dept of commerce. noaa final rule

8/3/2019 Dept of Commerce. NOAA Final Rule

1/29

65324 Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Rules and Regulations

DEPARTMENT OF COMMERCE

National Oceanic and AtmosphericAdministration

50 CFR Part 226

[Docket No. 101027536159103]

RIN 0648BA38

Endangered and Threatened Species;Designation of Critical Habitat for theSouthern Distinct Population Segmentof Eulachon

AGENCY: National Marine FisheriesService (NMFS), National Oceanic andAtmospheric Administration (NOAA),Commerce.

ACTION: Final rule.

SUMMARY: We, the National MarineFisheries Service (NMFS), issue a finalrule to designate critical habitat for thesouthern Distinct Population Segment

(DPS) of Pacific eulachon (Thaleichthyspacificus), pursuant to section 4 of theEndangered Species Act (ESA). Wedesignate 16 specific areas as criticalhabitat within the states of California,Oregon, and Washington. Thedesignated areas are a combination offreshwater creeks and rivers and theirassociated estuaries, comprisingapproximately 539 km (335 mi) ofhabitat. The Tribal lands of four IndianTribes are excluded from designationafter evaluating the impacts ofdesignation and benefits of exclusionassociated with Tribal land ownership

and management by the Tribes. No areaswere excluded from designation basedon economic impacts.

This final rule responds to andincorporates public comments receivedon the proposed rule and supportingdocuments, as well as peer reviewercomments received on our draft

biological report and draft economicreport.

DATES: This rule will take effect onDecember 19, 2011.

ADDRESSES: Reference materialsregarding this rulemaking can beobtained via the Internet at: http://

www.nwr.noaa.govor by submitting arequest to the Protected ResourcesDivision, Northwest Region, NationalMarine Fisheries Service, 1201 NELloyd Blvd., Suite 1100, Portland, OR97232.

FOR FURTHER INFORMATION CONTACT:Marc Romano, NMFS, NorthwestRegion, 5032312200, or JimSimondet, NMFS, Southwest Region,7078255171, or Dwayne Meadows,NMFS, Office of Protected Resources,3014278403.

SUPPLEMENTARY INFORMATION:

Background

On March 18, 2010, we listed thesouthern DPS of eulachon as threatenedunder the ESA (75 FR 13012). Aproposed critical habitat rule for thesouthern DPS of eulachon waspublished in the Federal Register on

January 5, 2011 (76 FR 515). The presentrule describes the final critical habitatdesignation, including responses topublic comments and peer reviewercomments, and supporting informationon eulachon biology, distribution, andhabitat use, and the methods used todevelop the final designation.

We considered various alternatives tothe critical habitat designation for thesouthern DPS of eulachon. Thealternative of not designating criticalhabitat for the southern DPS of eulachonwould impose no economic, nationalsecurity, or other relevant impacts, butwould not provide any conservation

benefit to the species. This alternativewas considered and rejected becausesuch an approach does not meet thelegal requirements of the ESA andwould not provide for the conservationof the southern DPS of eulachon. Thealternative of designating all potentialcritical habitat areas (i.e., no areasexcluded) also was considered andrejected because for some areas the

benefits of exclusion from designationoutweighed the benefits of inclusion.

An alternative to designating allpotential critical habitat areas is thedesignation of critical habitat within a

subset of these areas. Under section4(b)(2) of the ESA, NMFS must considerthe economic impact, impacts onnational security, and any other relevantimpact of specifying any particular areaas critical habitat. The Secretary ofCommerce (Secretary) has the discretionto exclude an area from designation ascritical habitat if the benefits ofexclusion (i.e., the impacts that would

be avoided if an area were excludedfrom the designation) outweigh the

benefits of designation (i.e., theconservation benefits to the southernDPS of eulachon if an area were

designated), as long as exclusion of thearea will not result in extinction of thespecies. We prepared an analysisdescribing our exercise of discretion,which is contained in our Final Section4(b)(2) Report (NMFS, 2011a). Underthis preferred alternative we haveexcluded Indian lands in California andWashington from designation as criticalhabitat. The total estimated economicimpact 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 estimatedeconomic impact of the preferredalternative would be approximately$487,300 (discounted at 7 percent) or$506,300 (discounted at 3 percent). Wedetermined that the exclusion of Indianlands would not significantly impedethe conservation of the southern DPS ofeulachon nor result in extinction of the

species. We selected this as thepreferred alternative because it resultsin a critical habitat designation thatsupports the conservation of thesouthern DPS of eulachon whilereducing other relevant impacts. Thisalternative also meets the requirementsunder the ESA and our joint NMFSU.S.Fish and Wildlife Service (USFWS)regulations concerning critical habitat at50 CFR 424.19.

Section 3 of the ESA (16 U.S.C.1532(5)(A)) defines critical habitat as(i) the specific areas within thegeographical area occupied by the

species, at the time it is listed * * * onwhich are found those physical or

biological features (I) essential to theconservation of the species and (II)which may require special managementconsiderations or protection; and (ii)specific areas outside the geographicalarea occupied by the species at the timeit is listed * * * upon a determination

by the Secretary that such areas areessential for the conservation of thespecies. Section 3 of the ESA (16U.S.C. 1532(3)) also defines the termsconserve, conserving, andconservation to mean: to use, and

the use of, all methods and procedureswhich are necessary to bring anyendangered species or threatenedspecies to the point at which themeasures provided pursuant to thischapter are no longer necessary. Wemay not designate critical habitat inareas outside of U. S. jurisdiction (50CFR 424.12(h)). Section 4 of the ESArequires that, before designating criticalhabitat, we consider economic impacts,impacts on national security, and otherrelevant impacts of specifying anyparticular area as critical habitat. TheSecretary may exclude an area from

critical habitat if he determines that thebenefits of exclusion outweigh thebenefits of designation, unlessexcluding an area from critical habitatwill result in the extinction of thespecies concerned. Once critical habitatis designated, section 7(a)(2) of the ESArequires that each federal agency, inconsultation with NMFS and with ourassistance, ensure that any action itauthorizes, funds, or carries out is notlikely to result in the destruction oradverse modification of critical habitat.This requirement is additional to the

VerDate Mar2010 16:59 Oct 19, 2011 Jkt 226001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.SGM 20OCR2
http://www.nwr.noaa.gov/http://www.nwr.noaa.gov/http://www.nwr.noaa.gov/http://www.nwr.noaa.gov/


2/29

65325Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Rules and Regulations

section 7 requirement that federalagencies ensure their actions do notjeopardize the continued existence oflisted species.

Eulachon Natural History

Eulachon are an anadromous fish,meaning adults migrate from the oceanto spawn in freshwater creeks and rivers

where their offspring hatch and migrateback to the ocean to forage untilmaturity. Although they spend 95 to 98percent of their lives at sea (Hay andMcCarter, 2000), current data onlyprovides an incomplete pictureconcerning their saltwater existence.The species is endemic to thenortheastern Pacific Ocean, rangingfrom northern California to thesoutheastern Bering Sea in Bristol Bay,Alaska (McAllister, 1963; Scott andCrossman, 1973; Willson et al., 2006).This distribution coincides closely withthe distribution of the coastal temperate

rain forest ecosystem on the west coastof North America (with the exception ofpopulations spawning west of CookInlet, Alaska).

In the portion of the species rangethat lies south of the United StatesCanada border, most eulachonproduction originates in the ColumbiaRiver basin. Within the Columbia River

basin, the major and most consistentspawning runs return to the mainstemof the Columbia River and the CowlitzRiver (Gustafson et al., 2010). Spawningalso occurs in other tributaries to theColumbia River, including the Grays,

Elochoman, Kalama, Lewis, and SandyRivers (WDFW and ODFW, 2001).Historically, the only other large river

basins in the contiguous United Stateswhere large, consistent spawning runsof eulachon have been documented arethe Klamath River in northern Californiaand the Umpqua River in Oregon.Eulachon have been found in numerouscoastal rivers in northern California(including the Mad River and RedwoodCreek), Oregon (including TenmileCreek south of Yachats, OR) andWashington (including the Quinault andElwha Rivers) (Emmett et al., 1991;Willson et al., 2006).

Major eulachon production areas inCanada are the Fraser and Nass rivers(Willson et al., 2006). Numerous otherriver systems in central BritishColumbia and Alaska have consistentyearly runs of eulachon and historicallysupported significant levels of harvest(Willson et al., 2006; Gustafson et al.,2010). Many sources note that runsoccasionally occur in other rivers andstreams, although these tend to besporadic, appearing in some years butnot 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 considerablyin size but typically are approximately1 mm (0.04 in) in diameter and averageabout 43 mg (0.002 oz) in weight (Hayand McCarter, 2000). Eggs are enclosed

in a double membrane; after fertilizationin the water, the outer membrane breaksand turns inside out, creating a stickystalk which acts to anchor the eggs tothe substrate (Hart and McHugh, 1944;Hay and McCarter, 2000). Eulachon eggshatch in 20 to 40 days with incubationtime dependent on water temperature(Smith and Saalfeld, 1955; Langer et al.,1977). Shortly after hatching, the larvaeare carried downstream and dispersed

by estuarine, tidal, and ocean currents.Larval eulachon may remain in lowsalinity, surface waters of estuaries forseveral weeks or longer (Hay andMcCarter, 2000) before entering theocean. Similar to salmon, juvenileeulachon are thought to imprint on thechemical signature/smell of their natalriver basin. However, juvenile eulachonspend less time in freshwaterenvironments than do juvenile salmonand researchers believe that this maycause returning eulachon to stray

between spawning sites at higher ratesthan salmon (Hay and McCarter, 2000).

