Endangered and Threatened Species; Designation of Critical Habitat for Atlantic Salmon (Salmo salar) Gulf of Maine Distinct Population Segment, 29300-29341 [E9-14268]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 117 (Friday, June 19, 2009)]
[Rules and Regulations]
[Pages 29300-29341]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-14268]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 226



Endangered and Threatened Species; Designation of Critical Habitat for 
Atlantic Salmon (Salmo salar) Gulf of Maine Distinct Population 
Segment; Final Rule

Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 0808061060-9710-02]
RIN 0648-AW77


Endangered and Threatened Species; Designation of Critical 
Habitat for Atlantic Salmon (Salmo salar) Gulf of Maine Distinct 
Population Segment

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

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a 
final rule designating critical habitat for the Atlantic salmon (Salmo 
salar) Gulf of Maine Distinct Population Segment (GOM DPS). We 
previously determined that naturally spawned and several hatchery 
populations of Atlantic salmon which constitute the GOM DPS warrant 
listing as endangered under the Endangered Species Act of 1973, as 
amended (ESA). We are required to designate critical habitat for the 
GOM DPS as a result of this listing. We hereby designate as critical 
habitat 45 specific areas occupied by Atlantic salmon at the time of 
listing that comprise approximately 19,571 km of perennial river, 
stream, and estuary habitat and 799 square km of lake habitat within 
the range of the GOM DPS and in which are found those physical and 
biological features essential to the conservation of the species. The 
entire occupied range of the GOM DPS in which critical habitat is 
designated is within the State of Maine. We exclude approximately 1,256 
km of river, stream, and estuary habitat and 100 square km of lake 
habitat from critical habitat pursuant to section 4(b)(2) of the ESA.

DATES: This rule becomes effective July 20, 2009.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection by appointment, during normal business hours, at 
the National Marine Fisheries Service, NMFS, Protected Resources 
Division, 55 Great Republic Drive, Gloucester, MA 01930-2276. The final 
rule, maps, and other materials relating to these designations can be 
found on our Web site at: https://www.nero.noaa.gov/prot_res/altsalmon/.

FOR FURTHER INFORMATION CONTACT: Dan Kircheis, National Marine 
Fisheries Service, Maine Field Station, 17 Godfrey Drive, Orono, ME 
04473 at (207) 866-7320, or Marta Nammack at (301) 713-1401 ext. 180.

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

I. Background and Previous Federal Action
II. Summary of Comments and Responses
    Biological Valuation
    Economic Analysis
    4(b)(2) Exclusion Analysis
    Miscellaneous Comments
    Comments Not Relevant to This Rule
    Remarks
III. Summary of Revisions
IV. Methods and Criteria Used to Identify Critical Habitat
    Atlantic Salmon Life History
    Identify the Geographic Area Occupied by the Species and 
Specific Areas Within the Geographic Area
    Physical and Biological Features in Freshwater and Estuary 
Specific Areas Essential to the Conservation of the Species
    Special Management Considerations or Protections
    Specific Areas Outside the Geographic Area Occupied by the 
Species * * * Essential to the Conservation of the Species
    Criteria
V. Application of ESA Section 4(a)(3)(B)(i) (Military Lands)
VI. Application of ESA Section 4(b)(2)
    Assigning Biological Value
    Consideration of Economic Impacts, Impacts to National Security, 
and Other Relevant Impacts
    Economic Impacts
    National Security and Other Relevant Impacts in Relation to 
Military Interests
    Other Relevant Impacts: Tribal Lands
    Determine Whether Exclusions Will Result in the Extinction of 
the Species
VII. Effects of Critical Habitat
    ESA Section 7 Consultation
    Activities That May Be Affected (Section 4(b)(8))
VIII. Classification
    Regulatory Planning and Review
    Regulatory Flexibility Act (U.S.C. 601 et seq.)
    Information Quality Act (IQA) (Section 515 of Pub. L. 106.554)
    Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
    National Environmental Policy Act
    Federalism
    Takings
IX. References Cited

I. Background and Previous Federal Action

    We are responsible for determining whether a species, subspecies, 
or distinct population segment (DPS) of Atlantic salmon (Salmo salar) 
is threatened or endangered, and for designating critical habitat for 
the species, subspecies, or DPS under the ESA (16 U.S.C. 1531 et seq.). 
To qualify as a DPS, an Atlantic salmon population must be 
substantially reproductively isolated from other conspecific 
populations and represent an important component in the evolutionary 
legacy of the biological species.
    We are also responsible for designating critical habitat for 
species listed under our jurisdiction. Section 3 of the ESA defines 
critical habitat as (1) specific areas within the geographical area 
occupied by the species at the time of listing, on which are found 
those physical or biological features that are essential to the 
conservation of the listed species and that may require special 
management considerations or protection, and (2) specific areas outside 
the geographical area occupied by the species at the time of listing 
that are essential for the conservation of a listed species. Our 
regulations direct us to focus on the ``primary constituent elements,'' 
or PCEs, in identifying these physical or biological features. Section 
7(a)(2) of the ESA requires that each Federal agency, in consultation 
with and with the assistance of NMFS, ensure that any action 
authorized, funded, or carried out by such agency is not likely to 
jeopardize the continued existence of an endangered or threatened 
Atlantic salmon or result in the destruction or adverse modification of 
critical habitat. Section 4 of the ESA requires us to consider the 
economic impacts, impacts on national security, and other relevant 
impacts of specifying any particular area as critical habitat.
    NMFS and the U.S. Fish and Wildlife Service (USFWS; collectively 
``the Services'') issued a final rule listing the GOM DPS of Atlantic 
salmon as endangered on November 17, 2000 (65 FR 69459). The GOM DPS 
was defined in the 2000 rule as all naturally reproducing wild 
populations and those river-specific hatchery populations of Atlantic 
salmon, having historical river-specific characteristics found north of 
and including tributaries of the lower Kennebec River to, but not 
including, the mouth of the St. Croix River at the U.S.-Canada border 
and the Penobscot

[[Page 29301]]

