[Federal Register Volume 75, Number 187 (Tuesday, September 28, 2010)]
[Proposed Rules]
[Pages 59900-59931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24215]
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Part V
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 226
Endangered and Threatened Wildlife and Plants: Proposed Rulemaking To
Designate Critical Habitat for Black Abalone; Proposed Rule
Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 /
Proposed Rules
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 100127045-0120-01]
RIN 0648-AY62
Endangered and Threatened Wildlife and Plants: Proposed
Rulemaking To Designate Critical Habitat for Black Abalone
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to
designate approximately 390 square kilometers of critical habitat for
the endangered black abalone, pursuant to section 4 of the Endangered
Species Act (ESA). Specific areas proposed for designation include
rocky habitats from the mean higher high water (MHHW) line to a depth
of 6 meters (m) within the following areas on the California coast: Del
Mar Landing Ecological Reserve to Point Bonita; from the southern point
at the mouth of San Francisco Bay to Natural Bridges State Beach; from
Pacific Grove to Cayucos; from Monta[ntilde]a de Oro State Park to just
south of Government Point; Palos Verdes Peninsula from the Palos
Verdes/Torrance border to Los Angeles Harbor; the Farallon Islands;
A[ntilde]o Nuevo Island; San Miguel Island; Santa Rosa Island; Santa
Cruz Island; Anacapa Island; San Nicolas Island; Santa Barbara Island;
Catalina Island; and San Clemente Island. We propose to exclude the
following area from designation because the economic benefits of
exclusion outweigh the benefits of inclusion, and exclusion will not
result in the extinction of the species: rocky habitats within the MHHW
line to a depth of 6 m from Corona Del Mar State Beach to Dana Point,
California.
DATES: Comments on this proposed rule to designate critical habitat
must be received by no later than 5 p.m. Pacific Standard Time on
November 29, 2010. A public hearing will be held promptly if any person
so requests by November 12, 2010. Notice of the date, location, and
time of any such hearing will be published in the Federal Register not
less than 15 days before the hearing is held.
ADDRESSES: You may submit comments on the proposed rule, identified by
RIN 0648-AY62, by any one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
Fax: 1-562-980-4027, Attention: Melissa Neuman.
Mail: Submit written information to Chief, Protected
Resources Division, Southwest Region, National Marine Fisheries
Service, 501 West Ocean Blvd, Suite 4200, Long Beach, CA 90802-4213.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information. NMFS will accept
anonymous comments (please enter N/A in the required fields if you wish
to remain anonymous). Attachments to electronic comments will be
accepted in Microsoft Word, Excel, WordPerfect, or PDF file formats
only.
Reference materials and supporting documents regarding this
proposed designation can be obtained via the Internet at: http://swr.nmfs.noaa.gov/, the Federal eRulemaking Portal at: http://www.regulations.gov, or by submitting a request to the Assistant
Regional Administrator, Protected Resources Division, Southwest Region,
NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.
FOR FURTHER INFORMATION CONTACT: Melissa Neuman, NMFS, Southwest Region
(562) 980-4115, or Marta Nammack, NMFS, Office of Protected Resources
(301) 713-1401.
SUPPLEMENTARY INFORMATION:
Background
On January 14, 2009, we determined that the black abalone (Haliotis
cracherodii) is in danger of extinction throughout all or a significant
portion of its range and listed the species as endangered under the ESA
(74 FR 1937). Under the ESA, we are responsible for designating
critical habitat for all endangered and threatened species (16 U.S.C.
1533). This rule describes the proposed critical habitat designation,
including supporting information on black abalone biology,
distribution, and habitat use, and the methods used to develop the
proposed designation.
We considered various alternatives to the critical habitat
designation for black abalone. The alternative of not designating
critical habitat for black abalone would impose no economic, national
security, or other relevant impacts, but would not provide any
conservation benefit to the species. This alternative was considered
and rejected because such an approach does not meet the legal
requirements of the ESA and would not provide for the conservation of
black abalone. The alternative of designating all of the areas
considered for designation (i.e., no areas excluded) was also
considered and rejected because, for one area, the economic benefits of
exclusion outweighed the benefits of designation, and NMFS did not
determine that exclusion of this area would significantly impede
conservation of the species or result in extinction of the species. The
total estimated annualized economic impact associated with the
designation of all of the areas considered would be $595,900 to
$158,967,500 (discounted at 7 percent) or $562,600 to $144,410,200
(discounted at 3 percent).
An alternative to designating critical habitat within all of the
areas considered for designation is the designation of critical habitat
within a subset of these areas. Under section 4(b)(2) of the ESA, NMFS
must consider the economic impacts, impacts to national security, and
other relevant impacts of designating any particular area as critical
habitat. NMFS has the discretion to exclude an area from designation as
critical habitat if the benefits of exclusion (i.e., the impacts that
would be avoided if an area were excluded from the designation)
outweigh the benefits of designation (i.e., the conservation benefits
to black abalone if an area were designated), so long as exclusion of
the area will not result in extinction of the species. Exclusion under
section 4(b)(2) of the ESA of one or more of the areas considered for
designation would reduce the total impacts of designation. The
determination of which units to exclude depends on NMFS' ESA section
4(b)(2) analysis, which is conducted for each area and described in
detail in the draft ESA 4(b)(2) report (NMFS, 2010b). Under the
preferred alternative we propose to exclude one of the 20 areas
considered. The total estimated economic impact associated with this
preferred alternative is $582,500 to $155,851,400 (discounted at 7
percent) or $551,800 to $141,300,500 (discounted at 3 percent). We
determined that the exclusion of this one area would not significantly
impede the conservation of
[[Page 59901]]
black abalone nor result in extinction of the species. We selected this
as the preferred alternative because it results in a critical habitat
designation that provides for the conservation of black abalone while
reducing the economic impacts. This alternative also meets the
requirements under the ESA and our joint NMFS-U.S. Fish and Wildlife
Service (USFWS) regulations concerning critical habitat.
Black Abalone Natural History
General Description
Black abalone (Haliotis cracherodii, Leach, 1814) are shallow-
living marine gastropods with smooth, circular, and black to slate blue
colored shells that have five to nine open respiratory pores sitting
flush with the shell's surface. Typically, the shell's interior is
white (Haaker et al., 1986), with a poorly defined or no muscle scar
(Howorth, 1978). Adults attain a maximum shell length of approximately
20 cm (throughout this notice we use the maximum diameter of the
elliptical shell as the index for individual body size). The muscular
foot of the black abalone allows the animal to clamp tightly to rocky
surfaces without being dislodged by wave action. Locomotion is
accomplished by an undulating motion of the foot. A column of shell
muscle attaches the body to the shell. The mantle and black epipodium,
a sensory structure and extension of the foot which bears lobed
tentacles of the same color (Cox, 1960), circle the foot and extend
beyond the shell of a healthy black abalone. The internal organs are
arranged around the foot and under the shell.
Historical and Current Distribution
Black abalone historically occurred from Crescent City, California,
USA, to southern Baja California, Mexico (Geiger, 2004), but today the
species' constricted range occurs from Point Arena, California, USA, to
Bahia Tortugas, Mexico, and it is rare north of San Francisco,
California, USA (Morris et al., 1980), and south of Punta Eugenia,
Mexico (P. Raimondi, pers. comm.).
Population Structure
Recent studies have evaluated population structure in black abalone
(Hamm and Burton, 2000; Chambers et al., 2006; Gruenthal and Burton,
2008) using various methods. These studies indicate: (1) Minimal gene
flow among populations; (2) black abalone populations are composed
predominantly of closely related individuals produced by local spawning
events; (3) gene flow among island populations is relatively greater
than between island and mainland populations; and (4) the overall
connectivity among black abalone populations is low and likely reflects
limited larval dispersal and a low degree of exchange among
populations.
Habitat
Black abalone generally inhabit coastal and offshore island
intertidal habitats on exposed rocky shores where bedrock provides
deep, protective crevice shelter (Leighton, 2005). These complex
surfaces with cracks and crevices in upper and middle intertidal zones
may be crucial recruitment habitat and appear to be important for adult
survival as well (Leighton, 1959; Leighton and Boolootian, 1963;
Douros, 1985, 1987; Miller and Lawrenz-Miller, 1993; VanBlaricom et
al., 1993; Haaker et al., 1995). Black abalone range vertically from
the high intertidal zone to a depth of 6 m, with most animals found in
middle and lower intertidal zones. In highly exposed locations downwind
of large offshore kelp beds, the majority of abalone may be found in
the high intertidal where drift kelp fragments, a principal food for
black abalone, tend to be concentrated by breaking surf.
Movement
Planktonic larval abalone movement is determined primarily by
patterns of water movement in nearshore habitats near spawning sites.
Larvae may be able to influence movement to some degree by adjusting
their vertical position in the water column, but to our knowledge, the
ability of black abalone larvae to move in this way has not been
documented. Movement behavior of postmetamorphic juvenile black abalone
is likewise unknown. Leighton (1959) and Leighton and Boolootian (1963)
indicate that black abalone larvae may settle and metamorphose in the
upper intertidal zone, using crevices and depressions (including those
formed by abrasive action of other intertidal mollusks) as habitat.
Leighton and Boolootian (1963) suggest that young black abalone move
lower in the intertidal zone as they begin to grow, occupying the
undersides of large boulders. To our knowledge there is no published
information on direct observations of movement behavior of the smallest
(<20 mm) juvenile black abalone in the field. Qualitative (Leighton,
2005; VanBlaricom, unpublished observations) and quantitative (Bergen,
1971; Blecha et al., 1992; VanBlaricom and Ashworth, in preparation;
Richards, unpublished observations) studies of movement in black
abalone suggest that smaller abalone (<65 mm) move more frequently than
larger abalone, movement is more frequent during night hours compared
to daylight hours, and larger abalone may remain in the same location
for many years.
Diet
Larvae are lecithotrophic (i.e., receive nourishment via an egg
yolk) and apparently do not actively feed during their planktonic life
stage. From the time of post-larval metamorphosis to a size of about 20
mm, black abalone are highly cryptic, occurring primarily on the
undersides of large boulders or in deep narrow crevices in solid rocky
substrata. In such locations the primary food sources are thought to be
microbial and possibly diatom films (Leighton, 1959; Leighton and
Boolootian, 1963; Bergen, 1971) and crustose coralline algae. At
roughly 20 mm black abalone move to more open locations, albeit still
relatively cryptic, gaining access to both attached macrophytes and to
pieces of drift plants cast into the intertidal zone by waves and
currents. As black abalone continue to grow, the most commonly observed
feeding method is entrapment of drift plant fragments. Webber and Giese
(1969), Bergen (1971), Hines and Pearse (1982), and Douros (1987) have
confirmed the importance of large kelps in the diet of juvenile and
adult black abalone. The primary food species are said to be giant kelp
(Macrocystis pyrifera) and feather boa kelp (Egregia menziesii) in
southern California (i.e., south of Point Conception) habitats, and
bull kelp (Nereocystis leutkeana) in central and northern California
habitats.
Reproduction
Black abalone reach reproductive maturity between 3 and 7 years
(Smith et al., 2003), have separate sexes, and are ``broadcast''
spawners. Gametes from both parents are shed into the sea, and
fertilization is entirely external. Resulting larvae are minute and
defenseless, receive no parental care or protection of any kind, and
are subject to a broad array of physical and biological sources of
mortality. Species with a broadcast-spawning reproductive strategy are
subject to strong selection for maximum fecundity of both sexes. Only
through production of large numbers of gametes can broadcast spawners
overcome high mortality of gametes and larvae and survive across
generations. It is not uncommon for broadcast-spawning marine species,
a group including many taxa of fish and invertebrates, to produce
millions of eggs or sperm per individual per year.
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Broadcast spawners are also subject to other kinds of selection for
certain traits associated with reproduction, including spatial and
temporal synchrony in spawning and mechanisms that increase
probabilities for union of spawned gametes.
Spawning Density
As intertidal organisms on exposed rocky shores, black abalone
typically release gametes into environments of extreme turbulence. As a
consequence, eggs and sperm must be released from adults in relatively
close spatial and temporal proximity in order to have any chance of
union and fertilization before rapid dispersal and loss of opportunity.
A central problem for conservation of black abalone is the dramatic
reduction in densities over the past quarter century in almost the
entire geographic range of the species. Reductions in density are so
extreme and widespread that considerable attention is now focused on
assessment of critical density thresholds for successful reproduction,
recruitment, and population sustainability. Critical density
thresholds, below which recruitment failure occurs, exist across a
broad taxonomic range of marine, broadcast-spawning invertebrates
(e.g., sea urchins, sea cucumbers, hard clams, scallops, giant clams,
and geoduck clams). Neuman et al. (in press) reviewed recruitment
patterns in three long-term data sets for black abalone in California,
and in each case, recruitment failed when declining population
densities fell below 0.34 m-2. Densities in most black
abalone populations in Southern California have fallen below the
densities noted. Recent evidence suggests that disease-induced
increases in the mortality rate of black abalone continue to move
northward along the mainland coast of California (e.g., Raimondi et
al., 2002; Miner et al., 2006). Thus, the number and geographic scope
of populations with densities falling below sustainable levels is
expected to increase.
Larval Dispersal, Settlement, and Recruitment
Most abalone larvae drift in the water for a period of about 3-10
days before settlement and metamorphosis (e.g., McShane, 1992). During
that short period of time, abalone have limited capacity for dispersal
over distances beyond a few kilometers. Indirect methods for assessing
larval dispersal in abalone support the conclusion that black abalone
exhibit limited larval dispersal (Tegner and Butler, 1985; Prince et
al., 1988; Hamm and Burton, 2000; Chambers et al., 2005; Chambers et
al., 2006; Gruenthal, 2007).
A sequence of studies and discoveries suggests that availability of
crustose coralline algae in appropriate intertidal habitats may be an
important settlement cue for larval black abalone, and that the
presence of adult black abalone may facilitate larval settlement and
metamorphosis because the activities and presence of the abalone
promote the maintenance of substantial substratum cover by crustose
coralline algae (Morse et al., 1979; Morse and Morse, 1984; Douros,
1985; Trapido- Rosenthal and Morse, 1986; Morse, 1990; Morse, 1992;
Miner et al., 2006). Although crustose coralline algae are ubiquitous
in rocky benthic habitats along the west coast of North America, a
mechanistic understanding of processes that sustain these algal
populations has not been established, to our knowledge.
Growth and Longevity
Available data on black abalone growth suggest that young animals
reach maximum shell diameters of about 2 cm in their first year, then
grow at rates of 1-2 cm per year for the next several years. Growth
begins to slow at lengths of about 10 cm, corresponding to an age range
of 4-8 years. Beyond this point, growth is less predictable, shell
erosion may become a significant factor, and size distributions for
older animals may vary according to local conditions. Growth and
erosion of shells may come into equilibrium in older black abalone,
such that growth can be viewed as facultatively determinant. Maximum
recorded shell length for black abalone was listed at 213 mm by Wagner
and Abbott (1990). Ault (1985) reported a maximum shell length of black
abalone at 215 mm. Leighton (2005) indicated a shell length of 216 mm
reported by Owen (unpublished observation). Maximum longevity of black
abalone is thought to be 20-30 years.
Mortality
The most important source of black abalone mortality is the disease
known as withering syndrome (hereafter WS). Disease transmission and
manifestation is intensified when local sea surface temperatures
increase by as little as 2.5 [deg]C above ambient sea surface
temperatures and remain elevated over a prolonged period of time (i.e.,
a few months or more) (Friedman et al., 1997; Raimondi et al., 2002;
Harley and Rogers-Bennett, 2004; Vilchis et al., 2005). WS is caused by
a Rickettsiales-like prokaryotic pathogen of unknown origin that
invades digestive epithelial cells and disrupts absorption of digested
materials from the gut lumen into the tissues (Gardner et al., 1995).
Progressive signs of the disease include pedal atrophy, diminished
responsiveness to tactile stimuli, discoloration of the epipodium, and
a loss of ability to maintain adhesion to rocky substratum (Raimondi et
al., 2002). While population-scale mortality rates due to WS may vary
in space and time from near zero to high proportions of local
populations, the available evidence suggests that the highest disease-
induced mortality events have followed periods of elevated sea surface
temperature (e.g., Raimondi et al., 2002). Laboratory studies have
demonstrated that elevated water temperature, while not a direct cause
of WS, accelerates the mortality of black abalone carrying the pathogen
that causes the disease (Friedman et al., 1997). A recent study
examined the effects of elevated sea surface temperature on abalone at
the individual level, and suggested that warming ocean temperatures are
likely to have negative consequences on those species associated with
cooler water temperatures and/or particularly susceptible to WS
(Vilchis et al., 2005). Although there is no explicitly documented
causal link between the persistence of WS and long-term climate change,
patterns observed over the past 3 decades suggest that progression of
ocean warming associated with large-scale climate change may facilitate
further and more prolonged vulnerability of black abalone to the
effects of WS. The preponderance of evidence indicates that WS
continues to damage the size and sustainability of black abalone
populations on a large scale, with little plausible basis for any
predictions of reversal except in localized, spatially isolated cases.
Factors such as poaching, reduced genetic diversity, ocean
acidification, non-anthropogenic predation (e.g., by octopuses,
lobsters, sea stars, fishes, sea otters, and shorebirds) and
competition (e.g., with sea urchins), food limitation, environmental
pollutants and toxins, and substrate destruction may all impose
mortality on black abalone at varying rates, but predicting the
relative impacts of each of these factors on the long-term viability of
black abalone is difficult without further study. In addition to the
aforementioned present-day sources of mortality, commercial and
recreational fisheries operating in California until 1993 likely
contributed to the species' decline. For more information on historic
and present-day factors leading to the decline of black abalone
populations, please see the NMFS status review for black abalone
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(VanBlaricom et al., 2009), and the proposed and final listing rules
for black abalone (71 FR 1986, January 11, 2008; 74 FR 1937, January
14, 2009).
