Endangered and Threatened Species; Designation of Critical Habitat for 12 Evolutionarily Significant Units of West Coast Salmon and Steelhead in Washington, Oregon, and Idaho, 52630-52858 [05-16391]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 70, Number 170 (Friday, September 2, 2005)]
[Rules and Regulations]
[Pages 52630-52858]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-16391]



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 226



Endangered and Threatened Species; Designation of Critical Habitat for 
12 Evolutionarily Significant Units of West Coast Salmon and Steelhead 
in Washington, Oregon, and Idaho; Final Rule

Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 030716175-5203-04; I.D. No. 070303A]
RIN 0648-AQ77


Endangered and Threatened Species; Designation of Critical 
Habitat for 12 Evolutionarily Significant Units of West Coast Salmon 
and Steelhead in Washington, Oregon, and Idaho

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), are issuing 
a final rule designating critical habitat for 12 Evolutionarily 
Significant Units (ESUs) of West Coast salmon (chum, Oncorhynchus keta; 
sockeye, O. nerka; chinook, O. tshawytscha) and steelhead (O. mykiss) 
listed as of the date of this designation under the Endangered Species 
Act of 1973, as amended (ESA). The specific areas designated in the 
rule text set out below include approximately 20,630 mi (33,201 km) of 
lake, riverine, and estuarine habitat in Washington, Oregon, and Idaho, 
as well as approximately 2,312 mi (3,721 km) of marine nearshore 
habitat in Puget Sound, Washington. Some of the areas designated are 
occupied by two or more ESUs. The annual net economic impacts of 
changes to Federal activities as a result of critical habitat 
designation (regardless of whether those activities would also change 
as a result of the ESA's jeopardy requirement) are estimated to be 
approximately $201.2 million. Fish and wildlife conservation actions 
for the Federal Columbia River Power System and other major hydropower 
projects in the Pacific Northwest are expected to generate another 
$500-700 million in annual costs, including forgone power revenues. 
While these hydropower projects are covered by ESA section 7, the 
conservation actions that generate these costs are imposed by a wide 
variety of laws. We solicited information and comments from the public 
in an Advance Notice of Proposed Rulemaking (ANPR) and on all aspects 
of the proposed rule. This rule is being issued to meet the timeline 
established in litigation between NMFS and Pacific Coast Federation of 
Fishermen's Associations (PCFFA et. al v. NMFS (Civ. No. 03-1883)). In 
the proposed rule, we identified a number of potential exclusions we 
were considering including exclusions for federal lands subject to the 
Pacific Northwest Forest Plan, PACFISH and INFISH. We are continuing to 
analyze whether exclusion of those federal lands is appropriate.

DATES: This rule becomes effective January 2, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection by appointment, during normal business hours, at 
the National Marine Fisheries Service, NMFS, Protected Resources 
Division, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232-1274. The 
final rule, maps, and other materials relating to these designations 
can be found on our website at https://www.nwr.noaa.gov/1salmon/salmesa/
crithab/CHsite.htm.

FOR FURTHER INFORMATION CONTACT: Steve Stone at the above address, at 
(503) 231-2317, or Marta Nammack at (301) 713-1401 ext. 180.

SUPPLEMENTARY INFORMATION:

Organization of the Final Rule

    This Federal Register notice describes the final critical habitat 
designations for 12 ESUs of West Coast salmon and steelhead under the 
ESA. The pages that follow summarize the comments and information 
received in response to proposed designations published on December 14, 
2004 (69 FR 74572), describe any changes from the proposed 
designations, and detail the final designations for 12 ESUs. To assist 
the reader, the content of this document is organized as follows:

I. Background and Previous Federal Action
II. Summary of Comments and Recommendations
    Notification and General Comments
    Identification of Critical Habitat Areas
    Economics Methodology
    Weighing the Benefits of Designation vs. Exclusion
    Effects of Designating Critical Habitat
    ESU-Specific Issues
III. Summary of Revisions
IV. Methods and Criteria Used To Identify Critical Habitat
    Salmon Life History
    Identifying the Geographical Area Occupied by the Species and 
Specific Areas Within the Geographical Area
    Primary Constituent Elements (PCEs)
    Special Management Considerations or Protections
    Unoccupied Areas
    Lateral Extent of Critical Habitat
    Military Lands
    Critical Habitat Analytical Review Teams
V. Application of ESA Section 4(b)(2)
    Exclusions Based on ``Other Relevant Impacts''
    Impacts to Tribes
    Impacts to Landowners With Contractual Commitments to 
Conservation
    Exclusions Based on National Security Impacts
    Exclusions Based on Economic Impacts
VI. Critical Habitat Designation
VII. Effects of Critical Habitat Designation
    Section 7 Consultation
    Activities Affected by Critical Habitat Designation
VIII. Required Determinations
IX. References Cited

I. Background and Previous Federal Action

    We are responsible for determining whether species, subspecies, or 
distinct population segments of West Coast salmon and steelhead 
(Oncorhynchus spp.) are threatened or endangered, and for designating 
critical habitat for them under the ESA (16 U.S.C. 1531 et seq). To 
qualify as a distinct population segment, a West Coast salmon or 
steelhead population must be substantially reproductively isolated from 
other conspecific populations and represent an important component in 
the evolutionary legacy of the biological species. According to agency 
policy, a population meeting these criteria is considered to be an 
Evolutionarily Significant Unit (ESU) (56 FR 58612; November 20, 1991).
    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 ``primary constituent elements,'' or 
PCEs, in identifying these physical or biological features. Section 
7(a)(2) of the ESA requires that each Federal agency shall, 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 
salmon or steelhead ESU 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

