Endangered and Threatened Species; Designation of Critical Habitat for the Southern Distinct Population Segment of Eulachon, 65324-65352 [2011-26950]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 203 (Thursday, October 20, 2011)]
[Rules and Regulations]
[Pages 65324-65352]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26950]



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Vol. 76

Thursday,

No. 203

October 20, 2011

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 
the Southern Distinct Population Segment of Eulachon; Final Rule

Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 101027536-1591-03]
RIN 0648-BA38


Endangered and Threatened Species; Designation of Critical 
Habitat for the Southern Distinct Population Segment of Eulachon

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

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a 
final rule to designate critical habitat for the southern Distinct 
Population Segment (DPS) of Pacific eulachon (Thaleichthys pacificus), 
pursuant to section 4 of the Endangered Species Act (ESA). We designate 
16 specific areas as critical habitat within the states of California, 
Oregon, and Washington. The designated areas are a combination of 
freshwater creeks and rivers and their associated estuaries, comprising 
approximately 539 km (335 mi) of habitat. The Tribal lands of four 
Indian Tribes are excluded from designation after evaluating the 
impacts of designation and benefits of exclusion associated with Tribal 
land ownership and management by the Tribes. No areas were excluded 
from designation based on economic impacts.
    This final rule responds to and incorporates public comments 
received on the proposed rule and supporting documents, as well as peer 
reviewer comments received on our draft biological report and draft 
economic report.

DATES: This rule will take effect on December 19, 2011.

ADDRESSES: Reference materials regarding this rulemaking can be 
obtained via the Internet at: https://www.nwr.noaa.gov or by submitting 
a request to the Protected Resources Division, Northwest Region, 
National Marine Fisheries Service, 1201 NE Lloyd Blvd., Suite 1100, 
Portland, OR 97232.

FOR FURTHER INFORMATION CONTACT: Marc Romano, NMFS, Northwest Region, 
503-231-2200, or Jim Simondet, NMFS, Southwest Region, 707-825-5171, or 
Dwayne Meadows, NMFS, Office of Protected Resources, 301-427-8403.

SUPPLEMENTARY INFORMATION: 

Background

    On March 18, 2010, we listed the southern DPS of eulachon as 
threatened under the ESA (75 FR 13012). A proposed critical habitat 
rule for the southern DPS of eulachon was published in the Federal 
Register on January 5, 2011 (76 FR 515). The present rule describes the 
final critical habitat designation, including responses to public 
comments and peer reviewer comments, and supporting information on 
eulachon biology, distribution, and habitat use, and the methods used 
to develop the final designation.
    We considered various alternatives to the critical habitat 
designation for the southern DPS of eulachon. The alternative of not 
designating critical habitat for the southern DPS of eulachon would 
impose no economic, national security, or other relevant impacts, but 
would not provide any conservation benefit to the species. This 
alternative was considered and rejected because such an approach does 
not meet the legal requirements of the ESA and would not provide for 
the conservation of the southern DPS of eulachon. The alternative of 
designating all potential critical habitat areas (i.e., no areas 
excluded) also was considered and rejected because for some areas the 
benefits of exclusion from designation outweighed the benefits of 
inclusion.
    An alternative to designating all potential critical habitat areas 
is the designation of critical habitat within a subset of these areas. 
Under section 4(b)(2) of the ESA, NMFS must consider the economic 
impact, impacts on national security, and any other relevant impact of 
specifying any particular area as critical habitat. The Secretary of 
Commerce (Secretary) has the discretion to exclude an area from 
designation as critical habitat if the benefits of exclusion (i.e., the 
impacts that would be avoided if an area were excluded from the 
designation) outweigh the benefits of designation (i.e., the 
conservation benefits to the southern DPS of eulachon if an area were 
designated), as long as exclusion of the area will not result in 
extinction of the species. We prepared an analysis describing our 
exercise of discretion, which is contained in our Final Section 4(b)(2) 
Report (NMFS, 2011a). Under this preferred alternative we have excluded 
Indian lands in California and Washington from designation as critical 
habitat. The total estimated economic impact of designating all 
specific areas (without any exclusions) is $512,000 (discounted at 7 
percent) or $532,000 (discounted at 3 percent). However the total 
estimated economic impact of the preferred alternative would be 
approximately $487,300 (discounted at 7 percent) or $506,300 
(discounted at 3 percent). We determined that the exclusion of Indian 
lands would not significantly impede the conservation of the southern 
DPS of eulachon nor result in extinction of the species. We selected 
this as the preferred alternative because it results in a critical 
habitat designation that supports the conservation of the southern DPS 
of eulachon while reducing other relevant impacts. This alternative 
also meets the requirements under the ESA and our joint NMFS-U.S. Fish 
and Wildlife Service (USFWS) regulations concerning critical habitat at 
50 CFR 424.19.
    Section 3 of the ESA (16 U.S.C. 1532(5)(A)) defines critical 
habitat as ``(i) the specific areas within the geographical area 
occupied by the species, at the time it is listed * * * on which are 
found those physical or biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations or protection; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed * * * upon a determination by the Secretary that such areas are 
essential for the conservation of the species.'' Section 3 of the ESA 
(16 U.S.C. 1532(3)) also defines the terms ``conserve,'' 
``conserving,'' and ``conservation'' to mean: ``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.'' We may not 
designate critical habitat in areas outside of U. S. jurisdiction (50 
CFR 424.12(h)). Section 4 of the ESA requires that, before designating 
critical habitat, we consider economic impacts, impacts on national 
security, and other relevant impacts of specifying any particular area 
as critical habitat. The Secretary may exclude an area from critical 
habitat if he determines that the benefits of exclusion outweigh the 
benefits of designation, unless excluding an area from critical habitat 
will result in the extinction of the species concerned. Once critical 
habitat is designated, section 7(a)(2) of the ESA requires that each 
federal agency, in consultation with NMFS and with our assistance, 
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 requirement is additional to the

[[Page 65325]]

section 7 requirement that federal agencies ensure their actions do not 
jeopardize the continued existence of listed species.

