolt migration. The process of smoltification is triggered
in response to environmental cues. Photoperiod and temperature have the
greatest influence on regulating the smolting process. Increase in day
length is necessary for smolting to occur (Duston and Saunders, 1990).
McCormick et al., (1999) noted that in spite of wide temperature
variations among rivers throughout New England, almost all smolt
migrations begin around the first of May and are nearly complete by the
first week in June. However, the time that it takes for the
smoltification process to be completed appears to be closely related to
water temperature. When water temperatures increase, the smolting
process is advanced, evident by increases in Na+, K+-ATPase activity--
the rate of exchange of sodium (Na+) and potassium (K+) ions across the
gill membrane or the regulation of salts that allow smolts to survive
in the marine environment (Johnston and Saunders, 1981; McCormick et
al., 1998; McCormick et al., 2002). In addition to playing a role in
regulating the smoltification process, high temperatures also are
responsible for the cessation of Na+, K+-ATPase activity of smolts,
limiting their ability to excrete excess salts when they enter the
marine environment. McCormick et al. (1999) found significant decreases
in Na+, K+-ATPase activity in smolts at the end of the migration
period, but also found that smolts in warmer rivers had reductions in
Na+, K+-ATPase activity earlier than smolts found in colder rivers.
Hence any delay of migration has the potential to reduce survival of
out-migrating smolts because as water temperatures rise over the spring
migration period, smolts experience a reduction in Na+, K+-ATPase,
reducing their ability to regulate salts as they enter the marine
environment. Though flow does not appear to play a role in the
smoltification process, flow does appear to play an important role in
stimulating a migration response (Whalen et al.,, 1999b). Whalen et al.
(1999b) recorded that there was no apparent downstream migration
following a high flow event in mid-to late April in a Vermont river
when water temperatures were between 3 and 6 [deg]C; however, when
water temperatures reached 8 to 12 [deg]C, small peaks in discharge
resulted in corresponding increases in smolt migration. These features
are essential
[[Page 29322]]
to the conservation of the species because elevated water temperatures
that occur in advance of a smolt's diurnal cues to migrate can result
in a decreased migration window in which smolts are capable of
transitioning into the marine environment. A decrease in the migration
window has the potential to reduce survival of smolts especially for
fish with greater migration distances.
6. Freshwater migration sites with water chemistry needed to
support sea water adaptation of smolts. The effects of acidity on
Atlantic salmon have been well documented. The effects of acidity cause
ionoregulatory failure in Atlantic salmon smolts while in freshwater
(Rosseland and Skogheim, 1984; Farmer et al., 1989; Staurnes et al.,
1993, 1996). This inhibition of gill Na+, K+-ATPase activity can cause
the loss of plasma ions and may result in reduced seawater tolerance
(Rosseland and Skogheim, 1984; Farmer et al., 1989; Staurnes et al.,
1993, 1996) and increased cardiovascular disturbances (Milligan and
Wood, 1982; Brodeur et al., 1999). Parr undergoing parr/smolt
transformation become more sensitive to acidic water, hence, water
chemistry that is not normally regarded as toxic to other salmonids may
be toxic to smolts (Staurnes et al., 1993, 1995). This is true even in
rivers that are not chronically acidic and not normally considered as
being in danger of acidification (Staurnes et al., 1993, 1995).
Atlantic salmon smolts are most vulnerable to low pH in combination
with elevated levels of monomeric labile species of aluminum (aluminum
capable of being absorbed across the gill membrane) and low calcium
(Rosseland and Skogheim, 1984; Rosseland et al., 1990; Kroglund and
Staurnes, 1999). These features are essential to the conservation of
the species because Atlantic salmon smolts exposed to acidic waters can
lose sea water tolerance, which can result in direct mortality or
indirect mortality from altered behavior and fitness.
Special Management Considerations or Protections
Specific areas within the geographic area occupied by a species may
be designated as critical habitat only if they contain physical or
biological features essential to the conservation of the species that
``may require special management considerations or protection.'' It is
the features and not the specific areas that are the focus of the ``may
require'' provision. Use of the disjunctive ``or'' also suggests the
need to give distinct meaning to the terms ``special management
considerations'' and ``protection.'' ``Protection'' suggests actions to
address a negative impact. ``Management'' seems broader than
protection, and could include active manipulation of the feature or
aspects of the environment. The ESA regulations at 50 CFR 424.02(j)
further define special management considerations as ``any methods or
procedures useful in protecting physical and biological features of the
environment for the conservation of listed species.'' The term ``may''
was the focus of two Federal district courts that ruled that features
can meet this provision because of either a present requirement for
special management considerations or protection or possible future
requirements (see Center for Biol. Diversity v. Norton, 240 F. Supp. 2d
1090 (D. Ariz. 2003); Cape Hatteras Access Preservation Alliance v.
DOI, 344 F. Supp. 2d 108 (D.D.C. 2004)). The Arizona district court
ruled that the provision cannot be interpreted to mean that features
already covered by an existing management plan must be determined to
require additional special management, because the term additional is
not in the statute. Rather, the court ruled that the existence of
management plans may be evidence that the features in fact require
special management (Center for Biol. Diversity v. Norton, 240 F. Supp.
2d at 1096-1100). The need for special management considerations or
protection need not be immediate, but it is required that the specific
area designated have features which, in the future, may require special
consideration or protection (Cape Hatteras, 344 F. Supp. 2d at 123-
124).
The primary impacts of critical habitat designation result from the
consultation requirements of ESA section 7(a)(2). Federal agencies must
consult with NMFS to ensure that their actions are not likely to result
in the destruction or adverse modification of critical habitat (or
jeopardize the species' continued existence). These impacts are
attributed only to the designation (i.e., are incremental impacts of
the designation) if Federal agencies modify their proposed actions to
ensure they are not likely to destroy or adversely modify the critical
habitat beyond any modifications they would make because of listing and
the requirement to avoid jeopardy. Incremental impacts of designation
include State and local protections that may be triggered as a result
of designation and education of the public about the importance of an
area for species conservation. When a modification is required due to
impacts both to the species and critical habitat, the impact of the
designation is considered to be co-extensive with ESA listing of the
species. The ESA 4(b)(2) Report (NMFS, 2009b) and Economic Analysis
(IEc, 2009a) describe the impacts in detail. These reports identify and
describe potential future Federal activities that would trigger section
7 consultation requirements because they may affect the essential
physical and biological features.
We identified a number of activities and associated threats that
may affect the PCEs and associated physical and biological features
essential to the conservation of Atlantic salmon within the occupied
range of the GOM DPS. These activities, which include agriculture,
forestry, changing land-use and development, hatcheries and stocking,
roads and road crossings, mining, dams, dredging, and aquaculture have
the potential to reduce the quality and quantity of the PCEs and their
associated physical and biological features. There are other threats to
Atlantic salmon habitat, including acidification of surface waters.
However, we are not able to clearly separate out the specific
activities responsible for acidification, and therefore, are unable to
specifically identify a Federal nexus.
Table 1--Specific Areas Within the Geographic Area Occupied by a Species and the Associated Special Management
Considerations or Protections That May be Required
----------------------------------------------------------------------------------------------------------------
HUC code Watershed name Special management considerations*
----------------------------------------------------------------------------------------------------------------
105000205.................... Machias River............ A F C/L H/S R Da Dr
105000204.................... East Machias River....... A F C/L H/S R M Da Dr
105000208.................... Pleasant River........... A F C/L H/S R M Da Dr
105000201.................... Dennys River............. A F C/L H/S R M Da Dr
105000207.................... Chandler River........... A F C/L H/S R M Da Dr
105000209.................... Narraguagus River........ A F C/L H/S R M Da Dr
105000213.................... Union River Bay.......... A F C/L H/S R M Da Dr Q
[[Page 29323]]
105000203.................... Grand Manan Channel...... A F C/L H/S R M Da Dr Q
105000206.................... Roque Bluffs Coastal..... A F C/L H/S R M Da Dr
105000210.................... Tunk Stream.............. A F C/L H/S R Da Dr
105000212.................... Graham Lake.............. A F C/L H/S R M Da
102000202.................... Grand Lake Matagamon..... A F C/L H/S R Da
102000203.................... East Branch Penobscot A F C/L H/S R
River.
102000204.................... Seboeis River............ A F C/L H/S R Da
102000205.................... East Branch Penobscot A F C/L H/S R Da
River.
102000301.................... West Branch Mattawamkeag A F C/L H/S R M Da
River.
102000302.................... East Branch Mattawamkeag A F C/L H/S R M
River.
102000303.................... Mattawamkeag River....... A F C/L H/S R M
102000305.................... Mattawamkeag River....... A F C/L H/S R M
102000306.................... Molunkus Stream.......... A F C/L H/S R
102000307.................... Mattawamkeag River....... A F C/L H/S R M Da
102000401.................... Piscataquis River........ A F C/L H/S R Da
102000402.................... Piscataquis River........ A F C/L H/S R M Da
102000404.................... Pleasant River........... A F C/L H/S R Da
102000405.................... Seboeis Stream........... A F C/L H/S R Da
102000406.................... Piscataquis River........ A F C/L H/S R M Da
102000501.................... Penobscot River at A F C/L H/S M Da
Mattawamkeag.
102000502.................... Penobscot River at West A F C/L H/S R M Da
Enfield.
102000503.................... Passadumkeag River....... A F C/L H/S R M Da
102000505.................... Sunkhaze Stream.......... A F C/L H/S R
102000506.................... Penobscot River at Orson A F C/L H/S R M
Island.
102000507.................... Birch Stream............. A F C/L H/S R M
102000509.................... Penobscot River at Veazie A F C/L H/S R M Da
Dam.
102000510.................... Kenduskeag Stream........ A F C/L H/S R M Da Dr
102000511.................... Souadabscook Stream...... A F C/L H/S R M Da Dr
102000512.................... Marsh River.............. A F C/L H/S M Da Dr
102000513.................... Penobscot River.......... A F C/L H/S R M Da Dr
105000218.................... Belfast Bay.............. A F C/L H/S R M Da Dr
105000219.................... Ducktrap River........... A F C/L H/S R Da Dr Q
105000301.................... St. George River......... A F C/L H/S R M Da Dr
105000302.................... Medomak River............ A F C/L H/S R M Da Dr
105000305.................... Sheepscot River.......... A F C/L H/S R M Da Dr
103000306.................... Kennebec River at A F C/L H/S R M Da Dr
Waterville Dam.
103000305.................... Sandy River.............. A F C/L H/S R M Da Dr
103000312.................... Kennebec at Merrymeeting A F C/L H/S R M Da Dr
Bay.
105000306.................... Sheepscot Bay............ A F C/L H/S R M Da Dr
105000307.................... Kennebec River Estuary... A F C/L H/S R M Da Dr
104000210.................... Little Androscoggin River A F C/L H/S R M Da Dr
----------------------------------------------------------------------------------------------------------------
* A = Agriculture; F = Forestry; C/L = Changing Land Use; H/S = Hatcheries and Stocking; R = Roads and Road
Crossings; M = Mining; Da = Dams; Dr = Dredging; Q = Aquaculture.
``Specific Areas Outside the Geographical Area Occupied by the Species
* * * Essential to the Conservation of the Species''
Section 3(5)(A)(ii) of the ESA further defines ``critical habitat''
as ``specific areas outside the geographical area occupied by the
species at the time it is listed in accordance with the provisions of
[section 4 of this Act], upon a determination by the Secretary that
such areas are essential for the conservation of the species.'' For the
reasons stated above in the discussion of specific occupied areas, we
delineated the specific areas outside the geographic area occupied by
the species using HUC 10 (level 5) watersheds. To determine whether
these unoccupied areas are essential for the conservation of the
species, we: (1) established recovery criteria to determine when the
species no longer warrants the protections of the ESA (See NMFS, 2009a
(Appendix A)) and the amount of habitat needed to support the recovered
population; and (2) determined the amount of habitat currently occupied
by the species relative to the amount of habitat necessary to achieve
recovery.
In developing recovery criteria, we employed a strategy of
identifying both geographic and population level criteria, that, if met
would protect the DPS from demographic and environmental variation to
the extent in which the population would no longer require protection
under the ESA. Geographic criteria were established to assure that
Atlantic salmon are well distributed across the range of the DPS to
accommodate the metapopulation characteristics of Atlantic salmon.
Atlantic salmon have strong homing characteristics that allow local
breeding populations to become well adapted to a particular
environment. At the same time, limited straying does occur among salmon
populations assuring population diversity through exchange of some
genes between populations, and allowing for population expansion and
recolonization of extirpated populations. To accommodate these life
history characteristics, we established a geographic framework
represented by three Salmon Habitat Recovery Units, or SHRUs, within
the DPS (see NMFS, 2009a (appendix A)) that would, we believe, be
reasonably protective of these life history characteristics and to
ensure that Atlantic salmon are widely distributed across the range of
the DPS to provide protection from demographic and environmental
variation. As explained in more detail in the
[[Page 29324]]
Recovery Criteria (NMFS, 2009a (Appendix A)), we determined that all
three SHRUs must fulfill the criteria described below for the overall
species, the GOM DPS, to be considered recovered.
