Endangered and Threatened Species; Proposed Critical Habitat for the Gulf of Maine Distinct Population Segment of Atlantic Salmon, 51747-51781 [E8-20603]

Download as PDF Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington DC 20426. 17. From FERC’s Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 18. User assistance is available for eLibrary and the FERC’s Web site during normal business hours from FERC Online Support at 202–502–6652 (toll free at 1–866–208–3676) or e-mail at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502– 8371, TTY (202) 502–8659. E-mail the Public Reference Room at public.referenceroom@ferc.gov. List of Subjects in 18 CFR Part 35 Electric power rates, Electric utilities, Reporting and recordkeeping requirements. By the Commission. Kimberly D. Bose, Secretary. [FR Doc. E8–20546 Filed 9–4–08; 8:45 am] Background The notice of proposed rulemaking by cross-reference to temporary regulations (REG–161695–04) that is the subject of this correction is under section 1301 of the Internal Revenue Code. Need for Correction As published, REG–161695–04 contains an error that may prove to be misleading and is in need of clarification. Correction of Publication Accordingly, the publication of the proposed rulemaking by cross-reference to temporary regulations (REG–161695– 04), which was the subject of FR Doc. E8–16664, is corrected as follows: On page 42538, column 2, in the preamble, under the caption ‘‘For Further Information Contact’’, line 2, the language ‘‘Amy Pfalzgraf, (202) 622– 4950 (not a‘‘ is corrected to read ‘‘Amy Pfalzgraf (202) 622–4960 (not a‘‘. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel, (Procedure and Administration). [FR Doc. E8–20552 Filed 9–4–08; 8:45 am] BILLING CODE 4830–01–P BILLING CODE 6717–01–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration DEPARTMENT OF THE TREASURY 50 CFR Part 226 Internal Revenue Service [Docket No. 0808061060–81062–01] 26 CFR Part 1 RIN 0648–AW77 [REG–161695–04] Endangered and Threatened Species; Proposed Critical Habitat for the Gulf of Maine Distinct Population Segment of Atlantic Salmon RIN 1545–BE23 Farmer and Fisherman Income Averaging; Correction Internal Revenue Service (IRS), Treasury. ACTION: Correction to notice of proposed rulemaking by cross-reference to temporary regulations. AGENCY: This document corrects a notice of proposed rulemaking by crossreference to temporary regulations (REG–161695–04) that was published in the Federal Register on Tuesday, July 22, 2008 (73 FR 42538) relating to the averaging of farm and fishing income in computing income tax liability. FOR FURTHER INFORMATION CONTACT: Amy Pfalzgraf, (202) 622–4960 (not a toll-free number). SUPPLEMENTARY INFORMATION: jlentini on PROD1PC65 with PROPOSALS SUMMARY: VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. AGENCY: SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to designate critical habitat for the Gulf of Maine Distinct Population Segment (GOM DPS) of Atlantic salmon (Salmo salar). We previously determined that naturally spawned and several hatchery populations of Atlantic salmon which constituted 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 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 51747 DPS as a result of this listing. We propose to designate as critical habitat 45 specific areas occupied by Atlantic salmon at the time of listing that comprise approximately 203,781 km of perennial river, stream, and estuary habitat and 868 square km of lake habitat within the range of the GOM DPS and on 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 being proposed is within the State of Maine. We propose to exclude approximately 1,463 km of river, stream, and estuary habitat and 115 square km of lake habitat from critical habitat pursuant to section 4(b)(2) of the ESA. DATES: Comments on this proposal must be received by November 4, 2008. Two public hearings on the proposed rule will be held in conjunction with the Atlantic salmon proposed listing rule (See the notice, Proposed Endangered Status for the Gulf of Maine Distinct Population Segment of Atlantic Salmon, published in the Proposed Rules section of the September 3, 2008, issue of the Federal Register) and we will alert the public of the locations and dates of those hearings in a subsequent Federal Register notice. ADDRESSES: You may submit comments, identified by RIN 0648–AW77, by any of the following methods: • Electronic Submission: Submit all electronic public comments via the Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Mail: Assistant Regional Administrator, Protected Resources Division, NMFS, Northeast Regional Office, Protected Resources Division, One Blackburn Drive, Gloucester, MA 01930. • Facsimile (fax) to: 207–866–7342, Attention: Dan Kircheis. Instructions: All comments received are a part of the public record and will generally be posted to http:// www.regulations.gov without change. All personal identifying information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, Word Perfect, or Adobe PDF file formats only. The proposed rule, list of references and supporting documents, including E:\FR\FM\05SEP1.SGM 05SEP1 51748 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules the Biological Valuation, Economic Analysis, IRFA Analysis, and 4(b)(2) Report, are also available electronically at the NMFS Web site http:// www.nero.noaa.gov/prot_res/ altsalmon/. FOR FURTHER INFORMATION CONTACT: Dan Kircheis, NMFS, at 207–866–7320, dan.kircheis@noaa.gov; Mary Colligan, NMFS, at 978–281–9116; or Marta Nammack, 301–713–1401. SUPPLEMENTARY INFORMATION: jlentini on PROD1PC65 with PROPOSALS Background 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 riverspecific 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 River above the site of the former Bangor Dam. In September of 2006, a new Status Review for Atlantic salmon in the United States (Status Review report) was made available to the public (http://www.nmfs.noaa.gov/pr/pdfs/ statusreviews/atlanticsalmon.pdf). The 2006 Status Review report 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 and Craig Brook National Fish Hatcheries. The most substantial difference between the 2000 GOM DPS and the GOM DPS described in the 2006 Status Review report is the inclusion of the Androscoggin, Kennebec, and Penobscot River basins. Subsequent to the 2006 Status Review report, the Services proposed to list Atlantic salmon in the GOM DPS as endangered (See the notice, Proposed Endangered Status for the Gulf of Maine Distinct Population Segment of Atlantic Salmon, published in the Proposed Rules section of the September 3, 2008, issue of the Federal Register). This proposed rule would designate critical habitat for the GOM DPS pursuant to section 4(b)(2) of the ESA. Critical habitat is defined by section 3 VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 of the ESA 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 and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; 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.’’ Section 3 of the ESA (16 U.S.C. 15332) defines the terms ‘‘conserve,’’ ‘‘conserving,’’ and ‘‘conservation’’ as ‘‘to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.’’ Section 4(b)(2) of the ESA (16 U.S.C. 1533) requires that, before designating critical habitat, we consider the economic impacts, impacts on national security, and other relevant impacts of specifying any particular area as critical habitat. Further, the Secretary may exclude any area from critical habitat upon a determination that the benefits of exclusion outweigh the benefits of inclusion, unless excluding an area from critical habitat will result in the extinction of the species concerned. Once critical habitat for Atlantic salmon in the GOM DPS is designated, section 7(a)(2) of the ESA (16 U.S.C. 1536) requires that each Federal agency in consultation with and with the assistance of NMFS, ensure that any action it authorizes, funds, or carries out is not likely to result in the destruction or adverse modification of critical habitat. This proposed rule summarizes the information gathered and the analyses conducted in support of the proposed designation, and announces our proposal to designate critical habitat for Atlantic salmon in the GOM DPS proposed for listing under ESA. Atlantic Salmon Life History Atlantic salmon have a complex life history that includes territorial rearing in rivers to extensive feeding migrations on the high seas. During their life cycle, Atlantic salmon go through several distinct phases that are identified by specific changes in behavior, physiology, morphology, and habitat requirements. Adult Atlantic salmon return to rivers from the sea and migrate to their natal stream to spawn. Adults ascend the rivers of New England beginning in the spring. The ascent of adult salmon PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 continues into the fall. Although spawning does not occur until late fall, the majority of Atlantic salmon in Maine enter freshwater between May and mid-July (Meister, 1958; Baum, 1997). Early migration is an adaptive trait that ensures adults have sufficient time to effectively reach spawning areas despite the occurrence of temporarily unfavorable conditions that occur naturally (Bjornn and Reiser, 1991). Salmon that return in early spring spend nearly 5 months in the river before spawning; often seeking cool water refuge (e.g., deep pools, springs, and mouths of smaller tributaries) during the summer months. In the fall, female Atlantic salmon select sites for spawning. Spawning sites are positioned within flowing water, particularly where upwelling of groundwater occurs to allow for percolation of water through the gravel (Danie et al., 1984). These sites are most often positioned at the head of a riffle (Beland et al., 1982b), the tail of a pool, or the upstream edge of a gravel bar where water depth is decreasing, water velocity is increasing (McLaughlin and Knight, 1987; White, 1942), and hydraulic head allows for permeation of water through the redd (a gravel depression where eggs are deposited). Female salmon use their caudal fin to scour or dig redds. The digging behavior also serves to clean the substrate of fine sediments that can embed the cobble/ gravel substrate needed for spawning and reduce egg survival (Gibson, 1993). As the female deposits eggs in the redd, one or more males fertilize the eggs (Jordan and Beland, 1981). The female then continues digging upstream of the last deposition site, burying the fertilized eggs with clean gravel. A single female may create several redds before depositing all of her eggs. Female anadromous Atlantic salmon produce a total of 1,500 to 1,800 eggs per kilogram of body weight, yielding an average of 7,500 eggs per 2 sea-winter (SW) female (an adult female that has spent two winters at sea before returning to spawn) (Baum and Meister, 1971). After spawning, Atlantic salmon may either return to sea immediately or remain in freshwater until the following spring before returning to the sea (Fay et al., 2006). From 1967 to 2003, approximately 3 percent of the wild and naturally reared adults that returned to rivers where adult returns are monitored—mainly the Penobscot River—were repeat spawners (USASAC, 2004). Embryos develop in the redd for a period of 175 to 195 days, hatching in late March or April (Danie et al., 1983). Newly hatched salmon, referred to as E:\FR\FM\05SEP1.SGM 05SEP1 jlentini on PROD1PC65 with PROPOSALS Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules larval fry, alevin, or sac fry, remain in the redd for approximately 6 weeks after hatching and are nourished by their yolk sac (Gustafson-Greenwood and Moring, 1991). Survival from the egg to fry stage in Maine is estimated to range from 15 to 35 percent (Jordan and Beland, 1981). Survival rates of eggs and larvae are a function of stream gradient, overwinter temperatures, interstitial flow, predation, disease, and competition (Bley and Moring, 1988). Once larval fry emerge from the gravel and begin active feeding they are referred to as fry. The majority of fry (> 95 percent) emerge from redds at night (Gustafson-Marjanen and Dowse, 1983). When fry reach approximately 4 cm in length, the young salmon are termed parr (Danie et al., 1984). Parr have eight to eleven pigmented vertical bands on their sides that are believed to serve as camouflage (Baum, 1997). A territorial behavior, first apparent during the fry stage, grows more pronounced during the parr stage as the parr actively defend territories (Allen, 1940; Kalleberg, 1958; Danie et al., 1984). Most parr remain in the river for 2 to 3 years before undergoing smoltification, the process in which parr go through physiological changes in order to transition from a freshwater environment to a saltwater marine environment. Some male parr may not go through smoltification and will become sexually mature and participate in spawning with sea-run adult females. These males are referred to as ‘‘precocious parr.’’ First year parr are often characterized as being small parr or 0+ parr (4 to 7 cm long), whereas second and third year parr are characterized as large parr (greater than 7 cm long) (Haines, 1992). Parr growth is a function of water temperature (Elliott, 1991), parr density (Randall, 1982), photoperiod (Lundqvist, 1980), interaction with other fish, birds, and mammals (Bjornn and Resier, 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; VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 Hutchings, 1986; O’Connell and Ash, 1993; Erkinaro et al., 1998; Dempson et al., 1996; Halvorsen and Svenning, 2000; 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 occur (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 preadapted to make a direct entry into seawater with minimal acclimation (McCormick et al., 1998). This preadaptation 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); although 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 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 51749 suggest that post-smolts aggregate together and move near the coast in ‘‘common corridors’’ and that postsmolt movement is closely related to surface currents in the bay (Hyvarinen et al., 2006; Lacroix and McCurdy, 1996; Lacroix et al., 2004). European postsmolts tend to use the open ocean for a nursery zone, while North American post-smolts appear to have a more nearshore distribution (Friedland et al., 2003). Post-smolt distribution may reflect water temperatures (Reddin and Shearer, 1987) and/or the major surfacecurrent 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 °N. and 58 °N. (Reddin, 1985; Reddin and Short, 1991; Reddin and Friedland, 1993). The salmon located off Greenland are composed of both 1SW fish and fish that have spent multiple years at sea (multi-sea winter fish, or MSW) 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; and 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. Critical Habitat Methods and Criteria Used To Identify Proposed Critical Habitat Critical habitat is defined by section 3 of the ESA (and 50 CFR 424.02(d)) as ‘‘(i) the specific areas within the geographic area occupied by the species, at the time it is listed in accordance E:\FR\FM\05SEP1.SGM 05SEP1 51750 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules jlentini on PROD1PC65 with PROPOSALS with the provisions of [section 4 of this Act], on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of [section 4 of this Act], upon a determination by the Secretary that such areas are essential for the conservation of the species.’’ The Department of the Interior and the Department of Commerce provide further regulatory guidance under 50 CFR 424.12(b), stating that the Secretaries shall ‘‘focus on the principal biological or physical constituent elements within the defined area that are essential to the conservation of the species * * * Primary constituent elements may include, but are not limited to, the following: roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetland or dry land, water quality or quantity, host species or plant pollinator[s], geological formation, vegetation type, tide, and specific soil types.’’ 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 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 postsmolts 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. Marine migration routes and feeding habitat off Canada and Greenland are critical to the survival VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 and recovery of Atlantic salmon, but the regulations prohibit designation of these areas as critical habitat. Because Atlantic salmon are anadromous, spending a portion of life in freshwater and the remaining portion in the marine environment, 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. In addition to the stocking program managed by USFWS and the Maine Department of Marine Resources (MDMR), there are small-scale stocking efforts carried out by non profit organizations. 