Once juvenile eulachon enter theocean, they move from shallownearshore areas to deeper areas over thecontinental shelf. Larvae and youngjuveniles become widely distributed in

coastal waters, where they are typicallyfound near the ocean bottom in waters20 to 150 m deep (66 to 292 ft) (Hay andMcCarter, 2000) and sometimes as deepas 182 m (597 ft) (Barraclough, 1964).There is currently little informationavailable about eulachon movements innearshore marine areas and the openocean. However, eulachon occur as

bycatch in the ocean shrimp (Pandalusjordani) fishery (Hay et al., 1999; Olsenet al., 2000; Northwest Fishery ScienceCenter (NWFSC), 2008; Hannah and

Jones, 2009), indicating that thedistribution of these two species may

overlap in the ocean.Spawning Behavior

Eulachon typically spend severalyears in salt water before returning tofresh water as a run to spawn fromlate winter through early summer.Eulachon are semelparous, meaning thatthey spawn once and then die(Gustafson et al., 2010; Hay et al., 2002).Spawning grounds are typically in thelower reaches of larger rivers fed bysnowmelt (Hay and McCarter, 2000).Willson et al. (2006) concluded that the

age distribution of eulachon in aspawning run varies considerably, buttypically consists of fish that are 2 to 5years old. Eulachon eggs commonlyadhere to sand (Langer et al., 1977) orpea-sized gravel (Smith and Saalfeld,1955), though eggs have been found onsilt, gravel to cobble sized rock, andorganic detritus (Smith and Saalfeld,

1955; Langer et al., 1977; Lewis et al.,2002). Eggs found in areas of silt ororganic debris reportedly suffer muchhigher mortality than those found insand or gravel (Langer et al., 1977).

In many rivers, spawning is limited tothe part of the river that is influenced

by tides (Lewis et al., 2002), but someexceptions exist. In the Berners Baysystem of Alaska, the greatestabundance of eulachon are observed intidally-influenced reaches, but somefish ascend well beyond the tidalinfluence (Willson et al., 2006). In theKemano River, Canada, water velocity

greater than 0.4 meters/second begins tolimit the upstream movements ofeulachon (Lewis et al., 2002).

Entry into the spawning riversappears to be related to watertemperature and the occurrence of hightides (Ricker et al., 1954; Smith andSaalfeld, 1955; Spangler, 2002).Spawning generally occurs in January,February, and March in the ColumbiaRiver, the Klamath River, and thecoastal rivers of Washington andOregon, and April and May in the FraserRiver (Gustafson et al., 2010). Eulachonruns in central and northern BritishColumbia typically occur in late

February and March or late March andearly April. Attempts to characterizeeulachon run timing are complicated bymarked annual variation in timing.Willson et al. (2006) give severalexamples of spawning run timingvarying by a month or more in rivers inBritish Columbia and Alaska. Climatechange, especially as it affects oceanconditions, is considered a significantthreat to eulachon and their habitats andmay also be a factor in run timing(Gustafson et al., 2010). Most riverssupporting spawning runs of eulachonare fed by extensive snowmelt or glacial

runoff, so elevated temperatures andchanges in snow pack and the timingand intensity of stream flows will likelyimpact eulachon run timing. There arealready indications, perhaps in responseto warming conditions and/or alteredstream flow timing, that spawning runsare occurring earlier in several riverswithin the range of the southern DPS(Moody, 2008).

Water temperature at the time ofspawning varies across the range of thespecies. Although spawning generallyoccurs at temperatures from 4 to 7 C (39



3/29


to 45 F) in the Cowlitz River (Smith andSaalfeld, 1955), and at a meantemperature of 3.1 C (37.6 F) in theKemano and Wahoo Rivers, peakeulachon runs occur at noticeablycolder temperatures (between 0 and 2 C[32 and 36 F]) in the Nass River. TheNass River run is also earlier than theeulachon run that occurs in the Fraser

River, which typically has warmertemperatures than the Nass River(Langer et al., 1977).

Prey

Eulachon larvae and juveniles eat avariety of prey items, includingphytoplankton, copepods, copepodeggs, mysids, barnacle larvae, and wormlarvae (Barraclough, 1967; Barracloughand Fulton, 1967; Robinson et al.,1968a, 1968b). Eulachon adults feed onzooplankton, chiefly eating crustaceanssuch 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 andjuveniles commonly forage at moderatedepths (20150 m [66292 ft]) innearshore marine waters (Hay andMcCarter, 2000). Eulachon adults do notfeed during spawning (McHugh, 1939;Hart and McHugh, 1944).

Summary of Comments Received andResponses

We solicited public comment for atotal of 60 days on the proposeddesignation of critical habitat for the

southern DPS of eulachon. In addition,we held a public hearing on theproposal in Portland, Oregon on January26, 2011 at which one member of thepublic provided oral testimony. Thistestimony was recorded and ourresponses to comments addresssubstantive comments from thatindividual. We received writtencomments from eight commenters, andthese are available online at: http://www.regulations.gov/#!docketDetail;rpp=10;po=10;D=NOAA-NMFS-2011-0013.Summaries of thesubstantive comments received, and our

responses, are organized by categoryand provided below.In December 2004, the Office of

Management and Budget (OMB) issueda Final Information Quality Bulletin forPeer Review pursuant to the InformationQuality Act (IQA). The Bulletin waspublished in the Federal Register on

January 14, 2005 (70 FR 2664). TheBulletin established minimum peerreview standards, a transparent processfor public disclosure of peer reviewplanning, and opportunities for publicparticipation with regard to certain

types of information disseminated bythe Federal Government. The peerreview requirements of the OMBBulletin apply to influential or highlyinfluential scientific informationdisseminated on or after June 16, 2005.Two documents supporting this finaldesignation of critical habitat for thesouthern DPS of eulachon are

considered influential scientificinformation and subject to peer review.In accordance with the OMB policies,we solicited technical review of thedraft Biological Report (NMFS, 2010a)and the draft Economic Analysis(NMFS, 2010b). Each of these reportswas reviewed by three independentexperts selected from the academic andscientific communities.

There was substantial overlapbetween the comments from the peerreviewers and the substantive publiccomments. The comments weresufficiently similar that we have

responded to the peer reviewerscomments through our generalresponses below. Revisions resultingfrom peer review and public commentshave been made to the documentssupporting this designation (i.e.,Biological Report, Economic Analysis,and Section 4(b)(2) Report) and the finalversions of those documents can befound on our Web site at: http://www.nwr.noaa.gov/Other-Marine-Species/Eulachon.cfm.

Physical or Biological Features Essentialfor Conservation

Comment 1: One commenter

suggested that nearshore and marinewaters are essential as a migratorycorridor for the passage of eulachon,and passage should be included as afeature in nearshore and marine waters.

Response: Eulachon migrate fromtheir natal streams to marine waters ofthe continental shelf, and likely migratethroughout coastal waters until theyreturn as adults to spawn. There are twodifficulties with relying on a passagefeature in the ocean for a species suchas eulachon: (1) There is no informationregarding the characteristics orconditions in coastal waters that would

make a specific area suitable forpassage, and (2) there is no evidencethat eulachon use specific marine areasfor migration. Regarding the first point,there is no information to indicate thateulachon rely on habitat features toguide migration, such as a particulartype of current, temperature gradient,

bathymetry, coastline, etc. Since thereare no known characteristics of an areathat would aid in delineation, one mustconsider whether there is some otherevidence of a migration corridor or site,such as documented use for completing

a portion of the life history. In the caseof eulachon, there are no observations ofeulachon migration that would allow usto infer the presence of migratorypathways in specific areas of the ocean.Absent information on the detailedcharacteristics that would allowdelineation of a specific area, orinformation that eulachon actually use a

defined area, we were unable to identifyspecific areas in the ocean that containmigratory pathways.

