Part II

 
CONTENT

Federal Register: June 19, 2009 (Volume 74, Number 117)

Rules and Regulations

Page 29299-29341

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr19jn09-14

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Part II

Department of Commerce

National Oceanic and Atmospheric Administration

50 CFR Part 226

Endangered and Threatened Species; Designation of Critical Habitat for

Atlantic Salmon (Salmo salar) Gulf of Maine Distinct Population

Segment; Final Rule

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration 50 CFR Part 226

Docket No. 0808061060-9710-02

RIN 0648-AW77

Endangered and Threatened Species; Designation of Critical

Habitat for Atlantic Salmon (Salmo salar) Gulf of Maine Distinct

Population Segment

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration, Commerce.

ACTION: Final rule.

SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a final rule designating critical habitat for the Atlantic salmon (Salmo salar) Gulf of Maine Distinct Population Segment (GOM DPS). We previously determined that naturally spawned and several hatchery populations of Atlantic salmon which constitute the GOM DPS warrant listing as endangered under the Endangered Species Act of 1973, as amended (ESA). We are required to designate critical habitat for the

GOM DPS as a result of this listing. We hereby designate as critical habitat 45 specific areas occupied by Atlantic salmon at the time of listing that comprise approximately 19,571 km of perennial river, stream, and estuary habitat and 799 square km of lake habitat within the range of the GOM DPS and in which are found those physical and biological features essential to the conservation of the species. The entire occupied range of the GOM DPS in which critical habitat is designated is within the State of Maine. We exclude approximately 1,256 km of river, stream, and estuary habitat and 100 square km of lake habitat from critical habitat pursuant to section 4(b)(2) of the ESA.

DATES: This rule becomes effective July 20, 2009.

ADDRESSES: Comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available for public inspection by appointment, during normal business hours, at the National Marine Fisheries Service, NMFS, Protected Resources

Division, 55 Great Republic Drive, Gloucester, MA 01930-2276. The final rule, maps, and other materials relating to these designations can be found on our Web site at: http://www.nero.noaa.gov/prot_res/ altsalmon/.

FOR FURTHER INFORMATION CONTACT: Dan Kircheis, National Marine

Fisheries Service, Maine Field Station, 17 Godfrey Drive, Orono, ME 04473 at (207) 866-7320, or Marta Nammack at (301) 713-1401 ext. 180.

SUPPLEMENTARY INFORMATION:

Organization of the Final Rule:

This final rule describes the critical habitat designation for the

GOM DPS of Atlantic salmon under the ESA. The pages that follow summarize the comments and information received in response to the proposed designation published on September 5, 2008 (73 FR 51747), describe any changes from the proposed designation, and detail the final designation for the GOM DPS of Atlantic salmon. To assist the reader, the content of the document is organized as follows:

  1. Background and Previous Federal Action

  2. Summary of Comments and Responses

    Biological Valuation

    Economic Analysis 4(b)(2) Exclusion Analysis

    Miscellaneous Comments

    Comments Not Relevant to This Rule

    Remarks

  3. Summary of Revisions

  4. Methods and Criteria Used to Identify Critical Habitat

    Atlantic Salmon Life History

    Identify the Geographic Area Occupied by the Species and

    Specific Areas Within the Geographic Area

    Physical and Biological Features in Freshwater and Estuary

    Specific Areas Essential to the Conservation of the Species

    Special Management Considerations or Protections

    Specific Areas Outside the Geographic Area Occupied by the

    Species * * * Essential to the Conservation of the Species

    Criteria

  5. Application of ESA Section 4(a)(3)(B)(i) (Military Lands)

  6. Application of ESA Section 4(b)(2)

    Assigning Biological Value

    Consideration of Economic Impacts, Impacts to National Security, and Other Relevant Impacts

    Economic Impacts

    National Security and Other Relevant Impacts in Relation to

    Military Interests

    Other Relevant Impacts: Tribal Lands

    Determine Whether Exclusions Will Result in the Extinction of the Species

  7. Effects of Critical Habitat

    ESA Section 7 Consultation

    Activities That May Be Affected (Section 4(b)(8))

  8. Classification

    Regulatory Planning and Review

    Regulatory Flexibility Act (U.S.C. 601 et seq.)

    Information Quality Act (IQA) (Section 515 of Pub. L. 106.554)

    Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    National Environmental Policy Act

    Federalism

    Takings

  9. References Cited

  10. Background and Previous Federal Action

    We are responsible for determining whether a species, subspecies, or distinct population segment (DPS) of Atlantic salmon (Salmo salar) is threatened or endangered, and for designating critical habitat for the species, subspecies, or DPS under the ESA (16 U.S.C. 1531 et seq.).

    To qualify as a DPS, an Atlantic salmon population must be substantially reproductively isolated from other conspecific populations and represent an important component in the evolutionary legacy of the biological species.

    We are also responsible for designating critical habitat for species listed under our jurisdiction. Section 3 of the ESA defines critical habitat as (1) specific areas within the geographical area occupied by the species at the time of listing, on which are found those physical or biological features that are essential to the conservation of the listed species and that may require special management considerations or protection, and (2) specific areas outside the geographical area occupied by the species at the time of listing that are essential for the conservation of a listed species. Our regulations direct us to focus on the ``primary constituent elements,'' or PCEs, in identifying these physical or biological features. Section 7(a)(2) of the ESA requires that each Federal agency, in consultation with and with the assistance of NMFS, ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of an endangered or threatened

    Atlantic salmon or result in the destruction or adverse modification of critical habitat. Section 4 of the ESA requires us to consider the economic impacts, impacts on national security, and other relevant impacts of specifying any particular area as critical habitat.

    NMFS and the U.S. Fish and Wildlife Service (USFWS; collectively

    ``the Services'') issued a final rule listing the GOM DPS of Atlantic salmon as endangered on November 17, 2000 (65 FR 69459). The GOM DPS was defined in the 2000 rule as all naturally reproducing wild populations and those river-specific hatchery populations of Atlantic salmon, having historical river-specific characteristics found north of and including tributaries of the lower Kennebec River to, but not including, the mouth of the St. Croix River at the U.S.-Canada border and the Penobscot

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    River above the site of the former Bangor Dam.

    In September 2006, a new Status Review for Atlantic salmon in the

    United States (Fay et al., 2006) was made available to the public

    (http://www.nmfs.noaa.gov/pr/pdfs/statusreviews/atlanticsalmon.pdf).

    The 2006 Status Review identified the GOM DPS of Atlantic salmon as being comprised of all anadromous Atlantic salmon whose freshwater range occurs in the watersheds of the Androscoggin River northward along the Maine coast to the Dennys River, including all associated conservation hatchery populations used to supplement natural populations; currently, such populations are maintained at Green Lake

    National Fish Hatchery (GLNFH) and Craig Brook National Fish Hatchery

    (CBNFH). In September 2008 a proposed rule was published proposing to list the GOM DPS of Atlantic salmon as defined in the 2006 Status

    Review as endangered (73 FR 51415; September 3, 2008). In response to public comments received on the proposed listing rule, and in review of the critical habitat proposed rule, also published in September 2008

    (73 FR 51747; September 5, 2008), the Gulf of Maine DPS was re-defined to exclude those areas that were outside the historic range of the species. The final rule published by NMFS and the USFWS in today's

    Federal Register (see Endangered and Threatened Species; Determination of Endangered Status for the Gulf of Maine Distinct Population Segment of Atlantic Salmon) defines the GOM DPS as all anadromous Atlantic salmon whose freshwater range occurs in the watersheds from the

    Androscoggin River northward along the Maine coast to the Dennys River, and wherever these fish occur in the estuarine and marine environment.

    The following impassable falls delimit the upstream extent of the freshwater range: Rumford Falls in the town of Rumford on the

    Androscoggin River; Snow Falls in the town of West Paris on the Little

    Androscoggin River; Grand Falls in Township 3 Range 4 BKP WKR, on the

    Dead River in the Kennebec Basin; the un-named falls (impounded by

    Indian Pond Dam) immediately above the Kennebec River Gorge in the town of Indian Stream Township on the Kennebec River; Big Niagara Falls on

    Nesowadnehunk Stream in Township 3 Range 10 WELS in the Penobscot

    Basin; Grand Pitch on Webster Brook in Trout Brook Township in the

    Penobscot Basin; and Grand Falls on the Passadumkeag River in Grand

    Falls Township in the Penobscot Basin. The marine range of the GOM DPS extends from the Gulf of Maine, throughout the Northwest Atlantic

    Ocean, to the coast of Greenland. Included are all associated conservation hatchery populations used to supplement these natural populations; currently, such conservation hatchery populations are maintained at GLNFH and CBNFH. Excluded are landlocked salmon and those salmon raised in commercial hatcheries for aquaculture. The GOM DPS as defined in the final rule has been listed as endangered under the ESA.

    The most substantial difference between the 2000 GOM DPS and the

    GOM DPS described in the final rule published by NMFS and the USFWS in today's Federal Register (see Endangered and Threatened Species;

    Determination of Endangered Status for the Gulf of Maine Distinct

    Population Segment of Atlantic Salmon) is the inclusion of the

    Androscoggin, Kennebec, and Penobscot River basins.

    The timeline for completing the critical habitat designation described in this final rule was established pursuant to litigation between NMFS and the Center for Biological Diversity and the

    Conservation Law Foundation. Upon reaching a settlement agreement, NMFS has agreed to publish a final rule designating critical habitat for

    Atlantic salmon no later than June 1, 2009.

  11. Summary of Comments and Responses

    As described in agency regulations at 50 CFR 424.16(c)(1), we requested that all interested parties submit written comments on the proposed critical habitat designation. We also contacted the appropriate Federal and State agencies, scientific organizations, and other interested parties and invited them to comment on the proposed rule. To facilitate public participation, we made the proposed rule available via the Internet as soon as the rule was published and accepted comments by standard mail, fax, e-mail or through http:// www.regulations.gov. In addition we held two public hearings: One in

    Augusta, ME, on November 5, 2008; and one in Brewer, ME, on November 6, 2008. During this time 37 parties or individuals submitted written comments on the critical habitat proposed rule. These comments were grouped into three categories as they related to the 3 primary sections of the Critical habitat designation: Biological Valuation; Economic

    Analysis; and 4(b)(2) exclusion analysis. A fourth category is included to address general comments and an overview of how comments were handled that were not directly related to the critical habitat designation. In section III we review comments and additional information that resulted in changes to the critical habitat rule and supporting documents.

    Biological Valuation

    Comment 1: One commenter stated that assuming the standard habitat needs of salmon (240 eggs per unit, 7,200 eggs per female, 1:1 sex ratio) and using the calculations described in the document, the historic run size of 150,000 fish would have required 2,250,000 units of habitat (75,000 females (assuming 1:1 sex ratio) x 7,200 eggs per female/240 eggs per unit of habitat); seven times the amount of habitat in the entire Penobscot Salmon Habitat Recovery Unit (SHRU).

    Response: Conservation Spawning Escapement or CSE is often used as a tool to describe the minimum number of spawners needed to provide sufficient quantities of eggs needed to fully seed the available habitat. The estimation of CSE is not meant to predict run sizes. The minimum number of eggs to fully seed the habitat is 240 eggs per unit of habitat where one unit of habitat is equivalent to 100 meters squared. The equation described by the commenter: (of females x 7,200 eggs per female/240 eggs per unit of habitat = units of habitat) incorporates the same values used to estimate the minimum spawner requirement or CSE for a river in both national and international forums. CSE estimates do not take into account that, in healthy robust populations, animals are often produced in numbers greater than what is needed to fully seed the habitat, and, therefore, only those animals that are most fit for the given environment successfully contribute to the next generation. This is why historic estimates of over 100,000 adults in the Penobscot River far exceed the minimum spawning requirement or CSE for the Penobscot of 6,838 adult spawners. Despite the estimations that the Penobscot River had run sizes in the 10's of thousands or even 100's of thousands, only a fraction of the entire run would be expected to actually contribute to the next generation due to natural selection factors (i.e., not all adults will successfully spawn, and, of those that do, not all of the juveniles will successfully reach maturity). We refer to this historic estimate provided by Atkins and Foster (1868) as a reference point to what the run potential for the Penobscot SHRU could be; not the minimum number of spawners that would be needed to fully seed the habitat.

    Furthermore, the historic estimates of 150,000 adult returns (males and females) was not a factor in determining the run size of 2,000 adult

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    spawners (1,000 males and 1,000 females assuming a 1:1 sex ratio) used as a recovery goal to project critical habitat for each SHRU.

    Comment 2: One commenter stated that the 240 eggs per unit was derived as a way to estimate the number of spawners needed to populate salmon habitat with juveniles to produce 2, 3, and 4 year old smolts, and was never intended to be used to calculate the amount of habitat required by a given number of spawners. The commenter stated that it was their belief that using the 240 eggs per unit of habitat to predict habitat is an incorrect application of the work of Elson (1975) and

    Symons and Heland (1978), and is very likely to greatly overestimate the amount of habitat required to achieve recovery.

    Response: As described in the response to comment 1, the 240 eggs per unit is a target egg deposition needed to fully seed a river

    (Elson, 1975) and is the same number that is used to predict CSE of a river. The CSE is most often used to establish a conservation goal for a river based on the amount of habitat that is available to the species and widely used to describe the status of individual Atlantic salmon populations. Absent better information we believe that the equation used to estimate CSE can be applied inversely (of females x 7,200 eggs per female/240 eggs per unit = units of habitat) to estimate habitat needed to support the offspring from a pre-determined number of females. We do not believe that the estimates we provide are an over estimation, as the 240 eggs per unit were intended to take into account natural selection factors that would limit survival of the species. In some site specific cases, there are likely to be river reaches that could support far more than 240 eggs per unit and conversely, there are likely some reaches that can support fewer than 240 eggs per unit.

    Comment 3: Some commenters supported the designation of critical areas for the protection of Atlantic salmon in the Gulf of Maine, but felt that this designation did not extend far enough. The commenters stated that a critical habitat designation must include all habitat within the historical range of the GOM DPS of Atlantic salmon. Some commenters believed that the proposed critical habitat designation arbitrarily excluded most of the historic, suitable Atlantic salmon habitat and should include more specific areas in the Kennebec River, the Androscoggin River main stem and its tributaries all the way to

    Rumford, the entire West Branch of the Penobscot and its tributaries, and the Passadumkeag River. Some commenters also stated that critical habitat designation should include the Presumpscot River and the Sebago

    Lake watershed. Alternatively, some commenters were opposed to the proposed critical habitat designation on the Androscoggin River.

    Response: Sections 3(5)(A)(i) and (ii) of the ESA define critical habitat for a threatened or endangered species as the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of Section 4 of the ESA, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and specific areas outside of the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of the ESA, upon a determination by the Secretary that such areas are essential for the conservation of the species. We determined in the Biological Valuation process that no additional areas outside of the geographical area occupied by the species at the time it is listed were essential for the conservation of the species because sufficient quantities of habitat are available to achieve conservation in the currently occupied range

    (NMFS, 2009a). Therefore, we concluded that unoccupied areas, including those specific areas within the Kennebec River above the Sandy River, the Androscoggin River above Lewiston Falls, and the entire West Branch of the Penobscot, did not qualify for critical habitat designation.

    The Presumpcot River and Sebago Lake watershed are not included in the geographic range of the GOM DPS, and therefore are not eligible for designation as critical under section 3(5)(A) of the ESA.

    Comment 4: Several commenters felt that our review of habitat requirements focused on activities or conditions that may affect salmon habitat but did not focus on activities that have impacted habitat.

    Additionally, commenters stated concerns with our identification of activities that may affect primary constituent elements and therefore may require special management consideration. Commenters specifically stated concerns with the following three statements: (1) The most direct effect of logging on stream temperature is the reduction in shade provided by riparian vegetation; (2) agricultural practices influence all specific areas proposed for designation and negatively impact PCE sites for spawning and rearing and migration; and (3) timber harvesting and preparation of soil for forestry practices can decrease large woody debris as well as increase soil erosion.

    Response: We do not state explicitly that any activities are negatively impacting Atlantic salmon habitat, but rather we list activities that may negatively impact Atlantic salmon habitat. Section 4(b)(8) of the ESA states that in general we * * * ``are to include a brief description and evaluation of those activities (whether public or private) which, in the opinion of the Secretary, if undertaken, may adversely modify such habitat, or may be affected by such designation.'' The word ``may'' gives us the discretion to identify activities that are currently affecting critical habitat as well as activities that have the potential to affect critical habitat. In our description of activities and the types of effects that the activities have on critical habitat, we state that the activities may affect critical habitat recognizing that, at times, the activity can occur and have no affect on critical habitat, while in other circumstances the activity may have an affect on critical habitat. Activities that may affect critical habitat and are carried out, funded, or authorized by a

    Federal agency, will require an ESA section 7 consultation. In this rule, we identify activities and how they may affect critical habitat; a more detailed description of activities that may affect salmon habitat is available in our supporting document: Habitat requirements and management considerations for Atlantic salmon (Salmo salar) in the

    Gulf of Maine Distinct Population Segment (GOM DPS).

    Comment 5: One commenter stated that based on the 500 fish criterion, the Penobscot SHRU is certainly not in any danger of extinction.

    Response: In the recovery criteria we state that in order for the

    DPS to be considered recovered, all three SHRUs must meet or exceed the criteria that we have established: (1) The adult spawner population of each SHRU must be 500 or greater in an effort to maintain sufficient genetic variability within the population for long-term persistence.

    This is to be determined or estimated through adults observed at trapping facilities or redd counts; (2) The GOM DPS must demonstrate self-sustaining persistence where each SHRU has less than a 50 percent probability of falling below 500 adult spawners in the next 15 years based on population viability analysis (PVA) projections (NMFS, 2009, appendix A). The 50 percent assurance threshold satisfies the criterion that the population is ``not likely'' to become an endangered

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    species, while 15 years represents the ``foreseeable future'' for which we have determined that we can make reasonable projections based on past demographic data available to us; (3) The entire GOM DPS must demonstrate consistent positive population growth for at least 2 generations (10 years) before the decision to delist is made. Ten years of pre-decision data that reflect positive population trends provide some assurance that recent population increases are not happenstance but more likely a reflection of sustainable positive population growth;

    (4) A recovered GOM DPS must represent the natural population (i.e., adult returns must originate from natural reproduction that has occurred in the wild); hatchery product cannot be counted towards recovery because a population reliant upon hatchery product for sustainability is indicative of a population that continues to be at risk; (5) In order to delist the GOM DPS, the threats identified at the time of listing must be addressed through regulatory or any other means. These threats are identified in the five factors specified in section 4(a)(1) of the ESA as described in the 2006 Status Review (Fay et al., 2006). Though the Penobscot River has consistently retained a census population of over 500 adult spawners, for the period between 1997 to 2006 approximately 9.6 percent of the Penobscot run resulted from wild spawning or fry stocked fish with the greatest wild origin adult return recorded in 1997 estimated at 160 adults (USASAC, 2007).

    Due to the low numbers of wild origin adult returns, the entire GOM

    DPS, including the Penobscot, fails to meet the objectives of recovery on the one principle point that none of the SHRUs have a wild spawning population greater than 500 adult spawners.

    Comment 6: One commenter agreed with the analysis of choosing 500 adult spawners (both male and female) for an effective population size, and 2,000 spawners as a number that can weather downturns in survival as reasonable estimates for the large rivers such as those in the

    Merrymeeting Bay and Penobscot SHRUs (73 FR 51747; September 5, 2008, 51760-51761), but did not agree that these are appropriate numbers for the Downeast Coastal SHRU. The commenter urged us to consider reducing the numbers required for an effective population size for the Downeast

    Coastal SHRU to be more representative of these smaller rivers, smaller habitat, and historically far smaller salmon numbers than the larger rivers that make up the two other SHRUs.

    Response: We believe that each of the three SHRUs, including the

    Downeast Coastal SHRU, is easily capable of supporting an effective population of 500 adult spawners. Furthermore, we believe using the criterion that each SHRU must have enough habitat to support the offspring of 2,000 adult spawners (See ``Specific areas outside the geographical area occupied by the species . . . essential to the conservation of the species'' section of this document) as a means of buffering against downturns in survival is also very attainable and not unreasonable for any of the three SHRUs. In the biological valuation we estimate that there are approximately 61,400 units of historical spawning and rearing habitat in the Downeast Coastal SHRU. Using the methods described by Elson (1975) to establish a minimum spawning requirement, otherwise known as the CSE, for 61,400 units of habitat, an estimated 4,094 adult spawners is needed to fully seed the Downeast

    Coastal SHRU (61,400 units / 7,200 eggs per female x 240 eggs per unit needed to fully seed the habitat = 2,047 females or 4,094 adult spawners assuming 1:1 sex ratio). We chose 500 adult spawners as the minimum effective population size not in respect to the size of the area, but rather in respect to the number of fish that we believe is the minimum number needed to retain sufficient genetic diversity within a SHRU. This is the case for all three SHRUs.

    Comment 7: One commenter stated that recovery criteria should not be set that cannot be met. Based on the Services' calculations, the

    Downeast SHRU does not have enough functional habitat to meet recovery criteria.