Criteria
Population level criteria were established to assure that a
recovered population is likely to be sufficiently robust to withstand
natural demographic variability (e.g., periods of low marine survival)
and not likely to become an endangered species in the foreseeable
future. We concluded that a census population of 500 adult returns
(assuming a 1:1 sex ratio) in each SHRU is to be used as a benchmark to
evaluate the population as either recovered or one that requires
protection under the ESA. Franklin (1980) introduced 500 as the
approximate effective population size necessary to retain sufficient
genetic variation and long term persistence of a population.
We have chosen to use a census population (N) (the actual count of
adult returns) of 500 adult returns in each SHRU to serve as a
benchmark to evaluate the population as either recovered or one that
requires protection under the ESA. We used the census number rather
than an effective population size for four reasons: (1) The adult
census through redd counts or trap catches have been used as the
principal indicator of population health in the GOM DPS since Charles
Atkins first started estimating returns in the mid to late 1800s. At
this time, there are not sufficient resources or time to fully assess
the effective population size of the entire Gulf of Maine DPS on an
annual basis, whereas sufficient resources are already in place to
reasonably assess the census population; (2) a census population of 500
adults per SHRU provides a starting point only for establishing
criteria for delisting and does not represent the actual number at
which the population warrants delisting. Other pre-decision criteria
must also be met for delisting as described in the following paragraph:
(3) Atlantic salmon have tremendously complex life histories allowing
for great opportunity for extensive cross generational breeding. This
is because of salmon's iteroparity and because precocious parr, one-sea
winter and multi-sea winter fish can all participate in spawning
activity. Having multi-generational participation in spawning activity
significantly reduces the effective population to census population
ratio, but furthermore, makes determining the actual Ne/N
ratios extremely difficult and highly debatable for the natural
population; (4) Though there has been much debate in the literature
regarding the application of assigning a general number to represent
when populations are sufficiently large enough to maintain genetic
variation (Allendorf and Luikart, 2007; Waples & Yokota, 2007; Reiman &
Allendorf, 2001), the 500 rule introduced by Franklin (1980) has not
been superseded by any other rule and does serve as useful guidance for
indicating when a population may be at risk of losing genetic
variability (Allendorf and Luikart, 2007).
To evaluate recovery of the GOM DPS, we have determined that five
criteria must be met: (1) The adult spawner population of each SHRU
must be 500 or greater in an effort to maintain sufficient genetic
variability within the population for long-term persistence. This is to
be determined or estimated through adults observed at trapping
facilities or redd counts; (2) The GOM DPS must demonstrate self-
sustaining persistence where each SHRU has less than a 50 percent
probability of falling below 500 adult spawners in the next 15 years
based on PVA projections described above. The 50 percent assurance
threshold satisfies the criterion that the population is ``not likely''
to become an endangered species; while 15 years represents the
``foreseeable future'' for which we have determined that we can make
reasonable projections based on past demographic data available to us;
(3) The entire GOM DPS must demonstrate consistent positive population
growth for at least two generations (10 years) before the decision to
delist is made. Ten years of pre-decision data that reflects positive
population trends provides some assurance that recent population
increases are not happenstance but more likely a reflection of
sustainable positive population growth; (4) A recovered GOM DPS must
represent the natural population (i.e., adult returns must originate
from natural reproduction that has occurred in the wild); hatchery
product cannot be counted towards recovery because a population reliant
upon hatchery product for sustainability is indicative of a population
that continues to be at risk; (5) In order to delist the GOM DPS, the
threats identified at the time of listing must be addressed through
regulatory or any other means. These threats are identified in the
factors specified under section 4(a)(1) of the ESA as described in the
2006 Status Review (Fay et al., 2006). Methods to address these threats
will be addressed in a final recovery plan for the expanded GOM DPS.
After determining criteria for delisting, we applied these criteria
to assess the number of adult spawners that would be needed to weather
a downturn in survival as experienced between the years of 1991 and
2006, a period of exceptionally low survival. Using demographic data
for this time period we applied the criteria described above in
conjunction with a PVA to determine how many adults would be required
in each SHRU to weather a similar downturn in survival while having a
greater than 50 percent chance of remaining above 500 adults (see NMFS,
2009a (Appendix B)). This analysis projected that a census population
of 2,000 spawners (1000 male and 1000 female) would be needed in each
of the three SHRUs for the GOM DPS to weather a downturn in survival
such as experienced over the time period from 1991-2006. Based on this
analysis, we conclude that enough habitat is needed in each of the
three SHRUs to support the offspring of these 2,000 adult spawners.
Using an average fecundity per female of 7,200 eggs (Legault, 2004),
and male to female ratio of 1:1, or 1000 females, and a target number
of eggs per one unit of habitat (100m\2\) of 240 (Baum, 1997), we
determined that 30,000 units of habitat are needed across each SHRU
(7,200 eggs x 1000 females/240 eggs = 30,000) to support the offspring
of 2,000 spawners, which represents the quantity of habitat in each
SHRU essential to the conservation of the species (NMFS, 2009a,
Appendix B).
To calculate the existing quantity of habitat across the range of
the DPS both within the currently occupied range and outside the
occupied range, we recognized that both habitat quantity and quality
should be taken into consideration. As a result, we describe the
existing quantity of habitat in terms of functional habitat units. To
generate this estimate of functional habitat units, we considered the
measured quantity of habitat within each HUC 10 as well as the
habitat's quality. The functional habitat units values are a measure of
the quantity of habitat (expressed in units where 1 unit of habitat is
equivalent to 100m \2\ of habitat) within a HUC 10 based on qualitative
factors that limit survivorship of juvenile salmon utilizing the
habitat for spawning, rearing, and migration. The functional habitat
units also account for dams within or below the HUC 10 that would
further reduce survivorship of juvenile salmon within the HUC 10 as the
juvenile salmon migrate towards the marine environment. In HUC 10s that
[[Page 29325]]
are not believed to be limited by qualitative factors or dams, the
functional habitat units would be identical to the measured quantity of
habitat units within the HUC 10. In HUC 10s where quality and dams are
believed to be limiting, the functional habitat units would be less
than the measured habitat units within the HUC 10. The functional
habitat units value is used in the critical habitat evaluation process
to determine the quantity of functioning habitat units within each HUC
10. It also determines the quantity of functioning habitat within the
currently occupied range relative to the amount needed to support the
offspring of 2,000 adult spawners.
Functional habitat unit scores were generated by multiplying the
quantity of spawning and rearing habitat units within each HUC 10 by
the habitat quality score divided by 3 (e.g., 1 = 0.33, 2 = 0.66, and 3
= 1; discussed below under application of ESA section 4(b)(2)) to
represent the relative values in terms of percentages. Using this
approach, a ``1'' habitat quality score has a qualitative value roughly
equivalent to 33 percent of fully functioning habitat; accordingly, a
``2'' habitat quality score is roughly 66 percent of the value of fully
functioning habitat; and a ``3'' score equals 100 percent habitat
quality. The sum of this value was then multiplied by 0.85 raised to
the power of the number of dams both within and downstream of the HUC
10. We consider 0.85 to represent a coarse estimate of passage
efficiency of smolts for FERC dams with turbines (smolt mortality
associated with turbine entrainment is 0.15) based on the findings of
several studies (GNP, 1995; GNP, 1997; Holbrook, 2007; Shepard, 1991c;
Spicer et al., 1995) and, therefore, roughly equivalent to a 15 percent
reduction in functional habitat unit. Mainstem dams without turbines
are not expected to affect smolts the way dams with turbines do, but
can result in direct or indirect mortality from delays in migration and
by increased predation from predators that congregate around dams.
Therefore, dams without turbines were estimated to reduce the
functional capacity of habitat units by 7.5 percent (one half of 15
percent). Dams located at roughly the midpoint of habitat within a HUC
10 watershed were estimated to affect passage of roughly half the fish
in the HUC 10 watershed (e.g., located half way up the HUC 10
watershed) and, therefore, were discounted accordingly (e.g., 7.5
percent for dams with turbines). A dam without turbine located at the
midpoint of habitat within a HUC 10 was estimated to reduce the
functional capacity of habitat units by 3.75 percent. The number of
dams present both within and downstream of the HUC 10 was used as an
exponent to account for cumulative effects of dams. A formulaic
representation of our method is written as:
[GRAPHIC] [TIFF OMITTED] TR19JN09.000
QSRH = quantity of spawning and rearing habitat
BSS = biological suitability score
EDE = estimated downstream passage efficiency of a
typical FERC licensed dam
N = number of dams within and downstream of HUC
Given that computing the functional habitat units was conducted to
estimate the quantity of habitat necessary to support the offspring of
2,000 adult spawners, only downstream passage efficiency was figured
into the equation to calculate functional habitat units. We based our
projected habitat needs on the amount of habitat needed to support the
offspring of 2,000 adult spawners, so our analysis of functional
habitat units was based on those factors that would diminish the
survival of the offspring of the spawners. This rule is not designed to
serve as a recovery plan but rather to ensure that there is sufficient
habitat available to meet recovery goals. A full review of how habitat
quantities and habitat qualities were computed is provided in the
Biological Valuation of Atlantic Salmon Habitat within the GOM DPS
(2008).
Table 2 represents the total amount of measured habitat within the
occupied areas of each SHRU; the quantity of functional habitat units
for each SHRU; amount of habitat excluded; the amount of functional
habitat (represented as functional habitat unit) after exclusion; and
the amount of habitat still needed to support the offspring of 2,000
adult spawners within each SHRU.
Table 2--Total Habitat and Functional Habitat for Occupied Areas Among the Three SHRUs in the GOM DPS
----------------------------------------------------------------------------------------------------------------
Additional
habitat needed
to support the
Total habitat Functional Economic Functional offspring of
SHRU units habitat units exclusion habitat after 2,000 adult
exclusions spawners
(i.e., 30,000
units)
----------------------------------------------------------------------------------------------------------------
Merrymeeting Bay................ 372,639 40,001 0 40,001 0
Penobscot Bay................... 323,740 66,263 3,205 63,058 0
Downeast Coastal................ 61,395 29,111 0 29,111 889
----------------------------------------------------------------------------------------------------------------
In both the Penobscot and Merrymeeting Bay SHRUs, there are more
than 30,000 units of functional habitat within the currently occupied
area to support the offspring of adult spawners. In the Downeast
Coastal SHRU, the amount of functional habitat available to the species
is estimated to be 889 units short of what is needed to support 2,000
adult spawners. Nonetheless, we determined that no areas outside the
occupied geographical area within the Downeast SHRU are essential to
the conservation of the species. This is because the 61,395 total
habitat units in Downeast Maine are predicted to be functioning at the
equivalent of 29,111 units because of the presence of dams or because
of degraded habitat features that reduce the habitat's functional
value. However, through restoration efforts, including enhanced fish
passage and habitat improvement of anthropogenically
[[Page 29326]]
degraded features (including stream crossing improvement projects like
those currently being carried out by Project SHARE in the Downeast
SHRU, for example), a substantial portion of the approximately 32,000
units of non-functioning habitat may be restored to a functioning
state. The Union River, for instance, has over 12,000 units of habitat,
though its functional habitat value, largely because of dams, is
estimated to be equivalent to approximately 4,000 units of habitat. Dam
removal or improved fish passage has the potential to significantly
increase the function of critical habitat in the Union river and,
therefore, the entire Downeast SHRU.
Throughout Maine, there has been substantial effort on behalf of
State and Federal agencies and non-profit organizations in partnership
with landowners and dam owners to restore habitat through a combination
of land and riparian protection efforts, and fish passage enhancement
projects. Project SHARE, the Downeast Salmon Federation, watershed
councils, Trout Unlimited, and the Atlantic Salmon Federation, for
example, have conducted a number of projects designed to protect,
restore, and enhance habitat for Atlantic salmon ranging from the
Kennebec River in south central Maine to the Dennys River in Eastern
Maine. Projects include, but are not limited to: dam removals along the
Kennebec, St. George, Penobscot, and East Machias Rivers; land
protection of riparian corridors along the Machias, Narraguagus,
Dennys, Pleasant, East Machias, Sheescot, Ducktrap rivers and Cove
Brook; surveying and repair of culverts that impair fish passage; and
outreach and education efforts on the benefits of such projects. In
2008 in the Downeast SHRU, Project SHARE replaced 7 culverts with open
bottom arch culverts to improve fish passage, decommissioned 12 road
crossings by removing the culvert or bridge and stabilizing the banks,
and removed 6 remnant log drive dams. The Penobscot River Restoration
Project is another example of cooperative efforts on behalf of Federal
and State agencies, nonprofit organizations, and dam owners. The PRRP
goal is to enhance runs of diadromous fish, including Atlantic salmon,
through the planned removal of two mainstem dams and enhanced fish
passage around several other dams along the Penobscot River. These
cooperative efforts can increase the functional potential of Atlantic
salmon habitat by both increasing habitat availability as well as
increasing habitat quality. Therefore, we do not believe that it is
essential to designate critical habitat outside of the currently
occupied range.