Eulachon biology and habitat usediffer from other species for which wehave identified migratory pathways asan essential feature in marine waters.For example, green sturgeon (Acipensermedirostris) are primarily associatedwith bottom habitats in the ocean andtravel along the coast in a migrationcorridor that is delimited by bathymetry(specifically, we identified the 60fathom contour as the seaward extent ofa green sturgeon migration feature) (74

FR 52300; October 9, 2009). Greensturgeon adherence to a migrationcorridor shoreward of this depthcontour is documented through taggingstudies and bycatch in fisheries(Erickson and Hightower, 2007). Whilewe do have some limited informationabout areas where eulachon are presenteither through fisheries bycatch reportsor fisheries-independent research, thisinformation suggests only that eulachonare present in these areas. It does notshed light on a feature, such as amigratory pathway, that is essential toeulachon conservation. Additionalcontrasting examples include bull trout

(Salvelinus confluentus) and PugetSound Chinook (Oncorhynchustshawytscha), which migrate in marinewaters along the shoreline. Their criticalhabitat areas are delineated along adepth contour based on the penetrationof light, which creates specific physicaland biological conditions essential fortheir conservation. For SouthernResident killer whales (Orcinus orca)we also identified a passage feature inmarine waters, among other features.The three specific areas designated askiller whale critical habitat in inlandmarine waters of Washington State

contained all of the identified features.The one specific area primarily definedby the passage feature was the Strait ofJuan de Fuca, a relatively narrow marinecorridor through which killer whalespass on their migrations between coastalwaters and inland waters.

Comment 2: One commenter believedthat our reliance on evidence ofspawning or spawning migration todesignate critical habitat may beconsidered arbitrary, and they citedAlliance for Wild Rockies v. Lyder, 728F. Supp. 1126, 1134 (D. Mont. 2010) in

http://www.regulations.gov/#!docketDetail;rpp=10;po=10;D=NOAA-NMFS-2011-0013http://www.regulations.gov/#!docketDetail;rpp=10;po=10;D=NOAA-NMFS-2011-0013http://www.regulations.gov/#!docketDetail;rpp=10;po=10;D=NOAA-NMFS-2011-0013http://www.regulations.gov/#!docketDetail;rpp=10;po=10;D=NOAA-NMFS-2011-0013http://www.nwr.noaa.gov/http://www.nwr.noaa.gov/http://www.nwr.noaa.gov/http://www.nwr.noaa.gov/http://www.regulations.gov/#!docketDetail;rpp=10;po=10;D=NOAA-NMFS-2011-0013http://www.regulations.gov/#!docketDetail;rpp=10;po=10;D=NOAA-NMFS-2011-0013http://www.regulations.gov/#!docketDetail;rpp=10;po=10;D=NOAA-NMFS-2011-0013http://www.regulations.gov/#!docketDetail;rpp=10;po=10;D=NOAA-NMFS-2011-0013


4/29


support of their argument. Thecommenter stated that NMFS mustconsider other elements besidesspawning when determining whether anarea should be designated as criticalhabitat.

Response: Eulachon are ananadromous species that spend 9598percent of their lives in the marine

environment (Hay and McCarter, 2000).The best available scientific evidencesuggests that adult eulachon aresemelparous and enter freshwater andestuarine areas only to spawn, and afterspawning the adult fish die (Hay et al.,2002; Gustafson et al., 2010). Eulachoneggs develop at or near the point theywere spawned, and larval eulachontypically outmigrate via the same routesthat adult spawners took to reach thespawning area. Because eulachon aresemelparous and the best availableevidence suggests that freshwater andestuarine areas are only used by

eulachon for spawning activities (i.e.spawning migration, spawning, eggincubation and larval outmigration) weused spawning data to determine ifessential features are present. Ourapproach was not the same as theapproach used by the USFWS todesignate critical habitat for the Canadalynx that is the subject ofAlliance forWild Rockies v. Lyder. The Canada lynxutilizes its habitat for a variety of lifecycle activities beyond reproduction.There the USFWS used reproduction,one of several life functions, as the soletest to rule out the presence of essentialfeatures. In the Alliance for Wild

Rockies decision, the court noted,[w]hile it is rational to conclude areaswith evidence of reproduction containthe primary constituent elements andshould be designated as critical habitat,the Service could not flip that logic andso it means that critical habitat onlyexists where there is evidence ofreproduction. As a result, our relianceon evidence of spawning and spawningmigration to identify critical habitatwithin freshwater and estuarine areas isnot arbitrary according to the Alliance

for Wild Rockies decision.Comment 3: One commenter stated

that in making our decision on whichspecific areas qualified as criticalhabitat, we relied on extremely limitedsampling and, for some rivers andcreeks, only opportunistic sightingsand the best professional judgment ofagency and Tribal biologists familiarwith the area. The commenter believesthat this is insufficient to satisfy therequirements of the ESA and may makeit more difficult to recover this DPS.

Response: Section 4(b)(2) of the ESArequires the Secretary of Commerce todesignate critical habitat on the basis

of the best scientific data available. Inthe proposed rule, and supportingBiological Report (NMFS, 2011b), weoutlined the evidence that we used toidentify specific areas as critical habitat.We stated in the proposed rule that werelied on data from publishedliterature, field observations (includingriver sampling with a variety of net

types), opportunistic sightings,commercial and recreational harvest,and anecdotal information. This finalrule incorporates the findings in theproposed rule and the Biological Report,as well as peer review of the BiologicalReport and the Economic Analysis(NMFS, 2011c) and public comments onthe proposed rule. Taken together, thisinformation represents the best availablescientific data available to inform ourcritical habitat decision.

We relied on the most recentscientific information available to us todetermine which areas were eligible for

designation. For a limited number ofcreeks and rivers, opportunisticsightings are the only information thatis available to identify the distributionof the essential features. Where the onlyavailable information was opportunisticsightings, we consulted agency andTribal biologists familiar with the areato confirm the information and identifythe extent of the essential features.Where such information was the onlyinformation available, and wasconfirmed by the best professionaljudgment of biologists knowledgeableabout the species and the area, weconsider it the best available scientific

information, and adequate to informour decisions. Our actions are thus inaccordance with section 4(b)(2) of theESA and our implementing regulations(50 CFR 424.12).

Specific Areas Within the GeographicalArea Occupied by the Species

Comment 4: Two commenters agreedwith our decision not to designatecritical habitat in nearshore and offshoremarine areas, and a third commenterrecognized the problem in identifyingcritical habitat in these areas. Incontrast, several commenters disagreed

with our decision and some of thesecited the availability of eulachonharvest and bycatch data as evidence ofeulachon distribution in marine waters.One commenter questioned why we didnot discuss in the proposed rulewhether nearshore and marine watersmay require special managementconsiderations or protection. A separatecommenter stated that there is a widerange of literature on the effects oftrawling on seafloor habitat, and that theeffects of trawling on eulachon foraginghabitat need to be considered.

Response: Although some data areavailable on the ocean distribution ofeulachon (from fisheries bycatch andfishery-independent surveys[summarized in Gustafson et al., 2010])we cannot identify specific marineforaging areas that meet the definition ofcritical habitat under the ESA. The ESAdefines critical habitat as the specific

areas within the geographical areaoccupied by the species, at the time itis listed on which are found thosephysical or biological features essentialto the conservation of the species andwhich may require special managementconsiderations or protection. In thePacific Ocean, we identified nearshoreand offshore foraging habitat as anessential feature for the conservation ofeulachon, and we determined thatabundant forage species and suitablewater quality are components of thishabitat feature. Given the widedistribution of eulachon prey items, we

could not associate them with specificareas within the marine environmentoccupied by eulachon. Moreover, theseprey species move or drift greatdistances throughout the ocean andwould be difficult to link to anyspecific areas as discussed inresponse to Comment 1. The concern isnot that specific areas must be small,

but rather in order to meet the definitionof critical habitat under the ESA, theymust be identifiable and connected tothe essential feature found there. Wecould not discern such a linkage inmarine areas occupied by eulachon.While we acknowledge that eulachon

need foraging habitat in nearshore andoffshore marine waters, we cannotidentify any specific areas as requiredunder section 3(5)(A) of the ESA.

Some activities (e.g. trawling), mayoccur in the marine environment thataffect eulachon prey, such that the preymay require special managementconsiderations or protections. However,the steps we follow in designatingcritical habitat include first identifyingthe essential features, then identifyingthe specific areas where those featuresoccur, then considering whether thefeatures in those areas may require

special management consideration orprotection. We did not discuss thesecond prong of the definition of criticalhabitat for marine foraging areas in theproposed rule because we did notidentify any specific areas within themarine environment that meet the firstprong of the definition of critical habitat(specific areas on which the features arefound).

Comment 5: One commenter providedinformation documenting eulachon useof Redwood Creek, upstream of the areaproposed.



5/29


Response: We proposed to designateapproximately 6.1 km (3.8 mi) of criticalhabitat in Redwood Creek upstream tothe confluence with Prairie Creek, basedon reports from the CaliforniaDepartment of Fish and Game (CDFG;Moyle et al., 1995). However, thecommenter provided a copy of a CDFGmemorandum that describes an attempt

by three experienced biologists familiarwith eulachon who were purposelyseeking to determine the upstream limitof eulachon spawning migration inRedwood Creek during April 1973.Eulachon were observed passing TomMcDonald Creek, a tributary located19.4 km (12.5 mi) upstream from themouth of Redwood Creek. The CDFG

biologists also checked Redwood Creekfor eulachon 6.4 km (4.0 mi) upstreamof the confluence with Tom McDonaldCreek but they did not find anyeulachon at that location. This fieldobservation documented fish at least as

far upstream as Tom McDonald Creekand presents a credible observation ofeulachon ascending Redwood Creekduring the spawning run beyond theupstream limit that we proposed ascritical habitat. As a result, we haveextended critical habitat on RedwoodCreek, upstream to the confluence withTom McDonald Creek. Although theCDFG biologists speculated thateulachon ascended Redwood Creek

beyond this point, we have no evidenceto confirm that claim.

