Endangered and Threatened Species; Designation of Critical Habitat for Lower Columbia River Coho Salmon and Puget Sound Steelhead
Federal Register, Volume 81 Issue 36 (Wednesday, February 24, 2016)
Federal Register Volume 81, Number 36 (Wednesday, February 24, 2016)
Rules and Regulations
Pages 9251-9325
From the Federal Register Online via the Government Publishing Office www.gpo.gov
FR Doc No: 2016-03409
Page 9251
Vol. 81
Wednesday,
No. 36
February 24, 2016
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Parts 223 and 226
Endangered and Threatened Species; Designation of Critical Habitat for Lower Columbia River Coho Salmon and Puget Sound Steelhead; Final Rule
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 226
Docket No. 110726419-6003-02
RIN 0648-BB30
Endangered and Threatened Species; Designation of Critical Habitat for Lower Columbia River Coho Salmon and Puget Sound Steelhead
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a final rule to designate critical habitat for lower Columbia River coho salmon (Oncorhynchus kisutch) and Puget Sound steelhead (O. mykiss) pursuant to the Endangered Species Act (ESA). The specific areas designated for lower Columbia River coho include approximately 2,300 mi (3,701 km) of freshwater and estuarine habitat in Oregon and Washington. The specific areas designated for Puget Sound steelhead include approximately 2,031 mi (3,269 km) of freshwater and estuarine habitat in Puget Sound, WA. In developing this final rule we considered public and peer review comments, as well as economic and other relevant impacts. We are excluding a number of particular areas from designation because the benefits of exclusion outweigh the benefits of inclusion, and exclusion will not result in the extinction of the species.
DATES: This final rule becomes effective on March 25, 2016.
ADDRESSES: Comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available for public inspection by appointment, during normal business hours, at the National Marine Fisheries Service, NMFS, Protected Resources Division, 1201 NE. Lloyd Blvd., Suite 1100, Portland, OR 97232-1274. The final rule, maps, and other materials relating to these designations can be found on our Web site at http://www.westcoast.fisheries.noaa.gov/habitat/critical_habitat/critical_habitat_on_the_wc.html.
FOR FURTHER INFORMATION CONTACT: Steve Stone, NMFS, West Coast Region, Protected Resources Division, at the address above or at 503-231-2317; or Maggie Miller, NMFS, Office of Protected Resources, Silver Spring, MD, 301-427-8403.
SUPPLEMENTARY INFORMATION:
Background
We are responsible for determining whether species, subspecies, or distinct population segments (DPSs) are threatened or endangered and which areas of their habitat constitute critical habitat for them under the ESA (16 U.S.C. 1531 et seq.). To be considered for listing under the ESA, a group of organisms must constitute a ``species,'' which is defined in section 3 to include ``any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.'' We have determined that a group of Pacific salmon populations (including lower Columbia River coho) qualifies as a DPS if it is substantially reproductively isolated and represents an important component in the evolutionary legacy of the biological species (56 FR 58612, November 20, 1991). A group of Pacific steelhead populations qualifies as a DPS if it is markedly separate and significant to its taxon (61 FR 4722, February 7, 1996; 71 FR 834, January 5, 2006). In previous rulemakings, we determined that lower Columbia River coho (70 FR 37160, June 28, 2005) and Puget Sound steelhead (72 FR 26722, May 11, 2007) are each DPSs that warrant protection as threatened species under the ESA. We also determined that critical habitat was not determinable at the time of those final listing decisions and announced that we would designate critical habitat in separate rulemaking.
Since the time of listing, the recovery planning process has progressed for these two DPSs and additional new information is now available to better inform the designation process. In view of these developments, we published an advance notice of proposed rulemaking (ANPR) on January 10, 2011 (76 FR 1392), to make the public aware of the opportunity to provide us with comments and information that may be useful in making proposed critical habitat designations for these two DPSs. We received several comments and datasets in response to the ANPR and these were reviewed and incorporated as appropriate into documents and analyses supporting our proposed rule that was published on January 14, 2013 (78 FR 2726). The specific areas proposed for designation for lower Columbia River coho included approximately 2,300 mi (3,701 km) of freshwater and estuarine habitat in Oregon and Washington. The specific areas proposed for designation for Puget Sound steelhead included approximately 2,031 mi (3,268 km) of freshwater and estuarine habitat in Puget Sound, WA. We proposed to exclude a number of particular areas from designation because the benefits of exclusion outweighed the benefits of inclusion and we determined that exclusion would not result in the extinction of the DPSs.
The proposed rule (78 FR 2726, January 14, 2013) provided background on the process and rationale we used to identify critical habitat for lower Columbia River coho salmon and Puget Sound steelhead, including: the species' biology and habitat use, the statutory and regulatory aspects of critical habitat designations, and the methods and criteria used to identify critical habitat. More details regarding life history and habitat requirements of lower Columbia River coho and Puget Sound steelhead are found later in this final rule under Species Descriptions and Area Assessments, as well as in the proposed rule, agency status reviews (NMFS, 2001; NMFS, 2005a; NMFS, 2011), and a biological report supporting this rulemaking (NMFS, 2015a).
Summary of Changes From the Proposed Critical Habitat Designation
After considering public comments received and updating the best scientific information available, in this final rule we have made the following changes from the proposed rule: (1) Added 74 miles (119 km) of occupied habitat to the critical habitat designation for lower Columbia River coho; (2) removed 82 miles (132 km) of areas incorrectly identified as occupied by lower Columbia River coho in the proposed critical habitat designation; (3) added 101 miles (163 km) of occupied habitat to the critical habitat designation for Puget Sound steelhead; (4) removed 27 miles (43 km) of areas incorrectly identified as occupied by Puget Sound steelhead in the proposed critical habitat designation; (5) designated critical habitat in 85 miles (137 km) of occupied steelhead habitat on the Kitsap Peninsula originally proposed for exclusion; and (6) corrected the erroneous reference to the Puget Sound subbasin in our regulations. These changes from the proposed rule are discussed further below in the response to comments and summarized for each specific watershed in the range of the DPSs in Tables 1 and 2.
We are also adding regulatory text to update the column labeled ``Critical habitat'' in the table of threatened species in 50 CFR 223.102(e) to cross-reference this final critical habitat
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designation for the lower Columbia River coho and Puget Sound steelhead DPSs.
Summary of Comments and Responses
We requested comments on the proposed rule and associated supporting reports to designate critical habitat for lower Columbia River coho and Puget Sound steelhead. The draft biological report and draft economic analysis were also each reviewed by three peer reviewers. We received 22 individual submissions in response to the proposed rule. All of the comments received, including those of two peer reviewers, expressed either general support for designating critical habitat or support for our exclusion of particular areas within the larger designated areas. The comments received and our responses to them are summarized by topic below.
Occupied Areas
Comment 1: Several commenters, including fisheries co-managers, raised issues about the fish distribution data used to identify occupied areas. One commenter believed that we had defined occupied areas too narrowly and, as a result, greatly underestimated the current and historical extent of species distribution. This and other commenters expressed particular concern about the data used to identify areas occupied by Puget Sound steelhead, noting that our maps appeared to be incomplete and that steelhead would be expected to be more widespread than Puget Sound Chinook.
Response: In determining which occupied areas to consider as critical habitat we relied on the statutory definition of critical habitat (ESA section 3(5)(A)) and our regulations at 50 CFR 424.12 and focused on identifying the specific areas within the geographical area occupied by the species, at the time they were listed, on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection. As noted in our proposed rule (78 FR 2726, January 14, 2013), our mapping of occupied areas includes stream reaches where the species has been observed (within the past 20 years, but typically more recently) or where it is presumed to occur based on the professional judgment of biologists familiar with the watershed and the availability of suitable habitat, in particular the location of known barriers.
We relied on the best available information regarding species distribution from state, tribal and federal co-managers in Oregon and Washington. In response to comments and new datasets (Oregon Department of Fish and Wildlife ODFW, 2015; Washington Department of Fish and Wildlife WDFW, 2015) obtained from these co-managers, we made numerous minor edits to the data and maps supporting the critical habitat designations for lower Columbia River coho and Puget Sound steelhead. Edits included both removing and adding stream reaches to better reflect the areas that warrant designation as critical habitat. For coho we made 107 edits and for steelhead we made 101 edits to stream reaches in our Geographic Information System (GIS) dataset. The majority of edits involved small stream segments less than 0.7 miles (1.1 km) in length. The most substantial edit for coho was to remove approximately 69 stream miles (111 km) above Shipherd Falls in the Wind River watershed because co-managers provided information leading us to agree and conclude that coho did not use this area historically nor have they been seen in the past 20 years of stream surveys. For steelhead, the most substantial edit was to remove approximately 6 miles (10 km) in the Upper North Fork Nooksack River watershed where co-managers commented that our proposed distribution in Canyon Creek extended beyond the upper extent of steelhead presence. Tables 1 and 2 summarize the edits made for coho and steelhead, respectively, and our final biological report (NMFS, 2015a) provides greater details and maps depicting these edits. Ultimately, the edits resulted in minor refinements to the proposed designation.
We acknowledge that the areas we considered as meeting the ESA definition of ``occupied'' may not include all areas where fish might be present, especially in the case of steelhead, which are known to penetrate relatively high-gradient stream reaches not commonly used by Chinook and other salmon species (WDFW, 2000). In preparing the proposed rule and this final rule we reviewed (and made modifications based on) the most recent distribution datasets available using a GIS that allowed us to discern whether a stream reach was occupied or not. In many cases, the available data included numerous `modeled' stream reaches that might be occupied by the species based on stream gradient and known barriers to anadromous fish. We considered these modeled reaches to be occupied if the dataset also had supporting annotation indicating that there was a documented field observation that the species was present, or that there was an analysis demonstrating why it was reasonable to conclude the species was present (professional judgment). A substantial number of modeled reaches did not have such annotation. Stream surveys and species mapping efforts are ongoing for these species. As new information becomes available, we have the ability to revise the critical habitat designations in the future, as appropriate.
Comment 2: One commenter asserted that we must identify sufficient habitat to provide for the essential life cycle needs of the species (foraging, migrating and overwintering areas) and that this may require designating habitat that is not occupied for significant portions of the year, but is `essential to the conservation' of the species.
Response: In our critical habitat assessment we did take into account the life cycles of lower Columbia River coho and Puget Sound steelhead, and our descriptions of essential physical and biological features reflect the habitat needs of coho and steelhead at various life stages. Based on these habitat needs and the best available information regarding species distribution, we identified some areas in nearly all watersheds which are not continuously ``occupied,'' including freshwater-to-seawater connectivity corridors and reaches with seasonal, side channel habitats important for overwintering juveniles. Additionally, we also proposed for designation as critical habitat for Puget Sound steelhead areas in the upper Elwha River that were unoccupied at the time of listing but deemed essential for the species' conservation (NMFS, 2015a). The areas proposed for designation--now informed by public comments--reflect the best available information regarding the areas and features qualifying as critical habitat for each species.
Comment 3: Several commenters presented comments and data regarding specific locations where they believed that adjustments were warranted to our mapping of species' distribution.
Response: We considered the comments and data and, in addition to our responses above, we have summarized the resulting adjustments (mostly relatively minor mapping edits) to particular streams/locations in the Tables 1 and 2.
Critical Habitat Analytical Review Team (CHART) Report and Watershed Ratings
Comment 4: Several comments addressed the CHART process for rating watersheds and how that process impacts whether or not a watershed might be included as critical habitat. One peer reviewer commended the
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Puget Sound CHART work and believed that the assessment identified uncertainties and distinguished facts from professional judgments. One commenter, focusing on Puget Sound steelhead, expressed concern that the CHART ratings of watershed conservation values were too reliant on our 2005 critical habitat designation for Puget Sound Chinook. A second peer reviewer focused on the lower Columbia River coho evolutionarily significant unit (ESU) and commented that, for the most part, the draft designations rely on extensive, current and robust science to propose many important protections that will be critical for protecting and recovering threatened populations in this ESU. One commenter noted that while the CHART report provided substantial information, the process used to translate CHART watershed scores into ratings of watershed conservation values was not always clear. This commenter was concerned specifically about the low ratings given to the Sammamish and Lake Washington watersheds and their resultant exclusion due to economic impacts.
Response: The CHART process supporting these critical habitat designations relied on the professional judgement of 16 NMFS biologists with considerable species and habitat expertise reviewing the best available scientific information. That process, described in detail in the CHART report (NMFS, 2015a), involved multiple review phases that culminated in assigning conservation value ratings of ``high'', ``medium'', or ``low'' to each watershed/area. In addition to a phase that involved scoring various parameters for each watershed, the CHART process for assigning watershed ratings also considered additional information about the relationship of each watershed/area to others in the range of the DPS, and information about the population occupying each watershed/area and that population's relationship to other populations in the DPS. The CHART report includes annotation in tables under a heading ``Comments/Other Considerations'' for each watershed to aid in understanding the resultant ratings.
The essential physical and biological features used to designate critical habitat for lower Columbia River coho and Puget Sound steelhead are the same as those used for all other west coast salmon and steelhead designations completed since our comprehensive review in 2005 (70 FR 52630, September 2, 2005). Given the broad similarities in life history and habitat requirements shared by different species of salmonids, it is not surprising that many watersheds have similar conservation value ratings. However, the CHART report acknowledges that such ratings can and do differ due to species-specific differences in population structure and habitat utilization. For example, there were a number of cases (15 out of 66 watersheds) where watershed ratings for Puget Sound steelhead differed from ratings made for the same watershed in our 2005 designation for Puget Sound Chinook (70 FR 52630, September 2, 2005). In the case of lower Columbia River coho, an even higher proportion (24 out of 55 watersheds) differed with the watershed ratings made in our 2005 designation for lower Columbia River Chinook.
The CHART report describes the basis for giving three of the four watersheds in the Lake Washington subbasin a low conservation value for Puget Sound steelhead, namely, significant manmade hydrological changes and development have contributed to generally poor quality habitat features. Also, it is unclear to what degree steelhead utilized tributaries in these three watersheds. In the case of the fourth watershed (Cedar River), the CHART expressed similar concerns but also noted that this watershed has the best and most extensive habitat remaining in the subbasin as well as a substantial resident O. mykiss population that may play an important role in steelhead production in Central and South Puget Sound. As a result, the Cedar River watershed was assigned a medium rating for conservation value and, unlike the other low-value watersheds, was not subject to exclusion due to economic impacts.
Comment 5: Shortly after we published the proposed rule, a peer reviewer notified us that they had found errors and omissions to Appendix B of the Puget Sound steelhead assessment in the CHART report, including: An incorrect legend to a map, a missing map, and some information missing from a comment field within a table.
Response: We promptly made the corrections and posted an updated version of the CHART report, 3 days after publication of the proposed rule, available via the internet on our agency ESA critical habitat page. The missing map was also made available to the public at the same time via Regulations.gov under the ``Supporting Documents'' for the proposed rule.
Areas Upstream of Barriers
Several comments addressed our assessment of the conservation value of areas that were unoccupied at the time the species were listed due to dams that have since been removed, specifically Elwha and Glines Canyon dams on the Elwha River (in the range of the Puget Sound steelhead) and Condit Dam on the White Salmon River (in the range of lower Columbia River coho). Another commenter recommended that we consider designating areas above Cushman Dam on the Skokomish River as critical habitat for Puget Sound steelhead. In contrast, one commenter was concerned about designating critical habitat above natural barriers that historically blocked access for salmon and steelhead. We address comments specific to each area/barrier below.