[[Page 52631]]

specifying any particular area as critical habitat.
    The timeline for completing the critical habitat designations 
described in this Federal Register document was established pursuant to 
litigation between NMFS and the Pacific Coast Federation of Fishermen's 
Associations, Institute for Fisheries Resources, the Center for 
Biological Diversity, the Oregon Natural Resources Council, the Pacific 
Rivers Council, and the Environmental Protection Information Center 
(PCFFA et al.) and is subject to a Consent Decree and Stipulated Order 
of Dismissal (Consent Decree) approved by the D.C. District Court. A 
complete summary of previous court action regarding these designations 
can be found in the proposed rule (69 FR 74578; December 14, 2004).
    In keeping with the Consent Decree, on December 14, 2004 (69 FR 
74572), we published proposed critical habitat designations for eight 
ESUs of salmon and five ESUs of O. mykiss. (For the latter ESUs we used 
the species' scientific name rather than ``steelhead'' because at the 
time they were being proposed for revision to include both anadromous 
(steelhead) and resident (rainbow/redband) forms of the species--see 69 
FR 33101; June 14, 2004). The 13 ESUs addressed in the proposed rule 
were: (1) Puget Sound Chinook salmon; (2) Lower Columbia River Chinook 
salmon; (3) Upper Willamette River Chinook salmon; (4) Upper Columbia 
River spring-run Chinook salmon; (5) Hood Canal summer-run chum salmon; 
(6) Columbia River chum salmon; (7) Ozette Lake sockeye salmon; (8) 
Oregon Coast coho salmon; (9) Upper Columbia River O. mykiss; (10) 
Snake River Basin O. mykiss; (11) Middle Columbia River O. mykiss; (12) 
Lower Columbia River O. mykiss; and (13) Upper Willamette River O. 
mykiss. The comment period for the proposed critical habitat 
designations was originally open until February 14, 2005. On February 
7, 2005 (70 FR 6394), we announced a court-approved Amendment to the 
Consent Decree which revised the schedule for completing the 
designations and extended the comment period until March 14, 2005, and 
the date to submit final rules to the Federal Register as August 15, 
2005.
    In the critical habitat proposed rule we stated that ``the final 
critical habitat designations will be based on the final listing 
decisions for these 13 ESUs due by June 2005 and thus will reflect 
occupancy `at the time of listing' as the ESA requires.'' All of these 
ESUs had been listed as threatened or endangered between 1997-1999, but 
in 2002 we announced that we would reassess the listing status of these 
and other ESUs (67 FR 6215; February 11, 2002). We recently published 
final listing decisions for seven of the 13 ESUs and extended the 
deadline for the Oregon Coast coho salmon ESU and the five ESUs of O. 
mykiss (70 FR 37160; June 28, 2005). Final listing determinations for 
these six ESUs are expected by December 2005 (70 FR 37217 and 37219, 
June 28, 2005). However, the Consent Decree governing the schedule for 
our final critical habitat designations requires that we complete final 
designations for those of the 13 ESUs identified above that are listed 
as of August 15, 2005. We are not issuing a final critical habitat 
designation for the Oregon Coast coho salmon ESU because it is only 
proposed for listing at this time (70 FR 37217; June 28, 2005). In 
contrast, because anadromous forms (i.e., ``steelhead'') of the five O. 
mykiss ESUs have been listed since 1997-1999 (see summary in June 14, 
2004 Federal Register notice, 69 FR 33103), we are now issuing final 
critical habitat designations for them in this notice in accordance 
with the Consent Decree. We are able to do so because in developing 
critical habitat designations for this species we have focused on the 
co-occurring range of both anadromous and resident forms. Therefore, 
both the proposed and final designations were restricted to the 
species' anadromous range, although we did consider (but did not 
propose to designate) some areas occupied solely by resident fish (for 
example, areas above Dworshak Dam in Idaho). We focused on the co-
occurring range due to uncertainties about (1) the distribution of 
resident fish outside the range of co-occurrence, (2) the location of 
natural barriers impassable to steelhead and upstream of habitat areas 
proposed for designation, and (3) the final listing status of the 
resident form. Section 4(a)(3)(B) of the ESA provides for the revision 
of critical habitat designations as appropriate, and we will do so if 
necessary after making final listing determinations for those five O. 
mykiss ESUs. Moreover, we intend to actively review critical habitat 
and make revisions as needed for all 12 ESUs to keep them as up-to-date 
as possible. Parties are encouraged to contact NMFS if they have 
questions or need additional information regarding these designations 
(see ADDRESSES).
    In an ANPR (68 FR 55926; September 29, 2003), we noted that the ESA 
and its supporting regulations require the agency to address a number 
of issues before designating critical habitat: ``What areas were 
occupied by the species at the time of listing? What physical and 
biological features are essential to the species' conservation? Are 
those essential features ones that may require special management 
considerations or protection? Are areas outside those currently 
occupied `essential for conservation'? What are the benefits to the 
species of critical habitat designation? What economic and other 
relevant impacts would result from a critical habitat designation, even 
if coextensive with other causes such as listing? What is the 
appropriate geographic scale for weighing the benefits of exclusion and 
benefits of designation? What is the best way to determine if the 
failure to designate an area as critical habitat will result in the 
extinction of the species concerned?'' We recognized that ``[a]nswering 
these questions involves a variety of biological and economic 
considerations'' and therefore were seeking public input before issuing 
a proposed rule. As we stated in the proposed rule that followed: ``We 
received numerous comments in response to the ANPR and considered them 
during development of this proposed rulemaking. Where applicable, we 
have referenced these comments in this Federal Register notice as well 
as in other documents supporting this proposed rule.'' In the proposed 
rule, we described the methods and criteria we applied to address these 
questions, relying upon the unique life history traits and habitat 
requirements of salmon and steelhead.
    In issuing the final rule, we considered the comments we received 
to determine whether a change in our proposed approach to designating 
critical habitat for salmon and steelhead was warranted. In some 
instances, we concluded based on comments received that a change was 
warranted. For example, in this final rule we have revised our approach 
to allow us to consider excluding areas covered by habitat conservation 
plans in those cases where the benefits of exclusion outweigh the 
benefits of designation.
    In other instances, we believe the approach taken is supported by 
the best available scientific information, and that given the time and 
additional analyses required, changes to the methods and criteria we 
applied in the proposed rule were not feasible. We recognize there are 
other equally valid approaches to designating critical habitat and for 
answering the myriad questions described above. Nevertheless, issuance 
of the final rule for designating critical habitat for these ESUs is 
subject to a Court Order that requires us to submit the final 
regulation to the Federal

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Register no later than August 15, 2005, less than five months after the 
close of the public comment period. Taking alternative approaches to 
designating critical habitat would have required a retooling of 
multiple interrelated analyses and undertaking additional new analyses 
in support of the final rule, and was not possible given the time 
available to us. We will continue to study alternative methods and 
criteria and may apply them in future rulemakings designating critical 
habitat for these or other species.