Comment 6: One commenter believedthat eulachon may ascend beyond thespecific areas identified and asserted

that the upstream limits of criticalhabitat proposed for Ten Mile Creek, theElochoman River, and the Kalama Riverappear to be established at points thatwere simply advantageous survey sitesand not reflective of the species actualdistribution.

Response: The upstream limits of theproposed critical habitat wereestablished using the best availableinformation on eulachon distribution atthe time of our proposed rule andinformed by public and peer review. Werelied on data from published literature,field observations (from a variety of

agency and Tribal biologists),opportunistic sightings, commercial andrecreational harvest, and anecdotalinformation. Information on eulachondistribution is limited for some creeksand rivers, particularly those that donthave a history of commercial orrecreational harvest of eulachon. Theupstream limit of proposed criticalhabitat for Ten Mile Creek, theElochoman River, and the Kalama Riverwere determined based on the mostcurrent information provided by ODFWfor Ten Mile Creek and WDFW for the

Elochoman and Kalama Rivers, whichare the agencies responsible foreulachon management in the respectivestates. We do not know whether theinformation provided by the agencieswas based on points that areadvantageous survey sites. However, thecommenter presents no credibleinformation that would allow us to

identify alternative end points ofeulachon spawning areas.

Comment 7: One commenterquestioned why the upstream limit ofcritical habitat on rivers where passageis blocked by hydropower dams isestablished at the point of blockage.

Response: We proposed as criticalhabitat four specific areas with anupstream limit that terminates at apassage barrier formed by a dam. Threeof these dams are hydropower dams(Bonneville Dam on the Columbia River,Merwin Dam on the Lewis River, andElwha Dam on the Elwha River) and oneis a barrier dam for a salmon hatchery(Cowlitz River). Of the four dams, twowere unlikely to have had eulachonabove the dam site prior to damconstruction due to natural barriers(Merwin and Elwha Dams); one mayhave had eulachon above the dam site

before dam construction, but there is noevidence to support that conclusion(hatchery dam on the Cowlitz); and onehas had confirmed eulachon presenceupstream of the dam site both beforeand after construction (BonnevilleDam).

Both Merwin Dam and Elwha Damwere built in areas where the river is

constrained, with high gradient andwater velocities. Prior to damconstruction these areas were likely anatural barrier for eulachon. In addition,we were unable to find informationsupporting eulachon presence abovethese dam sites prior to damconstruction. We were unable to findany historical accounts of eulachonascending the Cowlitz River beyond thesite of the salmon hatchery barrier damprior to dam construction in 1968,(Mark Larivie, personal communication,April 15, 2011). We did not proposecritical habitat upstream of the Merwin

Dam, Elwha Dam, or the Cowlitz Riversalmon hatchery dam because we couldnot find evidence that eulachon usedthese areas prior to dam construction.

There have been reports of adulteulachon ascending the Columbia River

beyond the Bonneville Dam site, bothbefore and after construction of theBonneville Dam, with some runs largeenough to support recreational harvest(OFC, 1953; Smith and Saalfeld, 1955;Stockley, 1981). Cascade Rapids(approximately 4 km [2.5 mi] upstreamof the current Bonneville Dam site) was

a natural barrier to eulachon migrationin the Columbia River prior to theconstruction of Bonneville Dam (OregonFish Commission, 1953; Gustafson etal., 2010). A ship lock constructed atCascade Locks in 1896 allowed fish tocircumvent the rapids and subsequentlyeulachon were reported as far upstreamas Hood River, Oregon at river kilometer

(RKm) 272 (river mile [RM] 169) (Smithand Saalfeld, 1955). Followingcompletion of Bonneville Dam, bothCascade Rapids and Cascade Locks weresubmerged, removing the rapids as apassage barrier. Currently, passage foranadromous fish at Bonneville Dam ismaintained via fish ladders, but it ishighly unlikely that eulachon canascend the ladders due to the highgradient and water velocities within.However, eulachon have beendocumented passing through theshipping locks at the dam (Oregon FishCommission, 1953). Eulachon have been

reported upstream of the dam in severalyears, including significant numbers in1945 and 1953 (Oregon FishCommission, 1953; Smith and Saalfeld,1955) and more recently in 1988(Johnsen et al., 1988), 2003 (U.S. ArmyCorps of Engineers [USACE], 2003), and2005 (Martinson et al., 2010).

The area upstream of Bonneville Damdoes not meet the definition of criticalhabitat because it does not contain thephysical or biological features essentialfor conservation of eulachon. Thephysical and biological featuresessential for conservation of eulachon in

freshwater and estuarine areas include:(1) Spawning and incubation sites withwater flow, quality and temperatureconditions and substrate supportingspawning and incubation; and (2)migration corridors free of obstructionand with water flow, quality andtemperature conditions supportinglarval and adult mobility, and withabundant prey items supporting larvalfeeding. Although they are separatefeatures, spawning and incubation sitesfor eulachon cannot functionally existwithout a migratory corridor to accessthem. In the proposed rule weacknowledged this relationship betweenthe essential features when we statedthat the migration corridor features areessential to [eulachon] conservation

because they allow adult fish to swimupstream to reach spawning areas.However, in the proposed rule weidentified specific areas in freshwaterand estuarine areas for designation ascritical habitat which contain one ormore of the essential physical or

biological features without making itclear that spawning and incubation sitesrequire a migration corridor to provide



6/29


access to the sites. The commentersquestion allows us to further explain thefunctional relationship between theessential features.

Bonneville Dam is a major obstructionto eulachon passage. Eulachon access tothe area upstream of Bonneville Dam islimited to opportunistic transportthrough the ship locks. Due to this

passage barrier, the migration corridoressential feature in the Columbia Riverdoes not extend beyond BonnevilleDam. In order for the spawning andincubation site essential feature to existupstream of Bonneville Dam, themigration corridor essential featurewould have to extend upstream ofBonneville Dam as well. Due to the lackof a migration corridor to access the areaupstream of Bonneville Dam, thespawning and incubation essentialfeature cannot exist upstream of thedam. Because neither the migrationcorridor nor spawning and incubation

essential features occur upstream ofBonneville Dam, this area does not meetthe ESA section 3(5)(A) definition ofcritical habitat.

Comment 8: One commenter did notagree with the use of the COLREGS line(or equivalent) to demarcate thedownstream boundary of critical habitatfor rivers that directly enter the ocean.The commenter believes that this

boundary was established as aconvenient management tool but doesnot make sense as an ecologically-based

boundary. The commenter suggestedthat if freshwater delivery to the oceanis the key feature, then the boundary

could be established at the edge of theriver plume.

Response: As we stated previously,our regulations require that Eachcritical habitat will be defined byspecific limits using reference pointsand lines as found on standardtopographic maps of the area (50 CFR424.12(c)). In order for critical habitat to

be a useful tool for conservation andmanagement of the species, Federalagencies that are proposing actions inthe vicinity of critical habitat need to beable to identify where critical habitatoccurs. An ephemeral boundary, such as

the maximum extent of freshwaterdelivery into the marine environmentfrom a creek or river, would be difficultto identify. The COLREGS lines (wheredefined) were chosen as thedownstream extent of freshwater andestuarine critical habitat because theyare a clearly defined federal standardwhich incorporates landmarks that arefound on standard topographic maps touniformly 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 watershedsassessed in the proposed rule areincluded or excluded from criticalhabitat.

Response: We used watershedscontaining stream reaches occupied byeulachon as a basis for conducting ouranalysis of economic impacts associatedwith critical habitat designation.

However, the specific areas identified ascritical habitat were limited to theportions of individual creeks and riversthat contain the physical and biologicalfeatures essential for eulachonconservation. The specific areas that are

being designated as critical habitat arelisted in this final rule (including theaccompanying maps) and will appear inpart 226, title 50 of the Code of FederalRegulations. Secondary or tertiarystreams within the watersheds used forthe economic analysis are notdesignated as critical habitat unless theyare specifically described in this rule

and in part 226, title 50 of the Code ofFederal Regulations.Comment 10: One commenter

proposed that two locations inWashington State (the Toutle River inthe Cowlitz Basin and SkamokawaCreek in the Elochoman Basin) beincluded in the critical habitatdesignation.

Response: In our proposed rule weidentified criteria to determine if aspecific area contained either one of theessential features of freshwaterspawning and incubation sites andfreshwater and estuarine migrationcorridors (76 FR 515; January 5, 2011).