Eulachon Natural History

    Eulachon are an anadromous fish, meaning adults migrate from the 
ocean to spawn in freshwater creeks and rivers where their offspring 
hatch and migrate back to the ocean to forage until maturity. Although 
they spend 95 to 98 percent of their lives at sea (Hay and McCarter, 
2000), current data only provides an incomplete picture concerning 
their saltwater existence. The species is endemic to the northeastern 
Pacific Ocean, ranging from northern California to the southeastern 
Bering Sea in Bristol Bay, Alaska (McAllister, 1963; Scott and 
Crossman, 1973; Willson et al., 2006). This distribution coincides 
closely with the distribution of the coastal temperate rain forest 
ecosystem on the west coast of North America (with the exception of 
populations spawning west of Cook Inlet, Alaska).
    In the portion of the species' range that lies south of the United 
States-Canada border, most eulachon production originates in the 
Columbia River basin. Within the Columbia River basin, the major and 
most consistent spawning runs return to the mainstem of the Columbia 
River and the Cowlitz River (Gustafson et al., 2010). Spawning also 
occurs in other tributaries to the Columbia River, including the Grays, 
Elochoman, Kalama, Lewis, and Sandy Rivers (WDFW and ODFW, 2001). 
Historically, the only other large river basins in the contiguous 
United States where large, consistent spawning runs of eulachon have 
been documented are the Klamath River in northern California and the 
Umpqua River in Oregon. Eulachon have been found in numerous coastal 
rivers in northern California (including the Mad River and Redwood 
Creek), Oregon (including Tenmile Creek south of Yachats, OR) and 
Washington (including the Quinault and Elwha Rivers) (Emmett et al., 
1991; Willson et al., 2006).
    Major eulachon production areas in Canada are the Fraser and Nass 
rivers (Willson et al., 2006). Numerous other river systems in central 
British Columbia and Alaska have consistent yearly runs of eulachon and 
historically supported significant levels of harvest (Willson et al., 
2006; Gustafson et al., 2010). Many sources note that runs occasionally 
occur in other rivers and streams, although these tend to be sporadic, 
appearing in some years but not others, and appearing only rarely in 
some river systems (Hay and McCarter, 2000; Willson et al., 2006).

Early Life History and Maturation

    Eulachon eggs can vary considerably in size but typically are 
approximately 1 mm (0.04 in) in diameter and average about 43 mg (0.002 
oz) in weight (Hay and McCarter, 2000). Eggs are enclosed in a double 
membrane; after fertilization in the water, the outer membrane breaks 
and turns inside out, creating a sticky stalk which acts to anchor the 
eggs to the substrate (Hart and McHugh, 1944; Hay and McCarter, 2000). 
Eulachon eggs hatch in 20 to 40 days with incubation time dependent on 
water temperature (Smith and Saalfeld, 1955; Langer et al., 1977). 
Shortly after hatching, the larvae are carried downstream and dispersed 
by estuarine, tidal, and ocean currents. Larval eulachon may remain in 
low salinity, surface waters of estuaries for several weeks or longer 
(Hay and McCarter, 2000) before entering the ocean. Similar to salmon, 
juvenile eulachon are thought to imprint on the chemical signature/
smell of their natal river basin. However, juvenile eulachon spend less 
time in freshwater environments than do juvenile salmon and researchers 
believe that this may cause returning eulachon to stray between 
spawning sites at higher rates than salmon (Hay and McCarter, 2000).
    Once juvenile eulachon enter the ocean, they move from shallow 
nearshore areas to deeper areas over the continental shelf. Larvae and 
young juveniles become widely distributed in coastal waters, where they 
are typically found near the ocean bottom in waters 20 to 150 m deep 
(66 to 292 ft) (Hay and McCarter, 2000) and sometimes as deep as 182 m 
(597 ft) (Barraclough, 1964). There is currently little information 
available about eulachon movements in nearshore marine areas and the 
open ocean. However, eulachon occur as bycatch in the ocean shrimp 
(Pandalus jordani) fishery (Hay et al., 1999; Olsen et al., 2000; 
Northwest Fishery Science Center (NWFSC), 2008; Hannah and Jones, 
2009), indicating that the distribution of these two species may 
overlap in the ocean.

Spawning Behavior

    Eulachon typically spend several years in salt water before 
returning to fresh water as a ``run'' to spawn from late winter through 
early summer. Eulachon are semelparous, meaning that they spawn once 
and then die (Gustafson et al., 2010; Hay et al., 2002). Spawning 
grounds are typically in the lower reaches of larger rivers fed by 
snowmelt (Hay and McCarter, 2000). Willson et al. (2006) concluded that 
the age distribution of eulachon in a spawning run varies considerably, 
but typically consists of fish that are 2 to 5 years old. Eulachon eggs 
commonly adhere to sand (Langer et al., 1977) or pea-sized gravel 
(Smith and Saalfeld, 1955), though eggs have been found on silt, gravel 
to cobble sized rock, and organic detritus (Smith and Saalfeld, 1955; 
Langer et al., 1977; Lewis et al., 2002). Eggs found in areas of silt 
or organic debris reportedly suffer much higher mortality than those 
found in sand or gravel (Langer et al., 1977).
    In many rivers, spawning is limited to the part of the river that 
is influenced by tides (Lewis et al., 2002), but some exceptions exist. 
In the Berners Bay system of Alaska, the greatest abundance of eulachon 
are observed in tidally-influenced reaches, but some fish ascend well 
beyond the tidal influence (Willson et al., 2006). In the Kemano River, 
Canada, water velocity greater than 0.4 meters/second begins to limit 
the upstream movements of eulachon (Lewis et al., 2002).
    Entry into the spawning rivers appears to be related to water 
temperature and the occurrence of high tides (Ricker et al., 1954; 
Smith and Saalfeld, 1955; Spangler, 2002). Spawning generally occurs in 
January, February, and March in the Columbia River, the Klamath River, 
and the coastal rivers of Washington and Oregon, and April and May in 
the Fraser River (Gustafson et al., 2010). Eulachon runs in central and 
northern British Columbia typically occur in late February and March or 
late March and early April. Attempts to characterize eulachon run 
timing are complicated by marked annual variation in timing. Willson et 
al. (2006) give several examples of spawning run timing varying by a 
month or more in rivers in British Columbia and Alaska. Climate change, 
especially as it affects ocean conditions, is considered a significant 
threat to eulachon and their habitats and may also be a factor in run 
timing (Gustafson et al., 2010). Most rivers supporting spawning runs 
of eulachon are fed by extensive snowmelt or glacial runoff, so 
elevated temperatures and changes in snow pack and the timing and 
intensity of stream flows will likely impact eulachon run timing. There 
are already indications, perhaps in response to warming conditions and/
or altered stream flow timing, that spawning runs are occurring earlier 
in several rivers within the range of the southern DPS (Moody, 2008).
    Water temperature at the time of spawning varies across the range 
of the species. Although spawning generally occurs at temperatures from 
4 to 7 [deg]C (39

[[Page 65326]]

to 45 [deg]F) in the Cowlitz River (Smith and Saalfeld, 1955), and at a 
mean temperature of 3.1 [deg]C (37.6 [deg]F) in the Kemano and Wahoo 
Rivers, peak eulachon runs occur at noticeably colder temperatures 
(between 0 and 2 [deg]C [32 and 36 [deg]F]) in the Nass River. The Nass 
River run is also earlier than the eulachon run that occurs in the 
Fraser River, which typically has warmer temperatures than the Nass 
River (Langer et al., 1977).