II. Summary of Comments and Recommendations

    As described in agency regulations at 50 CFR 424.16 (c) (1), in the 
critical habitat proposed rule we requested that all interested parties 
submit written comments on the proposals. We also contacted the 
appropriate Federal, state, and local 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 it was signed 
(approximately 2 weeks prior to actual publication) and accepted 
comments by standard mail and fax as well as via e-mail and the 
internet (e.g., www.regulations.gov). In addition, we held four public 
hearings between January 11, 2005, and January 25, 2005, in the 
following locations: Kennewick and Seattle, WA; Boise, ID; and 
Portland, OR. We received a total of 5,230 written comments (5,111 of 
these in the form of e-mail with nearly identical verbiage) during the 
comment period on the proposed rule. Three comments dealt solely with 
Oregon Coast coho salmon and are not addressed in this rule.
    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum peer review standards, a transparent process for public 
disclosure, and opportunities for public input (70 FR 2664; January 14, 
2005). The OMB Peer Review Bulletin, implemented under the Information 
Quality Act (Pub. L. 106-554), is intended to provide public oversight 
on the quality of agency information, analyses, and regulatory 
activities, and applies to information disseminated on or after June 
16, 2005. Prior to publishing the proposed rule we submitted the 
initial biological assessments of our Critical Habitat Analytical 
Review Teams (CHARTs) to state and tribal comanagers and asked them to 
review those findings. These co-manager reviews resulted in several 
changes to the CHARTs' preliminary assessments (for example, revised 
fish distribution as well as conservation value ratings) and helped to 
ensure that the CHARTs' revised findings (NMFS, 2005a) incorporated the 
best available scientific data. We later solicited technical review of 
the entire critical habitat proposal (biological, economic, and policy 
bases) from 45 independent experts selected from the academic and 
scientific community, Native American tribal groups, Federal and state 
agencies, and the private sector. We also solicited opinions from three 
individuals with economics expertise to review the draft economics 
analysis supporting the proposed rule. All three of the economics 
reviewers and three of the biological reviewers submitted written 
opinions on our proposal. We have determined that the independent 
expert review and comments received regarding the science involved in 
this rulemaking constitute adequate prior review under section II.2 of 
the OMB Peer Review Bulletin (NMFS, 2005b).
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the various ESUs, and we address them in the following 
summary. Peer reviewer comments were sufficiently similar to public 
comments that we have responded to their comments through our general 
responses below. For readers' convenience we have assigned comments to 
major issue categories and where possible have combined similar 
comments into single comments and responses.

Notification and General Comments

    Comment 1: Several commenters raised concerns/complaints regarding 
the adequacy of public notification and time to comment.
    Response: We made all reasonable attempts to communicate our 
rulemaking process and the critical habitat proposal to the affected 
public. Prior to the proposed rule we published an ANPR in which we 
identified issues for consideration and evaluation, and solicited 
comments regarding these issues and information regarding the areas and 
species under consideration (68 FR 55926; September 29, 2003). We 
considered comments on the ANPR during our development of the proposed 
rule. As soon as the proposed rule was signed on November 29, 2004 (2 
weeks before actual publication in the Federal Register), we posted it 
and supporting information on the agency's internet site to facilitate 
public review, and we have provided periodic updates to that site (see 
ADDRESSES). In response to numerous requests--in particular from 
plaintiffs as well as private citizens, counties, farm bureaus, and 
state legislators in Washington--the original 60-day public comment 
period was extended by 30 days (70 FR 6394; February 7, 2005) to allow 
additional time for the public to submit comments on the critical 
habitat proposals. As required by the ESA, we also provided notice of 
these proposals to affected Federal agencies, states, counties, and 
tribal governments. Further, we provided notice of these proposals to 
professional scientific organizations and media sources in Washington, 
Oregon, and Idaho.
    Additionally, we realize that the statutory scheme provides a short 
time frame for designating critical habitat. Congress amended the ESA 
in 1982 to establish the current time frame for designation. In doing 
so Congress struck a balance between the recognition that critical 
habitat designations are based upon information that may not be 
determinable at the time of listing and the desire to ensure that 
designations occur in a timely fashion. Additionally, the ESA and 
supporting regulations provide that designations may be revised as new 
data become available to the Secretary. We recognize that where the 
designation covers a large geographic area, as is the case here, the 
short statutory time frame provides a short period for the public to 
consider a great deal of factual information. We also recognize that 
this designation takes a new approach by considering relative 
conservation value of different areas and applying a cost-effectiveness 
framework. In this notice we are announcing our intention to consider 
revising the designations as new habitat conservation plans and other 
management plans are developed, and as other new information becomes 
available. Through that process we anticipate continuing to engage the 
interested public and affected landowners in an ongoing dialogue 
regarding critical habitat designations.
    Comment 2: One commenter disapproved of our decision to vacate the 
February 2000 critical habitat designations for these ESUs. Another 
expressed the view that we should have focused only on completing an 
economic analysis (which was lacking in the 2000 designations) rather 
than revising the entire approach to designation.
    Response: We believe that the issues identified in a legal 
challenge to our February 2000 designations warranted withdrawing that 
rule. Moreover, we believe a new approach was needed, unless we were to 
simply disregard the economic analysis once it was