River above the site of the former Bangor Dam.
    In September 2006, a new Status Review for Atlantic salmon in the 
United States (Fay et al., 2006) was made available to the public 
(https://www.nmfs.noaa.gov/pr/pdfs/statusreviews/atlanticsalmon.pdf). 
The 2006 Status Review identified the GOM DPS of Atlantic salmon as 
being comprised of all anadromous Atlantic salmon whose freshwater 
range occurs in the watersheds of the Androscoggin River northward 
along the Maine coast to the Dennys River, including all associated 
conservation hatchery populations used to supplement natural 
populations; currently, such populations are maintained at Green Lake 
National Fish Hatchery (GLNFH) and Craig Brook National Fish Hatchery 
(CBNFH). In September 2008 a proposed rule was published proposing to 
list the GOM DPS of Atlantic salmon as defined in the 2006 Status 
Review as endangered (73 FR 51415; September 3, 2008). In response to 
public comments received on the proposed listing rule, and in review of 
the critical habitat proposed rule, also published in September 2008 
(73 FR 51747; September 5, 2008), the Gulf of Maine DPS was re-defined 
to exclude those areas that were outside the historic range of the 
species. The final rule published by NMFS and the USFWS in today's 
Federal Register (see Endangered and Threatened Species; Determination 
of Endangered Status for the Gulf of Maine Distinct Population Segment 
of Atlantic Salmon) defines the GOM DPS as all anadromous Atlantic 
salmon whose freshwater range occurs in the watersheds from the 
Androscoggin River northward along the Maine coast to the Dennys River, 
and wherever these fish occur in the estuarine and marine environment. 
The following impassable falls delimit the upstream extent of the 
freshwater range: Rumford Falls in the town of Rumford on the 
Androscoggin River; Snow Falls in the town of West Paris on the Little 
Androscoggin River; Grand Falls in Township 3 Range 4 BKP WKR, on the 
Dead River in the Kennebec Basin; the un-named falls (impounded by 
Indian Pond Dam) immediately above the Kennebec River Gorge in the town 
of Indian Stream Township on the Kennebec River; Big Niagara Falls on 
Nesowadnehunk Stream in Township 3 Range 10 WELS in the Penobscot 
Basin; Grand Pitch on Webster Brook in Trout Brook Township in the 
Penobscot Basin; and Grand Falls on the Passadumkeag River in Grand 
Falls Township in the Penobscot Basin. The marine range of the GOM DPS 
extends from the Gulf of Maine, throughout the Northwest Atlantic 
Ocean, to the coast of Greenland. Included are all associated 
conservation hatchery populations used to supplement these natural 
populations; currently, such conservation hatchery populations are 
maintained at GLNFH and CBNFH. Excluded are landlocked salmon and those 
salmon raised in commercial hatcheries for aquaculture. The GOM DPS as 
defined in the final rule has been listed as endangered under the ESA.
    The most substantial difference between the 2000 GOM DPS and the 
GOM DPS described in the final rule published by NMFS and the USFWS in 
today's Federal Register (see Endangered and Threatened Species; 
Determination of Endangered Status for the Gulf of Maine Distinct 
Population Segment of Atlantic Salmon) is the inclusion of the 
Androscoggin, Kennebec, and Penobscot River basins.
    The timeline for completing the critical habitat designation 
described in this final rule was established pursuant to litigation 
between NMFS and the Center for Biological Diversity and the 
Conservation Law Foundation. Upon reaching a settlement agreement, NMFS 
has agreed to publish a final rule designating critical habitat for 
Atlantic salmon no later than June 1, 2009.

II. Summary of Comments and Responses

    As described in agency regulations at 50 CFR 424.16(c)(1), we 
requested that all interested parties submit written comments on the 
proposed critical habitat designation. We also contacted the 
appropriate Federal and State agencies, scientific organizations, and 
other interested parties and invited them to comment on the proposed 
rule. To facilitate public participation, we made the proposed rule 
available via the Internet as soon as the rule was published and 
accepted comments by standard mail, fax, e-mail or through https://www.regulations.gov. In addition we held two public hearings: One in 
Augusta, ME, on November 5, 2008; and one in Brewer, ME, on November 6, 
2008. During this time 37 parties or individuals submitted written 
comments on the critical habitat proposed rule. These comments were 
grouped into three categories as they related to the 3 primary sections 
of the Critical habitat designation: Biological Valuation; Economic 
Analysis; and 4(b)(2) exclusion analysis. A fourth category is included 
to address general comments and an overview of how comments were 
handled that were not directly related to the critical habitat 
designation. In section III we review comments and additional 
information that resulted in changes to the critical habitat rule and 
supporting documents.

Biological Valuation

    Comment 1: One commenter stated that assuming the standard habitat 
needs of salmon (240 eggs per unit, 7,200 eggs per female, 1:1 sex 
ratio) and using the calculations described in the document, the 
historic run size of 150,000 fish would have required 2,250,000 units 
of habitat (75,000 females (assuming 1:1 sex ratio) x 7,200 eggs per 
female/240 eggs per unit of habitat); seven times the amount of habitat 
in the entire Penobscot Salmon Habitat Recovery Unit (SHRU).
    Response: Conservation Spawning Escapement or CSE is often used as 
a tool to describe the minimum number of spawners needed to provide 
sufficient quantities of eggs needed to fully seed the available 
habitat. The estimation of CSE is not meant to predict run sizes. The 
minimum number of eggs to fully seed the habitat is 240 eggs per unit 
of habitat where one unit of habitat is equivalent to 100 meters 
squared. The equation described by the commenter: ( of females 
x 7,200 eggs per female/240 eggs per unit of habitat = units of 
habitat) incorporates the same values used to estimate the minimum 
spawner requirement or CSE for a river in both national and 
international forums. CSE estimates do not take into account that, in 
healthy robust populations, animals are often produced in numbers 
greater than what is needed to fully seed the habitat, and, therefore, 
only those animals that are most fit for the given environment 
successfully contribute to the next generation. This is why historic 
estimates of over 100,000 adults in the Penobscot River far exceed the 
minimum spawning requirement or CSE for the Penobscot of 6,838 adult 
spawners. Despite the estimations that the Penobscot River had run 
sizes in the 10's of thousands or even 100's of thousands, only a 
fraction of the entire run would be expected to actually contribute to 
the next generation due to natural selection factors (i.e., not all 
adults will successfully spawn, and, of those that do, not all of the 
juveniles will successfully reach maturity). We refer to this historic 
estimate provided by Atkins and Foster (1868) as a reference point to 
what the run potential for the Penobscot SHRU could be; not the minimum 
number of spawners that would be needed to fully seed the habitat. 
Furthermore, the historic estimates of 150,000 adult returns (males and 
females) was not a factor in determining the run size of 2,000 adult