Prey

    Eulachon larvae and juveniles eat a variety of prey items, 
including phytoplankton, copepods, copepod eggs, mysids, barnacle 
larvae, and worm larvae (Barraclough, 1967; Barraclough and Fulton, 
1967; Robinson et al., 1968a, 1968b). Eulachon adults feed on 
zooplankton, chiefly eating crustaceans such as copepods and 
euphausiids (Hart, 1973; Scott and Crossman, 1973; Hay, 2002; Yang et 
al., 2006), unidentified malacostracans (Sturdevant, 1999), and 
cumaceans (Smith and Saalfeld, 1955). Adults and juveniles commonly 
forage at moderate depths (20-150 m [66-292 ft]) in nearshore marine 
waters (Hay and McCarter, 2000). Eulachon adults do not feed during 
spawning (McHugh, 1939; Hart and McHugh, 1944).

Summary of Comments Received and Responses

    We solicited public comment for a total of 60 days on the proposed 
designation of critical habitat for the southern DPS of eulachon. In 
addition, we held a public hearing on the proposal in Portland, Oregon 
on January 26, 2011 at which one member of the public provided oral 
testimony. This testimony was recorded and our responses to comments 
address substantive comments from that individual. We received written 
comments from eight commenters, and these are available online at: 
https://www.regulations.gov/#!docketDetail;rpp=10;po=10;D=NOAA-NMFS-
2011-0013. Summaries of the substantive comments received, and our 
responses, are organized by category and provided below.
    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review pursuant to the 
Information Quality Act (IQA). The Bulletin was published in the 
Federal Register on January 14, 2005 (70 FR 2664). The Bulletin 
established minimum peer review standards, a transparent process for 
public disclosure of peer review planning, and opportunities for public 
participation with regard to certain types of information disseminated 
by the Federal Government. The peer review requirements of the OMB 
Bulletin apply to influential or highly influential scientific 
information disseminated on or after June 16, 2005. Two documents 
supporting this final designation of critical habitat for the southern 
DPS of eulachon are considered influential scientific information and 
subject to peer review. In accordance with the OMB policies, we 
solicited technical review of the draft Biological Report (NMFS, 2010a) 
and the draft Economic Analysis (NMFS, 2010b). Each of these reports 
was reviewed by three independent experts selected from the academic 
and scientific communities.
    There was substantial overlap between the comments from the peer 
reviewers and the substantive public comments. The comments were 
sufficiently similar that we have responded to the peer reviewer's 
comments through our general responses below. Revisions resulting from 
peer review and public comments have been made to the documents 
supporting this designation (i.e., Biological Report, Economic 
Analysis, and Section 4(b)(2) Report) and the final versions of those 
documents can be found on our Web site at: https://www.nwr.noaa.gov/Other-Marine-Species/Eulachon.cfm.

Physical or Biological Features Essential for Conservation

    Comment 1: One commenter suggested that nearshore and marine waters 
are essential as a migratory corridor for the passage of eulachon, and 
passage should be included as a feature in nearshore and marine waters.
    Response: Eulachon migrate from their natal streams to marine 
waters of the continental shelf, and likely migrate throughout coastal 
waters until they return as adults to spawn. There are two difficulties 
with relying on a passage feature in the ocean for a species such as 
eulachon: (1) There is no information regarding the characteristics or 
conditions in coastal waters that would make a specific area suitable 
for passage, and (2) there is no evidence that eulachon use specific 
marine areas for migration. Regarding the first point, there is no 
information to indicate that eulachon rely on habitat features to guide 
migration, such as a particular type of current, temperature gradient, 
bathymetry, coastline, etc. Since there are no known characteristics of 
an area that would aid in delineation, one must consider whether there 
is some other evidence of a migration corridor or site, such as 
documented use for completing a portion of the life history. In the 
case of eulachon, there are no observations of eulachon migration that 
would allow us to infer the presence of migratory pathways in specific 
areas of the ocean. Absent information on the detailed characteristics 
that would allow delineation of a specific area, or information that 
eulachon actually use a defined area, we were unable to identify 
`specific areas' in the ocean that contain migratory pathways.
    Eulachon biology and habitat use differ from other species for 
which we have identified migratory pathways as an essential feature in 
marine waters. For example, green sturgeon (Acipenser medirostris) are 
primarily associated with bottom habitats in the ocean and travel along 
the coast in a migration corridor that is delimited by bathymetry 
(specifically, we identified the 60 fathom contour as the seaward 
extent of a green sturgeon migration feature) (74 FR 52300; October 9, 
2009). Green sturgeon adherence to a migration corridor shoreward of 
this depth contour is documented through tagging studies and bycatch in 
fisheries (Erickson and Hightower, 2007). While we do have some limited 
information about areas where eulachon are present either through 
fisheries bycatch reports or fisheries-independent research, this 
information suggests only that eulachon are present in these areas. It 
does not shed light on a feature, such as a migratory pathway, that is 
essential to eulachon conservation. Additional contrasting examples 
include bull trout (Salvelinus confluentus) and Puget Sound Chinook 
(Oncorhynchus tshawytscha), which migrate in marine waters along the 
shoreline. Their critical habitat areas are delineated along a depth 
contour based on the penetration of light, which creates specific 
physical and biological conditions essential for their conservation. 
For Southern Resident killer whales (Orcinus orca) we also identified a 
passage feature in marine waters, among other features. The three 
specific areas designated as killer whale critical habitat in inland 
marine waters of Washington State contained all of the identified 
features. The one specific area primarily defined by the passage 
feature was the Strait of Juan de Fuca, a relatively narrow marine 
corridor through which killer whales pass on their migrations between 
coastal waters and inland waters.
    Comment 2: One commenter believed that our reliance on evidence of 
spawning or spawning migration to designate critical habitat may be 
considered ``arbitrary,'' and they cited Alliance for Wild Rockies v. 
Lyder, 728 F. Supp. 1126, 1134 (D. Mont. 2010) in