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completed. Developing a cost-effectiveness approach, designed to 
achieve the greatest conservation at the least cost, is in keeping with 
long-standing Executive direction on rulemaking and is a responsible 
and conservation-oriented approach to implementing section 4(b)(2) of 
the ESA. In addition, we had new and better information in 2004 than we 
had in 2000, such as the state fish and wildlife agency data on fish 
distribution. The ESA requires that we use the best available 
information, and the distribution data are the best information 
currently available. Finally, the litigation challenging our 2000 
designation also challenged the lack of specificity in our designation 
of the riparian area, leading us to consider whether there was a better 
approach that was more consistent with our regulations and with the 
best available information. This issue is discussed in greater detail 
in a later response.
    Comment 3: Some commenters stated that we should wait to publish 
final critical habitat designations until after final listing 
determinations have been made and the final hatchery listing policy is 
published.
    Response: The ESA states that the Secretary shall designate 
critical habitat, defined as areas within or outside the geographical 
area occupied by the species at the time of listing and using the best 
available information (emphasis added). These designations follow that 
statutory mandate and have been completed on a schedule established 
under a Consent Decree. Also, the final hatchery listing policy and 
final listing determinations for several salmon ESUs were published on 
June 28, 2005 (70 FR 37160 and 37204) in advance of the completion of 
this final critical habitat designation. For reasons described above in 
the ``Background and Previous Federal Action'' section, we are now 
making final designations for those listed salmon and steelhead ESUs in 
the Northwest Region that are subject to the Consent Decree and listed 
as of the date of this designation.
    Comment 4: One peer reviewer disagreed with the agency's approach 
to identifying ESUs and, consequently, found it very difficult to 
comment objectively on the substance of the critical habitat 
designations because how NMFS identifies ESUs affects the criteria one 
would develop to address critical habitat. Another commenter requested 
clarification regarding whether listed hatchery fish will be considered 
genetically the same as wild fish and suggested a change in the ESU 
boundary between Lower Columbia and Middle Columbia River O. mykiss 
ESUs. One commenter disagreed with our inclusion of hatchery fish in an 
ESU and argued that Congress had no intention of using critical habitat 
to afford protection to artificial breeding facilities such as hatchery 
raceways. One commenter did not support the inclusion of resident and 
anadromous O. mykiss in the same ESU.
    Response: For reasons described above, we are subject to a Consent 
Decree to issue these final critical habitat designations. Comments 
regarding whether hatchery fish should be considered as part of an ESU 
are not addressed in this document but are related to issues discussed 
in our hatchery listing policy published on June 28, 2005 (70 FR 
37204), as well as a concurrent listing determination notice (70 FR 
37160, June 28, 2005). With respect to concerns about the possible 
designation of hatchery raceways as critical habitat, we do not believe 
that these and other manmade structures associated with the hatchery 
environment (such as rearing ponds, egg incubation trays, etc.) contain 
the requisite PCEs.
    Comments regarding inclusion of resident trout in O. mykiss ESUs 
are not addressed in this document but are related to issues discussed 
in our hatchery listing policy published on June 28, 2005 (70 FR 
37160). However, for reasons described earlier in this document, we are 
making final critical habitat designations for the anadromous form of 
O. mykiss in five steelhead ESUs because this life history form has 
been listed since as early as 1997 (depending on the ESU). This action 
is in keeping with the Consent Decree which requires us to designate 
critical habitat for all ESUs listed as threatened or endangered as of 
August 15, 2005. We will revise the designations if appropriate 
following the final listing determinations for these five ESUs.

Identification of Critical Habitat Areas

    Comment 5: Several commenters contended that we can only designate 
areas that are essential for species conservation.
    Response: Section 3(5)(A) of the ESA has a two-pronged definition 
of critical habitat: ``(i) The specific areas within the geographical 
area occupied by the species, at the time it is listed * * * on which 
are found those physical or biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations or protection; and (ii) specific areas 
outside the geographical area occupied by the species, at the time it 
is listed * * * upon a determination by the Secretary that such areas 
are essential for the conservation of the species'' (emphasis added). 
As described in the proposed rule, and documented in the reports 
supporting it, we have strictly applied this definition and made the 
requisite findings. We requested and received comments on various 
aspects of our identification of areas meeting this definition and 
address those here. Only those areas meeting the definition were 
considered in the designation process. Comments regarding the section 
4(b)(2) process, in which we considered the impacts of designation and 
whether areas should be excluded, are addressed in a subsequent 
section.
    Comment 6: In the proposed rule we considered occupied streams 
within a fifth field watershed (as delineated by the U.S. Geological 
Survey) as the ``specific area'' in which the physical or biological 
features essential to conservation of the ESUs were found. We also used 
these watershed delineations as the ``particular areas''--the 
analytical unit--for purposes of the section 4(b)(2) analysis. In the 
proposed rule we requested public comment on whether considering 
exclusions on a stream-by-stream approach would be more appropriate. 
Two commenters believed that the watershed scale was too broad for 
making critical habitat designations and suggested that a sixth field 
watershed or a stream-by-stream approach was more appropriate. One 
commenter believed that we should conduct a reach-by-reach assessment 
in their particular watershed.
    Response: Our ESA section 4(b)(2) report (NMFS, 2005c) acknowledges 
that the delineation of both specific areas and particular areas should 
be as small as practicable, to ensure our designations are not 
unnecessarily broad and to carry out congressional intent that we fully 
consider the impacts of designation. For reasons described in the 
section below on ``Methods and Criteria Used to Identify Critical 
Habitat,'' we continue to believe that the specific facts of salmon 
biology and life history make the fifth field watershed an appropriate 
scale to use in delineating the ``specific'' areas in which physical or 
biological features are found. We also believe consideration of the 
impacts of designation on a fifth field watershed scale results in a 
meaningful section 4(b)(2) balancing process. Moreover, congressional 
direction requires that designations be completed in a very short time 
frame by a specified deadline, ``based on such data as may be available 
at that time.'' Given that short time frame and the geographic extent 
of salmon critical habitat (approximately 29,000 stream miles), the 
fifth field

[[Page 52634]]