Comment 6--Elwha Dams (Elwha River): In our proposed rule, we solicited comments and information regarding historical areas upstream of the Elwha and Glines Canyon dams, which were removed between 2011 and 2014 thereby re-establishing access for Puget Sound steelhead and other anadromous fish to the upper watershed. We received one comment on this solicitation from a peer reviewer (who agreed with our assessment) and distribution data from a co-manager identifying additional habitat areas in the upper Elwha River that have the potential to support steelhead.
Response: Based on the best available information, we conclude that approximately 48 miles of habitat above both dams are essential for the conservation of Puget Sound steelhead and have designated those stream reaches as critical habitat. In doing so, we have also reviewed the data provided by a co-manager and added approximately 2.6 miles (4.2 km; see Table 2) to areas we proposed in the upper Elwha River. Steelhead began re-colonizing the upper Elwha soon after dam removal began (e.g., Mapes, 2012) and the areas we are designating as critical habitat are consistent with those believed to be historically accessible to steelhead (Hard et al., 2015; Myers et al., 2015).
Comment 7--Condit Dam (White Salmon River): In our proposed rule, we solicited comments and information regarding areas upstream of Condit Dam (decommissioned in 2011) and whether such areas warrant designation as critical habitat for lower Columbia River coho. Several commenters presented divergent opinions on the matter. One commenter stated that the river downstream of the former Condit Dam is steep and contains little suitable spawning gravel, and the river upstream of the former Condit Dam lacks the required characteristics of the described primary constituent elements (PCEs). This commenter further asserted that
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the upper White Salmon River basin is not presently occupied by coho and historically contained only a small population of coho given the terrain and the lack of PCEs. Another commenter also asserted that PCEs for coho were of poor quality in the White Salmon River and that it will be decades before the migratory corridor meets the PCE conditions of submerged and overhanging large wood, aquatic vegetation, large rocks and boulders, side channels, and undercut banks supporting juvenile and adult mobility and survival. One commenter noted that most of the lower 12 miles (19 km) of the White Salmon River is subject to elevated levels of protection under either the Management Plan for the Columbia River Gorge National Scenic Area or the Lower White Salmon National Wild and Scenic River Management Plan. This protection, along with other arguments, led the commenter to conclude that critical habitat should not be designated in the White Salmon River watershed. In contrast, four commenters recommended designating critical habitat in the upper portions of the White Salmon River watershed now that Condit Dam has been removed. One commenter noted that fish distribution modeling by the Washington Department of Fish and Wildlife indicates that coho could make extensive usage of this watershed. Another commenter stated that NMFS should place particular weight on the fact that a major reason for the dam's removal was because of the negative impact the dam had on native fish. The other two commenters recommended designating critical habitat in the upper portions of the watershed but did not provide any new information that was not already considered by the CHART.
Response: In our proposed rule, we noted the CHART's assessment that access to habitat above the Condit Dam site that was unoccupied at the time of listing would likely provide a benefit to lower Columbia River coho, but it was unclear whether such habitat is essential for conservation of the entire DPS. None of the information received during the public comment period changes this conclusion and, therefore, we maintain that areas occupied by lower Columbia River coho at the time of listing (below the Condit Dam site) warrant designation as critical habitat whereas unoccupied areas upstream do not. The 2013 ESA Recovery Plan for the White Salmon River (NMFS, 2013) describes the historical White Salmon coho population as extinct or nearly so and that the preferred approach for species reintroduction is to allow natural straying into the river. That plan goes on to recommend monitoring natural escapement and production and the possibility for hatchery alternatives if population recovery is determined to be too slow. We will monitor any new information and consider it, as appropriate, in any future revision to this designation.
Comment 8--Cushman Dam (Skokomish River): Two commenters, including a peer reviewer, advocated for the designation of critical habitat in the North Fork Skokomish River above the Cushman Dam. Two commenters believed that critical habitat in the North Fork of the Skokomish River should be extended into the upper basin to include all accessible areas above Cushman Dam (including Big Creek). One of these commenters asserted that the potential increased steelhead production from the upper basin will be essential for recovery of the population.
Response: Areas above Cushman Dam were inaccessible and unoccupied by Puget Sound steelhead at the time of listing. The CHART reviewed information about the Skokomish watershed and rated it of high conservation value noting extensive PCEs and the largest intact estuary in Hood Canal (NMFS, 2015a). In a recent assessment of viability criteria for Puget Sound steelhead (Hard et al., 2015) several Team members noted that there has been considerable debate as to whether winter-run steelhead historically had access beyond the series of falls in the lower North Fork Skokomish River below the dam. Also, most of the habitat above the dam with high intrinsic potential for steelhead remains inundated by Lake Cushman (Hard et al., 2015). As a result of a 2009 settlement between the Skokomish tribe and Tacoma Public Utilities, the latter agreed to install fish passage facilities on the North Fork Skokomish River to reestablish access for anadromous fish into the upper watershed. In contrast to areas in the upper Elwha River, which are now readily accessible to steelhead, steelhead access to stream reaches above Cushman Dam will rely on recently developed trap and haul methods. In our 2010 ESA biological opinion for the Cushman Hydroelectric Project (NMFS, 2010) we noted that allowing steelhead access to areas upstream will enhance the species' spatial structure and diversity characteristics. We also noted that juvenile passage through storage reservoirs like Cushman, which have no measurable river current in much of their length, is a developing technology. This technology has only recently been implemented (Tacoma Power, 2014 and 2015) and it will be some time before we can discern the effects on steelhead production in the basin. For these reasons, we conclude that it is unclear whether areas above Cushman Dam are essential to the conservation of Puget Sound steelhead but we will revisit this issue if recovery planning indicates otherwise.
Comment 9--Waterfalls: One commenter recommended that we exclude occupied areas we proposed as critical habitat upstream of three waterfalls in the range of Puget Sound steelhead that historically prevented steelhead passage but access was made possible via fish ladders or trap-and-haul operations. The specific sites are Tumwater Falls on the Deschutes River, Granite Falls on the South Fork Stillaguamish, and Sunset Falls on the South Fork Skykomish River.
Response: We disagree with this recommendation. Although these areas were blocked historically, the implementation of fish ladders and trap and haul operations in the 1950s resulted in Puget Sound steelhead occupying the blocked areas at the time we listed the DPS. Although the recent Technical Recovery Team (TRT) report (Myers et al., 2015) does not identify historical demographically independent populations in these blocked areas, the areas were occupied by steelhead at the time of listing and contain the essential features. We acknowledge that in some of the areas noted by the commenter it is possible that many of the steelhead present are not considered to be part of the DPS (e.g., non-native Skamania Hatchery steelhead above Granite Falls). However, with access to steelhead now established, it is not possible to rule out the presence of some ESA-listed fish in these areas and GIS data we reviewed identified steelhead in these areas (NMFS, 2015a). We conclude that the areas identified in this comment warrant designation as critical habitat (but also note that numerous river reaches in these areas are excluded due to their overlap with lands covered by Habitat Conservation Plans; see Table 2).
Lateral Extent of Critical Habitat
Comment 10: Several commenters expressed opinions about our approach of defining critical habitat as the width of the stream channel defined by the ordinary high-water line or bankfull width. Those opinions generally consisted of concerns that such an approach ignored the importance of adjacent riparian areas and floodplains. For example, one peer reviewer stated: ``many of the PCEs identified for steelhead depend on watersheds as a
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whole (including, for example, riparian habitat, upslope habitats, unoccupied tributaries) and not just the stream reaches that steelhead physically occupy. Consequently, it may be difficult or impossible to conserve steelhead by limiting critical habitat designation only to the wetted stream reaches that they physically use. For example, there is an abundance of scientific information supporting that adjacent riparian zones are integrally tied to the instream habitats. In my mind, this supports the designation of, for example, a riparian zone as critical habitat for steelhead. It is unclear whether or how this is taken into account by NMFS in the designation of critical habitat if the purpose is to truly conserve steelhead.'' Another peer reviewer expressed similar concerns and stated that: ``the justification for excluding riparian and floodplain areas from critical habitat is unsupported by the analysis in the designation'' and noted that many approaches have been developed for defining riparian zones of influence and that using metrics like ordinary high water or bankfull width comes with its own set of ambiguities and difficulties.
Response: In the section Lateral Extent of Critical Habitat we describe our past and current approaches to this issue. We acknowledge that the quality of aquatic habitat within stream channels is intrinsically related to the adjacent riparian zones and floodplain, surrounding wetlands and uplands, and non-fish-bearing streams above occupied stream reaches. However, we maintain that it is reasonable to assert that: (1) Stream channels designated up to ``ordinary'' high water can reasonably be expected to be regularly ``occupied'' as that term is defined in the ESA, (2) the high water/bankfull elevation can be readily discerned for a variety of stream reaches and stream types using recognizable water lines or vegetation boundaries, and (3) there is no evidence to suggest that limiting our critical habitat designations to ordinary high water or bankfull width has compromised the conservation of listed species. Human activities that occur outside the stream or designated critical habitat can modify or destroy physical and biological features of the stream, and federal agencies are well aware of their need to consult with us on such activities even if they are located upslope or upstream of stream reaches designated as critical habitat.
Marine Areas
Comment 11: Several commenters expressed concern about the lack of marine habitat in our critical habitat designations for these species, in particular marine waters of the Salish Sea. Some commenters noted that while we had identified prey species, such as forage fish in nearshore and offshore areas, among the primary constituent elements of critical habitat, we did not propose such areas. One of these commenters suggested that we follow the approach used in our 2012 leatherback sea turtle critical habitat designation (77 FR 4170, January 26, 2012) that relied on the prey species PCE to designate over 40,000 square miles of critical habitat in the Pacific Ocean. Another commenter and a peer reviewer asserted that survival in the marine waters of Puget Sound is a major bottleneck for Puget Sound steelhead and that marine habitat may be one of the key factors limiting steelhead production.
Response: As noted in our proposed rule and in some of the comments, we have identified PCEs for salmon and steelhead associated with nearshore and offshore marine waters, and acknowledged that some may require special management considerations or protection (e.g., commercially harvested prey species). However, none of the comments provide information that would allow us to identify specific areas for either species in the nearshore or offshore marine environments. In the case of leatherback critical habitat raised by one commenter, we note that it was possible to identify eight specific marine areas based on observed densities of a prey PCE (scyphomedusae, i.e. ``jellyfish'') and leatherback use. In that rule, we also underscored that the specific areas could be assessed based on ``the importance of density of prey species as a characteristic of the PCE due to differences in dense aggregations of prey species and predicted use by leatherbacks for sustained foraging.'' We presently lack comparable information for lower Columbia River coho and Puget Sound steelhead and commenters have not provided any information to address this deficiency. Therefore, given the best available information, we cannot identify specific marine areas within the geographical area occupied on which are found those physical or biological features essential to their conservation and which may require special management considerations or protection (see sections Geographical Area Occupied by the Species and Specific Areas within the Geographical Area and Nearshore Marine Areas of Puget Sound).
Activities Affecting Critical Habitat
Comment 12: One commenter asserted that to comply with the requirements of ESA section 4(b)(8) we must describe and evaluate the activities that may adversely modify critical habitat, including the PCE of prey items in nearshore and offshore habitat. The commenter noted that in their review of recent ESA consultations over effects on Puget Sound Chinook and Hood Canal summer-run chum on forage fish and critical habitat, at least two federal agencies (U.S. Coast Guard and U.S. Navy) are not included in the current list of federal agencies.
Response: Section 4(b)(8) of the ESA states that ``The publication in the Federal Register of any proposed or final regulation which is necessary or appropriate to carry out the purposes of this Act shall include a summary by the Secretary of the data on which such regulation is based and shall show the relationship of such data to such regulation; and if such regulation designates or revises critical habitat, such summary shall, to the maximum extent practicable, also include a brief description and evaluation of those activities (whether public or private) which, in the opinion of the Secretary, if undertaken may adversely modify such habitat, or may be affected by such designation.'' In response to this comment, we have updated the section Activities That May be Affected by Critical Habitat Designation to reflect our recent history of ESA section 7 consultations in the range of lower Columbia coho and Puget Sound steelhead (including adding the U.S. Coast Guard and U.S. Department of Defense to the list of federal agencies). Also, the CHART report supporting these designations references the report ``An Ecosystem Approach to Salmonid Conservation'' by Spence et al. (1996) and describes how that report helped the CHART evaluate and summarize--for each watershed--over a dozen activities that affect the essential habitat features supporting these critical habitat designations. Although forage fish/species harvest was evaluated by the CHARTs as a potential habitat-modifying activity, it was not identified as a management concern in any of the watersheds assessed. It is possible that such harvest may be a management consideration in some marine areas; however, we have not identified any marine areas as critical habitat in this rulemaking.
Economic Analysis
Comment 13: One commenter disagreed with our analysis of the
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economic impacts of designating critical habitat in our use of the `baseline' approach to its consideration of economic impacts. The commenter stated that in attributing essentially all of the regulatory burdens and economic costs arising under the ESA to the listing decision, we had rejected the law as established in the Tenth Circuit (New Mexico Cattle Growers Ass'n v. U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001) (baseline approach is unlawful) and accepted the law as it stands in the Ninth Circuit (Arizona Cattlegrowers' Ass'n v. Salazar, 606 F3d 1160, 1172-74 (9th Cir. 2010), cert. denied, 131 S. Ct. 1471, 179 L. Ed. 2d 300 (2011) (baseline approach is lawful). The commenter asserted that we have no authority to resolve circuit court splits involving matters of statutory interpretation and construction, and that by using the baseline approach our critical habitat designation fails to account for all the economic impacts and is contrary to the ESA and congressional intent.
Response: As described in our proposed rule, in this and recent critical habitat designations our economic analysis has focused on determining the impacts on land uses and activities from the designation of critical habitat that are above and beyond--or incremental to--those ``baseline'' impacts due to existing or planned conservation efforts being undertaken due to other federal, state, and local regulations or guidelines. This approach is consistent with the more recent Ninth Circuit court case noted in the comment, and these critical habitat designations are located within the areas administered by that Circuit. Moreover, it is consistent with our critical habitat regulations at 50 CFR 424.19 (78 FR 53058, August 28, 2013).
Indian Lands
Comment 14: Three commenters expressed their support for Indian lands being excluded from critical habitat designation. One tribal commenter noted that Indian lands of the Muckleshoot Indian Tribe should have been identified for exclusion in the Middle Green River watershed (HUC 1711001302) and in the Lower Green River watershed (HUC 1711001303) (NMFS 2015a).
Response: We reviewed information regarding the lands of the Muckleshoot Indian Tribe and have made the appropriate ministerial corrections in this rulemaking (see Table 6).