V. Application of ESA Section 4(a)(3)(B)(i) (Military Lands)
The Sikes Act of 1997 (16 U.S.C. 670a-670f, as amended), enacted on
November 18, 1997, required that military installations with
significant natural resources prepare and implement an integrated
natural resource management plan (INRMP) in cooperation with the USFWS
and State fish and wildlife agencies, by November 18, 2001. The purpose
of the INRMP is to provide the basis for carrying out programs and
implementing management strategies to conserve and protect biological
resources on military lands. Because military lands are often protected
from public access, they can include some of the nation's most
significant tracts of natural resources. INRMPs are to provide for the
management of natural resources, including fish, wildlife, and plants;
allow multipurpose uses of resources; and provide public access where
appropriate for those uses, without any net loss in the capability of
an installation to support its military mission.
In 2003, the National Defense Authorization Act (Pub. L. 108-136)
amended the ESA to limit areas eligible for designation as critical
habitat. Specifically, section 4(a)(3)(B)(i) of the ESA (16 U.S.C.
1533(a)(B)(i)) states: ``The Secretary shall not designate as critical
habitat any lands or other geographical areas owned or controlled by
the Department of Defense, or designated for its use, that are subject
to an integrated natural resources management plan prepared under
section 101 of the Sikes Act (16 U.S.C. 67a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.''
Within the specific areas identified as critical habitat for the
Gulf of Maine DPS, there are four military sites; two of these
currently have INRMPs, and the other two have INRMPs being developed.
The Brunswick Naval Air Station has 15,800 acres (63.9 sq km) of real
property spread out among the main station in Brunswick and several
remote stations across Maine. Military installations that are part of
the Brunswick Naval Air Station and that are either partly or entirely
within the area where critical habitat is proposed include the 3,091-
acre (12.5-sq km) main station in Brunswick; a 12,000-acre (48.5-sq km)
Survival, Evasion, Resistance, and Escape (SERE) school near Rangeley,
Maine; and the 396-acre (1.6-sq km) Great Pond Outdoor Adventure Center
located in the town of Great Pond in Hancock County, Maine.
The two military installations within the occupied range of the DPS
with INRMPs are not included in the critical habitat designation in
accordance to 4(a)(3)(B)(i) of the ESA. These installations include:
(1) The 3,091-acre (12.5-sq km) Brunswick Naval Air Station in
Brunswick, Maine, of which 435 acres (1.8 sq km) are within Little
Androscoggin HUC 10 watershed in the Merrymeeting Bay SHRU; and (2) the
Brunswick Naval Air Station's cold weather survival, evasion,
resistance, and escape school, which occupies 12,000 acres (48.5 sq km)
near Rangeley, Maine, of which 5,328 acres (21.6 sq km) are within the
Sandy River HUC 10 watershed in the Merrymeeting Bay SHRU. The INRMPs
at these two locations specifically provide for water quality
protection via erosion and sediment control, wetland protection,
monitoring of non point source pollution, protection of watersheds from
hazardous materials, use of environmentally beneficial landscaping,
monitoring for and responding to forestry management units health
problems and management of forests as shoreline buffers. We determined
that these two INRMPs provide a conservation benefit to the GOM DPS of
Atlantic salmon.
The two sites with military missions that currently do not have
INRMPs and the one non-military facility identified as being essential
to national security are being excluded from critical habitat under
section 4(b)(2) described in the final rule section entitled
Application of ESA Section 4(b)(2).
VI. Application of ESA Section 4(b)(2)
The foregoing discussion described the specific areas within U.S.
jurisdiction that meet the ESA definition of critical habitat because
they contain the physical and biological features essential to the
conservation of Atlantic salmon that may require special management
considerations or protection. Before including areas in a designation,
section 4(b)(2) of the ESA requires the Secretary to consider the
economic impact, impact on national security, and any other relevant
impacts of designation of any particular area. The Secretary has the
discretion to exclude any area from designation if he determines that
the benefits of exclusion (that is, avoiding some or all of the impacts
that would result from designation) outweigh the benefits of
designation based upon the best
[[Page 29327]]
scientific and commercial data available. The Secretary may not exclude
an area from designation if exclusion will result in the extinction of
the species. Because the authority to exclude is discretionary,
exclusion is not required for any particular area under any
circumstances.
The ESA section 4(b)(2) exclusion process is conducted for a
``particular area,'' not for the critical habitat as a whole. This
analysis is, therefore, conducted at a geographic scale that divides
the area under consideration into smaller sub-areas. The statute does
not specify the exact geographic scale of these ``particular areas.''
For the purposes of the analysis of economic impacts, a ``particular
area'' is equivalent to a ``specific area'', defined as a HUC 10 (level
5) standard watershed. There are 48 ``specific areas'' (HUC 10s)
occupied by the species on which are found those physical and
biological features essential to the conservation of the species and
which may require special management considerations or protection.
Where we considered impacts on Indian Tribes, we delineated
particular areas based on land ownership. Where we consider impacts on
national security, particular areas will be delineated based on lands
identified by the military as areas where critical habitat designation
will have an impact on national security. These areas may only account
for a small fraction of a HUC 10 watershed or, in some circumstances,
may span across several HUC 10 watersheds. Factors that were considered
in determining whether the benefits of exclusion outweighed the
benefits of designating the particular areas as critical habitat
include:
(1) The quantity of functional habitat excluded relative to the
quantity of habitat needed to support a recovered population;
(2) The relative biological value of a particular area to the
conservation of the species, measured by the quantity and quality of
the physical and biological features with the particular area;
(3) The anticipated conservation loss that would be accrued through
not designating a particular area based upon the conservation value of
that particular area; and
(4) Whether exclusion of habitat within the particular area, based
upon the best scientific and commercial data, would result in the
extinction of the species concerned.
Assigning Biological Value
To determine the benefits of including an area as critical habitat,
we assigned a Final Biological Value to each HUC 10 watershed based on
the quantity and quality of Atlantic salmon spawning and rearing
habitat and the migratory needs of the species (see NMFS, 2009a). The
Final Biological Value indicates each area's current value to Atlantic
salmon spawning, rearing, and migration activities and is applied in
the ESA section 4(b)(2) exclusion analysis, where it is weighed against
the economic, national security, and other relevant impacts to consider
whether specific areas may be excluded from designation. The final
biological value also aided in determining those areas currently
occupied by the species described earlier in the final rule under
``Identifying the Geographical Area Occupied by the Species and
Specific Areas within the Geographical Area''. The variables used to
develop the Final Biological Value include a combination of habitat
units, habitat quantity, habitat quality, and the value of the HUC 10
to migration of smolts and adults. The final biological value does not
incorporate the use of functional habitat units as described in the
previous section entitled Specific areas outside the geographical area
occupied by the species * * * essential to the conservation of the
species. Functional habitat units were only used to determine whether
areas that contain PCEs outside the currently occupied range should be
designated as critical habitat.
A habitat unit represents 100 m\2\ of spawning and rearing habitat.
A habitat unit is used in North America and Europe to quantify habitat
features most frequently used for spawning and juvenile rearing (e.g.,
riffles and runs). Habitat units for each HUC 10 were calculated using
the GIS based habitat prediction model described earlier in the final
rule under Physical and Biological Features in Freshwater and Estuary
Specific Areas Essential to the Conservation of the Species.
Habitat quantity is the estimate of habitat units generated by the
model and was calculated separately for each HUC 10. The units of
habitat were then binned into four categories for each of the three
SHRUs. A HUC 10 with no habitat was assigned a score of ``0'' and was
considered unoccupied. HUC 10s with the lowest 25 percent of total
units of habitat across the entire SHRU received a ``1'' score, the
middle 50 percent received a ``2'' score, and the upper 25 percent
received a ``3'' score. A ``3'' score represents the highest relative
habitat quantity score. This method resulted in the majority of the
habitat receiving a score of ``2'' representing an average habitat
quantity. Habitat scores outside the middle 50 percent were considered
to have above average habitat quantity or below average habitat
quantity.
Habitat quality scores were assigned to HUC 10s based on
information and input from fisheries biologists working with the Maine
Department of Inland Fisheries and Wildlife, the MDMR, NMFS, and
Kleinschmidt Energy and Water Resource Consultants, who possess
specific knowledge and expertise about the geographic region. For each
of the three SHRUs, a minimum of three biologists with knowledge of and
expertise in the geographic area were asked to independently assign
habitat scores, using a set of scoring criteria developed by fisheries
biologists from NMFS, to HUC 10s based on the presence and quality of
the physical and biological features essential to the conservation of
the species (see NMFS, 2009a). The scoring criteria ranked qualitative
features, including temperature, biological communities, water quality,
and substrate and cover, as being highly suitable (``3''), suitable
(``2''), marginally suitable (``1'') or not suitable (``0'') for
supporting Atlantic salmon spawning, rearing, and migration activities.
A habitat value of ``0'' indicates that one or more factors is limiting
to the point that Atlantic salmon could not reasonably be expected to
survive in those areas; a score of ``1'', ``2'', or ``3'' indicates the
extent to which physical and biological features are limiting, with a
``1'' being most limiting and a ``3'' being not limiting. In HUC 10s
that are and have always been inaccessible due to natural barriers, the
entire HUC 10 was automatically scored as ``0'' and considered not
occupied by the species. Emphasis was placed on identifying whether the
physical and biological features needed for Atlantic salmon spawning
and rearing are present and of what quality the features are. The
overall habitat quality score for each HUC 10 was typically an average
determined by the compilation of scores. In some instances, not all the
biologists were familiar with the HUC 10, so only one or two scores
were provided for some HUCs. In some instances where only two scores
were provided for a HUC 10 watershed and each biologist scored the
watershed differently we relied on a combination of the comments
provided on the score sheets, knowledge from fisheries biologist
working for NMFS that were familiar with these HUCs, or phone
interviews with the commenters to resolve the ``tie'' score. We
resolved ``tie'' scores based on comments when it was clearly apparent,
based on the
[[Page 29328]]
comments, that one biologist had more knowledge of the HUC 10 than the
other biologist who scored the HUC 10.
Final Habitat Values were generated for each HUC 10 by combining
habitat quantity and habitat quality scores within each HUC 10. Scores
were combined by multiplying the two variables together giving scores
of 0, 1, 2, 3, 4, 6, 9. HUC 10s with zero scores received a zero score
for Final Habitat Value. Scores of 1 or 2 were valued as low or ``1''
final habitat value. Scores of 3 or 4 were valued as medium or ``2''
final habitat value, and scores of 6 or 9 were valued as high or ``3''
final habitat value.
A final migration value was generated based on the final habitat
values and the migratory requirements of adults to reach spawning areas
and smolts to reach the marine environment. We determined the final
migration value of a HUC 10 to be equal to the highest final habitat
value upstream from the HUC 10 because we concluded that access to
spawning and rearing habitat was equally as important as the spawning
and rearing habitat itself.
The final biological value for each HUC 10, which is the value used
in weighing economic cost against the biological value of habitat to
salmon, was determined by selecting the higher of the final habitat
value and the final migration score of each HUC 10. This approach
assures the preservation of spawning and rearing habitat as well as
migration habitat (see NMFS, 2009a).
Consideration of Economic Impacts, Impacts to National Security and
Other Relevant Impacts
The impact of designating any particular area as critical habitat
occurs primarily through section 7 of the ESA. Once critical habitat is
designated, section 7(a)(2) requires that Federal agencies ensure any
action they authorize, fund, or carry out (this action is called the
``Federal nexus'') is not likely to result in the destruction or
adverse modification of critical habitat (16 U.S.C. 1536(a)(2)).
Parties involved in section 7 consultations include NMFS or the USFWS,
a Federal action agency, and in some cases, a private entity involved
in the project or land use activity. The Federal action agency serves
as the liaison with NMFS. Under Section 7(a)(2), when a Federal agency
proposes an action that may affect a listed species or its critical
habitat, it must initiate formal consultation with NMFS (or the USFWS,
as applicable) or seek written concurrence from the Service(s) that the
action is not likely to adversely affect listed species or its
designated critical habitat. Formal consultation is a process between
the Services and a Federal agency designed to determine whether a
proposed Federal action is likely to jeopardize the continued existence
of a species or destroy or adversely modify critical habitat, an action
prohibited by the ESA. If the action is likely to destroy or adversely
modify critical habitat, then the Federal agency may be required to
implement a reasonable and prudent alternative (RPA) to the proposed
action to avoid the destruction or adverse modification of critical
habitat. In addition, conservation benefits to the listed species would
result when the consultation process avoids destruction or adverse
modification of its critical habitat through inclusion of RPAs, or
avoids lesser adverse effects to critical habitat that may not rise to
the level of adverse modification through inclusion of harm avoidance
measures.