These criteria are sites that contain: (1)Larval fish or pre-/post-spawn adultsthat have been positively identified anddocumented; or (2) commercial orrecreational catches that have beendocumented over multiple years. Priorto publishing the proposed rule, wewere unable to identify information thatwould satisfy these criteria for either theToutle River or Skamokawa Creek.

In the proposed rule weacknowledged that many areas withinthe geographical area occupied by thesouthern DPS have not been surveyed todetermine the extent of eulachon

spawning and migration (76 FR 515;January 5, 2011). To address thisinformation need we funded severaleulachon monitoring studies andsurveys currently being undertaken byODFW, WDFW, the Cowlitz IndianTribe, and the Yurok Indian Tribe.During April 2011 biologists from theCowlitz Indian Tribe documented thepresence of eulachon larvae in theToutle River and Skamokawa Creek,confirming eulachon spawning in thesetwo systems (Cowlitz Indian Tribe,2011). This information satisfies the

criteria we used in our proposed rule toidentify specific areas where theessential physical and biologicalfeatures occur. As a result, these specificareas meet the statutory definition ofcritical habitat and we have includedthem in this final rule. Additionalinformation on these two areas can befound below.

Comment 11: One commenterquestioned the proposed designation ofthe lower Elwha River as critical habitaton several points. First, the commenternoted that although eulachon have beencaptured in the lower Elwha River insmall numbers, this may be consistentwith straying. Second, the commenterasserted that there is a likely velocity

barrier for eulachon located atapproximately RKm 0.8 (RM 0.5). Andfinally, the commenter reasoned thatonce the Lower Elwha Tribal land isexcluded from critical habitatdesignation, very little of the remaining

river below the Elwha Dam that isaccessible to eulachon would be eligiblefor designation as critical habitat.

Response: Eulachon weredocumented in the Elwha River in 2005,although anecdotal observations suggestthat eulachon were a regular,predictable feature in the Elwha untilthe mid 1970s (Shaffer et al., 2007, p.80). Other Olympic Peninsula riversdraining into the Strait of Juan de Fucahave been extensively surveyed overmany years for salmonid migrations;however, eulachon have not beenobserved in any of these other systems(Shaffer et al., 2007; Peter Toppings,

WDFW, 2011; Lower Elwha Tribe,2011). Since 2005, eulachon inspawning condition have been observednearly every year in the Elwha River byLower Elwha Tribe Fishery Biologists(Lower Elwha Tribe, 2011). After onlyone year of catch data, Shaffer et al.(2007; p. 80) concluded thatobservations of eulachon in the Elwhalead us to surmise that the Elwhaeulachon are likely a remnant stock ofthe Elwha River rather than stray. We

believe that the consistent spawningreturns to the Elwha River insubsequent years supports the

conclusion of Shaffer et al. (2007) thateulachon in the Elwha River are a self-sustaining population and not stray fishfrom nearby rivers.

Mike McHenry (Fishery Biologist,Lower Elwha Tribe, personalcommunication April 4, 2011) hasconfirmed reports that eulachon haveascended the Elwha River to at leastRKm 4.0 (RM 2.5). This would placeeulachon well upstream of the potentialvelocity barrier at RKm 0.9 (RM 0.5) thatthe commenter believes may limit theirupstream movement. Studies from the



7/29


Kemano River indicate that manyeulachon are unable to maintain long-term position in the river at flowvelocities greater than 0.3 m/s (1.0 ft/s;Lewis et al., 2002). However, whenwater velocities were high in the mid-channel, eulachon travelled near theshore (Lewis et al., 2002) where watervelocities are likely lower. Research

conducted in the lower Elwha River hasshown that water velocities can besignificantly lower nearshore and alongthe bottom of the river, when comparedto the mid-channel (USGS, 2008). It islikely that eulachon ascend beyondRKm 0.8 (RM 0.5) in the Elwha River bymigrating in the lower velocity water ofthe nearshore or river bottom.

The Lower Elwha Tribe controls over1,000 acres of land in the lower ElwhaRiver watershed that are eligible forexclusion from this critical habitatdesignation. From the mouth of theriver, upstream to the Elwha Dam at

RKm 7.6 (RM 4.7), the Lower ElwhaTribe lands include approximately 2.3km (1.4 mi) of this area. This leavesapproximately 5.3 km (3.3 mi) of riverthat does not overlap Tribal land andthus is not excluded from criticalhabitat. Although federal actionsconducted on Lower Elwha Tribe landwould not require section 7 consultationto determine the effects on criticalhabitat, federal activities on non-Triballands would.

Special Management Considerations

Comment 12: One commenter wantedto know why dams and water diversions

were listed as an activity that mayrequire special managementconsiderations in Redwood Creek giventhat there are no dams or surface waterdiversions on Redwood Creek.

Response: Although summer seasonaldams have existed on the mainstem ofRedwood Creek in the past, they have

been removed and are no longerallowed. The commenter rightly pointsout that dams and water diversions arenot activities in Redwood Creek thatmay require special managementconsiderations and we have removedthem from the list of special

management considerations forRedwood Creek.Comment 13: One commenter

suggested that the construction andmaintenance of the Redwood CreekFlood Control Project levees (that linethe lower 5.5 km [3.4 miles] of RedwoodCreek), should be considered in-waterconstruction or alteration and listed asan activity that may require specialmanagement consideration.

Response: We agree and have updatedour report to include this category ofactivity.

Unoccupied Areas

Comment 14: One commentersuggested that we should give greaterconsideration to the potentialdesignation of unoccupied habitats. Thecommenter stated that NMFS mustconsider physical and biologicalfeatures of historically occupied areas,not just presence and production, beforedetermining that these areas are notessential for the conservation of thespecies.

Response: Section 3(5)(A)(ii) of theESA authorizes the Secretary ofCommerce to designate specific areasoutside the geographical area occupiedat the time [the species] is listed if theSecretary determines that these areas areessential for the conservation of thespecies. Section 4(b)(2) of the ESAdirects the Secretary to designate criticalhabitat on the basis of the bestscientific data available Regulations at50 CFR 424.12(e) emphasize that the

agency shall designate as criticalhabitat areas outside the geographicalarea presently occupied by a speciesonly when a designation limited to itspresent range would be inadequate toensure the conservation of the species.

The commenter states that NMFSmust base its decision to designatecritical habitat in unoccupied areas onwhether those areas might contain thephysical or biological features essentialto the conservation of the species.However, the ESAs definition of criticalhabitat in unoccupied areas does notrely on the presence of physical or

biological features, but on thedetermination that the area is essentialfor the conservation of the species. Ourimplementing regulations provide thatwe may only designate unoccupiedareas if we determine that currentlyoccupied areas are not adequate forconservation (50 CFR 424.12(e)). In thecase of the southern DPS of eulachon,we are unable to make such adetermination at this time. In theprocess of recovery planning we maydetermine that additional areas arenecessary for conservation and revisethe designation.

In addition, the commenterincorrectly states that we based ourdecision to not designate critical habitatin unoccupied areas on a lack ofdocumentation of the presence ofeulachon in those areas. Based on the

best available science, we determinedthat nearly all of the historical andcurrent presence and production of thesouthern DPS of eulachon comes fromwithin the geographical area occupied atthe time the species was listed (andparticularly the Klamath, Umpqua,Columbia and Fraser Rivers). Sightings

of southern DPS eulachon from creeksor rivers outside of the geographical areaoccupied by the species have beenextremely infrequent, and haveconsisted of very few fish (Gustafson etal., 2010). Due to such an overwhelmingproportion of the historical and currentabundance and production of thesouthern DPS of eulachon occurring

within the geographical area occupiedby the species, we could not determinethat currently occupied areas areinadequate to conserve the species. Wereceived no new information on thissubject during the comment and peerreview process of the Proposed CriticalHabitat Designation (76 FR 515; January5, 2011). Therefore, we are notdesignating any unoccupied areas ascritical habitat for the DPS. This is anissue that we will continue toinvestigate during the recovery planningprocess and we will update the criticalhabitat designation if needed.

Economic Impacts of Critical HabitatDesignation

Comment 15: One commenter putforth the argument that contemporaryforest management activities have littleimpact on aquatic organisms such aseulachon. The commenter also believesthat it is troubling that forestmanagement is listed as the activitylikely to have the second most section7 actions as a result of the criticalhabitat designation.