Methods and Criteria Used To Identify Critical Habitat
In accordance with section 4(b)(2) of the ESA and our implementing
regulations (50 CFR 424.12(a)), this proposed rule is based on the best
scientific information available concerning the present and historical
range, habitat, biology, and threats to habitat for black abalone. In
preparing this rule, we reviewed and summarized current information on
black abalone, including recent biological surveys and reports, peer-
reviewed literature, the NMFS status review for black abalone
(VanBlaricom et al., 2009), and the proposed and final listing rules
for black abalone (71 FR 1986, January 11, 2008; 74 FR 1937, January
14, 2009). To assist with the evaluation of critical habitat, we
convened a black abalone critical habitat review team (CHRT), comprised
of seven Federal biologists from NMFS, the National Park Service (NPS),
US Geological Survey (USGS), Minerals Management Service (hereafter
MMS; MMS has been renamed the Bureau of Ocean Energy Management,
Regulation, and Enforcement, or BOEMRE, as of June 18, 2010), and the
Monterey Bay National Marine Sanctuary with experience in abalone
research, monitoring and management. The CHRT used the best available
scientific and commercial data and their best professional judgment to:
(1) Verify the geographical area occupied by black abalone at the time
of listing; (2) identify the physical and biological features essential
to the conservation of the species; (3) identify specific areas within
the occupied area containing those essential physical and biological
features; (4) verify whether the essential features within each
specific area may need special management considerations or protection
and identify activities that may affect these essential features; (5)
evaluate the conservation value of each specific area; and (6)
determine if any unoccupied areas are essential to the conservation of
black abalone. The CHRT's evaluation and conclusions are described in
detail in the following sections, as well as in the draft biological
report (NMFS, 2010c).
Physical or Biological Features Essential for Conservation
Joint NMFS-USFWS regulations, at 50 CFR 424.12(b), state that in
determining what areas are critical habitat, the agencies ``shall
consider those physical and biological features that are essential to
the conservation of a given species and that may require special
management considerations or protection.'' Features to consider may
include, but are not limited to: ``(1) Space for individual and
population growth, and for normal behavior; (2) Food, water, air,
light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter; (4) Sites for breeding, reproduction, rearing of
offspring, germination, or seed dispersal; and generally; (5) Habitats
that are protected from disturbance or are representative of the
historic geographical and ecological distributions of a species.'' The
regulations also require the agencies to ``focus on the principal
biological or physical constituent elements'' (hereafter referred to as
``Primary Constituent Elements'' or PCEs) within the specific areas
considered for designation that are essential to conservation of the
species, which ``may include, but are not limited to, the following: *
* * spawning sites, feeding sites, seasonal wetland or dryland, water
quality or quantity, * * * geological formation, vegetation type, tide,
and specific soil types.''
Based on the best available scientific information, the CHRT
identified the following PCEs essential for the conservation of black
abalone:
(1) Rocky substrate. Suitable rocky substrate includes rocky
benches formed from consolidated rock of various geological origins
(e.g., igneous, metamorphic, and sedimentary) that contain channels
with macro- and micro-crevices or large boulders (greater than or equal
to 1 m in diameter) and occur from mean higher high water (MHHW) to a
depth of 6 m. All types of relief (high, medium and low; 0.5 to greater
than 2 m vertical relief; Wentworth, 1922) support black abalone and
complex configurations of rock surfaces likely afford protection from
predators, direct impacts of breaking waves, wave-born projectiles, and
excessive solar heating during daytime low tides. Most black abalone
occupy the middle and lower intertidal zones. In highly exposed
locations downwind of large offshore kelp beds, the majority of abalone
may be found in the high intertidal where drift kelp fragments tend to
be concentrated by breaking surf. Leighton (1959) found evidence for
ontogenetic shifts in depth distribution among juvenile abalone on the
Palos Verdes Peninsula. Juvenile black abalone (10-30 mm) were found at
mid-intertidal depths on undersides of rock providing clear beneath-
rock open space while juveniles in the 5-10 mm size range were found at
higher intertidal zones in narrow crevices and in depressions abraded
into rock surfaces by the intertidal chiton, Nutallina californica
(Reeve, 1847). Black abalone observed at greater depths (3-6 m)
typically were mature adults. California contains approximately 848.5
miles (1365.5 km) of consolidated rocky coastline and 599.3 miles
(964.5 km) or 70 percent of it falls within the areas considered in
this proposed critical habitat designation.
(2) Food resources. Abundant food resources including bacterial and
diatom films, crustose coralline algae, and a source of detrital
macroalgae, are required for growth and survival of all stages of black
abalone. From post-larval metamorphosis to a size of about 20 mm, black
abalone consume microbial and possibly diatom films (Leighton, 1959;
Leighton and Boolootian, 1963; Bergen, 1971) and crustose coralline
algae. At roughly 20 mm black abalone begin feeding on both attached
macrophytes and pieces of drift plants cast into the intertidal zone by
waves and currents. The primary macroalgae consumed by juvenile and
adult black abalone are giant kelp (Macrocystis pyrifera) and feather
boa kelp (Egregia menziesii) in southern California (i.e., south of
Point Conception) habitats, and bull kelp (Nereocystis leutkeana) in
central and northern California habitats (i.e., north of Santa Cruz).
Southern sea palm (Eisenia arborea), elk kelp (Pelagophycus porra),
stalked kelp (Pterygophora californica), and other brown kelps
(Laminaria sp.) may also be consumed by black abalone.
(3) Juvenile settlement habitat. Rocky intertidal habitat
containing crustose coralline algae and crevices or cryptic biogenic
structures (e.g., urchins, mussels, chiton holes, conspecifics,
anemones) is important for successful larval recruitment and juvenile
growth and survival of black abalone less than approximately 25 mm
shell length. The presence of adult abalone may facilitate larval
settlement and metamorphosis, because adults may: (1) Promote the
maintenance of substantial substratum cover by crustose coralline algae
by grazing other algal species that could compete with crustose
coralline algae; and/or (2) outcompete encrusting sessile invertebrates
(e.g., tube worms and tube snails) for space on rocky substrates
thereby promoting the growth of crustose coralline algae and settlement
of larvae; and/or (3) emit chemical cues necessary to induce larval
settlement (Miner et al., 2006; Toonen and Pawlick, 1994). Increasing
partial pressure of CO2 may decrease calcification rates of
coralline algae,
[[Page 59904]]
thereby reducing their abundance and ultimately affecting the survival
of newly settled black abalone (Feely et al., 2004; Hall-Spencer et
al., 2008). Laboratory experiments have shown that the presence of
pesticides (e.g., dichlorodiphenyltrichloroethane (DDT), 2,4-
dichlorophenoxyacetic acid (2,4-D), methoxychlor, dieldrin) interfered
with larval settlement of abalone because the chemical cues emitted by
coralline algae and its associated diatom films which trigger abalone
settlement are blocked (Morse et al., 1979), and the pesticide
oxadiazon was found to severely reduce algal growth (Silver and Riley,
2001). We are not aware of additional information regarding processes
that mediate crustose coralline algae abundance and solicit the public
for more information on this topic.
(4) Suitable water quality. Suitable water quality includes
temperature, salinity, pH, and other chemical characteristics necessary
for normal settlement, growth, behavior, and viability of black
abalone. The biogeographical water temperature range of black abalone
is from 12 to 25 [deg]C, but they are most abundant in areas where the
water temperature ranges from 18 to 22 [deg]C (Hines et al., 1980).
There is increased mortality due to WS during periods following
elevated sea surface temperature (Raimondi et al., 2002). The CHRT did
not consider the presence of the bacteria that causes WS when
evaluating the condition of this PCE because it is thought to be
present throughout a large portion of the species' current range
(greater than 60 percent), including all coastal specific areas south
of Monterey County, CA and the Farallon Islands (J. Moore, pers.
comm.). Instead the CHRT relied on sea surface temperature information
to evaluate water quality in terms of disease virulence, recognizing
that elevated sea surface temperatures are correlated with increased
rates of WS transmission and manifestation in abalone. Elevated levels
of contaminants (e.g., copper, oil, polycyclic aromatic hydrocarbon
(PAH) endocrine disrupters, persistent organic compounds (POC)) can
cause mortality of black abalone. In 1975, toxic levels of copper in
the cooling water effluent of a nuclear power plant near Diablo Canyon,
California, were associated with abalone mortalities in a nearshore
cove that received significant effluent flows (Shepherd and Breen,
1992; Martin et al., 1977). As mentioned above for the Juvenile
settlement habitat PCE, laboratory experiments have shown that the
presence of some pesticides interfere with larval settlement of abalone
(Morse et al., 1979) and severely reduce algal growth (Silver and
Riley, 2001). We are not aware of other studies that have established
direct and indirect links between currently used pesticides and effects
on black abalone habitat quality and solicit the public for more
information on this topic. The suitable salinity range for black
abalone is from 30 to 35 parts per thousand (ppt), and the suitable pH
range is 7.5-8.5. Ocean pH values that are outside of the normal range
for seawater (i.e., pH less than 7.5 or greater than 8.5; http://www.marinebio.net/marinescience/02ocean/swcomposition.htm) may cause
reduced growth and survivorship in abalone as has been observed in
other marine gastropods (Shirayama and Thornton, 2005). Specifically,
with increasing uptake of atmospheric CO2 by the ocean, the
pH of seawater becomes more acidic, which may decrease calcification
rates in marine organisms and result in negative impacts to black
abalone in at least two ways: (1) Disrupting an abalone's ability to
maintain and grow its protective shell; and/or (2) reducing abundance
of coralline algae (and associated diatom films and bacteria), a
calcifying organism that may mediate settlement through chemical cues
and support and provide food sources for newly settled abalone (Feely
et al., 2004; Hall-Spencer et al., 2008).
(5) Suitable nearshore circulation patterns. Suitable circulation
patterns are those that retain eggs, sperm, fertilized eggs and ready-
to-settle larvae enough so that successful fertilization and settlement
to suitable habitat can take place. Nearshore circulation patterns are
controlled by a variety of factors including wind speed and direction,
current speed and direction, tidal fluctuation, geomorphology of the
coastline, and bathymetry of subtidal habitats adjacent to the
coastline. Anthropogenic activities may also have the capacity to
influence nearshore circulation patterns (e.g., intake pipes, sand
replenishment, dredging, in water construction, etc.). These factors,
in combination with the early life history dynamics of black abalone,
may influence retention or dispersal rates of eggs, sperm, fertilized
eggs and ready-to-settle larvae (Siegel et al., 2008). Given that black
abalone gamete and larval durations are relatively short, larvae have
little control over their position in the water column, and ready-to-
settle larvae require shallow, intertidal habitat for settlement.
Forces that disperse larvae offshore (i.e., by distances on the order
of greater than tens of kilometers) may decrease the likelihood that
abalone larvae will successfully settle to suitable habitats. However,
retention of larvae inshore due to bottom friction and minimal
advective flows near kelp beds (the ``sticky water'' phenomenon;
Wolanski and Spagnol, 2000; Zeidberg and Hamner, 2002) may increase the
likelihood that larvae will successfully settle to suitable habitats.
Geographical Area Occupied by the Species and Specific Areas Within the
Geographical Area Occupied
One of the first steps in the critical habitat designation process
is to define the geographical area occupied by the species at the time
of listing and to identify specific areas, within this geographically
occupied area, that contain at least one PCE that may require special
management considerations or protection. In the January 2009 final ESA
listing rule, the range of black abalone was defined to extend from
Crescent City (Del Norte County, California) to Cape San Lucas, Baja
California, Mexico, including all offshore islands. The northern and
southern extent of the range was determined based on museum specimens
collected more than 10 years prior to the listing of the species
(Geiger, 2004). Because this range was based on dated records, and
because we cannot designate critical habitat in areas outside of the
United States (see 50 CFR 424.12(h)), the CHRT reconsidered the scope
of the current (i.e., at the time of the final ESA listing) occupied
range of black abalone. The CHRT examined data from ongoing monitoring
studies along the California coast (Neuman et al., in press) and
literature references to determine that, within the United States, the
geographical area currently occupied by black abalone extends from the
Del Mar Landing Ecological Reserve in Sonoma County, California, to
Dana Point, Orange County, California, on the mainland and includes the
Farallon Islands, A[ntilde]o Nuevo Island, and all of the California
Channel Islands. The CHRT noted that there are pockets of unoccupied
habitat within this broader area of occupation (NMFS, 2010c). Within
this geographically occupied area, black abalone typically inhabit
coastal and offshore island rocky intertidal habitats from MHHW to
depths of 6 m (Leighton, 2005). The CHRT then identified ``specific
areas'' within the geographical area occupied by the species that may
be eligible for critical habitat designation under the ESA. For an
occupied specific area to be eligible for designation it must contain
at least one PCE that may require special management considerations or
[[Page 59905]]
protection. For each occupied specific area, the CHRT reviewed the
available data regarding black abalone presence and verified that each
area contained one or more PCE(s) that may require special management
considerations or protection. The CHRT determined that for all specific
areas, unless otherwise noted, MHHW delineates the landward boundary,
and the 6 m bathymetric contour delineates the seaward boundary. The
CHRT also agreed to consider naturally occurring geomorphological
formations and size (i.e., area) to delineate the northern and southern
boundaries of the specific areas. The CHRT intentionally aimed to
delineate specific areas of similar sizes in order to minimize biases
in the economic cost estimates for the specific areas.
The CHRT scored and rated the relative conservation value of each
occupied specific area. Areas rated as ``High'' were deemed to have a
high likelihood of promoting the conservation of the species. Areas
rated as ``Medium'' or ``Low'' were deemed to have a moderate or low
likelihood of promoting the conservation of the species, respectively.
The CHRT considered several factors in assigning the conservation value
ratings, including the PCEs present, the condition of the PCEs, and the
historical, present, and potential future use of the area by black
abalone. These factors were scored by the CHRT and summed to generate a
total score for each specific area, which was considered in the CHRT's
evaluation and assignment of the final conservation value ratings. The
draft biological report (NMFS, 2010c; available via our Web site at
http://swr.nmfs.noaa.gov, via the Federal eRulemaking Web site at
http://www.regulations.gov, or upon request--see ADDRESSES) describes
in detail the methods used by the CHRT in their assessment of the
specific areas and provides the biological information supporting the
CHRT's assessment as well as the final conservation value ratings and
justifications. The following paragraphs provide a brief description of
the presence and distribution of black abalone within each area,
additional detail regarding the CHRT's methods for delineating the
specific areas, and the justification for assigning conservation
scores. The following paragraphs also provide a brief description of
the activities within each area that may threaten the quality of the
PCEs, which are discussed in more detail in the Special Management
Considerations or Protection section below and the draft economic
report (NMFS, 2010a). Activities that exacerbate global climate change
(most notably fossil fuel combustion, which contributes to an increase
in atmospheric CO2 levels and subsequent sea level rise, sea
surface temperature elevation, and ocean acidification) were identified
as a concern for all of the specific areas. The Black Abalone Proposed
Critical Habitat Designation maps below, as well as the draft
biological report (NMFS, 2010c), show the location of each specific
area considered for designation.
Specific Area 1. Specific Area 1 includes the rocky intertidal
habitat from the Del Mar Landing Ecological Reserve to Bodega Head in
Sonoma County, California. Bodega Head is a small peninsula that
creates a natural barrier between it and the coastline that lies to the
east and south. In addition, the geological origin of Bodega Head
differs from that of the coastline to the east and south of it. For
these reasons, this location was chosen to delineate the southern
boundary of Specific Area 1. Based on the limited historical data
available for this area (Geiger 2003, State Water Resources Control
Board 1979, J. Sones pers. comm.), black abalone were encountered
occasionally in some locations. Black abalone have been present in this
area in low numbers since the Partnership for Interdisciplinary Studies
of Coastal Oceans (PISCO) began its long-term intertidal sampling
program in the early 2000s. Black abalone are currently considered to
be rare (i.e., difficult to find with some search effort and rarely
seen at sampling sites; J. Sones pers. comm.), and the CHRT expressed
uncertainty regarding the area's ability to support early life stages
of black abalone because historical and current data are lacking.
However, the presence of good to excellent quality rocky substrate
(e.g., 87 percent of rocky substrate available is consolidated), food
resources, and water quality (Water Quality Control Board, 1979) and
fair to good settlement habitat led the CHRT to conclude that the area
could support a larger black abalone population comprised of multiple
size classes. There are several activities occurring within this area
that may threaten the quality of the PCEs including waste-water
discharge, agricultural pesticide application and irrigation,
construction and operation of tidal and wave energy projects, and
activities that exacerbate global climate change (e.g., fossil fuel
combustion). This area is at the limit of the species' northern range,
which may explain the rarity of black abalone here, but it is also one
of the few areas along the California coast that has not yet been
affected by WS. The CHRT was of the opinion that the area could support
higher densities and multiple size classes of black abalone in the
future if habitat changes (e.g., sea surface temperature rise) render
it more suitable for promoting population growth. Thus, the CHRT scored
the conservation value of this area as ``High.''
Specific Area 2. Specific Area 2 includes rocky intertidal habitat
from Bodega Head in Sonoma County, California, to Point Bonita in Marin
County, California. Point Bonita was chosen to delineate the southern
boundary of this specific area because it sits at the southern point of
the Marin Headlands, the final promontory encountered as one moves
south along the coast before reaching the entrance to San Francisco
Bay. Historical presence of black abalone within this area is limited,
but in locations where black abalone were observed, they were
considered rare (Light, 1941; Chan, 1980; S. Allen, pers. comm.). Since
the mid-2000s, Point Reyes National Seashore and Golden Gate National
Recreation Area staff have observed black abalone at several locations,
but their qualitative abundance is considered to be rare (see
definition of rare above). This area contains good to excellent quality
consolidated rocky substrate (e.g., 71 percent of rocky substrate
available is consolidated), food resources, and water quality, and fair
to good settlement habitat, but as with Specific Area 1 above, the area
is at the limit of the species' northern range, which may explain its
rarity. There are several activities occurring within this area that
may threaten the quality of the PCEs, including: sand replenishment,
waste-water discharge, coastal development, non-native species
introduction and management, activities that exacerbate global climate
change, and agricultural pesticide application and irrigation. This
area is at the limit of the species' northern range, which may explain
the rarity of black abalone here, but it is also one of the few areas
along the California coast that has not yet been affected by WS. The
CHRT was of the opinion that the area could support higher densities
and multiple size classes of black abalone in the future if habitat
changes (e.g., sea surface temperature rise) render it more suitable
for promoting population growth. Thus, the CHRT scored the conservation
value of this area as ``High.''