Outside of the Federal agencies' obligation to consult on actions
that ``may affect'' critical habitat and adopt project modifications to
avoid destruction or adverse modification, the ESA imposes no
requirements or limitations on entities or individuals as a result of a
critical habitat designation.
Economic Impacts
As discussed above, economic impacts of the critical habitat
designation result from implementation of section 7 of the ESA. Section
7(a)(2) requires Federal agencies to consult with NMFS to ensure their
proposed actions are not likely to destroy or adversely modify critical
habitat. These economic impacts may include both administrative and
project modification costs. Economic impacts may also be associated
with the conservation benefits of the designation.
Economic impacts were assessed for each specific HUC 10 area
designated as critical habitat, as well as for unoccupied areas within
the range of the GOM DPS. While we are not designating unoccupied areas
as critical habitat, we evaluated the economic impacts in the event
that we determined in the biological valuation process, or determine as
a result of public comment or subsequently available information, that
some or all of the unoccupied areas were found to be to be essential to
the conservation of the species. For the entire range of the GOM DPS,
most of the economic impact results from impacts to hydropower projects
and development (IEc, 2009a). The estimated economic impact of
designation of the occupied areas before economic exclusions ranges
from approximately $128 million to $152 million.
For the designation of critical habitat for the GOM DPS, economic
exclusions within the 48 occupied HUC 10s throughout the range of the
DPS were considered by weighing biological value determined in the
biological valuation and the economic cost determined in the economic
analysis. As described earlier, the biological values were assigned a
score of 1, 2, or 3, with a ``1'' being of lowest biological value and
a ``3'' being of highest biological value. Areas could also be assigned
a biological value of ``0'' if the physical and biological features in
those areas were so degraded that they were not considered essential to
the conservation of salmon. Areas assigned a ``0'' score were not
included in the economic exclusion analysis. As stated above, we
consider these areas to be unoccupied, and we determined that no
unoccupied areas were essential to the conservation of the GOM DPS.
To compare economic cost with biological value, we used the range
of monetized values provided in the economic analysis binned into three
categories, with a score of ``1'' representing low economic cost and a
score of ``3'' representing high economic cost. These categories
illustrate economic costs over the range of the GOM DPS. The high,
medium, and low scores assigned to economic costs were then used to
weigh economic cost against the corresponding biological value (also
scored as high, medium, or low) of each HUC 10. The binning process was
designed to describe a range of monetized values in qualitative terms
that could be directly compared with the qualitative assessment of the
physical and biological habitat features essential to the conservation
of the species. The binning was conducted so that the lowest 25 percent
of the total economic costs represent costs that were below average.
Low economic costs were assigned a score of ``1,'' representing a cost
ranging from $71,000 to $388,000. The middle 50 percent represents the
average cost across all HUCs containing critical habitat and received a
score of ``2,'' with economic cost ranging from $388,001 to $3,420,000.
The upper 25 percent represents those costs that were above average or
high and received a score of ``3,'' with economic cost ranging from
$3,420,001 to $27,900,000. We binned the economic costs using the same
procedures that we used to bin habitat quantity within each HUC 10,
with the lower and upper 25 percent of habitat representing those areas
as being either above average or below average.
These dollar thresholds do not represent an objective judgment that
[[Page 29329]]
low-value areas are worth no more than $388,000, medium-value areas are
worth no more than $3,420,000, or high value areas are worth no more
than $27,900,000. Under the ESA, we are to weigh dissimilar impacts
given limited time and information. The statute emphasizes that the
decision to exclude is discretionary. Thus, the economic impact level
at which the economic benefits of exclusion outweigh the conservation
benefits of designation is a matter of discretion and depends on the
policy context. For critical habitat, the ESA directs us to consider
exclusions to avoid high economic impacts, but also requires that the
areas designated as critical habitat are sufficient to support the
conservation of the species and to avoid extinction. In this policy
context, we selected dollar thresholds representing the levels at which
we believe the economic impact associated with a specific area would
outweigh the conservation benefits of designating that area.
Given the low abundance and endangered status of Atlantic salmon,
we exercise our discretion to consider exclusion of specific areas
based on three decision rules: (1) Specific areas with a biological
value of medium (``2'') or high (``3'') score were not eligible for
exclusion regardless of the level of economic impact, because of the
endangered status of Atlantic salmon; (2) specific areas with a low
biological value (``1'') were excluded if the economic costs were
greater than $388,000 (economic score of ``2'' or ``3''); and (3)
specific areas were not considered for exclusion, including those areas
having a low biological value (``1''), if the area had no dams both
within it or below it, given that these areas are not subject to the
deleterious effects that dams have on migration of adults and smolts
(GNP, 1995; GNP, 1997; Holbrook, 2007; Shepard, 1991c; Spicer et al.,
1995).
These decision rules: (1) Ensure that enough occupied habitat
receives the protections of critical habitat to meet our conservation
objectives, in this case, 30,000 units of habitat per SHRU; (2) ensure
that all habitat that has average (2 score) or better biological value
receives the protections of critical habitat and is available to be
used for the conservation and recovery of the species; and (3) given
that dams have been identified as one of the greatest impediments to
salmon recovery (NRC, 2004; Fay et al., 2006), ensure that occupied
areas without dams receive the protections of critical habitat.
If we excluded all areas where economic costs were higher than
biological value, then the Downeast Coastal SHRU would be 3,840 units
short of the 30,000 units needed to meet our conservation objectives.
Habitat that is excluded for economic impact reasons offers no
protections to those features that are essential to the conservation of
Atlantic salmon. In contrast, tribal lands and military lands excluded
from the Downeast Coastal SHRU were excluded because of ongoing
conservation efforts being carried out by the Tribe or natural resource
plans that are in place or in development by the military that provide
protections to Atlantic salmon habitat.
We believe that all habitat with a biological value of ``2'' or
greater is essential to the recovery efforts of Atlantic salmon. In the
Gulf of Maine, of the 105 HUC 10 watersheds that we analyzed for
critical habitat, we determined that 86 HUC 10s were historically
accessible to Atlantic salmon. Of those 86 historic watersheds, only 48
of those HUC 10 watersheds are currently occupied by Atlantic salmon
and provide the best opportunity for the agencies to implement on the
ground recovery efforts through stocking programs and habitat
restoration and enhancement efforts. Of the 48 occupied HUC 10
watersheds, 32 of these watersheds are considered to have average
(``2'' score) or better biological value. These 32 remaining watersheds
provide the best opportunity for managers to carry out restoration
efforts, and provide the best potential for recovery of Atlantic salmon
across the DPS.
We believe that protection of specific areas without dams is
imperative to salmon recovery. The fact that the National Research
Council (NRC, 2004) and the Atlantic Salmon Status Review (Fay et al.,
2006) both emphasize that dams are one of the greatest impediments to
salmon recovery in the State of Maine underscores the importance of
specific areas that are free of dams, even if these specific areas have
relatively low biological value. Even highly effective passage
facilities cause Atlantic salmon mortality. Passage inefficiency and
delays associated with dams occur at biologically significant levels,
resulting in incremental losses of pre-spawn adults, smolts, and kelts
(a life stage after Atlantic salmon spawn) (See the final rule
published by NMFS and the USFWS in today's Federal Register (see
Endangered and Threatened Species; Determination of Endangered Status
for the Gulf of Maine Distinct Population Segment of Atlantic Salmon)).
Dams can delay migration of smolts, increasing predation risk (Nettles
and Gloss, 1987) or cause Atlantic salmon smolts to miss the migration
window in which smolts are physiologically capable of transitioning
from the freshwater environment to the marine environment (Whalen et
al., 1999; McCormick et al., 1999). Studies in the Columbia River
system have shown that fish generally take longer to pass a dam on a
second attempt after fallback compared to the first (Bjornn et al.,
1999). Dams can also cause direct injury to downstream migrating
Atlantic salmon smolts, which can be a result of pressure changes
during turbine entrainment or direct contact with the turbines (Cada,
2000). Dams are known to typically injure or kill between 10 and 30
percent of all fish entrained at turbines (EPRI, 1992). With rivers
containing multiple hydropower dams, these cumulative losses could
compromise entire year classes of Atlantic salmon.
With at least 116 dams in the Penobscot watershed (FERC, 1997), 18
of which currently generate electricity; 73 dams in the Kennebec
watershed, 26 of which are licensed hydropower facilities and storage
dams (MSPO, 1993); and 85 dams in the Androscoggin watershed, 45 of
which are hydroelectric facilities, there are very few areas remaining
that are free of dams. In fact, of the six stocks of Atlantic salmon
that make up the genetic line of the Atlantic salmon conservation
hatchery program, five of those stocks come from rivers that currently
do not have hydroelectric dams, and four of those stocks originate from
rivers where their mainstems below the headwaters are free of dams. The
areas that are currently free of dams provide the best opportunity for
maintaining the existing genetic line of Atlantic salmon, and
rebuilding the Atlantic salmon population either through recolonization
that occurs naturally through straying or through managed stocking
programs.
We propose to exclude three particular areas (HUC 10s) in the
Penobscot Bay SHRU due to economic impact, out of a total of 48
occupied HUC 10s within the range of the GOM DPS. Areas excluded from
critical habitat for reasons of economics include approximately 1,198
km of river, stream, and estuary habitat and 99 sq km of lakes in all
of Belfast Bay (HUC 105000218), Passadumkeag River (HUC 102000503), and
Molunkus Stream (HUC 102000306). The combined economic impact of the
designation in those particular areas was estimated to be $11,600,000
to $12,600,000 before they were considered for exclusion. The estimated
economic impact for critical habitat following exclusions ranges from
[[Page 29330]]
approximately $117 million to $140 million. The estimated economic
impacts of designating critical habitat for each SHRU are in Table 3.
Table 3--Summary of Economic Impact Following Exclusions for Occupied
HUC 10 by SHRU in the GOM DPS
------------------------------------------------------------------------
SHRU Low estimate High estimate
------------------------------------------------------------------------
Downeast Coastal.................. $9,710,000 $12,700,000
Penobscot Bay..................... 23,800,000 28,700,000
Merrymeeting Bay.................. 83,400,000 98,100,000
-------------------------------------
Total......................... 116,910,000.00 139,500,000.00
------------------------------------------------------------------------
National Security and Other Relevant Impacts in Relation to Military
Interests
Section 4(b)(2) of the ESA states that the Secretary may exclude
any area from critical habitat if he determines that the benefits of
such exclusion outweigh the benefits of specifying such area as part of
the critical habitat, unless he determines, based on the best
scientific and commercial data available, that the failure to designate
such areas as critical habitat will result in the extinction of the
species concerned (16 U.S.C. 1533(b)(2)). We are excluding the two
sites with military missions without INRMPs from critical habitat
designation under section 4(b)(2) of the ESA as the Secretary has
determined that the benefits of exclusion of these areas outweigh the
benefits of inclusion. NAS Brunswick OAC supports the naval aviation
activities of NAS Brunswick, and the NCTAMS provides communications to
the fleet in the Atlantic Ocean and the Mediterranean Sea. The
consultations and project modifications required by designation of
these areas as critical habitat would impact the military and national
security missions of these facilities. In addition, upon the completion
of the INRMPs, any final rule designating these areas as critical
habitat would need to be revised to remove these areas from the
designation in accordance with section 4(a)(3)(B)(i) of the ESA. The
Navy has agreed to work cooperatively with NMFS in the development of
these INRMPs to assure that the Navy's activities are reasonably
protective of Atlantic salmon habitat (Letter to NMFS from the Office
of the Chief of Navy Operations (Ser N4/8u156068), December 2, 2008).
Before including areas in a designation, section 4(b)(2) of the ESA
requires the Secretary to consider the impact on national security of
designation of any particular area as critical habitat. Bath Iron Works
(BIW) located in Bath, Maine has also been excluded from designation
for reasons of national security as advised by the Navy. The Secretary
has concluded that the benefits of exclusion of these areas outweigh
the benefits of inclusion as critical habitat. BIW is a premier ship-
building facility that provides the design, building, and support of
complex navy warships, including the AEGIS Class Destroyers. BIW has
been building and servicing the U.S. warships for over 120 years, and
their activities are essential to the military mission for the
construction, maintenance, and modernization of Navy surface ships.