Response: In the proposed rule weidentified a number of activities thatmay affect the physical and biological

features essential to conservation of thesouthern DPS of eulachon (76 FR 515;

January 5, 2011). One of the major typesof activity was pollution and runofffrom point and non-point sourcesincluding industrial activities,urbanization, grazing, agriculture, andforestry operations. Nearly all of thewatersheds that contain specific areasproposed as critical habitat for eulachonhave been or are still subject to forestmanagement activities. While weacknowledge that modern forest practicerules have greatly reduced the impact offorest management activities on aquatic

environments (Cafferata and Spittler,1998), there is a large body ofinformation demonstrating that suchactivities continue to require specialmanagement considerations to ensurethey do not impair eulachon habitat. Forexample, Rashin et al. (2006) state that[t]imber harvest activities have thepotential to increase sediment loadingto streams from harvest site erosion andto cause direct physical disturbance ofstream channels and riparian zones.Gomi et al. (2005) report that [f]orestmanagement practices can increase fine



8/29


sediment supply though soildisturbance and acceleratedlandsliding. These authors go on tostate [s]oil disturbance and sedimentdelivery to streams are commonlyassociated with construction of roadsand landings, slash burning, and logskidding (Reid and Dunne, 1984;Christie and Fletcher, 1999; Jordan,

2001; Kreutzwiser et al., 2001). Thehydrologic and geomorphic effects offorest roads in particular have been thefocus of many studies, given theirdemonstrated potential for negativeimpacts (Luce and Wemple, 2001).

As part of our estimate of thepotential economic impact of criticalhabitat designation for the southern DPSof eulachon we projected the futureadministrative costs of engaging in ESAsection 7 consultations. In our DraftEconomic Analysis (NMFS, 2010b), weprovided a forecast of the annualnumber of future section 7 actions,

organized by affected watershed andactivity, that may require consultationwith NMFS. Forest management wasone of the ten broad activity groups thatwere identified that may require someform of section 7 consultation in thefuture. We have an extensiveconsultation history for otheranadromous species (including WestCoast salmon and steelhead) in thewatersheds that we proposed aseulachon critical habitat. Estimates ofthe future annual number of section 7actions related to eulachon were basedon the average number of past actionsthat required consultation for these

species in these watersheds between2000 and 2009.

While forest management is theactivity that we forecast to have thesecond-most section 7 actions as a resultof eulachon critical habitat designation,it is important to keep the estimates inperspective. We chose the individualwatersheds that encompass each streamreach proposed as eulachon criticalhabitat as our assessment area foreconomic impacts (specifically, we used5th field hydrologic units as designated

by the U.S. Geological Survey). The totalland area included in our assessment

area is approximately 9,500 km2

(2.3million acres). We estimate that forestmanagement activities will result inapproximately seven ESA section 7consultations per year as a result ofeulachon critical habitat designation,and of these, only one will requireformal consultation. Given that forestmanagement is one of the mostdominant land uses across ourassessment area, the estimated numberof related consultations that may needto address eulachon critical habitat iscomparatively small for an area so large.

Comment 16: One commenterbelieved designating ocean areas ascritical habitat would have an adverseeconomic impact on shrimp fisheries offthe Pacific Coast.

Response: We did not propose todesignate critical habitat in marinewaters because we were unable toidentify specific areas in the marine

environment that meet the definition ofcritical habitat under section 3(5)(A).Therefore we did not assess theeconomic impact of designating marineareas as critical habitat, including anyeconomic impacts to ocean shrimpfisheries.

Comment 17: One commenterexpressed concern that the designationof critical habitat in the Elwha Rivercould lead to changes in the timing ofthe upcoming removal of the Elwha andGlines Canyon Dams. The commenter

believes that any changes in the timingof dam removal could potentially havehigh associated costs that were notfactored into NMFS economic analysis.

Response: In 2010, we completed ourconsultation with the National ParkService on removal of the Elwha andGlines Canyon Dams and their effects oneulachon (NMFS, 2010c). Removal ofthe dams will result in the release ofaccumulated sediment that is likely toharm eulachon and their habitat. In ourconsultation we considered the directeffects to eulachon as well as theindirect effects that would result fromhabitat alteration. The BiologicalOpinion contains terms and conditionsthat require the Park Service to maintain

consistent sediment loads during Marchthrough May to minimize impacts tospawning eulachon. Designation ofcritical habitat in the Elwha River willrequire reinitiation of consultation withthe Park Service. It is possible thatduring the course of the consultationour analysis may lead to additionalterms and conditions, but at this timethere are none that we can reasonablyanticipate (NMFS 2010c; Zach Hughes,NMFS, Washington State Habitat Office,personal communication, 9/12/2011).Our economic analysis thereforeincludes as a cost of designation only

the added administrative cost ofcompleting a new consultation.

Indian Lands Exclusions

Comment 18: One commenterbelieved that Tribal lands should not beexcluded from critical habitat becausedoing so would diminish theconservation value of the designation. Aseparate commenter believed that Triballands should only be excluded if theaffected Tribes agree to addresseulachon protections in theirconservation plans.

Response: Section 4(b)(2) of the ESAprovides the Secretary with discretionto exclude areas from the designation ofcritical habitat if the Secretarydetermines that the benefits of exclusionoutweigh the benefits of designation,and the Secretary finds that exclusion ofthe area will not result in extinction ofthe species. Tribal lands are managed by

Indian Tribes in accordance with Tribalgoals and objectives within theframework of applicable treaties andlaws. Executive Order 13175,Consultation and Coordination withIndian Tribal Governments, outlines thepolicies and responsibilities of theFederal Government in matters affectingTribal interests (recently confirmed byPresidential Memorandum; 74 FR57879; November 9, 2009). In additionto Executive Order 13175, we haveDepartment of Commerce policydirection, via Secretarial Order 3206,stating that Indian lands shall not be

designated as critical habitat, nor areaswhere the Tribal trust resources * * *or the exercise of Tribal rights will beimpacted, unless such lands or areas aredetermined essential to conserve alisted species. In such cases we shallevaluate and document the extent towhich the conservation needs of thelisted species can be achieved bydesignating only other lands.

In our proposed rule, we determinedthat excluding Tribal lands from criticalhabitat designation would have the

benefit of promoting federal policiesregarding Tribal sovereignty and self-governance (e.g., Executive Order

13175). In addition, we determined thatexclusion of Tribal lands would havethe benefit of promoting a positiveworking relationship between NMFSand the Tribes (in accordance withSecretarial Order 3206), with a verysmall reduction in the benefits ofdesignation (primarily the loss ofsection 7 consultation to consideradverse modification of critical habitat).Although these specific areas have ahigh conservation value for eulachon,their extent is relatively small(approximately 5% of the total areadesignated). In the decision Center for

Biological Diversity, v. Norton, 240 F.Supp. 2d 1090 (D. Ariz. 2003), the courtheld that a positive workingrelationship with Indian Tribes is arelevant impact that can be consideredwhen weighing the relative benefits of acritical habitat designation.

The Tribes affected by this criticalhabitat designation have played andcontinue to play an active role in theconservation and management of thisspecies. These Tribal governments arealso co-managers of a variety of otherfreshwater and marine species and



9/29


resources throughout the region. The co-manager relationship crosses Tribal,Federal, and state boundaries, due to themigratory characteristics of thesespecies. As we move forward witheulachon recovery planning, a positiveworking relationship with the Tribeswill be crucial to the management andrecovery of eulachon.

While it is possible that exclusion ofIndian lands may result in a smallreduction in the conservation benefits ofthe designation, the species is stillprotected under the jeopardy standardof ESA section 7, and activities thatoccur on non-Tribal lands near oradjacent to excluded Tribal lands willstill be subject to section 7 consultationfor adverse modification of criticalhabitat. In addition, there are severalmanagement plans that guide Tribalactivities in the affected watersheds(e.g., the Quinault Reservation ForestManagement Plan, Elwha River Fish

Restoration Plan, and the LowerKlamath River Sub-Basin WatershedRestoration Plan) and provideprotection to eulachon habitat.

Comment 19: One commenterbelieved that we should not excludelands covered by a Habitat ConservationPlan (HCP) unless the plan containsadequate protections for eulachon.

Response: We agree that adequateprotections for eulachon within anexisting HCP should be a requirementfor any landowner seeking to have landexcluded from critical habitatdesignation. There are two existingHCPs that overlap areas that were

proposed as critical habitat for thesouthern DPS of eulachon; the GreenDiamond Timber HCP (covering thecompanys operations in northernCalifornia, including portions of theKlamath River), and the Humboldt BayMunicipal Water District HCP (coveringtheir operations in the Mad River,California). Neither of these HCPsaddress conservation of eulachon, and itis unclear what, if any, conservation

benefits they might provide to eulachon.In addition, neither of the HCP holdersrequested that their lands be excludedfrom critical habitat. Therefore, we have

decided not to exclude any land coveredby these HCPs from this critical habitatdesignation.

Summary of Revisions

We evaluated the comments and newinformation received on the proposedrule to ensure that they represented the

best scientific data available and madea number of changes to the criticalhabitat designations, including:

(1) We revised the number of specificareas included in our critical habitatdesignation based on comments

received and new scientific informationthat became available followingpublication of the proposed rule.Specifically, we added SkamokawaCreek, and the Toutle River (both inWashington State) to the list of specificareas.

(2) We extended the upstream extentof critical habitat for three specific areas

based on comments received and newscientific information. Critical habitatwas extended on Redwood Creek,California, and the Elochoman andKalama Rivers in Washington. Inaddition we revised the Lewis Riverspecific area to include the East Fork ofthe Lewis River.