Specific Area 3. Specific Area 3 includes the rocky intertidal
habitat surrounding the Farallon Islands, San Francisco County,
California. This area is a group of islands and rocks found in
[[Page 59906]]
the Gulf of the Farallones, 27 miles (43 km) west of the entrance to
San Francisco Bay and 20 miles (32 km) south of Point Reyes. The
islands are a National Wildlife Refuge and are currently managed by the
USFWS, in conjunction with the Point Reyes Bird Observatory
Conservation Science. The waters surrounding the islands are part of
the Gulf of the Farallones National Marine Sanctuary. Historical
presence of black abalone in intertidal habitats surrounding the
Farallon Islands was noted in the late 1970s (Farallones Research
Group, 1979) and again in the early 1990s (E. Ueber, unpublished data).
Black abalone have been observed in Specific Area 3 during limited
surveys conducted during the past 5 years, and researchers have
confirmed that all of the PCEs are present and of good to excellent
quality, and adverse impacts due to anthropogenic activities on these
isolated islands are relatively low. However, the CHRT expressed
concern over the following activities that may affect habitat features
important for black abalone conservation and recovery, including:
waste-water discharge, agricultural pesticide application and
irrigation, and activities that exacerbate global climate change. The
CHRT scored the conservation value of this area as ``High.''
Specific Area 4. Specific Area 4 extends from the land mass framing
the southern entrance to San Francisco Bay to Moss Beach, San Mateo
County, California, and includes all rocky intertidal habitat within
this area. There is limited historical and current information
regarding black abalone occurrence and abundance along this stretch of
the coast. At the one site where black abalone were noted historically,
they were considered to be rare (Light, 1941). PISCO, Point Reyes
National Seashore and Golden Gate National Recreation Area researchers
found ten individuals within this specific area during limited surveys
conducted since 2007. The CHRT considered the PCEs within the area to
be of fair to good quality. While the CHRT was uncertain about this
area's ability to support early life stages because data are lacking,
it was more confident that the area can support the long-term survival
of juveniles and adults based on several lines of evidence from
historical records (Light, 1941, J. Sones, pers. comm..; M. Wilson,
pers. comm.). The CHRT noted that the following activities may threaten
the quality of the PCEs within this specific area: Sand replenishment,
waste-water discharge, coastal development, agricultural pesticide
application and irrigation, non-native species introduction and
management, oil and chemical spills and clean-up, and activities that
exacerbate global climate change. The CHRT scored the conservation
value of this area as ``Medium.''
Specific Area 5. Specific Area 5 includes rocky intertidal habitat
from Moss Beach to Pescadero State Beach, San Mateo County, California.
This area was considered separately from Specific Area 4, even though
each area alone is smaller in size compared to the majority of the
other specific areas. The reasons for separate consideration were that:
(1) The CHRT team viewed the PCEs in Specific Area 5 as being of lower
quality overall than those contained within Specific Area 4; and (2)
the level of certainty the CHRT had in evaluating the conservation
value of Specific Area 4 was higher than that for Specific Area 5. The
CHRT recognized that all of the PCEs were present in the area and their
current quality ranged from poor to good. The CHRT expressed a high
degree of uncertainty regarding the area's ability to support early
life stages and long-term survival of juveniles and adults because the
area has not been adequately studied. Since the species was listed in
2009, only one survey has been conducted by Reyes National Seashore and
Golden Gate National Recreation Area researchers. One black abalone was
identified during this survey. Waste-water discharge, oil and chemical
spills and clean-up, and activities that exacerbate global climate
change may compromise the quality of the PCEs within this specific
area. The CHRT scored the conservation value of this area as
``Medium,'' recognizing that it lies to the north of areas that have
experienced population declines, and thus the habitat in this area may
still provide a refuge from the devastating effects of WS.
Specific Area 6. Specific Area 6 includes the rocky intertidal
habitat surrounding A[ntilde]o Nuevo Island, San Mateo County,
California. The island lies 50 miles (74 km) south of San Francisco Bay
and, two hundred years ago, it was connected to the mainland by a
narrow peninsula. Today it is separated from the mainland by a channel
that grows wider with each winter storm. A[ntilde]o Nuevo Island is
managed by the University of California Santa Cruz's Long Marine
Laboratory under an agreement with the California Department of Parks
and Recreation. The A[ntilde]o Nuevo Island Reserve, including the
island and surrounding waters, comprises approximately 25 of the 4,000
acres (10 of 1,600 ha) of the A[ntilde]o Nuevo State Reserve, the rest
of which is on the mainland opposite the island. Black abalone were
common in intertidal habitats surrounding the island during surveys
conducted from 1987-1995, with mean densities ranging from 6-8 per m\2\
(Tissot, 2007; VanBlaricom et al., 2009). To our knowledge, the island
has not been surveyed for black abalone since that time. The CHRT
verified that good to excellent quality rocky substrate, food
resources, and water quality, and fair to good settlement habitat exist
at A[ntilde]o Nuevo Island, but expressed uncertainty regarding whether
the area currently supports early life stages and long-term survival of
juveniles and adults. The impact of global climate change on the
habitat features important to black abalone was the only concern
identified within this specific area. The CHRT scored the conservation
value of this area as ``High.''
Specific Area 7. Specific Area 7 includes the rocky intertidal
habitat from Pescadero State Beach, San Mateo County, California, to
Natural Bridges State Beach, Santa Cruz County, California. Situated to
the north of Monterey Bay, Natural Bridges State Beach marks the last
stretch of rocky intertidal habitat before reaching the primarily fine-
to medium-grained sand beaches of Monterey Bay (http://www.sanctuarysimon.org/monterey/sections/beaches/b_overview_map.php).
Historical data are limited, but the information available suggests
that black abalone were common at a couple of sites within this
specific area in the late 1970s and early 1980s (Water Quality Control
Board, 1979; J. Pearse, pers. comm.) and rare at the majority of sites
(Water Quality Control Board, 1979; J. Pearse, pers. comm.). PISCO
began intertidal black abalone surveys in this area in 1999 and, at
that time, qualitative abundance ranged from rare to common, depending
on the specific site. Sampling by PISCO within the last 5 years
indicates that black abalone are present and common at about 50 percent
of the sites within this area, but that abundance may be declining at a
few of these sites. At the other sites, black abalone are either
present, but rare, or completely absent. The CHRT confirmed that all of
the PCEs are present and of good to excellent quality here. PISCO data
(Raimondi et al., 2002; Tissot, 2007) provide evidence that the area
supports early life stages (i.e., small individuals (< 30mm) are
present currently; see definition in NMFS, 2010c) and long-term
survival of juveniles and adults (i.e., there is stable or increasing
abundance, and multiple
[[Page 59907]]
size classes of black abalone evident in length-frequency
distributions; see definition in NMFS, 2010c). The CHRT identified the
following activities that may threaten the quality of habitat features
essential to black abalone within this area: Sand replenishment, waste-
water discharge, coastal development, sidecasting (i.e., the piling of
excavated dirt on the edge of a ditch or elsewhere in a wetland or
other water body because of road maintenance), agricultural pesticide
application and irrigation, oil and chemical spills and clean-up,
construction and operation of desalination plants, vessel grounding,
non-native species introduction and management, kelp harvesting, and
activities that exacerbate global climate change. The CHRT scored the
conservation value of this area as ``High.''
Specific Area 8. Specific Area 8 includes rocky intertidal habitats
from Pacific Grove to Prewitt Creek, Monterey County, California.
Pacific Grove marks the first stretch of rocky intertidal habitat to
the south of the fine-to medium-grained sand beaches of Monterey Bay
(http://www.sanctuarysimon.org/monterey/sections/beaches/b_overview_map.php). In order to keep the size of this area comparable to other
specific areas, Prewitt Creek was chosen to delineate its southern
boundary. Surveys conducted prior to 2004 indicated that black abalone
encompassing a range of sizes were present and common at all of the
sampled sites within this area (Water Quality Control Board, 1979;
Raimondi et al., 2002; Tissot, 2007). More recent information gathered
within the last 5 years by PISCO indicates that black abalone
encompassing a range of sizes remain at all sites sampled and are
considered common at 93 percent of the sites. The CHRT confirmed that
all of the PCEs are present and of good to excellent quality, but may
be threatened by waste-water discharge, coastal development,
agricultural pesticide application and irrigation, oil and chemical
spills and clean-up, construction and operation of desalination plants,
kelp harvesting, and activities that exacerbate global climate change.
PISCO data (Raimondi et al., 2002; Tissot, 2007) provide evidence that
the area supports early life stages and long-term survival of juveniles
and adults (see NMFS, 2010c for details). The CHRT scored the
conservation value of this area as ``High.''
Specific Area 9. Specific Area 9 includes rocky intertidal habitats
from Prewitt Creek, Monterey County, California to Cayucos, San Luis
Obispo County, California. Situated on the northern edge of Estero Bay,
Cayucos marks the last stretch of rocky intertidal habitat before
reaching the primarily fine-to medium-grained sand beaches of Estero
Bay. PISCO and the University of California Santa Cruz (UCSC)
established long-term monitoring sites within this area between 1995
and 2008. Surveys conducted prior to 2004 indicated that black abalone
of a range of sizes were present and common at all but one of the sites
surveyed within this area (Water Quality Control Board, 1979; Raimondi
et al., 2002; Tissot, 2007). More recent information gathered by PISCO
and UCSC indicates that black abalone of a range of sizes are present
at all sites within the area and are commonly found at 57 percent of
the sites, occasionally found with some search effort at 14 percent of
the sites, and rarely found at 29 percent of the sites. The CHRT
confirmed that all of the PCEs are present and of good to excellent
quality. The area supports early life stages and long-term survival of
juveniles and adults (see NMFS, 2010c for details). However, the CHRT
also noted that PISCO researchers have reported recent population
declines at 57 percent of the sites sampled within this area and in at
least one site, the population decline has been severe. Activities that
may threaten the habitat features important for black abalone
conservation are: waste-water discharge, agricultural pesticide
application and irrigation, oil and chemical spills and clean-up,
construction and operation of desalination plants, kelp harvesting, and
activities that exacerbate global climate change. The CHRT scored the
conservation value of this area as ``High.''
Specific Area 10. Specific Area 10 includes rocky intertidal
habitats from Monta[ntilde]a de Oro State Park in San Luis Obispo
County, California, to just south of Government Point, Santa Barbara
County, California. Monta[ntilde]a de Oro State Park is the first
stretch of rocky intertidal habitat encountered to the south of the
sandy beaches of Estero Bay, thus it was chosen to delineate the
northern boundary of this specific area. The southern boundary of this
area, Government Point, is where the Santa Barbara Channel meets the
Pacific Ocean, the mostly north-south trending portion of coast
transitions to a mostly east-west trending part of the coast, and a
natural division between Southern and Central California occurs. For
these reasons, it was chosen as the southern boundary of this specific
area. Historical data indicates that black abalone were present at 100
percent of the sites sampled within this specific area and that they
were considered to be common at a majority of the sites sampled
(Raimondi et al., 2002; Tissot, 2007). PISCO and UCSC established long-
term monitoring sites within this area between 1992 and 2007, and,
within the last 5 years, population declines have been noted at most
locations within this specific area, with local extinction occurring in
at least one sampling site. Despite declines in abundance and lack of
evidence of recent recruitment in this specific area, the CHRT
confirmed that the PCEs range from fair to excellent quality along this
stretch of the California coast. The CHRT identified several activities
that may threaten the quality of the PCEs within this specific area,
including: in-water construction, waste-water discharge, coastal
development, agricultural pesticide application and irrigation,
construction and operation of power generating and desalination plants,
mineral and petroleum exploration and extraction, non-native species
introduction and management, kelp harvesting and activities that
exacerbate global climate change. The CHRT scored the conservation
value of this area as ``High.''
Specific Area 11. Specific Area 11 includes rocky intertidal
habitats surrounding the Palos Verdes Peninsula and extends from the
Palos Verdes/Torrance border to Los Angeles Harbor in southwestern Los
Angeles County, California. This small peninsula is one of only two
areas within Santa Monica Bay that contain intertidal and subtidal
rocky substrate suitable for supporting black abalone. The limited
extent of rocky intertidal habitat is what defines the northern and
southern boundaries of this specific area. Long-term intertidal
monitoring on the Peninsula conducted by the California State
University Long Beach (CSULB) and the Cabrillo Marine Aquarium began in
1975, and, at that time, densities ranged from 2 to 7 per m\2\.
Densities declined throughout the 1980s, and by the 1990s black abalone
were locally extinct at a majority of sampling sites within the area.
Good to high quality rocky substrate and food resources and fair to
good settlement habitat persist within this area, which led to the
CHRT's conclusion that this area is of ``Medium'' conservation value.
The CHRT recognized that water quality within this area is in poor
condition. Unlike the majority of the other areas where significant
declines in black abalone abundance have been observed, declines in
this area occurred prior to the onset of WS and have been attributed to
the combined effects of significant El Ni[ntilde]o events and poor
[[Page 59908]]
water quality resulting from large-volume domestic sewage discharge by
Los Angeles County during the 1950s and 1960s (Leighton, 1959; Cox,
1962; Young, 1964; Miller and Lawrenz-Miller, 1993). From the mid-1970s
to 1997, however, improved wastewater treatment processes resulted in
an 80 percent reduction in the discharge of total suspended solids from
the White Point outfall. That, along with kelp replanting efforts in
the 1970s, resulted in a remarkable increase in the kelp canopy from a
low of 5 acres (2 hectares) in 1974 to a peak of more than 1,100 acres
(445 hectares) in 1989. More recently, erosion and sedimentation have
threatened the kelp beds off the Palos Verdes Peninsula. Since 1980, an
active landslide at Portuguese Bend on the Palos Verdes Peninsula has
supplied more than seven times the suspended solids as the Whites Point
outfall (LACSD, 1997). Currently, there is no evidence that this area
supports recruitment, and, given the extremely low numbers of juveniles
and adults, it is suspected that the area does not support long-term
persistence of this population (Miller and Lawrenz-Miller, 1993; J.
Kalman and B. Allen, pers. comm.). However, because many of the habitat
features important to black abalone are still present and are in fair
to excellent condition, the CHRT scored the conservation value of this
area as ``Medium.'' The activities that may threaten the habitat
features important to the conservation of black abalone are sand
replenishment, waste-water management, non-native species introduction
and management, kelp harvesting, and activities that exacerbate global
climate change.
Specific Area 12. Specific Area 12 includes rocky intertidal
habitats from Corona Del Mar State Beach to Dana Point in Orange
County, California. The limited extent of rocky intertidal habitat is
what defines the northern and southern boundaries of this specific
area. Historical information for this area indicates that black abalone
were present along this stretch of coastline, and limited abundance
information suggests densities of <1 per m\2\ (Tissot, 2007; S. Murray,
pers. comm.) in the late 1970s and early 1980s. Thus, there is
uncertainty regarding whether these populations were viable at that
time. By 1986, local extinction of black abalone at one sampling
location within this specific area was reported (Tissot, 2007). The
University of California Fullerton began monitoring four sites within
this area in 1996, and no black abalone have been observed at these
locations within the last 5 years. A putative black abalone was
observed at one additional location in January, 2010. The area contains
rocky substrate (88 percent of rocky substrate is consolidated) and
food resources that are in fair to good condition, but settlement
habitat and water quality are in poor to fair condition. Abundance of
crustose coralline algae is limited in the rocky intertidal area and
the extirpation of abalone from the habitat has resulted in a shift in
its biogenic structure, rendering the area less suitable for settling
abalone larvae. Water quality may be tainted by waste-water discharge,
agricultural pesticide application and irrigation, construction and
operation of desalination plants, and changes in the thermal and
chemical properties of sea water through global climate change. Food
resources within this area may be impacted by kelp harvesting
activities. The CHRT scored this area of ``Low'' conservation value
primarily because the quality of the PCEs is relatively low and because
black abalone have not been identified at regularly monitored sampling
locations within the last five years.
Specific Areas 13-16. Specific Areas 13-16 include the rocky
intertidal habitat surrounding the Northern California Channel Islands:
San Miguel, Santa Rosa, and Santa Cruz islands in Santa Barbara County,
California, and Anacapa Island in Ventura County, California. The
Northern Channel Islands lay just off California's southern coast in
the Santa Barbara Channel and remain somewhat isolated from mainland
anthropogenic impacts. In 1980, Congress designated these islands and
approximately 100,000 acres (405 km\2\) of submerged land surrounding
them as a national park because of their unique natural and cultural
resources. This area was augmented by the designation of Channel
Islands National Marine Sanctuary later that year. The sanctuary
boundaries stretch 6 nautical miles (11 km) offshore, including their
interconnecting channels. Channel Islands National Park (CINP) began an
intertidal monitoring program on San Miguel, Santa Rosa, and Anacapa
islands in the early to mid-1980s, while monitoring on Santa Cruz
Island did not begin until 1994. Historically, black abalone were
present and common at 76 percent of the sampling locations within these
specific areas (Water Quality Control Board, 1979; Water Quality
Control Board, 1982; Water Quality Control Board, 1982; B. Douros,
pers. comm.; CINP, pers. comm.; Tissot, 2007). Severe population
declines began in 1986 and by the 1990s declines in abundance of >99
percent were observed at all of the CINP sampling sites. Within the
last 5 years, abundance at most locations remains depressed; however,
at a small number of sites abundance has increased and repeated
recruitment events have occurred. These areas contain fair to excellent
rocky substrate, food resources, settlement habitat and water quality,
despite the fact that abundance has declined dramatically since the
1980s. Because these islands are somewhat remote, there is a limited
list of activities that may threaten the PCEs in these specific areas
and they include: oil and chemical spills and clean-up on Santa Cruz
Island; waste-water discharge, agricultural pesticide application and
irrigation on Anacapa Island; and kelp harvesting and activities that
exacerbate global warming. The CHRT recognized that, although these
areas are currently lacking multiple size classes of black abalone,
there is evidence of small-scale recovery at a few locations, and,
therefore, these areas received ``High'' conservation value scores.