These activities have been identified by the Navy as inherent to
national security, whereby, without BIW's ability to construct and test
current and future classes of surface ships, mission readiness and U.S.
national security is at risk. The consultations and project
modifications required by designation of these areas as critical
habitat would impact the military and national security functions of
these facilities. The areas excluded from designation include the
Kennebec River from the south side of the U.S. Route 1 bridge over the
Kennebec River down river to 50 feet below the south side of BIWs dry
dock, but does not include any portion of Hanson Bay or the
thoroughfare between Hanson Bay and the Kennebec River. The specific
area excluded from designation lies within a box between four points
with the following coordinates: Point 1: N43 54'39.8'', W069 48'43.5'';
Point 2: N43 54'40'', W069 48'17.8''; Point 3: N43 54'0.0'', W069
48'47; Point 4: N43 54'0.0'', W069 48'28''.
Other Relevant Impacts: Tribal Lands
The Penobscot Indian Nation and the Passamaquoddy Tribe own and
conduct activities on lands within the range of the GOM DPS. Activities
may include agriculture; residential, commercial, or industrial
development; in-stream construction projects; silviculture; water
quality monitoring; hunting and fishing; and other uses. Some of these
activities may be affected by the designation of critical habitat for
the GOM DPS of Atlantic salmon.
Secretarial Order 3206 recognizes that Tribes have governmental
authority and the desire to protect and manage their resources in the
manner that is most beneficial to them. Pursuant to the Secretarial
Order, and consistent with the Federal government's trust
responsibilities, the Services must consult with the affected Indian
Tribes when considering the designation of critical habitat in areas
that may impact tribal trust resources, tribally-owned fee lands, or
the exercise of tribal rights. Critical habitat in such areas, unless
determined to be essential to conserve a species, may not be
designated.
The Indian lands specifically excluded are those defined in
Secretarial Order 3206 and include: (1) Lands held in trust by the
United States for the benefit of any Indian tribe; (2) lands 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. Not excluded from designation are tribal
lands held by the Penobscot Tribe which specifically requested that
their land not be excluded from designation emphasizing the importance
of their lands as critical habitat for Atlantic salmon.
The Penobscot Indian Nation and the Passamaquoddy Tribe own and
conduct activities on approximately 182,000 acres (736.5 sq km) of land
throughout the Penobscot, Androscoggin, Kennebec, and Downeast Coastal
Basins. Both tribes that own lands within the GOM DPS have actively
pursued or participated in activities to further promote the health and
continued existence of Atlantic salmon and their habitats. The
Penobscot tribe has developed and maintained its own water quality
standards that state ``it is the official policy of the Penobscot
Nation that all waters of the Tribe shall be of sufficient quality to
support the ancient and historical traditional and
[[Page 29331]]
customary uses of such tribal waters by members of the Penobscot
Nation.'' The Tribe is also currently participating in the Penobscot
River Restoration Project that has the intended goal of restoring 11
species of diadromous fish, including Atlantic salmon. The
Passamaquoddy Tribe has continued to maintain efforts to balance
agricultural practices with natural resources. In a tract of Tribal
land in Township 19, which accounts for approximately 12 km of the 27.8
km of rivers and streams on Passamaquoddy land that contain physical
and biological features essential to salmon, the Tribe has established
an ordinance to govern its water withdrawals for these lands. This
ordinance states ``it is important to the Tribe that its water
withdrawals at T. 19 do not adversely affect the Atlantic salmon in any
of its life stages, or its habitat,'' and restricts water withdrawals
to avoid adverse impact on the Atlantic salmon.
Within the occupied range designated as critical habitat, the
Tribes own approximately 65,000 acres (263 sq km) of land within 16 HUC
10 watersheds. NMFS has determined that the rivers, streams, lakes, and
estuaries of 9,571 acres (38.7 sq km) of tribal land within the areas
occupied by the GOM DPS be excluded from critical habitat designation
based on the principles of the Secretarial Order discussed above. Per
request of the Penobscot Nation, 55,180 acres (223 sq km) of the
Penobscot Nation lands are included as critical habitat.
Determine Whether Exclusion Will Result in Extinction of the Species
Section 4(b)(2) states that particular areas shall not be excluded
from critical habitat if the exclusion will result in extinction of the
species. Our decision to only propose for exclusion particular areas
based on economic impacts that had low biological value, unless dams
were absent from the particular area, led to exclusions only in the
Penobscot SHRU. No economic exclusions are in the Downeast Coastal or
Merrymeeting Bay SHRUs. Given that exclusions based on economic impacts
within the Penobscot SHRU were only made in areas considered to have
little biological value to Atlantic salmon, those exclusions are not
considered to jeopardize the species' continued existence because those
areas do not diminish the functional habitat unit below what is needed
to support a recovered GOM DPS.
Even though 156 units of habitat on tribal and military lands in
the Downeast Coastal SHRU are being excluded from critical habitat, we
do not believe that exclusions of these lands will reduce the
conservation value of Atlantic salmon habitat. We do not believe that
exclusion of Passamaquoddy tribal lands, including their lands in the
Downeast Coastal SHRU, will reduce the conservation value or functional
habitat unit of Atlantic salmon habitat within those particular areas,
given the ongoing cooperative efforts between the Tribe and the
agencies. We do not believe that excluding the two military
installations that contain critical habitat in the Downeast Coastal
SHRU from the critical habitat designation is likely to result in the
extinction of the species.
VII. Effects of Critical Habitat Designation
ESA Section 7 Consultation
The cost of specifying any particular area as critical habitat
occurs primarily through section 7 of the ESA. Once critical habitat is
designated, section 7(a)(2) requires that Federal agencies ensure any
action they authorize, fund or carry out (this action is called the
``Federal nexus'') is not likely to result in the destruction or
adverse modification of critical habitat (16 U.S.C. 1536(a)(2)).
Parties involved in section 7 consultations include NMFS or the USFWS,
a Federal action agency, and in some cases, a private entity involved
in the project or land use activity. The Federal action agency serves
as the liaison with NMFS. Under Section 7(a)(2), when a Federal agency
proposes an action that may affect a listed species or its critical
habitat, then they must initiate formal consultation with NMFS (or the
USFWS, as applicable) or seek written concurrence from the Services
that the action is not likely to adversely affect listed species or its
designated critical habitat. Formal consultation is a process between
the Services and a Federal agency designed to determine whether a
proposed Federal action is likely to jeopardize the continued existence
of a species or destroy or adversely modify critical habitat, an action
prohibited by the ESA. If the action is likely to destroy or adversely
modify critical habitat, then the Federal agency may be required to
implement a reasonable and prudent alternative (RPA) to the proposed
action to avoid the destruction or adverse modification of critical
habitat. Harm avoidance measures may also be implemented to avoid
lesser adverse effects to critical habitat that may not rise to the
level of adverse modification. Outside of the Federal agencies'
obligation to consult with respect to actions that may affect critical
habitat and adopt project modifications to avoid destruction or adverse
modification, the ESA imposes no requirements or limitations on
entities or individuals as result of a critical habitat designation.
The benefits of designation used for the proposed critical habitat
designation for the GOM DPS are the biological values assigned to each
HUC 10 that evaluate the quality and quantity of the physical and
biological features within each HUC 10 and the current potential of
each HUC 10 to support (absent dams) the spawning, rearing, and
migration of the GOM DPS (NMFS, 2009a).
Activities That May Be Affected (Section 4(b)(8))
Section 4(b)(8) of the ESA requires that we describe briefly and
evaluate in any proposed or final regulation to designate critical
habitat, those activities that may destroy or adversely modify such
habitat or that may be affected by such designation. A wide variety of
activities may affect critical habitat and, when carried out, funded,
or authorized by a Federal agency, will require an ESA section 7
consultation. Such activities (detailed in IEc, 2009a) include, but are
not limited to agriculture, transportation, development and hydropower.
We believe this critical habitat designation will provide Federal
agencies, private entities, and the public with clear notification of
critical habitat for Atlantic salmon and the boundaries of such
habitat. This designation will allow Federal agencies and others to
evaluate the potential effects of their activities on critical habitat
to determine if ESA section 7 consultation with NMFS is needed given
the specific definition of physical and biological features.
VIII. Classification
Regulatory Planning and Review
This final rule has been determined to be significant for purposes
of Executive Order (E.O.) 12866. We have integrated the regulatory
principles of the E.O. into the development of this final rule to the
extent consistent with the mandatory duty to designate critical
habitat, as defined in the ESA.
Coastal Zone Management Act (15 U.S.C. 1451 et seq.) We have
determined that this action is consistent to the maximum extent
practicable with the enforceable policies of the approved coastal
management program of the State of Maine. The determination has been
submitted for review by the responsible State agency under section 307
of the Coastal Zone Management Act (16 U.S.C. 1451 et seq.).
[[Page 29332]]
Regulatory Flexibility Act (U.S.C. 601 et seq.)
We prepared a final regulatory flexibility analysis (FRFA) pursuant
to section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.) (IEc, 2009b). This FRFA only analyzes the impacts to those areas
where critical habitat is designated and is available at the location
identified in the ADDRESSES section. The FRFA is summarized below, as
required by section 603 of the RFA. The FRFA describes the economic
impact this final rule would have on small entities. A description of
the action, why it is being considered, and the objectives of and legal
basis for this action are contained in the preamble of this rule and
are not repeated here. A summary of the FRFA follows:
After reviewing the land use activities evaluated in the economic
analysis conducted for this action, the types of small entities that
may be impacted include those entities involved in hydropower,
agriculture, and development activities. The total number of affected
small entities includes up to 11 dam owners and 62 farms. There are an
unknown number of small entities involved in development projects.
Because impacts are calculated on a per acre basis and not for specific
projects, it is not possible to identify specific landowners.
This action does not contain any new collection-of-information,
reporting, recordkeeping, or other compliance requirements beyond the
potential economic impacts described below and any reporting
requirements associated with reporting on the progress and success of
implementing project modifications, which do not require special skills
to satisfy. Third party applicants or permittees may also incur costs
associated with participating in the administrative process of
consultation along with the permitting Federal agency.
No Federal laws or regulations duplicate or conflict with the final
rule. Existing Federal laws and regulations overlap with the final rule
only to the extent that they provide protection to marine natural
resources generally. However, no existing laws or regulations
specifically prohibit destruction or adverse modification of critical
habitat for, and focus on the recovery of, Atlantic salmon.
In conducting the FRFA, we considered three regulatory alternatives
and the impacts of these alternatives. Alternative 1 was designating
the bankfull width of rivers and perennial streams throughout the 105-
HUC 10 study area as critical habitat for Atlantic salmon. Only 48 of
these HUCs, however, are currently occupied by the salmon and contain
the physical and biological features essential to the conservation of
the species. We determined that the 57 HUCs that are currently
unoccupied are not essential to the conservation of the species.
Accordingly, we rejected this alternative. Alternative 2 was to
designate as critical habitat the bankfull width of rivers and
perennial streams within the 48 occupied HUCs. We rejected this
alternative because we determined that, in certain cases, the benefits
of excluding particular areas outweigh the benefits of including them
in the designation, and excluding these areas will not result in
extinction of the species. Alternative 3 limits the designation of
critical habitat to the bankfull width of rivers and perennial streams
within 45 of the 48 occupied HUCs. This is the alternative that we have
accepted and the alternative described in the FRFA.
The FRFA estimates for alternative 3, that approximately 62 small
farms (average annual receipts of less than $750,000) may be affected
by critical habitat designation (IEc, 2009b). The average annual
revenue of these farms was estimated at $74,000 (USDA, 2002). The
estimated average losses per small farm are estimated at $6,300 (IEc,
2009b).
Impacts to development are based on impacts to landowners
associated with constraints on development within a 30-meter buffer of
streams within the study area. The present value of impacts to all
development projects is estimated at $94.6 million to $127 million.
Section 3 of the Small Business Act defines small business as any firm
that is independently owned and operated and is not dominant in its
field of operation. The U.S. Small Business Administration (SBA) has
developed size standards to carry out the purposes of the Small
Business Act, and those size standards can be found in 13 CFR 121.201.
Size standards are expressed either in number of employees or annual
receipts in millions of dollars depending on the specific type of
business. Because impacts to development projects are determined on a
per acre basis and not by the specific type of development project, we
were unable to determine who the specific affected landowners are. In
some cases, some portion of these landowners are likely individuals and
not businesses, and, therefore, not relevant to the small business
analysis, while it is also likely that some of these landowners are
businesses, including small businesses, that may be impacted by
constraints.
Land developers and subdividers are one type of small business that
may be affected by constraints stemming from the final critical habitat
designation (IEc, 2009b). The available data suggest that 188 small
land developers operate in counties that overlap the 45 HUCs containing
critical habitat, accounting for 97 percent of the subdividers in the
region (IEc, 2009b). The information available, however, is
insufficient to estimate the impacts on these entities or to identify
other potentially affected landowners (IEc, 2009b).
Impacts to hydropower were estimated for small hydropower producers
identified by the Small Business Administration as those producing less
than four billion kilowatt-hours annually and are likely to experience
impacts associated with the critical habitat designation. The FRFA
analysis (IEc, 2009b) estimates 11 hydropower producers within the 45
HUCs that contain critical habitat may be affected. The estimated
annualized cost accrued by these dam owners is between $50 to $294,000
(IEc, 2009b).