Habitat Conservation Plans (HCPs)
Comment 15: Several commenters submitted comments regarding the exclusion of HCPs from designated critical habitat. Three commenters agreed with our proposed exclusion of lands subject to HCPs. One of these commented that the HCP for the Washington Forest Practices Act Forest and Fish Rules should be excluded from critical habitat designation to eliminate disincentives created by regulatory burdens of critical habitat, and instead rely upon the existing protective measures. Two other commenters believed that we had made appropriate use of the exclusion process mandated by the ESA and noted that HCPs provide effective long-term special management protection for salmon and steelhead habitat. Three other commenters disagreed with our exclusion of HCPs from critical habitat designation. One commenter asserted that we had expressed unjustified concern that designating critical habitat will cause private and state landowners to not enter into HCPs. They also believed that HCPs have considerably different protections and goals than critical habitat designation and that is arbitrary for us to argue that the two ESA mechanisms are essentially interchangeable. A second commenter opposed any exclusions from critical habitat designation of areas that may be covered by other management plans or HCPs under the logic that they do not need ``special management'' as used in section 3(5)(A) (citing Center for Biological Diversity v. Norton, 240 F. Supp. 2d 1090, 1099 (D. Az. 2003)) or using the rationale that the benefits of exclusion outweigh the benefits of designation under Section 4(b)(2) (citing Natural Res. Def. Council v. Interior, 113 F.3d 1121, 1127 (9th Cir. 1997)). A third commenter (the Suquamish Tribe) requested that we re-evaluate our exclusion of Puget Sound steelhead habitat on the Kitsap Peninsula subject to the Washington Forest Practices HCP. This commenter asserted that these HCP lands are difficult to identify, the HCP has had high non-compliance rates for riparian harvests, the HCP only addresses a limited number of activities, and exclusion would result in less protection for non-forestry land uses.
Response: In our proposed rule, we described our process for evaluating the benefits of designation and exclusion for lands covered by approved HCPs--including consideration of landowners' views about exclusion--and our determination that excluding such lands will not result in extinction of lower Columbia River coho and Puget Sound steelhead. The affected HCPs and landowners (or regulators) in this rulemaking are: Washington Department of Natural Resources (as landowner in the West of Cascades HCP and as regulator in the Washington Forest Practices HCP); Green Diamond Resources Company; West Fork Timber Company; City of Kent, Washington; and J.L. Storedahl and Sons. In this final rule we have maintained the exclusions of these lands, except in the case of the Washington Forest Practices HCP where we are not excluding a subset of HCP lands on the Kitsap Peninsula (described below). As noted in this final rule and a supporting ESA section 4(b)(2) analysis (NMFS 2015c), we conclude that a benefit of excluding HCP-covered lands from designation is the furtherance of our ongoing relationship with these landowners, which will result in improved implementation and improved conservation for the species. In addition, exclusion of these lands provides an incentive for other landowners to seek HCPs, which also provides a conservation benefit to the species. While it may be true, as one commenter asserted, that designation of HCP land as critical habitat could discourage landowners from entering into HCPs, we did not include that possibility in our balancing under Section 4(b)(2). In other words, we did not count avoidance of that possibility as a ``benefit of exclusion.''
Regarding the comments citing court cases relating to ESA sections 3 and 4, we note that our exclusion of HCP lands was based on the provisions of ESA section 4(b)(2)--balancing the benefits of designation versus exclusion--and not on a determination under section 3(5)(A) that such lands do not need ``special management'' and do not meet the definition of critical habitat under the ESA. Our 4(b)(2) report, made available for public comment, explains the lengthy analysis we undertook to evaluate whether to exclude the specific HCP lands identified above. That analysis included: Contacting each HCP landowner or regulator and soliciting their preferences and concerns; rating the conservation value of watersheds that overlap the HCP; assessing the types of federal activities in those watersheds that would likely undergo section 7 consultation; analyzing the particular HCP areas subject to exclusion in a GIS; balancing the benefits of designating HCP lands against the benefits of excluding them (while ensuring that any exclusions will not result in the extinction of the species); reviewing public input on our proposal and modifying our approach as necessary; and documenting our rationale and final assessment (NMFS 2015c). Section 4(b)(2) of the ESA grants
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the Secretary discretion to exclude any area from critical habitat designation if he determines ``the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat'' and exclusion will not result in extinction of the species. In adopting this provision, Congress explained that ``the consideration and weight given to any particular impact is completely within the Secretary's discretion.'' (H.R. No.95-1625, at 16-17, 1978; see also agency regulations at 50 CFR 424.19.) The Secretary's discretion to exclude is limited, as he may not exclude areas that ``will result in the extinction of the species.'' We have discretion in whether and how we balance benefits. Although the statute does not require that any area be excluded, consistent with our approach in prior critical habitat designations for most salmon and steelhead DPSs, we have determined that the benefit of excluding the lands covered by these HCPs outweighs the benefit of designating them and have exercised our discretion to exclude them from critical habitat designation.
Based on comments from the Suquamish Tribe, we re-assessed our proposed exclusion of stream reaches occupied by Puget Sound steelhead on the Kitsap Peninsula that are subject to the Forest Practices HCP. Although this extensive HCP includes numerous other watersheds occupied by Puget Sound steelhead (and lower Columbia River coho) we focused our re-assessment on the Kitsap where we had site-specific concerns, such as those raised by the Tribe. As a result of that re-assessment we considered the following:
Information from the Suquamish Tribe noting strong concerns about this HCP and about Kitsap steelhead and streams within the Tribe's usual and accustomed fishing places, including concerns about the difficulty in accurately delineating HCP areas, activities not covered by the HCP, conversion of lands out of forestland, and non-
compliance rates for riparian harvests;
Recently updated GIS data from the Washington Department of Natural Resources depicting those lands that are `approved' (have authority to operate) or `renewed' (the authority to operate has been extended beyond the original expiration date) under the HCP and its associated incidental take permit. The data posted and analyzed in September 2015 (Washington Department of Natural Resources, 2015) indicate that these approved or renewed lands overlap with approximately 3 miles (5 km) of Kitsap steelhead streams. While Kitsap lands covered by the Forest Practices HCP in the range of Puget Sound steelhead encompass approximately 90 miles (145 km) of steelhead streams, only a small fraction of those lands are currently enrolled and subject to the incidental take permit approved by NMFS for the Forest Practices HCP.
Except for a few streams adjacent to Hood Canal occupied by threatened chum salmon, most Kitsap streams are not designated ESA critical habitat for other species.
Information on the future of Washington's forests and forest industries prepared by the University of Washington College of Forest Resources (2009) projects that high-value forest lands on the Kitsap Peninsula are at high risk of being converted from forest use to development (conversion), especially in the northern and eastern parts of the peninsula. Once converted, such lands would no longer qualify for coverage under the HCP.
Based on our reconsideration, we concluded that the benefits of exclusion do not outweigh the benefits of designation for these lands covered by the HCP, primarily because there are no overlapping salmonid critical habitat designations in these areas and there is a high likelihood these areas will be converted (NMFS 2015c), and also because exclusion would undermine our ongoing relationship with the Suquamish Tribe which is an important conservation partner. We therefore have revised our designation to exclude only those Forest Practices HCP areas on the Kitsap Peninsula that the Washington Department of Natural Resources has classified as being in an approved or renewed enrollment status at the time of this final rule.
Comment 16: One commenter requested that we exclude their private lands (SDS Company, Stevenson Land Company and Broughton Lumber Company) on the White Salmon River and Little White Salmon River because the benefits of their Safe Harbor Agreement outweigh the benefits of critical habitat designation for lower Columbia River coho.
Response: We reviewed the maps submitted by this commenter and determined that none of the private lands referenced overlap with areas considered for critical habitat designation.
Climate Change
Comment 17: One commenter believed that we should more thoroughly consider and address the uncertainties of future climate effects on Puget Sound steelhead habitat, in particular the spatial coverage of critical habitat, as well as uncertainties of how steelhead populations might utilize habitat in the future. This commenter also noted that the Puget Sound TRT is actively developing information on population structure and viability for Puget Sound steelhead (e.g., Myers et al., 2015; Hard et al., 2015) and recommended that our critical habitat designation be modified as new information becomes available.
Response: We agree that climate-related changes are likely to affect essential habitat features and the distribution of Puget Sound steelhead (and other salmonids). However, our current state of knowledge provides only general guidance regarding how such changes would influence the specific areas we consider in a critical habitat designation. For example, a recent paper by Wade et al. (2015) models steelhead vulnerability to climate change and projects that in the west Cascade region, particularly Puget Sound, extreme high flows will impair conditions for steelhead incubation and migration life stages. However, they, in turn, caution that their methods were applied at a coarse resolution and that their results should be interpreted accordingly. Similarly, a recent report on climate change in Puget Sound (Climate Impacts Group, 2015) project that, over the long term, increasing peak flows, decreasing summer low flows, and warming stream temperatures will negatively affect steelhead and other stream-rearing species. That report underscores that cold-water refugia within rivers will be critical in helping salmonid populations adapt to future climate conditions. Such information would be useful at the scale that we analyze critical habitat; however, comprehensive inventories of refugia have not been completed and remain an important information gap (e.g., National Wildlife Federation, 2009; Raymond et al., 2014). Regardless, areas analyzed in our critical habitat designation for Puget Sound steelhead included higher elevation habitats that will likely continue to be important cold-water sources for steelhead and other species in the future.
In the present critical habitat designations, we have used the best available information--including TRT analyses of Puget Sound steelhead population structure (Myers et al., 2015) and viability criteria (Hard et al., 2015)--to discern areas that are eligible for designation and to assess their conservation value. While useful at the scale of populations and watersheds, these documents do not provide specific guidance on how to account for climate change impacts when designating
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particular stream reaches as critical habitat for steelhead. The viability analysis by Hard et al. (2015) is intended to serve as a technical framework for subsequent recovery planning (currently underway) but cautions that it is not intended to establish targets for delisting or recovery of steelhead, nor explicitly identify specific populations or groups of populations for recovery priority. The analysis does underscore the importance of maintaining steelhead life history diversity (e.g., both summer- and winter-run types) and spatial distribution in stream reaches across populations, but, again, does not provide specific information on areas that warrant designation as critical habitat now or in the future. The report does include maps of steelhead spawning reaches and analyses of stream reaches with varying levels of intrinsic potential (i.e., a measure of habitat suitability) for steelhead production. We reviewed these maps and data and found that nearly all (99.5 percent) of the stream reaches Hard et al. (2015) classified as known spawning or rearing reaches with high intrinsic potential were already in the GIS data and maps we analyzed for designation as critical habitat. Also, the stream reaches we analyzed encompassed all Puget Sound steelhead populations identified by Hard et al. (2015) and our assessment of watershed conservation value (as well as unoccupied reaches of the upper Elwha River) specifically took into account the importance of the less common summer-run steelhead life history type (NMFS, 2015a).
In our 2011 status review update for ESA-listed salmon and steelhead in the Pacific Northwest (Ford, 2011), we observed that climate change is likely to play an increasingly important role in determining the abundance of ESA-listed fish and the conservation value of designated critical habitats. We went on to note that some habitats currently occupied by salmon and steelhead may become uninhabitable due to the cumulative effects of climate change, and species may exhibit elevational and latitudinal shifts in distribution (Ford, 2011). Changes in the habitat areas and essential features considered in our critical habitat designation will likely be driven by factors such as higher water temperatures, reduced flows in summer and fall, and increased flooding in the winter. For example, increased high flows and flooding could impair the essential features related to freshwater spawning and rearing sites by reducing suitable overwintering habitat as well as scouring redds and reducing egg survival.
While the overall impacts of climate change on salmon and steelhead are expected to be negative, the magnitude of effects is likely to vary considerably. For example, Ford (2011) notes that climate-related changes will vary across the landscape, and areas with elevations high enough to maintain temperatures well below freezing for most of the winter and early spring will be less affected, while low-elevation areas are likely to be more affected. Similarly, the Lower Columbia River Salmon and Steelhead ESA Recovery Plan (NMFS, 2013) acknowledges that the magnitude and timing of changes to species' distribution, behavior, growth, and survival are poorly understood and specific effects are likely to vary among populations and goes on to identify various `adaptation strategies' to reduce impacts of climate change. With respect to the comment being addressed here, several strategies of note from the plan include: (1) Conserving adequate habitat to support healthy fish populations and ecosystem functions in a changing climate; (2) Developing a methodology to assess and identify, and then protect, stream reaches and population strongholds that will be resilient/
resistant to climate change impacts; and (3) Protecting and restoring headwater rivers and streams to protect the sources of cool, clean water and normative hydrologic conditions.
We believe that our approach to making critical habitat designations for Puget Sound steelhead (as well as lower Columbia River coho) is consistent with such strategies. With respect to the first strategy, we note that we excluded (based on economic impacts) very few occupied stream reaches that met the ESA definition for critical habitat. The vast majority of exclusions we made involved areas covered by HCPs which are expected to promote recovery through land and water management practices that benefit salmonids and encourage voluntary conservation agreements on non-federal lands. For the second strategy, our analysis of critical habitat employed a methodology involving a team of steelhead and habitat experts charged with reviewing and rating the conservation value of habitat areas in every watershed supporting Puget Sound steelhead (NMFS, 2015a). Most of the watersheds we evaluated were assigned a high conservation value by the CHARTs and, in light of the third strategy, many of these watersheds (especially along the Cascade Range) included headwater stream habitats at higher elevations such as those that Ford (2011) suggest will be less affected by climate change.
We will continue to monitor climate change information relevant to Puget Sound steelhead as well as guidance from ongoing recovery planning for this species. Consistent with this commenter's view, if new information suggests that the specific areas we have designated as critical habitat warrant reconsideration, or that additional areas should be considered for designation, we will do so as appropriate.
Information Quality Act
Comment 18: One commenter stated that proposed rule and the documents supporting it do not meet the requirements of the Information Quality Act (IQA). They contend that since two of the documents that the critical habitat proposals rely on (the economic analysis and the CHART report) were not subject to prior review then the IQA pre-
dissemination review was incomplete. Further, they commented that the IQA requires that we disclose our sources of information but allege that our documents were missing such sources and citations, in particular information regarding freshwater areas occupied by lower Columbia River coho.
Response: In our proposed rule section on ``Information Quality Act and Peer Review'' we stated that ``the data and analyses supporting this proposed action have undergone a pre-dissemination review and have been determined to be in compliance with applicable information quality guidelines implementing the Information Quality Act (IQA) (Section 515 of Pub. L. 106-554).'' That determination is an internal, agency review that was made on November 5, 2012, prior to publishing the proposed rule. Guidance on making that determination can be found in the NMFS ``Section 515 Pre-dissemination Review and Documentation Guidelines'' located at the NOAA Chief Information Officer Web site (http://www.cio.noaa.gov/services_programs/info_quality.html). Later, in that same section of the proposed rule, we noted that the two documents cited by the commenter would be distributed for independent peer review and that we would address any comments received in developing the final drafts of the two reports. We distributed those documents to six peer reviewers (two of which provided comments) and have taken into account those comments in developing this final rule.
With respect to our source and citation for information regarding lower Columbia River coho, the draft CHART
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report stated that ``. . . we developed extensive information regarding the stream reaches occupied by lower Columbia River coho and Puget Sound steelhead using data compiled by state and tribal fisheries agencies in Oregon and Washington, as the best available information. We collected and verified these data and produced distribution maps at a scale of 1:24,000 using standard Geographic Information System (GIS) software. We accessed these GIS data beginning in 2010, modified them based on input from state and tribal fishery biologists, and believe that they represent the best available information about areas occupied by each species at the time of listing. We also developed latitude-
longitude identifiers for the end-points of each occupied stream reach.'' This text should have included reference to the ODFW and WDFW GIS datasets that were included in the report's References section and cited elsewhere in the CHART report. We have edited that report to include the appropriate citations for these datasets and we will make those GIS data available via the internet on our agency ESA critical habitat page.