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 proposed as 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 United States Geological Survey (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 within the GOM DPS are currently managed at the HUC PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 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 hatcheryreared 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 occupy 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 primary constituent elements (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: (a) Naturally spawned and reared Atlantic salmon have been documented in the HUC 10 watershed or the watershed is believed to be occupied E:\FR\FM\05SEP1.SGM 05SEP1 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules jlentini on PROD1PC65 with PROPOSALS based on the biological valuation of HUC 10 watershed (See Biological Valuation of Atlantic Salmon Habitat in the Gulf of Maine Distinct Population Segment (2008)) and best professional judgment of state and Federal biologists; (b) The area 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 through other stocking programs, including those efforts by the ‘‘Fish Friends’’ program, where juvenile salmon could reasonably be expected to migrate to the marine environment and return to that area as an adult and spawn. Within the range of the GOM DPS, 105 HUC 10 watersheds were examined for occupancy based on the above criteria. Based on our analysis, we considered 48 of these HUC 10 watersheds within the geographic range to be occupied. Estuaries and bays within the occupied HUC 10s in 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 U.S. jurisdictional waters 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 were not proposed 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 VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 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 proposed for designation 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 nearshore marine environments for juvenile feeding and growth, Atlantic salmon migrate through the nearshore marine areas quickly during the month of May and early June. Though we have some limited knowledge of the physical and biological features that the species uses in the marine environment, 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 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 51751 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. Therefore, to determine habitat quantity for each HUC 10 we relied on a GIS-based habitat prediction model (See appendix C of the Biological Valuation of Atlantic Salmon Habitat within the Gulf of Maine Distinct Population Segment (2008)). 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 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 73 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 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 E:\FR\FM\05SEP1.SGM 05SEP1 51752 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules jlentini on PROD1PC65 with PROPOSALS 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. 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, overhanging 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 midOctober 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 VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 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 subsurface 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 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 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 one 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 E:\FR\FM\05SEP1.SGM 05SEP1 jlentini on PROD1PC65 with PROPOSALS Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 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 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 overwintering 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 headwater 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 dewatering (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 °C) in the summer and near-freezing temperatures in the VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 winter, and have evolved with a series of physiological and behavioral strategies that enable 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 to 19 °C (Decola, 1970). When water temperatures surpass 19 °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 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 51753 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 principal 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 (New England Fisheries Management Council, 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 E:\FR\FM\05SEP1.SGM 05SEP1 jlentini on PROD1PC65 with PROPOSALS 51754 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 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 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 adults 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, 1869; 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 coevolutionary diadromous species such VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 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, PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 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 which is necessary 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 then smolts found in colder rivers. Hence any delay of migration has the potential to reduce survival of outmigrating 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). E:\FR\FM\05SEP1.SGM 05SEP1 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules jlentini on PROD1PC65 with PROPOSALS These features are essential to the conservation of the species because elevated water temperatures that occur in advance of a smolts 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., 1996; Staurnes et al., 1993). 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., 1996; Staurnes et al., 1993) 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 VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 ‘‘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. 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, 1096–1100). 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 to 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 draft ESA 4(b)(2) (NMFS, 2008) Report and Economic Analysis (IEc, 2008a) describe the impacts in detail. These reports identify and describe PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 51755 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. Specific activities that may affect the PCEs and associated physical and biological features are evaluated below based on whether the spawning and rearing PCE and/or the migration PCE may require special management considerations or protection. Specific areas where these activities occur are represented in a table following the evaluation of activities. Further evaluation of the activities listed below is presented in detail in section 5 of Kircheis and Liebich (2007). (a). Agriculture Agricultural practices influence all specific areas proposed for designation and negatively impact PCE sites for spawning and rearing and migration. Physical disturbances caused by livestock and equipment associated with agricultural practices can directly impact the habitat of aquatic species (USEPA, 2003). Traditional agricultural practices require repeated mechanical mixing, aeration, and application of fertilizers and pesticides to soils. These activities alter physical soil characteristics and microorganisms. Tilling aerates the upper soil, but causes compaction of finely textured soils below the surface, which alters water infiltration. Use of heavy farm equipment and construction of roads also compact soils, decrease water infiltration, and increase surface runoff (Spence et al., 1996). Agricultural grazing and clearing of riparian vegetation can expose soils and increase soil erosion and sediment inputs into rivers. E:\FR\FM\05SEP1.SGM 05SEP1 jlentini on PROD1PC65 with PROPOSALS 51756 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules Agricultural practices may also reduce habitat complexity and channel stability through physical stream alterations such as: Channelization, bank armoring, and removal of large woody debris (LWD) and riparian vegetation (Spence et al., 1996). These effects often result in streams with higher width to depth ratios which exhibit more rapid temperature fluctuations and may also be subject to increased embeddedness as a function of decreased water velocity affecting habitat use in sites for spawning, juvenile rearing, and migration (Fay et al., 2006). Clearing of land for agricultural practices such as livestock grazing and crop cultivation typically loosens and smoothes land surfaces, increasing soil mobility and vulnerability to surface erosion, thereby increasing sedimentation rates in affected streams (Waters, 1995; Spence et al., 1996). Increased sedimentation can have significant effects on Atlantic salmon habitat by embedding substrates and increasing turbidity in spawning and rearing sites. Increased turbidity can reduce light penetration and result in a reduction of aquatic plant communities used for cover and foraging in juvenile rearing sites. Sedimentation from agricultural practices can also increase the inputs of nutrients such as phosphorus and ammonia as well as contaminants such as pesticides and herbicides throughout a watershed. An increase in nutrients can lead to eutrophication and potential oxygen depletion in surface waters. Exposure of contaminated sediments to anaerobic environments (lacking oxygen) often results in the release of organically bound chemicals (EPA, 2003), possibly creating a toxic environment for biotic communities downstream of these agricultural areas. Agricultural practices can affect stream hydrology through removal of vegetative cover, soil compaction, and irrigation. Removal of vegetation and soil compaction can increase runoff which can increase the frequency and intensity of flooding (Hornbeck et al., 1970). Increases in frequency and intensity of flood events can increase erosion, increase sedimentation and scour affecting sites for spawning and rearing. Direct water withdrawals and ground-water withdrawals for crop irrigation can directly impact Atlantic salmon habitat by depleting stream-flow (MASTF, 1997; Dudley and Stewart 2006; Fay et al., 2006). Currently, the cumulative effects of individual irrigation impacts on Maine rivers is poorly understood; however, it is known that adequate water supply and VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 quality are essential to all life stages of Atlantic salmon and life history behaviors including adult migration, spawning, fry emergence, and smolt emigration (Fay et al., 2006). Fertilizer runoff can increase nutrient loading in aquatic systems, thereby stimulating the growth of aquatic algae. If nutrient loading due to fertilizer runoff is significant, resulting algal blooms may have numerous detrimental impacts on multiple processes occurring within the affected aquatic ecosystem. Surface algal blooms that block sunlight can kill submerged aquatic vegetation important for juvenile rearing. Loss of submerged vegetation can lead to a loss of habitat for invertebrates and juveniles fishes and the decomposition of dead algae consumes large quantities of oxygen, an impact which, at times, can result in significant oxygen depletion (NMFS and FWS, 2005). A reduction in submerged aquatic vegetation and dissolved oxygen (DO) can cause both direct and indirect harm to salmon by affecting not only the physiological function of salmon (e.g., oxygen deprivation) but by impacting prey species and other necessary ecological functions sites for rearing. We conclude that the spawning and rearing and migration PCEs in each HUC 10 are and will likely continue to be negatively affected by agricultural practices well into the future, and, therefore, may require special management or protections which may include increasing the riparian buffer between agriculture lands and aquatic ecosystems that contain salmon habitat to prevent erosion and the runoff or leaching of contaminants and nutrients. (b). Forestry Forestry practices influence all specific areas proposed for designation and negatively impact PCE sites for spawning and rearing and migration. Timber harvest can significantly affect hydrologic processes. In general, timber removal increases the amount of water that infiltrates the soil and reaches the stream by reducing water losses from evapotranspiration (Spence et al., 1996). Soil compaction can decrease infiltration and increase runoff, and roads created for logging can divert and alter water flow. Logging can also influence snow distribution on the ground, and consequently alter the melting rates of the snowpack (Chamberlin et al., 1991). Through a combination of these effects, logging can change annual water yield and the magnitude and timing of peak and low flows (Spence et al., 1996). Alteration of hydrologic regimes may impact sites for spawning, migration and rearing. PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 The increased erosion and runoff caused by forestry practices and road building can increase sedimentation affecting sites for spawning and rearing and may impact migration. Compared to other forestry activities, roads are the greatest contributor of sediment on a per area basis (Furniss et al., 1991). Contribution of sediments by roads most frequently occurs from mass failure of road beds (Furniss et al., 1991). Other forestry practices generally cause surface erosion, creating chronic sediment inputs. The combined effect of chronic and mass erosion can cause elevated sediment levels even when a small percentage of a watershed is developed by roads (Montgomery and Buffington, 1993), which can embed cobble and gravel substrates used for spawning and juvenile rearing. The most direct effect of logging on stream temperature is the reduction in shade provided by riparian vegetation. Alterations in water temperature can affect egg development and alter foraging behaviors of juvenile salmon in both spawning and rearing sites. Removal of riparian vegetation also affects evaporation, convection and advection of water by altering wind speed and the temperature of surrounding land areas (Beschta et al., 1987, 1995). In general, greater effects on stream temperatures are more apparent in smaller streams; however, the magnitude of these effects is dependent on stream size and channel morphology in relation to the quantity of riparian vegetation harvested (Beschta et al., 1995). Removal of riparian vegetation can also lead to increased maximum temperatures and increased daily fluctuations in stream temperatures (Beschta et al., 1987, 1995). Timber harvest and preparation of soil for forestry practices can decrease LWD as well as increase erosion. Removal of LWD and increased erosion can have many harmful effects in sites for rearing, spawning and migration by reducing channel complexity, reducing in-stream cover and riffle/pool frequency, decreasing sediment retention and channel stability and reducing availability of microhabitats (Spence et al., 1996). Loss of riparian vegetation can also reduce the presence of overhanging banks that are frequently used for cover by salmon (Spence et al., 1996). We conclude that the spawning, rearing and migration PCEs in each specific area are and will likely continue to be negatively affected by forestry practices, and, therefore, may require special management considerations or protections which may include the use of best management E:\FR\FM\05SEP1.SGM 05SEP1 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules jlentini on PROD1PC65 with PROPOSALS practices that reduce erosion, support contributions of LWD, and limit thermal impacts. (c). Changing Land-Use and Development Changing land-use and development affects all specific areas proposed for designation and negatively impact PCE sites for spawning, rearing and migration. Changing land-use patterns include a shift from forestry and agriculture to construction of housing, commercial shopping and business centers, and industrial facilities. Increased development and population growth can cause declines in water and habitat quality caused by increases in erosion, reduction of riparian vegetation, increases in sediment deposition, homogenizing of habitat features, and an overall reduction in water quality resulting from point and non-point source pollution. Development can affect sites for spawning, rearing and migration by reducing soil infiltration rates and increasing erosion. Construction of impervious surfaces can indirectly influence habitat by increasing surface water runoff while concurrently reducing groundwater recharge. Surface runoff from developed areas can increase erosion rates, carry pollutants from developed areas, and increase flooding (Morse and Kahl, 2003), whereas a reduction in groundwater recharge can lead to reduced summer baseflows, potentially reducing available aquatic habitat (Morse and Kahl, 2003). Development practices can redirect, channelize, and/or armor stream banks to accommodate and protect the development. Certain development practices can clear riparian areas, decreasing shade and altering thermal regimes and nutrient inputs. These practices can also remove vegetation that would otherwise intercept rainfall and therefore reduce runoff. As more water is carried downstream during rain events or when stream channels are altered, streambed widening or scouring may increase. Streambed widening or scouring can directly reduce the quality and quantity of habitat available to Atlantic salmon. As a result, development can lead to alterations in physical habitat within sites for spawning, rearing and migration. We conclude that the spawning, rearing and migration PCEs in each HUC 10 are and will likely continue to be negatively affected by contaminants into the future, and, therefore, may require special management considerations or protections which may include improvements in the handling of waste VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 water discharge to limit inputs of contaminants and assuring sufficient riparian buffers between development sites and aquatic ecosystems that support salmon habitats. (d). Hatcheries and Stocking Hatcheries and stocking occur in all specific areas proposed for designation and can negatively affect PCE sites for spawning and rearing. Use of hatcheries may be essential for rebuilding Atlantic salmon populations; however, without proper adherence to genetic, evolutionary, and ecological principles, the use of hatcheries could have adverse consequences for naturally reproducing fish that may undermine other rehabilitation efforts. Stocking of juvenile Atlantic salmon that are river specific, non-river specific, or a combination of both, is taking place in many rivers within the range of the GOM DPS. Captive-reared adult brood stock are also being stocked back into their natal rivers in small numbers in most rivers within this range (NRC, 2004). Smallmouth bass (Micropterus dolomieui) and chain pickerel (Esox niger), important non-native predators of juvenile salmon, have also been introduced throughout a large portion of the range of the GOM DPS (Fay et al., 2006). These