[[Page 29302]]

spawners (1,000 males and 1,000 females assuming a 1:1 sex ratio) used 
as a recovery goal to project critical habitat for each SHRU.
    Comment 2: One commenter stated that the 240 eggs per unit was 
derived as a way to estimate the number of spawners needed to populate 
salmon habitat with juveniles to produce 2, 3, and 4 year old smolts, 
and was never intended to be used to calculate the amount of habitat 
required by a given number of spawners. The commenter stated that it 
was their belief that using the 240 eggs per unit of habitat to predict 
habitat is an incorrect application of the work of Elson (1975) and 
Symons and Heland (1978), and is very likely to greatly overestimate 
the amount of habitat required to achieve recovery.
    Response: As described in the response to comment 1, the 240 eggs 
per unit is a target egg deposition needed to fully seed a river 
(Elson, 1975) and is the same number that is used to predict CSE of a 
river. The CSE is most often used to establish a conservation goal for 
a river based on the amount of habitat that is available to the species 
and widely used to describe the status of individual Atlantic salmon 
populations. Absent better information we believe that the equation 
used to estimate CSE can be applied inversely ( of females x 
7,200 eggs per female/240 eggs per unit = units of habitat) to estimate 
habitat needed to support the offspring from a pre-determined number of 
females. We do not believe that the estimates we provide are an over 
estimation, as the 240 eggs per unit were intended to take into account 
natural selection factors that would limit survival of the species. In 
some site specific cases, there are likely to be river reaches that 
could support far more than 240 eggs per unit and conversely, there are 
likely some reaches that can support fewer than 240 eggs per unit.
    Comment 3: Some commenters supported the designation of critical 
areas for the protection of Atlantic salmon in the Gulf of Maine, but 
felt that this designation did not extend far enough. The commenters 
stated that a critical habitat designation must include all habitat 
within the historical range of the GOM DPS of Atlantic salmon. Some 
commenters believed that the proposed critical habitat designation 
arbitrarily excluded most of the historic, suitable Atlantic salmon 
habitat and should include more specific areas in the Kennebec River, 
the Androscoggin River main stem and its tributaries all the way to 
Rumford, the entire West Branch of the Penobscot and its tributaries, 
and the Passadumkeag River. Some commenters also stated that critical 
habitat designation should include the Presumpscot River and the Sebago 
Lake watershed. Alternatively, some commenters were opposed to the 
proposed critical habitat designation on the Androscoggin River.
    Response: Sections 3(5)(A)(i) and (ii) of the ESA define critical 
habitat for a threatened or endangered species as the specific areas 
within the geographical area occupied by the species, at the time it is 
listed in accordance with the provisions of Section 4 of the ESA, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protection; and specific areas outside of 
the geographical area occupied by the species at the time it is listed 
in accordance with the provisions of section 4 of the ESA, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species. We determined in the Biological Valuation 
process that no additional areas outside of the geographical area 
occupied by the species at the time it is listed were essential for the 
conservation of the species because sufficient quantities of habitat 
are available to achieve conservation in the currently occupied range 
(NMFS, 2009a). Therefore, we concluded that unoccupied areas, including 
those specific areas within the Kennebec River above the Sandy River, 
the Androscoggin River above Lewiston Falls, and the entire West Branch 
of the Penobscot, did not qualify for critical habitat designation.
    The Presumpcot River and Sebago Lake watershed are not included in 
the geographic range of the GOM DPS, and therefore are not eligible for 
designation as critical under section 3(5)(A) of the ESA.
    Comment 4: Several commenters felt that our review of habitat 
requirements focused on activities or conditions that may affect salmon 
habitat but did not focus on activities that have impacted habitat. 
Additionally, commenters stated concerns with our identification of 
activities that may affect primary constituent elements and therefore 
may require special management consideration. Commenters specifically 
stated concerns with the following three statements: (1) The most 
direct effect of logging on stream temperature is the reduction in 
shade provided by riparian vegetation; (2) agricultural practices 
influence all specific areas proposed for designation and negatively 
impact PCE sites for spawning and rearing and migration; and (3) timber 
harvesting and preparation of soil for forestry practices can decrease 
large woody debris as well as increase soil erosion.
    Response: We do not state explicitly that any activities are 
negatively impacting Atlantic salmon habitat, but rather we list 
activities that may negatively impact Atlantic salmon habitat. Section 
4(b)(8) of the ESA states that in general we * * * ``are to include a 
brief description and evaluation of those activities (whether public or 
private) which, in the opinion of the Secretary, if undertaken, may 
adversely modify such habitat, or may be affected by such 
designation.'' The word ``may'' gives us the discretion to identify 
activities that are currently affecting critical habitat as well as 
activities that have the potential to affect critical habitat. In our 
description of activities and the types of effects that the activities 
have on critical habitat, we state that the activities may affect 
critical habitat recognizing that, at times, the activity can occur and 
have no affect on critical habitat, while in other circumstances the 
activity may have an affect on critical habitat. Activities that may 
affect critical habitat and are carried out, funded, or authorized by a 
Federal agency, will require an ESA section 7 consultation. In this 
rule, we identify activities and how they may affect critical habitat; 
a more detailed description of activities that may affect salmon 
habitat is available in our supporting document: Habitat requirements 
and management considerations for Atlantic salmon (Salmo salar) in the 
Gulf of Maine Distinct Population Segment (GOM DPS).
    Comment 5: One commenter stated that based on the 500 fish 
criterion, the Penobscot SHRU is certainly not in any danger of 
extinction.
    Response: In the recovery criteria we state that in order for the 
DPS to be considered recovered, all three SHRUs must meet or exceed the 
criteria that we have established: (1) The adult spawner population of 
each SHRU must be 500 or greater in an effort to maintain sufficient 
genetic variability within the population for long-term persistence. 
This is to be determined or estimated through adults observed at 
trapping facilities or redd counts; (2) The GOM DPS must demonstrate 
self-sustaining persistence where each SHRU has less than a 50 percent 
probability of falling below 500 adult spawners in the next 15 years 
based on population viability analysis (PVA) projections (NMFS, 2009, 
appendix A). The 50 percent assurance threshold satisfies the criterion 
that the population is ``not likely'' to become an endangered