Statutory and Regulatory Background for Critical Habitat Designations
The ESA defines critical habitat under section 3(5)(A) as: ``(i) the specific areas within the geographical area occupied by the species, at the time it is listed . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination by the Secretary of Commerce that such areas are essential for the conservation of the species.'' The ESA does not specifically define the phrase ``physical or biological features.'' As noted in our proposed rule, agency regulations at 50 CFR 424.12(b) direct us to focus on these features, as well as the principal biological or physical constituent elements that are essential to the conservation of the species. In our CHART report (NMFS, 2015a) and proposed rule (78 FR 2726, January 14, 2013), we referred to the features and sites relevant to this definition as ``PCEs.'' In this final rule, we use the terms ``PCEs'' and ``essential features'' interchangeably and emphasize that these two terms are equivalent for this rulemaking.
Section 4(a)(3) of the ESA precludes the Secretary from designating military lands as critical habitat if those lands are subject to an Integrated Natural Resource Management Plan (INRMP) under the Sikes Act that the Secretary certifies in writing benefits the listed species. As described in the section Military Lands we have identified three areas with qualifying INRMPs in the range of Puget Sound steelhead.
Section 4(b)(2) of the ESA requires us to designate critical habitat for threatened and endangered species ``on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.'' This section grants the Secretary of Commerce (Secretary) discretion to exclude any area from critical habitat if he determines ``the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.'' In adopting this provision, Congress explained that, the consideration and weight given to any particular impact is completely within the Secretary's discretion.'' H.R. No. 95-1625, at 16-17 (1978). The Secretary's discretion to exclude is limited, as he may not exclude areas that ``will result in the extinction of the species.'' We describe that process and the results below in the section Application of ESA Section 4(b)(2).
Once critical habitat is designated, section 7 of the ESA requires federal agencies to ensure they do not fund, authorize, or carry out any actions that will destroy or adversely modify that habitat. This requirement is in addition to the section 7 requirement that federal agencies ensure their actions do not jeopardize the continued existence of listed species. We identify potentially affected federal agencies and actions in the section Activities That May Be Affected by Critical Habitat Designation.
Methods and Criteria Used To Identify Critical Habitat
In the following subsections, we describe the relevant definitions and requirements in the ESA and our implementing regulations, and the key methods and criteria used to prepare this critical habitat designation. Discussion of the specific implementation of each item occurs within the species-specific sections. In accordance with section 4(b)(2) of the ESA and our implementing regulations (50 CFR 424.12), this final rule is based on the best scientific information available concerning the species' present and historical range, habitat, and biology, as well as threats to their habitat. In preparing this rule, we reviewed and summarized current information on these species, including recent biological surveys and reports, peer-reviewed literature, NMFS status reviews, comments on our proposed rule, and the proposed and final rules to list these species. All of the information gathered to create this final rule has been collated and analyzed in three supporting documents: A Final Biological Report (NMFS, 2015a); a Final Economic Analysis (NMFS, 2015b); and a Final Section 4(b)(2) Report (NMFS, 2015c). We used this information to inform the identification of specific areas as critical habitat. We followed a five-step process in order to identify these specific areas: (1) Determine the geographical area occupied by the species at the time of listing, (2) identify physical or biological habitat features essential to the conservation of the species (i.e., essential features), (3) delineate specific areas within the geographical area occupied by the species on which are found the essential features, (4) determine whether the features in a specific area may require special management considerations or protections, and (5) determine whether any unoccupied areas are essential for conservation. Our evaluation and conclusions are described in detail in the following sections.
Geographical Area Occupied by the Species and Specific Areas Within the Geographical Area
Federal, state, and tribal fishery biologists map salmonid species presence and distribution at the level of stream reaches. The mapping includes areas where the species is present (within the past 20 years, but typically more recently) or where it is presumed to be present based on the professional judgment of biologists familiar with the watershed and the availability of suitable habitat, in particular the location of known barriers. Much of these data can be accessed and analyzed using GIS to produce consistent and fine-scale maps. As a result, nearly all salmonid freshwater and estuarine habitats in Washington, Oregon, Idaho, and California are mapped and available in GIS (ODFW, 2010a and 2015; WDFW, 2010 and 2015) at a scale of 1:24,000 (e.g., one map inch equals 24,000 inches--2,000 feet--in the real world), allowing for accurate and refined delineation of the ``geographical area occupied by the species.'' We originally accessed these GIS data beginning in 2010 and modified them based on data available in 2015 and on input from federal, state and tribal fishery biologists and comments on our proposed rule. We believe these data represent the best
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available information about areas occupied by each species at the time of listing.
To identify ``specific areas,'' we used ``HUC5'' watersheds as we did in our 2005 salmonid critical habitat designations (70 FR 52630, September 2, 2005). HUC5 watershed delineations are created by the U.S. Geological Survey and are generally available from various federal agencies and via the internet (Interior Columbia Basin Ecosystem Management Project, 2003; Regional Ecosystem Office, 2004; U.S. Department of Interior and U.S. Geological Survey, 2009). We used this information to organize critical habitat information systematically and at a scale that was relevant to the spatial distribution of salmon and steelhead. Organizing information at this scale is especially relevant to salmonids, since their innate homing ability allows them to return to particular reaches in the specific watersheds where they were born. Such site fidelity results in spatial aggregations of salmonid populations (and their constituent spawning stocks) that generally correspond to the area encompassed by wider HUC4 subbasins or their constituent HUC5 watersheds (Washington Department of Fisheries, Washington Department of Wildlife and Western Washington Treaty Indian Tribes, 1992; Kostow, 1995; McElhany et al., 2000).
In addition, HUC5 watersheds are consistent with the scale of recovery efforts for West Coast salmon and steelhead, and watershed-
level analyses are now common throughout the West Coast. There are presently hundreds of watershed councils or groups in the Pacific Northwest. Many operate at a geographic scale of one to several HUC5 watersheds and are integral parts of larger-scale salmon recovery strategies. In addition to these efforts, we have developed various ESA guidance documents that underscore the link between salmon conservation and the recovery of watershed processes (NMFS, 2000; NMFS, 2005b; NMFS, 2007). Aggregating stream reaches into HUC5 watersheds allowed the agency to delineate ``specific areas'' within or outside the geographical area occupied by the species at a scale that corresponds well to salmonid population structure and ecological processes.
As in our 2005 critical habitat designations (70 FR 52630, September 2, 2005), we identified estuary features essential to conservation of these species. For streams and rivers that empty into marine areas, we included the associated estuary as part of the HUC5 ``specific area.'' Also, as in our 2005 salmonid designations, we identified certain prey species in nearshore and offshore marine waters (such as Pacific herring) as essential features, and concluded that some may require special management considerations or protection because they are commercially harvested. However, prey species move or drift great distances throughout marine waters, often in association with oceanographic features that also move (such as eddies and thermoclines). In our proposed rule, we sought new information to better inform this question; however, we did not receive any new information that was not already considered. As such, we conclude that we cannot identify specific offshore marine areas where the essential features may be found (NMFS, 2012).
We also considered marine areas in Puget Sound for steelhead as potential specific areas that may contain features essential to conservation of these species, but concluded that the best available information suggests there are no areas that meet the statute's definition of critical habitat. In our 2005 rule (70 FR 52630, September 2, 2005), we designated critical habitat in nearshore areas for Puget Sound Chinook and Hood Canal summer-run chum salmon. However, steelhead move rapidly out of freshwater and into offshore marine areas, unlike Puget Sound Chinook and Hood Canal summer chum, making it difficult to identify specific foraging areas where the essential features are found. We therefore determined that for Puget Sound steelhead it is not possible to identify specific areas with essential features in the nearshore zone in Puget Sound.
Physical or Biological Features Essential for Conservation
Agency regulations at 50 CFR 424.12(b) interpret the statutory phrase ``physical or biological features essential to the conservation of the species.'' The regulations state that these features include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distribution of a species. The regulations further direct us to ``focus on the principal biological or physical constituent elements . . . that are essential to the conservation of the species, and specify that these elements shall be the `known primary constituent elements'.'' The regulations identify primary constituent elements as including, but not being limited to: ``roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, host species or plant pollinator, geological formation, vegetation type, tide, and specific soil types.'' As described earlier, in this final rule we use the terms ``essential features'' and ``PCEs'' interchangeably to describe the physical and biological features essential to the conservation of lower Columbia River coho and Puget Sound steelhead.
For the 2005 critical habitat designations for salmon and steelhead (70 FR 52630, September 2, 2005), NMFS biologists developed a list of physical and biological features relevant to determining whether occupied stream reaches within a watershed meet the ESA section (3)(5)(A) definition of ``critical habitat,'' consistent with the implementing regulation at 50 CFR 424.12(b). Relying on the biology and life history of each species, we determined the physical or biological habitat features essential to their conservation. For the present rulemaking, we used the same features, which we identified in the advance notice of proposed rulemaking (76 FR 1392, January 10, 2011) and proposed rule (78 FR 2726, January 14, 2013). These features include sites essential to support one or more life stages of the DPS (sites for spawning, rearing, migration and foraging). These sites, in turn, contain physical or biological features essential to the conservation of the DPS (for example, spawning gravels, water quality and quantity, side channels, forage species). Specific types of sites and the features associated with them include the following:
1. Freshwater spawning sites with water quantity and quality conditions and substrate supporting spawning, incubation and larval development.
2. Freshwater rearing sites with water quantity and floodplain connectivity to form and maintain physical habitat conditions and support juvenile growth and mobility; water quality and forage supporting juvenile development; and natural cover such as shade, submerged and overhanging large wood, log jams and beaver dams, aquatic vegetation, large rocks and boulders, side channels, and undercut banks.
3. Freshwater migration corridors free of obstruction with water quantity and quality conditions and natural cover such as submerged and overhanging large wood, aquatic vegetation, large rocks and boulders, side channels, and
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undercut banks supporting juvenile and adult mobility and survival.
4. Estuarine areas free of obstruction with water quality, water quantity, and salinity conditions supporting juvenile and adult physiological transitions between fresh- and saltwater; natural cover such as submerged and overhanging large wood, aquatic vegetation, large rocks and boulders, and side channels; and juvenile and adult forage, including aquatic invertebrates and fishes, supporting growth and maturation.
5. Nearshore marine areas free of obstruction with water quality and quantity conditions and forage, including aquatic invertebrates and fishes, supporting growth and maturation; and natural cover such as submerged and overhanging large wood, aquatic vegetation, large rocks and boulders, and side channels.
6. Offshore marine areas with water quality conditions and forage, including aquatic invertebrates and fishes, supporting growth and maturation.
We re-evaluated these essential features and sites (PCEs) and determined that they are all fully applicable to lower Columbia River coho and Puget Sound steelhead. The habitat areas designated in this rule currently contain essential features within the acceptable range of values required to support the biological processes for which the species use the habitat (NMFS, 2015a). The contribution of the essential features to the habitat varies by site and biological function, illustrating that the quality of the elements may vary within a range of acceptable conditions.
Special Management Considerations or Protection
An occupied area cannot be designated as critical habitat unless it contains physical and biological features that ``may require special management considerations or protection.'' Agency regulations at 50 CFR 424.02 define ``special management considerations or protection'' to mean ``methods or procedures useful in protecting physical or biological features essential to the conservation of listed species.'' Many forms of human activity have the potential to affect the habitat of listed salmon species: (1) Forestry; (2) grazing; (3) agriculture; (4) road building/maintenance; (5) channel modifications/diking; (6) urbanization; (7) sand and gravel mining; (8) mineral mining; (9) dams; (10) irrigation impoundments and withdrawals; (11) river, estuary, and ocean traffic; (12) wetland loss/removal; (13) beaver removal; and (14) exotic/invasive species introductions. In addition to these, human harvest of salmonid prey species (e.g., herring, anchovy, and sardines) may present another potential habitat-related activity (Pacific Fishery Management Council, 1999). All of these activities affect essential features via their alteration of one or more of the following: stream hydrology, flow and water-level modifications, fish passage, geomorphology and sediment transport, temperature, dissolved oxygen, vegetation, soils, nutrients and chemicals, physical habitat structure, and stream/estuarine/marine biota and forage (Spence et al., 1996; Pacific Fishery Management Council, 1999).
Unoccupied Areas
Section 3(5)(A)(ii) of the ESA authorizes the designation of ``specific areas outside the geographical area occupied at the time the species is listed'' if these areas are essential for the conservation of the species. Regulations at 50 CFR 424.12(e) emphasize that the agency ``shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.'' We focused our attention on the species' historical range when considering unoccupied areas since these logically would have been adequate to support the evolution and long-
term maintenance of distinct population segments. As with occupied areas, we considered the stream segments within a HUC5 watershed to best describe specific areas. While it is possible to identify which HUC5s represent geographical areas that were historically occupied with a high degree of certainty, this is not always the case with specific stream segments. This is due, in part, to the emphasis on mapping currently occupied habitats and to the paucity of site-specific or systematic historical stream surveys. As described later in this final rule, we did identify unoccupied stream reaches that are essential for conservation of Puget Sound steelhead.
Military Lands
Section 4(a)(3) of the ESA precludes the Secretary from designating military lands as critical habitat if those lands are subject to an INRMP under the Sikes Act that the Secretary certifies in writing benefits the listed species. We consulted with the U.S. Department of Defense (DOD) and determined that three installations in Washington with either draft or final INRMPs overlap with streams occupied by Puget Sound steelhead: (1) Naval Base Kitsap; (2) Naval Radio Station, Jim Creek; and (3) Joint Base Lewis-McChord (Army and Air Force). We did not identify any INRMPs or DOD installations within the range of lower Columbia River coho.
We identified habitat meeting the statutory definition of critical habitat at each of the above installations and reviewed the INRMPs, as well as other information available regarding the management of these military lands. Our review indicates that each of these INRMPs address Puget Sound steelhead habitat, and all contain measures that provide benefits to this DPS (NMFS, 2015c). Examples of the types of benefits include actions that eliminate fish passage barriers, control erosion, protect riparian zones, increase stream habitat complexity, and monitor listed species and their habitats. As a result, we are not designating critical habitat in areas subject to the INRMPs identified above.
Critical Habitat Analytical Review Team (CHART)
To assist in the designation of critical habitat, we convened two CHARTs (henceforth referred to as ``Teams'')--one for lower Columbia River coho and another for Puget Sound steelhead. The Teams consisted of NMFS salmonid habitat biologists who were tasked with assessing biological information pertaining to areas under consideration for designation as critical habitat (NMFS, 2015a). The Teams examined each habitat area within the watershed to determine whether the reaches occupied by the species contain the physical or biological features (PCEs) essential to conservation. The Teams also relied on their experience conducting section 7 consultations to determine whether the features ``may require special management considerations or protection.'' The Teams' rating of habitat areas as having a high, medium, or low conservation value informed our discretionary balancing consideration in ESA section 4(b)(2). The Teams were also tasked with assessing whether there were any unoccupied areas within the historical range of the DPSs that were essential for conservation. Further details on the Team's methods for determining relative conservation values and ratings of habitat areas can be found in the proposed rule (78 FR 2726, January 14, 2013), and that discussion is incorporated herein by reference.