species, along with a host of other native and non-native fish, may compete for food and space with Atlantic salmon in freshwater, affecting sites for juvenile rearing and spawning. We conclude that the spawning and rearing PCEs in each specific area are and will likely continue to be negatively affected by hatcheries and stocking, and, therefore, may require special management considerations or protections. Management considerations or protections may include efforts that employ genetic and stock management of Atlantic salmon such that stocked fish do not present a genetic or competitive risk to natural populations, and stocking of other species that do not introduce threats of predation, competition, genetics or disease. (e). Roads and Road Crossings and Other In-Stream Activities Roads and road crossings occur in all specific areas proposed for designation and negatively affect sites for spawning and rearing, and sites for migration. Roads, which are typically built in association with logging, agriculture, and development, are often negatively correlated with the ecological health of an area (Trombulak and Frissell, 2000). Road networks modify the hydrologic and sediment transport regimes of watersheds by accelerating erosion and sediment loading, altering channel PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 51757 morphology and accelerating runoff (Furniss et al., 1991), all of which can affect sites for spawning and rearing. The construction of roads near streams can prevent natural channel adjustments, and urban roads may increase runoff of pollutants (Spence et al., 1996). The use of culverts and bridges can impair habitat connectivity, limiting accessibility of habitat to juvenile and adult salmon, as well as other fish and aquatic organisms (Furniss et al., 1991). Culverts, if not properly installed or maintained, can fragment a watershed and make reaches inaccessible to migratory fish while simultaneously preventing upstream movement of resident fish and invertebrates. Conditions induced by culverts that block fish passage include high water velocities through the culvert over extended distances without adequate resting areas; water depth within the culvert that is too shallow for fish to swim; and culverts that are perched or hanging and exclude fish from entering the culvert (Furniss et al., 1991). Bridges, while preferred to culverts (Furniss et al., 1991), may also induce negative ecological impacts. Poorly designed bridges, like culverts, can alter sediment transport, natural alluvial adjustments, and downstream transport of organic material, particularly large woody debris. This alteration can affect sites for spawning, rearing and migration. Other in-stream activities, such as alternative energy projects, may also affect the PCEs. Because the two projects analyzed by NMFS (only one of which has received a preliminary permit from FERC) are in the early planning stages, NMFS has yet to make specific recommendations regarding the protection of Atlantic salmon habitat. Until specific plans for the projects are made available, the potential impact on the critical habitat for Atlantic salmon will remain uncertain, as will any modifications that might be requested to mitigate adverse impacts. We seek comment on the potential impact of critical habitat on these activities, and also whether additional alternative energy projects should be considered in our analysis. We conclude that the migration PCE and the spawning and rearing PCE in each specific area are and will likely continue to be negatively affected by roads and road crossings into the future, and, therefore, may require special management considerations or protection that may include applying best management practices that reduce sedimentation and pollution, and allow E:\FR\FM\05SEP1.SGM 05SEP1 51758 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules jlentini on PROD1PC65 with PROPOSALS for unobstructed passage of juvenile and adult Atlantic salmon at road crossings. (f). Mining Sand, gravel, cement, and some varieties of stone (e.g., slate and granite) and clay are mined extensively throughout Maine and this activity can negatively affect PCE sites, predominately those for spawning and rearing. Mining is known to occur within 36 specific areas proposed for designation. Mining of these materials in Maine occurs to the extent that Maine is largely self-sufficient with respect to these commodities (Lepage et al., 1991). Sand and gravel mining can occur in the form of gravel pits and in some cases can involve dredging of streambeds. Sand and gravel mining in or adjacent to streams can affect sites for spawning and rearing by increasing fine and coarse particle deposition and elevating turbidity from suspended sediments (Waters, 1995). We conclude that the spawning and rearing PCE is and will likely continue to be affected by sand and gravel mining into the future, and, therefore, may require special management or protections through increased riparian buffers that protect streams from sedimentation. Direct mining of gravel from streambeds does not currently occur in any of the specific areas, though such mining has been proposed in the past and may be proposed in the future. Therefore, spawning and rearing sites affected by streambed mining may require special management or protections, which may include relocation of streambed mining operations. Maine’s crystalline rocks are potential hosts to an array of metals including copper, zinc, lead, nickel, molybdenum, tin, tungsten, cobalt, beryllium, uranium, manganese, iron, gold and silver (Lepage et al., 1991) and mining of these metals can negatively affect sites for spawning and rearing and sites for migration. Many metals occur naturally in rivers and streams and in trace concentrations are considered essential for proper physiological development of fish (Nelson et al., 1991). The process of mining for metals can introduce toxic metals into streams as acid stimulation mobilizes metal ions from metalliferous minerals (Nelson et al., 1991) and therefore may alter water chemistry in sites for spawning, rearing and migration. The most frequent metals that are released into streams and may be toxic to salmon depending on their concentration include arsenic, cadmium, chromium, cobalt, copper, iron, lead, manganese, mercury, nickel, and zinc (Nelson et al., 1991). Dissolved VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 copper is known to affect a variety of biological endpoints in fish (e.g., survival, growth, behavior, osmoregulation, sensory system, and others (reviewed in Eisler, 1998)). Laboratory exposure of 2.4 micrograms/ L dissolved copper in water with hardness 20 mg/L resulted in avoidance behavior by juvenile Atlantic salmon and 20 micrograms/L dissolved copper in water with a hardness of 20 mg/L resulted in interrupted spawning migrations in the wild (Sprague et al., 1965). A combined effect of copper-zinc may result in a complete block of migration at 0.8 toxic units (Sprague et al., 1965). Currently metal mining does not occur within any of the specific areas, though recent mining exploration within the state suggests that metal mining may occur in the future. We conclude that spawning, rearing and migration PCEs in each specific area may, in the future, be negatively affected by metals mining and, therefore, may require special management considerations or protections, possibly through implementation of best management practices (BMPs) that protect rivers and streams from pollutants. There are only two active, though limited, peat mining operations in Maine, both of which are located in Washington County (USGS, 2006) in the Narraguagus River HUC 10 (HUC code 105000209). Although there is currently no direct evidence that peat mining in other countries (i.e., Ireland, Norway) has affected Atlantic salmon, studies have shown that peat mining can affect water quality, wetlands, aquatic resources and sediment load (MASTF, 1997). One potential effect of peat mining on Atlantic salmon habitat is from runoff that may have historically exacerbated depressed pH in DPS rivers (NMFS and FWS, 1999). Low pH levels are known to impair smolt migrations as they transfer from the freshwater environment to the marine environment (Staurnes et al., 1995; Brodeur et al., 2001). We conclude that peat mining may negatively affect PCE sites in the Narraguagus River HUC 10, particularly for migration, as depressed pH levels are known to adversely affect migration smolts, and, therefore, may require special management considerations or protections through measures that protect rivers and streams from acid discharge of waste water or runoff. (g). Dams Dams occur in 40 specific areas proposed for critical habitat designation and negatively affect sites for spawning and rearing and sites for migration PCEs. Dams obstruct migration of PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 Atlantic salmon which can delay or preclude adult salmon access to spawning sites and smolts from access to the marine environment. Dams also preclude or diminish access of coevolved diadromous fish communities that likely serve as buffers from predators of migrating salmon (Saunders et al., 2006). They can also degrade spawning and rearing sites through alterations of natural hydrologic, geomorphic and thermal regimes (American Rivers et al., 1999; Heinz Center, 2002; NRC, 2004; Fay et al., 2006). Dams are also the most significant contributing factor to the loss of salmon habitat connectivity within the range of the DPS (Fay et al., 2006) and have been identified as the greatest impediment to self-sustaining Atlantic salmon populations in Maine (NRC, 2004). As discussed in the economic analysis prepared in support of this designation, we recognize that impacts to hydropower operations may occur as a result of this designation. We solicit information on these impacts to inform our final designation. We conclude that the migration, spawning and rearing PCEs are and will likely continue to be negatively affected by dams into the future, and, therefore, may require special management considerations or protection through dam removal or improved fish passage devices. (h). Dredging Dredging frequently occurs within bays and estuaries along the coast of Maine and can negatively affect the migration PCEs. Dredging may occur within 25 specific areas proposed for designation in the GOM DPS and is often a temporary activity depending on the size and duration of the dredging project. Dredging is the practice of removing sediment from an aquatic system and commonly occurs in freshwater, estuarine, and marine environments. Nightingale and Simenstad (2001a) place dredging practices into one of two categories: the creation of new projects and waterway deepening, or maintenance dredging for the purpose of preserving already existing channels. Nightingale and Simenstad (2001a) list some examples of why dredging might be used and include activities such as maintaining water depths, creating or expanding marinas, mining gravel or sand for shoreline armoring, opening channels for passage of flood flows, retrieving cement mixture ingredients, and removing contaminated sediments. Dredging can cause a range of negative impacts to water quality in the E:\FR\FM\05SEP1.SGM 05SEP1 51759 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules affected area, particularly in sites for migration where dredging is most likely to occur. Of greatest concern is the associated temporary increase in the water’s turbidity (the measure of suspended solids in the water column). Increased turbidity can have adverse effects upon the impacted area’s fish community that include a range of impacts from difficulty absorbing oxygen from the water, altered feeding behavior, and changes in predator-prey relationships (Nightingale and Simenstad, 2001a). In addition, increased turbidity causes reductions in the light’s ability to penetrate the water column. Light penetration plays a central role in the level of productivity of aquatic environments, predator-prey relationships, schooling behavior, and fish migration (Nightingale and Simenstad, 2001a). Juvenile salmonids migrating through and residing in estuaries are naturally capable of coping with high levels of turbidity; however, suspended solids introduced via dredging can produce material that is of the right size and shape to adversely affect the young salmon by inhibiting their ability to diffuse oxygen through their gills (Nightingale and Simenstad, 2001a). According to Nightingale and Simenstad (2001b), suspended solids in concentrations of ≥ 4,000 mg/L have been shown to cause erosion to the terminal ends of fish gills. In addition to impacting juvenile salmon, suspended solids at levels of 20 mg/L and 10 mg/L have been shown to result in avoidance behaviors from rainbow smelt, and Atlantic herring, respectively (Wildish and Power, 1985). We conclude that the migration PCE is and will likely continue to be negatively affected by dredging into the future, and, therefore, may require special management considerations or protections which may include time of year restrictions and employment of sediment control measures. (i). Aquaculture Aquaculture occurs in four specific areas proposed for designation within the range of the GOM DPS and can negatively affect PCE sites for spawning and rearing, and migration. The influence of aquaculture on Atlantic salmon is most frequently related to the interactions between wild fish and fish that have escaped from aquaculture facilities. Most escapes of farm salmon occur in the marine environment and involve smolts, post-smolts and adults. Escaped farmed salmon generally migrate up the nearest rivers. Large escapes of aquaculture fish have occurred in Maine and Canada and escaped farm salmon are known to return to Maine rivers. Escapes have been caused by storms, cage failure, anchor failure, human error, vandalism, and predator attacks (e.g., seals; NMFS/ FWS, 2005). Although there is little direct information about the effects of net-pen salmon aquaculture on wild Maine salmon (NRC, 2004), potentially harmful interactions between wild and farmed salmon can be divided into ecological and genetic interactions. Ecological interactions can occur in sites for migration, resulting in alterations in disease transmission and changes to competition and predation pressures, whereas genetic interactions occur in spawning sites, which can modify the timing of important life history events and thereby alter selection pressures and fitness. These interactions are not mutually exclusive, and the effects of each may compound and influence the effects of the other. We conclude that the spawning and rearing PCE and the migration PCE in each affected HUC 10 is, and will likely continue to be, negatively affected by aquaculture into the future, and, therefore, may require special management considerations or protections which may include better containment of aquaculture fish to prevent escapement and enhanced disease and parasite control procedures. TABLE 1—SPECIFIC AREAS WITHIN THE GEOGRAPHIC AREA OCCUPIED BY A SPECIES AND THE ASSOCIATED SPECIAL MANAGEMENT CONSIDERATIONS OR PROTECTIONS THAT MAY BE REQUIRED jlentini on PROD1PC65 with PROPOSALS HUC code 105000205 105000204 105000208 105000201 105000207 105000209 105000213 105000203 105000206 105000210 105000212 102000202 102000203 102000204 102000205 102000301 102000302 102000303 102000305 102000306 102000307 102000401 102000402 102000404 102000405 102000406 102000501 102000502 102000503 102000505 102000506 Watershed name ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ VerDate Aug<31>2005 Special management considerations* Machias River ............................................................... East Machias River ....................................................... Pleasant River ............................................................... Dennys River ................................................................ Chandler River .............................................................. Narraguagus River ........................................................ Union River Bay ............................................................ Grand Manan Channel ................................................. Roque Bluffs Coastal .................................................... Tunk Stream ................................................................. Graham Lake ................................................................ Grand Lake Matagamon ............................................... East Branch Penobscot River ....................................... Seboeis River ................................................................ East Branch Penobscot River ....................................... West Branch Mattawamkeag River .............................. East Branch Mattawamkeag River ............................... Mattawamkeag River .................................................... Mattawamkeag River .................................................... Molunkus Stream .......................................................... Mattawamkeag River .................................................... Piscataquis River .......................................................... Piscataquis River .......................................................... Pleasant River ............................................................... Seboeis Stream ............................................................ Piscataquis River .......................................................... Penobscot River at Mattawamkeag .............................. Penobscot River at West Enfield .................................. Passadumkeag River .................................................... Sunkhaze Stream ......................................................... Penobscot River at Orson Island .................................. 