watershed was the smallest practicable area we were able to analyze.
    Comment 7: Some commenters believed we applied the definition of 
``specific areas within the geographical area occupied by the species 
at the time it is listed'' too narrowly. In their views, this led to 
two errors--failure to designate all ``accessible'' stream reaches and 
failure to designate riparian and upstream areas. The argument raised 
in support of the first assertion is that the ``best scientific data 
available'' support a conclusion that salmon and steelhead will occupy 
all accessible streams in a watershed during a period of time that can 
be reasonably construed as ``at the time it is listed.'' One commenter 
stated that ``[w]hether a particular stream reach is occupied cannot be 
determined with certainty based on `occupation' data alone, especially 
for fragmented, declining, or depressed populations of fish.'' The 
commenter pointed to the rationale provided in our 2000 rule for 
identifying occupied areas as all areas accessible within a subbasin (a 
4th field watershed, using U.S. Geological Survey terminology): ``NMFS 
believes that adopting a more inclusive, watershed based description of 
critical habitat is appropriate because it (1) recognizes the species' 
use of diverse habitats and underscores the need to account for all of 
the habitat types supporting the species' freshwater and estuarine life 
stages, from small headwater streams to migration corridors and 
estuarine rearing areas; (2) takes into account the natural variability 
in habitat use that makes precise mapping problematic (e.g. some 
streams may have fish present only in years with abundant rainfall) (65 
FR 7764; February 16, 2000).''
    The argument raised in support of the second assertion is that in 
delineating ``specific areas within the geographical area occupied by 
the species,'' we need not confine ourselves to areas that are 
literally ``occupiable'' by the species. If there are physical or 
biological features essential to conservation to be found within a 
broadly defined ``geographical area occupied by the species,'' we have 
the duty to delineate specific areas in a way that encompasses them. 
Some argued that limiting the designation to the stream channel fails 
to recognize the biological and hydrological connections between 
streams and riparian areas and would lead to further degradation of the 
latter. Two commenters suggested that we use a fixed distance (e.g., 
300 ft (91.4m)) if a functional description is not used. Some requested 
that we adopt the ``functional zone'' description for lateral extent 
used in the 2000 designations (65 FR 7764; February 16, 2000) while 
other commenters felt that our reference to habitat linkages with 
upslope and upstream areas was vague and wondered whether we were 
actually using the old approach anyway. Other commenters believed that 
using the line of ordinary high water or bankfull width was appropriate 
and noted that this would remove prior ambiguities about which areas 
were designated. The U.S. Forest Service (USFS) commented that 
regardless of the lateral extent designated, they would continue to 
protect and restore riparian and upslope areas in occupied and 
unoccupied watersheds. Other commenters supported the approach taken in 
this designation, to identify specific areas occupied by the species 
and not broadly designate ``all areas accessible,'' some commenting 
that this was a more rigorous assessment and more in keeping with the 
ESA.
    Response: The approach we took in the proposed designation is 
different from the approach we took in the vacated 2000 designation for 
a variety of reasons. The ESA directs that we will use the best 
scientific data available in designating critical habitat. Our 
regulations also provide direction: ``[e]ach critical habitat will be 
defined by specific limits using reference points and lines as found on 
standard topographic maps of the area. * * * Ephemeral reference points 
(e.g., trees, sand bars) shall not be used in defining critical 
habitat.'' (50 CFR 424.12(c)) With respect to our approach for 
identifying ``the geographical area occupied by the species,'' we 
recognize that the state fish and wildlife distribution data are 
limited to areas that have been surveyed or where professional judgment 
has been applied to infer distribution, and that large areas of 
watersheds containing fish may not have been observed or considered. We 
also recognize there have been many instances in which previously 
unobserved areas are found to be occupied once they are surveyed (NMFS, 
2005a). Nevertheless, we believe the extensive data compiled by the 
state fish and wildlife agencies, which was not available when we 
completed the 2000 designations, represents the best scientific data 
that is currently available regarding the geographical area occupied by 
the species. Moreover, the CHARTs reviewed the data and had an 
opportunity to interact with the state fish and wildlife biologists to 
confirm the accuracy of the data. We also believe the approach we have 
taken in this designation better conforms to the regulatory direction 
to use ``specific limits'' for the designation. The approach we used in 
2000 used subbasin boundaries to delineate ``specific areas,'' which 
arguably met the requirement to use ``specific limits,'' but we believe 
using latitude-longitude endpoints in stream reaches, as we have done 
here, better adheres to the letter and spirit of our regulations.
    With respect to our approach of limiting the designation to the 
occupied stream itself, not extending the designation into the riparian 
zone or upstream areas, we acknowledge that our regulations contemplate 
situations in which areas that are not literally occupiable may 
nevertheless be designated. Section (d) of 50 CFR 424.12 gives as an 
example a situation in which areas upland of a pond or lake may be 
designated if it is determined that ``the upland areas were essential 
to the conservation of an aquatic species located in the ponds and 
lakes.'' For this designation, however, given the vast amount of 
habitat under consideration (nearly 30,000 stream miles) and the short 
statutory time frames in which to complete the designation, we could 
not determine ``specific limits'' that would allow us to map with 
accuracy what part of the riparian zone or upstream area could be 
considered to contain PCEs. As an alternative, we considered the 
approach we used in 2000, which was to designate riparian areas that 
provide function, but concluded that approach may not have been 
entirely consistent with the regulatory requirement to use ``specific 
limits.'' We believe limiting the designation to streams will not 
compromise the ability of an ESA section 7 consultation to provide for 
conservation of the species. Section 7 requires Federal agencies to 
ensure their actions are not likely to destroy or adversely modify 
critical habitat. Actions occurring in the riparian zone, upstream 
areas, or upland areas all have the potential to destroy or adversely 
modify the critical habitat in the stream. Although these areas are not 
themselves designated, Federal agencies must nevertheless meet their 
section 7 obligations if they are taking actions in these areas that 
``may affect'' the designated critical habitat in the stream. Thus, 
although this designation is restricted to the stream itself, we will 
continue to be concerned about the same activities we have emphasized 
in the past decade of consultations.
    Comment 8: Several commenters believed we incorrectly applied the 
definition of ``specific areas outside the geographical area occupied 
by the species.'' In the view of some, we failed our duty under the ESA 
by not making a determination that we had identified

[[Page 52635]]