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species, while 15 years represents the ``foreseeable future'' for which 
we have determined that we can make reasonable projections based on 
past demographic data available to us; (3) The entire GOM DPS must 
demonstrate consistent positive population growth for at least 2 
generations (10 years) before the decision to delist is made. Ten years 
of pre-decision data that reflect positive population trends provide 
some assurance that recent population increases are not happenstance 
but more likely a reflection of sustainable positive population growth; 
(4) A recovered GOM DPS must represent the natural population (i.e., 
adult returns must originate from natural reproduction that has 
occurred in the wild); hatchery product cannot be counted towards 
recovery because a population reliant upon hatchery product for 
sustainability is indicative of a population that continues to be at 
risk; (5) In order to delist the GOM DPS, the threats identified at the 
time of listing must be addressed through regulatory or any other 
means. These threats are identified in the five factors specified in 
section 4(a)(1) of the ESA as described in the 2006 Status Review (Fay 
et al., 2006). Though the Penobscot River has consistently retained a 
census population of over 500 adult spawners, for the period between 
1997 to 2006 approximately 9.6 percent of the Penobscot run resulted 
from wild spawning or fry stocked fish with the greatest wild origin 
adult return recorded in 1997 estimated at 160 adults (USASAC, 2007). 
Due to the low numbers of wild origin adult returns, the entire GOM 
DPS, including the Penobscot, fails to meet the objectives of recovery 
on the one principle point that none of the SHRUs have a wild spawning 
population greater than 500 adult spawners.
    Comment 6: One commenter agreed with the analysis of choosing 500 
adult spawners (both male and female) for an effective population size, 
and 2,000 spawners as a number that can weather downturns in survival 
as reasonable estimates for the large rivers such as those in the 
Merrymeeting Bay and Penobscot SHRUs (73 FR 51747; September 5, 2008, 
51760-51761), but did not agree that these are appropriate numbers for 
the Downeast Coastal SHRU. The commenter urged us to consider reducing 
the numbers required for an effective population size for the Downeast 
Coastal SHRU to be more representative of these smaller rivers, smaller 
habitat, and historically far smaller salmon numbers than the larger 
rivers that make up the two other SHRUs.
    Response: We believe that each of the three SHRUs, including the 
Downeast Coastal SHRU, is easily capable of supporting an effective 
population of 500 adult spawners. Furthermore, we believe using the 
criterion that each SHRU must have enough habitat to support the 
offspring of 2,000 adult spawners (See ``Specific areas outside the 
geographical area occupied by the species . . . essential to the 
conservation of the species'' section of this document) as a means of 
buffering against downturns in survival is also very attainable and not 
unreasonable for any of the three SHRUs. In the biological valuation we 
estimate that there are approximately 61,400 units of historical 
spawning and rearing habitat in the Downeast Coastal SHRU. Using the 
methods described by Elson (1975) to establish a minimum spawning 
requirement, otherwise known as the CSE, for 61,400 units of habitat, 
an estimated 4,094 adult spawners is needed to fully seed the Downeast 
Coastal SHRU (61,400 units / 7,200 eggs per female x 240 eggs per unit 
needed to fully seed the habitat = 2,047 females or 4,094 adult 
spawners assuming 1:1 sex ratio). We chose 500 adult spawners as the 
minimum effective population size not in respect to the size of the 
area, but rather in respect to the number of fish that we believe is 
the minimum number needed to retain sufficient genetic diversity within 
a SHRU. This is the case for all three SHRUs.
    Comment 7: One commenter stated that recovery criteria should not 
be set that cannot be met. Based on the Services' calculations, the 
Downeast SHRU does not have enough functional habitat to meet recovery 
criteria.
    Response: There are approximately 61,400 units of habitat in the 
Downeast Coastal SHRU which are considered to be equivalent to 
approximately 29,111 functional units. The reduced functional value of 
habitat in the Downeast SHRU is based on a reduction of habitat quality 
or the presence of dams or a combination of both as described in the 
biological valuation (NMFS, 2009). This means that the occupied areas 
in the Downeast Coastal SHRU are functioning at approximately 47 
percent of their potential. We do recognize that not all Atlantic 
salmon habitat may have functioned historically at its fullest 
potential due to natural factors. In Downeast Maine, habitat 
degradation from roads and road crossings, dams, historic log drives, 
and introduction of non-indigenous species are all factors that have 
been identified as factors that reduce the functional value of habitat 
(NRC, 2004; Fay et al., 2006). Improvements in habitat quality can 
increase the functional value of habitat for the Downeast SHRU (e.g., 
Project SHARE's ongoing efforts that enhance fish passage and habitat 
quality by improving or removing bridges, culverts, and roads adjacent 
to or crossing streams). Given improvements to degraded habitat in the 
occupied areas, functional habitat quantities in the Downeast SHRU 
would be sufficient to meet recovery goals.
    Comment 8: One commenter expressed difficulty in understanding how 
we determined fractions of dams for HUC 10s.
    Response: Dams were discounted based on their location within a HUC 
10 watershed and the degree to which it was estimated they would impede 
downstream migration of smolts. Dams with turbines were estimated to 
reduce the functional capacity habitat by 15 percent based on the 
findings of several studies (GNP, 1995; GNP, 1997; Holbrook, 2007; 
Shepard, 1991; Spicer et al., 1995). Mainstem dams without turbines are 
not expected to affect smolts in the same way as dams with turbines, 
but can result in direct or indirect mortality from delays in migration 
and by increased predation from predators that congregate around dams. 
Therefore, dams without turbines were estimated to reduce the 
functional capacity of habitat units by 7.5 percent (one half of 15 
percent). Dams located at roughly the midpoint of habitat within a HUC 
10 watershed were estimated to affect passage of roughly half the fish 
in the HUC 10 watershed (e.g., located half way up the HUC 10 
watershed) and therefore were discounted accordingly (e.g., 7.5 percent 
for dams with turbines).
    Comment 9: A commenter stated that we were unclear as to why dams 
were treated differently than other factors that influence survival of 
salmon. The commenter stated that dam mortality is applied using a 
quantitative approach while all other factors are applied using an 
index number. It would therefore take approximately seven dams to have 
an equal effect as a quality rating of 1 (e.g., approximately 33 
percent). This seems to greatly underestimate the relative effects of 
dams compared to other factors (or vice-versa).
    Response: Habitat quality scores address localized impacts and, 
therefore, only influence the functional habitat units within a HUC 10 
for which the habitat quality score is assigned. Dams were figured into 
our calculations differently than habitat quality scores because they 
affect not only the HUC 10 in which they are present, but also every

[[Page 29304]]