    Response: There are approximately 61,400 units of habitat in the

    Downeast Coastal SHRU which are considered to be equivalent to approximately 29,111 functional units. The reduced functional value of habitat in the Downeast SHRU is based on a reduction of habitat quality or the presence of dams or a combination of both as described in the biological valuation (NMFS, 2009). This means that the occupied areas in the Downeast Coastal SHRU are functioning at approximately 47 percent of their potential. We do recognize that not all Atlantic salmon habitat may have functioned historically at its fullest potential due to natural factors. In Downeast Maine, habitat degradation from roads and road crossings, dams, historic log drives, and introduction of non-indigenous species are all factors that have been identified as factors that reduce the functional value of habitat

    (NRC, 2004; Fay et al., 2006). Improvements in habitat quality can increase the functional value of habitat for the Downeast SHRU (e.g.,

    Project SHARE's ongoing efforts that enhance fish passage and habitat quality by improving or removing bridges, culverts, and roads adjacent to or crossing streams). Given improvements to degraded habitat in the occupied areas, functional habitat quantities in the Downeast SHRU would be sufficient to meet recovery goals.

    Comment 8: One commenter expressed difficulty in understanding how we determined fractions of dams for HUC 10s.

    Response: Dams were discounted based on their location within a HUC 10 watershed and the degree to which it was estimated they would impede downstream migration of smolts. Dams with turbines were estimated to reduce the functional capacity habitat by 15 percent based on the findings of several studies (GNP, 1995; GNP, 1997; Holbrook, 2007;

    Shepard, 1991; Spicer et al., 1995). Mainstem dams without turbines are not expected to affect smolts in the same way as dams with turbines, but can result in direct or indirect mortality from delays in migration and by increased predation from predators that congregate around dams.

    Therefore, dams without turbines were estimated to reduce the functional capacity of habitat units by 7.5 percent (one half of 15 percent). Dams located at roughly the midpoint of habitat within a HUC 10 watershed were estimated to affect passage of roughly half the fish in the HUC 10 watershed (e.g., located half way up the HUC 10 watershed) and therefore were discounted accordingly (e.g., 7.5 percent for dams with turbines).

    Comment 9: A commenter stated that we were unclear as to why dams were treated differently than other factors that influence survival of salmon. The commenter stated that dam mortality is applied using a quantitative approach while all other factors are applied using an index number. It would therefore take approximately seven dams to have an equal effect as a quality rating of 1 (e.g., approximately 33 percent). This seems to greatly underestimate the relative effects of dams compared to other factors (or vice-versa).

    Response: Habitat quality scores address localized impacts and, therefore, only influence the functional habitat units within a HUC 10 for which the habitat quality score is assigned. Dams were figured into our calculations differently than habitat quality scores because they affect not only the HUC 10 in which they are present, but also every

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    HUC 10 upstream of their location. Depending on the geographic location of the dam in regards to habitat, a dam may influence a much larger quantity of habitat than an individual habitat quality score.

    Comment 10: A commenter stated that some habitat scores within the

    Penobscot SHRU were underestimated because the Penobscot River

    Restoration Project was not included in the critical habitat designation.

    Response: We did not formulate habitat estimates that included the

    Penobscot River Restoration Project because it has not been completed at this point and there is not certainty that the project will be completed because neither the permitting nor funding has been fully secured.

    Comment 11: One commenter stated that the HUC 10 scale is too coarse. The HUC 12 scale would be better suited to identifying critical habitat.

    Response: We considered analyzing at the HUC 12 scale in an attempt to gain higher resolution for critical habitat designation, but we determined that we had insufficient information to evaluate the PCEs at the HUC 12 scale for the entire GOM DPS. In order to provide fair representation across the GOM DPS, we determined that it would not be appropriate to evaluate some areas at the HUC 10 scale and some areas at the HUC 12 scale.

    Comment 12: One commenter stated that the habitat amounts in some rivers were suspect. For example, the Dennys has 1,717 units compared to the Pleasant that is shown to have 3,025 units of habitat. Field habitat surveys indicate that the Dennys has approximately twice the number of habitat units as the Pleasant River. Some differences are valid due to un-surveyed small streams; however, the gross differences are surprising and need to be assessed.

    Response: In our evaluation, we relied on a GIS based habitat prediction model to estimate habitat for the entire GOM DPS described in Appendix C of the Biological Valuation. Even though in some areas we have fairly comprehensive field surveys of habitat, most of the DPS range does not have this level of information. In constructing the model, the outputs were cross referenced to existing habitat surveys and were determined to be roughly 75 percent accurate at the reach level. As the commenter stated, the field surveys often only take into account mainstem habitat and major tributaries and do not take into account minor tributaries, while the GIS based model does. In the

    Pleasant River, Western Little River, Taylor Brook and a significant portion of Eastern Little River contain fairly significant amounts of habitat, but are not included in the field survey, and, therefore, may account for some of the discrepancy between the two survey methods.

    Over time as more information becomes available, we will be able to increase the accuracy of this model, but for now this is the best available information.

    Comment 13: One commenter stated that the Nezinscot River HUC 10 watershed was assigned a final biological value of ``3'' even though the Nezinscot is a destination and not a migratory corridor, and another commenter stated that we designated the Little Androscoggin

    River which is not occupied but arbitrarily did not include any other unoccupied, but historically occupied, watersheds in either the

    Androscoggin Basin or the Kennebec Basin.

    Response: The Nezinscot River HUC 10 watershed includes the mainstem Androscoggin River between the Little Androscoggin River HUC 10 and the Androscoggin River at Riley Dam and therefore is an important migratory corridor.

    The Little Androscoggin River HUC 10 watershed does not actually include the Little Androscoggin River. This particular HUC 10 watershed includes only the Androscoggin River and its tributaries from the confluence with the Kennebec up to, but not including, the Little

    Androscoggin River. These comments reflect confusion expressed by many commenters about the names of HUC 10s as they relate to the location of the HUC 10. In section III of this rule, we describe how we have attempted to alleviate this confusion.

    Comment 14: A commenter stated that historically inaccessible habitat should be removed from critical habitat.

    Response: No specific areas in the range of the GOM DPS where the entire specific area was historically inaccessible were proposed as critical habitat. However, in some cases there may be small stream segments within a specific area identified as occupied that historically were, and still may be, inaccessible. We are unable to specifically identify the stream segments where critical habitat is proposed that may have been historically inaccessible because of insufficient information on where these barriers exist and whether they are full barriers to migration or partial barriers to migration. As activities occur in these areas, the section 7 consultation process will allow us to further evaluate stream segments that may have been historically inaccessible, and a determination of ``effect'' on the habitat will be made accordingly. If the activity is determined to be outside the historic range of the species, and the activity is not believed to affect critical habitat downstream of the migration barrier, then a determination of ``no effect'' or ``not likely to affect'' critical habitat may be made.

    Comment 15: A commenter stated that the biological value score of the lower river migration corridors should not be based on the biological value scores of watersheds outside the currently occupied range.

    Response: We discussed assigning biological values using two approaches: assigning scores based on the value of habitat only within the currently occupied range or assigning biological value based on the historic range of the species within the GOM DPS. We concluded that biological value scores should be assigned to HUC 10 watersheds based on the historic range of the species regardless of the presence of dams because areas with dams should not be under valued in terms of their relative importance to Atlantic salmon recovery. Hence, when evaluating the biological value of habitat, we asked biologists not to consider dams as part of their evaluation, but they were to score areas as ``0'' if they believed the area to be historically inaccessible due to natural barriers.

    Comment 16: A commenter stated that the SHRU does not function as a true population but rather as a collection of independent populations, stating that this is evident by the genetic information presented in studies by King et al. (2000, 2001) and Spidle et al. (2001, 2003).

    Response: The studies by King and Spidle were referred to extensively in our analysis of DPS structure within the Gulf of Maine as well as the review provided by the NRC (2003). In each of these studies, the authors do not imply that there is more than one independent population within the Gulf of Maine DPS. Spidle et al.

    (2003) and King et al. (2001) do describe Maine populations as independent from other North American populations and may reflect a limited number of metapopulations (a spatially separated group of populations of the same species that interact at some level). The

    National Research Council (NRC; 2004) does state that Maine rivers appear to reflect a metapopulation structure whereby the GOM DPS represents ``a set of local breeding populations connected by exchange of some individuals''. The NRC, however, avoids referring to these populations as independent populations. We discussed this issue with

    Tim King (personal communication, December 9, 2008), and

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    he concurred that he was not aware of substantive information that would suggest that there is a collection of independent populations within the GOM DPS, and he agreed with NRC's interpretation that these populations reflect meta-population structure. McElhany et al. (2000) describes independent populations quite clearly as ``any collection of one or more local breeding units whose population dynamics or extinction risk over a 100-year time period is not substantially altered by exchanges of individuals with other populations.'' He goes on to state that independent populations are often smaller than the

    Evolutionarily Significant Unit (ESU; similar to the scale to a DPS) and more likely to inhabit a geographic range on the scale of an entire river basin or major sub-basin. In the Gulf of Maine DPS there are four

    HUC 6 river basins which are the Penobscot, Kennebec, Androscoggin, and the Downeast Coastal Basin. Though we recognize that the genetic evidence presented by King and Spidle clearly indicates populations with strong river specificity, we do not believe that there is compelling evidence to determine the presence of an independent population structure in the GOM DPS whereby an independent population is a population whose extinction risk over a 100-year time period is not substantially altered by exchanges of individuals with other populations.

    Comment 17: A commenter stated that assigning a single population criterion of an effective population size (Ne) of 500 adult spawners

    (male and female) for each SHRU is not appropriate because each SHRU does not function as a true population but rather a collection of independent populations.

    Response: The SHRUs are established as a geographic framework for recovery. We did not use effective population size as a criterion for recovery. Rather, we use the breeding population size in conjunction with other criteria because of the inherent difficulties of calculating effective population size for natural populations, and the further complication of having a group of local breeding populations in which there is limited straying among them.

    We believe that assigning a single population criterion for an entire SHRU is more appropriate than trying to allocate population sizes on a per river basis. Assigning population values at the SHRU level allows flexibility in recovery such that recovery can take place anywhere within the SHRU as long as all of the criteria that we have established are met. Therefore, a recovered population could be spread out among multiple rivers within the SHRU or all in one river. Either scenario would allow for a recovery determination as long as all the criteria are met for delisting the DPS. If we assigned specific values or goals for specific rivers, low populations in one river could conceivably delay removing the DPS from the list.

    In contrast, we do not believe that assigning population criteria to the entire DPS is sufficient enough to allow for recovery to occur.

    Assigning a population criterion without reference to geographic distribution could allow for recovery to occur in one river for the entire DPS. Recovery in one river could increase the population's vulnerability to losses in genetic diversity as the population would be exposed to less habitat diversity. Recovery in one river could also increase the population's vulnerability to geographic stochasticity

    (e.g., a catastrophic event such as a drought or flood that could severely impact the population) and demographic stochasticity (e.g., a significant decline in a population where recovery may require some straying from nearby populations to increase the population size or to increase genetic diversity to prevent inbreeding depression) (see NMFS, 2009, appendix A).

    Recovery criteria were developed to aid in designating critical habitat (NMFS, 2009, appendix A), though final recovery criteria will be more fully developed as part of the recovery planning process following the final listing.

    Comment 18: A commenter stated that many extant populations in

    Maine have not regularly achieved Ne > 500 nor Nb (breeding population)

    > than 500 over the last 100 years or more, and clearly many extant populations would have been unlikely to ever exceed the 1,000-2,000 fish level that may be needed to achieve delisting under the proposed criteria.

    Response: We agree that many extant breeding populations may not have exceeded 1,000-2,000 spawners historically, but we do believe that 1,000-2,000 spawners within a SHRU is a realistic goal given the number of breeding populations within a SHRU. Even though we have little population data that pre-dates dam construction on any of the rivers in

    Maine, Atkins' assessments of populations in both the Kennebec and

    Penobscot (estimates range between 100,000 and 200,000 adult spawners annually for the Penobscot and Kennebec) (Foster and Atkins, 1869) are reasonable estimates given that these were based on harvest estimates.

    We also avoid stating that only extant populations within the SHRUs can be used to recover the SHRUs, understanding that, given current low abundances, especially in the Merrymeeting Bay SHRU, common garden experiments that use a mixed stock of fish from populations outside the

    SHRU may be the most appropriate means to re-establish populations.

    This concept fits well with the metapopulation paradigm, where limited straying does occur between populations, and in fact is necessary in supporting genetic diversity as well as re-colonization of populations that have been extirpated or face near extirpation. We do state however, that in most circumstances it would be appropriate, given metapopulation dynamics, to use nearby or proximate populations as a source of fish for re-establishing depleted stocks, as these fish are most likely to retain the genetic and physical characteristics most suitable for re-establishing the targeted river.

    Comment 19: A commenter felt that the PVA simulation used to project habitat needed to support a recovered population seems overly pessimistic since it uses return rates from 1991-2006 to model a 50- year time horizon. The commenter suggested that it would be more realistic to use a longer time series of return rates to better reflect the types of variability likely to be seen over 50 years.

    Response: In Appendix B of the Biological Valuation, an example is given of the PVA model and how it is used to project extinction risks using a time horizon of 50 years. For the actual calculations, the PVA was used in conjunction with the DRAFT Recovery Criteria to estimate how many spawners would be needed in each SHRU to withstand a period of low marine survival as experienced between the years of 1991 to 2006.

    The output of the model was then used in the critical habitat analysis to determine how much habitat in each SHRU would be needed to support a population capable of withstanding the period of low marine survival as experienced between the years of 1991 and 2006. This period of reference was used to reflect what we have seen as a worst case scenario. The outcome of the model revealed that 2,000 adult spawners would be needed in each SHRU in order to ensure that the population of each SHRU is ``not likely'' (95 percent) emerge from redds at night (Gustafson-Marjanen and Dowse, 1983).

    When fry reach approximately 4 cm in length, the young salmon are termed parr (Danie et al., 1984). Parr have eight to eleven pigmented vertical bands on their sides that are believed to serve as camouflage

    (Baum, 1997). A territorial behavior, first apparent during the fry stage, grows more pronounced during the parr stage as the parr actively defend territories (Allen, 1940; Kalleberg, 1958; Danie et al., 1984).

    Most parr remain in the river for 2 to 3 years before undergoing smoltification, the process in which parr go through physiological changes in order to transition from a freshwater environment to a saltwater marine environment. Some male parr may not go through smoltification and will become sexually mature and participate in spawning with sea-run adult females. These males are referred to as

    ``precocious parr.''

    First year parr are often characterized as being small parr or 0+ parr (4 to 7 cm long), whereas second and third year parr are characterized as large parr (greater than 7 cm long) (Haines, 1992).

    Parr growth is a function of water temperature (Elliott, 1991), parr density (Randall, 1982), photoperiod (Lundqvist, 1980), interaction with other fish, birds, and mammals (Bjornn and Reiser, 1991), and food supply (Swansburg et al., 2002). Parr movement may be quite limited in the winter (Cunjak, 1988; Heggenes, 1990); however, movement in the winter does occur (Hiscock et al., 2002) and is often necessary, as ice formation reduces total habitat availability (Whalen et al., 1999a).

    Parr have been documented using riverine, lake, and estuarine habitats; incorporating opportunistic and active feeding strategies; defending territories from competitors including other parr; and working together in small schools to actively pursue prey (Gibson, 1993; Marschall et al., 1998; Pepper, 1976; Pepper et al., 1984; Hutchings, 1986; Erkinaro et al., 1998; Halvorsen and Svenning, 2000; O'Connell and Ash, 1993;

    Dempson et al., 1996; Klemetsen et al., 2003).

    In a parr's second or third spring (age 1 or age 2 respectively), when it has grown to 12.5 to 15 cm in length, a series of physiological, morphological, and behavioral changes occurs (Schaffer and Elson, 1975). This process, called ``smoltification,'' prepares the parr for migration to the ocean and life in salt water. In Maine, the vast majority of naturally reared parr remain in freshwater for 2 years

    (90 percent or more), with the balance remaining for either 1 or 3 years (USASAC, 2005). In order for parr to undergo smoltification, they must reach a critical size of 10 cm total length at the end of the previous growing season (Hoar, 1988). During the smoltification process, parr markings fade and the body becomes streamlined and silvery with a pronounced fork in the tail. Naturally reared smolts in

    Maine range in size from 13 to 17 cm, and most smolts enter the sea during May to begin their first ocean migration (USASAC, 2004). During this migration, smolts must contend with changes in salinity, water temperature, pH, dissolved oxygen, pollution levels, and predator assemblages. The physiological changes that occur during smoltification prepare the fish for the dramatic change in osmoregulatory needs that come with the transition from a fresh to a salt water habitat (Ruggles, 1980; Bley, 1987; McCormick and Saunders, 1987; McCormick et al., 1998). Smolts' transition into seawater is usually gradual as they pass through a zone of fresh and saltwater mixing that typically occurs in a river's estuary. Given that smolts undergo smoltification while they are still in the river, they are pre-adapted to make a direct entry into seawater with minimal acclimation (McCormick et al., 1998). This pre-adaptation to seawater is necessary under some circumstances where there is very little transition zone between freshwater and the marine environment.

    The spring migration of post-smolts out of the coastal environment is generally rapid, within several tidal cycles, and follows a direct route (Hyvarinen et al., 2006; Lacroix and McCurdy, 1996; Lacroix et al., 2004, 2005). Post-smolts generally travel out of coastal systems on the ebb tide, and may be delayed by flood tides (Hyvarinen et al., 2006; Lacroix and McCurdy, 1996; Lacroix et al., 2004, 2005), though

    Lacroix and McCurdy (1996) found that post-smolts exhibit active, directed swimming in areas with strong tidal currents. Studies in the

    Bay of Fundy and Passamaquoddy Bay suggest that post-smolts aggregate together and move near the coast in ``common corridors'' and that post- smolt movement is closely related to surface currents in the bay

    (Hyvarinen et al., 2006; Lacroix and McCurdy, 1996; Lacroix et al., 2004). European post-smolts tend to use the open ocean for a nursery zone, while North American post-smolts appear to have a more near-shore distribution (Friedland et al., 2003). Post-smolt distribution may reflect water temperatures (Reddin and Shearer, 1987) and/or the major surface-current vectors (Lacroix and Knox, 2005). Post-smolts live mainly on the surface of the water column and form shoals, possibly of fish from the same river (Shelton et al., 1997).

    During the late summer/autumn of the first year, North American post-smolts are concentrated in the Labrador Sea and off of the west coast of Greenland, with the highest concentrations between 56[deg] N. and 58[deg] N. (Reddin, 1985; Reddin and Short, 1991; Reddin and

    Friedland, 1993). The salmon located off Greenland are composed of 1 sea winter (1SW) fish; fish that have spent multiple years at sea

    (multi-sea winter fish, or MSW); and immature salmon from both North

    American and European stocks (Reddin, 1988; Reddin et al., 1988). The first winter at sea regulates annual recruitment, and the distribution of winter habitat in the Labrador Sea and Denmark Strait may be critical for North American populations (Friedland et al., 1993). In the spring, North American post-smolts are generally located in the

    Gulf of St. Lawrence, off the coast of Newfoundland, and on the east coast of the Grand Banks (Reddin, 1985; Dutil and Coutu, 1988; Ritter, 1989; Reddin and Friedland, 1993; Friedland et al., 1999).

    Some salmon may remain at sea for another year or more before maturing. After their second winter at sea, the salmon over-winter in the area of the Grand Banks before returning to their natal rivers to spawn (Reddin and Shearer, 1987). Reddin and Friedland (1993) found non-maturing adults located along the coasts of Newfoundland, Labrador, and Greenland, and in the Labrador and Irminger Sea in the later summer/autumn.

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    Identifying the Geographical Area Occupied by the Species and Specific

    Areas Within the Geographical Area

    To designate critical habitat for Atlantic salmon, as defined under

    Section 3(5)(A) of the ESA, we must identify specific areas within the geographical area occupied by the species at the time it is listed. The geographic range occupied by the GOM DPS of Atlantic salmon includes historically accessible freshwater habitat ranging from the

    Androscoggin River watershed in the south to the Dennys River watershed in the north (Fay et al., 2006), as well as the adjacent estuaries and bays through which smolts and adults migrate.

    The geographic range occupied by the species extends out to the waters off Canada and Greenland, where post smolts complete their marine migration. However, critical habitat may not be designated within foreign countries or in other areas outside of the jurisdiction of the United States (50 CFR 424.12(h)). Therefore, for the purposes of critical habitat designation, the geographic area occupied by the species will be restricted to areas within the jurisdiction of the

    United States. This does not diminish the importance of habitat outside of the jurisdiction of the United States for the GOM DPS. In fact, a very significant factor limiting recovery for the species is marine survival, and increasing marine survival is a conservation priority in the recovery of the species. Though marine migration routes and feeding habitat off Canada and Greenland are critical to the survival and recovery of Atlantic salmon, the regulations prohibit designation of these areas as critical habitat. In designating critical habitat for

    Atlantic salmon, the emphasis is two fold: (1) Assuring that critical habitat essential for a recovered population is protected so that when marine conditions improve, sufficient habitat is available to support recovery; and (2) enacting appropriate management measures to enhance and improve critical habitat areas that are not fully functional because the features have been degraded from anthropogenic causes.