19:18 Sep 04, 2008 Jkt 214001 PO 00000 Frm 00016 Fmt 4702 A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A Sfmt 4702 F F F F F F F F F F F F F F F F F F F F F F F F F F F F F F F C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S E:\FR\FM\05SEP1.SGM R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R 05SEP1 M M M M M M M M M M M M M M M M M M M M Da Da Da Da Da Da Da Da Da Da Da Da Da Da Da Da Da Da Da Da Da Da Da Da Dr Dr Dr Dr Dr Dr Dr Q Dr Q Dr Dr 51760 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules TABLE 1—SPECIFIC AREAS WITHIN THE GEOGRAPHIC AREA OCCUPIED BY A SPECIES AND THE ASSOCIATED SPECIAL MANAGEMENT CONSIDERATIONS OR PROTECTIONS THAT MAY BE REQUIRED—Continued HUC Code 102000507 102000509 102000510 102000511 102000512 102000513 105000218 105000219 105000301 105000302 105000305 103000306 103000305 103000312 105000306 105000307 104000210 Watershed Name ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ Special Management Considerations* Birch Stream ................................................................. Penobscot River at Veazie Dam .................................. Kenduskeag Stream ..................................................... Souadabscook Stream .................................................. Marsh River ................................................................... Penobscot River ............................................................ Belfast Bay .................................................................... Ducktrap River .............................................................. St. George River ........................................................... Medomak River ............................................................. Sheepscot River ............................................................ Kennebec River at Waterville Dam .............................. Sandy River .................................................................. Kennebec at Merrymeeting Bay ................................... Sheepscot Bay .............................................................. Kennebec River Estuary ............................................... Little Androscoggin River .............................................. A A A A A A A A A A A A A A A A A F F F F F F F F F F F F F F F F F C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L C/L H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S H/S R R R R R R R R R R R R R R R R M M M M M M M M M M M M M M M M Da Da Da Da Da Da Da Da Da Da Da Da Da Da Da Da Dr Dr Dr Dr Dr Dr Q Dr Dr Dr Dr Dr Dr Q Dr Dr 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. jlentini on PROD1PC65 with PROPOSALS ‘‘Specific Areas Outside the Geographical Area Occupied by the Species * * * Essential to the Conservation of the Species’’ The ESA 3(5)(A)(ii) 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 Appendix A of Biological valuation of Atlantic salmon habitat within the range of the GOM DPS) 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. To establish recovery criteria, we determined the characteristics of a recovered GOM DPS. We first established a geographic framework represented by three Salmon Habitat Recovery Units, or SHRUs, within the DPS (see appendix A of the Biological valuation of Atlantic Salmon Habitat within the range of the GOM DPS, 2008). The SHRU delineations were established to aid in developing criteria VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 for recovery to ensure that Atlantic salmon are widely distributed across the DPS such that recovery of the species is not limited to one river or one geographic location within the GOM DPS. As explained in more detail in the Biological valuation of Atlantic salmon habitat within the range of the GOM DPS, 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. The three SHRUs will provide protection from genetic and demographic stochasticity as well as depensatory effects whereby a decrease in the population can lead to reduced survival and production of eggs and offspring. Recovery of the GOM DPS, whereby each of the three SHRUs meet the criteria described below, also assures diversity across the geographic range such that fish from one SHRU may be particularly well adapted to one environment or set of conditions (e.g., long migration corridors, high gradient reaches, warm temperatures, etc.) to which fish from another SHRU may not be well adapted. Criteria As explained further in the Biological valuation of Atlantic Salmon Habitat within the range of the GOM DPS, Appendix A, we determined that if the census population (N) of adult spawners within any of the three SHRUs were to fall below 500, the GOM DPS should be evaluated as threatened pursuant to the factors set forth in the ESA. A census population of 500 adult spawners within all three SHRUs also serves as the starting point in which to make a determination of recovery for the entire PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 GOM DPS. Franklin (1980) introduced 500 as the approximate effective population size necessary to retain sufficient genetic variation and long term persistence of a population. 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), 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). We have chosen to use 500 adult spawners (1 or 2 sea-winter salmon) in each SHRU as the indicator of when the populations in each of the three SHRUs may be at risk of losing genetic variability. We used the census number rather than an effective population size (Ne) primarily because determining an effective population size for natural populations with highly complex life histories can be extremely difficult and highly variable from one year to the next (Waples and Yokota, 2007; Reiman and Allendorf, 2001). In Atlantic salmon populations, where cross-generational breeding, iteroparity, and precocious parr all contribute to the breeding population, computing an effective population size of the natural population would most likely generate values with substantial error surrounding the data, and therefore not be particularly useful in determining when the population is at risk of becoming endangered. E:\FR\FM\05SEP1.SGM 05SEP1 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules jlentini on PROD1PC65 with PROPOSALS Additionally, an N of 500 per SHRU provides only a starting point from which to establish criteria for delisting and will not necessarily be the actual number at which the DPS warrants delisting. Geographic distribution, population trends, and the results of Population Viability Analyses (PVAs) are other factors that will be used in determining extinction risks to the GOM DPS (see appendix A of Biological valuation of Atlantic salmon habitat within the GOM DPS (2008)) and the determination of when the GOM DPS warrants delisting. Furthermore, objective, measurable criteria as required under ESA § 4(f)(1)(B)(ii) will further establish thresholds for recovery and will be determined in a final recovery plan for the expanded GOM DPS. As a result, the actual number of fish needed to warrant a delisting decision will likely be greater than 500 for each SHRU based upon the demographics of the population leading up to the point at which a decision is made. Given a population size of 500 adult spawners in any SHRU as a threshold in which the GOM DPS should be evaluated for listing as a threatened species, we determined that a recovered GOM DPS would be one that is not likely to become threatened, because a recovered GOM DPS should not be a population that teeters on the line between a GOM DPS that is recovered, and a GOM DPS that is threatened. Therefore, for the GOM DPS to be considered recovered, each SHRU must have a less than 50-percent chance of the adult spawner population falling below 500 over the next 15 years (see Appendix A of Biological valuation of Atlantic salmon habitat within the GOM DPS). Additionally, the entire GOM DPS must reflect sustainable positive population growth for a period of 10 years (or two generations) to ensure that population trends are substantive (see Appendix A of Biological valuation of Atlantic Salmon Habitat within the GOM DPS, 2008). The criteria described above were then applied to aid in determining whether designating any specific unoccupied habitat areas are essential for the conservation of the species by estimating the amount of habitat needed to support a recovered GOM DPS. Using demographic data for the period between 1991–2006, a period VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 considered to have had exceptionally low survival, we applied the criteria described above in conjunction with a Population Viability Analysis (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 Appendix B of Biological valuation of Atlantic salmon habitat within the GOM DPS, 2008). 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, enough habitat is needed in each of the three SHRUs to support the offspring of 2,000 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 (100 m2) of 240 (Baum, 1997) we determined that 30,000 units of habitat is needed across each SHRU (7,200 eggs × 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 (Appendix B of Biological valuation of Atlantic Salmon Habitat within the GOM DPS, 2008). To calculate the existing quantity of habitat across the DPS both within the currently occupied range and outside the occupied range, we considered the measured quantity of habitat within each HUC 10 as well as the habitat’s quality to generate the habitat’s functional equivalent. The functional equivalent values are a measure of the quantity of habitat (expressed in units where 1 unit of habitat is equivalent to 100 m2 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 equivalent also accounts for dams within or below the HUC 10 that would further reduce survivorship of juvenile salmon within the HUC 10 as they migrate towards the marine environment. In HUC 10s that are not believed to be limited by qualitative factors or dams, the functional equivalent would be identical to the measured quantity of habitat within the PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 51761 HUC 10. In HUCs where quality and dams are believed to be limiting, the functional equivalent would be less than the measured habitat within the HUC 10. The functional equivalent value is used in the critical habitat evaluation process to determine the quantity of functioning habitat 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 2000 adult spawners. The functional equivalent was generated by multiplying the units of habitat 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)). This value was then multiplied by the passage efficiency of FERC dams with turbines raised to the power of the number of dams both within and downstream of the HUC 10. Habitat quality scores were divided by 3 to represent their relative values in terms of percentages such that a ‘‘1’’ habitat quality score has a qualitative value roughly 33 percent of habitat that is not limiting, ‘‘2’’ habitat quality score is roughly 66 percent, and a ‘‘3’’ score equals 100-percent habitat quality. We consider 0.85 to represent a coarse estimate of passage efficiency for FERC dams with turbines 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 equivalent. 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 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 habitats functional equivalent for each SHRU; amount of habitat proposed for exclusion; the amount of functional habitat (represented as functional equivalent) after exclusion; and the amount of habitat still needed to support the offspring of 2,000 adult spawners within each SHRU. E:\FR\FM\05SEP1.SGM 05SEP1 51762 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules TABLE 2—TOTAL HABITAT AND FUNCTIONAL HABITAT FOR OCCUPIED AREAS Among the Three SHRUs in the GOM DPS Total habitat units SHRU jlentini on PROD1PC65 with PROPOSALS Merrymeeting Bay ................................................................ Penobscot Bay ..................................................................... Downeast Coastal ................................................................ 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 SHRU, the amount of functional habitat available to the species is estimated to be 889 units short of what is needed to support 2000 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 of the 61,395 total habitat units in Downeast Maine, the habitat is predicted to be functioning at the equivalent of only 29,111 units because of the presence of dams or because of degraded habitat features that reduce the habitats functional value. Through restoration efforts, including enhanced fish passage and habitat improvement of anthropogenically degraded features, a substantial portion of the approximate 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 potential is estimated to be equivalent to approximately 4,000 units of habitat. This is largely because of dams without fish passage that preclude Atlantic salmon access to portions of the Union River watershed. Dam removal or improved fish passage has the potential to restore a significant amount of the 8,000 units within the Union River declared to be non-functioning habitat. 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 VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 Functional equivalent 372,639 323,740 61,395 40,001 66,263 29,111 habitat for Atlantic salmon ranging from the Kennebec River in south central Maine to the Dennys River in Eastern Maine. Projects include (though 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. The Penobscot River Restoration Project is another example of cooperative efforts on behalf of Federal and state agencies, non-profit organizations and dam owners. The PRRP goal is to enhance runs of diadromous fish 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. 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 the economic analysis) include, but are not limited to agriculture, transportation, development and hydropower. We believe this proposed critical habitat designation will provide Federal agencies, private entities, and the public with clear notification of critical habitat for Atlantic salmon and the boundaries PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 Proposed exclusion 0 3,205 0 Functional habitat after exclusions 40,001 63,058 29,111 Additional habitat needed to support the offspring of 2,000 adult spawners (i.e., 30,000 units) 0 0 889 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. Application of ESA Section 4(a)(3)(B)(1) The Sikes Act Improvement 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 E:\FR\FM\05SEP1.SGM 05SEP1 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 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 three military sites, one of which has been decommissioned and recently transitioned to civilian ownership. The two active military sites within the occupied range of the DPS include: (1) The 3,094 acre Brunswick Naval Air Station in Brunswick, Maine, of which 435 acres are within Little Androscoggin HUC 10 watershed in the Merrymeeting Bay SHRU; and (2) the Brunswick Naval Air Stations cold weather survival, evasion, resistance and escape school which occupies 12,000 acres near Rangeley, Maine and occupies 5,328 acres of the Sandy River HUC 10 watershed in the Merrymeeting Bay SHRU. We have contacted the Department of Defense and requested information on the existence of INRMPs and the benefits any INRMPs would provide to Atlantic salmon. If any INRMPs covering these sites are determined, in writing, to provide a benefit to Atlantic salmon, we would be precluded from designating the Atlantic salmon habitat within these sites, which is comprised of 9.56 km of river and streams containing physical and biological features in the Sandy River HUC, and 0.81 km of river and streams containing physical and biological features in the Lower Androscoggin HUC. jlentini on PROD1PC65 with PROPOSALS 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 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. VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 The 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 subareas. 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 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 or not the benefits of exclusion outweighed the benefits of designating the particular areas as critical habitat: (1) The quantity of functional habitat proposed for exclusion 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 Biological valuation of Atlantic salmon habitat in the GOM DPS (2008)). The Final Biological Value indicates each areas current value to Atlantic salmon PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 51763 spawning, rearing and migration activities and is applied in the 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 proposed 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. A habitat unit represents 100 m2 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 proposed 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. HUC10’s 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 biologist with knowledge of and expertise in the geographic area were asked to independently assign habitat scores, E:\FR\FM\05SEP1.SGM 05SEP1 jlentini on PROD1PC65 with PROPOSALS 51764 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 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 Biological valuation of Atlantic salmon habitat within the GOM DPS (2008)). 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. During the scoring process, biologists were given the option to consider all the HUC 12 sub-watersheds present within each HUC 10 watershed to aid in reaching a final HUC 10 watershed score. Emphasis was placed on identifying whether or not 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 and comments provided from the biologists. Final Habitat Values were generated for each HUC 10 by combining habitat quantity and habitat quality scores within each HUC 10. HUC 10s with zero scores for either habitat quantity or quality received a zero score for Final Habitat Value. Combined scores were then binned on a scale of one to three with the lowest 25 percent receiving a ‘‘1’’ score, the middle 50 percent receiving a ‘‘2’’ score, and the upper 25 percent receiving a ‘‘3’’ score. A ‘‘3’’ score represents the highest relative Final Habitat Value. A final migration score 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 score of a HUC 10 to be equal to the highest final habitat value upstream from the HUC 10 as we concluded that access to spawning and rearing habitat was VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 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 score and the final migration score of each HUC10. This approach assures the preservation of spawning and rearing habitat as well as migration habitat (see Biological valuation of Atlantic salmon habitat within the range of the GOM DPS, 2008). Consideration of Economic Impacts, Impacts to National Security and Any Other Relevant Impacts The impact 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, it 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. 