(3) We further explained and clarifiedthe functional relationship between thespawning and incubation essentialfeature and the migration corridoressential feature based on commentsreceived.

(4) We revised our economic analysisbased on additions to the specific areasincluded in the critical habitatdesignation. Specifically, we added anew 5th field hydrologic unit to ouranalysis (HUC 1708000205: East ForkLewis River).

(5) We have designated critical habitatin the Quinault River, Washington, andthe Klamath River, California. Thesespecific areas were excluded entirelyfrom the proposed critical habitat rule.Upon further review, based on morecomplete information on landownership, we determined that only theportions of these rivers that overlapwith Indian lands are eligible for

exclusion. Critical habitat does notinclude any Tribal lands of the LowerElwha Tribe, Quinault Tribe, ResighiniRancheria, or Yurok Tribe.

Methods and Criteria Used To IdentifyCritical Habitat

In accordance with section 4(b)(2) ofthe ESA and our implementingregulations (50 CFR 424.12), this finalrule is based on the best scientificinformation available concerning thesouthern DPSs present and historicalrange, habitat, and biology, as well asthreats to its habitat. In preparing this

rule, we reviewed and summarizedcurrent information on eulachon,including recent biological surveys andreports, peer-reviewed literature, NMFSstatus reviews for the southern DPS ofeulachon (Gustafson et al., 2010), theproposed rule to list eulachon(74 FR 10857; March 13, 2009), and thefinal listing determination for eulachon(75 FR 13012; March 18, 2010) andinformation provided during thecomment process. All of the informationgathered to create this final rule has

been collated and analyzed in three

supporting documents: The EulachonBiological Report (NMFS, 2011b); theEulachon Economic Analysis (NMFS,2011c); and, the Eulachon Section4(b)(2) Report (NMFS, 2011a).

We used this information to identifyspecific areas that qualify as criticalhabitat for the southern DPS. Wefollowed a five-step process in order to

identify these specific areas: (1)Determine the geographical areaoccupied by the species, (2) identifyphysical or biological habitat featuresessential to the conservation of thespecies, (3) delineate specific areaswithin the geographical area occupied

by the species on which are found thephysical or biological features, (4)determine whether the features in aspecific area may require specialmanagement considerations orprotections, and (5) determine whetherany unoccupied areas are essential forconservation. Our evaluation and

conclusions are described in detail inthe following sections.

Geographical Area Occupied by theSpecies

As described in the proposed rule, thefirst step in designating critical habitatis to identify the geographical areaoccupied by the species at the time oflisting. In our proposed critical habitatdesignation we interpreted thegeographical area occupied in ESAsection 3(3) as equivalent to the range ofthe species at the time of listing. In ourMarch 2010 final ESA listing rule, andin the proposed critical habitat

designation, we identified the range ofthe southern DPS of eulachon asextending from the Skeena River inBritish Columbia, Canada, to the MadRiver in California (Gustafson et al.,2010). We cannot designate areasoutside U.S. jurisdiction as criticalhabitat (see above), thus, we limited ourconsideration of the range of thesouthern DPS of eulachon to thegeographical area from the international

border with Canada to the Mad River inCalifornia. We did not attempt to furtherrefine our identification of thegeographical area occupied by the

species at the time of listing because ofthe process we followed in thesubsequent steps of our designation. Asexplained more fully below, weidentified freshwater spawning andincubation sites as a physical or

biological feature essential toconservation of the species. Indetermining the specific areas thatcontain those sites, we confirmed thateulachon were documented using thesites for spawning. Thus our process ofconfirming that a specific area containsthe essential features also allowed us to



10/29


confirm that the area was indeedoccupied. Given the highly migratorynature of eulachon and limited marinesampling, we do not know how faroffshore the southern DPS of eulachonare distributed and thus how faroffshore the geographical area occupied

by the species extends. We consider themarine extent of the geographical area

occupied by the species asundeterminable at this time.

Physical or Biological FeaturesEssential for Conservation

Joint NMFSUSFWS regulations at 50CFR 424.12(b) state that in determiningwhat areas are critical habitat, theagencies shall consider those physicaland biological features that are essentialto the conservation of a given speciesand that may require specialmanagement considerations orprotection. These physical and

biological features include, but are notlimited to: (1) Space for individual andpopulation growth, and for normal

behavior; (2) Food, water, air, light,minerals, or other nutritional orphysiological requirements; (3) Cover orshelter; (4) Sites for breeding,reproduction, rearing of offspring,germination, or seed dispersal; andgenerally; (5) Habitats that are protectedfrom disturbance or are representative ofthe historic geographical and ecologicaldistributions of a species.

Based on the best available scientificinformation, we developed a list ofphysical and biological featuresessential to the conservation of

eulachon and relevant to determiningwhether occupied areas are consistentwith the above regulations and the ESAsection (3)(5)(A) definition of criticalhabitat. The physical or biologicalfeatures essential to the conservation ofthe southern DPS fall into three majorcategories reflecting key life historyphases of eulachon:

(1) Freshwater spawning andincubation sites with water flow, qualityand temperature conditions andsubstrate supporting spawning andincubation, and with migratory accessfor adults and juveniles. These features

are essential to conservation becausewithout them the species cannotsuccessfully spawn and produceoffspring.

(2) Freshwater and estuarinemigration corridors associated withspawning and incubation sites that arefree of obstruction and with water flow,quality and temperature conditionssupporting larval and adult mobility,and with abundant prey itemssupporting larval feeding after the yolksac is depleted. These features areessential to conservation because they

allow adult fish to swim upstream toreach spawning areas and they allowlarval fish to proceed downstream andreach the ocean.

(3) Nearshore and offshore marineforaging habitat with water quality andavailable prey, supporting juveniles andadult survival. Eulachon prey on a widevariety of species including crustaceans

such as copepods and euphausiids (Hayand McCarter, 2000; WDFW and ODFW,2001), unidentified malacostracans(Sturdevant, 1999), cumaceans (Smithand Saalfeld, 1955) mysids, barnaclelarvae, and worm larvae (WDFW andODFW, 2001). These features areessential to conservation because theyallow juvenile fish to survive, grow, andreach maturity, and they allow adultfish to survive and return to freshwatersystems to spawn.

The components of the freshwaterspawning and incubation sites include:

Flow: A flow regime (i.e., themagnitude, frequency, duration,seasonality, and rate-of-change offreshwater discharge over time) thatsupports spawning, and survival of alllife stages. Most spawning riversexperience a spring freshetcharacteristic of rivers draining largesnow packs or glaciers (Hay andMcCarter, 2000). In general, eulachonspawn at lower water levels beforespring freshets (Lewis et al., 2002). Inthe Kemano River, British Columbia,eulachon preferred water velocities from0.1 to 0.7 m/s (Lewis et al., 2002).Sufficient flow may also be needed toflush silt and debris from spawning

substrate surfaces to prevent suffocationof developing eggs.

Water Quality: Water quality suitablefor spawning and viability of alleulachon life stages. Sublethalconcentrations of contaminants affectthe survival of aquatic species byincreasing stress, predisposingorganisms to disease, delayingdevelopment, and disruptingphysiological processes, includingreproduction. Adult eulachon can takeup and store pollutants from theirspawning rivers, despite the fact thatthey do not feed in fresh water and

remain there only a few weeks (Rogerset al., 1990; WDFW and ODFW, 2001).Eulachon have also been shown to avoidpolluted waters when possible (Smithand Saalfeld, 1955).

Water Temperature: Suitable watertemperatures, within natural ranges, ineulachon spawning reaches. Watertemperature between 4 C and 10 C(39 F and 50 F) in the Columbia Riveris preferred for spawning (WDFW andODFW, 2001) although temperaturesduring spawning can be much colder innorthern rivers (e.g., 0 C to 2 C [32 F

to 36 F] in the Nass River; Willson etal., 2006). High water temperatures canlead to adult mortality and spawningfailure (Blahm and McConnell, 1971).

Substrate: Spawning substrates foreulachon egg deposition anddevelopment. Spawning substratestypically consist of silt, sand, gravel,cobble, or detritus (Gustafson et al.,

2010). However, pea-sized gravel (Smithand Saalfeld, 1955) and coarse sand(Langer et al., 1977) are the mostcommonly used. Water depth forspawning can range from 8 cm (3 in) toat least 7.6 m (25 ft) (Willson et al.,2006).

The components of the freshwater andestuarine migration corridor essentialfeature include:

Migratory Corridor: Safe andunobstructed migratory pathways foreulachon adults to pass from the oceanthrough estuarine areas to riverinehabitats in order to spawn, and forlarval eulachon to access rearinghabitats within the estuaries andjuvenile and adults to access habitats inthe ocean. Lower reaches of larger riversystems (e.g., the Columbia River) areused as migration routes to upriver ortributary spawning areas. Out-migratinglarval eulachon are distributedthroughout the water column in somerivers (e.g., the Fraser River) but aremore abundant in mid-water and bottomportions of the water column in others(e.g., the Columbia River; Smith andSaalfeld, 1955; Howell et al., 2001).