[[Page 65327]]

support of their argument. The commenter stated that ``NMFS must 
consider other elements besides spawning when determining whether an 
area should be designated as critical habitat.''
    Response: Eulachon are an anadromous species that spend 95-98 
percent of their lives in the marine environment (Hay and McCarter, 
2000). The best available scientific evidence suggests that adult 
eulachon are semelparous and enter freshwater and estuarine areas only 
to spawn, and after spawning the adult fish die (Hay et al., 2002; 
Gustafson et al., 2010). Eulachon eggs develop at or near the point 
they were spawned, and larval eulachon typically outmigrate via the 
same routes that adult spawners took to reach the spawning area. 
Because eulachon are semelparous and the best available evidence 
suggests that freshwater and estuarine areas are only used by eulachon 
for spawning activities (i.e. spawning migration, spawning, egg 
incubation and larval outmigration) we used spawning data to determine 
if essential features are present. Our approach was not the same as the 
approach used by the USFWS to designate critical habitat for the Canada 
lynx that is the subject of Alliance for Wild Rockies v. Lyder. The 
Canada lynx utilizes its habitat for a variety of life cycle activities 
beyond reproduction. There the USFWS used reproduction, one of several 
life functions, as the sole test to rule out the presence of essential 
features. In the Alliance for Wild Rockies decision, the court noted, 
``[w]hile it is rational to conclude areas with evidence of 
reproduction contain the primary constituent elements and should be 
designated as critical habitat, the Service could not flip that logic 
and so it means that critical habitat only exists where there is 
evidence of reproduction.'' As a result, our reliance on evidence of 
spawning and spawning migration to identify critical habitat within 
freshwater and estuarine areas is not ``arbitrary'' according to the 
Alliance for Wild Rockies decision.
    Comment 3: One commenter stated that in making our decision on 
which specific areas qualified as critical habitat, we relied on 
``extremely limited sampling'' and, for some rivers and creeks, only 
``opportunistic sightings'' and the ``best professional judgment of 
agency and Tribal biologists familiar with the area.'' The commenter 
believes that this is ``insufficient to satisfy the requirements of the 
ESA and may make it more difficult to recover this DPS.''
    Response: Section 4(b)(2) of the ESA requires the Secretary of 
Commerce to designate critical habitat ``on the basis of the best 
scientific data available.'' In the proposed rule, and supporting 
Biological Report (NMFS, 2011b), we outlined the evidence that we used 
to identify specific areas as critical habitat. We stated in the 
proposed rule that we ``relied on data from published literature, field 
observations (including river sampling with a variety of net types), 
opportunistic sightings, commercial and recreational harvest, and 
anecdotal information.'' This final rule incorporates the findings in 
the proposed rule and the Biological Report, as well as peer review of 
the Biological Report and the Economic Analysis (NMFS, 2011c) and 
public comments on the proposed rule. Taken together, this information 
represents the best available scientific data available to inform our 
critical habitat decision.
    We relied on the most recent scientific information available to us 
to determine which areas were eligible for designation. For a limited 
number of creeks and rivers, opportunistic sightings are the only 
information that is available to identify the distribution of the 
essential features. Where the only available information was 
opportunistic sightings, we consulted agency and Tribal biologists 
familiar with the area to confirm the information and identify the 
extent of the essential features. Where such information was the only 
information available, and was confirmed by the best professional 
judgment of biologists knowledgeable about the species and the area, we 
consider it the ``best available scientific information,'' and adequate 
to inform our decisions. Our actions are thus in accordance with 
section 4(b)(2) of the ESA and our implementing regulations (50 CFR 
424.12).

Specific Areas Within the Geographical Area Occupied by the Species

    Comment 4: Two commenters agreed with our decision not to designate 
critical habitat in nearshore and offshore marine areas, and a third 
commenter recognized the problem in identifying critical habitat in 
these areas. In contrast, several commenters disagreed with our 
decision and some of these cited the availability of eulachon harvest 
and bycatch data as evidence of eulachon distribution in marine waters. 
One commenter questioned why we did not discuss in the proposed rule 
whether nearshore and marine waters may require special management 
considerations or protection. A separate commenter stated that there is 
a wide range of literature on the effects of trawling on seafloor 
habitat, and that the effects of trawling on eulachon foraging habitat 
need to be considered.
    Response: Although some data are available on the ocean 
distribution of eulachon (from fisheries bycatch and fishery-
independent surveys [summarized in Gustafson et al., 2010]) we cannot 
identify specific marine foraging areas that meet the definition of 
critical habitat under the ESA. The ESA defines critical habitat as 
``the specific areas within the geographical area occupied by the 
species, at the time it is listed on which are found those physical or 
biological features essential to the conservation of the species and 
which may require special management considerations or protection''. In 
the Pacific Ocean, we identified nearshore and offshore foraging 
habitat as an essential feature for the conservation of eulachon, and 
we determined that abundant forage species and suitable water quality 
are components of this habitat feature. Given the wide distribution of 
eulachon prey items, we could not associate them with ``specific 
areas'' within the marine environment occupied by eulachon. Moreover, 
these prey species move or drift great distances throughout the ocean 
and would be difficult to link to any ``specific'' areas as discussed 
in response to Comment 1. The concern is not that ``specific areas'' 
must be small, but rather in order to meet the definition of ``critical 
habitat'' under the ESA, they must be identifiable and connected to the 
essential feature found there. We could not discern such a linkage in 
marine areas occupied by eulachon. While we acknowledge that eulachon 
need foraging habitat in nearshore and offshore marine waters, we 
cannot identify any specific areas as required under section 3(5)(A) of 
the ESA.
    Some activities (e.g. trawling), may occur in the marine 
environment that affect eulachon prey, such that the prey may require 
special management considerations or protections. However, the steps we 
follow in designating critical habitat include first identifying the 
essential features, then identifying the specific areas where those 
features occur, then considering whether the features in those areas 
may require special management consideration or protection. We did not 
discuss the second prong of the definition of critical habitat for 
marine foraging areas in the proposed rule because we did not identify 
any specific areas within the marine environment that meet the first 
prong of the definition of critical habitat (specific areas on which 
the features are found).
    Comment 5: One commenter provided information documenting eulachon 
use of Redwood Creek, upstream of the area proposed.

[[Page 65328]]