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. PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 Outside of the Federal agencies’ obligation to critical habitat and project modifications that may be required to avoid destruction or adverse modification, the ESA imposes no requirements or limitations on entities or individuals as 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 proposed for designation, as well as for unoccupied areas within the range of the GOM DPS. While we are not proposing to designate unoccupied areas, 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, the present value of estimated economic impacts ranges from approximately $222 million to $259 million, with most of the economic impact resulting from impacts to hydropower and development (IEc, 2008a). The estimated economic impact of designation of the occupied areas before economic exclusions ranges from approximately $165 million to $190 million. We solicit comment on the economic impacts to activities that may be affected as a result of this designation, particularly hydropower activities and alternative energy projects. Information received will be considered in the development of the final designation. For the designation of critical habitat for the GOM DPS, economic exclusions within the 48 occupied HUC 10s throughout 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 E:\FR\FM\05SEP1.SGM 05SEP1 51765 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 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 ranked the range often monetized categories provided in the economic analysis (IEc, 2008a) as being high (‘‘3’’), medium (‘‘2’’) or low (‘‘1’’) economic impact. 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. When developing criteria for comparing economic costs the use of a dollar value was chosen. A score of ‘‘1’’ (low economic costs) represents a cost ranging from $24,000 to $432,000; a score of ‘‘2’’ represents a medium economic cost ranging form $432,001 to $2,810,000; and a score of ‘‘3’’ represents a high economic cost ranging from $2,810,001 to $26,300,000. These dollar thresholds do not represent an objective judgment that low-value areas are worth no more than $432,000, medium-value areas are worth no more than $2,810,000, or high value areas are worth no more than $26,300,000. 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 $432,000 (economic score of ‘‘2’’ or ‘‘3’’); (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 dollar thresholds and decision rules provided a relatively simple process to identify, in a limited amount of time, specific areas warranting consideration for exclusion. 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 proposed for exclusion include 1,243 km of river, stream and estuary habitat and 97 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 $8,391,000 to $9,412,000 before they were considered for exclusion. The estimated economic impact for the proposed critical habitat following exclusions ranges from approximately $97 million to $120 million. The estimated economic impact of the proposed critical habitat designation for each SHRU are in Table 3. TABLE 3—SUMMARY OF ECONOMIC IMPACT FOR OCCUPIED HUC 10 BY SHRU IN THE GOM DPS SHRU Low estimate High estimate Downeast Coastal .................................................................................................................................................... Penobscot Bay ......................................................................................................................................................... Merrymeeting Bay .................................................................................................................................................... $7,473,000 17,393,100 72,520,000 $10,488,000 22,346,900 87,310,000 Total .................................................................................................................................................................. 97,386,100 120,144,900 jlentini on PROD1PC65 with PROPOSALS National Security As stated above, within the areas identified as critical habitat for the GOM DPS, there are three military sites, one of which has been decommissioned and recently transitioned to civilian ownership. The two active military sites within the occupied range of the DPS include: (1) The 3,094 acre Brunswick Naval Air Station in Brunswick, Maine, of which 435 acres are within Little Androscoggin HUC 10 watershed in the Merrymeeting Bay SHRU; and (2) the Brunswick Naval Air Stations cold weather survival, evasion, resistance and escape school which occupies 12,000 acres near Rangeley, Maine and occupies 5,328 acres of the Sandy River HUC 10 watershed in the Merrymeeting VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 Bay SHRU. We have contacted these installations concerning the national security impacts of designation of these areas as critical habitat. If these areas are eligible for designation (i.e., not covered by INRMPs that provide a benefit to the GOM DPS) and any identified national security impacts are determined to outweigh the benefits of designation, we would exclude from the designation the Atlantic salmon habitat within these military sites, which is comprised of 9.56 km of river and streams containing physical and biological features in the Sandy River HUC, and 0.81 km of river and streams containing physical and biological features in the Lower Androscoggin HUC. PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 Other Relevant Impacts: Tribal Lands The Penobscot Indian Nation and the Passamaquoddy Tribe own and conduct activities on lands within the Gulf of Maine 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 Gulf of Maine 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 E:\FR\FM\05SEP1.SGM 05SEP1 jlentini on PROD1PC65 with PROPOSALS 51766 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 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 proposed for exclusion 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. The Penobscot Indian Nation and the Passamaquoddy Tribe own and conduct activities on approximately 182,000 acres of land throughout the entire GOM DPS. 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 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 proposed for designation, the Tribes own approximately 84,058 acres of land within 16 HUC 10 watersheds. NMFS proposes that the rivers, streams, lakes VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 and estuaries of all 84,058 acres of tribal land within the areas occupied by the GOM DPS also be excluded from critical habitat designation based on the principles of the Secretarial Order discussed above. Of the 84,058 acres, 26,401 acres overlap with particular areas being proposed for exclusion based on economic impacts. 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 proposed exclusions only in the Penobscot SHRU. No economic exclusions were proposed in the Downeast 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 equivalent below what is needed to support a recovered GOM DPS. We do not believe that exclusions of tribal lands will reduce the conservation value or functional equivalent of Atlantic salmon habitat within those particular areas given the ongoing cooperative efforts between the Tribes and the agencies. The combined habitat within the two military installations that contain critical habitat includes a total of 10 km of river and stream habitat out of roughly 4,394 km of river and stream habitat within the Merrymeeting Bay SHRU. These areas do not further reduce the amount of functional habitat within the Merrymeeting Bay SHRU below the amount needed to support the offspring of 2,000 adult spawners, and exclusion of these areas would therefore not likely result in the extinction of the species. Further evaluation of the impacts of excluding these military sites based on national security will be completed upon receipt of information requested from the Department of Defense. Public Comments Solicited We solicit comments or suggestions from the public, other concerned governments and agencies, the scientific community, industry, or any other interested party concerning the proposed designation and exclusions, the biological valuation, the economic analysis, and the 4(b)(2) report. You PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES). Copies of the proposed rule and supporting documentation, including the biological valuation, economic analysis, and 4(b)(2) report, can be found on the NMFS Northeast Region Web site at http:// www.nero.noaa.gov/prot_res/ altsalmon/. We will consider all comments pertaining to this designation received during the comment period in preparing the final rule. Classification This proposed 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 proposed rule to the extent consistent with the mandatory duty to designate critical habitat, as defined in the ESA. 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.). 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). We prepared an initial regulatory flexibility analysis (IRFA) pursuant to section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601, et seq.)(IEc, 2008b). This IRFA only analyzes the impacts to those areas where critical habitat is proposed and is available at the location identified in the ADDRESSES section. The IRFA is summarized below, as required by section 603 of the RFA. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the IRFA follows: 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. After reviewing the land use activities evaluated in the economic analysis conducted for this action, the types of small entities that may be impacted if this rule were adopted include those entities involved in hydropower, agriculture, and development activities. E:\FR\FM\05SEP1.SGM 05SEP1 jlentini on PROD1PC65 with PROPOSALS Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules The total number of affected small entities includes up to 12 dam owners and 65 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. We seek public comment on this topic. 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 proposed rule. Existing Federal laws and regulations overlap with the proposed 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. The IRFA estimates that approximately 65 small farms (average annual receipts of less than $750,000), or roughly nine percent of the farms across the DPS, may be affected by critical habitat designation (IEc, 2008b). The average annual revenue of these farms was estimated at $76,000 (USDA 2002 Census of Agriculture). The estimated average losses per small farm are estimated at $6,100 (IEc, 2008b). Impacts to development are based on impacts to landowners associated with constraints on development within a 30meter 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 VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 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 business, 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 proposed critical habitat designation (IEc, 2008b). The available data suggests that 188 small land developers operate in counties that overlap the 48 HUCs containing proposed critical habitat, accounting for 97 percent of the subdividers in the region (IEc, 2008b). The information available, however, is insufficient to estimate the impacts on these entities or to identify other potentially affected landowners (IEc, 2008b). 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 IRFA analysis (IEc, 2008b) estimates 12 hydropower producers within the 48 HUCs where critical habitat is proposed may be affected with an estimated costs accrued by these dam owners between $17 annually to $507,000 annually (IEc, 2008b). We considered and rejected the alternative of not designating critical habitat for any of the specific areas because such an action does not meet the legal requirements of the ESA. We also considered not excluding any specific areas within the occupied range for reasons of economic impact given the critically low abundance of the species. We concluded, however, that the quantity of habitat is less of a factor limiting the abundance of the species than are the accessibility to the habitat through barriers to migration and marine survival issues. Therefore, allowing for exclusion of some specific areas that have low biological value would not likely further reduce recovery efforts. We also considered a more straightforward comparison of economic cost and biological value such that any areas for which the costs of designation were greater than the biological value of the area to the species would qualify for exclusion. We chose, however, to exclude only those areas that have a biological value score of ‘‘1’’ (unless the area is without dams) because excluding all of specific areas for which the costs PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 51767 of designation were greater than the biological value of the area to the species would reduce the quantity of habitat below what is needed to achieve conservation of the species. 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 IRFA nor the Economic Analysis of Critical Habitat Designation for the Gulf of Maine Distinct Population Segment of Atlantic Salmon forecasts effects associated with the development of HCPs. We solicit comment on such impacts, particularly with respect to the development of HCPs by small entities. Pursuant to the Executive Order on Federalism, E.O. 13132, the Assistant Secretary for Legislative and Intergovernmental Affairs will provide notice of the proposed action and request comments from the appropriate officials in Maine where Atlantic salmon occur. The data and analyses supporting this proposed action have undergone a predissemination 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 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 obtained independent peer review of the scientific information that supports the proposal to designate critical habitat for the GOM DPS of Atlantic salmon and incorporated the peer review comments prior to dissemination of this proposed E:\FR\FM\05SEP1.SGM 05SEP1 51768 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules rulemaking. A Draft 4(b)(2) Report (NMFS, 2008) that supports the proposal to designate 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). This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act. 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: August 29, 2008. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons set out in the preamble, we propose to amend 50 CFR part 226 as set forth below: PART 226—DESIGNATED CRITICAL HABITAT 1. The authority citation for part 226 continues to read as follows: Authority: 16 U.S.C. 1533. 2. Add § 226.217, to read as follows: § 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 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 only being considered 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) through (b)(2) of this section. The textual descriptions of critical habitat for each SHRU are included in paragraphs (b)(3) through (b)(6) of this section, and these descriptions are the definitive source for determining the critical habitat boundaries. General location maps are provided at the end of each SHRU description (paragraph (b)(2) of this section) and are for general guidance purposes only, and not as a definitive source for determining critical habitat boundaries. (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 Coastal Washington Hancock. County Town 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. 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. jlentini on PROD1PC65 with PROPOSALS Washington ........................ VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 E:\FR\FM\05SEP1.SGM 05SEP1 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 51769 (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. 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. Squaretown Twp, Mayfield Twp, Brighton Plt, East Moxie Twp, Bald Mountain Twp T2 R3. Moro Plt, T7 R5 WELS. 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. 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. 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. 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. T8 R3 NBPP, T8 R4 NBPP. Benedicta TWP, Molunkus Twp, Sherman, T1 R5 WELS. 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. 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. Medford. Brooks, Frankfort, Jackson, Knox, Monroe, Montville, Prospect, Searsport, Stockton Springs, Swanville, Thorndike, Waldo, Winterport. Belfast, Belmont, Brooks, Frankfort, Knox, Lincolnville, Monroe, Montville, Morrill, Northport, Searsmont, Searsport, Swanville, Waldo. Piscataquis ......................... Somerset ............................ East Branch ......................... Aroostook ........................... Penobscot .......................... Piscataquis ......................... Mattawamkeag ..................... Aroostook ........................... Penobscot .......................... Penobscot ............................ Washington ........................ Aroostook ........................... Hancock ............................. Penobscot .......................... Piscataquis ......................... Waldo ................................. Penobscot Bay ..................... 