    Atlantic salmon are anadromous and spend a portion of life in freshwater and the remaining portion in the marine environment.

    Therefore, it is conceivable that some freshwater habitat may be vacant for up to 3 years under circumstances where populations are extremely low. While there may be no documented spawning in these areas for that period of time, they would still be considered occupied because salmon at sea would return to these areas to spawn.

    Current stock management and assessment efforts also need to be considered in deciding which areas are occupied, including the stocking program managed by USFWS and the Maine Department of Marine Resources

    (MDMR). Furthermore, in addition to stocking programs, straying from natural populations can result in the occupation of habitat.

    Hydrologic Unit Code (HUC) 10 (Level 5 watersheds) described by

    Seaber et al. (1994) are considered the appropriate ``specific areas'' within the geographic area occupied by Atlantic salmon to be examined for the presence of physical or biological features and for the potential need for special management considerations or protections for these features.

    The HUC system was developed by the USGS Office of Water Data

    Coordination in conjunction with the Water Resources Council (Seaber et al., 1994) and provides (1) a nationally accessible, coherent system of water-use data exchange; (2) a means of grouping hydrographical data; and (3) a standardized, scientifically grounded reference system

    (Laitta et al., 2004). The HUC system currently includes six nationally consistent, hierarchical levels of divisions, with HUC 2 (Level 1)

    ``Regions'' being the largest (avg. 459,878 sq. km.), and HUC 12 (Level 6) ``sub-watersheds'' being the smallest (avg. 41-163 sq. km.).

    The HUC 10 (level 5) watersheds were used to identify ``specific areas'' because this scale accommodates the local adaptation and homing tendencies of Atlantic salmon, and provides a framework in which we can reasonably aggregate occupied river, stream, lake, and estuary habitats that contain the physical and biological features essential to the conservation of the species. Furthermore, many Atlantic salmon populations in the GOM DPS are currently managed at the HUC 10 watershed scale. Therefore, we have a better understanding of the population status and the biology of salmon at the HUC 10 level, whereas less is known at the smaller HUC 12 sub-watershed scale.

    Specific areas delineated at the HUC 10 watershed level correspond well to the biology and life history characteristics of Atlantic salmon. Atlantic salmon, like many other anadromous salmonids, exhibit strong homing tendencies (Stabell, 1984). Strong homing tendencies enhance a given individual's chance of spawning with individuals having similar life history characteristics (Dittman and Quinn, 1996) that lead to the evolution and maintenance of local adaptations, and may also enhance their progeny's ability to exploit a given set of resources (Gharrett and Smoker, 1993). Local adaptations allow local populations to survive and reproduce at higher rates than exogenous populations (Reisenbichler, 1988; Tallman and Healey, 1994). Strong homing tendencies have been observed in many Atlantic salmon populations. Stabell (1984) reported that fewer than 3 of every 100 salmon in North America and Europe stray from their natal river. In

    Maine, Baum and Spencer (1990) reported that 98 percent of hatchery- reared smolts returned to the watershed where they were stocked. Given the strong homing tendencies and life history characteristics of

    Atlantic salmon (Riddell and Leggett, 1981), we believe that the HUC 10 watershed level accommodates these local adaptations and the biological needs of the species and, therefore, is the most appropriate unit of habitat to delineate ``specific areas'' for consideration as part of the critical habitat designation process.

    Within the United States, the freshwater geographic range that the

    GOM DPS of Atlantic salmon occupies includes perennial river, lake, stream, and estuary habitat connected to the marine environment, ranging from the Androscoggin River watershed to the Dennys River watershed. Within this range, HUC 10 watersheds were considered

    ``occupied'' if they contained either of the PCEs (e.g., sites for spawning and rearing or sites for migration, described in more detail below) along with the features necessary to support spawning, rearing and/or migration. Additionally, the HUC 10 watershed must meet either of the following criteria. The area is occupied if:

    (a) Redds or any life-stage of salmon have been documented in the

    HUC 10 in the last 6 years, or the HUC 10 is believed to be occupied and contain the PCEs based on the best scientific information available and the best professional judgment of State and Federal biologists; or

    (b) The HUC is currently managed by the MDMR and the USFWS through an active stocking program in an effort to enhance or restore Atlantic salmon populations, or the area has been stocked within the last 6 years by MDMR or the USFWS, and juvenile salmon could reasonably be expected to migrate to the marine environment and return to that area as adults and spawn.

    One hundred and five HUC 10 watersheds within the Penobscot,

    Kennebec, Androscoggin, and Downeast

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    Coastal basins were examined for occupancy based on the above criteria.

    Eighteen HUCs were determined to be outside the historic range of the species, and subsequently, populations in these HUCs were not included in the GOM DPS in the final listing rule. Though the HUC 10 watersheds outside the historic range of the species were included in the critical habitat biological valuation and economic analysis, since they are not occupied, they were not considered for designation and, therefore, not included in the critical habitat 4(b)(2) exclusion analysis. Of the remaining 86 HUCs in the range of the GOM DPS as defined in the final rule, we concluded that 48 HUC 10 watersheds within the geographic range are occupied by the species at the time of listing. Estuaries and bays within the occupied HUC 10 watersheds within the range of the GOM

    DPS are also included in the geographic range occupied by the species.

    Occupied areas also extend outside the estuary and bays of the GOM

    DPS as adults return from the marine environment to spawn and smolts migrate towards Greenland for feeding. We are not able at this time to identify the specific features characteristic of marine migration and feeding habitat within waters under U.S. jurisdiction essential to the conservation of Atlantic salmon and are, therefore, unable to identify the specific areas where such features exist. Therefore, specific areas of marine habitat are not designated as critical habitat.

    Physical and Biological Features in Freshwater and Estuary Specific

    Areas Essential to the Conservation of the Species

    We identify the physical and biological features essential for the conservation of Atlantic salmon that are found within the specific occupied areas identified in the previous section. To determine which features are essential to the conservation of the GOM DPS of Atlantic salmon, we first define what conservation means for this species.

    Conservation is defined in the ESA as using all methods and procedures which are necessary to bring any endangered or threatened species to the point at which the measures provided by the ESA are no longer necessary. Conservation, therefore, describes those activities and efforts undertaken to achieve recovery. For the GOM DPS, we have determined that the successful return of adult salmon to spawning habitat, spawning, egg incubation and hatching, juvenile survival during the rearing time in freshwater, and smolt migration out of the rivers to the ocean are all essential to the conservation of Atlantic salmon. Therefore, we identify features essential to successful completion of these life cycle activities. Although successful marine migration is also essential to the conservation of the species, we are not able to identify the essential features of marine migration and feeding habitat at this time. Therefore, as noted above, marine habitat areas are not designated as critical habitat.

    Within the occupied range of the Gulf of Maine DPS, Atlantic salmon

    PCEs include sites for spawning and incubation, sites for juvenile rearing, and sites for migration. The physical and biological features of the PCEs that allow these sites to be used successfully for spawning, incubation, rearing, and migration are the features of habitat within the GOM DPS that are essential to the conservation of the species. A detailed review of the physical and biological features required by Atlantic salmon is provided in Kircheis and Liebich (2007).

    As stated above, Atlantic salmon also use marine sites for growth and migration; however, we did not identify critical habitat within the marine environment because the specific physical and biological features of marine habitat that are essential for the conservation of the GOM DPS (and the specific areas on which these features might be found) cannot be identified. Unlike Pacific salmonids, some of which use near-shore marine environments for juvenile feeding and growth,

    Atlantic salmon migrate through the near-shore marine areas quickly during the month of May and early June. We have limited knowledge of the physical and biological features that the species uses in the marine environment. However, we have very little information on the specifics of these physical and biological features and how they may require special management considerations or protection. Therefore, we cannot accurately identify the specific areas where these features exist or what types of management considerations or protections may be necessary to protect these physical and biological features during the migration period.

    Detailed habitat surveys have been conducted in some areas within the range of the GOM DPS of Atlantic salmon, providing clear estimates of and distinctions between those sites most suited for spawning and incubation and those sites most used for juvenile rearing. These surveys are most complete for seven coastal watersheds: Dennys, East

    Machias, Machias, Pleasant, Narraguagus, Ducktrap, and Sheepscot watersheds; and portions of the Penobscot Basin, including portions of the East Branch Penobscot, portions of the Piscataquis and

    Mattawamkeag, Kenduskeag Stream, Marsh Stream, and Cove Brook; and portions of the Kennebec Basin, including a portion of the lower mainstem around the site of the old Edwards Dam and portions of the

    Sandy River. Throughout most of the range of the GOM DPS, however, this level of survey has not been conducted, and, therefore, this level of detail is not available.

    In order to determine habitat quantity for each HUC 10 we relied on a GIS based habitat prediction model (See appendix C of NMFS, 2009a).

    The model was developed using data from existing habitat surveys conducted in the Machias, Sheepscot, Dennys, Sandy, Piscataquis,

    Mattawamkeag, and Souadabscook Rivers. A combination of reach slope

    (change in elevation of a stream segment) derived from contour and digital elevation model (DEM) datasets, cumulative drainage area, and physiographic province were used to predict the total amount of rearing habitat within a reach. These features help to reveal stream segments with gradients that would likely represent areas of riffles or fast moving water, habitat most frequently used for spawning and rearing of

    Atlantic salmon. The variables included in the model accurately predict the presence of rearing habitat approximately 75 percent of the time.

    We relied on the model to generate the habitat quantity present within each HUC 10 to provide consistent data across the range of the entire

    DPS and on existing habitat surveys to validate the output of the model.

    Although we have found the model to be nearly 75 percent accurate in predicting the presence of sites for spawning and rearing within specific areas, and we have an abundance of institutional knowledge on the physical and biological features that distinguish sites for spawning and sites for rearing, the model cannot be used to distinguish between sites for spawning and sites for rearing across the entire geographic range. This is because: (1) Sites used for spawning are also used for rearing; and (2) the model is unable to identify substrate features most frequently used for spawning activity, but rather uses landscape features to identify where stream gradient conducive to both spawning and rearing activity exists. As such, we have chosen to group sites for spawning and sites for rearing into one PCE. Therefore, sites for spawning and sites for rearing are discussed together throughout this analysis as sites for spawning and rearing.

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    In the section below, we identify the essential physical and biological features of spawning and rearing sites and migration sites found in the occupied areas described in the previous section.

    (A) Physical and Biological Features of the Spawning and Rearing PCE 1. Deep, oxygenated pools and cover (e.g., boulders, woody debris, vegetation, etc.), near freshwater spawning sites, necessary to support adult migrants during the summer while they await spawning in the fall.

    Adult salmon can arrive at spawning grounds several months in advance of spawning activity. Adults that arrive early require holding areas in freshwater and estuarine areas that provide shade, protection from predators, and protection from other environmental variables such as high flows, high temperatures, and sedimentation. Early migration is an adaptive trait that ensures adults sufficient time to reach spawning areas despite the occurrence of temporarily unfavorable conditions that occur naturally (Bjornn and Reiser, 1991). Salmon that return in early spring spend nearly 5 months in the river before spawning; often seeking cool water refuge (e.g., deep pools, springs, and mouths of smaller tributaries) during the summer months. Large boulders or rocks, over-hanging trees, logs, woody debris, submerged vegetation, and undercut banks provide shade, reduce velocities needed for resting, and offer protection from predators (Giger, 1973). These features are essential to the conservation of the species to help ensure the survival and successful spawning of adult salmon. 2. Freshwater spawning sites that contain clean, permeable gravel and cobble substrate with oxygenated water and cool water temperatures to support spawning activity, egg incubation, and larval development.

    Spawning activity in the Gulf of Maine DPS of Atlantic salmon typically occurs between mid-October and mid-November (Baum, 1997) and is believed to be triggered by a combination of water temperature and photoperiod (Bjornn and Reiser, 1991). Water quantity and quality, as well as substrate type, are important for successful Atlantic salmon spawning. Water quantity can determine habitat availability, and water quality may influence spawning success. Substrate often determines where spawning occurs, and cover can influence survival rates of both adults and newly hatched salmon.

    Preferred spawning habitat contains gravel substrate with adequate water circulation to keep buried eggs well oxygenated (Peterson, 1978).

    Eggs in a redd are entirely dependent upon sub-surface movement of water to provide adequate oxygen for survival and growth (Decola, 1970). Water velocity and permeability of substrate allow for adequate transport of well-oxygenated water for egg respiration (Wickett, 1954) and removal of metabolic waste that may accumulate in the redd during egg development (Decola, 1970; Jordan and Beland, 1981). Substrate permeability as deep as the egg pit throughout the incubation period is important because eggs are typically deposited at the bottom of the egg pit.

    Dissolved oxygen (DO) content is important for proper embryonic development and hatching. Embryos can survive when DO concentrations are below saturation levels, but their development is often subnormal due to delayed growth and maturation, performance, or delayed hatching

    (Doudoroff and Warren, 1965). In addition, embryos consume more oxygen

    (i.e., the metabolism of the embryo increases) when temperature increases (Decola, 1970). An increase in water temperature, however, decreases the amount of oxygen that the water can hold. During the embryonic stage when tissue and organs are developing and the demand for oxygen is quite high, embryos can only tolerate a narrow range of temperatures. These sites are essential for the conservation of the species because, without them, embryo development would not be successful. 3. Freshwater spawning and rearing sites with clean, permeable gravel and cobble substrate with oxygenated water and cool water temperatures to support emergence, territorial development, and feeding activities of Atlantic salmon fry. The period of emergence and the establishment of feeding territories is a critical period in the salmon life cycle since at this time mortality can be very high. When fry leave the redd, they emerge through the interstitial spaces in the gravel to reach the surface. When the interstitial spaces become embedded with fine organic material or fine sand, emergence can be significantly impeded or prevented. Newly emerged fry prefer shallow, low velocity, riffle habitat with a clean gravel substrate. Territories are quickly established by seeking out areas of low velocities that occur in eddies in front of or behind larger particles that are embedded in areas of higher velocities to maximize drift of prey sources (Armstrong et al., 2002). Once a territory has been established, fry use a sit-and-wait strategy, feeding opportunistically on invertebrate drift. This strategy enables the fish to minimize energy expenditure while maximizing energy intake (Bachman, 1984).

    These sites are essential for the conservation of the species because, without them, fry emergence would not be successful. 4. Freshwater rearing sites with space to accommodate growth and survival of Atlantic salmon parr. When fry reach approximately 4 cm in length, the young salmon are termed parr (Danie et al., 1984). The habitat in Maine rivers currently supports on average between five and ten large parr (age 1 or older) per 100 square meters of habitat, or one habitat unit (Elson, 1975; Baum, 1997). The amount of space available for juvenile salmon occupancy is a function of biotic and abiotic habitat features, including stream morphology, substrate, gradient, and cover; the availability and abundance of food; and the makeup of predators and competitors (Bjornn and Reiser, 1991). Further limiting the amount of space available to parr is their strong territorial instinct. Parr actively defend territories against other fish, including other parr, to maximize their opportunity to capture prey items. The size of the territory that a parr will defend is a function of the size and density of parr, food availability, the size and roughness of the substrate, and current velocity (Kalleberg, 1958;

    Grant et al., 1998). The amount of space needed by an individual increases with age and size (Bjornn and Reiser, 1991). Cover, including undercut banks, overhanging trees and vegetation, diverse substrates and depths, and some types of aquatic vegetation, can make habitat suitable for occupancy (Bjornn and Reiser, 1991). Cover can provide a buffer against extreme temperatures; protection from predators; increased food abundance; and protection from environmental variables such as high flow events and sedimentation. These features are essential to the conservation of the species because, without them, juvenile salmon would have limited areas for foraging and protection from predators. 5. Freshwater rearing sites with a combination of river, stream, and lake habitats that accommodate parr's ability to occupy many niches and maximize parr production. Parr prefer, but are not limited to, riffle habitat associated with diverse rough gravel substrate. The preference for these habitats by parr that use river and stream habitats supports a sit-and-wait feeding strategy intended to minimize energy expenditure while maximizing growth. Overall, large Atlantic salmon parr using river and stream habitats select for diverse substrates that predominately consist of boulder and cobble (Symons and

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    Heland, 1978; Heggenes, 1990; Heggenes et al., 1999).

    Parr can also move great distances into or out of tributaries and mainstems to seek out habitat that is more conducive to growth and survival (McCormick et al., 1998). This occurs most frequently as parr grow and they move from their natal spawning grounds to areas that have much rougher substrate, providing more suitable over-wintering habitat and more food organisms (McCormick et al., 1998). In the fall, large parr that are likely to become smolts the following spring have been documented leaving summer rearing areas in some head-water tributaries and migrating downstream, though not necessarily entering the estuary or marine environment (McCormick et al., 1998).

    Though parr are typically stream dwellers, they also use pools within rivers and streams, dead-waters (sections of river or stream with very little to no gradient), and lakes within a river system as a secondary nursery area after emergence (Cunjak, 1996; Morantz et al., 1987; Erkinaro et al., 1998). It is known that parr will use pool habitats during periods of low water, most likely as refuge from high temperatures (McCormick et al., 1998) and during the winter months to minimize energy expenditure and avoid areas that are prone to freezing or de-watering (Rimmer et al., 1984). Salmon parr may also spend weeks or months in the estuary during the summer (Cunjak et al., 1989, 1990;

    Power and Shooner, 1966). These areas are essential to the conservation of the species to ensure survival and species persistence when particular habitats become less suitable or unsuitable for survival during periods of extreme conditions such as extreme high temperatures, extreme low temperatures, and droughts. 6. Freshwater rearing sites with cool, oxygenated water to support growth and survival of Atlantic salmon parr. Atlantic salmon are cold water fish and have a thermal tolerance zone where activity and growth is optimal (Decola, 1970). Small parr and large parr have similar temperature tolerances (Elliott, 1991). Water temperature influences growth, survival, and behavior of juvenile Atlantic salmon. Juvenile salmon can be exposed to very warm temperatures (> 20 [deg]C) in the summer and near freezing temperatures in the winter, and have evolved with a series of physiological and behavioral strategies that enables them to adapt to the wide range of thermal conditions that they may encounter. Parr's optimal temperature for feeding and growth ranges from 15 [deg] to 19 [deg]C (Decola, 1970). When water temperatures surpass 19 [deg]C, feeding and behavioral activities are directed towards maintenance and survival. During the winter when temperatures approach freezing, parr reduce energy expenditures by spending less time defending territories, feeding less, and moving into slower velocity microhabitats (Cunjak, 1996).

    Oxygen consumption by parr is a function of temperature. As temperature increases, the demand for oxygen increases (Decola, 1970).

    Parr require highly oxygenated waters to support their active feeding strategy. Though salmon parr can tolerate oxygen levels below 6mg/l, both swimming activity and growth rates are restricted. These features are essential to the conservation of the species because high and low water temperatures and low oxygen concentrations can result in the cessation of feeding activities necessary for juvenile growth and survival and can result in direct mortality. 7. Freshwater rearing sites with diverse food resources to support growth and survival of Atlantic salmon parr. Atlantic salmon require sufficient energy to meet their basic metabolic needs for growth and reproduction (Spence et al., 1996). Parr largely depend on invertebrate drift for foraging, and actively defend territories to assure adequate food resources needed for growth. Parr feed on larvae of mayflies, stoneflies, chironomids, caddisflies, blackflies, aquatic annelids, and mollusks, as well as numerous terrestrial invertebrates that fall into the river (Scott and Crossman, 1973; Nislow et al., 1999). As parr grow, they will occasionally eat small fishes, such as alewives, dace, or minnows (Baum, 1997).

    Atlantic salmon attain energy from food sources that originate from both allochthonous (outside the stream) and autochthonous (within the stream) sources. What food is available to parr and how food is obtained is a function of a river's hydrology, geomorphology, biology, water quality, and connectivity (Annear et al., 2004). The riparian zone is a fundamental component to both watershed and ecosystem function, as it provides critical physical and biological linkages between terrestrial and aquatic environments (Gregory et al., 1991).

    Flooding of the riparian zone is an important mechanism needed to support the lateral transport of nutrients from the floodplain back to the river (Annear et al., 2004). Lateral transport of nutrients and organic matter from the riparian zone to the river supports the growth of plant, plankton, and invertebrate communities. Stream invertebrates are the principle linkage between the primary producers and higher trophic levels, including salmon parr. These features are essential to the conservation of the species, as parr require these food items for growth and survival.

    (B) Physical and Biological Features of the Migration PCE 1. Freshwater and estuary migratory sites free from physical and biological barriers that delay or prevent access of adult salmon seeking spawning grounds needed to support recovered populations. Adult

    Atlantic salmon returning to their natal rivers or streams require migration sites free from barriers that obstruct or delay passage to reach their spawning grounds at the proper time for effective spawning

    (Bjornn and Reiser, 1991). Physical and biological barriers within migration sites can prevent adult salmon from effectively spawning either by preventing access to spawning habitat or impairing a fish's ability to spawn effectively by delaying migration or impairing the health of the fish. Migration sites free from physical and biological barriers are essential to the conservation of the species because, without them, adult Atlantic salmon would not be able to access spawning grounds needed for egg deposition and embryo development. 2. Freshwater and estuary migration sites with pool, lake, and instream habitat that provide cool, oxygenated water and cover items

    (e.g., boulders, woody debris, and vegetation) to serve as temporary holding and resting areas during upstream migration of adult salmon.