    Response: We proposed to designate approximately 6.1 km (3.8 mi) of 
critical habitat in Redwood Creek upstream to the confluence with 
Prairie Creek, based on reports from the California Department of Fish 
and Game (CDFG; Moyle et al., 1995). However, the commenter provided a 
copy of a CDFG memorandum that describes an attempt by three 
experienced biologists familiar with eulachon who were purposely 
seeking to determine the upstream limit of eulachon spawning migration 
in Redwood Creek during April 1973. Eulachon were observed passing Tom 
McDonald Creek, a tributary located 19.4 km (12.5 mi) upstream from the 
mouth of Redwood Creek. The CDFG biologists also checked Redwood Creek 
for eulachon 6.4 km (4.0 mi) upstream of the confluence with Tom 
McDonald Creek but they did not find any eulachon at that location. 
This field observation documented fish at least as far upstream as Tom 
McDonald Creek and presents a credible observation of eulachon 
ascending Redwood Creek during the spawning run beyond the upstream 
limit that we proposed as critical habitat. As a result, we have 
extended critical habitat on Redwood Creek, upstream to the confluence 
with Tom McDonald Creek. Although the CDFG biologists speculated that 
eulachon ascended Redwood Creek beyond this point, we have no evidence 
to confirm that claim.
    Comment 6: One commenter believed that eulachon may ascend beyond 
the specific areas identified and asserted that the upstream limits of 
critical habitat proposed for Ten Mile Creek, the Elochoman River, and 
the Kalama River appear to be established at points that were simply 
advantageous survey sites and not reflective of the species' actual 
distribution.
    Response: The upstream limits of the proposed critical habitat were 
established using the best available information on eulachon 
distribution at the time of our proposed rule and informed by public 
and peer review. We relied on data from published literature, field 
observations (from a variety of agency and Tribal biologists), 
opportunistic sightings, commercial and recreational harvest, and 
anecdotal information. Information on eulachon distribution is limited 
for some creeks and rivers, particularly those that don't have a 
history of commercial or recreational harvest of eulachon. The upstream 
limit of proposed critical habitat for Ten Mile Creek, the Elochoman 
River, and the Kalama River were determined based on the most current 
information provided by ODFW for Ten Mile Creek and WDFW for the 
Elochoman and Kalama Rivers, which are the agencies responsible for 
eulachon management in the respective states. We do not know whether 
the information provided by the agencies was based on points that are 
advantageous survey sites. However, the commenter presents no credible 
information that would allow us to identify alternative end points of 
eulachon spawning areas.
    Comment 7: One commenter questioned why the upstream limit of 
critical habitat on rivers where passage is blocked by hydropower dams 
is established at the point of blockage.
    Response: We proposed as critical habitat four specific areas with 
an upstream limit that terminates at a passage barrier formed by a dam. 
Three of these dams are hydropower dams (Bonneville Dam on the Columbia 
River, Merwin Dam on the Lewis River, and Elwha Dam on the Elwha River) 
and one is a barrier dam for a salmon hatchery (Cowlitz River). Of the 
four dams, two were unlikely to have had eulachon above the dam site 
prior to dam construction due to natural barriers (Merwin and Elwha 
Dams); one may have had eulachon above the dam site before dam 
construction, but there is no evidence to support that conclusion 
(hatchery dam on the Cowlitz); and one has had confirmed eulachon 
presence upstream of the dam site both before and after construction 
(Bonneville Dam).
    Both Merwin Dam and Elwha Dam were built in areas where the river 
is constrained, with high gradient and water velocities. Prior to dam 
construction these areas were likely a natural barrier for eulachon. In 
addition, we were unable to find information supporting eulachon 
presence above these dam sites prior to dam construction. We were 
unable to find any historical accounts of eulachon ascending the 
Cowlitz River beyond the site of the salmon hatchery barrier dam prior 
to dam construction in 1968, (Mark Larivie, personal communication, 
April 15, 2011). We did not propose critical habitat upstream of the 
Merwin Dam, Elwha Dam, or the Cowlitz River salmon hatchery dam because 
we could not find evidence that eulachon used these areas prior to dam 
construction.
    There have been reports of adult eulachon ascending the Columbia 
River beyond the Bonneville Dam site, both before and after 
construction of the Bonneville Dam, with some runs large enough to 
support recreational harvest (OFC, 1953; Smith and Saalfeld, 1955; 
Stockley, 1981). Cascade Rapids (approximately 4 km [2.5 mi] upstream 
of the current Bonneville Dam site) was a natural barrier to eulachon 
migration in the Columbia River prior to the construction of Bonneville 
Dam (Oregon Fish Commission, 1953; Gustafson et al., 2010). A ship lock 
constructed at Cascade Locks in 1896 allowed fish to circumvent the 
rapids and subsequently eulachon were reported as far upstream as Hood 
River, Oregon at river kilometer (RKm) 272 (river mile [RM] 169) (Smith 
and Saalfeld, 1955). Following completion of Bonneville Dam, both 
Cascade Rapids and Cascade Locks were submerged, removing the rapids as 
a passage barrier. Currently, passage for anadromous fish at Bonneville 
Dam is maintained via fish ladders, but it is highly unlikely that 
eulachon can ascend the ladders due to the high gradient and water 
velocities within. However, eulachon have been documented passing 
through the shipping locks at the dam (Oregon Fish Commission, 1953). 
Eulachon have been reported upstream of the dam in several years, 
including significant numbers in 1945 and 1953 (Oregon Fish Commission, 
1953; Smith and Saalfeld, 1955) and more recently in 1988 (Johnsen et 
al., 1988), 2003 (U.S. Army Corps of Engineers [USACE], 2003), and 2005 
(Martinson et al., 2010).
    The area upstream of Bonneville Dam does not meet the definition of 
critical habitat because it does not contain the physical or biological 
features essential for conservation of eulachon. The physical and 
biological features essential for conservation of eulachon in 
freshwater and estuarine areas include: (1) Spawning and incubation 
sites with water flow, quality and temperature conditions and substrate 
supporting spawning and incubation; and (2) migration corridors free of 
obstruction and with water flow, quality and temperature conditions 
supporting larval and adult mobility, and with abundant prey items 
supporting larval feeding. Although they are separate features, 
spawning and incubation sites for eulachon cannot functionally exist 
without a migratory corridor to access them. In the proposed rule we 
acknowledged this relationship between the essential features when we 
stated that the migration corridor features are ``essential to 
[eulachon] conservation because they allow adult fish to swim upstream 
to reach spawning areas''. However, in the proposed rule we identified 
specific areas in freshwater and estuarine areas for designation as 
critical habitat ``which contain one or more of the essential physical 
or biological features'' without making it clear that spawning and 
incubation sites require a migration corridor to provide

[[Page 65329]]