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 ..................... Cumberland ........................ Kennebec ........................... Sagadahoc ......................... Androscoggin ..................... Franklin ............................... Auburn, Durham, Greene, Leeds, Lewiston, Lisbon, Sabattus, Wales. Brunswick, Freeport. Litchfield, Monmouth. Bath, Bowdoin, Bowdoinham, Richmond, Topsham. Livermore Falls. 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. Augusta, Benton, Chelsea, China, Clinton, Farmingdale, Fayette, Gardiner, Hallowell, Manchester, Oakland, Pittston, Randolph, Rome, Sidney, Vassalboro, Vienna, Waterville, West Gardiner, Windsor, Winslow. Alna, Dresden, Whitefield, Wiscasset. Bowdoinham, Perkins Twp Swan Island, Richmond, Woolwich. jlentini on PROD1PC65 with PROPOSALS Merrymeeting Bay ................ Kennebec ........................... Lincoln ................................ Sagadahoc ......................... VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 E:\FR\FM\05SEP1.SGM 05SEP1 51770 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules (iii) COUNTIES AND TOWNS PARTIALLY OR ENTIRELY WITHIN AREAS CONTAINING CRITICAL HABITAT IN THE MERRYMEETING BAY SHRU—Continued Sub-basin Town Somerset ............................ Coastal Drainages East of Small Point. County Anson, Athens, Bingham, Brighton Plt, Canaan, Cornville, Fairfield, Hartland, Madison, Mayfield Twp, Mercer, Norridgewock, Pittsfield, Skowhegan, Smithfield, Solon, Starks. Brunswick. Cumberland ........................ Kennebec ........................... Knox ................................... Lincoln ................................ Sagadahoc ......................... Waldo ................................. jlentini on PROD1PC65 with PROPOSALS (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 VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 Albion, Pittston, Windsor. Appleton, Camdem, Cushing, Friendship, Hope, Rockland, Rockport, Saint George, South Thomaston, Thomaston, Union, Warren, Washington. Alna, Boothbay, Boothbay Harbor, Bremen, Briston, Dresden, Edgecomb, Hibberts Gore, Jefferson, Newcastle, Nobleboro, Somerville, Southport, Waldoboro, Westport Island, Whitefield, Wiscasset. Arrowsic, Bath, Bowdoinham, Georgetown, Phippsburg, West Bath, Woolwich. Belmont, Freedom, Liberty, Lincolnville, Montville, Morrill, Palermo, Searsmont. 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. (i) Downeast Coastal SHRU. The Downeast Coastal SHRU encompasses fourteen HUC 10 watersheds covering approximately 1,847,698 acres within PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 Washington and Hancock Counties in Eastern Maine that contain approximately 6,039 km of perennial rivers, streams, and estuary and approximately 365 square km of lakes connected to the marine environment. Within this basin 11 HUC 10s are considered to be currently occupied (Figure 1) and contain critical habitat (Figure 2). BILLING CODE 3510–22–P E:\FR\FM\05SEP1.SGM 05SEP1 VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 PO 00000 Frm 00028 Fmt 4702 Sfmt 4725 E:\FR\FM\05SEP1.SGM 05SEP1 51771 EP05SE08.000</GPH> jlentini on PROD1PC65 with PROPOSALS Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules VerDate Aug<31>2005 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 19:18 Sep 04, 2008 Jkt 214001 PO 00000 Frm 00029 Fmt 4702 Sfmt 4725 E:\FR\FM\05SEP1.SGM 05SEP1 EP05SE08.001</GPH><FNP> jlentini on PROD1PC65 with PROPOSALS 51772 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules jlentini on PROD1PC65 with PROPOSALS (ii) Penobscot Bay SHRU. The Penobscot Bay Salmon Habitat Recovery Unit (SHRU) includes the entire Penobscot Basin and extends west as far as, and including the Ducktrap watershed, and east as far as, and including the Bagaduce watershed. The Penobscot Bay SHRU drains 54,942,705 acres containing approximately 17,443 km of perennial rivers, streams, and estuary and 1,115 sq. km of lakes VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 connected to the marine environment and occupies sections of Aroostook, Hancock, Penobscot, Piscataquis, Somerset, Waldo, and Washington counties (Baum, 1983). The Penobscot SHRU encompasses forty-six HUC 10 watersheds embedded within six major sub-basins; the West Branch, East Branch, Piscataquis, Mattawamkeag, Penobscot River and Penobscot Bay. Within the Penobscot SHRU, there are PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 51773 twenty-nine HUC 10 watersheds containing a combination of perennial rivers, lakes, streams and/or estuaries connected to the marine environment that have been identified as critical habitat (Figure 3 and Figure 4). The waters in the remaining fifteen HUC 10 watersheds are currently unoccupied habitat and therefore not designated as critical habitat. E:\FR\FM\05SEP1.SGM 05SEP1 VerDate Aug<31>2005 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 19:18 Sep 04, 2008 Jkt 214001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4725 E:\FR\FM\05SEP1.SGM 05SEP1 EP05SE08.002</GPH> jlentini on PROD1PC65 with PROPOSALS 51774 VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 PO 00000 Frm 00032 Fmt 4702 Sfmt 4725 E:\FR\FM\05SEP1.SGM 05SEP1 51775 EP05SE08.003</GPH><FNP> jlentini on PROD1PC65 with PROPOSALS Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 51776 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules jlentini on PROD1PC65 with PROPOSALS (iii) Merrymeeting Bay SHRU. The Merrymeeting Bay SHRU extends west as far as, and including the Androscoggin and east as far as, and including the St. George watershed. The Merrymeeting Bay SHRU contains approximately 21,002 km of perennial rivers, streams and estuary and 1,372 sq. km of lakes that drain a land area of VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 6,651,620 acres. The Merrymeeting Bay SHRU contains forty-five HUC 10 watersheds embedded within six major sub-basin which include the Upper Androscoggin, Lower Androscoggin, Kennebec River above Forks, Dead River, Kennebec at Merrymeeting Bay, and coastal drainages east of small point. Of the forty-five HUC 10 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 watersheds, nine are considered occupied and contain rivers, lakes, streams and estuary considered to be critical habitat (Figure 5 and Figure 6). The remaining thirty-six HUC 10’s are not occupied and do not contain critical habitat. E:\FR\FM\05SEP1.SGM 05SEP1 VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4725 E:\FR\FM\05SEP1.SGM 05SEP1 51777 EP05SE08.004</GPH> jlentini on PROD1PC65 with PROPOSALS Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 51778 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 E:\FR\FM\05SEP1.SGM 05SEP1 EP05SE08.005</GPH> jlentini on PROD1PC65 with PROPOSALS BILLING CODE 3510–22–C Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules (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; (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 Indian lands. 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 51779 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. Within the GOM DPS, approximately 79,000 acres of tribal lands in the Penobscot SHRU and 5,000 acres in the Downeast Coastal SHRU have been identified as particular areas that contain sites for spawning and rearing and sites for migration and are proposed for exclusion from critical habitat. (5) Lands owned or controlled by the Department of Defense. Additionally, 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). Excluded from designation are: (i) The 435 acres of the Brunswick Naval Air Station in Brunswick, Maine within the Little Androscoggin HUC 10 watershed in the Merrymeeting Bay SHRU. (ii) The 5,328 acres of the Brunswick Naval Air Station’s cold weather survival, evasion, resistance and escape school within the Sandy River HUC 10 watershed in the Merrymeeting Bay SHRU. (6). 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, EXCLUSIONS AND EXCLUSION TYPE BY HUC 10 WATERSHEDS Excluded areas [type] 1 Critical habitat HUC 10 code jlentini on PROD1PC65 with PROPOSALS Coastal Washington Hancock sub-basin. 0105000201 0105000203 0105000204 0105000205 0105000206 0105000207 0105000208 0105000209 0105000210 0105000212 0105000213 0105000211 0105000214 0105000215 HUC 10 watershed name River, stream and estuary (km) Dennys River ....................... Grand Manan Channel ........ East Machias River ............. Machias River ...................... Roque Bluffs Coastal ........... Chandler River ..................... Pleasant River ..................... Narraguagus River .............. Tunk Stream ........................ Graham Lake ....................... Union River Bay .................. Bois Bubert Coastal ............. Lamoine Coastal .................. Mt. Desert Coastal ............... Lake (sq. km) River, stream and estuary (km) Lake (sq. km) 45 15.5 70 58 1 0.1 6.5 15.5 14 121 18 — — — ........................ ........................ 16 [T] ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ 0.1 [T] ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ 218 641 575 991 321 154 325 573 117 976 303 — — — 1 Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal. — considered unoccupied at the time of listing. VerDate Aug<31>2005 22:05 Sep 04, 2008 Jkt 214001 PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 E:\FR\FM\05SEP1.SGM 05SEP1 51780 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules (ii) PENOBSCOT BAY SHRU. CRITICAL HABITAT, EXCLUSIONS AND EXCLUSION TYPE BY HUC 10 WATERSHEDS Excluded areas [type] 1 Critical habitat Sub-basin HUC 10 code East Branch Penobscot sub-basin. HUC 10 watershed name River, stream and estuary (km) River, stream and estuary (km) Lake (sq. km) Lake (sq. km) 0102000202 Grand Lake Matagamon ... 320 25.5 6 [T] 0.5 [T] 0102000203 East Branch Penobscot River (2). Seboeis River .................... East Branch Penobscot River (3). Webster Brook ................... 178 3 1 [T] ........................ 418 585 31 5 ........................ 3 [T] ........................ ........................ — — ........................ ........................ North Branch Penobscot River. Seeboomook Lake ............ W. Br. Penobscot R. at Chesuncook. Caucomgomok Lake ......... Chesuncook Lake .............. Nesowadnehunk Stream ... Nahamakanta Stream ....... Jo-Mary Lake ..................... West Branch Penobscot River (3). West Branch Penobscot River (4). — — ........................ ........................ — — — — ........................ ........................ ........................ ........................ — — — — — — — — — — — — ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ — — ........................ ........................ 657 22 ........................ ........................ 315 12 ........................ ........................ 0102000303 0102000305 0102000307 0102000306 0102000304 West Branch Mattawamkeag River. East Branch Mattawamkeag River. Mattawamkeag River (1) ... Mattawamkeag River (2) ... Mattawamkeag River (3) ... Molunkus Stream .............. Baskahegan Stream .......... 192 451 226 0 — 0.5 8 3 0 — ........................ ........................ ........................ 438 [E] ........................ ........................ ........................ ........................ 11 [E] ........................ Piscataquis River sub-basin 0102000401 0102000402 0102000404 0102000405 0102000406 0102000403 Piscataquis River (1) ......... Piscataquis River (3) ......... Pleasant River ................... Seboeis Stream ................. Piscataquis River (4) ......... Sebec River ....................... 762 382 812 308 328 — 15 6 17 31 30 — ........................ ........................ 16 [T] 12.2 [T] ........................ ........................ ........................ ........................ ........................ 5 [T] ........................ ........................ Penobscot River sub-basin 0102000501 Penobscot River (1) at Mattawamkeag. Penobscot River (2) at West Enfield. Passadumkeag River ........ Sunkhaze Stream .............. Penobscot River (3) at Orson Island. Birch Stream ...................... Penobscot River (4) at Veazie Dam. Kenduskeag Stream .......... Souadabscook Stream ...... Marsh River ....................... Penobscot River (6) .......... Olamon Stream ................. Pushaw Stream ................. 287 4.5 5 [T] 2.5 [T] 474 23.5 80 [T] 5.5 [T] 0 117 205 0 0.5 0.5 583 [E] ........................ 6 [T] 79 [E] ........................ ........................ Belfast Bay ........................ Ducktrap River ................... Bagaduce River ................. Stonington Coastal ............ West Penobscot Bay Coastal. 0102000204 0102000205 0102000201 West Branch Penobscot sub-basin. 0102000101 0102000102 0102000103 0102000104 0102000105 0102000106 0102000107 0102000108 0102000109 0102000110 Mattawamkeag River subbasin. 0102000301 0102000302 0102000502 0102000503 0102000505 0102000506 0102000507 0102000509 0102000510 0102000511 0102000512 0102000513 0102000504 0102000508 jlentini on PROD1PC65 with PROPOSALS Penobscot Bay sub-basin .. 1 Exclusion VerDate Aug<31>2005 0105000218 0105000219 0105000216 0105000217 0105000220 105 225 1 10 15 [T] ........................ ........................ ........................ 420 341 319 514 — — 1.5 5.5 3 29 — — ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ 177 76 — — — 9 4 — — — ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ types: [E] = Economic, [M] = Military, and [T] = Tribal—considered unoccupied at the time of listing. 22:05 Sep 04, 2008 Jkt 214001 PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 E:\FR\FM\05SEP1.SGM 05SEP1 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 51781 (iii) MERRYMEETING BAY SHRU. CRITICAL HABITAT, EXCLUSIONS, AND EXCLUSION TYPE BY HUC 10 WATERSHED Excluded areas [type] 1 Critical habitat Sub-basin HUC 10 code HUC 10 watershed name River, stream and estuary (km) 0103000101 South Branch Moose River — 0103000102 Moose River (2) above Attean Pond. Moose River (3) at Long Pond. Brassua Lake .................... Moosehead Lake ............... Kennebec River (2) above The Forks. Kennebec River above the Forks sub-basin. 0103000103 0103000104 0103000105 0103000106 River, stream and estuary (km) Lake (sq. km) — ........................ ........................ — — ........................ ........................ — — ........................ ........................ — — — — — — ........................ ........................ ........................ ........................ ........................ ........................ — — — — ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ 12 [M] 0.2 [M] Lake (sq. km) Dead River sub-basin ........ 0103000201 0103000202 0103000203 0103000204 North Branch Dead River .. South Branch Dead River Flagstaff Lake .................... Dead River ........................ — — — — Merrymeeting Bay subbasin. 0103000305 Sandy River ....................... 1215 0103000306 794 14 ........................ ........................ 621 22 ........................ ........................ — — — — ........................ ........................ ........................ ........................ — — — — — — — — ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ — — ........................ ........................ — — ........................ ........................ 0103000311 Kennebec River at Waterville Dam. Kennebec River at Merrymeeting Bay. Messalonskee Stream ....... Kennebec River (4) at Wyman Dam. Austin Stream .................... Kennebec River (6) ........... Carrabassett River ............ Sebasticook River at Pittsfield. Sebasticook River (3) at Burnham. Sebasticook River (4) at Winslow. Cobbosseecontee Stream — — ........................ ........................ 0104000101 Mooselookmeguntic Lake .. — — ........................ ........................ 0104000102 0104000103 0104000104 0104000105 0104000106 Umbagog Lake Drainage .. Aziscohos Lake Drainage Magalloway River .............. Clear Stream ..................... Middle Androscoggin River — — — — — — — — — — ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ 0104000210 Little Androscoggin River .. 549 10.5 1 [M] ........................ 0104000201 Gorham-Shelburne Tributaries. Androscoggin River at Rumford Point. Ellis River .......................... Ellis River .......................... Androscoggin River above Webb River. Androscoggin River at Riley Dam. Androscoggin River at Nezinscot River. Nezinscot River ................. Androscoggin R. above L. Andro. R. — — ........................ ........................ — — ........................ ........................ — — — — — — ........................ ........................ ........................ ........................ ........................ ........................ — — ........................ ........................ — — ........................ ........................ — — — — ........................ ........................ ........................ ........................ 0105000301 St. George River ............... 624 32 ........................ ........................ 0105000302 0105000305 0105000306 0105000307 0105000303 0105000304 Medomak River ................. Sheepscot River ................ Sheepscot Bay .................. Kennebec River Estuary ... Johns Bay .......................... Damariscotta River ............ 318 553 220 276 — — 6 19 2 3.5 — — ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ 0103000312 0103000310 0103000301 0103000302 0103000303 0103000304 0103000307 0103000308 0103000309 Upper Androscoggin subbasin. Lower Androscoggin subbasin. 0104000202 0104000203 0104000204 0104000205 0104000206 0104000207 0104000208 0104000209 jlentini on PROD1PC65 with PROPOSALS Coastal Drainages East of Small Point sub-basin. 1 Exclusion 15.8 types: [E] = Economic, [M] = Military, and [T] = Tribal—considered unoccupied at the time of listing. [FR Doc. E8–20603 Filed 9–2–08; 4:15 pm] BILLING CODE 3510–22–P VerDate Aug<31>2005 19:18 Sep 04, 2008 Jkt 214001 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 E:\FR\FM\05SEP1.SGM 05SEP1