Species Descriptions and Area Assessments
The proposed rule describes in greater detail the life history traits and conservation status of lower Columbia
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River coho and Puget Sound steelhead, and the Teams' assessment of habitat areas. None of the information we received from public comments on the proposed rule affected our consideration of this information for this final rule. As such, the information on these DPSs' life history traits, conservation status, and habitat assessments remain the same as described in the proposed rule (78 FR 2726, January 14, 2013), and that discussion is incorporated herein by reference. Since publishing our proposed rule, we have monitored recovery planning progress for both DPSs. Notably, several months after proposing critical habitat, we released an ESA recovery plan addressing lower Columbia River coho (78 FR 41911, July 12, 2013; NMFS, 2013), and in 2015 the Puget Sound TRT completed assessments identifying historical populations and viability criteria for Puget Sound steelhead (Myers et al., 2015; Hard et al., 2015). We considered this new information during the development of this final critical habitat designation and determined that, aside from some minor changes to steelhead population names, it did not change the area assessments and conclusions reached in our proposed critical habitat designation. However, in response to comments on our proposed rule and review by fisheries co-managers in Washington and Oregon, we edited our distribution data/maps for lower Columbia River coho salmon to better reflect the areas occupied at the time of listing. Tables 1 and 2 summarize the changes made for specific watersheds in the range of each DPS, including the removal of areas incorrectly identified as occupied habitat in the proposed rule (referred to as ``unoccupied areas'' in these tables), while more detailed information is contained in the CHART report (NMFS, 2015a).
Table 1--Changes to Critical Habitat Designation for Lower Columbia River Coho Salmon
----------------------------------------------------------------------------------------------------------------
Subbasin Watershed code Watershed name Changes from proposed rule
----------------------------------------------------------------------------------------------------------------
MIDDLE COLUMBIA/HOOD.................. 1707010506 East Fork Hood River..... Added 0.6 miles (1.0 km) of
occupied habitat areas in
one stream and removed 0.2
miles (0.3 km) of unoccupied
areas in one stream.
MIDDLE COLUMBIA/HOOD.................. 1707010507 West Fork Hood River..... Added 1.1 miles (1.8 km) of
occupied habitat areas in
one stream and removed 1.4
miles (2.3 km) of unoccupied
areas in one stream.
MIDDLE COLUMBIA/HOOD.................. 1707010511 Wind River............... Removed 68.8 miles (110.7 km)
of unoccupied areas in the
Wind River above Shipherd
Falls.
MIDDLE COLUMBIA/HOOD.................. 1707010512 Middle Columbia/Grays Added 0.4 miles (0.6 km) of
Creek. occupied habitat areas in
one stream.
LOWER COLUMBIA/SANDY.................. 1708000101 Salmon River............. Added 0.6 miles (1.0 km) of
occupied habitat areas in
two streams.
LOWER COLUMBIA/SANDY.................. 1708000102 Zigzag River............. Added 2.6 miles (4.2 km) of
occupied habitat areas in
three streams.
LOWER COLUMBIA/SANDY.................. 1708000103 Upper Sandy River........ Added 1.3 miles (2.1 km) of
occupied habitat areas in
nine streams.
LOWER COLUMBIA/SANDY.................. 1708000104 Middle Sandy River....... Added 1.8 miles (2.9 km) of
occupied habitat areas in
three streams.
LOWER COLUMBIA/SANDY.................. 1708000105 Bull Run River........... Added 2.5 miles (4.0 km) of
occupied habitat areas in
one stream.
LOWER COLUMBIA/SANDY.................. 1708000107 Columbia Gorge Removed 0.5 miles (0.8 km) of
Tributaries. unoccupied areas in one
stream.
LOWER COLUMBIA/SANDY.................. 1708000108 Lower Sandy River........ Added 0.3 miles (0.5 km) of
occupied habitat areas in
one stream.
LEWIS................................. 1708000201 Upper Lewis River........ Removed 0.2 miles (0.3 km) of
unoccupied areas in one
stream.
LEWIS................................. 1708000203 Swift Reservoir.......... Added 4.3 miles (6.9 km) of
occupied habitat areas in
two streams.
LEWIS................................. 1708000206 Lower Lewis River........ Removed 0.4 miles (0.6 km) of
unoccupied areas in one
stream.
LOWER COLUMBIA/CLATSKANIE............. 1708000302 Beaver Creek/Columbia Added 6.1 miles (9.8 km) of
River. occupied habitat areas in
two streams.
LOWER COLUMBIA/CLATSKANIE............. 1708000303 Clatskanie River......... Added 0.7 miles (1.1 km) of
occupied habitat areas in
one stream and removed 1.1
miles (1.8 km) of unoccupied
areas in one stream.
LOWER COLUMBIA/CLATSKANIE............. 1708000306 Plympton Creek........... Removed 1.3 miles (2.1 km) of
unoccupied areas in one
stream.
UPPER COWLITZ......................... 1708000401 Headwaters Cowlitz River. Removed 0.3 miles (0.5 km) of
unoccupied areas in two
streams.
UPPER COWLITZ......................... 1708000402 Upper Cowlitz River...... Removed 1.1 miles (0.5 km) of
unoccupied areas in three
streams.
UPPER COWLITZ......................... 1708000403 Cowlitz Valley Frontal... Added 0.1 miles (0.2 km) of
occupied habitat areas in
one stream and removed 1.3
miles (2.1 km) of unoccupied
areas in four streams.
UPPER COWLITZ......................... 1708000404 Upper Cispus River....... Removed 0.1 miles (0.2 km) of
unoccupied areas in one
stream.
UPPER COWLITZ......................... 1708000405 Lower Cispus River....... Added 1.0 miles (1.6 km) of
occupied habitat areas in
two streams and removed 0.9
miles (1.4 km) of unoccupied
areas in three streams.
LOWER COWLITZ......................... 1708000501 Tilton River............. Added 1.4 miles (2.3 km) of
occupied habitat areas in
four streams and removed 1.7
miles (2.7 km) of unoccupied
areas in seven streams.
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LOWER COWLITZ......................... 1708000503 Jackson Prairie.......... Added 21.5 miles (34.6 km) of
occupied habitat areas in
eight streams.
LOWER COLUMBIA........................ 1708000601 Youngs River............. Added 7.7 miles (12.4 km) of
occupied habitat areas in
eleven streams and removed
1.3 miles (2.1 km) of
unoccupied areas in three
streams.
LOWER COLUMBIA........................ 1708000602 Big Creek................ Added 1.0 miles (1.6 km) of
occupied habitat areas in
two streams.
CLACKAMAS............................. 1709001102 Upper Clackamas River.... Removed 1.1 miles (1.8 km) of
unoccupied areas in one
stream.
CLACKAMAS............................. 1709001104 Middle Clackamas River... Added 1.1 miles (1.8 km) of
occupied habitat areas in
three streams.
CLACKAMAS............................. 1709001106 Lower Clackamas River.... Added 0.9 miles (1.4 km) of
occupied habitat areas in
one stream.
LOWER WILLAMETTE...................... 1709001201 Johnson Creek............ Added 4.6 miles (7.4 km) of
occupied habitat areas in
eleven streams.
LOWER WILLAMETTE...................... 1709001202 Scappoose Creek.......... Added 6.6 miles (10.6 km) of
occupied habitat areas in
five streams.
LOWER WILLAMETTE...................... 1709001203 Columbia Slough/ Added 5.3 miles (8.5 km) of
Willamette River. occupied habitat areas in
one stream.
----------------------------------------------------------------------------------------------------------------
Table 2--Changes to Critical Habitat Designation for Puget Sound Steelhead
----------------------------------------------------------------------------------------------------------------
Subbasin Watershed code Watershed name Changes from proposed rule
----------------------------------------------------------------------------------------------------------------
STRAIT OF GEORGIA..................... 1711000201 Bellingham Bay........... Added 4.9 miles (7.9 km) of
occupied habitat areas in
two streams.
STRAIT OF GEORGIA..................... 1711000202 Samish River............. Added 0.2 miles (0.3 km) of
occupied habitat areas in
two streams.
STRAIT OF GEORGIA..................... 1711000204 Birch Bay................ Added 2.9 miles (4.7 km) of
occupied habitat areas in
five streams.
NOOKSACK.............................. 1711000401 Upper North Fork Nooksack Added 2.0 miles (3.2 km) of
River. occupied habitat areas in
seven streams and removed
10.7 miles (17.2 km) of
unoccupied areas in five
streams.
NOOKSACK.............................. 1711000403 South Fork Nooksack River Added 2.3 miles (3.7 km) of
occupied habitat areas in
eight streams and removed
3.6 miles (5.8 km) of
unoccupied areas in three
streams.
NOOKSACK.............................. 1711000404 Lower North Fork Nooksack Added 2.3 miles (3.7 km) of
River. occupied habitat areas in
five streams and removed 4.2
miles (7.6 km) of unoccupied
areas in eight streams.
NOOKSACK.............................. 1711000405 Nooksack River........... Added 10.4 miles (16.7 km) of
occupied habitat areas in
seven streams and removed
2.3 miles (3.7 km) of
unoccupied areas in two
streams.
STILLAGUAMISH......................... 1711000801 North Fork Stillaguamish Added 0.9 miles (1.4 km) of
River. occupied habitat areas in
one stream and removed 2.3
miles (3.7 km) of unoccupied
areas in one stream.
STILLAGUAMISH......................... 1711000802 South Fork Stillaguamish Added 5.0 miles (8.0 km) of
River. occupied habitat areas in
four streams.
STILLAGUAMISH......................... 1711000803 Lower Stillaguamish River Added 1.0 miles (1.6 km) of
occupied habitat areas in
one stream.
SNOQUALMIE............................ 1711001004 Lower Snoqualmie River... Added 3.1 miles (5.0 km) of
occupied habitat areas in
one stream.
SNOHOMISH............................. 1711001101 Pilchuck River........... Added 5.4 miles (8.7 km) of
occupied habitat areas in
four streams.
LAKE WASHINGTON....................... 1711001201 Cedar River.............. Added 15.5 miles (25.9 km) of
occupied habitat areas in
nine streams.
DUWAMISH.............................. 1711001301 Upper Green River........ Added 15.6 miles (25.1 km) of
occupied habitat areas in
twelve streams.
DUWAMISH.............................. 1711001302 Middle Green River....... Added 5.8 miles (9.3 km) of
occupied habitat areas in
four streams.
DUWAMISH.............................. 1711001303 Lower Green River........ Added 12.1 miles (19.5 km) of
occupied habitat areas in
six streams.
HOOD CANAL............................ 1711001806 Big Quilcene River....... Added 3.1 miles (5.0 km) of
occupied habitat areas in
one stream and removed 4.1
miles (6.6 km) of unoccupied
areas in one stream.
KITSAP................................ 1711001900 Kennedy/Goldsborough..... Corrected the erroneous
reference to the Puget Sound
subbasin in our regulations
and added 0.7 miles (1.1 km)
of occupied habitat areas in
one stream.
KITSAP................................ 1711001901 Puget.................... Added 4.9 miles (7.9 km) of
occupied habitat areas in
seven streams.
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KITSAP................................ 1711001904 Puget Sound/East Passage. Added 0.4 miles (0.6 km) of
occupied habitat areas in
one stream.
DUNGENESS/ELWHA....................... 1711002007 Elwha River.............. Added 2.6 miles (4.2 km) of
occupied habitat areas in
one stream.
----------------------------------------------------------------------------------------------------------------
Application of ESA Section 4(b)(2)
Specific areas eligible for designation as critical habitat are those that fall within the ESA section 3(5)(A) definition, not including lands owned or controlled by the DOD, or designated for its use, that are covered by an INRMP that we have determined in writing provides a benefit to the species. Specific areas eligible for designation are not automatically designated as critical habitat. Section 4(b)(2) of the ESA requires that the Secretary consider the economic impact, impact on national security, and any other relevant impact of designating those areas. The Secretary has the discretion to exclude a ``particular area'' from designation if he determines the benefits of exclusion (that is, avoiding the impact that would result from designation), outweigh the benefits of designation. The Secretary may not exclude an area from designation if, based on the best available scientific and commercial information, exclusion will result in the extinction of the species. Because the authority to exclude is ``wholly'' discretionary, exclusion is not required for any areas.
The first step in conducting an ESA section 4(b)(2) analysis is to identify the ``particular areas'' to be analyzed. Section 3(5) of the ESA defines critical habitat as ``specific areas,'' while section 4(b)(2) requires the agency to consider certain factors before designating any ``particular area.'' Depending on the biology of the species, the characteristics of its habitat, and the nature of the impacts of designation, ``specific'' areas might be different from, or the same as, ``particular'' areas. For lower Columbia River coho and Puget Sound steelhead, we analyzed two types of ``particular'' areas. 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 had identified under section 3(5)(A), the HUC5 watershed. This worked well because upslope and upstream activities in a watershed can affect the stream within the watershed (see the Final Economic Analysis (NMFS, 2015b) for definition of the HUC5s and more information). This approach allowed us to most effectively consider the conservation value of the different areas when balancing conservation benefits of designation against economic benefits of exclusion. Where we considered impacts on Indian lands and lands subject to a HCP, however, we instead used a delineation of ``particular'' areas based on ownership or control of the area. Specifically, these particular areas consisted of occupied freshwater and estuarine areas that overlap with Indian and HCP lands. This approach allowed us to consider impacts and benefits associated with land ownership and management by Indian tribes and HCP partners.
The use of two different types of areas required us to account for overlapping boundaries (that is, ownership may span many watersheds and watersheds may have mixed ownership). The order in which we conducted the section 4(b)(2) balancing became important because of this overlap. To ensure we were not double-counting the benefits of exclusion, we first considered exclusion of particular areas based on land ownership and determined which areas to recommend for exclusion. We then considered economic exclusion of particular areas based on watersheds, with the economic impact for each watershed adjusted based on whether a given type of ownership had already been recommended for exclusion.
Benefits of Designation
The primary benefit of designation is the protection afforded under the ESA section 7 requirement that all federal agencies ensure their actions are not likely to destroy or adversely modify designated critical habitat. This type of benefit is sometimes referred to as an incremental benefit because the protections afforded to the species from critical habitat designation are 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 enhance the conservation of habitat by informing the public about areas and features important to species conservation. This may help focus and contribute to conservation efforts for salmon and steelhead and their habitats.
With sufficient information, it may be possible to monetize these benefits of 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 physical and biological features within specific areas that meet the definition of critical habitat, or of the monetary value of general benefits such as education and outreach). In an alternative approach that we have commonly used in the past (70 FR 52630, September 2, 2005), we qualitatively assessed the benefit of designation for each of the specific areas identified as meeting the definition of critical habitat for each DPS. Our qualitative consideration began with an evaluation of the conservation value of each area. We considered a number of factors to determine the conservation value of an area, including the quantity and quality of physical or biological features, the relationship of the area to other areas within the DPS, and the significance to the DPS of the population occupying that area.