Specific Areas 17-20. Specific Areas 17-20 include the rocky
intertidal habitat surrounding the Southern California Channel Islands:
San Nicolas Island in Ventura County, CA, Santa Barbara Island in Santa
Barbara County, CA, and Santa Catalina and San Clemente islands in Los
Angeles County, California. The Southern Channel Islands are part of
the same archipelago that includes the Northern Channel Islands. San
Nicolas and San Clemente islands have been owned and operated by the
U.S. Navy since the early 1930s. These islands accommodate a variety of
Navy training, testing and evaluation activities including naval
surface fire support, air-to-ground ordnance delivery operations,
special operations, surface weapon launch support, and radar testing.
Santa Barbara Island and its surrounding waters out to six nautical
miles (11km) were designated part of the CINP and the Channel Islands
National Marine Sanctuary in 1980. Since 1972, Santa Catalina Island
has been owned primarily by a nonprofit organization, the Catalina
Island Conservancy, whose mission is to preserve and conserve the
island.
Since 1981, the U. S. Geological Survey (USGS) and the University
of Washington (UW) have monitored multiple sites around San Nicolas
Island. Black abalone were considered common at all of the sites up
until approximately 1993, when mass mortalities due to WS swept through
the island (VanBlaricom, 2009). Within the last 5 years, slight
increases in
[[Page 59909]]
abundance have been observed at 33 percent of the sampled sites and
moderate increases in abundance at one site. At 55 percent of the
sampled sites, abundance remains low with densities less than 2 percent
of their former values prior to population declines. Recent repeated
recruitment events have occurred at a few sites as evidenced by the
presence of small individuals (<30 mm; VanBlaricom, unpublished data).
Thus, this specific area supports early life stages. However, the long-
term survival of juveniles and adults is questionable, given that
relative abundance levels remain low and evidence of multiple size
classes is still lacking at the majority of sampling sites. All of the
PCEs are present and are of good to excellent quality, which led the
CHRT to score this area as one of ``High'' conservation value. The CHRT
identified the following activities that may compromise the quality of
habitat features essential to the conservation of black abalone within
this specific area: in-water construction, waste-water management,
coastal development, construction and operation of desalination plants,
kelp harvesting, and activities that exacerbate global climate change.
CINP began limited sampling at Santa Barbara Island in 1985. At
that time black abalone were present on the island, and their
qualitative abundance levels ranged from rare to common. Within the
last 5 years black abalone have disappeared from one sampling site and
remain present, but rare, at another. The CHRT considered the rocky
substrate and settlement habitat to be of fair to good quality, food
resources to be of poor to fair quality, and water quality to be good
to excellent. However, given the lack of evidence of recruitment both
historically and currently and very low numbers of juveniles and
adults, the CHRT scored the conservation value of this area as
``Medium.'' The only activities that threaten the PCEs and that may
require special management on Santa Barbara Island are those that alter
the thermal and chemical properties of sea water through global climate
change, most notably fossil fuel combustion.
Surveys conducted around Catalina Island in the 1960s, 1970s, and
1980s confirm that black abalone were present at a variety of locations
around the island, but size distribution and abundance information are
lacking. The PISCO University of California Los Angeles group
established two long-term sampling sites in 1982 and 1995, and, since
the 1990s, black abalone have not been encountered at these sites. All
of the PCEs are present and are in fair to excellent condition. There
is a great deal of uncertainty regarding whether the island supports
early life stages and the long-term survival of juveniles and adults
because data are lacking. The CHRT scored the conservation value of
this area as ``High,'' despite uncertainty in the demographic history
and current status of populations on Catalina, because the habitat is
in good condition and could support black abalone populations in the
future. Several activities may compromise the generally good habitat
quality surrounding Catalina Island, including in-water construction,
waste-water discharge, coastal development, oil and chemical spills and
clean-up, construction and operation of desalination plants and tidal
and wave energy projects, kelp harvesting and activities that
exacerbate global climate change.
San Clemente Island was surveyed by the California Department of
Fish and Game from 1988-1993. As late as October 1988, black abalone
were present and populations were robust at a number of locations, but
by 1990, population declines due to WS were underway (CDFG, 1993).
Densities decreased to less than 1 per m\2\ by 1993 (CDFG, 1993). The
Department of Defense initiated a San Clemente Island-wide
investigation to determine the current extent of remaining black
abalone populations on the island in 2008. During 30-minute timed
searches at 61 locations that each covered approximately 1500 m\2\ of
potential black abalone habitat, ten black abalone (all > 100 mm) were
identified and all but two of the animals were solitary individuals
(Tierra Data Inc., 2008). All of the PCEs are present and are in good
to excellent condition, despite the fact that there is no evidence of
recruitment and the island currently does not support long-term
survival of adults. In order to protect these high quality PCEs and
promote the conservation of black abalone, certain activities may
require modification, such as in-water construction, coastal
development, kelp harvesting, and activities that exacerbate global
climate change. Thus, the CHRT deemed this area as being of ``High''
conservation value.
Special Management Considerations or Protection
Joint NMFS and USFWS regulations at 50 CFR 424.02(j) define
``special management considerations or protection'' to mean ``any
methods or procedures useful in protecting physical and biological
features of the environment for the conservation of listed species.''
The CHRT identified several threats to black abalone PCEs and the areas
in which those threats occur. NMFS and the CHRT then determined whether
at least one PCE in each specific area may require special management
considerations or protection because of a threat or threats. NMFS and
the CHRT worked together to identify activities that could be linked to
threats, and when possible, identified ways in which activities might
be altered in order to protect and improve the quality of black abalone
PCEs. These activities are described briefly in the following
paragraphs and Table 1. These activities are documented more fully in
the draft biological report (NMFS, 2010c) and draft economic report
(NMFS, 2010a), which provide a description of the potential effects of
each category of activities on the PCEs.
The major categories of habitat-related activities include: (1)
Coastal development (e.g., construction or expansion of stormwater
outfalls, residential and commercial construction); (2) in-water
construction (e.g., coastal armoring, pier construction, jetty or
harbor construction, pile driving); (3) sand replenishment or beach
nourishment activities; (4) dredging and disposal of dredged material;
(5) agricultural activities (e.g., irrigation, livestock farming,
pesticide application); (6) National Pollutant Discharge Elimination
System (NPDES) activities and activities generating non-point source
pollution; (7) sidecasting activities (e.g., the piling of excavated
dirt on the edge of a ditch or elsewhere in a wetland or other water
body because of road maintenance); (8) oil and chemical spills and
clean-up activities; (9) mineral and petroleum exploration or
extraction activities; (10) power generation operations involving water
withdrawal from and discharge to marine coastal waters; (11)
construction and operation of alternative energy hydrokinetic projects
(tidal or wave energy projects); (12) construction and operation of
desalination plants; (13) construction and operation of liquefied
natural gas (LNG) projects; (14) vessel groundings; (15) non-native
species introduction and management (from commercial shipping and
aquaculture); (16) kelp harvesting activities; and (17) activities that
exacerbate global climate change (e.g., fossil fuel combustion).
The draft Biological Report (NMFS 2010a) and draft Economic
Analysis Report (NMFS 2010b) provide a description of the potential
effects of each category of activities and threats on the PCEs. For
example, activities such as in-water construction, coastal development,
dredging and disposal, sidecasting, mineral and petroleum
[[Page 59910]]
exploration and extraction, and sand replenishment may result in
increased sedimentation, erosion, turbidity, or scouring in rocky
intertidal habitats and may have adverse impacts on rocky substrate,
settlement habitat, food resources, water quality, or nearshore
circulation patterns. The construction of proposed energy and
desalination projects along the coast would result in increased in-
water construction and coastal development. The operation of these
energy projects and desalination projects may also increase local water
temperatures with the discharge of heated effluent, introduce elevated
levels of certain metals or contaminants into the water, or alter
nearshore water circulation patterns. The discharge of contaminants
from activities such as NPDES activities may affect water quality, food
resources (by affecting the algal community), and settlement habitat
(by affecting the ability of larvae to settle). Introduction of non-
native species may also affect food resources and settlement habitat if
these species alter the natural algal communities. Shifts in water
temperatures and sea level related to global climate change may also
affect black abalone habitat. For example, coastal water temperatures
may increase to levels above the optimal range for black abalone, and
sea level rise may alter the distribution of rocky intertidal habitats
along the California coast.
Table 1--Summary of Activities That May Affect Black Abalone PCEs, Including: The Area(s) in Which the Activity
Is Located, the PCE(s) the Activity Could Affect and the Nature of That Threat, the ESA Section 7 Nexus for That
Activity, and the Possible Modifications to the Activity Due to the Black Abalone Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
Possible
Activity Specific areas PCE and nature of Section 7 nexus modification(s) to
the threat the activity
----------------------------------------------------------------------------------------------------------------
Dredging..................... Unknown........ Rocky substrate PCE-- The U.S. Army Corps Restrictions on the
We solicit the Dredging that does of Engineers spatial and
public for occur near rocky (USACE) issues temporal extent of
more intertidal areas permits pursuant to dredging activities
information may increase Section 404 of the and the deposition
(see ``Public sedimentation into Clean Water Act of dredge spoil.
Comments the rocky habitat. (CWA), among Requirements to
Solicited''). A variety of several others. The treat (detoxify)
harmful substances, USACE must then dredge spoil.
including heavy consult with NMFS
metals, oil, under section 7 of
tributyltin (TBT), the ESA.
polychlorinated
biphenyls (PCBs)
and pesticides, can
be absorbed into
the seabed
sediments and
contaminate them.
Water quality PCE--
Dredging and
disposal processes
can release
contaminants into
the water column,
affecting water
quality, and making
them available to
be taken up by
animals and plants,
which could cause
morphological or
reproductive
disorders..
In-water construction........ 10, 17, 19, and Rocky substrate PCE-- The USACE issues Bank stabilization
20. Increased permits pursuant to measures and more
sedimentation, a Section 10 of the natural erosion
side effect of some Rivers and Harbors control.
in-water Act of 1899 (RHA)
construction among several
projects, can others. Although in-
reduce the quality water construction
and/or quantity of projects are
rocky substrate. commonly unertaken
Food resources PCE-- by private or non-
The presence of in- Federal parties, in
water structures most cases they
may affect black must obtain a USACE
abalone habitat by permit. The USACE
affecting the must then consult
distribution and with NMFS under
abundance of algal section 7 of the
species that ESA.
provide food for
abalone or the
distribution and
abundance of other
intertidal
invertebrate
species..
[[Page 59911]]
Settlement habitat
PCE--Changes in
algal communities
could affect
settlement of
larval abalone
(believed to be
influenced by the
presence of
coralline algae)..
Nearshore
circulation pattern
PCE--Nearshore
circulation
patterns may affect
intertidal
communities by
providing stepping-
stones between
populations,
resulting in range
extensions for
species with
limited dispersal
distances.
Artificial
structures, like
breakwaters, may
also alter the
physical
environment by
reducing wave
action and
modifying nearshore
circulation and
sediment transport..
Sand replenishment........... 2, 4, 7, and 11 Rocky substrate PCE-- The USACE is Monitor the water
Sand movements responsible for quality (turbidity)
could cover up administering during and after
rocky substrate Section 404 permits the project. Place
thereby reducing under the CWA, a buffer around
its quality and/or which are required pertinent areas
quantity. for sand within critical
replenishment habitat that sand
activities. replenishment
projects have to
work around. Ensure
any dredge
discharge pipelines
are sited to avoid
rocky intertidal
habitat. Construct
training dikes to
help retain the
sand at the
receiving location,
which should
minimize movement
of sand into the
rocky intertidal
areas.
NPDES-permitted activities... 1, 2, 3, 4, 5, Food resources PCE-- Issuance of CWA Where Federal
7, 8, 9, 10, Sewage outfalls may permits. State permits are
11, 12, 16, affect food water quality necessary, ensure
17, and 19. resources by standards are discharge meets
causing light subject to an ESA standards other
levels to be section 7 than existing
reduced to levels consultation federal standards
too low to support between NOAA and and regulations
Macrocystis the EPA and NOAA (EPA, CWA). Require
germination and can review measures to prevent
growth. individual NPDES or respond to a
Eutrophication permit applications catastrophic event
occurs around for impacts on ESA- (i.e., using best
southern California listed species. technology to avoid
sewage outfalls unnecessary
where phytoplankton discharges).
crops and primary
production exceed
typical levels and
approach values
characteristic of
upwelling periods.
Water quality PCE--
Exposure to heavy
metals can affect
growth of marine
organisms, either
promoting or
inhibiting growth
depending on the
combination and
concentrations of
metals. There is
little information
on these effects on
black abalone,
however..
[[Page 59912]]
Coastal development.......... 2, 4, 7, 8, 10, Rocky substrate PCE-- The USACE permits Stormwater pollution
17, 19, and 20. Increased sediment construction or prevention plan;
load that may expansion of permanent
result from stormwater stormwater site
urbanization of the outfalls, discharge plan; and
coast and of or fill of stormwater best
watersheds wetlands, flood management practice
(increased control projects, operations and
transport of fine bank stabilization, maintenance.
sediments into the and in-stream work.
coastal zone by
rivers or runoff)
can reduce the
quality and/or
quantity of rocky
substrate. For
example, in a study
on San Nicolas
Island, black
abalone ``dominated
areas where rock
contours provided a
refuge from sand
deposition''
(Littler et al.,
1983, cited in
Airoldi, 2003).
Overall, there has
been little study
of the effects of
increased
sedimentation on
rocky shoreline
communities
(Airoldi, 2003). In
addition,
construction of
coastal armoring is
often associated
with coastal urban
development to
protect structures
from wave action or
prevent erosion
(see ``in-water
construction'' in
Section 2.1).
Food resources PCE--
Increased
sedimentation may
also affect feeding
by covering up food
resources, altering
algal communities
(including algal
communities on the
rocky reef and the
growth of kelp
forests that supply
drift algae), and
altering
invertebrate
communities
(affecting
biological
interactions).
Ephemeral and turf-
forming algae were
found to be favored
in rocky intertidal
areas that
experience
intermittent
inundation
(Airoldi, 1998,
cited in Thompson
et al., 2002)..
Settlement habitat
PCE--Increased
sedimentation may
affect settlement
of larvae and
propagules by
covering up
settlement habitat
as well as
affecting the
growth of
encrusting
coralline algae
(see Steneck et
al., 1997, cited in
Airoldi, 2003),
thought to be
important for
settlement.
Sidecasting.................. 7 and 8........ Rocky substrate and National Marine Haul away (or store
settlement habitat Sanctuary (NMS) locally) excess
PCEs--Increased regulations material from road
likelihood of prohibit discharge maintenance
sediment input into of materials within activities, rather
rocky intertidal its boundaries, as than sidecast;
habitats may reduce well as outside its place excess
its quality and boundaries if the material at a
quantity. material may enter stable site at a
Food resources PCE-- the sanctuary and safe distance from
Sidecasting may harm sanctuary rocky intertidal
result in possible resources. However, habitats; and use
reductions or under certain mulch or vegetation
changes to food circumstances, a to stabilize the
resources. See permit may be material.
sedimentation obtained from the
effects as Monterey Bay
described under National Marine
``Coastal Sanctuary (MBNMS)
development'', to allow for a
above.. prohibited activity.
[[Page 59913]]
Agricultural activities 1, 2, 3, 4, 7, Rocky substrate PCE-- Irrigation--any For irrigated
(including pesticide 8, 9, 10, 12, Soil erosion from water supplier agriculture:
application, irrigation, and and 16. intensive irrigated providing water via conservation crop
livestock farming). agriculture or contract with U.S. rotation,
livestock farming Bureau of underground
of areas adjacent Reclamation (USBR) outlets, land
to the coast can or using smoothing,
cause increased infrastructure structures for
sedimentation owned or maintained water control,
thereby reducing by the USBR is subsurface drains,
the quality and subject to section field ditches,
quantity of rocky 7 consultation mains or laterals,
substrate. under ESA. and toxic salt
Food resources PCE-- Privately owned reduction.
Herbicides are diversions may For pesticides
designed to kill require a Federal application:
plants, thus permit from USACE restrictions on
herbicide under sections 401 application of some
contamination of or 404 of the CWA. pesticides within
water could have Pesticide certain distances
devastating effects Application--Enviro of streams.
on aquatic plants.. nmental Protection For livestock
Settlement habitat Agency (EPA) farming: fencing
PCE--Laboratory consultation on the riparian areas;
experiments showed Federal placing salt or
that the presence Insecticide, mineral supplements
of pesticides Fungicide, and to draw cattle away
(those examined in Rodenticide Act from rivers; total
the study were DDT, (FIFRA), pesticide rest of allotments
methoxychlor, registration when possible; and
dieldrin, and 2,4- program, and NPDES frequent
D) interfered with permits for aquatic monitoring.
larval settlement. pesticides..
Presence of Livestock farming--
pesticides had a Bureau of Land
much lesser effect Management (BLM)
on survival of and the U.S. Forest
larvae.. Service (USFS)..
Water quality PCE--
Pesticides alter
the chemical
properties of sea
water such that
they can interfere
with settlement
cues emitted by
coralline algae and
associated diatom
films and/or they
may inhibit growth
of marine algae
upon which black
abalone depend for
food. There is
little information
on these effects on
black abalone or
related species,
however, especially
for pesticides that
are currently in
use.