    Atlantic salmon may travel as far as 965 km upstream to spawn (NEFMC, 1998). During migration, adult salmon require holding and resting areas that provide the necessary cover, temperature, flow, and water quality conditions needed to survive. Holding areas can include areas in rivers and streams, lakes, ponds, and even the ocean (Bjornn and Reiser, 1991). Holding areas are necessary below temporary seasonal migration barriers such as those created by flow, temperature, turbidity, and temporary obstructions such as debris jams and beaver dams, and adjacent to spawning areas. Adult salmon can become fatigued when ascending high velocity riffles or falls and require resting areas within and around high velocity waters where they can recover until they are able to continue their migration. Holding areas near spawning areas are necessary when upstream migration is not delayed and adults reach spawning areas before they are ready to spawn. These features are essential to the conservation of the species because,

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    without them, adult Atlantic salmon would be subject to fatigue, predation, and mortality from exposure to unfavorable conditions, significantly reducing spawning success. 3. Freshwater and estuary migration sites with abundant, diverse native fish communities to serve as a protective buffer against predation. Adult Atlantic salmon and Atlantic salmon smolts interact with other diadromous species indirectly. Adult and smolt migration through the estuary often coincides with the presence of alewives

    (Alosa spp.), American shad (Alosa sapidissima), blueback herring

    (Alosa aestivalis), and striped bass (Morone saxatilis). The abundance of diadromous species present during adult migration may serve as an alternative prey source for seals, porpoises and otters (Saunders et al., 2006). As an example, pre-spawned adult shad enter rivers and begin their upstream spawning migration at approximately the same time as early migrating adult salmon (Fay et al., 2006). Historically, shad runs were considerably larger than salmon runs (Atkins and Foster, 1867; Stevenson, 1898). Thus, native predators of medium to large size fish in the estuarine and lower river zones could have preyed on these 1.5 to 2.5 kg size fish readily (Fay et al., 2006; Saunders et al., 2006). In the absence or reduced abundance of these diadromous fish communities, it would be expected that Atlantic salmon will likely become increasingly targeted as forage by large predators (Saunders et al., 2006).

    As Atlantic salmon smolts pass through the estuary during migration from their freshwater rearing sites to the marine environment, they experience high levels of predation. Predation rates through the estuary often result in up to 50 percent mortality during this transition period between freshwater to the marine environment

    (Larsson, 1985). There is, however, large annual variation in estuarine mortality, which is believed to be dependent upon the abundance and availability of other prey items including alewives, blueback herring, and American shad, as well as the spatial and temporal distribution and abundance of predators (Anthony, 1994).

    The presence and absence of co-evolutionary diadromous species such as alewives, blueback herring, and American shad likely play an important role in mitigating the magnitude of predation on smolts from predators such as striped bass, double-crested cormorants

    (Phalacrocorax auritus), and ospreys (Pandion haliaetus). The migration time of pre-spawned adult alewives overlaps in time and space with the migration of Atlantic salmon smolts (Saunders et al., 2006). Given that when alewife populations are robust, alewife numbers not only likely greatly exceed densities of Atlantic salmon smolts, making them more available to predators, but the caloric content per individual alewife is greater than that of an Atlantic salmon smolt (Schulze, 1996), likely making the alewife a more desirable prey species (Saunders et al., 2006). These features are essential to the conservation of the species because, without highly prolific abundant alternate prey species such as alewives and shad, the less prolific Atlantic salmon will likely become a preferred prey species. 4. Freshwater and estuary migration sites free from physical and biological barriers that delay or prevent emigration of smolts to the marine environment. Atlantic salmon smolts require an open migration corridor from their juvenile rearing habitat to the marine environment.

    Seaward migration of smolts is initiated by increases in river flow and temperature in the early spring (McCleave, 1978; Thorpe and Morgan, 1978). Migration through the estuary is believed to be the most challenging period for smolts (Lacroix and McCurdy, 1996). Although it is difficult to generalize migration trends because of the variety of estuaries, Atlantic salmon post-smolts tend to move quickly through the estuary and enter the ocean within a few days or less (Lacroix et al., 2004; Hyvarinen et al., 2006; McCleave, 1978). In the upper estuary, where river flow is strong, Atlantic salmon smolts use passive drift to travel (Moore et al., 1995; Fried et al., 1978; LaBar et al., 1978). In the lower estuary smolts display active swimming, although their movement is influenced by currents and tides (Lacroix and McCurdy, 1996; Moore et al., 1995; Holm et al., 1982; Fried et al., 1978). In addition, although some individuals seem to utilize a period of saltwater acclimation, some fish have no apparent period of acclimation

    (Lacroix et al., 2004). Stefansson et al. (2003) found that post-smolts adapt to seawater without any long-term physiological impairment.

    Several studies also suggest that there is a ``survival window'' which is open for several weeks in the spring, and gradually closes through the summer, during which time salmon can migrate more successfully

    (Larsson, 1977; Hansen and Jonsson, 1989; Hansen and Quinn, 1998).

    These features are essential to the conservation of the species because a delay in migration of smolts can result in the loss of the smolts' ability to osmoregulate in the marine environment, a necessary adaptation for smolt survival. 5. Freshwater and estuary migration sites with sufficiently cool water temperatures and water flows that coincide with diurnal cues to stimulate smolt migration. The process of smoltification is triggered in response to environmental cues. Photoperiod and temperature have the greatest influence on regulating the smolting process. Increase in day length is necessary for smolting to occur (Duston and Saunders, 1990).

    McCormick et al., (1999) noted that in spite of wide temperature variations among rivers throughout New England, almost all smolt migrations begin around the first of May and are nearly complete by the first week in June. However, the time that it takes for the smoltification process to be completed appears to be closely related to water temperature. When water temperatures increase, the smolting process is advanced, evident by increases in Na+, K+-ATPase activity-- the rate of exchange of sodium (Na+) and potassium (K+) ions across the gill membrane or the regulation of salts that allow smolts to survive in the marine environment (Johnston and Saunders, 1981; McCormick et al., 1998; McCormick et al., 2002). In addition to playing a role in regulating the smoltification process, high temperatures also are responsible for the cessation of Na+, K+-ATPase activity of smolts, limiting their ability to excrete excess salts when they enter the marine environment. McCormick et al. (1999) found significant decreases in Na+, K+-ATPase activity in smolts at the end of the migration period, but also found that smolts in warmer rivers had reductions in

    Na+, K+-ATPase activity earlier than smolts found in colder rivers.

    Hence any delay of migration has the potential to reduce survival of out-migrating smolts because as water temperatures rise over the spring migration period, smolts experience a reduction in Na+, K+-ATPase, reducing their ability to regulate salts as they enter the marine environment. Though flow does not appear to play a role in the smoltification process, flow does appear to play an important role in stimulating a migration response (Whalen et al.,, 1999b). Whalen et al.

    (1999b) recorded that there was no apparent downstream migration following a high flow event in mid-to late April in a Vermont river when water temperatures were between 3 and 6 [deg]C; however, when water temperatures reached 8 to 12 [deg]C, small peaks in discharge resulted in corresponding increases in smolt migration. These features are essential

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    to the conservation of the species because elevated water temperatures that occur in advance of a smolt's diurnal cues to migrate can result in a decreased migration window in which smolts are capable of transitioning into the marine environment. A decrease in the migration window has the potential to reduce survival of smolts especially for fish with greater migration distances. 6. Freshwater migration sites with water chemistry needed to support sea water adaptation of smolts. The effects of acidity on

    Atlantic salmon have been well documented. The effects of acidity cause ionoregulatory failure in Atlantic salmon smolts while in freshwater

    (Rosseland and Skogheim, 1984; Farmer et al., 1989; Staurnes et al., 1993, 1996). This inhibition of gill Na+, K+-ATPase activity can cause the loss of plasma ions and may result in reduced seawater tolerance

    (Rosseland and Skogheim, 1984; Farmer et al., 1989; Staurnes et al., 1993, 1996) and increased cardiovascular disturbances (Milligan and

    Wood, 1982; Brodeur et al., 1999). Parr undergoing parr/smolt transformation become more sensitive to acidic water, hence, water chemistry that is not normally regarded as toxic to other salmonids may be toxic to smolts (Staurnes et al., 1993, 1995). This is true even in rivers that are not chronically acidic and not normally considered as being in danger of acidification (Staurnes et al., 1993, 1995).

    Atlantic salmon smolts are most vulnerable to low pH in combination with elevated levels of monomeric labile species of aluminum (aluminum capable of being absorbed across the gill membrane) and low calcium

    (Rosseland and Skogheim, 1984; Rosseland et al., 1990; Kroglund and

    Staurnes, 1999). These features are essential to the conservation of the species because Atlantic salmon smolts exposed to acidic waters can lose sea water tolerance, which can result in direct mortality or indirect mortality from altered behavior and fitness.

    Special Management Considerations or Protections

    Specific areas within the geographic area occupied by a species may be designated as critical habitat only if they contain physical or biological features essential to the conservation of the species that

    ``may require special management considerations or protection.'' It is the features and not the specific areas that are the focus of the ``may require'' provision. Use of the disjunctive ``or'' also suggests the need to give distinct meaning to the terms ``special management considerations'' and ``protection.'' ``Protection'' suggests actions to address a negative impact. ``Management'' seems broader than protection, and could include active manipulation of the feature or aspects of the environment. The ESA regulations at 50 CFR 424.02(j) further define special management considerations as ``any methods or procedures useful in protecting physical and biological features of the environment for the conservation of listed species.'' The term ``may'' was the focus of two Federal district courts that ruled that features can meet this provision because of either a present requirement for special management considerations or protection or possible future requirements (see Center for Biol. Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003); Cape Hatteras Access Preservation Alliance v.

    DOI, 344 F. Supp. 2d 108 (D.D.C. 2004)). The Arizona district court ruled that the provision cannot be interpreted to mean that features already covered by an existing management plan must be determined to require additional special management, because the term additional is not in the statute. Rather, the court ruled that the existence of management plans may be evidence that the features in fact require special management (Center for Biol. Diversity v. Norton, 240 F. Supp. 2d at 1096-1100). The need for special management considerations or protection need not be immediate, but it is required that the specific area designated have features which, in the future, may require special consideration or protection (Cape Hatteras, 344 F. Supp. 2d at 123- 124).

    The primary impacts of critical habitat designation result from the consultation requirements of ESA section 7(a)(2). Federal agencies must consult with NMFS to ensure that their actions are not likely to result in the destruction or adverse modification of critical habitat (or jeopardize the species' continued existence). These impacts are attributed only to the designation (i.e., are incremental impacts of the designation) if Federal agencies modify their proposed actions to ensure they are not likely to destroy or adversely modify the critical habitat beyond any modifications they would make because of listing and the requirement to avoid jeopardy. Incremental impacts of designation include State and local protections that may be triggered as a result of designation and education of the public about the importance of an area for species conservation. When a modification is required due to impacts both to the species and critical habitat, the impact of the designation is considered to be co-extensive with ESA listing of the species. The ESA 4(b)(2) Report (NMFS, 2009b) and Economic Analysis

    (IEc, 2009a) describe the impacts in detail. These reports identify and describe potential future Federal activities that would trigger section 7 consultation requirements because they may affect the essential physical and biological features.

    We identified a number of activities and associated threats that may affect the PCEs and associated physical and biological features essential to the conservation of Atlantic salmon within the occupied range of the GOM DPS. These activities, which include agriculture, forestry, changing land-use and development, hatcheries and stocking, roads and road crossings, mining, dams, dredging, and aquaculture have the potential to reduce the quality and quantity of the PCEs and their associated physical and biological features. There are other threats to

    Atlantic salmon habitat, including acidification of surface waters.

    However, we are not able to clearly separate out the specific activities responsible for acidification, and therefore, are unable to specifically identify a Federal nexus.

    Table 1--Specific Areas Within the Geographic Area Occupied by a Species and the Associated Special Management

    Considerations or Protections That May be Required

    HUC code

    Watershed name

    Special management considerations*

    105000205.................... Machias River............ A F C/L H/S R Da Dr 105000204.................... East Machias River....... A F C/L H/S R M Da Dr 105000208.................... Pleasant River........... A F C/L H/S R M Da Dr 105000201.................... Dennys River............. A F C/L H/S R M Da Dr 105000207.................... Chandler River........... A F C/L H/S R M Da Dr 105000209.................... Narraguagus River........ A F C/L H/S R M Da Dr 105000213.................... Union River Bay.......... A F C/L H/S R M Da Dr Q

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    105000203.................... Grand Manan Channel...... A F C/L H/S R M Da Dr Q 105000206.................... Roque Bluffs Coastal..... A F C/L H/S R M Da Dr 105000210.................... Tunk Stream.............. A F C/L H/S R Da Dr 105000212.................... Graham Lake.............. A F C/L H/S R M Da 102000202.................... Grand Lake Matagamon..... A F C/L H/S R Da 102000203.................... East Branch Penobscot

    A F C/L H/S R

    River. 102000204.................... Seboeis River............ A F C/L H/S R Da 102000205.................... East Branch Penobscot

    A F C/L H/S R Da

    River. 102000301.................... West Branch Mattawamkeag A F C/L H/S R M Da

    River. 102000302.................... East Branch Mattawamkeag A F C/L H/S R M

    River. 102000303.................... Mattawamkeag River....... A F C/L H/S R M 102000305.................... Mattawamkeag River....... A F C/L H/S R M 102000306.................... Molunkus Stream.......... A F C/L H/S R 102000307.................... Mattawamkeag River....... A F C/L H/S R M Da 102000401.................... Piscataquis River........ A F C/L H/S R Da 102000402.................... Piscataquis River........ A F C/L H/S R M Da 102000404.................... Pleasant River........... A F C/L H/S R Da 102000405.................... Seboeis Stream........... A F C/L H/S R Da 102000406.................... Piscataquis River........ A F C/L H/S R M Da 102000501.................... Penobscot River at

    A F C/L H/S M Da

    Mattawamkeag. 102000502.................... Penobscot River at West

    A F C/L H/S R M Da

    Enfield. 102000503.................... Passadumkeag River....... A F C/L H/S R M Da 102000505.................... Sunkhaze Stream.......... A F C/L H/S R 102000506.................... Penobscot River at Orson A F C/L H/S R M

    Island. 102000507.................... Birch Stream............. A F C/L H/S R M 102000509.................... Penobscot River at Veazie A F C/L H/S R M Da

    Dam. 102000510.................... Kenduskeag Stream........ A F C/L H/S R M Da Dr 102000511.................... Souadabscook Stream...... A F C/L H/S R M Da Dr 102000512.................... Marsh River.............. A F C/L H/S M Da Dr 102000513.................... Penobscot River.......... A F C/L H/S R M Da Dr 105000218.................... Belfast Bay.............. A F C/L H/S R M Da Dr 105000219.................... Ducktrap River........... A F C/L H/S R Da Dr Q 105000301.................... St. George River......... A F C/L H/S R M Da Dr 105000302.................... Medomak River............ A F C/L H/S R M Da Dr 105000305.................... Sheepscot River.......... A F C/L H/S R M Da Dr 103000306.................... Kennebec River at

    A F C/L H/S R M Da Dr

    Waterville Dam. 103000305.................... Sandy River.............. A F C/L H/S R M Da Dr 103000312.................... Kennebec at Merrymeeting A F C/L H/S R M Da Dr

    Bay. 105000306.................... Sheepscot Bay............ A F C/L H/S R M Da Dr 105000307.................... Kennebec River Estuary... A F C/L H/S R M Da Dr 104000210.................... Little Androscoggin River A F C/L H/S R M Da Dr

    * A = Agriculture; F = Forestry; C/L = Changing Land Use; H/S = Hatcheries and Stocking; R = Roads and Road

    Crossings; M = Mining; Da = Dams; Dr = Dredging; Q = Aquaculture.

    ``Specific Areas Outside the Geographical Area Occupied by the Species

    * * * Essential to the Conservation of the Species''

    Section 3(5)(A)(ii) of the ESA further defines ``critical habitat'' as ``specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of

    section 4 of this Act

    , upon a determination by the Secretary that such areas are essential for the conservation of the species.'' For the reasons stated above in the discussion of specific occupied areas, we delineated the specific areas outside the geographic area occupied by the species using HUC 10 (level 5) watersheds. To determine whether these unoccupied areas are essential for the conservation of the species, we: (1) established recovery criteria to determine when the species no longer warrants the protections of the ESA (See NMFS, 2009a

    (Appendix A)) and the amount of habitat needed to support the recovered population; and (2) determined the amount of habitat currently occupied by the species relative to the amount of habitat necessary to achieve recovery.

    In developing recovery criteria, we employed a strategy of identifying both geographic and population level criteria, that, if met would protect the DPS from demographic and environmental variation to the extent in which the population would no longer require protection under the ESA. Geographic criteria were established to assure that

    Atlantic salmon are well distributed across the range of the DPS to accommodate the metapopulation characteristics of Atlantic salmon.

    Atlantic salmon have strong homing characteristics that allow local breeding populations to become well adapted to a particular environment. At the same time, limited straying does occur among salmon populations assuring population diversity through exchange of some genes between populations, and allowing for population expansion and recolonization of extirpated populations. To accommodate these life history characteristics, we established a geographic framework represented by three Salmon Habitat Recovery Units, or SHRUs, within the DPS (see NMFS, 2009a (appendix A)) that would, we believe, be reasonably protective of these life history characteristics and to ensure that Atlantic salmon are widely distributed across the range of the DPS to provide protection from demographic and environmental variation. As explained in more detail in the

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    Recovery Criteria (NMFS, 2009a (Appendix A)), we determined that all three SHRUs must fulfill the criteria described below for the overall species, the GOM DPS, to be considered recovered.

    Criteria

    Population level criteria were established to assure that a recovered population is likely to be sufficiently robust to withstand natural demographic variability (e.g., periods of low marine survival) and not likely to become an endangered species in the foreseeable future. We concluded that a census population of 500 adult returns

    (assuming a 1:1 sex ratio) in each SHRU is to be used as a benchmark to evaluate the population as either recovered or one that requires protection under the ESA. Franklin (1980) introduced 500 as the approximate effective population size necessary to retain sufficient genetic variation and long term persistence of a population.

    We have chosen to use a census population (N) (the actual count of adult returns) of 500 adult returns in each SHRU to serve as a benchmark to evaluate the population as either recovered or one that requires protection under the ESA. We used the census number rather than an effective population size for four reasons: (1) The adult census through redd counts or trap catches have been used as the principal indicator of population health in the GOM DPS since Charles

    Atkins first started estimating returns in the mid to late 1800s. At this time, there are not sufficient resources or time to fully assess the effective population size of the entire Gulf of Maine DPS on an annual basis, whereas sufficient resources are already in place to reasonably assess the census population; (2) a census population of 500 adults per SHRU provides a starting point only for establishing criteria for delisting and does not represent the actual number at which the population warrants delisting. Other pre-decision criteria must also be met for delisting as described in the following paragraph:

    (3) Atlantic salmon have tremendously complex life histories allowing for great opportunity for extensive cross generational breeding. This is because of salmon's iteroparity and because precocious parr, one-sea winter and multi-sea winter fish can all participate in spawning activity. Having multi-generational participation in spawning activity significantly reduces the effective population to census population ratio, but furthermore, makes determining the actual Ne/N ratios extremely difficult and highly debatable for the natural population; (4) Though there has been much debate in the literature regarding the application of assigning a general number to represent when populations are sufficiently large enough to maintain genetic variation (Allendorf and Luikart, 2007; Waples & Yokota, 2007; Reiman &

    Allendorf, 2001), the 500 rule introduced by Franklin (1980) has not been superseded by any other rule and does serve as useful guidance for indicating when a population may be at risk of losing genetic variability (Allendorf and Luikart, 2007).

    To evaluate recovery of the GOM DPS, we have determined that five criteria must be met: (1) The adult spawner population of each SHRU must be 500 or greater in an effort to maintain sufficient genetic variability within the population for long-term persistence. This is to be determined or estimated through adults observed at trapping facilities or redd counts; (2) The GOM DPS must demonstrate self- sustaining persistence where each SHRU has less than a 50 percent probability of falling below 500 adult spawners in the next 15 years based on PVA projections described above. The 50 percent assurance threshold satisfies the criterion that the population is ``not likely'' to become an endangered species; while 15 years represents the

    ``foreseeable future'' for which we have determined that we can make reasonable projections based on past demographic data available to us;

    (3) The entire GOM DPS must demonstrate consistent positive population growth for at least two generations (10 years) before the decision to delist is made. Ten years of pre-decision data that reflects positive population trends provides some assurance that recent population increases are not happenstance but more likely a reflection of sustainable positive population growth; (4) A recovered GOM DPS must represent the natural population (i.e., adult returns must originate from natural reproduction that has occurred in the wild); hatchery product cannot be counted towards recovery because a population reliant upon hatchery product for sustainability is indicative of a population that continues to be at risk; (5) In order to delist the GOM DPS, the threats identified at the time of listing must be addressed through regulatory or any other means. These threats are identified in the factors specified under section 4(a)(1) of the ESA as described in the 2006 Status Review (Fay et al., 2006). Methods to address these threats will be addressed in a final recovery plan for the expanded GOM DPS.