There are many federal activities that occur within the specific areas that could impact the conservation value of these areas. Regardless of designation, federal agencies are required under Section 7 of the ESA to ensure these activities are not likely to jeopardize the continued existence of lower Columbia River coho and Puget Sound steelhead. If the specific areas are designated as critical habitat, federal agencies will additionally be required to ensure their actions are not likely to adversely modify the critical habitat. We grouped the potential federal activities that would be subject to this additional protection into several broad categories: Water supply, in-stream work, development, federal lands management, transportation, utilities, mining, and hydropower.
The benefit of designating a particular area depends upon the likelihood of a section 7 consultation occurring in that area and the degree to which a
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consultation would yield conservation benefits for the species. Based on past consultations for listed salmon and steelhead in this region, we estimated that a total of 55 actions would require section 7 consultation annually for lower Columbia River coho within the particular areas being considered for designation (NMFS, 2015b). For Puget Sound steelhead, we estimated that a total of 117 actions would require section 7 consultation annually within the particular areas being considered for designation (NMFS, 2015b). The most common activity types subject to consultation in the range of each DPS would be in-stream work and transportation projects, accounting for approximately 80 percent of estimated actions (a complete list of the estimated annual actions, allocated by particular area, is included in the Final Economic Analysis (NMFS, 2015b)). These activities have the potential to adversely affect water quality and substrate composition and quality for salmon and steelhead. Consultation would yield conservation benefits for the species by preventing or ameliorating such habitat effects.
Impacts of Designation
Section 4(b)(2) of the ESA provides that the Secretary shall consider ``the economic impact, impact on national security, and any other relevant impact of specifying any particular area as critical habitat.'' The primary impact of a critical habitat designation stems from the requirement under section 7(a)(2) of the ESA that federal agencies ensure their actions are not likely to result in the destruction or adverse modification of critical habitat. Determining this impact is complicated by the fact that section 7(a)(2) contains the overlapping requirement that federal agencies must ensure their actions are not likely to jeopardize the species' continued existence. The true impact of designation is the extent to which federal agencies modify their actions to ensure their actions are not likely to destroy or adversely modify the critical habitat of the species, beyond any modifications they would make because of listing and the jeopardy requirement. Additional impacts of designation include state and local protections that may be triggered as a result of the designation. In addition, if the area designated overlaps an area previously designated as critical habitat for another species, the true impact of designation is the modification federal agencies would make beyond any modification they would make to avoid adversely modifying the already-designated critical habitat.
In determining the impacts of designation, we predicted the incremental change in federal agency actions as a result of critical habitat designation and the adverse modification prohibition, beyond the changes predicted to occur as a result of listing and the jeopardy provision. In August 2013, we and the U.S. Fish and Wildlife Service (USFWS) published a final rule amending our joint regulations at 50 CFR 424.19 to make clear that in considering impacts of designation as required by Section 4(b)(2) we would consider the incremental impacts (78 FR 53058, August 28, 2013). More recently, several courts (including the 9th Circuit Court of Appeals) have approved an approach that considers the incremental impact of designation. The Federal Register notice announcing the final rule on considering impacts of designation describes and discusses these court cases (Arizona Cattlegrowers' Ass'n v. Salazar, 606 F3d 1160, 1172-74 (9th Cir. 2010), cert. denied, 131 S. Ct. 1471, 179 L. Ed. 2d 300 (2011); Homebuilders Ass'n v. FWS, 616 F3d 983, 991-993 (9th Cir. 2010) cert. denied, 131 S. Ct. 1475, 179 L. Ed. 2d 301 (2011). Further, in more recent critical habitat designations, we and the USFWS have considered the incremental impact of critical habitat designation (for example, our designation of critical habitat for the Southern DPS of green sturgeon (74 FR 52300, October 9, 2009) and the Southern DPS of eulachon (76 FR 65324, October 20, 2011), and the USFWS's designation of critical habitat for the Oregon chub (75 FR 11031, March 10, 2010)). Consistent with our regulation, the more recent court cases, and more recent agency practice, we estimated the incremental impacts of designation, beyond the impacts that would result from the listing and jeopardy provision. In addition, because these designations almost completely overlap our previous salmonid critical habitat designations, and the essential features are the same, we estimated only the incremental impacts of designation beyond the impacts already imposed by those prior designations.
To determine the impact of designation, we examined what the state of the world would be with the designation of critical habitat for the lower Columbia River coho and Puget Sound steelhead DPSs and compared it to the state of the world without the designations. The ``without critical habitat'' scenario represents the baseline for the analysis. It includes process requirements and habitat protections already afforded these DPSs under their federal listing or under other federal, state, and local regulations. Such regulations include protections afforded to habitat supporting these two DPSs from other co-occurring ESA listings and critical habitat designations, in particular listings/
designations for West Coast salmon and steelhead (70 FR 52630, September 2, 2005). In the case of lower Columbia River coho, the designation overlaps with existing designations for lower Columbia River steelhead and Chinook and Columbia River chum, as well as several DPSs that spawn upstream in the middle and upper Columbia and Snake Rivers. In the case of Puget Sound steelhead, the designation overlaps with existing designations for Puget Sound Chinook and Hood Canal summer-run chum. The ``with critical habitat'' scenario describes the incremental impacts associated specifically with the designation of critical habitat for lower Columbia River coho and Puget Sound steelhead. The primary impacts of critical habitat designation we found were: (1) The costs associated with additional administrative effort of including a critical habitat analysis in section 7 consultations for these two DPSs, (2) project modifications required solely to avoid destruction or adverse modification of their critical habitat, (3) potential impacts on national security if particular areas were designated critical habitat for Puget Sound steelhead, and (4) the possible harm to our working relationship with Indian tribes and some HCP landowners. There are no military areas eligible for designation that overlap with critical habitat areas, so we did not consider impacts to national security. Because we have chosen to balance benefits and consider exclusions, we consider these impacts in more detail below in the section devoted to each type of impact.
Economic Impacts
Our economic analysis sought to determine the impacts on land uses and activities from the designation of critical habitat that are above and beyond--or incremental to--those ``baseline'' impacts due to existing or planned conservation efforts being undertaken due to other federal, state, and local regulations or guidelines (NMFS, 2015b). Other federal agencies, as well as state and local governments, may also seek to protect the natural resources under their jurisdiction. If compliance with the Clean Water Act or State environmental quality laws, for example, protects habitat for the species, such protective efforts are considered to be baseline protections and costs associated with these efforts
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are not quantified as impacts of critical habitat designation.
When critical habitat is designated, section 7 of the ESA requires federal agencies to ensure that their actions will not result in the destruction or adverse modification of critical habitat (in addition to ensuring that the actions are not likely to jeopardize the continued existence of the species). The added administrative costs of considering critical habitat in section 7 consultations and the additional impacts of implementing project modifications to protect critical habitat are the direct result of the designation of critical habitat. These costs are not in the baseline and are considered incremental impacts of the rulemaking.
Incremental impacts may also include the direct costs associated with additional effort for future consultations, reinitiated consultations, new consultations occurring specifically because of the designation, and additional project modifications that would not have been required to avoid jeopardizing the continued existence of the species. Additionally, incremental impacts may include indirect impacts resulting from reaction to the designation of critical habitat (e.g., developing ESA HCPs in an effort to avoid designation of critical habitat), triggering of additional requirements under State or local laws intended to protect sensitive habitat, and uncertainty and perceptional effects on markets.
To evaluate the economic impact of critical habitat we first examined our ESA section 7 consultation record for West Coast salmon and steelhead. That voluminous record includes consultations on habitat-modifying federal actions both where critical habitat has been designated and where it has not. As further explained in the supporting economic report (NMFS, 2015b), to quantify the economic impact of designation, we employed the following three steps:
(1) Define the geographic study area for the analysis, and identify the units of analysis (the ``particular areas''). In this case, we defined HUC5 watersheds that encompass occupied stream reaches as the study area.
(2) Identify potentially affected economic activities and determine how management costs may increase due to the designation of critical habitat for lower Columbia River coho and Puget Sound steelhead, both in terms of project administration and project modification.
(3) Estimate the economic impacts associated with these changes in management.
We estimated a total annualized incremental cost of approximately $357,815 for designating all specific areas as critical habitat for lower Columbia River coho. The greatest costs are associated with transportation, water supply, and in-stream work activities (see NMFS, 2015b). The Columbia Slough/Willamette River HUC5 watershed had the largest estimated annual impacts ($54,000) while the Jackson Prairie HUC5 watershed had the lowest, with zero estimated annual impacts (NMFS, 2015b).
For Puget Sound steelhead, we estimated a total annualized incremental administrative cost of approximately $460,924 for designating all specific areas as critical habitat. The greatest costs are associated with transportation and in-stream work activities (see NMFS, 2015b). Several watersheds located throughout the range of the DPS had zero estimated annual impacts, while the Lake Washington HUC5 watershed had the largest estimated annual impacts ($103,000) (NMFS, 2015b).
In weighing economic impacts, we followed the policy direction from Executive Order 12866 to ``maximize net benefits'' and seek to achieve regulatory objectives in ``the most cost effective manner.'' Consistent with our past practice for salmon and steelhead critical habitat designations, we took into consideration a cost-effectiveness approach giving priority to excluding habitat areas with a relatively lower benefit of designation and a relatively higher economic impact. The circumstances of these and other listed salmon and steelhead DPSs can make a cost-effectiveness approach useful because different areas have different conservation value relative to one another. Pacific salmon and steelhead are wide-ranging species and occupy numerous habitat areas with thousands of stream miles. Not all occupied areas are of equal importance to conserving a DPS. Within the currently occupied range there are areas that historically were more or less productive, that are currently more or less degraded, or that support populations that are more or less central to conservation of the DPS as a whole. As a result, in many cases it may be possible to construct a designation scenario in which conservation of the DPS as a whole will be possible even if the entire area meeting the definition of critical habitat is not designated. This creates the potential to consider exclusions where conservation values are relatively low and economic impacts are relatively high. This is the same approach we took in our 2005 salmonid critical habitat designations (70 FR 52630, September 2, 2005) and green sturgeon critical habitat designation (74 FR 52300, October 9, 2009).
In seeking a cost-effective designation that would minimize economic impacts, we also heeded the policy direction to conserve salmon and steelhead habitat described above. In accordance with the policy direction to conserve salmon and steelhead habitat, we are not excluding any habitat areas based on economic impacts if exclusion would ``significantly impede conservation.'' We adopted this test because habitat loss and degradation are leading factors for the decline of both DPSs (70 FR 37160, June 28, 2005; 72 FR 26722, May 11, 2007), and habitat protection and restoration have been identified as key actions in Lower Columbia River and Puget Sound recovery plans and assessments (Puget Sound Salmon Recovery Plan, 2009; Judge, 2011; NMFS, 2013). Consistent with this test, we did not consider any areas for an economic exclusion that we had identified as having a high conservation value. We gave greater weight to the benefit of designating these high value areas than to the benefit of avoiding economic impacts because of the historic loss and degradation of habitat, the ongoing threats to habitat, and the importance of habitat protection and restoration in recovering the DPSs. The approach taken here is the same approach we took in our 2005 salmon and steelhead critical habitat designations (70 FR 52630, September 2, 2005) and green sturgeon critical habitat designation (74 FR 52300, October 9, 2009). Also consistent with this test, we are not excluding any medium or low quality habitat areas if we concluded that their exclusion would significantly impede conservation, as described further below.
In the first step of balancing economic benefits, we identified for potential exclusion the low value habitat areas with an annual economic impact greater than or equal to $10,000 and the medium value habitat areas with an annual economic impact greater than or equal to $100,000. These dollar thresholds are substantially lower than the thresholds we used in our 2005 designations because here we have used the incremental impact of designation, while in the 2005 rule we used the coextensive impact of designation. (Our 2005 rule explains in greater detail how and why we relied on coextensive impacts (see 70 FR 52630, September 2, 2005)). As with the 2005 designations, the thresholds we selected for identifying habitat areas eligible for exclusion do not represent an objective
Page 9268
judgment that, for example, a low value area is worth a certain dollar amount and no more. The statute directs us to balance dissimilar values but also emphasizes the discretionary nature of the balancing task. The cost estimates developed by our economic analysis do not have obvious break points that would lead to a logical division between ``high,'' ``medium,'' and ``low'' costs. Given these factors, a judgment that any particular dollar threshold is objectively ``right,'' would be neither necessary nor possible. Rather, what economic impact is high and, therefore, might outweigh the benefit of designating a medium or low value habitat area is a matter of discretion and depends on the policy context.
In the second step of the process, we asked the Teams whether exclusion of any of the low- or medium-value habitat areas would significantly impede conservation of the DPS. The Teams considered this question in the context of: (1) The Indian lands and HCP lands they assumed would be excluded based on ``other relevant impacts'' (exclusions discussed later in this report), (2) all of the areas eligible for economic exclusion, and (3) the information they had developed in providing the conservation ratings. The Critical Habitat Designations section below describes the results of applying the two-
step process to each DPS. The results are discussed in greater detail in a separate report that is available for public review (NMFS, 2015c).
Other Relevant Impacts--Impacts to Tribal Sovereignty and Self-
Governance
Much of the benefit of designating critical habitat on Indian lands is the same as designating critical habitat on other lands. In an ESA section 7 consultation, federal agencies must ensure their actions do not destroy or adversely modify the designated critical habitat, in addition to ensuring their actions do not jeopardize the continued existence of the species. There is a broad array of activities on Indian lands that may trigger section 7 consultations. The other benefit is the notice that designation gives that an area is important to conservation of the species. Both of these benefits may be diminished by the fact that tribes are actively working to address the habitat needs of the species on their lands as well, as in the larger ecosystem, and are fully aware of the conservation value of their lands. (This is documented in correspondence from the tribes, several in response to the agency's ANPR (76 FR 1392, January 10, 2011)).
Indian lands affected by a critical habitat designation only occur within the range of the Puget Sound steelhead DPS, and they comprise only a minor portion (approximately 2 percent) of the total habitat under consideration for designation (NMFS, 2015c). This percentage is likely an overestimate as it includes all habitat area within reservation boundaries. In many cases, a considerable portion of the land within the reservation boundaries is no longer held in trust for the tribe or in fee status by individual tribal members.
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 with respect to Indian lands, tribal trust resources, and the exercise of tribal rights (e.g., Executive Order 13175 and Secretarial Order 3206). Pursuant to these federal policies and 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.
In addition to the distinctive trust relationship, for Pacific salmonids in the Northwest, there is a unique partnership between the Federal Government and Indian tribes regarding salmonid management. Northwest Indian tribes are regarded as ``co-managers'' of the salmonid resource, along with federal and state managers. This co-management relationship evolved as a result of numerous court decisions clarifying the tribes' treaty right to take fish in their usual and accustomed places. The tribes have stated in letters and meetings that designation of Indian lands as critical habitat will undermine long-term working relationships and reduce the capacity of tribes to participate at current levels in the many and varied forums addressing ecosystem management and conservation of fisheries resources. In the decision Center for Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court held that a positive working relationship with Indian tribes is a relevant impact that can be considered when weighing the relative benefits of a critical habitat.