[[Page 59914]]
Oil & chemical spills & clean- 4, 5, 7, 8, 9, Rocky substrate and Review of oil spill Restrict or minimize
up. 12, 15, and 19. settlement habitat response plan from the use or type of
PCEs--Oil spill United States Coast response to oil
clean-up activities Guard (USCG). spills (e.g. boom,
may be as Regulations under dispersants, in
destructive, or the Water Pollution situ burning) in
more destructive, Control Act. areas where black
than the oil spill abalone habitat
itself. Oil spill exists. Mitigation
clean-up may measures include
involve application adoption of oil/
of toxic chemical spill
dispersants and the clean-up protocols
use of physical and oil/chemical
cleaning methods spill prevention
such as the use of plans, more Clean
high pressure and/ Seas boats as first
or high temperature responders to
water to flush out prevent oil/
oil which may chemical spills
decrease the from coming
quality of rocky onshore, and
substrate and relocation of
settlement habitat proposed oil/
in an area. Oil, chemical platforms
oil/dispersant further away from
mixtures, and black abalone
dispersants used in habitats.
oil spill clean-up
may adversely
affect grazing
mollusks like
abalone in rocky
intertidal areas,
although less-toxic
dispersants have
been developed in
recent years.
Food resources PCE--
The use of
dispersants and
physical cleaning
methods may affect
black abalone food
resources (algal
community).
Chemical spills
could also affect
food resources, if
the chemicals kill
algae or affect
algal growth..
Water quality PCE--
Effects of oil
spills vary from no
discernable
differences to
widespread
mortality of marine
invertebrates over
a large area and
reduced densities
persisting a year
after the spill..
Vessel grounding............. 8.............. Rocky substrate and The USCG has the Best management
settlement habitat authority to practices (BMP) for
PCEs--Vessel respond to all oil oil spill and
grounding can and hazardous debris clean-up to
affect the rocky substance spills in reduce trampling.
substrate and have the offshore/ Education of USCG,
substantial effects coastal zone, while NMS biologists, and
on the environment, the EPA has the others involved in
ranging from minor authority to clean-up to raise
displacement of respond in the awareness of black
sediment to inland zone. abalone.
catastrophic damage
to reefs. Wave
activity may also
cause the vessel to
roll excessively
and do more damage
to the ocean floor.
Food resources and
water quality PCEs--
The risk of
invasion by foreign
species attached to
the ship's hull
into a local
environment. The
wreck of an ocean-
going vessel can
result in large
masses of steel
distributed over
substantial areas
of seabed,
particularly in
high energy,
shallow water
environments. The
wreckage may be a
chronic source of
dissolved iron.
Elevated levels of
iron may affect
water quality and
result in an
increase of
opportunistic algae
blooms..
[[Page 59915]]
Construction and operation of 10............. Water quality PCE-- The Diablo Canyon Require cooling of
power plants. The power plants' Nuclear Power thermal effluent
use of coastal Plant, located in before release to
waters for cooling specific area 10, the environment
and subsequently is licensed through (may require use of
discharging of the Nuclear different
heated water back Regulatory technology).
into the marine Commission. Require treatment
environment may of any contaminated
raise water waste materials.
temperatures and Modifications
introduce associated with
contaminants into permit issued under
the water. Elevated NPDES (any updates
water temperatures from current early
have been linked to 1990s issuance).
increased virulence Dry cooling systems
of the withering (not as feasible as
syndrome disease. wet cooling systems
due to greater
logistical
constraints and
total costs).
Modifications to
cooling water
intake flow by
season and
operational
conditions using
variable speed
pumps/variable
frequency drives
(benefits depend on
the frequency and
degree that flow
can be reduced
without affecting
operations). Use of
reclaimed water as
a source of makeup
water for wet
cooling towers or
as a source for
once-through
cooling water
systems.
Construction and operation of 4, 7, 8, 9, 10, Water quality PCE-- A desalination Potential
desalination plants. 12, 17, and 19. Discharge of hyper- facility may conservation
saline water require a Section efforts to mitigate
results in 404 permit under desalination
increased salinity the CWA from the impacts may include
and fluctuating USACE if it the treatment of
salinity conditions involves placing hyper-saline
that may affect fill in navigable effluent to ensure
sensitive organisms waters, and a that salinity
near the outfall. Section 10 permit levels are restored
The impacts of under the RHA if to normal values.
brine effluent are the proposal The costs of
generally more involves placing a treating hyper-
severe in rocky structure in a saline effluent or
substrate than on navigable waterway. finding an
sandy seafloor alternate manner of
habitats. However, brine disposal can
more research is vary widely across
needed on the plants depending on
tolerance level of plant capacity and
black abalone for design.
different
salinities. Other
effects of the
discharge on water
quality include
increased
turbidity,
concentration of
organic substances
and metals
contained in the
feed waters,
concentration of
metals picked up
through contact
with the plant
components, thermal
pollution, and
decreased oxygen
levels. Entrainment
and impingement of
black abalone
larvae may also
occur from water
intake at
desalination
plants, but this is
primarily a take
issue.
[[Page 59916]]
Construction and operation of 1 and 19....... Rocky substrate PCE-- Subject to the Use of non-toxic
tidal and wave energy Impacts on rocky Federal Energy fluids instead of
projects. substrate may Regulatory toxic fluids.
result from the Commission (FERC) When the project
installation of permitting and requires the use of
power lines to licensing power lines, use
transport power to requirements, as existing power
shore. These well as lines, instead of
projects typically requirements under constructing new
involve placement Section 401 of the ones, and avoid
of structures, such CWA. rocky intertidal
as buoys, cables, areas.
and turbines, in
the water column.
Water quality PCE--
Alternative energy
projects may result
in reduced wave
height by as much
as 5 to 13 percent,
which may benefit
abalone habitat.
Effects on wave
height would
generally only be
observed 1-2 km
away from the wave
energy device.
Another concern is
the potential for
liquids used in the
system to leak or
be accidentally
spilled, resulting
in release of toxic
fluids. Toxins may
also be released in
the use of biocides
to control the
growth of marine
organisms. The
potential effects
of coastal wave and
tidal energy
projects on black
abalone habitat are
uncertain, because
these projects are
relatively new and
the impacts are
very site-specific..
Construction and operation of Unknown........ Rocky substrate PCE-- CWA permits under Offshore facilities:
liquefied natural gas (LNG) We solicit the Onshore LNG section 401 (water In the installation
projects. public for terminals, quality of pipelines, avoid
more construction of certificate) and/or rocky intertidal
information breakwaters, section 404 (a habitats or use
(see ``Public jetties, or other dredge and fill existing pipelines.
Comments shoreline permit) and Clean Onshore siting
Solicited''). structures and the Air Act permits considerations:
activities under section 502 Avoid siting LNG
associated with may be required. projects within or
construction (e.g., adjacent to rocky
dredging) may intertidal
affect black habitats.
abalone habitat.
Offshore LNG
terminals involve
construction of
pipelines to
transport LNG
onshore and may
affect rocky
habitat. See
sedimentation
effects described
under ``dredging'',
``in-water
construction'', and
``coastal
development''.
Food resource and
water quality PCEs--
There is an
increased potential
for oil spills and
potential effects
on water quality
from the presence
of vessels
transporting and
offloading LNG at
the terminals..
[[Page 59917]]
Mineral and petroleum 10............. Rocky substrate PCE-- The Mineral Adoption of erosion
exploration and extraction. This activity may Management Service control measures.
result in increased (MMS) manages the Adoption of oil
sedimentation into nation's offshore spill clean-up
rocky intertidal energy and mineral protocols and oil
habitats. See resources, spill prevention
sedimentation including oil, gas, plans; more Clean
effects described and alternative Seas boats as first
under ``dredging'', energy sources, as responders to
``in-water well as sand, prevent oil spills
construction'', and gravel and other from coming
``coastal hard minerals on onshore; and
development''. the outer relocation of
Food resources and continental shelf. proposed oil
settlement habitat platforms further
PCE--In a away from black
laboratory study, abalone habitats.
water-based
drilling muds from
an active platform
were found to
negatively affect
the settlement of
red abalone larvae
on coralline algae,
but fertilization
and early
development were
not affected..
Water quality PCE--
The activity may
cause an increased
risk of oil spills
or leaks and
increased
sedimentation
thereby affecting
water quality..
Non-native species 2, 4, 8, 10, Food resources PCE-- The National For commercial
introduction and management. and 11. The release of Invasive Species shipping: safe (non-
wastewater, sewage, Act of 1996 (NISA) contaminated)
and ballast water and the ballast disposal;
from commercial Nonindigenous rinse anchors and
shipping presents a Aquatic Nuisance anchor chains when
risk to kelp and Prevention and retrieving the
other macroalgal Control Act of 1990 anchor to remove
species because of under the USCG. organisms and
the potential sediments at their
introduction of place of origin;
exotic species. remove hull fouling
Settlement habitat organisms from
PCE--Non-native hull, piping,
species may propellers, sea
displace native chests, and other
organisms by submerged portions
preying on them or of a vessel, on a
out-competing them regular basis, and
for resources such dispose of removed
as food, space or substances in
both. Non-native accordance with
species may local, state, and
introduce disease- federal law.
causing organisms For aquaculture:
and can cause inspect aquaculture
substantial facilities to
population, prevent non-native
community, and species transport
habitat changes. in packing
Other possible materials.
consequences of non-
native species
introductions could
be impacts on flow
patterns, sediment
and nutrient
dynamics, and
impacts on native
bioengineering
species..
Kelp harvesting.............. 7-20........... Food resources PCE-- None................ None.
Kelp is the primary
source of food for
black abalone. Kelp
is harvested for
algin, which is
used as a binder,
emulsifier, and
molding material in
a broad range of
products, and as a
food source in
abalone aquaculture
operations. The
harvest is small,
but the kelp grows
quickly, and
harvest could
generate drift
(which can
potentially be
beneficial to black
abalone). Potential
impacts related to
kelp harvesting are
unclear.
[[Page 59918]]
Activities leading to global 1-20........... Affects all PCEs. Uncertain........... Uncertain.
climate change (e.g., fossil There is little
fuel combustion). information on
these effects,
however. We solicit
the public for more
information (see
``Public Comments
Solicited'').
Water quality PCE--
Sea surface water
temperatures that
exceed 25[ordm]C
may increase risks
to black abalone.
Ocean pH values
that are outside of
the normal range
for seawater (i.e.,
pH less than 7.5 or
greater than 8.5)
may cause reduced
growth and
survivorship in
abalone as has been
observed in other
marine gastropods
(Shirayama and
Thornton, 2005)..
Food resources and
settlement habitat
PCE-Increasing
partial pressure of
carbon dioxide may
reduce abundance of
coralline algae and
thereby affect the
survival of newly
settled black
abalone (Feely et
al., 2004; Hall-
Spencer et al.,
2008)..
----------------------------------------------------------------------------------------------------------------
Unoccupied Areas
Section 3(5)(A)(ii) of the ESA authorizes the designation of
``specific areas outside the geographical area occupied at the time
[the species] is listed'' if these areas are essential for the
conservation of the species. Regulations at 50 CFR 424.12(e) emphasize
that the agency ``shall designate as critical habitat areas outside the
geographical area presently occupied by a species only when a
designation limited to its present range would be inadequate to ensure
the conservation of the species.'' The CHRT identified potential
unoccupied areas to consider for designation. These areas represent
segments of the California and Oregon coast that contain rocky
intertidal habitats that historically supported black abalone and that
may support black abalone populations in the future. The CHRT
identified the following unoccupied areas: (1) From Cape Arago State
Park, Oregon, to Del Mar Landing Ecological Reserve, California; (2)
from just south of Government Point to Point Dume State Beach,
California; and (3) from Cardiff State Beach in Encinitas, California,
to Cabrillo National Monument, California.
In each of these areas, black abalone have not been observed in
surveys in the past 5 years. In the area from Cape Arago, Oregon, to
the Del Mar Landing Ecological Reserve, California, four museum
specimens of black abalone were noted from two survey sites (Geiger,
2004), one specimen was noted from another site where red abalone are
considered common (Thompson, 1920), and no data on black abalone were
available for the other sites. Black abalone were not observed during
rocky intertidal surveys conducted in the 1970s and 1980s at several
sites within this area (J. DeMartini, pers. comm.). In the area from
just south of Government Point to Point Dume State Beach in California,
black abalone were reported as rare at one site (Morin and Harrington,
1979), but have never been observed at the other survey sites. In the
area from Cardiff State Beach to Cabrillo National Monument in
California, black abalone were noted to be historically present at a
few sites (Zedler, 1976, 1978) and rare at one site (California State
Water Resources Control Board, 1979).
At this time, the CHRT concluded that the three unoccupied areas
may be essential for conservation, but that there is currently
insufficient data to conclude that any of the areas are essential for
conservation. Therefore, the three presently unoccupied areas were not
considered in further analyses. We solicit comments from the public
regarding the historical, current, and potential condition of the
habitat and of black abalone populations within the unoccupied areas
identified above and the importance of these areas to conservation of
the species.
Military Lands
Under the Sikes Act of 1997 (Sikes Act) (16 U.S.C. 670a), ``each
military installation that includes land and water suitable for the
conservation and management of natural resources'' is required to
develop and implement an integrated natural resources management plan
(INRMP). An INRMP integrates implementation of the military mission of
the installation with stewardship of the natural resources found there.
Each INRMP includes: An assessment of the ecological needs on the
military installation, including the need to provide for the
conservation of listed species; a statement of goals and priorities; a
detailed description of management actions to be implemented to provide
for these ecological needs; and a monitoring and adaptive management
plan. Each INRMP must, to the extent appropriate and applicable,
provide for fish and wildlife management, fish and wildlife habitat
[[Page 59919]]
enhancement or modification, wetland protection, enhancement, and
restoration where necessary to support fish and wildlife and
enforcement of applicable natural resource laws. The ESA was amended by
the National Defense Authorization Act for Fiscal Year 2004 (Pub. L.
108-136) to address the designation of military lands as critical
habitat. ESA section 4(a)(3)(B)(i) states: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.'' The Navy's facilities on San Clemente Island and San
Nicolas Island are covered by INRMPs that are currently being revised
to address black abalone conservation. If these INRMPs are finalized
and determined to provide benefits to black abalone, as described under
section 4(a)(3)(B) of the ESA, then the areas would be ineligible for
designation and a determination on whether the areas warrant exclusion
under section 4(b)(2) of the ESA based on national security impacts
would no longer be necessary.
Application of ESA Section 4(b)(2)
Section 4(b)(2) of the ESA requires the Secretary to consider the
economic, national security, and any other relevant impacts of
designating any particular area as critical habitat. Any particular
area may be excluded from critical habitat if the Secretary determines
that the benefits of excluding the area outweigh the benefits of
designating the area. The Secretary may not exclude a particular area
from designation if exclusion will result in the extinction of the
species. Because the authority to exclude is discretionary, exclusion
is not required for any areas. We propose to exclude one occupied
specific area (i.e., Corona Del Mar State Beach to Dana Point, Orange
County, CA) from the critical habitat designation because the economic
benefits of exclusion outweigh the benefits of designation. The first
step in conducting the ESA section 4(b)(2) analysis is to identify the
``particular areas'' to be analyzed. Where we considered economic
impacts and weighed the economic benefits of exclusion against the
conservation benefits of designation, we used the same biologically-
based ``specific areas'' we identified in the previous sections
pursuant to section 3(5)(A) of the ESA (e.g., Del Mar Landing
Ecological Reserve to Bodega Head, Bodega Head to Point Bonita,
Farallon Islands, etc.). Delineating the ``particular areas'' as the
same units as the ``specific areas'' allowed us to most effectively
consider the conservation value of the different areas when balancing
conservation benefits of designation against economic benefits of
exclusion. Delineating particular areas based on impacts on national
security or other relevant impact should be based on land ownership or
control (e.g., land controlled by the Department of Defense (DOD)
within which national security impacts may exist, or Indian lands). We
request information on other relevant impacts that should be considered
(see ``Public Comments Solicited''). The next step in the ESA section
4(b)(2) analysis involves identification of the impacts of designation
(i.e., the benefits of designation and the benefits of exclusion). We
then weigh the benefits of designation against the benefits of
exclusion to identify areas where the benefits of exclusion outweigh
the benefits of designation. These steps and the resulting list of
areas proposed for exclusion from designation are described in detail
in the sections below.
Impacts of Designation
The primary impact of a critical habitat designation stems from the
requirement under section 7(a)(2) of the ESA that Federal agencies
ensure their actions are not likely to result in the destruction or
adverse modification of critical habitat. Determining this impact is
complicated by the fact that section 7(a)(2) contains the overlapping
requirement that Federal agencies must also ensure their actions are
not likely to jeopardize the species' continued existence. One
incremental impact of designation is the extent to which Federal
agencies modify their actions to ensure their actions are not likely to
adversely modify the critical habitat of the species, beyond any
modifications they would make because of the listing and the jeopardy
requirement. When a modification would be required due to impacts to
both the species and critical habitat, the impact of the designation is
considered co-extensive with the ESA listing of the species. Additional
impacts of designation include state and local protections that may be
triggered as a result of the designation and the benefits from
educating the public about the importance of each area for species
conservation. Thus, the impacts of the designation include conservation
impacts for black abalone and its habitat, economic impacts, impacts on
national security, and other relevant impacts that may result from the
designation and the application of ESA section 7(a)(2).