HUC 10 upstream of their location. Depending on the geographic location 
of the dam in regards to habitat, a dam may influence a much larger 
quantity of habitat than an individual habitat quality score.
    Comment 10: A commenter stated that some habitat scores within the 
Penobscot SHRU were underestimated because the Penobscot River 
Restoration Project was not included in the critical habitat 
designation.
    Response: We did not formulate habitat estimates that included the 
Penobscot River Restoration Project because it has not been completed 
at this point and there is not certainty that the project will be 
completed because neither the permitting nor funding has been fully 
secured.
    Comment 11: One commenter stated that the HUC 10 scale is too 
coarse. The HUC 12 scale would be better suited to identifying critical 
habitat.
    Response: We considered analyzing at the HUC 12 scale in an attempt 
to gain higher resolution for critical habitat designation, but we 
determined that we had insufficient information to evaluate the PCEs at 
the HUC 12 scale for the entire GOM DPS. In order to provide fair 
representation across the GOM DPS, we determined that it would not be 
appropriate to evaluate some areas at the HUC 10 scale and some areas 
at the HUC 12 scale.
    Comment 12: One commenter stated that the habitat amounts in some 
rivers were suspect. For example, the Dennys has 1,717 units compared 
to the Pleasant that is shown to have 3,025 units of habitat. Field 
habitat surveys indicate that the Dennys has approximately twice the 
number of habitat units as the Pleasant River. Some differences are 
valid due to un-surveyed small streams; however, the gross differences 
are surprising and need to be assessed.
    Response: In our evaluation, we relied on a GIS based habitat 
prediction model to estimate habitat for the entire GOM DPS described 
in Appendix C of the Biological Valuation. Even though in some areas we 
have fairly comprehensive field surveys of habitat, most of the DPS 
range does not have this level of information. In constructing the 
model, the outputs were cross referenced to existing habitat surveys 
and were determined to be roughly 75 percent accurate at the reach 
level. As the commenter stated, the field surveys often only take into 
account mainstem habitat and major tributaries and do not take into 
account minor tributaries, while the GIS based model does. In the 
Pleasant River, Western Little River, Taylor Brook and a significant 
portion of Eastern Little River contain fairly significant amounts of 
habitat, but are not included in the field survey, and, therefore, may 
account for some of the discrepancy between the two survey methods. 
Over time as more information becomes available, we will be able to 
increase the accuracy of this model, but for now this is the best 
available information.
    Comment 13: One commenter stated that the Nezinscot River HUC 10 
watershed was assigned a final biological value of ``3'' even though 
the Nezinscot is a destination and not a migratory corridor, and 
another commenter stated that we designated the Little Androscoggin 
River which is not occupied but arbitrarily did not include any other 
unoccupied, but historically occupied, watersheds in either the 
Androscoggin Basin or the Kennebec Basin.
    Response: The Nezinscot River HUC 10 watershed includes the 
mainstem Androscoggin River between the Little Androscoggin River HUC 
10 and the Androscoggin River at Riley Dam and therefore is an 
important migratory corridor.
    The Little Androscoggin River HUC 10 watershed does not actually 
include the Little Androscoggin River. This particular HUC 10 watershed 
includes only the Androscoggin River and its tributaries from the 
confluence with the Kennebec up to, but not including, the Little 
Androscoggin River. These comments reflect confusion expressed by many 
commenters about the names of HUC 10s as they relate to the location of 
the HUC 10. In section III of this rule, we describe how we have 
attempted to alleviate this confusion.
    Comment 14: A commenter stated that historically inaccessible 
habitat should be removed from critical habitat.
    Response: No specific areas in the range of the GOM DPS where the 
entire specific area was historically inaccessible were proposed as 
critical habitat. However, in some cases there may be small stream 
segments within a specific area identified as occupied that 
historically were, and still may be, inaccessible. We are unable to 
specifically identify the stream segments where critical habitat is 
proposed that may have been historically inaccessible because of 
insufficient information on where these barriers exist and whether they 
are full barriers to migration or partial barriers to migration. As 
activities occur in these areas, the section 7 consultation process 
will allow us to further evaluate stream segments that may have been 
historically inaccessible, and a determination of ``effect'' on the 
habitat will be made accordingly. If the activity is determined to be 
outside the historic range of the species, and the activity is not 
believed to affect critical habitat downstream of the migration 
barrier, then a determination of ``no effect'' or ``not likely to 
affect'' critical habitat may be made.
    Comment 15: A commenter stated that the biological value score of 
the lower river migration corridors should not be based on the 
biological value scores of watersheds outside the currently occupied 
range.
    Response: We discussed assigning biological values using two 
approaches: assigning scores based on the value of habitat only within 
the currently occupied range or assigning biological value based on the 
historic range of the species within the GOM DPS. We concluded that 
biological value scores should be assigned to HUC 10 watersheds based 
on the historic range of the species regardless of the presence of dams 
because areas with dams should not be under valued in terms of their 
relative importance to Atlantic salmon recovery. Hence, when evaluating 
the biological value of habitat, we asked biologists not to consider 
dams as part of their evaluation, but they were to score areas as ``0'' 
if they believed the area to be historically inaccessible due to 
natural barriers.
    Comment 16: A commenter stated that the SHRU does not function as a 
true population but rather as a collection of independent populations, 
stating that this is evident by the genetic information presented in 
studies by King et al. (2000, 2001) and Spidle et al. (2001, 2003).
    Response: The studies by King and Spidle were referred to 
extensively in our analysis of DPS structure within the Gulf of Maine 
as well as the review provided by the NRC (2003). In each of these 
studies, the authors do not imply that there is more than one 
independent population within the Gulf of Maine DPS. Spidle et al. 
(2003) and King et al. (2001) do describe Maine populations as 
independent from other North American populations and may reflect a 
limited number of metapopulations (a spatially separated group of 
populations of the same species that interact at some level). The 
National Research Council (NRC; 2004) does state that Maine rivers 
appear to reflect a metapopulation structure whereby the GOM DPS 
represents ``a set of local breeding populations connected by exchange 
of some individuals''. The NRC, however, avoids referring to these 
populations as independent populations. We discussed this issue with 
Tim King (personal communication, December 9, 2008), and

[[Page 29305]]