Agencies

[Federal Register Volume 73, Number 173 (Friday, September 5, 2008)]
[Proposed Rules]
[Pages 51747-51781]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-20603]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 0808061060-81062-01]
RIN 0648-AW77


Endangered and Threatened Species; Proposed Critical Habitat for 
the Gulf of Maine Distinct Population Segment of Atlantic Salmon

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

ACTION: Proposed rule; request for comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to 
designate critical habitat for the Gulf of Maine Distinct Population 
Segment (GOM DPS) of Atlantic salmon (Salmo salar). We previously 
determined that naturally spawned and several hatchery populations of 
Atlantic salmon which constituted 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 propose to designate as critical habitat 45 
specific areas occupied by Atlantic salmon at the time of listing that 
comprise approximately 203,781 km of perennial river, stream, and 
estuary habitat and 868 square km of lake habitat within the range of 
the GOM DPS and on 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 being 
proposed is within the State of Maine. We propose to exclude 
approximately 1,463 km of river, stream, and estuary habitat and 115 
square km of lake habitat from critical habitat pursuant to section 
4(b)(2) of the ESA.

DATES: Comments on this proposal must be received by November 4, 2008. 
Two public hearings on the proposed rule will be held in conjunction 
with the Atlantic salmon proposed listing rule (See the notice, 
Proposed Endangered Status for the Gulf of Maine Distinct Population 
Segment of Atlantic Salmon, published in the Proposed Rules section of 
the September 3, 2008, issue of the Federal Register) and we will alert 
the public of the locations and dates of those hearings in a subsequent 
Federal Register notice.

ADDRESSES: You may submit comments, identified by RIN 0648-AW77, by any 
of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://
www.regulations.gov. Follow the instructions for submitting comments.
     Mail: Assistant Regional Administrator, Protected 
Resources Division, NMFS, Northeast Regional Office, Protected 
Resources Division, One Blackburn Drive, Gloucester, MA 01930.
     Facsimile (fax) to: 207-866-7342, Attention: Dan Kircheis.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All personal identifying information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (enter N/A in the required fields, if you wish to 
remain anonymous). Attachments to electronic comments will be accepted 
in Microsoft Word, Excel, Word Perfect, or Adobe PDF file formats only.
    The proposed rule, list of references and supporting documents, 
including

[[Page 51748]]

the Biological Valuation, Economic Analysis, IRFA Analysis, and 4(b)(2) 
Report, are also available electronically at the NMFS Web site http://
www.nero.noaa.gov/prot_res/ altsalmon/.