In determining the impacts of the designation, we focused on the
incremental change in Federal agency actions as a result of the
critical habitat designation and the adverse modification prohibition,
beyond the changes predicted to occur as a result of listing and the
jeopardy provision. Following a line of recent court decisions, in
particular, Cape Hatteras Access Preservation Alliance v. Norton, 344
F. Supp. 2d 1080 (D.D.C. 2004)) (Cape Hatteras) we analyzed the impact
of this proposed regulation based on a comparison of the world with and
without the action. Consistent with the Cape Hatteras decision, we
focus on the potential incremental impacts beyond the impacts that
would result from the listing and jeopardy provision. In some
instances, however, it was difficult to exclude potential impacts that
may already occur under the baseline (i.e., protections already
afforded black abalone under its listing or under other Federal, State,
and local regulations). Many uncertainties exist with regard to future
management actions that may be required due to black abalone critical
habitat because of the short consultation history for black abalone and
overlap with protections provided under the listing and other existing
regulations. Thus, the analysis included some impacts that would have
occurred under the baseline regardless of the critical habitat
designation. As such, the consideration of impacts cannot be
characterized as exclusively incremental impacts of the critical
habitat designation (New Mexico Cattle Growers Association v. U.S. Fish
and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001)) (NMCA). Instead,
the impacts of the designation are more correctly characterized as
black abalone impacts.
Once we determined the impacts of the designation, we then
determined the benefits of designation and the benefits of exclusion
based on the impacts of the designation. The benefits of designation
include the conservation impacts for black abalone and its habitat that
result from the critical habitat designation and the application of ESA
section 7(a)(2). The benefits of exclusion include the economic
impacts, impacts on national security, and other relevant impacts
(e.g., impacts on Indian lands) of the designation that would be
avoided if a particular area were excluded from the critical habitat
designation. The following sections describe how we determined the
benefits of designation and the benefits of exclusion and how these
benefits were weighed, as required
[[Page 59920]]
under section 4(b)(2) of the ESA, to identify particular areas that may
be eligible for exclusion from the designation. We also summarize the
results of this weighing process and determinations on the areas that
may be eligible for exclusion.
Benefits of Designation
The primary benefit of designation is the protection afforded under
section 7 of the ESA, requiring all Federal agencies to ensure their
actions are not likely to destroy or adversely modify designated
critical habitat. This is in addition to the requirement that all
Federal agencies ensure their actions are not likely to jeopardize the
continued existence of the species. In addition, the designation may
provide education and outreach benefits by informing the public about
areas and features important to the conservation of black abalone. By
delineating areas of high conservation value, the designation may help
focus and contribute to conservation efforts for black abalone and
their habitats.
The designation of critical habitat has been found to benefit the
status and recovery of ESA-listed species. Recent reports by the USFWS
indicated that species with critical habitat were more likely to have
increased and less likely to have declined than species without
critical habitat (Taylor et al. 2005). In addition, species with
critical habitat were also more likely to have a recovery plan and to
have these plans implemented, compared to species without critical
habitat (Harvey et al., 2002; Lundquist et al. 2002). These benefits
may result from the unique, species-specific protections afforded by
critical habitat (e.g., enhanced habitat protection, increased public
awareness and education of important habitats) that are more
comprehensive than other existing regulations (Hagen and Hodges, 2006).
The benefits of designation are not directly comparable to the
benefits of exclusion for the purposes of weighing the benefits under
conducting the ESA section 4(b)(2) analysis as described below.
Ideally, the benefits of designation and benefits of exclusion should
be monetized in order to directly compare and weigh them. With
sufficient information, it may be possible to monetize the benefits of
a critical habitat designation by first quantifying the benefits
expected from an ESA section 7 consultation and translating that into
dollars. We are not aware, however, of any available data to monetize
the benefits of designation (e.g., estimates of the monetary value of
the PCEs within areas designated as critical habitat, or of the
monetary value of education and outreach benefits). As an alternative
approach, we determined the benefits of designation based on the CHRT's
biological analysis of the specific areas. We used the CHRT's
conservation value ratings (High, Medium, and Low) to represent the
qualitative conservation benefits of designation for each of the
specific areas considered for designation. In evaluating the
conservation value of each specific area, the CHRT focused on the
habitat features present in each area, the habitat functions provided
by each area, and the importance of protecting the habitat for the
overall conservation of the species. The CHRT considered a number of
factors to determine the conservation value of each specific area,
including: (a) The present condition of the primary constituent
elements or PCEs; (b) the level at which the habitat supports
recruitment of early life stages, based on the level of recruitment
observed at survey sites within the area; and (c) the level at which
the habitat supports long-term survival of juvenile and adult black
abalone, based on trends in the abundance and size frequencies of black
abalone populations observed at survey sites within the area. These
conservation value ratings represent the estimated conservation impact
to black abalone and its habitat if the area were designated as
critical habitat, and thus were used to represent the benefit of
designation. The draft Biological Report (NMFS 2010a) provides detailed
information on the CHRT's biological analysis and evaluation of each
specific area.
Benefits of Exclusion Based on Economic Impacts and Proposed Exclusions
The economic benefits of exclusion are the economic impacts that
would be avoided by excluding particular areas from the designation. To
determine these economic impacts, we first asked the CHRT to identify
activities within each specific area that may affect black abalone and
its critical habitat. The 17 categories of activities identified by the
CHRT are identified in the Special Management Considerations and
Protections above. We then considered the range of modifications NMFS
might seek in these activities to avoid destroying or adversely
modifying black abalone critical habitat. Where possible, we focused on
changes beyond those that may be required under the jeopardy provision.
Because of the limited consultation history, we relied on information
from other section 7 consultations and the CHRT's expertise to
determine the types of activities and potential range of changes. For
each potential impact, we tried to provide information on whether the
impact is more closely associated with adverse modification or with
jeopardy, to distinguish the impacts of applying the jeopardy provision
versus the adverse modification provision.
While the statute and our agency guidance directs us to identify
activities that may affect the habitat features important to black
abalone conservation within a specific area in order to determine its
eligibility for designation, not all of these activities may be
affected by the critical habitat designation (i.e., subject to a
section 7 consultation) and sustain an economic impact. It is only
those activities with a federal nexus that would sustain an economic
impact as a result of the designation. Within the set of activities
identified in the Special Management Considerations and Protections
above, we were only able to estimate economic impacts for a subset of
them because of: (1) The limited consultation history; (2) uncertainty
in the types of modification that would be required; (3) uncertainty in
the number and locations of activities based on currently available
data; and (4) the lack of available cost data. The draft economic
report analyzes the potential economic impacts to the following
categories of activities: (1) Coastal development; (2) in-water
construction; (3) sand replenishment or beach nourishment activities;
(4) agricultural activities (e.g., irrigation); (5) NPDES activities
and activities generating non-point source pollution; (6) sidecasting;
(7) oil and chemical spills and clean-up activities; (8) power
generation operations involving water withdrawal from and discharge to
marine coastal waters; (9) construction and operation of alternative
energy hydrokinetic projects (tidal or wave energy projects); and (10)
construction and operation of desalination plants. The following
activities were discussed qualitatively: Dredging and disposal of
dredged material; agricultural pesticide application and livestock
farming; mineral and petroleum exploration or extraction; construction
and operation of LNG projects; vessel groundings; non-native species
introduction and management; kelp harvesting; and activities that lead
to global climate change. The economic impacts of the designation on
these activities could not be quantified because a federal nexus does
not exist (i.e., for kelp harvesting activities) or is uncertain (i.e.,
for activities that lead to global climate change), or because the
potential
[[Page 59921]]
economic impacts are uncertain, for the reasons described above. The
draft economic report (NMFS, 2010a) provides a more detailed
description and analysis of the potential economic impacts to each of
these categories of activities.
We had sufficient information to monetize the economic benefits of
exclusion, but were not able to monetize the conservation benefits of
designation. Thus, to weigh the benefits of designation against the
economic benefits of exclusion, we compared the conservation value
ratings with economic impact ratings that were based on the mean
annualized economic impact estimates (discounted at 7%; see draft
economic report (NMFS 2010a) for additional details) for each specific
area. To develop the economic impact ratings, we examined the mean
annualized economic impacts (discounted at 7 percent) across all of the
specific areas. We then divided the economic impacts into four economic
impact rating categories corresponding to ``Low'' ($0 to $100,000),
``Medium'' (greater than $100,000 to $500,000), ``High'' (greater than
$500,000 to $10 million), and ``Very High'' (greater than $10 million)
economic impact ratings. The four economic impact rating categories
were determined by visually inspecting the economic impact values and
identifying natural breakpoints in the economic impacts data where the
estimated economic impacts experienced a large increase. We then
compared these economic impact ratings (representing the benefits of
exclusion) with the conservation value ratings (representing the
benefits of designation) and applied the following decision rules to
identify areas eligible for exclusion based on economic impacts: (1)
Areas with a conservation value rating of ``High'' were eligible for
exclusion if the mean annualized economic impact estimate exceeded $10
million (i.e., the economic impact rating was ``Very High''); (2) areas
with a conservation value rating of ``Medium'' were eligible for
exclusion if the mean annualized economic impact estimate exceeded
$500,000 (i.e., the economic impact rating was at least a ``High'');
and (3) areas with a conservation value rating of ``Low'' were eligible
for exclusion if the mean annualized economic impact estimate exceeded
$100,000 (i.e., the economic impact rating was at least a ``Medium'').
These dollar thresholds should not be interpreted as estimates of
the dollar value of High, Medium, or Low conservation value areas.
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 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 developed decision
rules with dollar thresholds representing the levels at which we
believe the economic benefit of exclusion associated with a specific
area could outweigh the conservation benefits of designation. These
dollar thresholds and decision rules provided a relatively simple
process to identify, in a limited amount of time, specific areas
warranting consideration for exclusion based on economic impacts.
Based on this analysis, two areas were identified preliminarily as
eligible for exclusion. These areas were: (1) Specific area 10, from
Monta[ntilde]a de Oro State Park to just south of Government Point; and
(2) specific area 12, from Corona Del Mar State Beach to Dana Point. We
presented the two areas to the CHRT to help us further characterize the
benefits of designation by determining whether excluding any of these
areas would significantly impede conservation of black abalone. If
exclusion of an area would significantly impede conservation, then the
benefits of exclusion would likely not outweigh the benefits of
designation for that area. The CHRT considered this question in the
context of all of the areas eligible for exclusion as well as the
information they had developed in providing the conservation value
ratings. If the CHRT determined that exclusion of an area would
significantly impede conservation of black abalone, the conservation
benefits of designation were increased one level in the weighing
process. This necessitated the creation of a Very High conservation
value rating. Areas rated as ``Very High'' were deemed to have a very
high likelihood of promoting the conservation of the species.
The CHRT determined, and we concur, that exclusion of specific area
12 (from Corona Del Mar State Beach to Dana Point) would not
significantly impede conservation of black abalone and that the
economic benefit of exclusion for this area outweighs the conservation
benefit of designation. The CHRT based their determinations on the best
available data regarding the present condition of the habitat and black
abalone populations in the area. The CHRT gave the area a ``Low''
conservation value, because the current habitat conditions are of lower
quality compared to other areas along the coast. While rocky intertidal
habitat of good quality occurs within the area, these habitats are
patchy and may be affected by sand scour due to the presence of many
sandy beaches. In addition, the rocky habitat within the area consists
of narrow benches and fewer crevices compared to other areas and has
been degraded by the establishment of sandcastle worm (Phragmatopoma
californica) colonies. There is also little to no coralline algae to
provide adequate larval settlement habitat. Low densities of black
abalone were observed at a few sites in the area in the 1970s and
1980s. However, no recruitment has been observed and black abalone have
been absent from the area except for one black abalone found in January
2010. For these reasons, the CHRT concluded that excluding specific
area 12 (from Corona Del Mar State Beach to Dana Point) from the
designation would not significantly impede the conservation of black
abalone. The high estimated economic impact for this area was primarily
due to impacts associated with construction and operation of a proposed
desalination plant, which made up about 93% of the mean annualized
economic impact estimate of $1,563,500 for this area. The estimated
economic impacts to the desalination plant were based on the costs for
using alternate methods of brine disposal (i.e., injection wells).
The CHRT determined, and we concur, that exclusion of specific area
10 (from Monta[ntilde]a de Oro State Park to just south of Government
Point) would significantly impede conservation of black abalone. The
CHRT gave the area a ``High'' conservation value in their biological
evaluation. Historically, black abalone were considered common at
several sites within the area. The populations have since suffered
declines due to WS, but continue to persist at several sites. Although
the habitat has changed since the decline in abalone (e.g., sea urchins
and encrusting invertebrates have moved in to some crevice habitats),
the habitat remains of high quality. The CHRT also emphasized the
importance of this area in maintaining connectivity between black
abalone populations on the north-central California coast and the
southern California coast. Therefore, the CHRT determined, and we
concur, that the conservation value of this area should be raised by
one level (i.e., from High to Very High). In addition, the estimated
economic impact for this area is likely
[[Page 59922]]
overestimated. The very high economic impact estimate for this area was
primarily due to costs associated with the Diablo Canyon Nuclear Power
Plant (DCNPP), which made up about 46 percent of the low annualized
economic impact estimate and 99 percent of the mean and high annualized
economic impact estimate for the area (see NMFS, 2010a for details).
These estimated costs were based on the costs required to retrofit the
DCNPP with a closed cooling system. However, there are less costly
actions that we could not monetize that could be taken to avoid or
minimize effects on black abalone habitat, such as restoring habitat in
other areas around the DCNPP and conducting biological monitoring of
black abalone and its habitat. Thus, the economic benefits of exclusion
were not determined to outweigh the conservation benefits of
designation for specific area 12 for the following reasons: (a) The
area has a Very High conservation value to black abalone and exclusion
of this area would significantly impede conservation of the species;
and (b) the very high economic impacts are likely overestimated. We
solicit comments from the public regarding the estimate of economic
impacts to the DCNPP, the effects of the DCNPP on black abalone and its
habitat, and the potential modifications that may be required to
address these effects (including the feasibility and estimated costs of
such modifications; see ``Public Comments Solicited''). If information
obtained during the public comment period suggests that the very high
economic impact estimate for retrofitting the DCNPP is a realistic
impact of the designation, we will re-examine our analysis regarding
this area and consider other approaches that may allow exclusion of a
particular area within this specific area.
In summary, we propose to exclude specific area 12 (from Corona Del
Mar State Beach to Dana Point) from the critical habitat designation.
Based on the best scientific and commercial data currently available,
we have determined that exclusion of this area will not impede the
conservation of black abalone, nor will it result in the extinction of
the species.
Benefits of Exclusion Based on National Security and Proposed
Exclusions
The national security benefits of exclusion are the impacts on
national security that would be avoided by excluding particular areas
from the designation. We contacted representatives of the DOD to
request information on potential national security impacts that may
result from the designation of particular areas as critical habitat for
black abalone. In a letter dated May 20, 2010 (5090 Ser N40 JJR.cs/
0011), representatives of the DOD identified the following particular
areas owned or controlled by the U.S. Navy and requested exclusion of
these areas from the designation based on potential national security
impacts: (1) Naval Auxiliary Landing Field (NALF) San Clemente Island;
(2) Outlying Landing Field (OLF) San Nicolas Island; (3) Naval Support
Detachment Monterey; (4) Naval Weapons Station Seal Beach; and (5)
Naval Base Ventura County (Point Mugu and Port Hueneme).
We determined that the Naval Support Detachment Monterey, Naval
Weapons Station Seal Beach, and Naval Base Ventura County do not occur
within the specific areas being considered for designation (NMFS,
2010b). Thus, these areas were not included in further analyses. The
NALF San Clemente Island and OLF San Nicolas Island do occur within the
specific areas being considered for designation and were analyzed for
potential exclusion under section 4(b)(2) of the ESA.
The Navy did not provide information about the activities occurring
within the OLF San Nicolas Island, but did provide information
regarding activities conducted within the NALF San Clemente Island that
may be affected by the designation of critical habitat for black
abalone. An overview of these activities is provided in the draft ESA
section 4(b)(2) report (NMFS, 2010b). More specific information is
needed regarding which of the Navy activities may affect black abalone
habitat (i.e., rocky intertidal habitat within MHHW to a depth of 6 m),
how these activities may be affected by the critical habitat
designation, and how these effects may result in impacts on national
security. We request additional information from the Navy identifying
and describing in detail the activities that may occur in or that may
affect the areas being considered for designation (i.e., rocky habitat)
and thus trigger consultation under section 7 of the ESA. This
information is necessary to assess whether the areas warrant exclusion
from the designation based on national security impacts.
At this time, we do not propose to exclude the NALF San Clemente
Island or OLF San Nicolas Island from the designation based on national
security impacts but will continue to coordinate with the Navy to
assess the potential national security impacts. Additional information
is also solicited from the public regarding the potential national
security impacts of this designation (see ``Public Comments
Solicited''). After assessing any additional information provided by
the DOD as well as by the public, a final determination will be made in
the final critical habitat designation. The Navy's facilities on San
Clemente Island and San Nicolas Island are covered by INRMPs that are
currently being revised to address black abalone conservation. If these
INRMPs are finalized and determined to provide benefits to black
abalone, as described under section 4(a)(3)(B) of the ESA, then the
areas would be ineligible for designation and a determination on
whether the areas warrant exclusion under section 4(b)(2) of the ESA
based on national security impacts would no longer be necessary. The
response summarized above was transmitted to the Navy via a letter from
NMFS dated July 9, 2010.
Benefits of Exclusion for Indian Lands and Proposed Exclusions
The only other relevant impacts of the designation identified were
potential impacts on Indian lands. The benefits of exclusion for Indian
lands are the impacts on Indian lands that would be avoided if
particular areas were excluded from the designation. A broad array of
activities on Indian lands may trigger ESA section 7 consultations and
be affected by the designation of critical habitat. The longstanding
and distinctive relationship between the Federal and tribal governments
is defined by treaties, statutes, executive orders, judicial decisions,
and agreements, which differentiate tribal governments from the other
entities that deal with, or are affected by, the Federal government.
This relationship has given rise to a special Federal trust
responsibility involving the legal responsibilities and obligations of
the United States toward Indian Tribes and the application of fiduciary
standards of due care with respect to Indian lands, tribal trust
resources, and the exercise of tribal rights. Pursuant to these
authorities, lands have been retained by Indian Tribes or have been set
aside for tribal use. These lands are managed by Indian Tribes in
accordance with tribal goals and objectives within the framework of
applicable treaties and laws. E.O. 13175 (Consultation and Coordination
with Indian Tribal Governments) outlines the responsibilities of the
Federal Government in matters affecting tribal interests.