    After determining criteria for delisting, we applied these criteria to assess the number of adult spawners that would be needed to weather a downturn in survival as experienced between the years of 1991 and 2006, a period of exceptionally low survival. Using demographic data for this time period we applied the criteria described above in conjunction with a PVA to determine how many adults would be required in each SHRU to weather a similar downturn in survival while having a greater than 50 percent chance of remaining above 500 adults (see NMFS, 2009a (Appendix B)). This analysis projected that a census population of 2,000 spawners (1000 male and 1000 female) would be needed in each of the three SHRUs for the GOM DPS to weather a downturn in survival such as experienced over the time period from 1991-2006. Based on this analysis, we conclude that enough habitat is needed in each of the three SHRUs to support the offspring of these 2,000 adult spawners.

    Using an average fecundity per female of 7,200 eggs (Legault, 2004), and male to female ratio of 1:1, or 1000 females, and a target number of eggs per one unit of habitat (100m\2\) of 240 (Baum, 1997), we determined that 30,000 units of habitat are needed across each SHRU

    (7,200 eggs x 1000 females/240 eggs = 30,000) to support the offspring of 2,000 spawners, which represents the quantity of habitat in each

    SHRU essential to the conservation of the species (NMFS, 2009a,

    Appendix B).

    To calculate the existing quantity of habitat across the range of the DPS both within the currently occupied range and outside the occupied range, we recognized that both habitat quantity and quality should be taken into consideration. As a result, we describe the existing quantity of habitat in terms of functional habitat units. To generate this estimate of functional habitat units, we considered the measured quantity of habitat within each HUC 10 as well as the habitat's quality. The functional habitat units values are a measure of the quantity of habitat (expressed in units where 1 unit of habitat is equivalent to 100m \2\ of habitat) within a HUC 10 based on qualitative factors that limit survivorship of juvenile salmon utilizing the habitat for spawning, rearing, and migration. The functional habitat units also account for dams within or below the HUC 10 that would further reduce survivorship of juvenile salmon within the HUC 10 as the juvenile salmon migrate towards the marine environment. In HUC 10s that

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    are not believed to be limited by qualitative factors or dams, the functional habitat units would be identical to the measured quantity of habitat units within the HUC 10. In HUC 10s where quality and dams are believed to be limiting, the functional habitat units would be less than the measured habitat units within the HUC 10. The functional habitat units value is used in the critical habitat evaluation process to determine the quantity of functioning habitat units within each HUC 10. It also determines the quantity of functioning habitat within the currently occupied range relative to the amount needed to support the offspring of 2,000 adult spawners.

    Functional habitat unit scores were generated by multiplying the quantity of spawning and rearing habitat units within each HUC 10 by the habitat quality score divided by 3 (e.g., 1 = 0.33, 2 = 0.66, and 3

    = 1; discussed below under application of ESA section 4(b)(2)) to represent the relative values in terms of percentages. Using this approach, a ``1'' habitat quality score has a qualitative value roughly equivalent to 33 percent of fully functioning habitat; accordingly, a

    ``2'' habitat quality score is roughly 66 percent of the value of fully functioning habitat; and a ``3'' score equals 100 percent habitat quality. The sum of this value was then multiplied by 0.85 raised to the power of the number of dams both within and downstream of the HUC 10. We consider 0.85 to represent a coarse estimate of passage efficiency of smolts for FERC dams with turbines (smolt mortality associated with turbine entrainment is 0.15) based on the findings of several studies (GNP, 1995; GNP, 1997; Holbrook, 2007; Shepard, 1991c;

    Spicer et al., 1995) and, therefore, roughly equivalent to a 15 percent reduction in functional habitat unit. Mainstem dams without turbines are not expected to affect smolts the way dams with turbines do, but can result in direct or indirect mortality from delays in migration and by increased predation from predators that congregate around dams.

    Therefore, dams without turbines were estimated to reduce the functional capacity of habitat units by 7.5 percent (one half of 15 percent). Dams located at roughly the midpoint of habitat within a HUC 10 watershed were estimated to affect passage of roughly half the fish in the HUC 10 watershed (e.g., located half way up the HUC 10 watershed) and, therefore, were discounted accordingly (e.g., 7.5 percent for dams with turbines). A dam without turbine located at the midpoint of habitat within a HUC 10 was estimated to reduce the functional capacity of habitat units by 3.75 percent. The number of dams present both within and downstream of the HUC 10 was used as an exponent to account for cumulative effects of dams. A formulaic representation of our method is written as:

    GRAPHIC

    TIFF OMITTED TR19JN09.000

    QSRH= quantity of spawning and rearing habitat

    BSS= biological suitability score

    EDE= estimated downstream passage efficiency of a typical FERC licensed dam

    N = number of dams within and downstream of HUC

    Given that computing the functional habitat units was conducted to estimate the quantity of habitat necessary to support the offspring of 2,000 adult spawners, only downstream passage efficiency was figured into the equation to calculate functional habitat units. We based our projected habitat needs on the amount of habitat needed to support the offspring of 2,000 adult spawners, so our analysis of functional habitat units was based on those factors that would diminish the survival of the offspring of the spawners. This rule is not designed to serve as a recovery plan but rather to ensure that there is sufficient habitat available to meet recovery goals. A full review of how habitat quantities and habitat qualities were computed is provided in the

    Biological Valuation of Atlantic Salmon Habitat within the GOM DPS

    (2008).

    Table 2 represents the total amount of measured habitat within the occupied areas of each SHRU; the quantity of functional habitat units for each SHRU; amount of habitat excluded; the amount of functional habitat (represented as functional habitat unit) after exclusion; and the amount of habitat still needed to support the offspring of 2,000 adult spawners within each SHRU.

    Table 2--Total Habitat and Functional Habitat for Occupied Areas Among the Three SHRUs in the GOM DPS

    Additional habitat needed to support the

    Total habitat

    Functional

    Economic

    Functional

    offspring of

    SHRU

    units

    habitat units

    exclusion

    habitat after 2,000 adult exclusions

    spawners

    (i.e., 30,000 units)

    Merrymeeting Bay................

    372,639

    40,001

    0

    40,001

    0

    Penobscot Bay...................

    323,740

    66,263

    3,205

    63,058

    0

    Downeast Coastal................

    61,395

    29,111

    0

    29,111

    889

    In both the Penobscot and Merrymeeting Bay SHRUs, there are more than 30,000 units of functional habitat within the currently occupied area to support the offspring of adult spawners. In the Downeast

    Coastal SHRU, the amount of functional habitat available to the species is estimated to be 889 units short of what is needed to support 2,000 adult spawners. Nonetheless, we determined that no areas outside the occupied geographical area within the Downeast SHRU are essential to the conservation of the species. This is because the 61,395 total habitat units in Downeast Maine are predicted to be functioning at the equivalent of 29,111 units because of the presence of dams or because of degraded habitat features that reduce the habitat's functional value. However, through restoration efforts, including enhanced fish passage and habitat improvement of anthropogenically

    Page 29326

    degraded features (including stream crossing improvement projects like those currently being carried out by Project SHARE in the Downeast

    SHRU, for example), a substantial portion of the approximately 32,000 units of non-functioning habitat may be restored to a functioning state. The Union River, for instance, has over 12,000 units of habitat, though its functional habitat value, largely because of dams, is estimated to be equivalent to approximately 4,000 units of habitat. Dam removal or improved fish passage has the potential to significantly increase the function of critical habitat in the Union river and, therefore, the entire Downeast SHRU.

    Throughout Maine, there has been substantial effort on behalf of

    State and Federal agencies and non-profit organizations in partnership with landowners and dam owners to restore habitat through a combination of land and riparian protection efforts, and fish passage enhancement projects. Project SHARE, the Downeast Salmon Federation, watershed councils, Trout Unlimited, and the Atlantic Salmon Federation, for example, have conducted a number of projects designed to protect, restore, and enhance habitat for Atlantic salmon ranging from the

    Kennebec River in south central Maine to the Dennys River in Eastern

    Maine. Projects include, but are not limited to: dam removals along the

    Kennebec, St. George, Penobscot, and East Machias Rivers; land protection of riparian corridors along the Machias, Narraguagus,

    Dennys, Pleasant, East Machias, Sheescot, Ducktrap rivers and Cove

    Brook; surveying and repair of culverts that impair fish passage; and outreach and education efforts on the benefits of such projects. In 2008 in the Downeast SHRU, Project SHARE replaced 7 culverts with open bottom arch culverts to improve fish passage, decommissioned 12 road crossings by removing the culvert or bridge and stabilizing the banks, and removed 6 remnant log drive dams. The Penobscot River Restoration

    Project is another example of cooperative efforts on behalf of Federal and State agencies, nonprofit organizations, and dam owners. The PRRP goal is to enhance runs of diadromous fish, including Atlantic salmon, through the planned removal of two mainstem dams and enhanced fish passage around several other dams along the Penobscot River. These cooperative efforts can increase the functional potential of Atlantic salmon habitat by both increasing habitat availability as well as increasing habitat quality. Therefore, we do not believe that it is essential to designate critical habitat outside of the currently occupied range.

  12. Application of ESA Section 4(a)(3)(B)(i) (Military Lands)

    The Sikes Act of 1997 (16 U.S.C. 670a-670f, as amended), enacted on

    November 18, 1997, required that military installations with significant natural resources prepare and implement an integrated natural resource management plan (INRMP) in cooperation with the USFWS and State fish and wildlife agencies, by November 18, 2001. The purpose of the INRMP is to provide the basis for carrying out programs and implementing management strategies to conserve and protect biological resources on military lands. Because military lands are often protected from public access, they can include some of the nation's most significant tracts of natural resources. INRMPs are to provide for the management of natural resources, including fish, wildlife, and plants; allow multipurpose uses of resources; and provide public access where appropriate for those uses, without any net loss in the capability of an installation to support its military mission.

    In 2003, the National Defense Authorization Act (Pub. L. 108-136) amended the ESA to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the ESA (16 U.S.C. 1533(a)(B)(i)) states: ``The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 67a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.''

    Within the specific areas identified as critical habitat for the

    Gulf of Maine DPS, there are four military sites; two of these currently have INRMPs, and the other two have INRMPs being developed.

    The Brunswick Naval Air Station has 15,800 acres (63.9 sq km) of real property spread out among the main station in Brunswick and several remote stations across Maine. Military installations that are part of the Brunswick Naval Air Station and that are either partly or entirely within the area where critical habitat is proposed include the 3,091- acre (12.5-sq km) main station in Brunswick; a 12,000-acre (48.5-sq km)

    Survival, Evasion, Resistance, and Escape (SERE) school near Rangeley,

    Maine; and the 396-acre (1.6-sq km) Great Pond Outdoor Adventure Center located in the town of Great Pond in Hancock County, Maine.

    The two military installations within the occupied range of the DPS with INRMPs are not included in the critical habitat designation in accordance to 4(a)(3)(B)(i) of the ESA. These installations include:

    (1) The 3,091-acre (12.5-sq km) Brunswick Naval Air Station in

    Brunswick, Maine, of which 435 acres (1.8 sq km) are within Little

    Androscoggin HUC 10 watershed in the Merrymeeting Bay SHRU; and (2) the

    Brunswick Naval Air Station's cold weather survival, evasion, resistance, and escape school, which occupies 12,000 acres (48.5 sq km) near Rangeley, Maine, of which 5,328 acres (21.6 sq km) are within the

    Sandy River HUC 10 watershed in the Merrymeeting Bay SHRU. The INRMPs at these two locations specifically provide for water quality protection via erosion and sediment control, wetland protection, monitoring of non point source pollution, protection of watersheds from hazardous materials, use of environmentally beneficial landscaping, monitoring for and responding to forestry management units health problems and management of forests as shoreline buffers. We determined that these two INRMPs provide a conservation benefit to the GOM DPS of

    Atlantic salmon.

    The two sites with military missions that currently do not have

    INRMPs and the one non-military facility identified as being essential to national security are being excluded from critical habitat under section 4(b)(2) described in the final rule section entitled

    Application of ESA Section 4(b)(2).

  13. Application of ESA Section 4(b)(2)

    The foregoing discussion described the specific areas within U.S. jurisdiction that meet the ESA definition of critical habitat because they contain the physical and biological features essential to the conservation of Atlantic salmon that may require special management considerations or protection. Before including areas in a designation, section 4(b)(2) of the ESA requires the Secretary to consider the economic impact, impact on national security, and any other relevant impacts of designation of any particular area. The Secretary has the discretion to exclude any area from designation if he determines that the benefits of exclusion (that is, avoiding some or all of the impacts that would result from designation) outweigh the benefits of designation based upon the best

    Page 29327

    scientific and commercial data available. The Secretary may not exclude an area from designation if exclusion will result in the extinction of the species. Because the authority to exclude is discretionary, exclusion is not required for any particular area under any circumstances.

    The ESA section 4(b)(2) exclusion process is conducted for a

    ``particular area,'' not for the critical habitat as a whole. This analysis is, therefore, conducted at a geographic scale that divides the area under consideration into smaller sub-areas. The statute does not specify the exact geographic scale of these ``particular areas.''

    For the purposes of the analysis of economic impacts, a ``particular area'' is equivalent to a ``specific area'', defined as a HUC 10 (level 5) standard watershed. There are 48 ``specific areas'' (HUC 10s) occupied by the species on which are found those physical and biological features essential to the conservation of the species and which may require special management considerations or protection.

    Where we considered impacts on Indian Tribes, we delineated particular areas based on land ownership. Where we consider impacts on national security, particular areas will be delineated based on lands identified by the military as areas where critical habitat designation will have an impact on national security. These areas may only account for a small fraction of a HUC 10 watershed or, in some circumstances, may span across several HUC 10 watersheds. Factors that were considered in determining whether the benefits of exclusion outweighed the benefits of designating the particular areas as critical habitat include:

    (1) The quantity of functional habitat excluded relative to the quantity of habitat needed to support a recovered population;

    (2) The relative biological value of a particular area to the conservation of the species, measured by the quantity and quality of the physical and biological features with the particular area;

    (3) The anticipated conservation loss that would be accrued through not designating a particular area based upon the conservation value of that particular area; and

    (4) Whether exclusion of habitat within the particular area, based upon the best scientific and commercial data, would result in the extinction of the species concerned.

    Assigning Biological Value

    To determine the benefits of including an area as critical habitat, we assigned a Final Biological Value to each HUC 10 watershed based on the quantity and quality of Atlantic salmon spawning and rearing habitat and the migratory needs of the species (see NMFS, 2009a). The

    Final Biological Value indicates each area's current value to Atlantic salmon spawning, rearing, and migration activities and is applied in the ESA section 4(b)(2) exclusion analysis, where it is weighed against the economic, national security, and other relevant impacts to consider whether specific areas may be excluded from designation. The final biological value also aided in determining those areas currently occupied by the species described earlier in the final rule under

    ``Identifying the Geographical Area Occupied by the Species and

    Specific Areas within the Geographical Area''. The variables used to develop the Final Biological Value include a combination of habitat units, habitat quantity, habitat quality, and the value of the HUC 10 to migration of smolts and adults. The final biological value does not incorporate the use of functional habitat units as described in the previous section entitled Specific areas outside the geographical area occupied by the species * * * essential to the conservation of the species. Functional habitat units were only used to determine whether areas that contain PCEs outside the currently occupied range should be designated as critical habitat.

    A habitat unit represents 100 m\2\ of spawning and rearing habitat.

    A habitat unit is used in North America and Europe to quantify habitat features most frequently used for spawning and juvenile rearing (e.g., riffles and runs). Habitat units for each HUC 10 were calculated using the GIS based habitat prediction model described earlier in the final rule under Physical and Biological Features in Freshwater and Estuary

    Specific Areas Essential to the Conservation of the Species.

    Habitat quantity is the estimate of habitat units generated by the model and was calculated separately for each HUC 10. The units of habitat were then binned into four categories for each of the three

    SHRUs. A HUC 10 with no habitat was assigned a score of ``0'' and was considered unoccupied. HUC 10s with the lowest 25 percent of total units of habitat across the entire SHRU received a ``1'' score, the middle 50 percent received a ``2'' score, and the upper 25 percent received a ``3'' score. A ``3'' score represents the highest relative habitat quantity score. This method resulted in the majority of the habitat receiving a score of ``2'' representing an average habitat quantity. Habitat scores outside the middle 50 percent were considered to have above average habitat quantity or below average habitat quantity.

    Habitat quality scores were assigned to HUC 10s based on information and input from fisheries biologists working with the Maine

    Department of Inland Fisheries and Wildlife, the MDMR, NMFS, and

    Kleinschmidt Energy and Water Resource Consultants, who possess specific knowledge and expertise about the geographic region. For each of the three SHRUs, a minimum of three biologists with knowledge of and expertise in the geographic area were asked to independently assign habitat scores, using a set of scoring criteria developed by fisheries biologists from NMFS, to HUC 10s based on the presence and quality of the physical and biological features essential to the conservation of the species (see NMFS, 2009a). The scoring criteria ranked qualitative features, including temperature, biological communities, water quality, and substrate and cover, as being highly suitable (``3''), suitable

    (``2''), marginally suitable (``1'') or not suitable (``0'') for supporting Atlantic salmon spawning, rearing, and migration activities.

    A habitat value of ``0'' indicates that one or more factors is limiting to the point that Atlantic salmon could not reasonably be expected to survive in those areas; a score of ``1'', ``2'', or ``3'' indicates the extent to which physical and biological features are limiting, with a

    ``1'' being most limiting and a ``3'' being not limiting. In HUC 10s that are and have always been inaccessible due to natural barriers, the entire HUC 10 was automatically scored as ``0'' and considered not occupied by the species. Emphasis was placed on identifying whether the physical and biological features needed for Atlantic salmon spawning and rearing are present and of what quality the features are. The overall habitat quality score for each HUC 10 was typically an average determined by the compilation of scores. In some instances, not all the biologists were familiar with the HUC 10, so only one or two scores were provided for some HUCs. In some instances where only two scores were provided for a HUC 10 watershed and each biologist scored the watershed differently we relied on a combination of the comments provided on the score sheets, knowledge from fisheries biologist working for NMFS that were familiar with these HUCs, or phone interviews with the commenters to resolve the ``tie'' score. We resolved ``tie'' scores based on comments when it was clearly apparent, based on the

    Page 29328

    comments, that one biologist had more knowledge of the HUC 10 than the other biologist who scored the HUC 10.

    Final Habitat Values were generated for each HUC 10 by combining habitat quantity and habitat quality scores within each HUC 10. Scores were combined by multiplying the two variables together giving scores of 0, 1, 2, 3, 4, 6, 9. HUC 10s with zero scores received a zero score for Final Habitat Value. Scores of 1 or 2 were valued as low or ``1'' final habitat value. Scores of 3 or 4 were valued as medium or ``2'' final habitat value, and scores of 6 or 9 were valued as high or ``3'' final habitat value.

    A final migration value was generated based on the final habitat values and the migratory requirements of adults to reach spawning areas and smolts to reach the marine environment. We determined the final migration value of a HUC 10 to be equal to the highest final habitat value upstream from the HUC 10 because we concluded that access to spawning and rearing habitat was equally as important as the spawning and rearing habitat itself.

    The final biological value for each HUC 10, which is the value used in weighing economic cost against the biological value of habitat to salmon, was determined by selecting the higher of the final habitat value and the final migration score of each HUC 10. This approach assures the preservation of spawning and rearing habitat as well as migration habitat (see NMFS, 2009a).

    Consideration of Economic Impacts, Impacts to National Security and

    Other Relevant Impacts

    The impact of designating any particular area as critical habitat occurs primarily through section 7 of the ESA. Once critical habitat is designated, section 7(a)(2) requires that Federal agencies ensure any action they authorize, fund, or carry out (this action is called the

    ``Federal nexus'') is not likely to result in the destruction or adverse modification of critical habitat (16 U.S.C. 1536(a)(2)).

    Parties involved in section 7 consultations include NMFS or the USFWS, a Federal action agency, and in some cases, a private entity involved in the project or land use activity. The Federal action agency serves as the liaison with NMFS. Under Section 7(a)(2), when a Federal agency proposes an action that may affect a listed species or its critical habitat, it must initiate formal consultation with NMFS (or the USFWS, as applicable) or seek written concurrence from the Service(s) that the action is not likely to adversely affect listed species or its designated critical habitat. Formal consultation is a process between the Services and a Federal agency designed to determine whether a proposed Federal action is likely to jeopardize the continued existence of a species or destroy or adversely modify critical habitat, an action prohibited by the ESA. If the action is likely to destroy or adversely modify critical habitat, then the Federal agency may be required to implement a reasonable and prudent alternative (RPA) to the proposed action to avoid the destruction or adverse modification of critical habitat. In addition, conservation benefits to the listed species would result when the consultation process avoids destruction or adverse modification of its critical habitat through inclusion of RPAs, or avoids lesser adverse effects to critical habitat that may not rise to the level of adverse modification through inclusion of harm avoidance measures.