access to the sites. The commenters' question allows us to further 
explain the functional relationship between the essential features.
    Bonneville Dam is a major obstruction to eulachon passage. Eulachon 
access to the area upstream of Bonneville Dam is limited to 
opportunistic transport through the ship locks. Due to this passage 
barrier, the migration corridor essential feature in the Columbia River 
does not extend beyond Bonneville Dam. In order for the spawning and 
incubation site essential feature to exist upstream of Bonneville Dam, 
the migration corridor essential feature would have to extend upstream 
of Bonneville Dam as well. Due to the lack of a migration corridor to 
access the area upstream of Bonneville Dam, the spawning and incubation 
essential feature cannot exist upstream of the dam. Because neither the 
migration corridor nor spawning and incubation essential features occur 
upstream of Bonneville Dam, this area does not meet the ESA section 
3(5)(A) definition of critical habitat.
    Comment 8: One commenter did not agree with the use of the COLREGS 
line (or equivalent) to demarcate the downstream boundary of critical 
habitat for rivers that directly enter the ocean. The commenter 
believes that this boundary was established as a convenient management 
tool but does not make sense as an ecologically-based boundary. The 
commenter suggested that if freshwater delivery to the ocean is the key 
feature, then the boundary could be established at the edge of the 
river plume.
    Response: As we stated previously, our regulations require that 
``Each critical habitat will be defined by specific limits using 
reference points and lines as found on standard topographic maps of the 
area'' (50 CFR 424.12(c)). In order for critical habitat to be a useful 
tool for conservation and management of the species, Federal agencies 
that are proposing actions in the vicinity of critical habitat need to 
be able to identify where critical habitat occurs. An ephemeral 
boundary, such as the maximum extent of freshwater delivery into the 
marine environment from a creek or river, would be difficult to 
identify. The COLREGS lines (where defined) were chosen as the 
downstream extent of freshwater and estuarine critical habitat because 
they are a clearly defined federal standard which incorporates 
landmarks that are found on standard topographic maps to uniformly 
depict an area of transition between freshwater and marine areas.
    Comment 9: One commenter stated that it was unclear if smaller 
secondary or tertiary streams within watersheds assessed in the 
proposed rule are included or excluded from critical habitat.
    Response: We used watersheds containing stream reaches occupied by 
eulachon as a basis for conducting our analysis of economic impacts 
associated with critical habitat designation. However, the specific 
areas identified as critical habitat were limited to the portions of 
individual creeks and rivers that contain the physical and biological 
features essential for eulachon conservation. The specific areas that 
are being designated as critical habitat are listed in this final rule 
(including the accompanying maps) and will appear in part 226, title 50 
of the Code of Federal Regulations. Secondary or tertiary streams 
within the watersheds used for the economic analysis are not designated 
as critical habitat unless they are specifically described in this rule 
and in part 226, title 50 of the Code of Federal Regulations.
    Comment 10: One commenter proposed that two locations in Washington 
State (the Toutle River in the Cowlitz Basin and Skamokawa Creek in the 
Elochoman Basin) be included in the critical habitat designation.
    Response: In our proposed rule we identified criteria to determine 
if a specific area contained either one of the essential features of 
freshwater spawning and incubation sites and freshwater and estuarine 
migration corridors (76 FR 515; January 5, 2011). These criteria are 
sites that contain: (1) Larval fish or pre-/post-spawn adults that have 
been positively identified and documented; or (2) commercial or 
recreational catches that have been documented over multiple years. 
Prior to publishing the proposed rule, we were unable to identify 
information that would satisfy these criteria for either the Toutle 
River or Skamokawa Creek.
    In the proposed rule we acknowledged that many areas within the 
geographical area occupied by the southern DPS have not been surveyed 
to determine the extent of eulachon spawning and migration (76 FR 515; 
January 5, 2011). To address this information need we funded several 
eulachon monitoring studies and surveys currently being undertaken by 
ODFW, WDFW, the Cowlitz Indian Tribe, and the Yurok Indian Tribe. 
During April 2011 biologists from the Cowlitz Indian Tribe documented 
the presence of eulachon larvae in the Toutle River and Skamokawa 
Creek, confirming eulachon spawning in these two systems (Cowlitz 
Indian Tribe, 2011). This information satisfies the criteria we used in 
our proposed rule to identify specific areas where the essential 
physical and biological features occur. As a result, these specific 
areas meet the statutory definition of critical habitat and we have 
included them in this final rule. Additional information on these two 
areas can be found below.
    Comment 11: One commenter questioned the proposed designation of 
the lower Elwha River as critical habitat on several points. First, the 
commenter noted that although eulachon have been captured in the lower 
Elwha River in small numbers, this may be consistent with straying. 
Second, the commenter asserted that there is a likely velocity barrier 
for eulachon located at approximately RKm 0.8 (RM 0.5). And finally, 
the commenter reasoned that once the Lower Elwha Tribal land is 
excluded from critical habitat designation, very little of the 
remaining river below the Elwha Dam that is accessible to eulachon 
would be eligible for designation as critical habitat.
    Response: Eulachon were documented in the Elwha River in 2005, 
although anecdotal observations suggest that eulachon ``were a regular, 
predictable feature in the Elwha until the mid 1970s'' (Shaffer et al., 
2007, p. 80). Other Olympic Peninsula rivers draining into the Strait 
of Juan de Fuca have been extensively surveyed over many years for 
salmonid migrations; however, eulachon have not been observed in any of 
these other systems (Shaffer et al., 2007; Peter Toppings, WDFW, 2011; 
Lower Elwha Tribe, 2011). Since 2005, eulachon in spawning condition 
have been observed nearly every year in the Elwha River by Lower Elwha 
Tribe Fishery Biologists (Lower Elwha Tribe, 2011). After only one year 
of catch data, Shaffer et al. (2007; p. 80) concluded that 
``observations of eulachon in the Elwha lead us to surmise that the 
Elwha eulachon are likely a remnant stock of the Elwha River rather 
than stray.'' We believe that the consistent spawning returns to the 
Elwha River in subsequent years supports the conclusion of Shaffer et 
al. (2007) that eulachon in the Elwha River are a self-sustaining 
population and not stray fish from nearby rivers.
    Mike McHenry (Fishery Biologist, Lower Elwha Tribe, personal 
communication April 4, 2011) has confirmed reports that eulachon have 
ascended the Elwha River to at least RKm 4.0 (RM 2.5). This would place 
eulachon well upstream of the potential velocity barrier at RKm 0.9 (RM 
0.5) that the commenter believes may limit their upstream movement. 
Studies from the

[[Page 65330]]

Kemano River indicate that many eulachon are unable to maintain long-
term position in the river at flow velocities greater than 0.3 m/s (1.0 
ft/s; Lewis et al., 2002). However, when water velocities were high in 
the mid-channel, eulachon travelled near the shore (Lewis et al., 2002) 
where water velocities are likely lower. Research conducted in the 
lower Elwha River has shown that water velocities can be significantly 
lower nearshore and along the bottom of the river, when compared to the 
mid-channel (USGS, 2008). It is likely that eulachon ascend beyond RKm 
0.8 (RM 0.5) in the Elwha River by migrating in the lower velocity 
water of the nearshore or river bottom.
    The Lower Elwha Tribe controls over 1,000 acres of land in the 
lower Elwha River watershed that are eligible for exclusion from this 
critical habitat designation. From the mouth of the river, upstream to 
the Elwha Dam at RKm 7.6 (RM 4.7), the Lower Elwha Tribe lands include 
approximately 2.3 km (1.4 mi) of this area. This leaves approximately 
5.3 km (3.3 mi) of river that does not overlap Tribal land and thus is 
not excluded from critical habitat. Although federal actions conducted 
on Lower Elwha Tribe land would not require section 7 consultation to 
determine the effects on critical habitat, federal activities on non-
Tribal lands would.

Special Management Considerations

    Comment 12: One commenter wanted to know why dams and water 
diversions were listed as an activity that may require special 
management considerations in Redwood Creek given that there are no dams 
or surface water diversions on Redwood Creek.
    Response: Although summer seasonal dams have existed on the 
mainstem of Redwood Creek in the past, they have been removed and are 
no longer allowed. The commenter rightly points out that dams and water 
diversions are not activities in Redwood Creek that may require special 
management considerations and we have removed them from the list of 
special management considerations for Redwood Creek.
    Comment 13: One commenter suggested that the construction and 
maintenance of the Redwood Creek Flood Control Project levees (that 
line the lower 5.5 km [3.4 miles] of Redwood Creek), should be 
considered in-water construction or alteration and listed as an 
activity that may require special management consideration.
    Response: We agree and have updated our report to include this 
category of activity.