as critical habitat enough areas (occupied and unoccupied) to support 
conservation. In the view of others, it was this failure that led to 
one of the errors described in the previous comment--the failure to 
designate all ``accessible stream reaches.'' Many commenters, without 
identifying the analytical flaw, expressed concern about statements 
made in the press that the change from ``all areas accessible'' to 
areas documented as occupied led to a 90-percent reduction in critical 
habitat. Other commenters supported the approach taken in this 
designation, to identify specific areas occupied by the species and not 
broadly designate ``all areas accessible,'' some commenting that this 
was a more rigorous assessment and more in keeping with the ESA.
    Response: Section 3(5)(A)(i) of the ESA requires us to identify 
specific areas within the geographical area occupied by the species 
that contain physical or biological features that may require special 
management considerations or protection. Section 3(5)(A)(ii) requires 
that specific areas outside the geographical area occupied by the 
species only fall within the definition of critical habitat if the 
Secretary determines that the area is essential for conservation. Our 
regulations further provide that we will designate unoccupied areas 
``only when a designation limited to [the species'] present range would 
be inadequate to ensure the conservation of the species (50 CFR 
424.12(e)).'' The ESA requires the Secretary to designate critical 
habitat at the time of listing. If critical habitat is not then 
determinable, the Secretary may extend the period by 1 year, ``but not 
later than the close of such additional year the Secretary must publish 
a final regulation, based on such data as may be available at that 
time, designating, to the maximum extent prudent, such habitat.''
    At the present time, we do not have information allowing us to 
determine that the specific areas within the geographical area occupied 
by the species are inadequate for conservation, such that unoccupied 
areas are essential for conservation, aside from the three areas 
designated for Hood Canal summer-run chum. In this case, we were able 
to determine that these specific areas are essential for conservation 
because summer-run chum have such a restricted geographic area, there 
is a local recovery plan that has been in place for several years, and 
conservation hatchery fish are currently being released in these areas 
in an effort the recovery plan finds is essential for conservation of 
this ESU. We received no comments specifically questioning our findings 
that these unoccupied areas proposed for designation are essential for 
conservation. We anticipate revising our critical habitat designations 
in the future as additional information becomes available through 
recovery planning processes (see Comment 12).
    Regarding the concern about changing the designation from ``all 
areas accessible'' to the delineation of stream reaches actually 
occupied, when we announced the proposal we stated that it represented 
a 90 percent reduction in stream miles designated. The facts are more 
complicated. In those subbasins where we designated all areas 
accessible below dams and long-standing natural barriers, there are 
approximately 127,000 miles (204,400 km) of streams. A large proportion 
of these stream miles are not and have never been ``accessible'' to 
salmon and steelhead. In 2000, when we designated all areas accessible, 
however, we created an impression that every mile of stream in these 
subbasins was designated. We did not have information at that time, nor 
do we presently have information, that allows us to quantify exactly 
how many stream miles may be ``accessible'' and therefore how much of a 
reduction this rule represents over what may have been designated in 
the 2000 rule. Although we acknowledge it is a reduction, it is far 
less than a 90-percent reduction and we regret any confusion our 
statements may have created.
    Comment 9: Some commenters (including one peer reviewer) questioned 
the adequacy of our identification of PCEs, in particular the lack of 
specificity. The peer reviewer agreed that spawning areas were 
essential habitat features but did not believe that the others were 
because they are large and spread out or it is unclear what additional 
protections are needed. One commenter noted that it is difficult using 
the state fish and wildlife agency data to pinpoint PCEs with accuracy 
and that ``[s]ome of this information may require additional review, 
field verification, or confirmation by local sources such as Oregon 
Department of Fish and Wildlife biologists.'' With respect to one 
particular PCE, this commenter pointed out: ``For example, PCE 5 
(nearshore marine areas free of obstruction) includes an element of 
``natural cover such as submerged and overhanging large wood, aquatic 
vegetation, large rocks and boulders and side channels. It is not clear 
how nearshore marine areas free of obstruction would possess these 
features.''
    Response: To determine the physical or biological features 
essential to conservation of these ESUs, we first considered their 
complex life cycle. As described in the ANPR and proposed rule, 
``[t]his complex life cycle gives rise to complex habitat needs, 
particularly during the freshwater phase (see review by Spence et al., 
1996).'' We considered these habitat needs in light of our regulations 
regarding criteria for designating critical habitat. Those criteria 
state that the requirements essential to species' conservation include 
such things as ``space * * * [f]ood, water, air, light, minerals, or 
other nutritional or physiological requirements. * * * cover or 
shelter.'' They further state that we are to focus on the ``primary 
constituent elements'' such as ``spawning sites, feeding sites, * * * 
water quality or quantity,'' etc. In the ANPR and proposed rule we 
identified the features of the habitat that are essential for the 
species to complete each life stage and are therefore essential to its 
conservation. We described the features in terms of sites (spawning, 
rearing, migration) that contain certain elements. We disagree with the 
peer reviewer that rearing and migration habitat is not ``essential to 
the conservation of the species'' or that it is not possible to 
determine where those areas are. The peer reviewer's contention that 
rearing and migration sites do not require ``additional protections'' 
is discussed in a separate comment and response.
    Regarding one commenter's point, we have sought to verify the 
presence of fish and of PCEs with the relevant state, tribal, or 
Federal biologists for each specific area. Before publishing the 
proposed rule we provided the CHART reports to the state fish and 
wildlife agencies for review, and again during the comment period. We 
held further discussions with them where questions were raised. Also to 
clarify the point raised by this commenter regarding our description of 
the nearshore PCE, by free of obstruction we were referring to various 
manmade in-water structures placed in nearshore areas (such as 
seawalls, jetties, tide gates) that modify or simplify the habitat and 
restrict or impede the nearshore movements of salmon. In contrast, 
natural features identified with this PCE, such as aquatic vegetation, 
large wood and rocks, provide important cover to salmon and steelhead 
migrating and foraging in the nearshore area.
    Comment 10: Some commenters believed it was inappropriate to 
designate critical habitat in irrigation returns, drains, or wasteways 
because these are not natural waterbodies and were not historically 
occupied. They argue that critical habitat must be

[[Page 52636]]