    Outside of the Federal agencies' obligation to consult on actions that ``may affect'' critical habitat and adopt project modifications to avoid destruction or adverse modification, the ESA imposes no requirements or limitations on entities or individuals as a result of a critical habitat designation.

    Economic Impacts

    As discussed above, economic impacts of the critical habitat designation result from implementation of section 7 of the ESA. Section 7(a)(2) requires Federal agencies to consult with NMFS to ensure their proposed actions are not likely to destroy or adversely modify critical habitat. These economic impacts may include both administrative and project modification costs. Economic impacts may also be associated with the conservation benefits of the designation.

    Economic impacts were assessed for each specific HUC 10 area designated as critical habitat, as well as for unoccupied areas within the range of the GOM DPS. While we are not designating unoccupied areas as critical habitat, we evaluated the economic impacts in the event that we determined in the biological valuation process, or determine as a result of public comment or subsequently available information, that some or all of the unoccupied areas were found to be to be essential to the conservation of the species. For the entire range of the GOM DPS, most of the economic impact results from impacts to hydropower projects and development (IEc, 2009a). The estimated economic impact of designation of the occupied areas before economic exclusions ranges from approximately $128 million to $152 million.

    For the designation of critical habitat for the GOM DPS, economic exclusions within the 48 occupied HUC 10s throughout the range of the

    DPS were considered by weighing biological value determined in the biological valuation and the economic cost determined in the economic analysis. As described earlier, the biological values were assigned a score of 1, 2, or 3, with a ``1'' being of lowest biological value and a ``3'' being of highest biological value. Areas could also be assigned a biological value of ``0'' if the physical and biological features in those areas were so degraded that they were not considered essential to the conservation of salmon. Areas assigned a ``0'' score were not included in the economic exclusion analysis. As stated above, we consider these areas to be unoccupied, and we determined that no unoccupied areas were essential to the conservation of the GOM DPS.

    To compare economic cost with biological value, we used the range of monetized values provided in the economic analysis binned into three categories, with a score of ``1'' representing low economic cost and a score of ``3'' representing high economic cost. These categories illustrate economic costs over the range of the GOM DPS. The high, medium, and low scores assigned to economic costs were then used to weigh economic cost against the corresponding biological value (also scored as high, medium, or low) of each HUC 10. The binning process was designed to describe a range of monetized values in qualitative terms that could be directly compared with the qualitative assessment of the physical and biological habitat features essential to the conservation of the species. The binning was conducted so that the lowest 25 percent of the total economic costs represent costs that were below average.

    Low economic costs were assigned a score of ``1,'' representing a cost ranging from $71,000 to $388,000. The middle 50 percent represents the average cost across all HUCs containing critical habitat and received a score of ``2,'' with economic cost ranging from $388,001 to $3,420,000.

    The upper 25 percent represents those costs that were above average or high and received a score of ``3,'' with economic cost ranging from

    $3,420,001 to $27,900,000. We binned the economic costs using the same procedures that we used to bin habitat quantity within each HUC 10, with the lower and upper 25 percent of habitat representing those areas as being either above average or below average.

    These dollar thresholds do not represent an objective judgment that

    Page 29329

    low-value areas are worth no more than $388,000, medium-value areas are worth no more than $3,420,000, or high value areas are worth no more than $27,900,000. Under the ESA, we are to weigh dissimilar impacts given limited time and information. The statute emphasizes that the decision to exclude is discretionary. Thus, the economic impact level at which the economic benefits of exclusion outweigh the conservation benefits of designation is a matter of discretion and depends on the policy context. For critical habitat, the ESA directs us to consider exclusions to avoid high economic impacts, but also requires that the areas designated as critical habitat are sufficient to support the conservation of the species and to avoid extinction. In this policy context, we selected dollar thresholds representing the levels at which we believe the economic impact associated with a specific area would outweigh the conservation benefits of designating that area.

    Given the low abundance and endangered status of Atlantic salmon, we exercise our discretion to consider exclusion of specific areas based on three decision rules: (1) Specific areas with a biological value of medium (``2'') or high (``3'') score were not eligible for exclusion regardless of the level of economic impact, because of the endangered status of Atlantic salmon; (2) specific areas with a low biological value (``1'') were excluded if the economic costs were greater than $388,000 (economic score of ``2'' or ``3''); and (3) specific areas were not considered for exclusion, including those areas having a low biological value (``1''), if the area had no dams both within it or below it, given that these areas are not subject to the deleterious effects that dams have on migration of adults and smolts

    (GNP, 1995; GNP, 1997; Holbrook, 2007; Shepard, 1991c; Spicer et al., 1995).

    These decision rules: (1) Ensure that enough occupied habitat receives the protections of critical habitat to meet our conservation objectives, in this case, 30,000 units of habitat per SHRU; (2) ensure that all habitat that has average (2 score) or better biological value receives the protections of critical habitat and is available to be used for the conservation and recovery of the species; and (3) given that dams have been identified as one of the greatest impediments to salmon recovery (NRC, 2004; Fay et al., 2006), ensure that occupied areas without dams receive the protections of critical habitat.

    If we excluded all areas where economic costs were higher than biological value, then the Downeast Coastal SHRU would be 3,840 units short of the 30,000 units needed to meet our conservation objectives.

    Habitat that is excluded for economic impact reasons offers no protections to those features that are essential to the conservation of

    Atlantic salmon. In contrast, tribal lands and military lands excluded from the Downeast Coastal SHRU were excluded because of ongoing conservation efforts being carried out by the Tribe or natural resource plans that are in place or in development by the military that provide protections to Atlantic salmon habitat.

    We believe that all habitat with a biological value of ``2'' or greater is essential to the recovery efforts of Atlantic salmon. In the

    Gulf of Maine, of the 105 HUC 10 watersheds that we analyzed for critical habitat, we determined that 86 HUC 10s were historically accessible to Atlantic salmon. Of those 86 historic watersheds, only 48 of those HUC 10 watersheds are currently occupied by Atlantic salmon and provide the best opportunity for the agencies to implement on the ground recovery efforts through stocking programs and habitat restoration and enhancement efforts. Of the 48 occupied HUC 10 watersheds, 32 of these watersheds are considered to have average

    (``2'' score) or better biological value. These 32 remaining watersheds provide the best opportunity for managers to carry out restoration efforts, and provide the best potential for recovery of Atlantic salmon across the DPS.

    We believe that protection of specific areas without dams is imperative to salmon recovery. The fact that the National Research

    Council (NRC, 2004) and the Atlantic Salmon Status Review (Fay et al., 2006) both emphasize that dams are one of the greatest impediments to salmon recovery in the State of Maine underscores the importance of specific areas that are free of dams, even if these specific areas have relatively low biological value. Even highly effective passage facilities cause Atlantic salmon mortality. Passage inefficiency and delays associated with dams occur at biologically significant levels, resulting in incremental losses of pre-spawn adults, smolts, and kelts

    (a life stage after Atlantic salmon spawn) (See the final rule published by NMFS and the USFWS in today's Federal Register (see

    Endangered and Threatened Species; Determination of Endangered Status for the Gulf of Maine Distinct Population Segment of Atlantic Salmon)).

    Dams can delay migration of smolts, increasing predation risk (Nettles and Gloss, 1987) or cause Atlantic salmon smolts to miss the migration window in which smolts are physiologically capable of transitioning from the freshwater environment to the marine environment (Whalen et al., 1999; McCormick et al., 1999). Studies in the Columbia River system have shown that fish generally take longer to pass a dam on a second attempt after fallback compared to the first (Bjornn et al., 1999). Dams can also cause direct injury to downstream migrating

    Atlantic salmon smolts, which can be a result of pressure changes during turbine entrainment or direct contact with the turbines (Cada, 2000). Dams are known to typically injure or kill between 10 and 30 percent of all fish entrained at turbines (EPRI, 1992). With rivers containing multiple hydropower dams, these cumulative losses could compromise entire year classes of Atlantic salmon.

    With at least 116 dams in the Penobscot watershed (FERC, 1997), 18 of which currently generate electricity; 73 dams in the Kennebec watershed, 26 of which are licensed hydropower facilities and storage dams (MSPO, 1993); and 85 dams in the Androscoggin watershed, 45 of which are hydroelectric facilities, there are very few areas remaining that are free of dams. In fact, of the six stocks of Atlantic salmon that make up the genetic line of the Atlantic salmon conservation hatchery program, five of those stocks come from rivers that currently do not have hydroelectric dams, and four of those stocks originate from rivers where their mainstems below the headwaters are free of dams. The areas that are currently free of dams provide the best opportunity for maintaining the existing genetic line of Atlantic salmon, and rebuilding the Atlantic salmon population either through recolonization that occurs naturally through straying or through managed stocking programs.

    We propose to exclude three particular areas (HUC 10s) in the

    Penobscot Bay SHRU due to economic impact, out of a total of 48 occupied HUC 10s within the range of the GOM DPS. Areas excluded from critical habitat for reasons of economics include approximately 1,198 km of river, stream, and estuary habitat and 99 sq km of lakes in all of Belfast Bay (HUC 105000218), Passadumkeag River (HUC 102000503), and

    Molunkus Stream (HUC 102000306). The combined economic impact of the designation in those particular areas was estimated to be $11,600,000 to $12,600,000 before they were considered for exclusion. The estimated economic impact for critical habitat following exclusions ranges from

    Page 29330

    approximately $117 million to $140 million. The estimated economic impacts of designating critical habitat for each SHRU are in Table 3.

    Table 3--Summary of Economic Impact Following Exclusions for Occupied

    HUC 10 by SHRU in the GOM DPS

    SHRU

    Low estimate

    High estimate

    Downeast Coastal..................

    $9,710,000

    $12,700,000

    Penobscot Bay.....................

    23,800,000

    28,700,000

    Merrymeeting Bay..................

    83,400,000

    98,100,000

    Total.........................

    116,910,000.00

    139,500,000.00

    National Security and Other Relevant Impacts in Relation to Military

    Interests

    Section 4(b)(2) of the ESA states that the Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such areas as critical habitat will result in the extinction of the species concerned (16 U.S.C. 1533(b)(2)). We are excluding the two sites with military missions without INRMPs from critical habitat designation under section 4(b)(2) of the ESA as the Secretary has determined that the benefits of exclusion of these areas outweigh the benefits of inclusion. NAS Brunswick OAC supports the naval aviation activities of NAS Brunswick, and the NCTAMS provides communications to the fleet in the Atlantic Ocean and the Mediterranean Sea. The consultations and project modifications required by designation of these areas as critical habitat would impact the military and national security missions of these facilities. In addition, upon the completion of the INRMPs, any final rule designating these areas as critical habitat would need to be revised to remove these areas from the designation in accordance with section 4(a)(3)(B)(i) of the ESA. The

    Navy has agreed to work cooperatively with NMFS in the development of these INRMPs to assure that the Navy's activities are reasonably protective of Atlantic salmon habitat (Letter to NMFS from the Office of the Chief of Navy Operations (Ser N4/8u156068), December 2, 2008).

    Before including areas in a designation, section 4(b)(2) of the ESA requires the Secretary to consider the impact on national security of designation of any particular area as critical habitat. Bath Iron Works

    (BIW) located in Bath, Maine has also been excluded from designation for reasons of national security as advised by the Navy. The Secretary has concluded that the benefits of exclusion of these areas outweigh the benefits of inclusion as critical habitat. BIW is a premier ship- building facility that provides the design, building, and support of complex navy warships, including the AEGIS Class Destroyers. BIW has been building and servicing the U.S. warships for over 120 years, and their activities are essential to the military mission for the construction, maintenance, and modernization of Navy surface ships.

    These activities have been identified by the Navy as inherent to national security, whereby, without BIW's ability to construct and test current and future classes of surface ships, mission readiness and U.S. national security is at risk. The consultations and project modifications required by designation of these areas as critical habitat would impact the military and national security functions of these facilities. The areas excluded from designation include the

    Kennebec River from the south side of the U.S. Route 1 bridge over the

    Kennebec River down river to 50 feet below the south side of BIWs dry dock, but does not include any portion of Hanson Bay or the thoroughfare between Hanson Bay and the Kennebec River. The specific area excluded from designation lies within a box between four points with the following coordinates: Point 1: N43 54'39.8'', W069 48'43.5'';

    Point 2: N43 54'40'', W069 48'17.8''; Point 3: N43 54'0.0'', W069 48'47; Point 4: N43 54'0.0'', W069 48'28''.

    Other Relevant Impacts: Tribal Lands

    The Penobscot Indian Nation and the Passamaquoddy Tribe own and conduct activities on lands within the range of the GOM DPS. Activities may include agriculture; residential, commercial, or industrial development; in-stream construction projects; silviculture; water quality monitoring; hunting and fishing; and other uses. Some of these activities may be affected by the designation of critical habitat for the GOM DPS of Atlantic salmon.

    Secretarial Order 3206 recognizes that Tribes have governmental authority and the desire to protect and manage their resources in the manner that is most beneficial to them. Pursuant to the Secretarial

    Order, and consistent with the Federal government's trust responsibilities, the Services must consult with the affected Indian

    Tribes when considering the designation of critical habitat in areas that may impact tribal trust resources, tribally-owned fee lands, or the exercise of tribal rights. Critical habitat in such areas, unless determined to be essential to conserve a species, may not be designated.

    The Indian lands specifically excluded are those defined in

    Secretarial Order 3206 and include: (1) Lands held in trust by the

    United States for the benefit of any Indian tribe; (2) lands held in trust by the United States for any Indian Tribe or individual subject to restrictions by the United States against alienation; (3) fee lands, either within or outside the reservation boundaries, owned by the tribal government; and, 4) fee lands within the reservation boundaries owned by individual Indians. Not excluded from designation are tribal lands held by the Penobscot Tribe which specifically requested that their land not be excluded from designation emphasizing the importance of their lands as critical habitat for Atlantic salmon.

    The Penobscot Indian Nation and the Passamaquoddy Tribe own and conduct activities on approximately 182,000 acres (736.5 sq km) of land throughout the Penobscot, Androscoggin, Kennebec, and Downeast Coastal

    Basins. Both tribes that own lands within the GOM DPS have actively pursued or participated in activities to further promote the health and continued existence of Atlantic salmon and their habitats. The

    Penobscot tribe has developed and maintained its own water quality standards that state ``it is the official policy of the Penobscot

    Nation that all waters of the Tribe shall be of sufficient quality to support the ancient and historical traditional and

    Page 29331

    customary uses of such tribal waters by members of the Penobscot

    Nation.'' The Tribe is also currently participating in the Penobscot

    River Restoration Project that has the intended goal of restoring 11 species of diadromous fish, including Atlantic salmon. The

    Passamaquoddy Tribe has continued to maintain efforts to balance agricultural practices with natural resources. In a tract of Tribal land in Township 19, which accounts for approximately 12 km of the 27.8 km of rivers and streams on Passamaquoddy land that contain physical and biological features essential to salmon, the Tribe has established an ordinance to govern its water withdrawals for these lands. This ordinance states ``it is important to the Tribe that its water withdrawals at T. 19 do not adversely affect the Atlantic salmon in any of its life stages, or its habitat,'' and restricts water withdrawals to avoid adverse impact on the Atlantic salmon.

    Within the occupied range designated as critical habitat, the

    Tribes own approximately 65,000 acres (263 sq km) of land within 16 HUC 10 watersheds. NMFS has determined that the rivers, streams, lakes, and estuaries of 9,571 acres (38.7 sq km) of tribal land within the areas occupied by the GOM DPS be excluded from critical habitat designation based on the principles of the Secretarial Order discussed above. Per request of the Penobscot Nation, 55,180 acres (223 sq km) of the

    Penobscot Nation lands are included as critical habitat.

    Determine Whether Exclusion Will Result in Extinction of the Species

    Section 4(b)(2) states that particular areas shall not be excluded from critical habitat if the exclusion will result in extinction of the species. Our decision to only propose for exclusion particular areas based on economic impacts that had low biological value, unless dams were absent from the particular area, led to exclusions only in the

    Penobscot SHRU. No economic exclusions are in the Downeast Coastal or

    Merrymeeting Bay SHRUs. Given that exclusions based on economic impacts within the Penobscot SHRU were only made in areas considered to have little biological value to Atlantic salmon, those exclusions are not considered to jeopardize the species' continued existence because those areas do not diminish the functional habitat unit below what is needed to support a recovered GOM DPS.

    Even though 156 units of habitat on tribal and military lands in the Downeast Coastal SHRU are being excluded from critical habitat, we do not believe that exclusions of these lands will reduce the conservation value of Atlantic salmon habitat. We do not believe that exclusion of Passamaquoddy tribal lands, including their lands in the

    Downeast Coastal SHRU, will reduce the conservation value or functional habitat unit of Atlantic salmon habitat within those particular areas, given the ongoing cooperative efforts between the Tribe and the agencies. We do not believe that excluding the two military installations that contain critical habitat in the Downeast Coastal

    SHRU from the critical habitat designation is likely to result in the extinction of the species.

  14. Effects of Critical Habitat Designation

    ESA Section 7 Consultation

    The cost of specifying any particular area as critical habitat occurs primarily through section 7 of the ESA. Once critical habitat is designated, section 7(a)(2) requires that Federal agencies ensure any action they authorize, fund or carry out (this action is called the

    ``Federal nexus'') is not likely to result in the destruction or adverse modification of critical habitat (16 U.S.C. 1536(a)(2)).

    Parties involved in section 7 consultations include NMFS or the USFWS, a Federal action agency, and in some cases, a private entity involved in the project or land use activity. The Federal action agency serves as the liaison with NMFS. Under Section 7(a)(2), when a Federal agency proposes an action that may affect a listed species or its critical habitat, then they must initiate formal consultation with NMFS (or the

    USFWS, as applicable) or seek written concurrence from the Services that the action is not likely to adversely affect listed species or its designated critical habitat. Formal consultation is a process between the Services and a Federal agency designed to determine whether a proposed Federal action is likely to jeopardize the continued existence of a species or destroy or adversely modify critical habitat, an action prohibited by the ESA. If the action is likely to destroy or adversely modify critical habitat, then the Federal agency may be required to implement a reasonable and prudent alternative (RPA) to the proposed action to avoid the destruction or adverse modification of critical habitat. Harm avoidance measures may also be implemented to avoid lesser adverse effects to critical habitat that may not rise to the level of adverse modification. Outside of the Federal agencies' obligation to consult with respect to actions that may affect critical habitat and adopt project modifications to avoid destruction or adverse modification, the ESA imposes no requirements or limitations on entities or individuals as result of a critical habitat designation.

    The benefits of designation used for the proposed critical habitat designation for the GOM DPS are the biological values assigned to each

    HUC 10 that evaluate the quality and quantity of the physical and biological features within each HUC 10 and the current potential of each HUC 10 to support (absent dams) the spawning, rearing, and migration of the GOM DPS (NMFS, 2009a).

    Activities That May Be Affected (Section 4(b)(8))

    Section 4(b)(8) of the ESA requires that we describe briefly and evaluate in any proposed or final regulation to designate critical habitat, those activities that may destroy or adversely modify such habitat or that may be affected by such designation. A wide variety of activities may affect critical habitat and, when carried out, funded, or authorized by a Federal agency, will require an ESA section 7 consultation. Such activities (detailed in IEc, 2009a) include, but are not limited to agriculture, transportation, development and hydropower.

    We believe this critical habitat designation will provide Federal agencies, private entities, and the public with clear notification of critical habitat for Atlantic salmon and the boundaries of such habitat. This designation will allow Federal agencies and others to evaluate the potential effects of their activities on critical habitat to determine if ESA section 7 consultation with NMFS is needed given the specific definition of physical and biological features.

  15. Classification

    Regulatory Planning and Review

    This final rule has been determined to be significant for purposes of Executive Order (E.O.) 12866. We have integrated the regulatory principles of the E.O. into the development of this final rule to the extent consistent with the mandatory duty to designate critical habitat, as defined in the ESA.

    Coastal Zone Management Act (15 U.S.C. 1451 et seq.) We have determined that this action is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of the State of Maine. The determination has been submitted for review by the responsible State agency under section 307 of the Coastal Zone Management Act (16 U.S.C. 1451 et seq.).

    Page 29332

    Regulatory Flexibility Act (U.S.C. 601 et seq.)

    We prepared a final regulatory flexibility analysis (FRFA) pursuant to section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) (IEc, 2009b). This FRFA only analyzes the impacts to those areas where critical habitat is designated and is available at the location identified in the ADDRESSES section. The FRFA is summarized below, as required by section 603 of the RFA. The FRFA describes the economic impact this final rule would have on small entities. A description of the action, why it is being considered, and the objectives of and legal basis for this action are contained in the preamble of this rule and are not repeated here. A summary of the FRFA follows:

    After reviewing the land use activities evaluated in the economic analysis conducted for this action, the types of small entities that may be impacted include those entities involved in hydropower, agriculture, and development activities. The total number of affected small entities includes up to 11 dam owners and 62 farms. There are an unknown number of small entities involved in development projects.