Critical habitat designation may encourage landowners to develop
Habitat Conservation Plans (HCPs). Under section 10 of the ESA,
landowners seeking an incidental take permit must develop an HCP to
counterbalance the potential harmful effects that an otherwise lawful
activity may have on a species. The purpose of the habitat conservation
planning process is to ensure that the effects of incidental take are
adequately minimized and mitigated. Thus, HCPs are developed to ensure
compliance with section 9 of the ESA and to meet the requirements of
section 10 of the ESA. Neither the FRFA nor the Economic Analysis
forecasts effects associated with the development of HCPs.
Information Quality Act (IQA) (Section 515 of Pub. L. 106-554)
The data and analyses supporting this designation have undergone a
pre-dissemination review and have been determined to be in compliance
with applicable information quality guidelines implementing the
Information Quality Act (IQA) (Section 515 of Pub. L. 106-554).
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review pursuant to the
IQA. The Bulletin 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
[[Page 29333]]
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. To satisfy our
requirements under the OMB Bulletin, we allowed a 90-day public comment
period and held two public hearings (Brewer and Augusta, Maine) where
we gave the public the opportunity to participate in the review of the
proposed critical habitat rule and supporting documents. An independent
peer review of the scientific information that supports the proposal to
designate critical habitat for the GOM DPS of Atlantic salmon was
conducted, and peer review comments were incorporated prior to
dissemination of this rulemaking. Four independent peer reviewers were
solicited to review the proposed critical habitat rule, though all
declined the opportunity to review the document largely due to time
constraints. A 4(b)(2) Report (NMFS, 2009) that supports the
designation of critical habitat for the GOM DPS of Atlantic salmon was
also peer reviewed pursuant to the requirements of the Bulletin and is
available on our Web site ( see ADDRESSES).
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This final rule does not contain a collection-of-information
requirement for purposes of the Paperwork Reduction Act. This final
rule will not impose recordkeeping or reporting requirements on State
or local governments, individuals, businesses, or organizations. An
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act
An environmental analysis as provided for under the National
Environmental Policy Act for critical habitat designations made
pursuant to the ESA is not required. See Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).
Federalism
In accordance with Executive Order 13132 ``Federalism,'' agencies
are required to ensure meaningful and timely input from State and local
officials in the development of regulatory policies that have
federalism implications. In accordance with Department of Commerce
policies, we requested information from, and coordinated development
of, this critical habitat designation with appropriate State resource
agencies in the State of Maine.
Takings
In accordance with E.O. 12630, this final rule does not have
takings implications. A takings implication assessment is not required.
The designation of critical habitat affects only Federal agency
actions. This final rule will not increase or decrease the current
restrictions on private property concerning take of Atlantic salmon.
Critical habitat does not preclude the development of HCPs and issuance
of incidental take permits, and, therefore, landowners within areas
designated as critical habitat will continue to have the opportunity to
use their property in ways consistent with the survival of endangered
Atlantic salmon.
IX. References Cited
A complete list of all references cited in this rule making can be
found on our Web site at http://www.nero.noaa.gov/prot_res/altsalmon/,
and is available upon request from the NMFS Northeast Regional Office
in Gloucester, Massachusetts (see ADDRESSES).
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: June 12, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
0
For the reasons set out in the preamble, 50 CFR part 226 is amended as
set forth below:
PART 226--DESIGNATED CRITICAL HABITAT (AMENDED)
0
1. The authority citation for part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
2. Add Sec. 226.217 to read as follows:
Sec. 226.217 Critical habitat for the Gulf of Maine Distinct
Population Segment of Atlantic Salmon (Salmo salar).
Critical habitat is designated to include all perennial rivers,
streams, and estuaries and lakes connected to the marine environment
within the range of the Gulf of Maine Distinct Population Segment of
Atlantic Salmon (GOM DPS), except for those particular areas within the
range which are specifically excluded. Within the GOM DPS, the primary
constituent elements (PCEs) for Atlantic salmon include sites for
spawning and incubation, sites for juvenile rearing, and sites for
migration. The essential physical and biological features of habitat
are those features that allow Atlantic salmon to successfully use sites
for spawning and rearing and sites for migration. These features
include substrate of suitable size and quality; rivers and streams of
adequate flow, depth, water temperature and water quality; rivers,
streams, lakes and ponds with sufficient space and diverse, abundant
food resources to support growth and survival; waterways that allow for
free migration of both adult and juvenile Atlantic salmon; and diverse
habitat and native fish communities in which salmon interact with while
feeding, migrating, spawning, and resting.
(a) The GOM DPS is divided into three salmon habitat recovery units
(SHRUs) within the range of the GOM DPS: These are the Downeast Coastal
SHRU, the Penobscot Bay SHRU, and the Merrymeeting Bay SHRU. Critical
habitat is being considered only in specific areas currently occupied
by the species. Critical habitat specific areas are identified by
hydrological unit codes (HUC) and counties within the States of Maine.
Hydrological units are those defined by the Department of Interior
(DOI), U.S. Geological Survey (USGS) publication, ``Hydrologic Unit
Maps'' Water Supply Paper (Seaber et al., 1994) and the following DOI,
USGS 1:500,000 scale hydrologic unit map: State of Maine. These
documents are incorporated by reference. The incorporation by reference
was approved by the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. Copies of the USGS publication and
the maps may be obtained from the USGS, Map Sales, Box 25286, Denver,
CO 80225. Copies may be inspected at NMFS, Protected Resources
Division, Office of Protected Resources, 1315 East-West Highway, Silver
Spring, MD 20910, or at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/Federal_register/code_of_Federal_regulations/ibr_locations.html.
(b) Critical habitat is designated in the Maine counties and towns
for the three SHRUs described in paragraphs (b)(1) and (2) of this
section. The textual descriptions of critical habitat for each SHRU are
included in paragraphs (b)(3) through (6) of this section, and these
descriptions are the definitive source for determining the critical
habitat boundaries. A general location map (Figure 1) is provided at
the end of paragraph (b)(2) and is for general guidance purposes only,
and not as a definitive source for determining critical habitat
boundaries.
[[Page 29334]]
(1) Maine counties and towns affected. Critical habitat is
designated for the following SHRUs in the following counties and towns.
(i) Counties and towns partially or entirely within areas
containing critical habitat in the Downeast Coastal SHRU:
----------------------------------------------------------------------------------------------------------------
Sub-basin County Town
----------------------------------------------------------------------------------------------------------------
Coastal Washington Hancock.............. Penobscot.................. Clifton, Eddington, Grand Falls Twp,
Greenfield Twp, Summit Twp.
Hancock.................... Waltham, Bucksport, Dedham, Eastbrook,
Ellsworth, Fletchers Landing Twp,
Franklin, Great Pond, Hancock, Lamoine,
Mariaville, Oqiton Twp, Orland, Osborn,
Trenton Otis, Sullivan, Surry, T10 SD,
T16 MD, T22 MD, T28 MD, T32 MD, T34 MD,
T35 MD, T39 MD, T40 MD, T41 MD, T7 SD,
T9 SD.
Washington................. Addison, Alexander, Baileyville, Baring
Plt, Beddington, Centerville Twp,
Charlotte, Cherryfield, Columbia,
Columbia Falls, Cooper, Crawford,
Cutler, Deblois, Dennysville, Devereaux
Twp, East Machias, Edmunds Twp,
Harrington, Jonesboro, Jonesport, Lubec,
Machias, Machiasport, Marion Twp,
Marshfield, Meddybemps, Milbridge, No 14
Twp, No 21 Twp, Northfield, Princeton,
Roque Bluffs, Sakom Twp, Steuben,
Trescott Twp, Whiting, Whitneyville,
Wesley T18 ED BPP, T18 MD BPP, T19 ED
BPP, T19 MD BPP, T24 MD BPP, T25 MD BPP,
T26 ED BPP, T27 ED BPP, T30 MD BPP, T31
MD BPP, T36 MD BPP, T37 MD BPP, T42 MD
BPP, T43 MD BPP.
----------------------------------------------------------------------------------------------------------------
(ii) Counties and towns partially or entirely within areas
containing critical habitat in the Penobscot Bay SHRU:
------------------------------------------------------------------------
Sub-basin County Town
------------------------------------------------------------------------
Piscataquis................... Penobscot........ T4 Indian Purchase
Twp, Long A Twp,
Seboeis Plt,
Mattamiscontis Twp,
Maxfield, Lagrange,
Charleston, Howland,
T3 R9 NWP, Edinburg,
Hopkins Academy
Grant Twp, Garland.
Piscataquis...... Shawtown Twp, TA R11
WELS, TA R10 WELS,
TB R10 WELS,
Greenville, T7 R9
NWP, Bowdoin College
Grant West Twp, T4
R9 NWP, Ebeemee Twp,
Moosehead Junction
Twp, Lake View Plt,
Brownville, Milo,
Blanchard Twp,
Sebec, Dover-
Foxcroft, Abbot,
Kingsbury Plt,
Parkman, Wellington,
Frenchtown Twp,
Medford,
Sangerville, TB R11
WELS, Katahdin Iron
Works Twp,
Elliottsville Twp,
Shirley, Guilford,
Atkinson, Beaver
Cove, Williamsburg
Twp, Bowdoin College
Grant East Twp,
Barnard Twp, Monson,
Orneville Twp.
Somerset......... Squaretown Twp,
Mayfield Twp,
Brighton Plt, East
Moxie Twp, Bald
Mountain Twp T2 R3.
------------------------------------------------------------------------
East Branch................... Aroostook........ Moro Plt, T7 R5 WELS.
Penobscot........ Mount Chase, East
Millinocket,
Grindstone Twp,
Herseytown Twp,
Medway, Patten,
Soldiertown Twp T2
R7 WELS, Stacyville,
T1 R6 WELS, T2 R8
WELS, T3 R7 WELS, T3
R8 WELS, T4 R7 WELS,
T4 R8 WELS, T5 R7
WELS, T5 R8 WELS, T6
R6 WELS, T6 R7 WELS,
T6 R8 WELS, T7 R6
WELS, T7 R7 WELS, T7
R8 WELS, T8 R6 WELS,
T8 R7 WELS, T8 R8
WELS.
Piscataquis...... Mount Katahdin Twp,
Nesourdnahunk Twp,
Trout Brook Twp, T3
R10 WELS, T4 R10
WELS, T4 R9 WELS, T5
R11 WELS, T5 R9
WELS, T6 R10 WELS,
T6 R11 WELS, T7 R10
WELS, T7 R11 WELS,
T7 R12 WELS, T7 R9
WELS.
------------------------------------------------------------------------
Mattawamkeag.................. Aroostook........ Amity, Bancroft,
Benedicta Twp,
Crystal, Dudley Twp,
Dyer Brook,
Forkstown Twp, Moro
Plt, North Yarmouth
Academy Grant Twp,
Oakfield, Orient,
Reed Plt, Sherman,
Silver Ridge Twp,
Smyrna, Upper
Molunkus Twp,
Webbertown Twp,
Weston, T1 R5 WELS,
T2 R4 WELS, T3 R3
WELS, T3 R4 WELS, T4
R3 WELS, T7 R5 WELS,
TA R2 WELS.
Penobscot........ Carroll Plt, Drew
Plt, Herseytown Plt,
Kingman Twp, Lee,
Lincoln,
Mattawamkeag, Mount
Chase, Patten,
Prentiss Twp T7 R3
NBPP, Springfield,
Stacyville, Webster
Plt, Winn, T1 R6
WELS, T4 R7 WELS, T6
R6 WELS.
Washington....... T8 R3 NBPP, T8 R4
NBPP.
------------------------------------------------------------------------
Penobscot..................... Aroostook........ Benedicta TWP,
Molunkus Twp,
Sherman, T1 R5 WELS.
Hancock.......... Amherst, Blue Hill,
Bucksport, Castine,
Dedham, Great Pond,
Oqiton Twp, Orland,
Penobscot, Surry,
Verona Island, T3
ND, T32 MD, T34 MD,
T35 MD, T39 MD, T40
MD, T41 MD.
[[Page 29335]]
Penobscot........ Alton, Argyle Twp,
Bangor, Brewer,
Burlington, Carmel,
Charleston, Chester,
Clifton, Corinna,
Corinth, Dexter,
Dixmont, Eddington,
Edinburg, Enfield,
Etna, Exeter,
Garland, Glenburn,
Grand Falls Twp,
Hampden, Hermon,
Herseytown Twp,
Holden, Howland,
Hudson, Indian
Island, Kenduskeag,
Lagrange, Lakeville,
Lee, Levant,
Lincoln, Lowell,
Mattamiscontis Twp,
Mattawamkeag,
Maxfield, Medway,
Milford, Newburgh,
Newport, Old Town,
Orono, Orrington,
Passadumkeag,
Plymouth, Seboeis
Plt, Springfield,
Stacyville, Stetson,
Summit Twp, Veazie,
Winn, Woodville T1
R6 WELS, T2 R8 NWP,
T2 R9 NWP, T3 R1
NBPP, T3 R9 NWP, TA
R7 WELS.