Unoccupied Areas

    Comment 14: One commenter suggested that we should give greater 
consideration to the potential designation of unoccupied habitats. The 
commenter stated that NMFS ``must consider physical and biological 
features of historically occupied areas, not just presence and 
production, before determining that these areas are not essential for 
the conservation of the species.''
    Response: Section 3(5)(A)(ii) of the ESA authorizes the Secretary 
of Commerce to designate ``specific areas outside the geographical area 
occupied at the time [the species] is listed'' if the Secretary 
determines that these areas are essential for the conservation of the 
species. Section 4(b)(2) of the ESA directs the Secretary to designate 
critical habitat ``on the basis of the best scientific data available'' 
Regulations at 50 CFR 424.12(e) emphasize that the agency ``shall 
designate as critical habitat areas outside the geographical area 
presently occupied by a species only when a designation limited to its 
present range would be inadequate to ensure the conservation of the 
species.''
    The commenter states that NMFS must base its decision to designate 
critical habitat in unoccupied areas on whether those areas might 
contain the physical or biological features essential to the 
conservation of the species. However, the ESA's definition of critical 
habitat in unoccupied areas does not rely on the presence of physical 
or biological features, but on the determination that the area is 
essential for the conservation of the species. Our implementing 
regulations provide that we may only designate unoccupied areas if we 
determine that currently occupied areas are not adequate for 
conservation (50 CFR 424.12(e)). In the case of the southern DPS of 
eulachon, we are unable to make such a determination at this time. In 
the process of recovery planning we may determine that additional areas 
are necessary for conservation and revise the designation.
    In addition, the commenter incorrectly states that we based our 
decision to not designate critical habitat in unoccupied areas ``on a 
lack of documentation of the presence of eulachon in those areas.'' 
Based on the best available science, we determined that nearly all of 
the historical and current presence and production of the southern DPS 
of eulachon comes from within the geographical area occupied at the 
time the species was listed (and particularly the Klamath, Umpqua, 
Columbia and Fraser Rivers). Sightings of southern DPS eulachon from 
creeks or rivers outside of the geographical area occupied by the 
species have been extremely infrequent, and have consisted of very few 
fish (Gustafson et al., 2010). Due to such an overwhelming proportion 
of the historical and current abundance and production of the southern 
DPS of eulachon occurring within the geographical area occupied by the 
species, we could not determine that currently occupied areas are 
inadequate to conserve the species. We received no new information on 
this subject during the comment and peer review process of the Proposed 
Critical Habitat Designation (76 FR 515; January 5, 2011). Therefore, 
we are not designating any unoccupied areas as critical habitat for the 
DPS. This is an issue that we will continue to investigate during the 
recovery planning process and we will update the critical habitat 
designation if needed.

Economic Impacts of Critical Habitat Designation

    Comment 15: One commenter put forth the argument that contemporary 
forest management activities have little impact on aquatic organisms 
such as eulachon. The commenter also believes that ``it is troubling 
that forest management is listed as the activity likely to have the 
second most section 7 actions as a result of the critical habitat 
designation.''
    Response: In the proposed rule we identified a number of activities 
that may affect the physical and biological features essential to 
conservation of the southern DPS of eulachon (76 FR 515; January 5, 
2011). One of the major types of activity was pollution and runoff from 
point and non-point sources including industrial activities, 
urbanization, grazing, agriculture, and forestry operations. Nearly all 
of the watersheds that contain specific areas proposed as critical 
habitat for eulachon have been or are still subject to forest 
management activities. While we acknowledge that modern forest practice 
rules have greatly reduced the impact of forest management activities 
on aquatic environments (Cafferata and Spittler, 1998), there is a 
large body of information demonstrating that such activities continue 
to require special management considerations to ensure they do not 
impair eulachon habitat. For example, Rashin et al. (2006) state that 
``[t]imber harvest activities have the potential to increase sediment 
loading to streams from harvest site erosion and to cause direct 
physical disturbance of stream channels and riparian zones.'' Gomi et 
al. (2005) report that ``[f]orest management practices can increase 
fine

[[Page 65331]]

sediment supply though soil disturbance and accelerated landsliding.'' 
These authors go on to state ``[s]oil disturbance and sediment delivery 
to streams are commonly associated with construction of roads and 
landings, slash burning, and log skidding (Reid and Dunne, 1984; 
Christie and Fletcher, 1999; Jordan, 2001; Kreutzwiser et al., 2001). 
The hydrologic and geomorphic effects of forest roads in particular 
have been the focus of many studies, given their demonstrated potential 
for negative impacts (Luce and Wemple, 2001).''
    As part of our estimate of the potential economic impact of 
critical habitat designation for the southern DPS of eulachon we 
projected the future administrative costs of engaging in ESA section 7 
consultations. In our Draft Economic Analysis (NMFS, 2010b), we 
provided a forecast of the annual number of future section 7 actions, 
organized by affected watershed and activity, that may require 
consultation with NMFS. Forest management was one of the ten broad 
activity groups that were identified that may require some form of 
section 7 consultation in the future. We have an extensive consultation 
history for other anadromous species (including West Coast salmon and 
steelhead) in the watersheds that we proposed as eulachon critical 
habitat. Estimates of the future annual number of section 7 actions 
related to eulachon were based on the average number of past actions 
that required consultation for these species in these watersheds 
between 2000 and 2009.
    While forest management is the activity that we forecast to have 
the second-most section 7 actions as a result of eulachon critical 
habitat designation, it is important to keep the estimates in 
perspective. We chose the individual watersheds that encompass each 
stream reach proposed as eulachon critical habitat as our assessment 
area for economic impacts (specifically, we used 5th field hydrologic 
units as designated by the U.S. Geological Survey). The total land area 
included in our assessment area is approximately 9,500 km\2\ (2.3 
million acres). We estimate that forest management activities will 
result in approximately seven ESA section 7 consultations per year as a 
result of eulachon critical habitat designation, and of these, only one 
will require formal consultation. Given that forest management is one 
of the most dominant land uses across our assessment area, the 
estimated number of related consultations that may need to address 
eulachon critical habitat is comparatively small for an area so large.
    Comment 16: One commenter believed designating ocean areas as 
critical habitat would have an adverse economic impact on shrimp 
fisheries off the Pacific Coast.
    Response: We did not propose to designate critical habitat in 
marine waters because we were unable to identify specific areas in the 
marine environment that meet the definition of critical habitat under 
section 3(5)(A). Therefore we did not assess the economic impact of 
designating marine areas as critical habitat, including any economic 
impacts to ocean shrimp fisheries.
    Comment 17: One commenter expressed concern that the designation of 
critical habitat in the Elwha River could lead to changes in the timing 
of the upcoming removal of the Elwha and Glines Canyon Dams. The 
commenter believes that any changes in the timing of dam removal could 
potentially have high associated costs that were not factored into 
NMFS' economic analysis.
    Response: In 2010, we completed our consultation with the National 
Park Service on removal of the Elwha and Glines Canyon Dams and their 
effects on eulachon (NMFS, 2010c). Removal of the dams will result in 
the release of accumulated sediment that is likely to harm eulachon and 
their habitat. In our consultation we considered the direct effects to 
eulachon as well as the indirect effects that would result from habitat 
alteration. The Biological Opinion contains terms and conditions that 
require the Park Service to maintain consistent sediment loads during 
March through May to minimize impacts to spawning eulachon. Designation 
of critical habitat in the Elwha River will require reinitiation of 
consultation with the Park Service. It is possible that during the 
course of the consultation our analysis may lead to additional terms 
and conditions, but at this time there are none that we can reasonably 
anticipate (NMFS 2010c; Zach Hughes, NMFS, Washington State Habitat 
Office, personal communication, 9/12/2011). Our economic analysis 
therefore includes as a cost of designation only the added 
administrative cost of completing a new consultation.