limited to areas that were historically occupied by the species.
    Response: The ESA defines critical habitat as ``(i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed * * * on which are found those physical or biological 
features * * * essential to the conservation of the species'' (emphasis 
added). The statute does not limit designation to areas that were 
historically occupied. In some cases the historically occupied habitat 
may be unavailable or too degraded to support the species, in which 
case newly created habitat may be the most suitable habitat available. 
Moreover, some of these comments were directed at waterways that were 
historically occupied, have not been occupied in recent decades because 
of habitat degradation, but now may be occupied because of habitat 
restoration or increased water quantity. In light of comments received 
on specific waterways, we asked the CHARTs to review them and confirm 
their determination that the areas were occupied and contained the 
PCEs, and that the PCEs may require special management considerations 
or protection. During our final review of occupied stream reaches we 
found areas in four watersheds where the PCEs were either entirely 
lacking or were so degraded as to be functionally nonexistent, and so 
removed them from consideration as critical habitat.
    Comment 11: One peer reviewer noted that introduced predatory 
fishes should be identified as having a significant impact on critical 
habitat. Another wondered how we were dealing with listed bull trout 
eating listed steelhead.
    Response: We agree that predators, both exotic and native, can have 
an impact on listed salmon and steelhead and initially considered the 
absence of predators as a potential PCE. However, after reviewing our 
regulations at 50 CFR 424.12 we concluded that they are not one of the 
``principal biological or physical constituent elements within the 
defined area that are essential to the conservation of the species.'' 
We recognize that these predators can have negative impacts on native 
fishes and in 1998 co-chaired a workshop to assess these impacts (NMFS 
and Oregon Department of Fish and Wildlife (ODFW), 1998). As a result, 
we have been working with state and Federal co-managers to address this 
issue, in particular via harvest regulations for introduced fishes. 
Regarding predation by bull trout (a native species), we concur with 
conclusions made by the U.S. Fish and Wildlife Service (USFWS) in a 
recent final rule: ``[W]e are not aware of any published scientific 
studies or other convincing evidence indicating bull trout predation is 
the leading cause in the decline of other native or introduced 
species.'' If evidence to the contrary becomes available then we will 
work with the USFWS to assess and address the conservation risks.
    Comment 12: In the proposed rule we requested comments on the 
extent to which specific areas may require special management 
considerations or protection in light of existing management plans. 
Several commenters stated that lands covered by habitat conservation 
plans or other management or regulatory schemes do not require special 
management considerations or protection. Others commented that even 
where management plans are present, there still may be ``methods or 
procedures useful'' for protecting the habitat features.
    Response: The statutory definition and our regulations (50 CFR 
424.02; 424.12) require that specific areas within the geographical 
area occupied by the species must contain ``physical or biological 
features'' that are ``essential to the conservation of the species,'' 
and that ``may require special management considerations or 
protection.'' As described in the proposed rule, and documented in the 
reports supporting it, we first identified the physical or biological 
features essential to conservation (described in our regulations at 50 
CFR 424.12(b)(5) as ``primary constituent elements'' or PCEs). We next 
determined the ``specific areas'' in which those PCEs are found based 
on the occupied stream reaches within a fifth field watershed. We used 
this watershed-scale approach to delineating specific areas because it 
is relevant to the spatial distribution of salmon and steelhead, whose 
innate homing behavior brings them back to spawn in the watersheds 
where they were born (Washington Department of Fisheries et al., 1992; 
Kostow, 1995; McElhany et al., 2000). We then considered whether the 
PCEs in each specific area (watershed) ``may require special management 
considerations or protection.''
    We recognize there are many ways in which ``specific areas'' may be 
delineated, depending upon the biology of the species, the features of 
its habitat and other considerations. In addressing these comments, we 
considered whether to change the approach described in our proposed 
rule and instead delineate specific areas based on ownership. The 
myriad ownerships and state and local regulatory regimes present in any 
watershed, as well as the timing issues discussed previously, made such 
an approach impractical for this rulemaking, as noted in Section I 
above. While there are other equally valid methods for identifying 
areas as critical habitat, we believe that the watershed scale is an 
appropriate scale for identifying specific areas for salmon and 
steelhead, and for then determining whether the PCEs in these areas may 
require special management considerations or protections. We will 
continue to study this issue and alternative approaches in future 
rulemakings designating critical habitat.
    Comment 13: One commenter stated that we could not designate any 
unoccupied areas if we had excluded any occupied areas, relying on the 
regulatory provision cited in a previous comment and response. The 
commenter also asserted that reducing harvest of listed species would 
allow more habitat to be fully seeded and thereby also reduce the 
amount of habitat needed for designation as critical habitat.
    Response: The first comment assumes that all habitat areas are 
equivalent and exchangeable, which they are not. An area may be 
essential for conservation because it was historically the most 
productive spawning area for an ESU and unless access to it is 
restored, the ESU will not fully recover to the point that the 
protections of the ESA are no longer necessary. This area will be 
essential regardless of whether some other specific area has been 
excluded. The second comment reflects the view that if mortality of 
listed fish can be reduced in some life stage outside the spawning 
grounds, then less spawning habitat will be needed to support recovery. 
This comment could apply equally to any activity that affects fish 
survival, not just harvest in fisheries (for example, mortality of fish 
passing through dams). An increased number of returning adults would 
not necessarily result in a decreased need for critical habitat. 
Healthy salmon ESUs rely for their long-term survival on the abundance, 
productivity, spatial distribution and diversity of their constituent 
populations. Well-distributed habitat of high enough quality to ensure 
productivity across cycles of varying ocean survival will remain 
important to salmon conservation, regardless of whether fewer salmon 
are harvested or suffer from other forms of human-induced mortality 
(McElhany et al., 2003).
    Comment 14: Several commenters supported the designation of 
unoccupied areas above dams and some believed that by not designating 
these areas we will make it more difficult to achieve fish passage in 
the future. They

[[Page 52637]]