For this proposed critical habitat designation for black abalone,
we reviewed maps indicating that none of the specific areas under
consideration for designation as critical habitat
[[Page 59923]]
overlap with Indian lands. Therefore, no areas were considered for
exclusion based on impacts on Indian lands. We solicit information from
the public regarding any Indian lands that may overlap with and may
warrant exclusion from critical habitat for black abalone (see ``Public
Comments Solicited''). Indian lands are those defined in the
Secretarial Order ``American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act'' (June 5, 1997) and
include: (1) Lands held in trust by the United States for the benefit
of any Indian tribe; (2) land held in trust by the United States for
any Indian Tribe or individual subject to restrictions by the United
States against alienation; (3) fee lands, either within or outside the
reservation boundaries, owned by the tribal government; and (4) fee
lands within the reservation boundaries owned by individual Indians.
Should any Indian lands be identified within the specific areas
considered and proposed for designation as black abalone critical
habitat, they will be considered for exclusion under section 4(b)(2) of
the ESA if the tribe or tribes request exclusion (see ``Public Comments
Solicited'').
Critical Habitat Designation
This rule proposes to designate approximately 390 square kilometers
of habitat in California within the geographical area presently
occupied by black abalone. These critical habitat areas contain
physical or biological features essential to the conservation of the
species that may require special management considerations or
protection. This rule proposes to exclude from the designation the area
from Corona Del Mar State Beach to Dana Point, Orange County, CA.
Although we have identified three presently unoccupied areas, we are
not proposing any unoccupied areas for designation as critical habitat
at this time, because we do not have sufficient information to
determine that any of the unoccupied areas are essential to the
conservation of the species.
Lateral Extent of Critical Habitat
The lateral extent of the proposed critical habitat designation
offshore is defined by the 6 m depth bathymetry contour relative to the
line of mean lower low water (MLLW) and shoreward to the MHHW line. The
textual descriptions of critical habitat in the section titled
``226.220 Critical habitat for the black abalone (Haliotis
cracherodii)'' are the definitive source for determining the critical
habitat boundaries. The overview maps provided in the section titled
``226.220 Critical habitat for the black abalone (Haliotis
cracherodii)'' are provided for general guidance purposes only and not
as a definitive source for determining critical habitat boundaries. As
discussed in previous critical habitat designations, human activities
that occur outside of designated critical habitat can destroy or
adversely modify the essential physical and biological features of
these areas. This designation will help to ensure that Federal agencies
are aware of the impacts that activities occurring outside of the
proposed critical habitat area (e.g., coastal development, activities
that exacerbate global warming, agricultural irrigation and pesticide
application) may have on black abalone critical habitat.
Effects of Critical Habitat Designation
ESA Section 7 Consultation
Section 7(a)(2) of the ESA requires Federal agencies, including
NMFS, to ensure that any action authorized, funded, or carried out by
the agency (agency action) does not jeopardize the continued existence
of any threatened or endangered species or destroy or adversely modify
designated critical habitat. When a species is listed or critical
habitat is designated, Federal agencies must consult with NMFS on any
agency actions to be conducted in an area where the species is present
and that may affect the species or its critical habitat. During the
consultation, NMFS evaluates the agency action to determine whether the
action may adversely affect listed species or critical habitat and
issues its findings in a biological opinion. If NMFS concludes in the
biological opinion that the agency action would likely result in the
destruction or adverse modification of critical habitat, NMFS would
also recommend any reasonable and prudent alternatives to the action.
Reasonable and prudent alternatives are defined in 50 CFR 402.02 as
alternative actions identified during formal consultation that can be
implemented in a manner consistent with the intended purpose of the
action, that are consistent with the scope of the Federal agency's
legal authority and jurisdiction, that are economically and
technologically feasible, and that would avoid the destruction or
adverse modification of critical habitat. Regulations at 50 CFR 402.16
require Federal agencies that have retained discretionary involvement
or control over an action, or where such discretionary involvement or
control is authorized by law, to reinitiate consultation on previously
reviewed actions in instances where: (1) Critical habitat is
subsequently designated; or (2) new information or changes to the
action may result in effects to critical habitat not previously
considered in the biological opinion. Consequently, some Federal
agencies may request reinitiation of consultation or conference with
NMFS on actions for which formal consultation has been completed, if
those actions may affect designated critical habitat. Activities
subject to the ESA section 7 consultation process include activities on
Federal lands and activities on private or state lands requiring a
permit from a Federal agency (e.g., a section 10(a)(1)(B) permit from
NMFS) or some other Federal action, including funding (e.g., Federal
Highway Administration (FHA) or Federal Emergency Management Agency
(FEMA) funding). ESA section 7 consultation would not be required for
Federal actions that do not affect listed species or critical habitat
nor for actions on non-Federal and private lands that are not federally
funded, authorized, or carried out.
Activities Likely To Be Affected
ESA section 4(b)(8) requires, to the maximum extent practicable, in
any proposed regulation to designate critical habitat, an evaluation
and brief description of those activities (whether public or private)
that may adversely modify such habitat or that may be affected by such
designation. A wide variety of activities may affect black abalone
critical habitat and may be subject to the ESA section 7 consultation
process when carried out, funded, or authorized by a Federal agency.
The activities most likely to be affected by this critical habitat
designation once finalized are: (1) Coastal development; (2) in-water
construction; (3) sand replenishment or beach nourishment activities;
(4) agricultural activities (e.g., irrigation); (5) NPDES activities
and activities generating non-point source pollution; (6) sidecasting;
(7) oil and chemical spills and clean-up activities; (8) construction
and operation of power plants that take in and discharge water from the
ocean; (9) construction and operation of alternative energy
hydrokinetic projects (tidal or wave energy projects); and (10)
construction and operation of desalination plants. Private entities may
also be affected by this critical habitat designation if a Federal
permit is required, Federal funding is received, or the entity is
involved in or receives benefits from a Federal project. These
activities would need to be evaluated with respect to their potential
to destroy or adversely modify critical habitat. Changes to the
[[Page 59924]]
actions to minimize or avoid destruction or adverse modification of
designated critical habitat may result in changes to some activities.
Please see the draft economic report (NMFS, 2010a) for more details and
examples of changes that may need to occur in order for activities to
minimize or avoid destruction or adverse modification of designated
critical habitat. Questions regarding whether specific activities would
constitute destruction or adverse modification of critical habitat
should be directed to NMFS (see ADDRESSES and FOR FURTHER INFORMATION
CONTACT).
Public Comments Solicited
To ensure the final action resulting from this proposal will be as
accurate and as effective as possible, we solicit comments and
suggestions from the public, other concerned governments and agencies,
the scientific community, industry, or any other interested party
concerning this proposed rule. Specifically, public comments are sought
concerning: (1) The role that ocean acidification plays in reducing
growth and survivorship of abalone as has been observed in other marine
gastropods (Shirayama and Thornton, 2005); (2) the impact that reduced
abundance of coralline algae resulting from increased partial pressure
of carbon dioxide (hereafter CO2) (Feely et al., 2004; Hall-
Spencer et al., 2008) has on the survival of newly settled black
abalone; (3) the effects that environmental pollutants have on growth,
reproduction, and survival of black abalone at varying spatial scales,
as has been demonstrated in a few, locally isolated cases (e.g., Diablo
Canyon-Martin et al., 1977; Palos Verdes Peninsula-Leighton, 1959; Cox,
1962; Young, 1964; Miller and Lawrenz-Miller, 1993); (4) the impacts
that accidentally spilled oil from offshore drilling platforms or
various types of commercial vessels and subsequent clean-up operations
have on the quality of black abalone habitat; (5) information
describing the abundance, distribution, and habitat use of black
abalone throughout its current and historical range; (6) information on
the identification, location, and quality of physical or biological
features which may be essential to the conservation of black abalone;
(7) information regarding potential impacts of designating any
particular area, including the types of Federal activities that may
trigger an ESA section 7 consultation and the possible modifications
that may be required of those activities as a result of section 7
consultation; (8) information regarding the benefits of designating any
particular area of the proposed critical habitat; (9) information
regarding the benefits of excluding particular areas from the critical
habitat designation; (10) current or planned activities in the areas
proposed for designation and their possible impacts on proposed
critical habitat; and (11) any foreseeable economic, national security,
tribal, or other relevant impacts resulting from the proposed
designations. With regard to Indian lands, we request that the
following information be provided to inform our ESA section 4(b)(2)
analysis: (1) A map and description of the Indian lands (e.g.,
location, latitude and longitude coordinates to define the boundaries,
extent into waterways); (2) a description of tribal activities that may
be affected within the area; (3) a description of past, ongoing, or
future conservation measures conducted by the tribes that may protect
black abalone habitat within the area; and (4) a point of contact.
We encourage comments on this proposal. You may submit your
comments and materials by any one of several methods (see ADDRESSES).
The proposed rule, maps, references, and other materials relating to
this proposal can be found on our Web site at http://swr.nmfs.noaa.gov,
on the Federal eRulemaking Portal at http://www.regulations.gov, or can
be made available upon request. We will consider all comments and
information received during the comment period for this proposed rule
in preparing the final rule.
Public Hearings
Regulations at 50 CFR 424.16(c)(3) require the Secretary to
promptly hold at least one public hearing if any person requests one
within 45 days of publication of a proposed rule to designate critical
habitat. Requests for a public hearing must be made in writing (see
ADDRESSES) by November 12, 2010. If a public hearing is requested, a
notice detailing the specific hearing location and time will be
published in the Federal Register at least 15 days before the hearing
is to be held. Information on specific hearing locations and times will
also be posted on our Web site at http://swr.nmfs.noaa.gov. These
hearings provide the opportunity for interested individuals and parties
to give comments, exchange information and opinions, and engage in a
constructive dialogue concerning this proposed rule. We encourage the
public's involvement in such ESA matters.
Peer Review
On December 16, 2004, the Office of Management and Budget (OMB)
issued its Final Information Quality Bulletin for Peer Review
(Bulletin). The Bulletin was published in the Federal Register on
January 14, 2005 (70 FR 2664), and went into effect on June 16, 2005.
The primary purpose of the Bulletin is to improve the quality and
credibility of scientific information disseminated by the Federal
government by requiring peer review of ``influential scientific
information'' and ``highly influential scientific information'' prior
to public dissemination. Influential scientific information is defined
as ``information the agency reasonably can determine will have or does
have a clear and substantial impact on important public policies or
private sector decisions.'' The Bulletin provides agencies broad
discretion in determining the appropriate process and level of peer
review. Stricter standards were established for the peer review of
``highly influential scientific assessments,'' defined as information
whose ``dissemination could have a potential impact of more than $500
million in any one year on either the public or private sector or that
the dissemination is novel, controversial, or precedent-setting, or has
significant interagency interest.'' The draft biological report and
draft economic analysis report supporting this rule proposing to
designate critical habitat for the black abalone are considered
influential scientific information and subject to peer review. These
two reports will each be distributed to three independent peer
reviewers for review on or before the publication date of this proposed
rule. The peer reviewer comments will be compiled into a peer review
report to be made available to the public at the time the black abalone
critical habitat designation is finalized.
Required Determinations
Regulatory Planning and Review (E.O. 12866)
This proposed rule has been determined to be significant for
purposes of E.O. 12866. A draft economic analysis report and ESA
section 4(b)(2) report have been prepared to support the exclusion
process under section 4(b)(2) of the ESA and our consideration of
alternatives to this rulemaking as required under E.O. 12866. The draft
economic analysis report and ESA section 4(b)(2) report are available
on the Southwest Region Web site at http://swr.nmfs.noaa.gov, on the
Federal eRulemaking Web site at http://www.regulations.gov, or upon
request (see ADDRESSES).
[[Page 59925]]
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency publishes a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis describing the effects
of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). We have prepared an
initial regulatory flexibility analysis (IRFA), which is part of the
draft economic analysis report (NMFS, 2010a). This document is
available upon request (see ADDRESSES), via our Web site at http://swr.nmfs.noaa.gov, or via the Federal eRulemaking Web site at http://www.regulations.gov.
In summary, the IRFA did not consider all types of small businesses
that could be affected by the black abalone critical habitat
designation due to lack of information. Impacts to small businesses
involved in 10 activities were considered: (1) In-water construction;
(2) dredging; (3) NPDES-permitted facilities that discharge water into
or adjacent to the coastal marine environment; (4) coastal urban
development; (5) agriculture (including pesticide use, irrigation, and
livestock farming); (6) oil and chemical spills and clean-up; (7)
construction and operation of power plants; (8) construction and
operation of tidal and wave energy projects; (9) construction and
operation of liquefied natural gas (LNG) projects; and (10) mineral and
petroleum exploration and extraction. The IRFA estimates the potential
number of small businesses that may be affected by this rule, and the
average annualized impact per entity for a given area and activity
type. Specifically, based on an examination of the North American
Industry Classification System (NAICS), this analysis classifies the
potentially affected economic activities into industry sectors and
provides an estimate of the number of small businesses affected in each
sector based on the applicable NAICS codes.
The specific areas considered for designation as critical habitat,
and hence the action area for this rule, span from the Del Mar Landing
Ecological Reserve to Dana Point in California, including several
offshore islands. Although the areas of concern include marine areas
off the coast, the small business analysis is focused on land based
areas where most economic activities occur and which could be affected
by the designation.
Ideally, this analysis would directly identify the number of small
entities that are located within the coastal areas adjacent to the
specific areas. However, it is not possible to directly determine the
number of firms in each industry sector within these areas because
business activity data is maintained at the county level. Therefore,
this analysis provides a maximum number of small businesses that could
be affected. This number is most likely inflated since all of the
identified small businesses are unlikely to be located in close
proximity of the specific areas.
After determining the number of small entities, this analysis
estimates the impact per entity for each area and industry sector. The
following steps were used to provide these estimates: (1) Total impact
for every area and activity type is determined based on the results
presented in the draft economic report (NMFS, 2010a); (2) the
proportion of businesses that are small is calculated for every area
for every activity type; (3) the impact to small businesses for every
area and activity type is estimated by multiplying the total impacts
estimated for all businesses with the proportion of businesses that are
determined to be small; and (4) the average impact per small businesses
is estimated by taking the ratio of the total estimated impacts to the
total number of small businesses.
There is a maximum of 3,671 small businesses involved in activities
most likely to be affected by this rule. This is based on the
assumption that all small businesses counted across areas and activity
types are separate entities. However, it is likely that a particular
small business may appear multiple times as being affected by
conservation measures for multiple areas and activity types. Hence,
total small business estimates across areas and activity types are
likely to be overestimated. The potential annualized impacts borne by
small entities were highest for specific area 10 (Monta[ntilde]a de Oro
State Park to just south of Government Point) with potential costs as
high as $75 million. This is mainly due to the impacts on the three
facilities that are associated with power plants, which are estimated
to be 97.5 percent of the total costs. It is important to note here
that these costs area likely overestimated, due to the fact that the
modification costs for power plants are based solely on the closed
cooling system retrofit. Specific areas 3 (Farallon Islands), 4
(southern point at the mouth of San Francisco Bay to Moss Beach), and 2
(Bodega Head to Point Bonita) have potential annualized small business
impacts of about $614,850, $407,050, and $325,300, respectively (NMFS,
2010a).
In accordance with the requirements of the RFA (as amended by
SBREFA of 1996) this analysis considered various alternatives to the
critical habitat designation for the black abalone. The alternative of
not designating critical habitat for the black abalone was considered
and rejected because such an approach does not meet the legal
requirements of the ESA. We considered the alternative of designating
all specific areas (i.e., no areas excluded); however, in one case, the
benefits of excluding specific area 12 (Corona Del Mar to Dana Point)
outweighed the benefits of including it in the designation. Thus, NMFS
also considered the alternative of designating all specific areas, but
excluding specific area 12. This alternative helps to reduce the number
of small businesses potentially affected from 3,671 to 3,193; however,
the total potential annualized economic impact to small businesses
($76,858,250; NMFS, 2010a) remains largely unchanged because the
estimated annualized cost borne by small entities associated with
specific area 12 was very low ($27,200; NMFS, 2010a) and only accounts
for 0.04 percent of the total small business impacts.
E.O. 13211
On May 18, 2001, the President issued an Executive Order on
regulations that significantly affect energy supply, distribution, and
use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking an action expected to lead to the promulgation
of a final rule or regulation that is a significant regulatory action
under E.O. 12866 and is likely to have a significant adverse effect on
the supply, distribution, or use of energy. An energy impacts analysis
was prepared under E.O. 13211 and is available as part of the draft
economic analysis report. The results of the analysis are summarized
here, and more detail is provided in the NMFS draft economic report
(NMFS, 2010a).
The Office of Management and Budget provides guidance for
implementing this Executive Order, outlining nine outcomes that may
constitute ``a significant adverse effect'' when compared with the
regulatory action under consideration: (1) Reductions in crude oil
supply in excess of 10,000 barrels per day (bbls); (2) reductions in
fuel production in excess of 4,000 bbls; (3) reductions in coal
production in excess of 5 million tons per year; (4) reductions in
natural gas production in excess of 25 million cubic feet per year; (5)
reductions in electricity production
[[Page 59926]]
in excess of 1 billion kilowatts-hours per year or in excess of 500
megawatts of installed capacity; (6) increases in energy use required
by the regulatory action that exceed the thresholds above; (7)
increases in the cost of energy production in excess of one percent;
(8) increases in the cost of energy distribution in excess of one
percent; or (9) other similarly adverse outcomes.