Indian Lands Exclusions

    Comment 18: One commenter believed that Tribal lands should not be 
excluded from critical habitat because doing so would diminish the 
conservation value of the designation. A separate commenter believed 
that Tribal lands should only be excluded if the affected Tribes agree 
to address eulachon protections in their conservation plans.
    Response: Section 4(b)(2) of the ESA provides the Secretary with 
discretion to exclude areas from the designation of critical habitat if 
the Secretary determines that the benefits of exclusion outweigh the 
benefits of designation, and the Secretary finds that exclusion of the 
area will not result in extinction of the species. Tribal lands are 
managed by Indian Tribes in accordance with Tribal goals and objectives 
within the framework of applicable treaties and laws. Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
outlines the policies and responsibilities of the Federal Government in 
matters affecting Tribal interests (recently confirmed by Presidential 
Memorandum; 74 FR 57879; November 9, 2009). In addition to Executive 
Order 13175, we have Department of Commerce policy direction, via 
Secretarial Order 3206, stating that Indian lands shall not be 
designated as critical habitat, nor areas where the ``Tribal trust 
resources * * * or the exercise of Tribal rights'' will be impacted, 
unless such lands or areas are determined ``essential to conserve a 
listed species.'' In such cases we ``shall evaluate and document the 
extent to which the conservation needs of the listed species can be 
achieved by designating only other lands.''
    In our proposed rule, we determined that excluding Tribal lands 
from critical habitat designation would have the benefit of promoting 
federal policies regarding Tribal sovereignty and self-governance 
(e.g., Executive Order 13175). In addition, we determined that 
exclusion of Tribal lands would have the benefit of promoting a 
positive working relationship between NMFS and the Tribes (in 
accordance with Secretarial Order 3206), with a very small reduction in 
the benefits of designation (primarily the loss of section 7 
consultation to consider adverse modification of critical habitat). 
Although these specific areas have a high conservation value for 
eulachon, their extent is relatively small (approximately 5% of the 
total area designated). In the decision Center for Biological 
Diversity, v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court 
held that a positive working relationship with Indian Tribes is a 
relevant impact that can be considered when weighing the relative 
benefits of a critical habitat designation.
    The Tribes affected by this critical habitat designation have 
played and continue to play an active role in the conservation and 
management of this species. These Tribal governments are also co-
managers of a variety of other freshwater and marine species and

[[Page 65332]]

resources throughout the region. The co-manager relationship crosses 
Tribal, Federal, and state boundaries, due to the migratory 
characteristics of these species. As we move forward with eulachon 
recovery planning, a positive working relationship with the Tribes will 
be crucial to the management and recovery of eulachon.
    While it is possible that exclusion of Indian lands may result in a 
small reduction in the conservation benefits of the designation, the 
species is still protected under the jeopardy standard of ESA section 
7, and activities that occur on non-Tribal lands near or adjacent to 
excluded Tribal lands will still be subject to section 7 consultation 
for adverse modification of critical habitat. In addition, there are 
several management plans that guide Tribal activities in the affected 
watersheds (e.g., the Quinault Reservation Forest Management Plan, 
Elwha River Fish Restoration Plan, and the Lower Klamath River Sub-
Basin Watershed Restoration Plan) and provide protection to eulachon 
habitat.
    Comment 19: One commenter believed that we should not exclude lands 
covered by a Habitat Conservation Plan (HCP) unless the plan contains 
adequate protections for eulachon.
    Response: We agree that adequate protections for eulachon within an 
existing HCP should be a requirement for any landowner seeking to have 
land excluded from critical habitat designation. There are two existing 
HCPs that overlap areas that were proposed as critical habitat for the 
southern DPS of eulachon; the Green Diamond Timber HCP (covering the 
company's operations in northern California, including portions of the 
Klamath River), and the Humboldt Bay Municipal Water District HCP 
(covering their operations in the Mad River, California). Neither of 
these HCPs address conservation of eulachon, and it is unclear what, if 
any, conservation benefits they might provide to eulachon. In addition, 
neither of the HCP holders requested that their lands be excluded from 
critical habitat. Therefore, we have decided not to exclude any land 
covered by these HCPs from this critical habitat designation.

Summary of Revisions

    We evaluated the comments and new information received on the 
proposed rule to ensure that they represented the best scientific data 
available and made a number of changes to the critical habitat 
designations, including:
    (1) We revised the number of specific areas included in our 
critical habitat designation based on comments received and new 
scientific information that became available following publication of 
the proposed rule. Specifically, we added Skamokawa Creek, and the 
Toutle River (both in Washington State) to the list of specific areas.
    (2) We extended the upstream extent of critical habitat for three 
specific areas based on comments received and new scientific 
information. Critical habitat was extended on Redwood Creek, 
California, and the Elochoman and Kalama Rivers in Washington. In 
addition we revised the Lewis River specific area to include the East 
Fork of the Lewis River.
    (3) We further explained and clarified the functional relationship 
between the spawning and incubation essential feature and the migration 
corridor essential feature based on comments received.
    (4) We revised our economic analysis based on additions to the 
specific areas included in the critical habitat designation. 
Specifically, we added a new 5th field hydrologic unit to our analysis 
(HUC 1708000205: East Fork Lewis River).
    (5) We have designated critical habitat in the Quinault River, 
Washington, and the Klamath River, California. These specific areas 
were excluded entirely from the proposed critical habitat rule. Upon 
further review, ba