The current co-manager process addressing activities on an ecosystem-wide basis throughout the Northwest is beneficial for the conservation of the salmonids. We also believe that maintenance of our current co-manager relationship consistent with existing policies is an important benefit to continuance of our tribal trust responsibilities and relationship. Based upon our consultation with the Tribes, we believe that designation of Indian lands as critical habitat would adversely impact our working relationship and the benefits resulting from this relationship. The benefits of excluding Indian lands from designation include: (1) The furtherance of established national policies, our federal trust obligations and our deference to the tribes in management of natural resources on their lands; (2) the maintenance of effective long-term working relationships to promote the conservation of salmonids on an ecosystem wide basis across four states; (3) the allowance for continued meaningful collaboration and cooperation in scientific work to learn more about the conservation needs of the species on an ecosystem-wide basis; and (4) continued respect for tribal sovereignty over management of natural resources on Indian lands through established tribal natural resource programs.
Based upon these considerations, we have determined to exercise agency discretion under ESA section 4(b)(2) and exclude Indian lands from the critical habitat designation for Puget Sound steelhead. The Indian lands specifically excluded from critical habitat are those defined in the Secretarial Order, including: (1) Lands held in trust by the United States for the benefit of any Indian tribe; (2) land held in trust by the United States for any Indian Tribe or individual subject to restrictions by the United States against alienation; (3) fee lands, either within or outside the reservation boundaries, owned by the tribal government; and (4) fee lands within the reservation boundaries owned by individual Indians. These particular areas comprise only 2 percent of the total area under consideration for designation as critical habitat for Puget Sound steelhead (NMFS, 2015c).
Other Relevant Impacts--Impacts to Landowners With Contractual Commitments to Conservation
Conservation agreements with non-federal landowners (e.g., HCPs) enhance species conservation by extending species protections beyond those available through section 7 consultations. We have encouraged non-federal landowners to enter into conservation agreements, based on a
Page 9269
view that we can achieve greater species' conservation on non-federal land through such voluntary partnerships than we can through coercive methods (61 FR 63854, December 2, 1996).
Section 10(a)(1)(B) of the ESA authorizes us to issue to non-
federal entities a permit for the incidental take of endangered and threatened species. This permit allows a non-federal landowner to proceed with an activity that is legal in all other respects, but that results in the incidental taking of a listed species (i.e., take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity). The ESA specifies that an application for an incidental take permit must be accompanied by a conservation plan, and specifies the content of such a plan. The purpose of such an HCP is to describe and ensure that the effects of the permitted action on covered species are adequately minimized and mitigated, and that the action does not appreciably reduce the likelihood of the survival and recovery of the species.
In previous critical habitat designations for West Coast salmon and steelhead (70 FR 52630, September 2, 2005), we have exercised discretion to exclude some (but not all) lands covered by an HCP from designation after concluding that benefits of exclusion outweighed the benefits of designation. For lands covered by an HCP, the benefits of designation typically arise from section 7 protections as well as enhanced public awareness. The benefits of exclusion generally include relieving regulatory burdens on existing conservation partners, maintaining good working relationships with them (thus enhancing implementation of existing HCPs), and encouraging the development of new partnerships.
We contacted the HCP landowners whose lands were excluded in our 2005 designations (Washington Department of Natural Resources, Green Diamond Resources Company, and West Fork Timber Company) to discuss the critical habitat designations for lower Columbia River coho and Puget Sound steelhead. We also contacted several additional landowners whose HCPs had been authorized subsequent to our 2005 critical habitat designations (Washington Forest Practices, City of Portland-Bull Run Water Supply, and City of Kent Water Supply) or were existing then but now determined to overlap with new habitat areas being considered for designation (J.L. Storedahl and Sons). All of them except one (City of Portland) requested that their lands be excluded from designation as critical habitat for these DPSs, and were of the opinion that exclusion would be a benefit and enhance the partnership between NMFS and the HCP landowner. We also reviewed the activities covered by the HCPs, the protections afforded by the HCP agreement, and the federal activities that are likely to occur on the affected lands (NMFS, 2015c). From this information, we determined that, in most cases, the conservation benefits to the species from the HCPs outweigh the conservation benefits of designation and, therefore, are excluding HCP lands where the landowner or regulator demonstrated that exclusion would have the benefit of improving our working relationship with them or with those whose lands were covered by the HCP. One exception involves specific lands on the Kitsap Peninsula that are not currently identified as being actively enrolled under Washington Forest Practices HCP and which we have determined warrant critical habitat designation for Puget Sound steelhead (NMFS 2015c).
Exclusion Will Not Result in Extinction of the Species
Section 4(b)(2) limits our discretion to exclude areas from designation if exclusion will result in extinction of the species.
Because we have not recommended excluding any habitat areas based on economic impacts if the exclusion would significantly impede conservation, we have determined for each DPS that the exclusion of the areas we recommend based on economic impacts will not result in the extinction of either DPS. All areas excluded are of low conservation value. Moreover, they comprise a small fraction--less than 5 percent--
of all habitat areas considered for designation as critical habitat for either DPS.
We also conclude that excluding Indian lands--and thereby furthering the federal government's policy of promoting respect for tribal sovereignty and self-governance--will not result in extinction of either species. Habitat on Indian lands represents a small proportion of total area occupied by the Puget Sound steelhead DPS and the Tribes are actively engaged in fisheries, habitat management, and species recovery programs that benefit steelhead and other salmonids.
In addition, we conclude that excluding lands covered by several HCPs will not result in extinction of either species. These particular HCPs result in management actions that promote conservation of the listed species in a manner that is not available through the section 7 requirements regarding critical habitat. Excluding these HCP areas from designation is expected to enhance our relationship with the landowner and may provide an incentive to other landowners to seek conservation agreements with us. These outcomes will, in turn, generally benefit our recovery efforts to foster voluntary efforts on vast areas of nonfederal lands which make up a large proportion of each species' range and will play a critical role in avoiding species extinction.
In total, for lower Columbia River coho we are designating 2,300 stream miles (3,701 km) and excluding 1,045 stream miles (1,682 km), and for Puget Sound steelhead we are designating 2,031 stream miles (3,269 km) and excluding 1,569 stream miles (2,525 km). For the following reasons, we conclude that these exclusions, in combination, will not result in the extinction of either DPS:
(1) Except for exclusions due to economic impacts, there are no watersheds that are excluded in their entirety. The most area excluded for any single watershed is the Lower West Hood Canal watershed, with 78 percent excluded due to the presence of HCPs. This area was rated as having a low conservation value.
(2) Although the extent of the exclusions overall is significant (nearly 50 percent of the critical habitat for Puget Sound steelhead and nearly 30 percent of the critical habitat for lower Columbia coho), and many of the areas excluded are of medium or high conservation value to the species, most of the exclusions are based on the presence of HCPs, which have a conservation benefit for the species. Also, the likely leverage to obtain significant conservation benefits from an ESA section 7 consultation is expected to be low for most areas. Because the presence of high quality forested habitat is key to salmon and steelhead recovery, the protections of the HCP, which all involve forested/riparian lands, will have significant benefits over the long term as riparian forest habitat is developed. In addition, we believe that the HCP exclusions, in particular, may provide an incentive to other landowners to seek conservation agreements with us.
(3) The few cases where an entire watershed was excluded (due to economic impacts), the Teams deemed all involved habitat areas to be of low conservation value.
(4) The Indian land exclusions involve stream reaches that are already managed by the tribes for salmonid conservation.
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Critical Habitat Designations
In previous salmonid critical habitat designations we identified the end-point of designated stream segments using latitude and longitude coordinates and provided maps depicting the designated areas (70 FR 52630, September 2, 2005). In May of 2012, we and the USFWS amended our regulations regarding critical habitat designation (77 FR 25611, May 1, 2012). The revised regulation provides that the boundaries of critical habitat as mapped or otherwise described in the Regulation Promulgation section of a rulemaking published in the Federal Register will be the official delineation of the designation (50 CFR 424.12). In this designation, we include both the latitude-
longitude coordinates and maps to make it easier to compare the areas designated with overlapping areas designated for other salmon and steelhead DPSs in 2005 (70 FR 52630, September 2, 2005).
Lower Columbia River Coho Salmon
We are designating approximately 2,300 stream miles (3,701 km) within the geographical area presently occupied by the lower Columbia River coho DPS (see Table 3). Other ESA-listed species in this area with designated critical habitat include lower Columbia River Chinook and steelhead, Columbia River chum (70 FR 52630, September 2, 2005), bull trout (75 FR 63898, October 18, 2010), green sturgeon (74 FR 52300, October 9, 2009), and the Southern DPS of eulachon (76 FR 65324, October 20, 2011). Also, the mainstem lower Columbia River is designated critical habitat for numerous other salmon and steelhead DPSs whose spawning range is upstream of the area presently occupied by lower Columbia River coho (70 FR 52630, September 2, 2005).
Table 3--Approximate Quantity of Habitat and Ownership Within Watersheds Containing Habitat Areas Designated as
Critical Habitat for Lower Columbia River Coho Salmon
----------------------------------------------------------------------------------------------------------------
Land ownership type (percent)
Streams and lakes mi (km) -------------------------------------------------------------------
Federal Tribal State Private
----------------------------------------------------------------------------------------------------------------
2,300 (3,701)............................... 14.6 0 2.0 83.4
----------------------------------------------------------------------------------------------------------------
The areas designated are all occupied and contain physical and biological features essential to the conservation of the species that may require special management considerations or protection. No unoccupied areas were identified that are considered essential for the conservation of the species. There are 55 watersheds within the range of this DPS. Three watersheds received a low conservation value rating, 18 received a medium rating, and 34 received a high rating (NMFS, 2015a). The lower Columbia River rearing/migration corridor downstream of the spawning range is considered to have a high conservation value. As a result of the balancing process for economic impacts described above, we are excluding from the designation all or portions of 28 watersheds listed in Table 4. Of the habitat areas eligible for designation, approximately 27 stream miles (43 km) or 0.8 percent are being excluded because the economic benefits of exclusion outweigh the benefits of designation. Also, we are excluding approximately 1,018 stream miles (1,638 km) covered by 4 HCPs (J.L. Storedahl and Sons HCP, Washington Department of Natural Resources--West of Cascades HCP, Washington Forest Practices HCP, and West Fork Timber HCP) because the benefits of exclusion outweigh the benefits of designation. None of the HCP exclusions overlap with areas also excluded due to economic impacts. Total estimated economic impact, with no exclusions, is $357,815. The economic-related exclusions identified in Table 4 would reduce the total estimated economic impact approximately 4 percent to $344,315 (NMFS, 2015b).
Table 4--Habitat Areas Within The Geographical Range of Lower Columbia River Coho Salmon and Excluded From
Critical Habitat
WDNR = Washington Department of Natural Resources; WFP = Washington Forest Practices; WFT = West Fork Timber
----------------------------------------------------------------------------------------------------------------
Watershed code Watershed name Area(s) excluded
----------------------------------------------------------------------------------------------------------------
1707010509....................... Wind River.......... WFP HCP lands.
1707010511....................... Wind River.......... WDNR and WFP HCP lands.
1707010512....................... Middle Columbia/ WFP HCP lands.
Grays Creek.
1707010513....................... Middle Columbia/ WFP HCP lands.
Eagle Creek.
1708000106....................... Washougal River..... WDNR and WFP HCP lands.
1708000107....................... Columbia River Gorge WDNR and WFP HCP lands.
Tributaries.
1708000109....................... Salmon Creek........ WDNR and WFP HCP lands.
1708000201....................... Upper Lewis River... WFP HCP lands.
1708000202....................... Muddy River......... WFP HCP lands.
1708000203....................... Swift Reservoir..... WDNR and WFP HCP lands.
1708000204....................... Yale Reservoir...... WDNR and WFP HCP lands.
1708000205....................... East Fork Lewis WDNR, WFP, and Storedahl HCP lands.
River.
1708000206....................... Lower Lewis River... WDNR and WFP HCP lands.
1708000301....................... Kalama River........ WDNR and WFP HCP lands.
1708000304....................... Germany/Abernathy... WDNR and WFP HCP lands.
1708000305....................... Skamokawa/Elochoman. WDNR and WFP HCP lands.
1708000402....................... Upper Cowlitz River. WDNR and WFP HCP lands.
1708000403....................... Cowlitz Valley WDNR, WFP, and WFT HCP lands.
Frontal.
1708000405....................... Lower Cispus River.. WFP HCP lands.
1708000501....................... Tilton River........ WDNR, WFP, and WFT HCP lands.
1708000502....................... Riffe Reservoir..... WDNR and WFP HCP lands.
1708000503....................... Jackson Prairie..... WDNR and WFP HCP lands.
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1708000504....................... North Fork Toutle WDNR and WFP HCP lands.
River.
1708000506....................... South Fork Toutle WFP HCP lands.
River.
1708000507....................... East Willapa........ WDNR and WFP HCP lands.
1708000508....................... Coweeman............ WDNR and WFP HCP lands.
1708000603....................... Grays Bay........... WDNR and WFP HCP lands.
1709000704....................... Abernethy Creek..... Entire watershed due to economic impacts.
----------------------------------------------------------------------------------------------------------------
Puget Sound Steelhead
We are designating approximately 2,031 stream miles (3,269 km) within the geographical area presently occupied by the Puget Sound steelhead DPS (see Table 5). Other ESA-listed salmonids in this area with designated critical habitat include Puget Sound Chinook, Hood Canal summer-run chum (70 FR 52630, September 2, 2005), and bull trout (75 FR 63898, October 18, 2010).
Table 5--Approximate Quantity of Habitat and Ownership Within Watersheds Containing Habitat Areas Designated as
Critical Habitat for Puget Sound Steelhead
----------------------------------------------------------------------------------------------------------------
Land ownership type (percent)
Streams mi (km) -------------------------------------------------------------------
Federal Tribal State Private
----------------------------------------------------------------------------------------------------------------
2,031 (3,269)............................... 15.5 0 3.8 80.7
----------------------------------------------------------------------------------------------------------------
The areas designated are all occupied and contain physical and biological features essential to the conservation of the species that may require special management considerations or protection. One unoccupied area in the upper Elwha River watershed was identified as essential for the conservation of the species and is being designated as critical habitat. There are 66 watersheds within the range of this DPS. Nine watersheds received a low conservation value rating, 16 received a medium rating, and 41 received a high rating to the DPS (NMFS, 2015a).
Approximately 28 stream miles (45 km) are not designated because they are within lands controlled by the military that contain qualifying INRMPs. Approximately 70 miles (113 km) of stream are within the boundaries of Indian reservations, but only those reaches defined as Indian lands (see Government-to-Government Relationship With Tribes) are excluded. Also, we are excluding approximately 1,361 miles (2,190 km) of stream covered by four HCPs (City of Kent, Green Diamond, Washington Department of Natural Resources--West of Cascades HCP, and Washington Forest Practices HCP) because the benefits of exclusion outweigh the benefits of designation. As a result of the balancing process for economic impacts described above, the Secretary is excluding from the designation all or portions of the 60 watersheds listed in Table 6. Of the habitat areas eligible for designation, approximately 138 stream miles (222 km) or 3.8 percent are being excluded because the economic benefits of exclusion outweigh the benefits of designation. Only a small amount (22 stream miles (35 km)) are excluded due to economic impacts overlap with areas also excluded as HCP lands or Indian lands. Total estimated economic impact, with no exclusions, is $460,924. The economic-related exclusions identified in Table 6 reduces the total estimated economic impact approximately 29 percent to $326,966 (NMFS, 2015c).