Of these, the most relevant criteria to this analysis are potential
changes in natural gas and electricity production, as well as changes
in the cost of energy production. Possible energy impacts may occur as
the result of requested project modifications to power plants, tidal
and wave energy projects, and LNG facilities. There is currently only
one power plant, the Diablo Canyon Nuclear Power Plant (DCNPP), located
within an area that could be affected by black abalone critical
habitat. Future management and required project modifications for black
abalone critical habitat related to power plants include: cooling of
thermal effluent before release to the environment, treatment of any
contaminated waste materials, retrofitting to a wet cooling system, and
modifications associated with permits issued under NPDES. These
modifications could affect energy production; however, the potential
impact of possible black abalone conservation efforts on the project's
energy production and the associated cost is unknown. DCNPP has a
production capacity of 2,200 megawatts and therefore, if about half of
this capacity is affected by black abalone critical habitat, it would
be higher than the 500 megawatts of installed capacity threshold. It is
unlikely that any project modifications would have a large impact on
the amount of electricity produced. It is more likely that any
additional cost of black abalone conservation efforts would be passed
on to the consumer in the form of slightly higher energy prices.
Without information about the effect of power plants on future
electricity prices and more specific information about how recommended
conservation measures for black abalone would affect electricity
production, this analysis is unable to forecast potential energy
impacts resulting from changes to power plants.
The number of future tidal and wave energy projects that will be
constructed within the specific areas is unknown. Currently there are
no actively-generating wave or tidal energy projects located within the
study area. However, four projects have received preliminary permits
from the Federal Energy Regulatory Commission (FERC).\1\ Future
management and required project modifications for black abalone
critical habitat related to tidal and wave energy projects are
uncertain and could vary widely in scope from project to project.
Moreover, because the proposed projects are still in the preliminary
stages, the potential impact of possible black abalone conservation
efforts on the project's energy production and the associated cost of
that energy are unclear. Proposed tidal and wave energy projects within
the study area have a combined production capacity of 21 megawatts. It
is more likely that any additional cost of black abalone conservation
efforts would be passed on to the consumer in the form of slightly
higher energy prices. That said, any increase in energy prices as a
result of black abalone conservation would have to be balanced against
changes in energy price resulting from the development of these
projects. That is, the construction of tidal and wave energy projects
may result in a general reduction in energy prices in affected areas.
Without information about the effect of the tidal and wave projects on
future electricity prices and more specific information about
recommended conservation measures for black abalone, this analysis is
unable to forecast potential energy impacts resulting from changes to
tidal and wave energy projects.
---------------------------------------------------------------------------
\1\ FERC. Issued and Valid Hydrokinetic Projects Preliminary
Permit. Accessed at: http://www.ferc.gov/industries/hydropower/indus-act/hydrokinetics/permits-issued.xls on April 5, 2010.
---------------------------------------------------------------------------
Similar to tidal and wave energy projects, the number of future LNG
projects that will be built within the specific areas is unknown. Many
LNG projects are likely to be abandoned during the development stages
for reasons unrelated to black abalone critical habitat. In addition,
the potential impact of LNG facilities on black abalone habitat remains
uncertain, as is the nature of any project modifications that might be
requested to mitigate adverse impacts. Since there are no LNG projects
in the development stage, the potential impact of possible black
abalone conservation efforts on the project's energy production and the
associated cost of that energy are unclear. Project modifications may
include biological monitoring, spatial restrictions on project
installation, and specific measures to prevent or respond to
catastrophes. Out of these project modifications, spatial restrictions
on project installation could have effects on energy production. This
modification could increase LNG construction costs, which may result in
higher natural gas costs. However, the construction of LNG facilities
and associated increased energy supplies to consumers aim to generally
result in lower energy prices than would have otherwise been expected.
Therefore, this analysis is unable to forecast potential energy impacts
resulting from changes to LNG projects without specific information
about recommended black abalone conservation measures or future
forecasts of energy prices that reflect future markets with increased
energy supplies from LNG projects.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, NMFS makes the
following findings:
(A) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local,
tribal governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. ``Federal private
sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance; or (ii) a duty arising from participation in a
voluntary Federal program.'' The designation of critical habitat does
not impose an enforceable duty on non-Federal government entities or
private parties. The only regulatory effect of a critical habitat
designation is that Federal agencies must ensure that their actions do
not destroy or adversely modify critical habitat under ESA section 7.
Non-Federal entities that receive funding, assistance, or permits from
Federal agencies, or otherwise require approval or authorization from a
[[Page 59927]]
Federal agency for an action may be indirectly affected by the
designation of critical habitat. Furthermore, to the extent that non-
Federal entities are indirectly impacted because they receive Federal
assistance or participate in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would not apply, nor would critical
habitat shift the costs of the large entitlement programs listed above
to state governments.
(B) Due to the prohibition against take of black abalone both
within and outside of the designated areas, we do not anticipate that
this proposed rule would significantly or uniquely affect small
governments. As such, a Small Government Agency Plan is not required.
Takings
Under E.O. 12630, Federal agencies must consider the effects of
their actions on constitutionally protected private property rights and
avoid unnecessary takings of property. A taking of property includes
actions that result in physical invasion or occupancy of private
property, and regulations imposed on private property that
substantially affect its value or use. In accordance with E.O. 12630,
this proposed rule would not have significant takings implications. A
takings implication assessment is not required. The designation of
critical habitat affects only Federal agency actions. This proposed
rule would not increase or decrease the current restrictions on private
property concerning take of black abalone, nor do we expect the
critical habitat designation to impose substantial additional burdens
on land use or substantially affect property values. Additionally, the
critical habitat designation would not preclude the development of
Habitat Conservation Plans and issuance of incidental take permits for
non-Federal actions. Owners of areas included within the proposed
critical habitat designation would continue to have the opportunity to
use their property in ways consistent with the survival of endangered
black abalone.
Federalism
In accordance with E.O. 13132, we determined that this proposed
rule would not have significant Federalism effects and that a
Federalism assessment is not required. In keeping with Department of
Commerce policies, we request information from, and will coordinate
development of this proposed critical habitat designation with,
appropriate state resource agencies in California. This designation may
have some benefit to state and local resource agencies in that the
areas essential to the conservation of the species are more clearly
defined, and the PCEs of the habitat necessary for the survival of
black abalone are specifically identified. While this designation would
not alter where and what non-federally sponsored activities may occur,
it may assist local governments in long-range planning.
Civil Justice Reform
In accordance with E.O. 12988, we have determined that this
proposed rule would not unduly burden the judicial system and meets the
requirements of sections 3(a) and 3(b)(2) of the E.O. We are proposing
to designate critical habitat in accordance with the provisions of the
ESA. This proposed rule uses standard property descriptions and
identifies the PCEs within the designated areas to assist the public in
understanding the habitat needs of black abalone.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain new or revised information
collections that require approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act. This proposed rule
would not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations.
National Environmental Policy Act of 1969 (NEPA)
We have determined that an environmental analysis as provided for
under the NEPA of 1969 for critical habitat designations made pursuant
to the ESA is not required. See Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied, 116 S.Ct 698 (1996).
Coastal Zone Management Act of 1972 (CZMA)
The CZMA emphasizes the primacy of state decision-making regarding
the coastal zone. Section 307 of the CZMA (16 U.S.C. 1456), called the
federal consistency provision, is a major incentive for states to join
the national coastal management program and is a powerful tool that
states use to manage coastal uses and resources and to facilitate
cooperation and coordination with federal agencies.
Federal consistency is the CZMA requirement where federal agency
activities that have reasonably foreseeable effects on any land or
water use or natural resource of the coastal zone (also referred to as
coastal uses or resources and coastal effects) must be consistent to
the maximum extent practicable with the enforceable policies of a
coastal state's federally approved coastal management program. We have
determined that this proposed critical habitat designation is
consistent to the maximum extent practicable with the enforceable
policies of the approved Coastal Zone Management Program of California.
This determination will be submitted for review by the California
Coastal Commission.
Government-to-Government Relationship With Tribes
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from the other entities that deal with, or are affected by,
the Federal government. This relationship has given rise to a special
Federal trust responsibility involving the legal responsibilities and
obligations of the United States toward Indian Tribes and the
application of fiduciary standards of due care with respect to Indian
lands, tribal trust resources, and the exercise of tribal rights.
Pursuant to these authorities lands have been retained by Indian Tribes
or have been set aside for tribal use. These lands are managed by
Indian Tribes in accordance with tribal goals and objectives within the
framework of applicable treaties and laws. E.O. 13175, Consultation and
Coordination with Indian Tribal Governments, outlines the
responsibilities of the Federal Government in matters affecting tribal
interests. There is a broad array of activities on Indian lands that
may trigger ESA section 7 consultations. As described in the section
above titled ``Exclusions Based on Impacts on Indian Lands,'' we have
not identified any tribal lands that overlap with the proposed critical
habitat designation for black abalone.
References Cited
A complete list of all references cited herein is available upon
request (see ADDRESSES section) or via our Web site at http://swr.nmfs.noaa.gov.
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: September 20, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, this proposed rule
proposes to amend part 226, title 50 of the Code
[[Page 59928]]
of Federal Regulations as set forth below:
PART 226--DESIGNATED CRITICAL HABITAT
1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
2. Add Sec. 226.220, to read as follows:
Sec. 226.220 Critical habitat for black abalone (Haliotis
cracherodii).
Critical habitat is designated for black abalone as described in
this section. The textual descriptions of critical habitat in this
section are the definitive source for determining the critical habitat
boundaries. The overview maps are provided for general guidance
purposes only and not as a definitive source for determining critical
habitat boundaries.
(a) Critical habitat boundaries.
(1) Coastal Marine Areas: Each coastal marine area below is defined
by four latitude and longitude coordinates that set the northern,
southern, seaward and shoreward boundaries for the critical habitat
designation for black abalone in U.S. coastal marine waters. The
northern boundary is the straight line between the northern seaward and
shoreward coordinates and the southern boundary is the straight line
between the southern seaward and shoreward coordinates. The seaward
boundary extends offshore to the 6 m depth bathymetry line (relative to
mean lower low water) between the northern seaward and southern seaward
coordinates and the shoreward boundary is the line that marks mean
higher high water between the northern shoreward and southern shoreward
coordinates. Critical habitat only includes rocky intertidal habitats
to a depth of 6 m.
(i) Del Mar Landing Ecological Reserve to Bodega Head, Sonoma
County, California: northern seaward coordinates: 38[deg]44'25.04'' N,
123[deg]30'52.067'' W; northern shoreward coordinates:
38[deg]44'25.948'' N, 123[deg]30'19.175'' W; southern seaward
coordinates: 38[deg]18'38.623'' N, 123[deg]4'21.549'' W; southern
shoreward coordinates: 38[deg]18'39.478'' N, 123[deg]4'7.573'' W.
(ii) Bodega Head, Sonoma County, California to Point Bonita, Marin
County, California: northern seaward coordinates: 38[deg]18'38.623'' N,
123[deg]4'21.549'' W; northern shoreward coordinates:
38[deg]18'39.478'' N, 123[deg]4'7.573'' W; southern seaward
coordinates: 37[deg]49'3.404'' N, 122[deg]31'56.339'' W; southern
shoreward coordinates: 37[deg]49'3.082'' N, 122[deg]31'50.549'' W.
(iii) South of San Francisco Bay to Moss Beach, San Mateo County,
California: northern seaward coordinates: 37[deg]47'17.078'' N,
122[deg]31'13.59'' W; northern shoreward coordinates:
37[deg]47'17.524'' N, 122[deg]30'21.458'' W; southern seaward
coordinates: 37[deg]30'11.763'' N, 122[deg]30'35.06'' W; southern
shoreward coordinates: 37[deg]30'12.815'' N, 122[deg]30'2.083'' W.
(iv) Moss Beach to Pescadero State Beach, San Mateo County,
California: northern seaward coordinates: 37[deg]30'11.763'' N,
122[deg]30'35.06'' W; northern shoreward coordinates:
37[deg]30'12.815'' N, 122[deg]30'2.083'' W; southern seaward
coordinates: 37[deg]16'42.635'' N, 122[deg]24'52.453'' W; southern
shoreward coordinates: 37[deg]16'45.728'' N, 122[deg]24'32.42'' W.
(v) Just north of Pescadero State Beach, San Mateo County,
California to Natural Bridges State Beach, Santa Cruz County,
California: northern seaward coordinates: 37[deg]16'42.635'' N,
122[deg]24'52.453'' W; northern shoreward coordinates:
37[deg]16'45.728'' N, 122[deg]24'32.42'' W; southern seaward
coordinates: 36[deg]57'11.547'' N, 121[deg]58'36.276'' W; southern
shoreward coordinates: 36[deg]57'15.208'' N, 121[deg]58'31.424'' W.
(vi) Pacific Grove to Prewitt Creek, Monterey County, California:
northern seaward coordinates: 36[deg]36'41.16'' N, 121[deg]53'30.453''
W; northern shoreward coordinates: 36[deg]36'41.616'' N,
121[deg]53'47.763'' W; southern seaward coordinates: 35[deg]56'5.324''
N, 121[deg]28'45.131'' W; southern shoreward coordinates:
35[deg]56'6.025'' N, 121[deg]28'34.36'' W.
(vii) Prewitt Creek, Monterey County, California to Cayucos, San
Luis Obispo County, California: northern seaward coordinates:
35[deg]56'5.324'' N, 121[deg]28'45.131'' W; northern shoreward
coordinates: 35[deg]56'6.025'' N, 121[deg]28'34.36'' W; southern
seaward coordinates: 35[deg]26'22.887'' N, 120[deg]54'6.264'' W;
southern shoreward coordinates: 35[deg]26'23.708'' N,
120[deg]53'39.427'' W.
(viii) Monta[ntilde]a de Oro State Park in San Luis Obispo County,
California to just south of Government Point, Santa Barbara County,
California: northern seaward coordinates: 35[deg]17'15.72'' N,
120[deg]53'30.537'' W; northern shoreward coordinates:
35[deg]17'15.965'' N, 120[deg]52'59.583'' W; southern seaward
coordinates: 34[deg]27'12.95'' N, 120[deg]22'10.341'' W; southern
shoreward coordinates: 34[deg]27'25.11'' N, 120[deg]22'3.731'' W.
(ix) Palos Verdes Peninsula extending from the Palos Verdes/
Torrance border to Los Angeles Harbor in southwestern Los Angeles
County, California: northern seaward coordinates: 33[deg]48'22.604'' N,
118[deg]24'3.534'' W; northern shoreward coordinates:
33[deg]48'22.268'' N, 118[deg]23'35.504'' W; southern seaward
coordinates: 33[deg]42'10.303'' N, 118[deg]16'50.17'' W; southern
shoreward coordinates: 33[deg]42'25.816'' N, 118[deg]16'41.059'' W.
(2) Coastal Islands: The black abalone critical habitat areas
surrounding the coastal islands listed below are defined by a seaward
boundary that extends offshore to the 6m depth bathymetry line
(relative to mean lower low water), and a shoreward boundary that is
the line marking mean higher high water. Critical habitat only includes
rocky intertidal habitats to a depth of 6 m.
(i) Farallon Islands, San Francisco County, California.
(ii) A[ntilde]o Nuevo Island, San Mateo County, California.
(iii) San Miguel Island, Santa Barbara County, California.
(iv) Santa Rosa Island, Santa Barbara County, California.
(v) Santa Cruz Island, Santa Barbara County, California.
(vi) Anacapa Island, Ventura County, California.
(vii) San Nicolas Island, Ventura County, California.
(viii) Santa Barbara Island, Santa Barbara County, California.
(ix) Santa Catalina Island, Los Angeles County, California.
(x) San Clemente Island, Los Angeles County, California.
(b) Primary constituent elements. The primary constituent elements
essential for the conservation of the black abalone are:
(1) Rocky substrate. Suitable rocky substrate includes rocky
benches formed from consolidated rock of various geological origins
(e.g., igneous, metamorphic, and sedimentary) that contain channels
with macro- and micro-crevices or large boulders (greater than or equal
to 1 m in diameter) and occur from mean higher high water (MHHW) to a
depth of 6 m. All types of relief (high, medium and low; 0.5 to greater
than 2 m vertical relief) support black abalone.
(2) Food resources. Abundant food resources including bacterial and
diatom films, crustose coralline algae, and a source of detrital
macroalgae, are required for growth and survival of all stages of black
abalone. The primary macroalgae consumed by juvenile and adult black
abalone are giant kelp (Macrocystis pyrifera) and feather boa kelp
(Egregia menziesii) in southern California (i.e., south of Point
Conception) habitats, and bull kelp (Nereocystis leutkeana) in central
and
[[Page 59929]]
northern California habitats (i.e., north of Santa Cruz). Southern sea
palm (Eisenia arborea), elk kelp (Pelagophycus porra), stalked kelp
(Pterygophora californica), and other brown kelps (Laminaria sp.) may
also be consumed by black abalone.
(3) Juvenile settlement habitat. Rocky intertidal habitat
containing crustose coralline algae and crevices or cryptic biogenic
structures (e.g., urchins, mussels, chiton holes, conspecifics,
anemones) is important for successful larval recruitment and juvenile
growth and survival of black abalone less than approximately 25 mm
shell length. Adult abalone may facilitate larval settlement and
metamorphosis by, grazing down algal competitors and thereby promoting
the maintenance of substantial substratum cover by crustose coralline
algae, outcompeting encrusting sessile invertebrates (e.g., tube worms
and tube snails) for space and thereby promoting the maintenance of
substantial substratum cover by crustose coralline algae as well as
creating space for settling abalone, and emitting chemical cues that
may induce settlement of abalone larvae.
(4) Suitable water quality. Suitable water quality includes
temperature (i.e., tolerance range: 12 to 25 [deg]C, optimal range: 18
to 22 [deg]C), salinity (i.e., 30 to 35 ppt), pH (i.e., 7.5 to 8.5),
and other chemical characteristics necessary for normal settlement,
growth, behavior, and viability of black abalone.
(5) Suitable nearshore circulation patterns. Suitable circulation
patterns are those that retain eggs, sperm, fertilized eggs and ready-
to-settle larvae within 100 km from shore so that successful
fertilization and settlement to shallow intertidal habitat can take
place.
(c) Overview maps of black abalone critical habitat follow:
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[[Page 59930]]
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[FR Doc. 2010-24215 Filed 9-27-10; 8:45 am]
BILLING CODE 2510-22-C