    Because impacts are calculated on a per acre basis and not for specific projects, it is not possible to identify specific landowners.

    This action does not contain any new collection-of-information, reporting, recordkeeping, or other compliance requirements beyond the potential economic impacts described below and any reporting requirements associated with reporting on the progress and success of implementing project modifications, which do not require special skills to satisfy. Third party applicants or permittees may also incur costs associated with participating in the administrative process of consultation along with the permitting Federal agency.

    No Federal laws or regulations duplicate or conflict with the final rule. Existing Federal laws and regulations overlap with the final rule only to the extent that they provide protection to marine natural resources generally. However, no existing laws or regulations specifically prohibit destruction or adverse modification of critical habitat for, and focus on the recovery of, Atlantic salmon.

    In conducting the FRFA, we considered three regulatory alternatives and the impacts of these alternatives. Alternative 1 was designating the bankfull width of rivers and perennial streams throughout the 105-

    HUC 10 study area as critical habitat for Atlantic salmon. Only 48 of these HUCs, however, are currently occupied by the salmon and contain the physical and biological features essential to the conservation of the species. We determined that the 57 HUCs that are currently unoccupied are not essential to the conservation of the species.

    Accordingly, we rejected this alternative. Alternative 2 was to designate as critical habitat the bankfull width of rivers and perennial streams within the 48 occupied HUCs. We rejected this alternative because we determined that, in certain cases, the benefits of excluding particular areas outweigh the benefits of including them in the designation, and excluding these areas will not result in extinction of the species. Alternative 3 limits the designation of critical habitat to the bankfull width of rivers and perennial streams within 45 of the 48 occupied HUCs. This is the alternative that we have accepted and the alternative described in the FRFA.

    The FRFA estimates for alternative 3, that approximately 62 small farms (average annual receipts of less than $750,000) may be affected by critical habitat designation (IEc, 2009b). The average annual revenue of these farms was estimated at $74,000 (USDA, 2002). The estimated average losses per small farm are estimated at $6,300 (IEc, 2009b).

    Impacts to development are based on impacts to landowners associated with constraints on development within a 30-meter buffer of streams within the study area. The present value of impacts to all development projects is estimated at $94.6 million to $127 million.

    Section 3 of the Small Business Act defines small business as any firm that is independently owned and operated and is not dominant in its field of operation. The U.S. Small Business Administration (SBA) has developed size standards to carry out the purposes of the Small

    Business Act, and those size standards can be found in 13 CFR 121.201.

    Size standards are expressed either in number of employees or annual receipts in millions of dollars depending on the specific type of business. Because impacts to development projects are determined on a per acre basis and not by the specific type of development project, we were unable to determine who the specific affected landowners are. In some cases, some portion of these landowners are likely individuals and not businesses, and, therefore, not relevant to the small business analysis, while it is also likely that some of these landowners are businesses, including small businesses, that may be impacted by constraints.

    Land developers and subdividers are one type of small business that may be affected by constraints stemming from the final critical habitat designation (IEc, 2009b). The available data suggest that 188 small land developers operate in counties that overlap the 45 HUCs containing critical habitat, accounting for 97 percent of the subdividers in the region (IEc, 2009b). The information available, however, is insufficient to estimate the impacts on these entities or to identify other potentially affected landowners (IEc, 2009b).

    Impacts to hydropower were estimated for small hydropower producers identified by the Small Business Administration as those producing less than four billion kilowatt-hours annually and are likely to experience impacts associated with the critical habitat designation. The FRFA analysis (IEc, 2009b) estimates 11 hydropower producers within the 45

    HUCs that contain critical habitat may be affected. The estimated annualized cost accrued by these dam owners is between $50 to $294,000

    (IEc, 2009b).

    Critical habitat designation may encourage landowners to develop

    Habitat Conservation Plans (HCPs). Under section 10 of the ESA, landowners seeking an incidental take permit must develop an HCP to counterbalance the potential harmful effects that an otherwise lawful activity may have on a species. The purpose of the habitat conservation planning process is to ensure that the effects of incidental take are adequately minimized and mitigated. Thus, HCPs are developed to ensure compliance with section 9 of the ESA and to meet the requirements of section 10 of the ESA. Neither the FRFA nor the Economic Analysis forecasts effects associated with the development of HCPs.

    Information Quality Act (IQA) (Section 515 of Pub. L. 106-554)

    The data and analyses supporting this designation have undergone a pre-dissemination review and have been determined to be in compliance with applicable information quality guidelines implementing the

    Information Quality Act (IQA) (Section 515 of Pub. L. 106-554).

    In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review pursuant to the

    IQA. The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by

    Page 29333

    the Federal government. The peer review requirements of the OMB

    Bulletin apply to influential or highly influential scientific information disseminated on or after June 16, 2005. To satisfy our requirements under the OMB Bulletin, we allowed a 90-day public comment period and held two public hearings (Brewer and Augusta, Maine) where we gave the public the opportunity to participate in the review of the proposed critical habitat rule and supporting documents. An independent peer review of the scientific information that supports the proposal to designate critical habitat for the GOM DPS of Atlantic salmon was conducted, and peer review comments were incorporated prior to dissemination of this rulemaking. Four independent peer reviewers were solicited to review the proposed critical habitat rule, though all declined the opportunity to review the document largely due to time constraints. A 4(b)(2) Report (NMFS, 2009) that supports the designation of critical habitat for the GOM DPS of Atlantic salmon was also peer reviewed pursuant to the requirements of the Bulletin and is available on our Web site ( see ADDRESSES).

    Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This final rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act. This final rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    National Environmental Policy Act

    An environmental analysis as provided for under the National

    Environmental Policy Act for critical habitat designations made pursuant to the ESA is not required. See Douglas County v. Babbitt, 48

    F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).

    Federalism

    In accordance with Executive Order 13132 ``Federalism,'' agencies are required to ensure meaningful and timely input from State and local officials in the development of regulatory policies that have federalism implications. In accordance with Department of Commerce policies, we requested information from, and coordinated development of, this critical habitat designation with appropriate State resource agencies in the State of Maine.

    Takings

    In accordance with E.O. 12630, this final rule does not have takings implications. A takings implication assessment is not required.

    The designation of critical habitat affects only Federal agency actions. This final rule will not increase or decrease the current restrictions on private property concerning take of Atlantic salmon.

    Critical habitat does not preclude the development of HCPs and issuance of incidental take permits, and, therefore, landowners within areas designated as critical habitat will continue to have the opportunity to use their property in ways consistent with the survival of endangered

    Atlantic salmon.

  16. References Cited

    A complete list of all references cited in this rule making can be found on our Web site at http://www.nero.noaa.gov/prot_res/altsalmon/, and is available upon request from the NMFS Northeast Regional Office in Gloucester, Massachusetts (see ADDRESSES).

    List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: June 12, 2009.

    James W. Balsiger,

    Acting Assistant Administrator for Fisheries, National Marine Fisheries

    Service. 0

    For the reasons set out in the preamble, 50 CFR part 226 is amended as set forth below:

    PART 226--DESIGNATED CRITICAL HABITAT (AMENDED) 0 1. The authority citation for part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533. 0 2. Add Sec. 226.217 to read as follows:

    Sec. 226.217 Critical habitat for the Gulf of Maine Distinct

    Population Segment of Atlantic Salmon (Salmo salar).

    Critical habitat is designated to include all perennial rivers, streams, and estuaries and lakes connected to the marine environment within the range of the Gulf of Maine Distinct Population Segment of

    Atlantic Salmon (GOM DPS), except for those particular areas within the range which are specifically excluded. Within the GOM DPS, the primary constituent elements (PCEs) for Atlantic salmon include sites for spawning and incubation, sites for juvenile rearing, and sites for migration. The essential physical and biological features of habitat are those features that allow Atlantic salmon to successfully use sites for spawning and rearing and sites for migration. These features include substrate of suitable size and quality; rivers and streams of adequate flow, depth, water temperature and water quality; rivers, streams, lakes and ponds with sufficient space and diverse, abundant food resources to support growth and survival; waterways that allow for free migration of both adult and juvenile Atlantic salmon; and diverse habitat and native fish communities in which salmon interact with while feeding, migrating, spawning, and resting.

    (a) The GOM DPS is divided into three salmon habitat recovery units

    (SHRUs) within the range of the GOM DPS: These are the Downeast Coastal

    SHRU, the Penobscot Bay SHRU, and the Merrymeeting Bay SHRU. Critical habitat is being considered only in specific areas currently occupied by the species. Critical habitat specific areas are identified by hydrological unit codes (HUC) and counties within the States of Maine.

    Hydrological units are those defined by the Department of Interior

    (DOI), U.S. Geological Survey (USGS) publication, ``Hydrologic Unit

    Maps'' Water Supply Paper (Seaber et al., 1994) and the following DOI,

    USGS 1:500,000 scale hydrologic unit map: State of Maine. These documents are incorporated by reference. The incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the USGS publication and the maps may be obtained from the USGS, Map Sales, Box 25286, Denver,

    CO 80225. Copies may be inspected at NMFS, Protected Resources

    Division, Office of Protected Resources, 1315 East-West Highway, Silver

    Spring, MD 20910, or at the National Archives and Records

    Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/

    Federal_register/code_of_Federal_regulations/ibr_locations.html.

    (b) Critical habitat is designated in the Maine counties and towns for the three SHRUs described in paragraphs (b)(1) and (2) of this section. The textual descriptions of critical habitat for each SHRU are included in paragraphs (b)(3) through (6) of this section, and these descriptions are the definitive source for determining the critical habitat boundaries. A general location map (Figure 1) is provided at the end of paragraph (b)(2) and is for general guidance purposes only, and not as a definitive source for determining critical habitat boundaries.

    Page 29334

    (1) Maine counties and towns affected. Critical habitat is designated for the following SHRUs in the following counties and towns.

    (i) Counties and towns partially or entirely within areas containing critical habitat in the Downeast Coastal SHRU:

    Sub-basin

    County

    Town

    Coastal Washington Hancock.............. Penobscot.................. Clifton, Eddington, Grand Falls Twp,

    Greenfield Twp, Summit Twp.

    Hancock.................... Waltham, Bucksport, Dedham, Eastbrook,

    Ellsworth, Fletchers Landing Twp,

    Franklin, Great Pond, Hancock, Lamoine,

    Mariaville, Oqiton Twp, Orland, Osborn,

    Trenton Otis, Sullivan, Surry, T10 SD,

    T16 MD, T22 MD, T28 MD, T32 MD, T34 MD,

    T35 MD, T39 MD, T40 MD, T41 MD, T7 SD,

    T9 SD.

    Washington................. Addison, Alexander, Baileyville, Baring

    Plt, Beddington, Centerville Twp,

    Charlotte, Cherryfield, Columbia,

    Columbia Falls, Cooper, Crawford,

    Cutler, Deblois, Dennysville, Devereaux

    Twp, East Machias, Edmunds Twp,

    Harrington, Jonesboro, Jonesport, Lubec,

    Machias, Machiasport, Marion Twp,

    Marshfield, Meddybemps, Milbridge, No 14

    Twp, No 21 Twp, Northfield, Princeton,

    Roque Bluffs, Sakom Twp, Steuben,

    Trescott Twp, Whiting, Whitneyville,

    Wesley T18 ED BPP, T18 MD BPP, T19 ED

    BPP, T19 MD BPP, T24 MD BPP, T25 MD BPP,

    T26 ED BPP, T27 ED BPP, T30 MD BPP, T31

    MD BPP, T36 MD BPP, T37 MD BPP, T42 MD

    BPP, T43 MD BPP.

    (ii) Counties and towns partially or entirely within areas containing critical habitat in the Penobscot Bay SHRU:

    Sub-basin

    County

    Town

    Piscataquis................... Penobscot........ T4 Indian Purchase

    Twp, Long A Twp,

    Seboeis Plt,

    Mattamiscontis Twp,

    Maxfield, Lagrange,

    Charleston, Howland,

    T3 R9 NWP, Edinburg,

    Hopkins Academy

    Grant Twp, Garland.

    Piscataquis...... Shawtown Twp, TA R11

    WELS, TA R10 WELS,

    TB R10 WELS,

    Greenville, T7 R9

    NWP, Bowdoin College

    Grant West Twp, T4

    R9 NWP, Ebeemee Twp,

    Moosehead Junction

    Twp, Lake View Plt,

    Brownville, Milo,

    Blanchard Twp,

    Sebec, Dover-

    Foxcroft, Abbot,

    Kingsbury Plt,

    Parkman, Wellington,

    Frenchtown Twp,

    Medford,

    Sangerville, TB R11

    WELS, Katahdin Iron

    Works Twp,

    Elliottsville Twp,

    Shirley, Guilford,

    Atkinson, Beaver

    Cove, Williamsburg

    Twp, Bowdoin College

    Grant East Twp,

    Barnard Twp, Monson,

    Orneville Twp.

    Somerset......... Squaretown Twp,

    Mayfield Twp,

    Brighton Plt, East

    Moxie Twp, Bald

    Mountain Twp T2 R3.

    East Branch................... Aroostook........ Moro Plt, T7 R5 WELS.

    Penobscot........ Mount Chase, East

    Millinocket,

    Grindstone Twp,

    Herseytown Twp,

    Medway, Patten,

    Soldiertown Twp T2

    R7 WELS, Stacyville,

    T1 R6 WELS, T2 R8

    WELS, T3 R7 WELS, T3

    R8 WELS, T4 R7 WELS,

    T4 R8 WELS, T5 R7

    WELS, T5 R8 WELS, T6

    R6 WELS, T6 R7 WELS,

    T6 R8 WELS, T7 R6

    WELS, T7 R7 WELS, T7

    R8 WELS, T8 R6 WELS,

    T8 R7 WELS, T8 R8

    WELS.

    Piscataquis...... Mount Katahdin Twp,

    Nesourdnahunk Twp,

    Trout Brook Twp, T3

    R10 WELS, T4 R10

    WELS, T4 R9 WELS, T5

    R11 WELS, T5 R9

    WELS, T6 R10 WELS,

    T6 R11 WELS, T7 R10

    WELS, T7 R11 WELS,

    T7 R12 WELS, T7 R9

    WELS.

    Mattawamkeag.................. Aroostook........ Amity, Bancroft,

    Benedicta Twp,

    Crystal, Dudley Twp,

    Dyer Brook,

    Forkstown Twp, Moro

    Plt, North Yarmouth

    Academy Grant Twp,

    Oakfield, Orient,

    Reed Plt, Sherman,

    Silver Ridge Twp,

    Smyrna, Upper

    Molunkus Twp,

    Webbertown Twp,

    Weston, T1 R5 WELS,

    T2 R4 WELS, T3 R3

    WELS, T3 R4 WELS, T4

    R3 WELS, T7 R5 WELS,

    TA R2 WELS.

    Penobscot........ Carroll Plt, Drew

    Plt, Herseytown Plt,

    Kingman Twp, Lee,

    Lincoln,

    Mattawamkeag, Mount

    Chase, Patten,

    Prentiss Twp T7 R3

    NBPP, Springfield,

    Stacyville, Webster

    Plt, Winn, T1 R6

    WELS, T4 R7 WELS, T6

    R6 WELS.

    Washington....... T8 R3 NBPP, T8 R4

    NBPP.

    Penobscot..................... Aroostook........ Benedicta TWP,

    Molunkus Twp,

    Sherman, T1 R5 WELS.

    Hancock.......... Amherst, Blue Hill,

    Bucksport, Castine,

    Dedham, Great Pond,

    Oqiton Twp, Orland,

    Penobscot, Surry,

    Verona Island, T3

    ND, T32 MD, T34 MD,

    T35 MD, T39 MD, T40

    MD, T41 MD.

    Page 29335

    Penobscot........ Alton, Argyle Twp,

    Bangor, Brewer,

    Burlington, Carmel,

    Charleston, Chester,

    Clifton, Corinna,

    Corinth, Dexter,

    Dixmont, Eddington,

    Edinburg, Enfield,

    Etna, Exeter,

    Garland, Glenburn,

    Grand Falls Twp,

    Hampden, Hermon,

    Herseytown Twp,

    Holden, Howland,

    Hudson, Indian

    Island, Kenduskeag,

    Lagrange, Lakeville,

    Lee, Levant,

    Lincoln, Lowell,

    Mattamiscontis Twp,

    Mattawamkeag,

    Maxfield, Medway,

    Milford, Newburgh,

    Newport, Old Town,

    Orono, Orrington,

    Passadumkeag,

    Plymouth, Seboeis

    Plt, Springfield,

    Stacyville, Stetson,

    Summit Twp, Veazie,

    Winn, Woodville T1

    R6 WELS, T2 R8 NWP,

    T2 R9 NWP, T3 R1

    NBPP, T3 R9 NWP, TA

    R7 WELS.

    Piscataquis...... Medford.

    Waldo............ Brooks, Frankfort,

    Jackson, Knox,

    Monroe, Montville,

    Prospect, Searsport,

    Stockton Springs,

    Swanville,

    Thorndike, Waldo,

    Winterport.

    Penobscot Bay................. Waldo............ Belfast, Belmont,

    Brooks, Frankfort,

    Knox, Lincolnville,

    Monroe, Montville,

    Morrill, Northport,

    Searsmont,

    Searsport,

    Swanville, Waldo.

    (iii) Counties and towns partially or entirely within areas containing critical habitat in the Merrymeeting Bay SHRU:

    Sub-basin

    County

    Town

    Lower Androscoggin............ Androscoggin..... Auburn, Durham,

    Greene, Leeds,

    Lewiston, Lisbon,

    Sabattus, Wales.

    Cumberland....... Brunswick, Freeport.

    Kennebec......... Litchfield, Monmouth

    Sagadahoc........ Bath, Bowdoin,

    Bowdoinham,

    Richmond, Topsham.

    Merrymeeting Bay.............. Androscoggin..... Livermore Falls.

    Franklin......... Avon, Carthage,

    Chesterville,

    Farmington, Freeman

    Twp, Industry, Jay,

    Madrid Twp, Mount

    Abram Twp, New

    Sharon, New

    Vineyard, Perkins

    TWP, Phillips,

    Redington Twp, Salem

    Twp, Sandy River

    Plt, Strong, Temple,

    Township 6 North of

    Weld, Township E,

    Washington Twp,

    Weld, Wilton.

    Kennebec......... Augusta, Benton,

    Chelsea, China,

    Clinton,

    Farmingdale,

    Fayette, Gardiner,

    Hallowell,

    Manchester, Oakland,

    Pittston, Randolph,

    Rome, Sidney,

    Vassalboro, Vienna,

    Waterville, West

    Gardiner, Windsor,

    Winslow.

    Lincoln.......... Alna, Dresden,

    Whitefield,

    Wiscasset.

    Sagadahoc........ Bowdoinham, Perkins

    Twp Swan Island,

    Richmond, Woolwich.

    Somerset......... Anson, Athens,

    Bingham, Brighton

    Plt, Canaan,

    Cornville,

    Fairfield, Hartland,

    Madison, Mayfield

    Twp, Mercer,

    Norridgewock,

    Pittsfield,

    Skowhegan,

    Smithfield, Solon,

    Starks.

    Coastal Drainages East of

    Cumberland....... Brunswick.

    Small Point.

    Kennebec......... Albion, Pittston,

    Windsor.

    Knox............. Appleton, Camdem,

    Cushing, Friendship,

    Hope, Rockland,

    Rockport, Saint

    George, South

    Thomaston,

    Thomaston, Union,

    Warren, Washington.

    Lincoln.......... Alna, Boothbay,

    Boothbay Harbor,

    Bremen, Briston,

    Dresden, Edgecomb,

    Hibberts Gore,

    Jefferson,

    Newcastle,

    Nobleboro,

    Somerville,

    Southport,

    Waldoboro, Westport

    Island, Whitefield,

    Wiscasset.

    Sagadahoc........ Arrowsic, Bath,

    Bowdoinham,

    Georgetown,

    Phippsburg, West

    Bath, Woolwich.

    Waldo............ Belmont, Freedom,

    Liberty,

    Lincolnville,

    Montville, Morrill,

    Palermo, Searsmont.

    (2) Critical habitat boundaries. Critical habitat includes the stream channels within the designated stream reaches, and includes a lateral extent as defined by the ordinary high-water line (33 CFR 329.11). In areas where the ordinary high-water line has not been defined, the lateral extent will be defined by the bankfull elevation.

    Bankfull elevation is the level at which water begins to leave the channel and move into the floodplain and is reached at a discharge which generally has a recurrence interval of 1 to 2 years on an annual flood series. Critical habitat in estuaries is defined by the perimeter of the water body as displayed on standard 1:24,000 scale topographic maps or the elevation of extreme high water, whichever is greater.

    BILLING CODE 2510-22-P

    Page 29336

    GRAPHIC

    TIFF OMITTED TR19JN09.001

    (i) HUC 10 watersheds in the Penobscot Bay SHRU analyzed for critical habitat, those that meet the criteria for critical habitat, and those excluded under ESA section 4(b)(2):

    Page 29337

    Economic (E),

    Military (M),

    Penobscot Bay SHRU

    HUC 10 code

    HUC 10 name

    Status

    or Tribal (T) exclusions

    1.....................