Piscataquis...... Medford.
Waldo............ Brooks, Frankfort,
Jackson, Knox,
Monroe, Montville,
Prospect, Searsport,
Stockton Springs,
Swanville,
Thorndike, Waldo,
Winterport.
------------------------------------------------------------------------
Penobscot Bay................. Waldo............ Belfast, Belmont,
Brooks, Frankfort,
Knox, Lincolnville,
Monroe, Montville,
Morrill, Northport,
Searsmont,
Searsport,
Swanville, Waldo.
------------------------------------------------------------------------
(iii) Counties and towns partially or entirely within areas
containing critical habitat in the Merrymeeting Bay SHRU:
------------------------------------------------------------------------
Sub-basin County Town
------------------------------------------------------------------------
Lower Androscoggin............ Androscoggin..... Auburn, Durham,
Greene, Leeds,
Lewiston, Lisbon,
Sabattus, Wales.
Cumberland....... Brunswick, Freeport.
Kennebec......... Litchfield, Monmouth
Sagadahoc........ Bath, Bowdoin,
Bowdoinham,
Richmond, Topsham.
Merrymeeting Bay.............. Androscoggin..... Livermore Falls.
Franklin......... Avon, Carthage,
Chesterville,
Farmington, Freeman
Twp, Industry, Jay,
Madrid Twp, Mount
Abram Twp, New
Sharon, New
Vineyard, Perkins
TWP, Phillips,
Redington Twp, Salem
Twp, Sandy River
Plt, Strong, Temple,
Township 6 North of
Weld, Township E,
Washington Twp,
Weld, Wilton.
Kennebec......... Augusta, Benton,
Chelsea, China,
Clinton,
Farmingdale,
Fayette, Gardiner,
Hallowell,
Manchester, Oakland,
Pittston, Randolph,
Rome, Sidney,
Vassalboro, Vienna,
Waterville, West
Gardiner, Windsor,
Winslow.
Lincoln.......... Alna, Dresden,
Whitefield,
Wiscasset.
Sagadahoc........ Bowdoinham, Perkins
Twp Swan Island,
Richmond, Woolwich.
Somerset......... Anson, Athens,
Bingham, Brighton
Plt, Canaan,
Cornville,
Fairfield, Hartland,
Madison, Mayfield
Twp, Mercer,
Norridgewock,
Pittsfield,
Skowhegan,
Smithfield, Solon,
Starks.
Coastal Drainages East of Cumberland....... Brunswick.
Small Point.
Kennebec......... Albion, Pittston,
Windsor.
Knox............. Appleton, Camdem,
Cushing, Friendship,
Hope, Rockland,
Rockport, Saint
George, South
Thomaston,
Thomaston, Union,
Warren, Washington.
Lincoln.......... Alna, Boothbay,
Boothbay Harbor,
Bremen, Briston,
Dresden, Edgecomb,
Hibberts Gore,
Jefferson,
Newcastle,
Nobleboro,
Somerville,
Southport,
Waldoboro, Westport
Island, Whitefield,
Wiscasset.
Sagadahoc........ Arrowsic, Bath,
Bowdoinham,
Georgetown,
Phippsburg, West
Bath, Woolwich.
Waldo............ Belmont, Freedom,
Liberty,
Lincolnville,
Montville, Morrill,
Palermo, Searsmont.
------------------------------------------------------------------------
(2) Critical habitat boundaries. Critical habitat includes the
stream channels within the designated stream reaches, and includes a
lateral extent as defined by the ordinary high-water line (33 CFR
329.11). In areas where the ordinary high-water line has not been
defined, the lateral extent will be defined by the bankfull elevation.
Bankfull elevation is the level at which water begins to leave the
channel and move into the floodplain and is reached at a discharge
which generally has a recurrence interval of 1 to 2 years on an annual
flood series. Critical habitat in estuaries is defined by the perimeter
of the water body as displayed on standard 1:24,000 scale topographic
maps or the elevation of extreme high water, whichever is greater.
BILLING CODE 2510-22-P
[[Page 29336]]
[GRAPHIC] [TIFF OMITTED] TR19JN09.001
(i) HUC 10 watersheds in the Penobscot Bay SHRU analyzed for
critical habitat, those that meet the criteria for critical habitat,
and those excluded under ESA section 4(b)(2):
[[Page 29337]]
----------------------------------------------------------------------------------------------------------------
Economic (E),
Military (M),
Penobscot Bay SHRU HUC 10 code HUC 10 name Status or Tribal (T)
exclusions
----------------------------------------------------------------------------------------------------------------
1..................... 0102000101 North Branch Penobscot River.
2..................... 0102000102 Seeboomook Lake..............
3..................... 0102000103 WEST Branch Penobscot River
at Chesuncook Lake.
4..................... 0102000104 Caucomgomok Lake.............
5..................... 0102000105 Chesuncook Lake..............
6..................... 0102000106 Nesowadnehunk Stream.........
7..................... 0102000107 Nahamakanta Stream...........
8..................... 0102000108 Jo-Mary Lake.................
9..................... 0102000109 West Branch Penobscot River
(3).
10.................... 0102000110 West Branch Penobscot River
(4).
11.................... 0102000201 Webster Brook................
12.................... 0102000202 Grand Lake Matagamon......... Critical Habitat........
13.................... 0102000203 East Branch Penobscot River Critical Habitat........
(2).
14.................... 0102000204 Seboeis River................ Critical Habitat........
15.................... 0102000205 East Branch Penobscot River Critical Habitat........
(3).
16.................... 0102000301 West Branch Mattawamkeag Critical Habitat........
River.
17.................... 0102000302 East Branch Mattawamkeag Critical Habitat........
River.
18.................... 0102000303 Mattawamkeag River (1)....... Critical Habitat........
19.................... 0102000304 Baskahegan Stream............
20.................... 0102000305 Mattawamkeag River (2)....... Critical Habitat........
21.................... 0102000306 Molunkus Stream.............. Critical Habitat........ E
22.................... 0102000307 Mattawamkeag River (3)....... Critical Habitat........
23.................... 0102000401 Piscataquis River (1)........ Critical Habitat........
24.................... 0102000402 Piscataquis River (3)........ Critical Habitat........
25.................... 0102000403 Sebec River..................
26.................... 0102000404 Pleasant River............... Critical Habitat........
27.................... 0102000405 Seboeis Stream............... Critical Habitat........ T
28.................... 0102000406 Piscataquis River (4)........ Critical Habitat........
29.................... 0102000501 Penobscot River (1) at Critical Habitat........
Mattawamkeag.
30.................... 0102000502 Penobscot River (2) at West Critical Habitat........ T
Enfield.
31.................... 0102000503 Passadumkeag River........... Critical Habitat........ E
32.................... 0102000505 Sunkhaze Stream.............. Critical Habitat........
33.................... 0102000506 Penobscot River (3) at Orson Critical Habitat........
Island.
34.................... 0102000507 Birch Stream................. Critical Habitat........
35.................... 0102000508 Pushaw Stream................
36.................... 0102000509 Penobscot River (4) at Veazie Critical Habitat........
Dam.
37.................... 0102000510 Kenduskeag Stream............ Critical Habitat........
38.................... 0102000511 Souadabscook Stream.......... Critical Habitat........
39.................... 0102000512 Marsh River.................. Critical Habitat........
40.................... 0102000513 Penobscot River (6).......... Critical Habitat........
92.................... 0105000216 Bagaduce River...............
93.................... 0105000217 Stonington Coastal...........
94.................... 0105000218 Belfast Bay.................. Critical Habitat........
105................... 0105000219 Ducktrap River............... Critical Habitat........
103................... 0102000504 Olamon Stream................
95.................... 0105000220 West Penobscot Bay Coastal...
----------------------------------------------------------------------------------------------------------------
(ii) HUC 10 watersheds in the Merrymeeting Bay SHRU analyzed for
critical habitat, those that meet the criteria for critical habitat,
and those excluded under ESA section 4(b)(2):
----------------------------------------------------------------------------------------------------------------
Military (M)
Merrymeeting Bay SHRU HUC 10 code HUC 10 name Status exclusions
----------------------------------------------------------------------------------------------------------------
41.................... 0103000101 South Branch Moose River.....
42.................... 0103000102 Moose River (2) above Attean
Pond.
43.................... 0103000103 Moose River (3) at Long Pond.
44.................... 0103000104 Brassua Lake.................
45.................... 0103000105 Moosehead Lake...............
46.................... 0103000106 Kennebec River (2) above The
Forks.
47.................... 0103000201 North Branch Dead River......
48.................... 0103000202 South Branch Dead River......
49.................... 0103000203 Flagstaff Lake...............
50.................... 0103000204 Dead River...................
51.................... 0103000301 Kennebec River (4) at Wyman
Dam.
52.................... 0103000302 Austin Stream................
53.................... 0103000303 Kennebec River (6)...........
54.................... 0103000304 Carrabassett River...........
55.................... 0103000305 Sandy River.................. Critical Habitat........ M
[[Page 29338]]
56.................... 0103000306 Kennebec River at Waterville Critical Habitat........
Dam.
57.................... 0103000307 Sebasticook River at
Pittsfield.
58.................... 0103000308 Sebasticook River (3) at
Burnham.
59.................... 0103000309 Sebasticook River (4) at
Winslow.
60.................... 0103000310 Messalonskee Stream..........
61.................... 0103000311 Cobbosseecontee Stream.......
62.................... 0103000312 Kennebec River at Critical Habitat........
Merrymeeting Bay.
63.................... 0104000101 Mooselookmeguntic Lake.......
64.................... 0104000102 Umbagog Lake Drainage........
65.................... 0104000103 Aziscohos Lake Drainage......
66.................... 0104000104 Magalloway River.............
67.................... 0104000105 Clear Stream.................
68.................... 0104000106 Middle Androscoggin River....
69.................... 0104000201 Gorham-Shelburne Tributaries.
70.................... 0104000202 Androscoggin River (2) at
Rumford Point.
71.................... 0104000203 Ellis River..................
72.................... 0104000204 Ellis River..................
73.................... 0104000205 Androscoggin River (3) above
Webb River.
74.................... 0104000206 Androscoggin River (4) at
Riley Dam.
75.................... 0104000207 Androscoggin River (5) at
Nezinscot River.
76.................... 0104000208 Nezinscot River..............
77.................... 0104000209 Androscoggin River (6) above
Little Androscoggin River.
78.................... 0104000210 Little Androscoggin River.... Critical Habitat........ M
96.................... 0105000301 St. George River............. Critical Habitat........
97.................... 0105000302 Medomak River................ Critical Habitat........
98.................... 0105000303 Johns Bay....................
99.................... 0105000304 Damariscotta River...........
100................... 0105000305 Sheepscot River.............. Critical Habitat........
101................... 0105000306 Sheepscot Bay................ Critical Habitat........
102................... 0105000307 Kennebec River Estuary....... Critical Habitat........ M
----------------------------------------------------------------------------------------------------------------
(iii) HUC 10 watersheds in the Downeast Coastal SHRU analyzed for
critical habitat, and those that meet the criteria for critical
habitat, and those excluded under ESA section 4(b)(2):
----------------------------------------------------------------------------------------------------------------
Tribal (T)
Downeast SHRU HUC 10 code HUC 10 name Status exclusions
----------------------------------------------------------------------------------------------------------------
79.................... 0105000201 Dennys River................. Critical Habitat........
80.................... 0105000203 Grand Manan Channel.......... Critical Habitat........
81.................... 0105000204 East Machias River........... Critical Habitat........ T
82.................... 0105000205 Machias River................ Critical Habitat........
83.................... 0105000206 Roque Bluffs Coastal......... Critical Habitat........
84.................... 0105000208 Pleasant River............... Critical Habitat........
85.................... 0105000209 Narraguagus River............ Critical Habitat........
86.................... 0105000210 Tunk Stream.................. Critical Habitat........
87.................... 0105000211 Bois Bubert Coasta...........
88.................... 0105000212 Graham Lake.................. Critical Habitat........
89.................... 0105000213 Union River Bay.............. Critical Habitat........
90.................... 0105000214 Lamoine Coastal..............
91.................... 0105000215 Mt. Desert Coastal...........
104................... 0105000207 Chandler River............... Critical Habitat........