he concurred that he was not aware of substantive information that 
would suggest that there is a collection of independent populations 
within the GOM DPS, and he agreed with NRC's interpretation that these 
populations reflect meta-population structure. McElhany et al. (2000) 
describes independent populations quite clearly as ``any collection of 
one or more local breeding units whose population dynamics or 
extinction risk over a 100-year time period is not substantially 
altered by exchanges of individuals with other populations.'' He goes 
on to state that independent populations are often smaller than the 
Evolutionarily Significant Unit (ESU; similar to the scale to a DPS) 
and more likely to inhabit a geographic range on the scale of an entire 
river basin or major sub-basin. In the Gulf of Maine DPS there are four 
HUC 6 river basins which are the Penobscot, Kennebec, Androscoggin, and 
the Downeast Coastal Basin. Though we recognize that the genetic 
evidence presented by King and Spidle clearly indicates populations 
with strong river specificity, we do not believe that there is 
compelling evidence to determine the presence of an independent 
population structure in the GOM DPS whereby an independent population 
is a population whose extinction risk over a 100-year time period is 
not substantially altered by exchanges of individuals with other 
populations.
    Comment 17: A commenter stated that assigning a single population 
criterion of an effective population size (Ne) of 500 adult spawners 
(male and female) for each SHRU is not appropriate because each SHRU 
does not function as a true population but rather a collection of 
independent populations.
    Response: The SHRUs are established as a geographic framework for 
recovery. We did not use effective population size as a criterion for 
recovery. Rather, we use the breeding population size in conjunction 
with other criteria because of the inherent difficulties of calculating 
effective population size for natural populations, and the further 
complication of having a group of local breeding populations in which 
there is limited straying among them.
    We believe that assigning a single population criterion for an 
entire SHRU is more appropriate than trying to allocate population 
sizes on a per river basis. Assigning population values at the SHRU 
level allows flexibility in recovery such that recovery can take place 
anywhere within the SHRU as long as all of the criteria that we have 
established are met. Therefore, a recovered population could be spread 
out among multiple rivers within the SHRU or all in one river. Either 
scenario would allow for a recovery determination as long as all the 
criteria are met for delisting the DPS. If we assigned specific values 
or goals for specific rivers, low populations in one river could 
conceivably delay removing the DPS from the list.
    In contrast, we do not believe that assigning population criteria 
to the entire DPS is sufficient enough to allow for recovery to occur. 
Assigning a population criterion without reference to geographic 
distribution could allow for recovery to occur in one river for the 
entire DPS. Recovery in one river could increase the population's 
vulnerability to losses in genetic diversity as the population would be 
exposed to less habitat diversity. Recovery in one river could also 
increase the population's vulnerability to geographic stochasticity 
(e.g., a catastrophic event such as a drought or flood that could 
severely impact the population) and demographic stochasticity (e.g., a 
significant decline in a population where recovery may require some 
straying from nearby populations to increase the population size or to 
increase genetic diversity to prevent inbreeding depression) (see NMFS, 
2009, appendix A).
    Recovery criteria were developed to aid in designating critical 
habitat (NMFS, 2009, appendix A), though final recovery criteria will 
be more fully developed as part of the recovery planning process 
following the final listing.
    Comment 18: A commenter stated that many extant populations in 
Maine have not regularly achieved Ne > 500 nor Nb (breeding population) 
> than 500 over the last 100 years or more, and clearly many extant 
populations would have been unlikely to ever exceed the 1,000-2,000 
fish level that may be needed to achieve delisting under the proposed 
criteria.
    Response: We agree that many extant breeding populations may not 
have exceeded 1,000-2,000 spawners historically, but we do believe that 
1,000-2,000 spawners within a SHRU is a realistic goal given the number 
of breeding populations within a SHRU. Even though we have little 
population data that pre-dates dam construction on any of the rivers in 
Maine, Atkins' assessments of populations in both the Kennebec and 
Penobscot (estimates range between 100,000 and 200,000 adult spawners 
annually for the Penobscot and Kennebec) (Foster and Atkins, 1869) are 
reasonable estimates given that these were based on harvest estimates. 
We also avoid stating that only extant populations within the SHRUs can 
be used to recover the SHRUs, understanding that, given current low 
abundances, especially in the Merrymeeting Bay SHRU, common garden 
experiments that use a mixed stock of fish from populations outside the 
SHRU may be the most appropriate means to re-establish populations. 
This concept fits well with the metapopulation paradigm, where limited 
straying does occur between populations, and in fact is necessary in 
supporting genetic diversity as well as re-colonization of populations 
that have been extirpated or face near extirpation. We do state 
however, that in most circumstances it would be appropriate, given 
metapopulation dynamics, to use nearby or proximate populations as a 
source of fish for re-establishing depleted stocks, as these fish are 
most likely to retain the genetic and physical characteristics most 
suitable for re-establishing the targeted river.
    Comment 19: A commenter felt that the PVA simulation used to 
project habitat needed to support a recovered population seems overly 
pessimistic since it uses return rates from 1991-2006 to model a 50-
year time horizon. The commenter suggested that it would be more 
realistic to use a longer time series of return rates to better reflect 
the types of variability likely to be seen over 50 years.
    Response: In Appendix B of the Biological Valuation, an example is 
given of the PVA model and how it is used to project extinction risks 
using a time horizon of 50 years. For the actual calculations, the PVA 
was used in conjunction with the DRAFT Recovery Criteria to estimate 
how many spawners would be needed in each SHRU to withstand a period of 
low marine survival as experienced between the years of 1991 to 2006. 
The output of the model was then used in the critical habitat analysis 
to determine how much habitat in each SHRU would be needed to support a 
population capable of withstanding the period of low marine survival as 
experienced between the years of 1991 and 2006. This period of 
reference was used to reflect what we have seen as a worst case 
scenario. The outcome of the model revealed that 2,000 adult spawners 
would be needed in each SHRU in order to ensure that the population of 
each SHRU is ``not likely'' (<50 percent) to fall below 500 adult 
spawners in the ``foreseeable future'' (15 years or 3 generations). 
This particular time frame was used because our goal was to determine 
how much habitat we would need to support a population that could 
withstand another period of low marine survival such as experienced

[[Page 29306]]