    0102000101 North Branch Penobscot River. 2.....................

    0102000102 Seeboomook Lake.............. 3.....................

    0102000103 WEST Branch Penobscot River at Chesuncook Lake. 4.....................

    0102000104 Caucomgomok Lake............. 5.....................

    0102000105 Chesuncook Lake.............. 6.....................

    0102000106 Nesowadnehunk Stream......... 7.....................

    0102000107 Nahamakanta Stream........... 8.....................

    0102000108 Jo-Mary Lake................. 9.....................

    0102000109 West Branch Penobscot River

    (3). 10....................

    0102000110 West Branch Penobscot River

    (4). 11....................

    0102000201 Webster Brook................ 12....................

    0102000202 Grand Lake Matagamon......... Critical Habitat........ 13....................

    0102000203 East Branch Penobscot River

    Critical Habitat........

    (2). 14....................

    0102000204 Seboeis River................ Critical Habitat........ 15....................

    0102000205 East Branch Penobscot River

    Critical Habitat........

    (3). 16....................

    0102000301 West Branch Mattawamkeag

    Critical Habitat........

    River. 17....................

    0102000302 East Branch Mattawamkeag

    Critical Habitat........

    River. 18....................

    0102000303 Mattawamkeag River (1)....... Critical Habitat........ 19....................

    0102000304 Baskahegan Stream............ 20....................

    0102000305 Mattawamkeag River (2)....... Critical Habitat........ 21....................

    0102000306 Molunkus Stream.............. Critical Habitat........

    E 22....................

    0102000307 Mattawamkeag River (3)....... Critical Habitat........ 23....................

    0102000401 Piscataquis River (1)........ Critical Habitat........ 24....................

    0102000402 Piscataquis River (3)........ Critical Habitat........ 25....................

    0102000403 Sebec River.................. 26....................

    0102000404 Pleasant River............... Critical Habitat........ 27....................

    0102000405 Seboeis Stream............... Critical Habitat........

    T 28....................

    0102000406 Piscataquis River (4)........ Critical Habitat........ 29....................

    0102000501 Penobscot River (1) at

    Critical Habitat........

    Mattawamkeag. 30....................

    0102000502 Penobscot River (2) at West

    Critical Habitat........

    T

    Enfield. 31....................

    0102000503 Passadumkeag River........... Critical Habitat........

    E 32....................

    0102000505 Sunkhaze Stream.............. Critical Habitat........ 33....................

    0102000506 Penobscot River (3) at Orson Critical Habitat........

    Island. 34....................

    0102000507 Birch Stream................. Critical Habitat........ 35....................

    0102000508 Pushaw Stream................ 36....................

    0102000509 Penobscot River (4) at Veazie Critical Habitat........

    Dam. 37....................

    0102000510 Kenduskeag Stream............ Critical Habitat........ 38....................

    0102000511 Souadabscook Stream.......... Critical Habitat........ 39....................

    0102000512 Marsh River.................. Critical Habitat........ 40....................

    0102000513 Penobscot River (6).......... Critical Habitat........ 92....................

    0105000216 Bagaduce River............... 93....................

    0105000217 Stonington Coastal........... 94....................

    0105000218 Belfast Bay.................. Critical Habitat........ 105...................

    0105000219 Ducktrap River............... Critical Habitat........ 103...................

    0102000504 Olamon Stream................ 95....................

    0105000220 West Penobscot Bay Coastal...

    (ii) HUC 10 watersheds in the Merrymeeting Bay SHRU analyzed for critical habitat, those that meet the criteria for critical habitat, and those excluded under ESA section 4(b)(2):

    Military (M)

    Merrymeeting Bay SHRU

    HUC 10 code

    HUC 10 name

    Status

    exclusions

    41....................

    0103000101 South Branch Moose River..... 42....................

    0103000102 Moose River (2) above Attean

    Pond. 43....................

    0103000103 Moose River (3) at Long Pond. 44....................

    0103000104 Brassua Lake................. 45....................

    0103000105 Moosehead Lake............... 46....................

    0103000106 Kennebec River (2) above The

    Forks. 47....................

    0103000201 North Branch Dead River...... 48....................

    0103000202 South Branch Dead River...... 49....................

    0103000203 Flagstaff Lake............... 50....................

    0103000204 Dead River................... 51....................

    0103000301 Kennebec River (4) at Wyman

    Dam. 52....................

    0103000302 Austin Stream................ 53....................

    0103000303 Kennebec River (6)........... 54....................

    0103000304 Carrabassett River........... 55....................

    0103000305 Sandy River.................. Critical Habitat........

    M

    Page 29338

    56....................

    0103000306 Kennebec River at Waterville Critical Habitat........

    Dam. 57....................

    0103000307 Sebasticook River at

    Pittsfield. 58....................

    0103000308 Sebasticook River (3) at

    Burnham. 59....................

    0103000309 Sebasticook River (4) at

    Winslow. 60....................

    0103000310 Messalonskee Stream.......... 61....................

    0103000311 Cobbosseecontee Stream....... 62....................

    0103000312 Kennebec River at

    Critical Habitat........

    Merrymeeting Bay. 63....................

    0104000101 Mooselookmeguntic Lake....... 64....................

    0104000102 Umbagog Lake Drainage........ 65....................

    0104000103 Aziscohos Lake Drainage...... 66....................

    0104000104 Magalloway River............. 67....................

    0104000105 Clear Stream................. 68....................

    0104000106 Middle Androscoggin River.... 69....................

    0104000201 Gorham-Shelburne Tributaries. 70....................

    0104000202 Androscoggin River (2) at

    Rumford Point. 71....................

    0104000203 Ellis River.................. 72....................

    0104000204 Ellis River.................. 73....................

    0104000205 Androscoggin River (3) above

    Webb River. 74....................

    0104000206 Androscoggin River (4) at

    Riley Dam. 75....................

    0104000207 Androscoggin River (5) at

    Nezinscot River. 76....................

    0104000208 Nezinscot River.............. 77....................

    0104000209 Androscoggin River (6) above

    Little Androscoggin River. 78....................

    0104000210 Little Androscoggin River.... Critical Habitat........

    M 96....................

    0105000301 St. George River............. Critical Habitat........ 97....................

    0105000302 Medomak River................ Critical Habitat........ 98....................

    0105000303 Johns Bay.................... 99....................

    0105000304 Damariscotta River........... 100...................

    0105000305 Sheepscot River.............. Critical Habitat........ 101...................

    0105000306 Sheepscot Bay................ Critical Habitat........ 102...................

    0105000307 Kennebec River Estuary....... Critical Habitat........

    M

    (iii) HUC 10 watersheds in the Downeast Coastal SHRU analyzed for critical habitat, and those that meet the criteria for critical habitat, and those excluded under ESA section 4(b)(2):

    Tribal (T)

    Downeast SHRU

    HUC 10 code

    HUC 10 name

    Status

    exclusions

    79....................

    0105000201 Dennys River................. Critical Habitat........ 80....................

    0105000203 Grand Manan Channel.......... Critical Habitat........ 81....................

    0105000204 East Machias River........... Critical Habitat........

    T 82....................

    0105000205 Machias River................ Critical Habitat........ 83....................

    0105000206 Roque Bluffs Coastal......... Critical Habitat........ 84....................

    0105000208 Pleasant River............... Critical Habitat........ 85....................

    0105000209 Narraguagus River............ Critical Habitat........ 86....................

    0105000210 Tunk Stream.................. Critical Habitat........ 87....................

    0105000211 Bois Bubert Coasta........... 88....................

    0105000212 Graham Lake.................. Critical Habitat........ 89....................

    0105000213 Union River Bay.............. Critical Habitat........ 90....................

    0105000214 Lamoine Coastal.............. 91....................

    0105000215 Mt. Desert Coastal........... 104...................

    0105000207 Chandler River............... Critical Habitat........

    (3) Primary constituent elements. Within the GOM DPS, the primary constituent elements (PCEs) for the conservation of Atlantic salmon include sites for spawning and incubation, sites for juvenile rearing, and sites for migration. The physical and biological features of the habitat that are essential to the conservation of Atlantic salmon are those features that allow Atlantic salmon to successfully use sites for spawning and rearing and sites for migration. These features include:

    (i) Deep, oxygenated pools and cover (e.g., boulders, woody debris, vegetation, etc.), near freshwater spawning sites, necessary to support adult migrants during the summer while they await spawning in the fall;

    (ii) Freshwater spawning sites that contain clean, permeable gravel and cobble substrate with oxygenated water and cool water temperatures to support spawning activity, egg incubation and larval development;

    (iii) Freshwater spawning and rearing sites with clean gravel in the presence of cool, oxygenated water and diverse substrate to support emergence, territorial development, and feeding activities of Atlantic salmon fry;

    (iv) Freshwater rearing sites with space to accommodate growth and survival of Atlantic salmon parr, and population densities needed to support sustainable populations;

    (v) Freshwater rearing sites with a combination of river, stream, and lake habitats, that accommodate parr's ability to occupy many niches and to maximize parr production;

    Page 29339

    (vi) Freshwater rearing sites with cool, oxygenated water to support growth and survival of Atlantic salmon parr;

    (vii) Freshwater rearing sites with diverse food resources to support growth and survival of Atlantic salmon parr;

    (viii) Freshwater and estuary migratory sites free from physical and biological barriers that delay or prevent access to spawning grounds needed to support a recovered population;

    (ix) Freshwater and estuary migration sites with abundant, diverse native fish communities to serve as a protective buffer against predation;

    (x) Freshwater and estuary migration sites free from physical and biological barriers that delay or prevent emigration of smolts to the marine environment;

    (xi) Freshwater and estuary migration sites with sufficiently cool water temperatures and water flows that coincide with diurnal cues to stimulate smolt migration;

    (xii) Freshwater migration sites with water chemistry needed to support sea water adaptation of smolts; and

    (xiii) Freshwater and marine sites with diverse, abundant assemblages of native fish communities to enhance survivorship as

    Atlantic salmon smolts emigrating through the estuary.

    (4) Exclusion of Indian lands. Critical habitat does not include occupied habitat areas on Passamaquoddy Tribal Indian lands within the range of the GOM DPS. Critical habitat does include occupied habitat on

    Penobscot Tribal lands within the range of the GOM DPS. The Indian lands specifically excluded from critical habitat are those defined in the Secretarial Order 3206, including:

    (i) Lands held in trust by the United States for the benefit of any

    Indian Tribe;

    (ii) Lands held in trust by the United States for the benefit of any Indian Tribe or individual subject to restrictions by the United

    States against alienation;

    (iii) Fee lands, either within or outside the reservation boundaries, owned by the tribal government; and

    (iv) Fee lands within the reservation boundaries owned by individual Indians. We have determined that the rivers, streams, lakes, and estuaries of 9,571 acres (38.7 sq km) of tribal land within the areas occupied by the GOM DPS are excluded from critical habitat designation based on the principles of the Secretarial Order discussed above. Per request of the Penobscot Nation, 55,180 acres (223 sq km) of the Penobscot Nation lands are included as critical habitat.

    (5) Areas that do not meet the definition of critical habitat under section 4(a)(3)(B)(i). Critical habitat does not include the following areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a). These areas that are not included are:

    (i) The 435 acres (1.8 sq km) of the Brunswick Naval Air Station in

    Brunswick Maine within the Little Androscoggin HUC 10 watershed in the

    Merrymeeting Bay SHRU; and

    (ii) The 5,328 acres (21.5 sq km) of the Brunswick Naval Air

    Stations cold weather survival, evasion, resistance, and escape school within the Sandy River HUC 10 watershed in the Merrymeeting Bay SHRU.

    (6) Areas excluded under ESA Section 4(b)(2). (i) The 396 acres

    (1.6 sq km) of the Great Pond Outdoor Adventure Center in the Graham

    Lake HUC 10 watershed in the Downeast Coastal SHRU;

    (ii) The 3,000 acres (12.1 sq km) of the Naval Computer and

    Telecommunications Area Master Station Atlantic Detachment in the

    Roques Bluffs Coastal HUC 10 in the Downeast Coastal SHRU;

    (iii) The Bath Iron Works ship building facility that provides the design, building, and support of complex Navy warships, including AEGIS

    Class Destroyers. The excluded area extends from U.S. Route 1 bridge over the Kennebec River down river to 50 feet below the south side of

    BIWs dry dock, but does not include any portion of Hanson Bay or the thoroughfare between Hanson Bay and the Kennebec River. The specific area excluded from designation lies within a box between four points with the following coordinates: Point 1: N43 54'39.8'', W069 48'43.5'';

    Point 2: N43 54'40'', W069 48'17.8''; Point 3: N43 54'0.0'', W069 48'47''; Point 4: N43 54'0.0'', W069 48'28'';

    (iv) The Belfast Bay HUC 10 Watershed (HUC 105000218);

    (v) The Passadumkeag River HUC 10 Watershed (HUC 102000503); and

    (vi) The Molunkus Stream HUC 10 Watershed (HUC102000306).

    (7) Description of critical habitat. Critical habitat is designated to include the areas defined in the following hydrological units in the three SHRUs with the exception of those particular areas specifically identified:

    (i) Downeast Coastal SHRU. Critical habitat area (in sq km), areas excluded under ESA section 4(b)(2) (in sq km), and exclusion type, by

    HUC 10 watersheds:

    Critical habitat

    Excluded areas [type]*

    River,

    River,

    Sub-basin

    HUC 10 code

    HUC 10 watershed name

    stream and Lake (sq. stream and Lake (sq. estuary

    km)

    estuary

    km)

    (km)

    (km)

    Coastal Washington Hancock sub-basin............

    0105000201 Dennys River......................

    218

    45 0105000203 Grand Manan Channel...............

    641

    15.5 0105000204 East Machias River................

    575

    70

    16 [T]

    0.1 [T] 0105000205 Machias River.....................

    991

    58 0105000206 Roque Bluffs Coastal..............

    321

    .9

    13(M)

    .004(M) 0105000207 Chandler River....................

    154

    0.1 0105000208 Pleasant River....................

    325

    6.5 0105000209 Narraguagus River.................

    573

    15.5 0105000210 Tunk Stream.......................

    117

    14 0105000212 Graham Lake.......................

    974

    121

    2.3(M)

    .2(M) 0105000213 Union River Bay...................

    303

    18 0105000211 Bois Bubert Coastal............... 0105000214 Lamoine Coastal................... 0105000215 Mt. Desert Coastal................

    * Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal--considered unoccupied at the time of listing.

    Page 29340

    (ii) Penobscot Bay SHRU. Critical habitat area (in sq km), areas excluded under ESA section 4(b)(2) (in sq km), and exclusion type, by

    HUC 10 watersheds:

    Critical habitat

    Excluded Areas [Type]*

    River,

    River,

    Sub-basin

    HUC 10 code

    HUC 10 watershed name

    stream and Lake (sq. stream and Lake (sq. estuary

    km)

    estuary

    km)

    (km)

    (km)

    East Branch Penobscot sub-basin.................

    0102000202 Grand Lake Matagamon..............

    326

    30 0102000203 East Branch Penobscot River (2)...

    179

    3 0102000204 Seboeis River.....................

    418

    31 0102000205 East Branch Penobscot River (3)...

    588

    5 0102000201 Webster Brook.....................

    West Branch Penobscot sub-basin.................

    0102000101 North Branch Penobscot River...... 0102000102 Seeboomook Lake................... 0102000103 W. Br. Penobscot R. at Chesuncook. 0102000104 Caucomgomok Lake.................. 0102000105 Chesuncook Lake................... 0102000106 Nesowadnehunk Stream.............. 0102000107 Nahamakanta Stream................ 0102000108 Jo-Mary Lake...................... 0102000109 West Branch Penobscot River (3)... 0102000110 West Branch Penobscot River (4)...

    Mattawamkeag River sub-basin....................

    0102000301 West Branch Mattawamkeag River....

    657

    22 0102000302 East Branch Mattawamkeag River....

    315

    12 0102000303 Mattawamkeag River (1)............

    192

    0.5 0102000305 Mattawamkeag River (2)............

    451

    8 0102000307 Mattawamkeag River (3)............

    226

    3 0102000306 Molunkus Stream...................

    0

    0

    438 [E]

    11 [E] 0102000304 Baskahegan Stream.................

    Piscataquis River sub-basin.....................

    0102000401 Piscataquis River (1).............

    762

    15 0102000402 Piscataquis River (3).............

    382

    6 0102000404 Pleasant River....................

    828

    17 0102000405 Seboeis Stream....................

    312

    36

    8.2 [T]

    0.03 [T] 0102000406 Piscataquis River (4).............

    328

    30 0102000403 Sebec River.......................

    Penobscot River sub-basin.......................

    0102000501 Penobscot River (1) at

    292

    7

    Mattawamkeag. 0102000502 Penobscot River (2) at West

    551

    29

    3 [T]

    Enfield. 0102000503 Passadumkeag River................

    0

    0

    583 [E]

    79 [E] 0102000505 Sunkhaze Stream...................

    177

    0.5 0102000506 Penobscot River (3) at Orson

    211

    0.5

    Island. 0102000507 Birch Stream......................

    120

    1 0102000509 Penobscot River (4) at Veazie Dam.

    225

    10 0102000510 Kenduskeag Stream.................

    420

    1.5 0102000511 Souadabscook Stream...............

    341

    5.5 0102000512 Marsh River.......................

    319

    3 0102000513 Penobscot River (6)...............

    514

    29 0102000504 Olamon Stream..................... 0102000508 Pushaw Stream.....................

    Penobscot Bay sub-basin.........................

    0105000218 Belfast Bay....................... ........... ...........

    177 [E]

    9 [E] 0105000219 Ducktrap River....................

    76

    4 0105000216 Bagaduce River.................... 0105000217 Stonington Coastal................ 0105000220 West Penobscot Bay Coastal........

    * Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal--considered unoccupied at the time of listing.

    (iii) Merrymeeting Bay SHRU. Critical habitat area (in sq km), areas excluded under ESA section 4(b)(2) (in sq km), and exclusion type, by HUC 10 watershed:

    Page 29341

    Critical habitat

    Excluded areas [type] *

    River,

    River,

    Sub basin

    HUC 10 code

    HUC 10 watershed name

    stream and Lake (sq. stream and Lake (sq. estuary

    km)

    estuary

    km)

    (km)

    (km)

    Kennebec River above the Forks sub-basin........

    0103000101 South Branch Moose River.......... 0103000102 Moose River (2) above Attean Pond. 0103000103 Moose River (3) at Long Pond...... 0103000104 Brassua Lake...................... 0103000105 Moosehead Lake.................... 0103000106 Kennebec River (2) above The Forks

    Dead River sub-basin............................

    0103000201 North Branch Dead River........... 0103000202 South Branch Dead River........... 0103000203 Flagstaff Lake.................... 0103000204 Dead River........................

    Merrymeeting Bay sub-basin......................

    0103000305 Sandy River.......................

    1,215

    15.8

    12 [M]

    0.2 [M] 0103000306 Kennebec River at Waterville Dam..

    794

    14 0103000312 Kennebec River at Merrymeeting Bay

    621

    22 0103000310 Messalonskee Stream............... 0103000301 Kennebec River (4) at Wyman Dam... 0103000302 Austin Stream..................... 0103000303 Kennebec River (6)................ 0103000304 Carrabassett River................ 0103000307 Sebasticook River at Pittsfield... 0103000308 Sebasticook River (3) at Burnham.. 0103000309 Sebasticook River (4) at Winslow.. 0103000311 Cobbosseecontee Stream............

    Upper Androscoggin sub-basin....................

    0104000101 Mooselookmeguntic Lake............ 0104000102 Umbagog Lake Drainage............. 0104000103 Aziscohos Lake Drainage........... 0104000104 Magalloway River.................. 0104000105 Clear Stream...................... 0104000106 Middle Androscoggin River.........

    Lower Androscoggin sub-basin....................

    0104000210 Little Androscoggin River.........

    549

    10.5

    1 [M] 0104000201 Gorham-Shelburne Tributaries...... 0104000202 Androscoggin River at Rumford

    Point. 0104000203 Ellis River....................... 0104000204 Ellis River....................... 0104000205 Androscoggin River above Webb

    River. 0104000206 Androscoggin River at Riley Dam... 0104000207 Androscoggin River at Nezinscot

    River. 0104000208 Nezinscot River................... 0104000209 Androscoggin R. above L. Andro. R.

    Coastal Drainages East of Small Point sub-basin.

    0105000301 St. George River..................

    624

    32 0105000302 Medomak River.....................

    318

    6 0105000305 Sheepscot River...................

    553

    19 0105000306 Sheepscot Bay.....................

    220

    2 0105000307 Kennebec River Estuary............

    275

    3.5

    1 [M] 0105000303 Johns Bay......................... 0105000304 Damariscotta River................

    * Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal--considered unoccupied at the time of listing.

    FR Doc. E9-14268 Filed 6-18-09; 8:45 am

    BILLING CODE 2510-22-P