Table 6--Habitat Areas Within the Geographical Range of Puget Sound
Steelhead and Excluded From Critical Habitat
WDNR = Washington Department of Natural Resources; WFP = Washington
Forest Practices
------------------------------------------------------------------------
Watershed code Watershed name Area(s) excluded
------------------------------------------------------------------------
1711000201............... Bellingham Bay..... WDNR and WFP HCP lands.
1711000202............... Samish River....... WDNR and WFP HCP lands.
1711000204............... Birch Bay.......... WFP HCP lands.
1711000401............... Upper North Fork WDNR and WFP HCP lands.
Nooksack River.
1711000402............... Middle Fork WDNR and WFP HCP lands.
Nooksack River.
1711000403............... South Fork Nooksack Indian lands and WDNR
River. and WFP HCP lands.
1711000404............... Lower North Fork Indian lands and WDNR
Nooksack River. and WFP HCP lands.
1711000405............... Nooksack River..... Indian lands and WDNR
and WFP HCP lands.
1711000504............... Skagit River/Gorge WFP HCP lands.
Lake.
1711000505............... Skagit River/ WDNR and WFP HCP lands.
Diobsud Creek.
1711000506............... Cascade River...... WDNR and WFP HCP lands.
1711000507............... Skagit River/ WDNR and WFP HCP lands.
Illabot Creek.
1711000508............... Baker River........ WFP HCP lands.
1711000601............... Upper Sauk River... WFP HCP lands.
1711000603............... Lower Suiattle WDNR and WFP HCP lands.
River.
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1711000604............... Lower Sauk River... Indian lands and WDNR
and WFP HCP lands.
1711000701............... Middle Skagit River/ WDNR and WFP HCP lands.
Finney Creek.
1711000702............... Lower Skagit River/ WDNR and WFP HCP lands.
Nookachamps Creek.
1711000801............... North Fork WDNR and WFP HCP lands.
Stillaguamish
River.
1711000802............... South Fork WDNR and WFP HCP lands
Stillaguamish and DOD lands.
River.
1711000803............... Lower Stillaguamish WDNR and WFP HCP lands.
River.
1711000901............... Tye and Beckler WDNR and WFP HCP lands.
Rivers.
1711000902............... Skykomish River WDNR and WFP HCP lands.
Forks.
1711000903............... Skykomish River/ WDNR and WFP HCP lands.
Wallace River.
1711000904............... Sultan River....... WDNR and WFP HCP lands.
1711000905............... Skykomish River/ WDNR and WFP HCP lands.
Woods Creek.
1711001003............... Middle Fork WDNR and WFP HCP lands.
Snoqualmie River.
1711001004............... Lower Snoqualmie WDNR and WFP HCP lands.
River.
1711001101............... Pilchuck River..... WDNR and WFP HCP lands.
1711001102............... Snohomish River.... Indian lands and WDNR
and WFP HCP lands.
1711001201............... Cedar River........ WDNR and City of Kent
HCP lands.
1711001202............... Lake Sammamish..... Entire watershed due to
economic impacts
(including WDNR and WFP
HCP lands).
1711001203............... Lake Washington.... Entire watershed due to
economic impacts.
1711001204............... Sammamish River.... Entire watershed due to
economic impacts
(including WDNR and WFP
HCP lands).
1711001301............... Upper Green River.. WFP HCP lands.
1711001302............... Middle Green River. Indian lands and WDNR
HCP lands.
1711001303............... Lower Green River.. Indian lands.
1711001401............... Upper White River.. WDNR and WFP HCP lands.
1711001402............... Lower White River.. Indian lands and WFP HCP
lands.
1711001403............... Carbon River....... WDNR and WFP HCP lands.
1711001405............... Lower Puyallup Indian lands and WFP HCP
River. lands.
1711001502............... Mashel/Ohop........ WDNR and WFP HCP lands.
1711001503............... Lowland............ Indian lands, DOD lands,
and WFP HCP lands.
1711001601............... Prairie 1.......... WFP HCP lands.
1711001602............... Prairie 2.......... WFP HCP lands.
1711001701............... Skokomish River.... Indian lands and WFP and
Green Diamond HCP
lands.
1711001802............... Lower West Hood WDNR and WFP HCP lands.
Canal Frontal.
1711001804............... Duckabush River.... WDNR and WFP HCP lands.
1711001806............... Big Quilcene River. WDNR and WFP HCP lands.
1711001807............... Upper West Hood WDNR and WFP HCP lands
Canal Frontal. and DOD lands.
1711001808............... West Kitsap........ WDNR and WFP HCP lands
(except those WFP HCP
lands overlapping with
areas occupied by Puget
Sound steelhead and not
classified as being in
an approved or renewed
status by the
Washington Department
of Natural Resources as
of September 2015).
1711001900............... Kennedy/ Indian lands and WDNR
Goldsborough. and WFP, and Green
Diamond HCP lands.
1711001901............... Puget.............. WDNR and WFP HCP lands
(except those WFP HCP
lands overlapping with
areas occupied by Puget
Sound steelhead and not
classified as being in
an approved or renewed
status by the
Washington Department
of Natural Resources as
of September 2015).
1711001902............... Prairie 3.......... WDNR and WFP HCP lands.
1711001906............... Chambers Creek..... DOD Lands.
1711001908............... Port Ludlow/ WDNR and WFP HCP lands.
Chimacum Creek.
1711002001............... Discovery Bay...... WDNR and WFP HCP lands.
1711002002............... Sequim Bay......... Indian lands and WDNR
and WFP HCP lands.
1711002003............... Dungeness River.... WDNR and WFP HCP lands.
1711002004............... Port Angeles Harbor WDNR and WFP HCP lands.
1711002007............... Elwha River........ Indian lands and WDNR
and WFP HCP lands.
------------------------------------------------------------------------
Lateral Extent of Critical Habitat
In past designations, we have described the lateral extent of critical habitat in various ways, ranging from fixed distances to ``functional'' zones defined by important riparian functions (65 FR 7764, February 16, 2000). Designating a set riparian zone width will (in some places) accurately reflect the distance from the stream on which essential features might be found, but in other cases may overstate or understate the distance. Designating a functional buffer avoids that problem, but makes it difficult for federal agencies to know in advance what areas are critical habitat. To address these issues, we are defining the lateral extent of designated critical habitat as the width of the stream channel defined by the ordinary high water line as defined by the U.S. Army Corps of Engineers in 33 CFR 329.11. In areas for which ordinary high-water has not been defined pursuant to 33 CFR 329.11, the width of the stream channel shall be defined by its bankfull elevation. Bankfull elevation is the level at which water begins to leave the channel and move into the floodplain (Rosgen, 1996) and is reached at a discharge which generally has a recurrence interval of 1 to 2 years on the
Page 9273
annual flood series (Leopold et al., 1992). Such an interval is commensurate with nearly all of the juvenile freshwater life phases of most salmon and steelhead DPSs. Therefore, it is reasonable to assert that for an occupied stream reach this lateral extent is regularly ``occupied.'' Moreover, the bankfull elevation can be readily discerned for a variety of stream reaches and stream types using recognizable water lines (e.g., marks on rocks) or vegetation boundaries (Rosgen, 1996). Since 2005, this has proven to be a successful approach for defining the lateral extent of critical habitat for West Coast salmon and steelhead (70 FR 52630, September 2, 2005); therefore, we will continue the practice in this final rule.
As underscored in previous critical habitat designations, the quality of aquatic habitat within stream channels is intrinsically related to the adjacent riparian zones and floodplain, surrounding wetlands and uplands, and non-fish-bearing streams above occupied stream reaches. Human activities that occur outside the stream or designated critical habitat can modify or destroy physical and biological features of the stream. In addition, human activities that occur within and adjacent to reaches upstream (e.g., road failures) or downstream (e.g., dams) of designated stream reaches can also have demonstrable effects on physical and biological features of designated reaches. This designation will help to ensure that federal agencies are aware of these important habitat linkages for lower Columbia River coho and Puget Sound steelhead.
In the few cases where we are designating lakes/reservoirs as critical habitat, the lateral extent may best be defined as the perimeter of the water body as displayed on standard 1:24,000 scale topographic maps or the elevation of ordinary high water, whichever is greater.
Effects of Critical Habitat Designation
Section 7(a)(2) of the ESA requires federal agencies to insure 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 us 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, we evaluate the agency action to determine whether the action may adversely affect listed species or critical habitat and issue our findings in a biological opinion. If we conclude in the biological opinion that the agency action would likely result in the destruction or adverse modification of critical habitat, we would also recommend any reasonable and prudent alternatives to the action. Reasonable and prudent alternatives 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 in which (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 re-initiation of a consultation with us 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 Clean Water Act, Section 404 dredge or fill permit from U.S. Army Corps of Engineers) or some other federal action, including funding (e.g., ESA Section 6, Federal Highway Administration, or Federal Emergency Management Agency funding). 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 carried out, funded, or authorized by a federal agency.
Activities That May Be Affected By Critical Habitat Designation
ESA section 4(b)(8) requires in any proposed or final regulation to designate critical habitat an evaluation and brief description of those activities (whether public or private) that may adversely modify such habitat or that may be affected by such designation. A wide variety of activities may affect designated critical habitat and may be subject to the ESA section 7 consultation process when carried out, funded, or authorized by a federal agency. These include water and land management actions of numerous federal agencies (i.e., Bonneville Power Administration, Bureau of Indian Affairs (BIA), Bureau of Land Management (BLM), Department of Housing and Urban Development, DOD, Farm Service Agency, Federal Emergency Management Agency (FEMA), Federal Energy Regulatory Commission (FERC), Federal Highway Administration, Federal Railroad Administration, Federal Transit Administration, NOAA, National Park Service (NPS), Natural Resource Conservation Service, Natural Resources Conservation Service, Nuclear Regulatory Commission (NRC), U.S. Army Corps of Engineers (USACE), U.S. Bureau of Reclamation (BOR), U.S. Coast Guard, U.S. Department of Energy, U.S. Department of Transportation, U.S. Forest Service (USFS), USFWS, and U.S. Geological Survey) and related or similar federally-
regulated projects and activities on federal lands, including hydropower sites licensed by the FERC; nuclear power sites licensed by the NRC; dams built or operated by the USACE or BOR; timber sales and other vegetation management activities conducted by the USFS, BLM and BIA; irrigation diversions authorized by the USFS and BLM; and road building and maintenance activities authorized by the USFS, BLM, NPS, and BIA. Other actions of concern include: Dredging and filling, mining, diking, and bank stabilization activities authorized or conducted by the USACE; habitat modifications authorized by FEMA; and approval of water quality standards and pesticide labeling and use restrictions administered by the Environmental Protection Agency.
Private entities may also be affected by these critical habitat designations if a federal permit is required, if federal funding is received, or the entity is involved in or receives benefits from a federal project. For example, private entities may have special use permits to convey water or build access roads across federal land; they may require federal permits to construct irrigation withdrawal facilities, or build or repair docks; they may obtain water from federally funded and operated irrigation projects; or they may apply pesticides that are only available with federal agency approval. These activities will need to be evaluated with respect to their potential to destroy or adversely modify critical habitat for lower Columbia River coho and Puget Sound steelhead. Changes to some activities,
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such as the operations of dams and dredging activities, may be necessary to minimize or avoid destruction or adverse modification of critical habitat. Transportation and utilities sectors may need to modify the placement of culverts, bridges, and utility conveyances (e.g., water, sewer, and power lines) to avoid barriers to fish migration. Developments (e.g., marinas, residential, or industrial facilities) occurring in or near streams, estuaries, or marine waters designated as critical habitat that require federal authorization or funding may need to be altered or built in a manner to ensure that critical habitat is not destroyed or adversely modified as a result of the construction or subsequent operation of the facility. Questions regarding whether specific activities will constitute destruction or adverse modification of critical habitat should be directed to NMFS (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).
Information Quality Act and Peer Review
The data and analyses supporting this action have undergone a pre-
dissemination review and have been determined to be in compliance with applicable information quality guidelines implementing the Information Quality Act (IQA) (Section 515 of Pub. L. 106-554). In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review pursuant to the IQA. The Bulletin was published in the Federal Register on January 14, 2005 (70 FR 2664). The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by the Federal Government. The peer review requirements of the OMB Bulletin apply to influential or highly influential scientific information disseminated on or after June 16, 2005. Two documents supporting these critical habitat designations are considered influential scientific information and subject to peer review. These documents are the final biological report (NMFS, 2015a) and final economic analysis (NMFS, 2015b). We distributed these documents for independent peer review and have addressed all comments received in developing the final drafts of the two reports. Both documents are available on our Web site at http://www.westcoast.fisheries.noaa.gov/.
Classification
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996), whenever an agency publishes a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a final regulatory flexibility analysis describing the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). We prepared a final regulatory flexibility analysis (which incorporates information from the initial regulatory flexibility analysis) as part of the final economic analysis (NMFS, 2015b). This document is available upon request (see ADDRESSES section above) and can be found on our Web site at http://www.westcoast.fisheries.noaa.gov/. The results of the final regulatory flexibility analysis are summarized below, organized by determinations prescribed in section 604 of the Regulatory Flexibility Act (5 U.S.C. 601, et seq.).
(1) This rule is needed in order to comply with the ESA's requirement to designate critical habitat to the maximum extent prudent and determinable when species are listed as threatened or endangered. The objectives of this action are to help conserve threatened lower Columbia River coho and Puget Sound steelhead by identifying critical habitat areas, consistent with the best available scientific information, that contain the physical and biological features essential to the conservation of the species and which may require special management considerations or protection. Once designated, this critical habitat can be protected through the ESA section 7 consultation process in which NMFS and federal action agencies review the effects of federal actions on the survival and recovery of these species.
(2) We solicited but did not receive comments on our initial regulatory flexibility analysis from the public nor from the Chief Counsel for Advocacy of the Small Business Administration.
(3) The impacts to small businesses were assessed for the following broad categories of activities: Hydropower, development, in-stream work, water supply, federal lands management, transportation, utilities, mining, and other activities (including water, sewer, and oil/gas pipeline construction). Small entities are defined by the Small Business Administration size standards for each activity type. Of potentially affected entities, 89 percent are classified as likely to be ``small.'' We estimated the annualized costs associated with ESA section 7 consultations incurred per small business under two different scenarios. We developed these scenarios because unavailable or inadequate data leaves some uncertainty surrounding both the numbers of entities that will be subject to the rule and the characteristics of any impacts on particular entities. Under Scenario 1, our analysis estimates the number of small entities located within areas that may be affected by the designation (approximately 5,381 for lower Columbia River coho, and 12,758 for Puget Sound steelhead), and assumes that incremental impacts are distributed evenly across all entities in each affected activity category (i.e., an assumption that accounts for uncertainties in available data). Under this scenario, for lower Columbia River coho, a small entity may bear costs up to $3,430, representing less than 0.12 percent of average revenues (depending on the activity category). For Puget Sound steelhead, a small entity may bear costs up to $1,260, representing less than 0.05 percent of average revenues (depending on the activity category).
Under scenario 2, our analysis assumes costs of each anticipated future consultation are borne by a distinct small business (approximately 55 entities for lower Columbia River coho, 117 for Puget Sound steelhead). Under this scenario, in the range of lower Columbia River coho critical habitat, each small entity may bear costs of between $1,120 and $31,000, representing between