further noted that excluding these presently blocked areas now may 
promote habitat degradation that will hinder conservation efforts 
should passage be provided in the future. Several commenters identified 
areas above specified dams as being essential for conservation.
    Response: At the present time, we do not have information allowing 
us to determine that the specific areas within the geographical area 
occupied by the species are inadequate for conservation, such that we 
can make a determination that currently unoccupied areas above dams are 
essential for conservation. With respect to the particular dams 
identified by the commenters, the Northwest region is actively involved 
in a multi-year, large-scale recovery planning effort that involves 
scientific teams (called technical recovery teams or TRTs), which 
identify biological recovery goals, and policy teams, who actively work 
with local planning groups to identify actions to achieve those goals. 
These local recovery efforts are developing information which will be 
important to inform decisions about whether unoccupied habitat will be 
needed to facilitate conservation beyond what is currently occupied, 
and this work is part of our ongoing effort to work with and seek input 
from those stakeholders directly affected by the salmon listings. We 
accepted the first partial local recovery plan developed under this 
effort in March and anticipate receiving several more by the end of the 
year. Until those processes are more fully developed, we cannot make 
the specific determinations required under the ESA to designate 
critical habitat in ``unoccupied'' areas except for in the few noted 
instances (see Comment 7). We use our authorities under the ESA and 
other statutes to advocate for salmon passage above impassible dams 
where there is evidence such passage would promote conservation. This 
is not the same, however, as making the determinations required by the 
statute and our regulations to support designation.
    Comment 15: In the proposed rule we requested comments regarding 
the use of professional judgment as a basis for identifying areas 
occupied by the species. One commenter indicated that it was 
appropriate to accept the professional judgment of fish biologists who 
are most familiar with fish habitat within a watershed. Others believed 
that limiting the definition of occupied stream reaches to only those 
where fish presence has been observed and documented is overly narrow 
and fails to consider a number of conditions that affect species 
distribution, including natural population fluctuations and habitat 
alterations that affect accessibility or condition (e.g., de-watering 
stream reaches). These commenters also argued that defining occupied 
reaches should be based on a broad time scale that takes into account 
metapopulation processes such as local extinction and recolonization, 
adding along with other commenters that many streams have not been 
adequately surveyed and species may frequent stream reaches but not 
actually be observed by a biologist at the time that critical habitat 
is being assessed.
    Response: We relied on data provided by state fish and wildlife 
agencies as well as the USFS and Bureau of Land Management to determine 
which specific stream reaches were occupied by each ESU. The data sets 
we relied on to define occupancy reported distribution based on two 
general categories: (1) Field observations based on stream surveys or 
(2) professional judgment based on the expert opinion of area 
biologists. We reviewed other classifications used in these data sets, 
such as ``potential,'' suitable habitat blocked, disputed, unknown, and 
historic, but determined that areas classified as such were not 
suitable for defining occupancy. Depending on the source, each used 
similar criteria for the judgment that an unobserved area had fish 
present. For example, in Oregon there are streams considered occupied 
based on ``strong'' or ``modest'' professional opinion, while in 
Washington similar data are classified as ``presumed'' (NMFS, 2005a). 
In all cases the exercise of professional judgment included the 
consideration of habitat suitability for the particular species. Each 
agency's data set was compiled using input principally from state, 
Federal, and tribal biologists. In a few cases the data identify 
streams where local biologists (e.g., private consultants for a county 
or watershed group) had survey data or expertise, and the state 
incorporated the data after its own review. Federal biologists on the 
CHARTs reviewed these data, relying on their first-hand knowledge and 
experience with the watersheds as well as a variety of published and 
unpublished reports (e.g., watershed analyses and recent field survey 
reports). When questions arose about a particular site, we reconfirmed 
the data with the state, tribal, or Federal biologist(s) familiar with 
the area. We received several comments on our proposed rule regarding 
the accuracy of the distribution data in specific locations and, where 
we could confirm that the information provided by the commenter was 
accurate, we accepted it as the best available information and adjusted 
our designation. We view designation of critical habitat as an ongoing 
process and expect to adjust the designations as necessary as new 
information or improved methods become available.
    Comment 16: Several comments addressed the proposed designation of 
nearshore habitats in Puget Sound, including the lateral extent of 
these areas. In the proposed rule we described this extent as the area 
inundated by extreme high tide but requested comments on whether 
ordinary high water line may be more appropriate to use in estuarine 
and nearshore marine areas. We also noted that these zones may be 
excluded from critical habitat if the benefits of exclusion outweigh 
the benefits of designation. Most commenters on this issue supported 
the designation of nearshore areas (in particular the shoreline of 
Vashon and Maury islands) and using the line of extreme high water as 
the lateral extent, although one commenter requested that we extend the 
lateral extent landward to include riparian and other areas, such as 
backshores and bluffs, affecting the nearshore zone. One commenter 
noted that flooding events cause vegetation changes and debris movement 
important to salmon, and some commented that development in this zone 
(bulkheads, seawalls, levees, etc.) needs to be addressed. Others noted 
that this zone is also important spawning habitat for forage fishes and 
provides both aquatic and terrestrial invertebrate prey. One commenter 
requested that we extend the designated nearshore zone westward to 
include all shallow waters in the Strait of Juan de Fuca while another 
requested that we continue to research whether other marine areas 
warrant designation. One commenter noted that excluding these nearshore 
zones would contradict the CHART findings which identified them as high 
conservation value rearing and migration areas. In contrast, one 
commenter asserted that there is a lack of science to support 
designating nearshore zones as critical habitat.
    Response: We believe that the best available scientific data 
support a designation of nearshore zones in Puget Sound. This unique, 
fjord-like ecosystem contains a variety of habitats with physical or 
biological features essential to Chinook and chum salmon conservation, 
ranging from deep water habitats used by subadult and adults for 
migration and foraging to shallow nearshore areas important for 
juvenile rearing and for migration. In the 2000 critical habitat 
designations we

[[Page 52638]]

designated all marine areas of Puget Sound (as well as a lateral extent 
defined by riparian function) adopting an approach that mirrored our 
designation of all areas accessible in fresh water. However, since then 
we have revised our approach to be more definite about which specific 
areas contain physical or biological features essential to 
conservation, and that may require special management considerations or 
protection and thus warrant designation as critical habitat.
    While all waters of Puget Sound can be occupied by salmon, we have 
far greater certainty that the nearshore areas associated with the 
photic zone are both occupied and contain essential features that may 
require special management considerations or protection. In terms of 
occupation, it is well documented that juvenile salmon leaving their 
natal streams typically stay in nearshore areas where they depend on a 
photic-based food web of plankton and other invertebrates (Pacific 
Fishery Management Council, 1999). While the photic zone layer is 
present throughout Puget Sound, it only penetrates to the bottom in 
nearshore areas to a depth of approximately 30 meters (Williams et al., 
2001). We have defined the PCEs for nearshore marine areas as being 
free of obstruction with water quality and quantity conditions and 
forage, including aquatic invertebrates and fishes, supporting growth 
and maturation; and natural cover such as submerged and overhanging 
large wood, aquatic vegetation, large rocks and boulders, and side 
channels. This area is also the zone containing important marine 
vegetation and cover (e.g., eelgrass meadows and kelp forests) and in 
which salmon forage species reside (e.g., surf smelt and sand lance) 
(Puget Sound Water Quality Action Team, 2000 and 2002). Activities 
potentially affecting PCEs in this zone include the construction of 
overwater structures (e.g., docks and piers), dredging and bank 
armoring (Puget Sound Water Quality Action Team, 2002).
    Similarly, we believe that the lateral extent of critical habitat 
in nearshore marine areas is best described in terms of tidal 
fluctuations that govern the areas occupied by salmon. We believe that 
the area inundated by extreme high tide is an appropriate delineation 
for the landward extent of critical habitat because it represents a 
regularly-occurring intertidal fringe that is recognizable (e.g., 
vegetation and landform changes), and contains and influences PCE 
elements such as large wood, rocks and boulders, and aquatic 
vegetation. We recognize that other areas landward of the line of 
extreme high tide (e.g., bluffs) have a major influence on the high 
intertidal zone and that activities in this zone could adversely modify 
adjacent designated areas. However, for the reasons described in our 
response to riparian zones we have not designated areas beyond extreme 
high tide.
    Comment 17: Several comments addressed the CHART process although 
few recommended changes to the CHARTs' ratings of watershed 
conservation