FOR FURTHER INFORMATION CONTACT: Dan Kircheis, NMFS, at 207-866-7320, 
dan.kircheis@noaa.gov; Mary Colligan, NMFS, at 978-281-9116; or Marta 
Nammack, 301-713-1401.

SUPPLEMENTARY INFORMATION: 

Background

    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 River above the site of the former Bangor Dam.
    In September of 2006, a new Status Review for Atlantic salmon in 
the United States (Status Review report) was made available to the 
public (http://www.nmfs.noaa.gov/pr/pdfs/statusreviews/
atlanticsalmon.pdf). The 2006 Status Review report 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 and Craig Brook National Fish Hatcheries. The 
most substantial difference between the 2000 GOM DPS and the GOM DPS 
described in the 2006 Status Review report is the inclusion of the 
Androscoggin, Kennebec, and Penobscot River basins. Subsequent to the 
2006 Status Review report, the Services proposed to list Atlantic 
salmon in the GOM DPS as endangered (See the notice, Proposed 
Endangered Status for the Gulf of Maine Distinct Population Segment of 
Atlantic Salmon, published in the Proposed Rules section of the 
September 3, 2008, issue of the Federal Register).
    This proposed rule would designate critical habitat for the GOM DPS 
pursuant to section 4(b)(2) of the ESA. Critical habitat is defined by 
section 3 of the ESA 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 and biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protections; 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.'' Section 3 of 
the ESA (16 U.S.C. 15332) defines the terms ``conserve,'' 
``conserving,'' and ``conservation'' as ``to use, and the use of, all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to this chapter are no longer necessary.''
    Section 4(b)(2) of the ESA (16 U.S.C. 1533) requires that, before 
designating critical habitat, we consider the economic impacts, impacts 
on national security, and other relevant impacts of specifying any 
particular area as critical habitat. Further, the Secretary may exclude 
any area from critical habitat upon a determination that the benefits 
of exclusion outweigh the benefits of inclusion, unless excluding an 
area from critical habitat will result in the extinction of the species 
concerned.
    Once critical habitat for Atlantic salmon in the GOM DPS is 
designated, section 7(a)(2) of the ESA (16 U.S.C. 1536) requires that 
each Federal agency in consultation with and with the assistance of 
NMFS, ensure that any action it authorizes, funds, or carries out is 
not likely to result in the destruction or adverse modification of 
critical habitat.
    This proposed rule summarizes the information gathered and the 
analyses conducted in support of the proposed designation, and 
announces our proposal to designate critical habitat for Atlantic 
salmon in the GOM DPS proposed for listing under ESA.

Atlantic Salmon Life History

    Atlantic salmon have a complex life history that includes 
territorial rearing in rivers to extensive feeding migrations on the 
high seas. During their life cycle, Atlantic salmon go through several 
distinct phases that are identified by specific changes in behavior, 
physiology, morphology, and habitat requirements.
    Adult Atlantic salmon return to rivers from the sea and migrate to 
their natal stream to spawn. Adults ascend the rivers of New England 
beginning in the spring. The ascent of adult salmon continues into the 
fall. Although spawning does not occur until late fall, the majority of 
Atlantic salmon in Maine enter freshwater between May and mid-July 
(Meister, 1958; Baum, 1997). Early migration is an adaptive trait that 
ensures adults have sufficient time to effectively reach spawning areas 
despite the occurrence of temporarily unfavorable conditions that occur 
naturally (Bjornn and Reiser, 1991). Salmon that return in early spring 
spend nearly 5 months in the river before spawning; often seeking cool 
water refuge (e.g., deep pools, springs, and mouths of smaller 
tributaries) during the summer months.
    In the fall, female Atlantic salmon select sites for spawning. 
Spawning sites are positioned within flowing water, particularly where 
upwelling of groundwater occurs to allow for percolation of water 
through the gravel (Danie et al., 1984). These sites are most often 
positioned at the head of a riffle (Beland et al., 1982b), the tail of 
a pool, or the upstream edge of a gravel bar where water depth is 
decreasing, water velocity is increasing (McLaughlin and Knight, 1987; 
White, 1942), and hydraulic head allows for permeation of water through 
the redd (a gravel depression where eggs are deposited). Female salmon 
use their caudal fin to scour or dig redds. The digging behavior also 
serves to clean the substrate of fine sediments that can embed the 
cobble/gravel substrate needed for spawning and reduce egg survival 
(Gibson, 1993). As the female deposits eggs in the redd, one or more 
males fertilize the eggs (Jordan and Beland, 1981). The female then 
continues digging upstream of the last deposition site, burying the 
fertilized eggs with clean gravel. A single female may create several 
redds before depositing all of her eggs. Female anadromous Atlantic 
salmon produce a total of 1,500 to 1,800 eggs per kilogram of body 
weight, yielding an average of 7,500 eggs per 2 sea-winter (SW) female 
(an adult female that has spent two winters at sea before returning to 
spawn) (Baum and Meister, 1971). After spawning, Atlantic salmon may 
either return to sea immediately or remain in freshwater until the 
following spring before returning to the sea (Fay et al., 2006). From 
1967 to 2003, approximately 3 percent of the wild and naturally reared 
adults that returned to rivers where adult returns are monitored--
mainly the Penobscot River--were repeat spawners (USASAC, 2004).
    Embryos develop in the redd for a period of 175 to 195 days, 
hatching in late March or April (Danie et al., 1983). Newly hatched 
salmon, referred to as

[[Page 51749]]

larval fry, alevin, or sac fry, remain in the redd for approximately 6 
weeks after hatching and are nourished by their yolk sac (Gustafson-
Greenwood and Moring, 1991). Survival from the egg to fry stage in 
Maine is estimated to range from 15 to 35 percent (Jordan and Beland, 
1981). Survival rates of eggs and larvae are a function of stream 
gradient, overwinter temperatures, interstitial flow, predation, 
disease, and competition (Bley and Moring, 1988). Once larval fry 
emerge from the gravel and begin active feeding they are referred to as 
fry. The majority of fry (> 95 percent) emerge from redds at night 
(Gustafson-Marjanen and Dowse, 1983).
    When fry reach approximately 4 cm in length, the young salmon are 
termed parr (Danie et al., 1984). Parr have eight to eleven pigmented 
vertical bands on their sides that are believed to serve as camouflage 
(Baum, 1997). A territorial behavior, first apparent during the fry 
stage, grows more pronounced during the parr stage as the parr actively 
defend territories (Allen, 1940; Kalleberg, 1958; Danie et al., 1984). 
Most parr remain in the river for 2 to 3 years before undergoing 
smoltification, the process in which parr go through physiological 
changes in order to transition from a freshwater environment to a 
saltwater marine environment. Some male parr may not go through 
smoltification and will become sexually mature and participate in 
spawning with sea-run adult females. These males are referred to as 
``precocious parr.''
    First year parr are often characterized as being small parr or 0+ 
parr (4 to 7 cm long), whereas second and third year parr are 
characterized as large parr (greater than 7 cm long) (Haines, 1992). 
Parr growth is a function of water temperature (Elliott, 1991), parr 
density (Randall, 1982), photoperiod (Lundqvist, 1980), interaction 
with other fish, birds, and mammals (Bjornn and Resier, 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; Hutchings, 1986; O'Connell 
and Ash, 1993; Erkinaro et al., 1998; Dempson et al., 1996; Halvorsen 
and Svenning, 2000; 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 occur (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); although 
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 both 
1SW fish and fish that have spent multiple years at sea (multi-sea 
winter fish, or MSW) 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; and 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.

Critical Habitat

Methods and Criteria Used To Identify Proposed Critical Habitat

    Critical habitat is defined by section 3 of the ESA (and 50 CFR 
424.02(d)) as ``(i) the specific areas within the geographic area 
occupied by the species, at the time it is listed in accordance

[[Page 51750]]

with the provisions of [section 4 of this Act], on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed in 
accordance with the provisions of [section 4 of this Act], upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species.'' The Department of the Interior and the 
Department of Commerce provide further regulatory guidance under 50 CFR 
424.12(b), stating that the Secretaries shall ``focus on the principal 
biological or physical constituent elements within the defined area 
that are essential to the conservation of the species * * * Primary 
constituent elements may include, but are not limited to, the 
following: roost sites, nesting grounds, spawning sites, feeding sites, 
seasonal wetland or dry land, water quality or quantity, host species 
or plant pollinator[s], geological formation, vegetation type, tide, 
and specific soil types.''

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 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. Marine migration routes and feeding habitat off Canada and 
Greenland are critical to the survival and recovery of Atlantic salmon, 
but the regulations prohibit designation of these areas as critical 
habitat.
    Because Atlantic salmon are anadromous, spending a portion of life 
in freshwater and the remaining portion in the marine environment, 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. In addition to the 
stocking program managed by USFWS and the Maine Department of Marine 
Resources (MDMR), there are small-scale stocking efforts carried out by 
non profit organizations. 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 proposed as 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 United States Geological Survey 
(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 within 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 occupy 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 primary constituent elements (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:
    (a) Naturally spawned and reared Atlantic salmon have been 
documented in the HUC 10 watershed or the watershed is believed to be 
occupied

[[Page 51751]]

based on the biological valuation of HUC 10 watershed (See Biological 
Valuation of Atlantic Salmon Habitat in the Gulf of Maine Distinct 
Population Segment (2008)) and best professional judgment of state and 
Federal biologists;
    (b) The area 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 through other stocking programs, including those efforts by the 
``Fish Friends'' program, where juvenile salmon could reasonably be 
expected to migrate to the marine environment and return to that area 
as an adult and spawn.
    Within the range of the GOM DPS, 105 HUC 10 watersheds were 
examined for occupancy based on the above criteria. Based on our 
analysis, we considered 48 of these HUC 10 watersheds within the 
geographic range to be occupied. Estuaries and bays within the occupied 
HUC 10s in 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 U.S. jurisdictional waters 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 were not proposed 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 proposed for designation 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 nearshore marine environments for juvenile feeding and growth, 
Atlantic salmon migrate through the nearshore marine areas quickly 
during the month of May and early June. Though we have some limited 
knowledge of the physical and biological features that the species uses 
in the marine environment, 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. Therefore, to determine habitat quantity for 
each HUC 10 we relied on a GIS-based habitat prediction model (See 
appendix C of the Biological Valuation of Atlantic Salmon Habitat 
within the Gulf of Maine Distinct Population Segment (2008)). 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 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 73 
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 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

[[Page 51752]]

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.
    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, 
overhanging 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 one 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

[[Page 51753]]

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 
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 headwater 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 enable 
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 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 principal 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 (New 
England Fisheries Management Council, 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

[[Page 51754]]

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 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 adults 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, 
1869; 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 which is 
necessary 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 then 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).

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    These features are essential to the conservation of the species 
because elevated water temperatures that occur in advance of a smolts 
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., 
1996; Staurnes et al., 1993). 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., 1996; Staurnes et al., 1993) 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. 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, 1096-1100).
    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 to 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 draft ESA 4(b)(2) (NMFS, 2008) Report and Economic Analysis 
(IEc, 2008a) 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.
    Specific activities that may affect the PCEs and associated 
physical and biological features are evaluated below based on whether 
the spawning and rearing PCE and/or the migration PCE may require 
special management considerations or protection. Specific areas where 
these activities occur are represented in a table following the 
evaluation of activities. Further evaluation of the activities listed 
below is presented in detail in section 5 of Kircheis and Liebich 
(2007).
(a). Agriculture
    Agricultural practices influence all specific areas proposed for 
designation and negatively impact PCE sites for spawning and rearing 
and migration. Physical disturbances caused by livestock and equipment 
associated with agricultural practices can directly impact the habitat 
of aquatic species (USEPA, 2003). Traditional agricultural practices 
require repeated mechanical mixing, aeration, and application of 
fertilizers and pesticides to soils. These activities alter physical 
soil characteristics and microorganisms. Tilling aerates the upper 
soil, but causes compaction of finely textured soils below the surface, 
which alters water infiltration. Use of heavy farm equipment and 
construction of roads also compact soils, decrease water infiltration, 
and increase surface runoff (Spence et al., 1996). Agricultural grazing 
and clearing of riparian vegetation can expose soils and increase soil 
erosion and sediment inputs into rivers.

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    Agricultural practices m