during the time period between 1991 and 2006.
    Comment 20: One commenter stated that while the concept of 
effective population size (Ne) of 500 adult spawners is established in 
the literature, the decision to use a census size of 500 adult spawners 
as a minimum does not seem defensible.
    Response: We recognize the difference between effective population 
size (the number of individuals in a population who contribute 
offspring to the next generation) and census population size (the 
actual population, in this case the actual number of adult spawners) 
and acknowledge the difficulties in calculating the effective 
population size for Atlantic salmon throughout the range of the Gulf of 
Maine DPS. In most circumstances though, the effective population size 
of a species is much smaller than the actual census population size, 
given that not all breeders are likely to contribute to the next 
generation of breeders (e.g., a census population of 1,000 individuals 
may only have 800 individuals that are effective breeders) (Allendorf 
and Luikart, 2007). However, for Atlantic salmon where the breeding 
population consists of multiple generations, including parr, 1 sea 
winter, 2 sea winter, and multi-sea winter spawners, calculating the 
effective population size relative to the census population size is far 
more difficult than if all individuals were to reach maturity at the 
same age. Furthermore, the ratio of effective population size to census 
population size of adult spawner may be much closer to one for 
populations with multiple generations (including parr) participating in 
spawning activities than for populations that all mature at the same 
age.
    Genetic data is one means of calculating the effective population 
size of natural populations, though extensive genetic data from all the 
breeding populations across the DPS would need to be gathered to 
accurately make these calculations. In this case, we make an assumption 
that the census population size is equal to the effective population 
size, and assume that all returning adults will be effective spawners. 
The census population size of adult returns determined through redd 
counts or adult trap catch is what the State of Maine and the Federal 
agencies have principally relied upon as a gauge to describe population 
health of Atlantic salmon in Maine and elsewhere throughout the United 
States (USASAC 2007), and, therefore, we believe that using this same 
metric to calculate recovery is reasonable. For lack of better 
information, we believe that a census population size of 500 fish with 
the added criterion identified in the recovery criteria is a very 
reasonable goal and adequate enough to maintain within population 
spatial structure and sufficient genetic diversity within each of the 
three SHRUs.
    Comment 21: One commenter stated that the GIS-based Atlantic salmon 
model promises to be a powerful tool for making fisheries management 
decisions and directing habitat restoration or protections. The 
commenter went on to state though that several improvements to this 
model and data set could be made, including: use a digital elevation 
model to estimate drainage areas in the smaller basins; investigate the 
discrepancies and identify variables that appear to underestimate 
stream widths and, therefore, appear to underestimate salmon habitat in 
some reaches; validate the GIS model with existing field habitat 
surveys; check the GIS model for missing line segments; and check the 
model to exclude areas above known, impassible natural barriers.
    Response: The GIS based habitat prediction model development was 
expedited for the purpose of designating critical habitat. We do 
recognize that there are many attributes that could improve the output 
of the model. These improvements could not be completed in the time 
available for critical habitat designation given the schedule for 
publishing the final critical habitat designation outlined in the 
settlement agreement negotiated in the Conservation Law Foundation and 
Center for Biological Diversity lawsuit. Regardless, the model output 
conservatively predicts the presence of habitat to near 75 percent 
accuracy and, as the commenter indicates, the model slightly 
underestimates habitat because of some underestimation of stream 
widths. We feel that the 75 percent accuracy provides us with the best 
available information at this time and is sufficient to designate 
critical habitat for Atlantic salmon at the HUC 10 level (NMFS, 2009, 
Appendix C).
    Comment 22: One commenter stated that factors outside of forestry 
and land management appear to be the major limiting factors to northern 
Atlantic salmon populations and stated that climate change may be 
having an even larger effect on the species by changing runoff timing, 
raising stream temperatures, and changing the timing of salmon runs. 
Critical habitat designation does not address these issues and instead 
places greater emphasis on secondary or historic practices that are 
having at most a minor impact on the species.
    Response: The statutory language of the ESA states that we shall 
identify and evaluate those activities (whether private or public) 
which, in the opinion of the Secretary, if undertaken, may adversely 
modify such habitat, or may be affected by such designation.
    Climate change in itself is not an activity, but rather a term that 
describes the cumulative effects of many activities on the environment. 
Even though Atlantic salmon managers and scientists are concerned about 
the potential impacts of climate change on Atlantic salmon, at this 
point we have very little evidence on the effects that climate change 
has had or may have on Atlantic salmon in the GOM DPS. Furthermore, we 
are unable to support the inclusion of the activities that contribute 
to climate change due to a lack of scientific evidence that links the 
impact of a specific activity that contributes to climate change to an 
adverse modification of the physical and biological features essential 
to the conservation of the GOM DPS.
    We also do not believe that we placed greater emphasis on secondary 
or historic practices that are having only minor impacts on the 
species. In our assessment, we focused on those activities that may 
affect critical habitat. Most notably, dams represent one activity that 
we have identified as having an effect on critical habitat. The NRC 
report (2004) concluded that ``the greatest impediment to the increase 
of salmon populations in Maine is the obstruction of their passage up 
and down streams and degradation of their habitat caused by dams.'' The 
importance of dams in limiting Atlantic salmon recovery is further 
elaborated in Fay et al. (2006). In conclusion, we believe that we are 
focusing our efforts on activities that have the potential to impact 
salmon habitat, as supported by observation and scientific data.

Economic Analysis

    Comment 23: Several commenters stated that the economic analysis 
fails to address the potential cost of lost generation due to the 
diversion of flows for fishway operation. While it may be difficult to 
predict the costs associated with the potential for changes in minimum 
flows and similar operation changes, one commenter argued that the loss 
in generation value due to fishway flows can and should be quantified 
in the economic analysis. For example, a number of commenters assert 
that the Services' own ``rule of thumb'' is that they may recommend 
licensees divert approximately three to four percent of the turbine 
hydraulic capacity for use as fish passage flows. The commenters

[[Page 29307]]