----------------------------------------------------------------------------------------------------------------
(3) Primary constituent elements. Within the GOM DPS, the primary
constituent elements (PCEs) for the conservation of Atlantic salmon
include sites for spawning and incubation, sites for juvenile rearing,
and sites for migration. The physical and biological features of the
habitat that are essential to the conservation of Atlantic salmon are
those features that allow Atlantic salmon to successfully use sites for
spawning and rearing and sites for migration. These features include:
(i) Deep, oxygenated pools and cover (e.g., boulders, woody debris,
vegetation, etc.), near freshwater spawning sites, necessary to support
adult migrants during the summer while they await spawning in the fall;
(ii) Freshwater spawning sites that contain clean, permeable gravel
and cobble substrate with oxygenated water and cool water temperatures
to support spawning activity, egg incubation and larval development;
(iii) Freshwater spawning and rearing sites with clean gravel in
the presence of cool, oxygenated water and diverse substrate to support
emergence, territorial development, and feeding activities of Atlantic
salmon fry;
(iv) Freshwater rearing sites with space to accommodate growth and
survival of Atlantic salmon parr, and population densities needed to
support sustainable populations;
(v) Freshwater rearing sites with a combination of river, stream,
and lake habitats, that accommodate parr's ability to occupy many
niches and to maximize parr production;
[[Page 29339]]
(vi) Freshwater rearing sites with cool, oxygenated water to
support growth and survival of Atlantic salmon parr;
(vii) Freshwater rearing sites with diverse food resources to
support growth and survival of Atlantic salmon parr;
(viii) Freshwater and estuary migratory sites free from physical
and biological barriers that delay or prevent access to spawning
grounds needed to support a recovered population;
(ix) Freshwater and estuary migration sites with abundant, diverse
native fish communities to serve as a protective buffer against
predation;
(x) Freshwater and estuary migration sites free from physical and
biological barriers that delay or prevent emigration of smolts to the
marine environment;
(xi) Freshwater and estuary migration sites with sufficiently cool
water temperatures and water flows that coincide with diurnal cues to
stimulate smolt migration;
(xii) Freshwater migration sites with water chemistry needed to
support sea water adaptation of smolts; and
(xiii) Freshwater and marine sites with diverse, abundant
assemblages of native fish communities to enhance survivorship as
Atlantic salmon smolts emigrating through the estuary.
(4) Exclusion of Indian lands. Critical habitat does not include
occupied habitat areas on Passamaquoddy Tribal Indian lands within the
range of the GOM DPS. Critical habitat does include occupied habitat on
Penobscot Tribal lands within the range of the GOM DPS. The Indian
lands specifically excluded from critical habitat are those defined in
the Secretarial Order 3206, including:
(i) Lands held in trust by the United States for the benefit of any
Indian Tribe;
(ii) Lands held in trust by the United States for the benefit of
any Indian Tribe or individual subject to restrictions by the United
States against alienation;
(iii) Fee lands, either within or outside the reservation
boundaries, owned by the tribal government; and
(iv) Fee lands within the reservation boundaries owned by
individual Indians. We have determined that the rivers, streams, lakes,
and estuaries of 9,571 acres (38.7 sq km) of tribal land within the
areas occupied by the GOM DPS are excluded from critical habitat
designation based on the principles of the Secretarial Order discussed
above. Per request of the Penobscot Nation, 55,180 acres (223 sq km) of
the Penobscot Nation lands are included as critical habitat.
(5) Areas that do not meet the definition of critical habitat under
section 4(a)(3)(B)(i). Critical habitat does not include the following
areas owned or controlled by the Department of Defense, or designated
for its use, that are subject to an integrated natural resources
management plan prepared under section 101 of the Sikes Act (16 U.S.C.
670a). These areas that are not included are:
(i) The 435 acres (1.8 sq km) of the Brunswick Naval Air Station in
Brunswick Maine within the Little Androscoggin HUC 10 watershed in the
Merrymeeting Bay SHRU; and
(ii) The 5,328 acres (21.5 sq km) of the Brunswick Naval Air
Stations cold weather survival, evasion, resistance, and escape school
within the Sandy River HUC 10 watershed in the Merrymeeting Bay SHRU.
(6) Areas excluded under ESA Section 4(b)(2). (i) The 396 acres
(1.6 sq km) of the Great Pond Outdoor Adventure Center in the Graham
Lake HUC 10 watershed in the Downeast Coastal SHRU;
(ii) The 3,000 acres (12.1 sq km) of the Naval Computer and
Telecommunications Area Master Station Atlantic Detachment in the
Roques Bluffs Coastal HUC 10 in the Downeast Coastal SHRU;
(iii) The Bath Iron Works ship building facility that provides the
design, building, and support of complex Navy warships, including AEGIS
Class Destroyers. The excluded area extends from U.S. Route 1 bridge
over the Kennebec River down river to 50 feet below the south side of
BIWs dry dock, but does not include any portion of Hanson Bay or the
thoroughfare between Hanson Bay and the Kennebec River. The specific
area excluded from designation lies within a box between four points
with the following coordinates: Point 1: N43 54'39.8'', W069 48'43.5'';
Point 2: N43 54'40'', W069 48'17.8''; Point 3: N43 54'0.0'', W069
48'47''; Point 4: N43 54'0.0'', W069 48'28'';
(iv) The Belfast Bay HUC 10 Watershed (HUC 105000218);
(v) The Passadumkeag River HUC 10 Watershed (HUC 102000503); and
(vi) The Molunkus Stream HUC 10 Watershed (HUC102000306).
(7) Description of critical habitat. Critical habitat is designated
to include the areas defined in the following hydrological units in the
three SHRUs with the exception of those particular areas specifically
identified:
(i) Downeast Coastal SHRU. Critical habitat area (in sq km), areas
excluded under ESA section 4(b)(2) (in sq km), and exclusion type, by
HUC 10 watersheds:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Critical habitat Excluded areas [type]*
---------------------------------------------------
River, River,
Sub-basin HUC 10 code HUC 10 watershed name stream and Lake (sq. stream and Lake (sq.
estuary km) estuary km)
(km) (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coastal Washington Hancock sub-basin............ 0105000201 Dennys River...................... 218 45
0105000203 Grand Manan Channel............... 641 15.5
0105000204 East Machias River................ 575 70 16 [T] 0.1 [T]
0105000205 Machias River..................... 991 58
0105000206 Roque Bluffs Coastal.............. 321 .9 13(M) .004(M)
0105000207 Chandler River.................... 154 0.1
0105000208 Pleasant River.................... 325 6.5
0105000209 Narraguagus River................. 573 15.5
0105000210 Tunk Stream....................... 117 14
0105000212 Graham Lake....................... 974 121 2.3(M) .2(M)
0105000213 Union River Bay................... 303 18
0105000211 Bois Bubert Coastal...............
0105000214 Lamoine Coastal...................
0105000215 Mt. Desert Coastal................
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal--considered unoccupied at the time of listing.
[[Page 29340]]
(ii) Penobscot Bay SHRU. Critical habitat area (in sq km), areas
excluded under ESA section 4(b)(2) (in sq km), and exclusion type, by
HUC 10 watersheds:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Critical habitat Excluded Areas [Type]*
---------------------------------------------------
River, River,
Sub-basin HUC 10 code HUC 10 watershed name stream and Lake (sq. stream and Lake (sq.
estuary km) estuary km)
(km) (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
East Branch Penobscot sub-basin................. 0102000202 Grand Lake Matagamon.............. 326 30
0102000203 East Branch Penobscot River (2)... 179 3
0102000204 Seboeis River..................... 418 31
0102000205 East Branch Penobscot River (3)... 588 5
0102000201 Webster Brook.....................
West Branch Penobscot sub-basin................. 0102000101 North Branch Penobscot River......
0102000102 Seeboomook Lake...................
0102000103 W. Br. Penobscot R. at Chesuncook.
0102000104 Caucomgomok Lake..................
0102000105 Chesuncook Lake...................
0102000106 Nesowadnehunk Stream..............
0102000107 Nahamakanta Stream................
0102000108 Jo-Mary Lake......................
0102000109 West Branch Penobscot River (3)...
0102000110 West Branch Penobscot River (4)...
Mattawamkeag River sub-basin.................... 0102000301 West Branch Mattawamkeag River.... 657 22
0102000302 East Branch Mattawamkeag River.... 315 12
0102000303 Mattawamkeag River (1)............ 192 0.5
0102000305 Mattawamkeag River (2)............ 451 8
0102000307 Mattawamkeag River (3)............ 226 3
0102000306 Molunkus Stream................... 0 0 438 [E] 11 [E]
0102000304 Baskahegan Stream.................
Piscataquis River sub-basin..................... 0102000401 Piscataquis River (1)............. 762 15
0102000402 Piscataquis River (3)............. 382 6
0102000404 Pleasant River.................... 828 17
0102000405 Seboeis Stream.................... 312 36 8.2 [T] 0.03 [T]
0102000406 Piscataquis River (4)............. 328 30
0102000403 Sebec River.......................
Penobscot River sub-basin....................... 0102000501 Penobscot River (1) at 292 7
Mattawamkeag.
0102000502 Penobscot River (2) at West 551 29 3 [T]
Enfield.
0102000503 Passadumkeag River................ 0 0 583 [E] 79 [E]
0102000505 Sunkhaze Stream................... 177 0.5
0102000506 Penobscot River (3) at Orson 211 0.5
Island.
0102000507 Birch Stream...................... 120 1
0102000509 Penobscot River (4) at Veazie Dam. 225 10
0102000510 Kenduskeag Stream................. 420 1.5
0102000511 Souadabscook Stream............... 341 5.5
0102000512 Marsh River....................... 319 3
0102000513 Penobscot River (6)............... 514 29
0102000504 Olamon Stream.....................
0102000508 Pushaw Stream.....................
Penobscot Bay sub-basin......................... 0105000218 Belfast Bay....................... ........... ........... 177 [E] 9 [E]
0105000219 Ducktrap River.................... 76 4
0105000216 Bagaduce River....................
0105000217 Stonington Coastal................
0105000220 West Penobscot Bay Coastal........
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal--considered unoccupied at the time of listing.
(iii) Merrymeeting Bay SHRU. Critical habitat area (in sq km),
areas excluded under ESA section 4(b)(2) (in sq km), and exclusion
type, by HUC 10 watershed:
[[Page 29341]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Critical habitat Excluded areas [type] *
---------------------------------------------------
River, River,
Sub basin HUC 10 code HUC 10 watershed name stream and Lake (sq. stream and Lake (sq.
estuary km) estuary km)
(km) (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kennebec River above the Forks sub-basin........ 0103000101 South Branch Moose River..........
0103000102 Moose River (2) above Attean Pond.
0103000103 Moose River (3) at Long Pond......
0103000104 Brassua Lake......................
0103000105 Moosehead Lake....................
0103000106 Kennebec River (2) above The Forks
Dead River sub-basin............................ 0103000201 North Branch Dead River...........
0103000202 South Branch Dead River...........
0103000203 Flagstaff Lake....................
0103000204 Dead River........................
Merrymeeting Bay sub-basin...................... 0103000305 Sandy River....................... 1,215 15.8 12 [M] 0.2 [M]
0103000306 Kennebec River at Waterville Dam.. 794 14
0103000312 Kennebec River at Merrymeeting Bay 621 22
0103000310 Messalonskee Stream...............
0103000301 Kennebec River (4) at Wyman Dam...
0103000302 Austin Stream.....................
0103000303 Kennebec River (6)................
0103000304 Carrabassett River................
0103000307 Sebasticook River at Pittsfield...
0103000308 Sebasticook River (3) at Burnham..
0103000309 Sebasticook River (4) at Winslow..
0103000311 Cobbosseecontee Stream............
Upper Androscoggin sub-basin.................... 0104000101 Mooselookmeguntic Lake............
0104000102 Umbagog Lake Drainage.............
0104000103 Aziscohos Lake Drainage...........
0104000104 Magalloway River..................
0104000105 Clear Stream......................
0104000106 Middle Androscoggin River.........
Lower Androscoggin sub-basin.................... 0104000210 Little Androscoggin River......... 549 10.5 1 [M]
0104000201 Gorham-Shelburne Tributaries......
0104000202 Androscoggin River at Rumford
Point.
0104000203 Ellis River.......................
0104000204 Ellis River.......................
0104000205 Androscoggin River above Webb
River.
0104000206 Androscoggin River at Riley Dam...
0104000207 Androscoggin River at Nezinscot
River.
0104000208 Nezinscot River...................
0104000209 Androscoggin R. above L. Andro. R.
Coastal Drainages East of Small Point sub-basin. 0105000301 St. George River.................. 624 32
0105000302 Medomak River..................... 318 6
0105000305 Sheepscot River................... 553 19
0105000306 Sheepscot Bay..................... 220 2
0105000307 Kennebec River Estuary............ 275 3.5 1 [M]
0105000303 Johns Bay.........................
0105000304 Damariscotta River................
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal--considered unoccupied at the time of listing.
[FR Doc. E9-14268 Filed 6-18-09; 8:45 am]
BILLING CODE 2510-22-P