further assert that this equates directly to a loss of electric 
generation at these facilities, thereby increasing costs born to hydro-
electric operators.
    Response: Section 3.4.2 of the draft economic analysis describes 
qualitatively and quantitatively potential impacts associated with 
operational changes. This section explains that, absent information 
regarding how NMFS may regulate flows at specific dam sites following a 
critical habitat designation, impacts associated with potential 
operational changes are not included in the total estimated impacts 
presented in the report. To provide context on the potential magnitude 
of operational impacts, the analysis considers a hypothetical scenario 
in which all hydropower operations within the study area are precluded 
from generating power during the month of May (peak season for 
downstream smolt migration). According to this scenario, energy costs 
could be expected to increase by up to $11.3 million.
    The final economic analysis includes in its impact estimates a 
scenario incorporating a three to four percent loss of electric 
generation at the projects for which fish passage costs are estimated. 
The analysis also incorporates a discussion on the uncertainties 
associated with these impacts.
    Comment 24: One commenter stated that the economic analysis needs 
to consider additional costs associated with fish passage facilities 
including: operational and maintenance costs, costs of effectiveness 
studies, stocking and managing for the species, and incremental costs 
of consultation.
    Response: As described in Exhibit 3-6, the draft economic analysis 
quantifies the following costs associated with fish passage facilities: 
installation, species survival studies, installation and maintenance of 
fish screens, and water quality and temperature controls. The analysis 
also includes administrative costs of consultation. The final economic 
analysis incorporates new information on the potential operation and 
maintenance costs for fish passage facilities. Stocking and management 
of the species is not considered to be related to critical habitat and 
is, therefore, appropriately not quantified in the economic analysis.
    Comment 25: Verso Paper Corporation comments that it operates four 
hydropower dams to power its mill on the Androscoggin. The draft 
economic analysis estimated that the cost of constructing fish lifts 
for fish passage at each dam would be approximately $2.5 million each. 
While $2.5 million constitutes only a moderate impact according to the 
NMFS 4(b)(2) report, the combined effect of $10 million for all four 
dams is a significant economic impact. Further, these estimates do not 
include costs of conducting species survival or water quality studies, 
or installing fish screens. These costs, along with increases in energy 
costs and impacts of programmatic changes, make it clear that the 
economic impacts to the Androscoggin mill are very high.
    Response: The 4(b)(2) analysis was not conducted on a project-by-
project basis, but on the sub-watershed (ten digit hydrologic unit 
code, or HUC) scale. That is, the total economic impacts of salmon 
conservation to all economic activities were summed by HUC. Of the four 
dams discussed here that support the Androscoggin mill, three (Riley, 
Jay, and Livermore) occur within the same HUC; the remaining dam (Otis) 
occurs in a separate HUC. Economic impacts by HUC therefore include the 
costs of fish lift construction for all dams within the HUC, as well as 
the impacts of conducting species survival and water quality studies, 
and installing fish screens (see exhibit 3-8 of IEc, 2009). As 
described in the economic analysis, to the extent that programmatic 
changes may also be requested as a result of critical habitat, the 
quantified impacts are an underestimate of the total impacts.
    We believe that the HUC 10 watershed scale is an appropriate scale 
in which to conduct the ESA section 4(b)(2) analysis as there is 
insufficient information to accurately describe the economic impact for 
all individual projects within the DPS, nor is there sufficient 
information to accurate describe the physical and biological features 
directly associated with each project. Even though there may be 
sufficient information for some projects to conduct this scale of 
analysis, by not having sufficient records for all projects in the DPS 
we can not fairly conduct a cost benefit analysis by conducting a 
project based analysis for some, and a watershed based analysis for 
others.
    Comment 26: A commenter stated that the hydropower analysis 
incorrectly assumes a 50-year license term for the re-licensing of 
hydroelectric projects over which impacts are discounted at an annual 
rate of seven percent. While the license for a new project may be for 
terms up to 50 years, a typical term for the re-licensing of an 
existing project is 30 years.
    Response: The draft economic analysis uses information from the 
FERC re-licensing schedule on the re-licensing dates for each dam and 
calculates present value impacts according to the expected year of re-
licensing. The analysis does not assume that all licenses have a 50-
year term. The present value impacts are then annualized over the full 
50-year time frame of the analysis.
    Comment 27: One commenter stated that the draft economic analysis 
assumes that a fishway for fish passage would be needed at the Milford 
Project's Gilman Falls Dam. This dam, however, contains a free-flowing 
``breach'' section of river that negates the need for any type of fish 
passage.
    Response: As described in Section 3.4.1, the draft economic 
analysis applies a ``rule of thumb'' to determine whether and what type 
of fish passage may be requested at each dam. For main stem dams, we 
anticipate that fish lifts would serve as the preferred method of fish 
passage. The Gilman Falls Dam occurs on the main stem Penobscot River; 
the draft economic analysis therefore assumed a fish lift may be 
required. We believe that salmon should be able to pass this dam at 
most, but not all, times of the year, as it is a low head dam. While 
another type of fish passage may therefore be appropriate at this site 
(e.g., a fish ladder), the economic analysis conservatively assumes it 
is possible that fish passage will need to be incorporated at this 
site.
    Comment 28: One commenter stated that the draft economic analysis 
relies heavily on overly generalized assumptions and provides an 
example of the main stem Milford Dam. For this project, the draft 
economic analysis estimated present value impacts of $232 (IEc, 2008), 
compared with the company's estimate of $7.6 million to implement the 
agreed upon fish passage measures that include installation of a fish 
lift as part of the Penobscot River Restoration Plan.
    Response: Section 3.4.1 of the draft economic analysis notes that 
it does not include economic impacts associated with providing fish 
passage at Milford and a bypass at Howland Dam where plans to improve 
fish passage have already been developed. The $7.6 million dollar cost 
will be incurred independent of any critical habitat decision and is 
therefore not an impact of the rule. At these facilities, the impact of 
the rule is limited to the administrative costs of conducting a section 
7 consultation at the time of dam relicensing.
    Comment 29: One commenter asks whether the analysis of the impact 
on electricity production would change if the Penobscot River 
Restoration Project (PRRP) were taken into account.
    Response: The economic analysis attempts to isolate and quantify 
the

[[Page 29308]]

costs of potential project modifications that result specifically from 
the designation of critical habitat. With regard to the PRRP, a plan 
has already been established independent of the designation of critical 
habitat for four projects on the Penobscot River. This plan 
incorporates project modifications that meet or exceed the measures 
that might otherwise be requested to avoid or minimize adverse 
modification of critical habitat. As a result, we do not anticipate 
that critical habitat designation would affect the design or 
implementation of the PRRP, nor do we anticipate that the designation 
of critical habitat would affect the project's costs. Accordingly, the 
economic analysis assumes that the designation of critical habitat will 
have no impact on the PRRP.
    Comment 30: One commenter requested that NMFS fully assess and 
quantify the economic impact that the listing of the Atlantic salmon 
will have on manufacturers and their employees. Specifically, the 
commenter suggested that it is unclear how facilities that are 
compliant with State standards for discharge may be affected by the 
listing. It further expressed concern that the listing may add 
uncertainty to the issuance of Maine Pollutant Discharge Elimination 
System (MPDES) permits, thereby affecting the ability of permitted 
facilities to secure financing.
    Response: The ESA does not allow for consideration of economic 
impacts in making decisions regarding whether to list species as 
endangered or threatened. Economic impacts are considered in 
designating critical habitat for listed species.
    Comment 31: One commenter stated that the ``baseline approach'' of 
the draft economic analysis considers only the economic impacts 
attributable solely to critical habitat designation and not those 
impacts that may be attributed co-extensively to the proposed DPS 
listing. The comment asserts that this approach was invalidated by the 
Tenth Circuit Court in New Mexico Cattle Growers Association v. USFWS, 
248 F 3d 1277, 1285 (10th Cir 2001), which held that the Services must 
consider all impacts of a proposed designation, even those attributed 
coextensively to the listing. The commenter stated that the Tenth 
Circuit is the only Federal Circuit Court of Appeals that has 
considered the issue. In addition, the commenter stated that because 
the status of the listing is uncertain, attempts to measure incremental 
impacts as distinct from listing are tentative and misleading.
    Response: As noted in the response to Comment 30, above, the ESA 
precludes consideration of economic impacts in making listing 
determinations but allows consideration of such impacts in conjunction 
with designating critical habitat. To the extent possible, the economic 
analysis attempts to quantify the impacts associated specifically with 
the designation of critical habitat, as these are the economic impacts 
that stand to be affected by a critical habitat designation decision. 
In some cases, the analysis acknowledges that it is difficult to 
determine what may be the causative factor for a conservation measure--
the listing or the critical habitat designation. In these cases, the 
draft economic analysis conservatively includes such impacts and notes 
the uncertainty. The economic analysis does not include, however, 
impacts of conservation measures determined by NMFS to be solely due to 
the listing, and not associated with the critical habi