Flow: A flow regime (i.e., themagnitude, frequency, duration,

seasonality, and rate-of-change offreshwater discharge over time) thatsupports spawning migration of adultsand outmigration of larval eulachonfrom spawning sites. Most eulachonspawning rivers experience a springfreshet (Hay and McCarter, 2000) thatmay influence the timing of spawningadult migration. In general, eulachonspawn at low water levels before springfreshets (Lewis et al., 2002). In theKemano River water velocity greaterthan 0.4 m/s (1.3 ft/s) begins to limitupstream movements (Lewis et al.,2002).

Water Quality: Water quality suitablefor survival and migration of spawningadults and larval eulachon. Adulteulachon can take up and storepollutants from their spawning rivers,despite the fact that they do not feed infresh water and remain there only a fewweeks (Rogers et al., 1990; WDFW andODFW, 2001). Eulachon avoid pollutedwaters when possible (Smith andSaalfeld, 1955).

Water Temperature: Watertemperature suitable for survival andmigration. Eulachon run timing may be



11/29


influenced by water temperature(Willson et al., 2006), and high watertemperatures can increase adultmortality (Blahm and McConnell, 1971).Given the range of temperatures inwhich eulachon spawn, Langer et al.(1977) suggested that the contrast

between ocean and river temperaturesmight be more critical than absolute

river or ocean temperatures.Food: Prey resources to support larval

eulachon survival. Eulachon larvae needabundant prey items (especiallycopepod larvae; Hart, 1973) when they

begin exogenous feeding after the yolksac is depleted. The eulachon yolk saccan be depleted between 6 and 21 daysafter hatching (Howell, 2001), andlarvae may be retained in low salinity,surface waters of the natal estuary forseveral weeks or longer (Hay andMcCarter, 2000), making this animportant component in migratorycorridor habitat.

The components of the nearshore andoffshore marine foraging essentialfeature include:

Food: Prey items, in a concentrationthat supports foraging leading toadequate growth and reproductivedevelopment for juveniles and adults inthe marine environment. Eulachonlarvae and juveniles eat a variety of preyitems, including phytoplankton,copepods, copepod eggs, mysids,

barnacle larvae, and worm larvae(Barraclough, 1967; Barraclough andFulton, 1967; Robinson et al., 1968a,1968b). Eulachon adults feed onzooplankton, 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).

Water Quality: Water quality suitablefor adequate growth and reproductivedevelopment. The water qualityrequirements for eulachon in marinehabitats are largely unknown, but theywould likely include adequate dissolvedoxygen levels, adequate temperature,and lack of contaminants (such aspesticides, organochlorines, elevated

levels of heavy metals) that may disruptbehavior, growth, and viability ofeulachon and their prey.

Specific Areas Within the GeographicalArea Occupied by the Species

After determining the geographicalarea occupied by the southern DPS ofeulachon, and identifying the physicaland biological features essential to theirconservation, we next identified thespecific areas that meet the statutorydefinition of critical habitat. Criticalhabitat is defined in Section 3(5)(A)(i) of

the ESA as the specific areas withinthe geographical area occupied by thespecies * * * on which are found thosephysical and biological features (I)essential to the conservation of thespecies and (II) which may requirespecial management considerations orprotection. All of the essential physicaland biological features we identified for

freshwater and estuarine habitat occurwithin either spawning and incubationareas, or migratory corridors. In order toidentify specific areas where theessential features occur, we developedcriteria to determine if an areacontained either spawning andincubation sites, or a migratory corridor.These criteria are areas that contain:(1) Larval fish or pre-/post-spawn adultsthat have been positively identified anddocumented; or (2) commercial orrecreational eulachon fishery that has

been documented over multiple years.There are 42 creeks and rivers with

known or possible eulachon spawningwithin the U.S. range of the southernDPS of eulachon (Gustafson et al., 2010;NMFS, 2011b). Of these, we identified16 that meet at least one of the criteriafor the presence of the physical or

biological features essential foreulachon conservation. We thendetermined the distribution of theessential features within these creeks orrivers. We relied on evidence of adultand larval eulachon presence todelineate the extent of the specific areaswhere the spawning and incubationsites and migration corridors are found.

We used the most recent scientific

information available to us (includingdata from published literature, fieldobservations, opportunistic sightings,commercial and recreational harvest,and anecdotal information) to determinethe presence and distribution of theessential features within the creeks andrivers with known or possible presenceof eulachon. For a limited number ofareas, opportunistic sightings are theonly information that is available toidentify the presence and distribution ofthe essential features. Where the onlyavailable information was opportunisticsightings, we consulted agency and

Tribal biologists familiar with the areato confirm the information and identifythe presence and extent of the essentialfeatures. For these areas we considerthis the best available scientificinformation, necessary to inform ourdecisions.

The 16 specific freshwater andestuarine areas which contain one ormore of the essential physical or

biological features are described belowand summarized in Table 1, whichappears at the end of the SpecialManagement Considerations section.

The Eulachon Biological Report (NMFS,2011b) provides more detailedinformation on each specific area,including a description of the essentialphysical and biological features, specialmanagement considerations orprotection that may be needed, and thepresence and distribution of thesouthern DPS of eulachon.

(1) Mad River, CA: The Mad River islocated in northwestern California. Itflows for approximately 150 km (95 mi)in a roughly northwest directionthrough Trinity and Humboldt Counties,draining a 1,290 km2 (497 mi2) basininto the Pacific Ocean nearMcKinleyville, California. The riversheadwaters are in the Coast Rangemountains near South Kelsey Ridge.

Eulachon consistently spawned inlarge numbers in the Mad River asrecently as the 1960s and 1970s (Moyleet al., 1995; Moyle, 2002; Gustafson etal., 2010). However, in recent years

eulachon numbers have declined, andthey are now considered rare(Sweetnam et al., 2001). Based onobservations by the CaliforniaDepartment of Fish and Game (CDFG),spawning occurs as far upstream as theconfluence with the North Fork of theMad River (CDFG, 2009). The river

below this point contains overlappingspawning and incubation sites andmigration corridor features.

(2) Redwood Creek, CA: RedwoodCreek is located entirely in HumboldtCounty, in northwestern California. The

basin is approximately 105 km (65 mi)

long, and drains approximately 738 km2

(285 mi2), most of which is forested andmountainous terrain (Cannata et al.,2006).

Eulachon have been reported fromRedwood Creek by a variety of sources(Young, 1984; Ridenhour and Hofstra,1994; Moyle et al., 1995; Larson andBelchik, 1998), and runs large enough to

be noted in available local newspaperaccounts occurred in 1963 and 1967.Eulachon returns to Redwood Creekhave declined drastically in recentyears, and they are now considered rare(Sweetnam et al., 2001). CDFG reported

that during the early 1970s eulachonregularly spawned between the oceanand the mouth of Prairie Creek (the firstmajor tributary on Redwood Creek;Moyle et al., 1995). During April 1973,a spawning run of eulachon wereobserved passing Tom McDonald Creek(CDFG, 1973), a tributary locatedapproximately 19.7 km (12.2 miles)upstream from the mouth of RedwoodCreek, indicating that this area containsthe essential features of spawning andincubation, and a migration corridor.Spawning also occurred in the lower 0.5



12/29


km (0.3 mi) of Prairie Creek (Moyle etal., 1995), sporadically up to the 1970s.

The lower reach of Redwood Creekalternates between an open estuary anda closed coastal lagoon depending onthe season. During early summer a sand

bar typically forms across the rivermouth creating a lagoon. Rains duringthe fall typically clear the sand bar away

and open up the river mouth to theocean (Cannata et al., 2006).

(3) Klamath River, CA: The KlamathRiver basin drains approximately 25,100km2 (9,690 mi2) in southern Oregon andnorthern California, making it thesecond largest river in California (afterthe Sacramento River). Historically, theKlamath River has been a majorproducer of anadromous fish, and oncewas the third most productive salmonand steelhead fishery in the continentalUnited States, prior to recent significantdeclines (Powers et al., 2005).

Historically, large aggregations ofeulachon consistently spawned in theKlamath River (Fry, 1979; Moyle et al.,1995; Larson and Belchik, 1998; Moyle,2002; Hamilton et al., 2005), and acommercial fishery occurred there in1963 (Odemar, 1964). During thespawning run, fish were regularlycaught from the mouth of the riverupstream to Brooks Riffle, near theconfluence with Omogar Creek (Larsonand Belchik, 1998), indicating that thisarea contains the spawning andincubation, and migration corridoressential features.

The only reported commercial catchof eulachon in Northern California

occurred in 1963 when a combined totalof 25 metric tons (56,000 lbs) waslanded from the Klamath River, the MadRiver, and Redwood Creek (Odemar,1964). Since 1963, the run size hasdeclined to the point that only a fewindividual fish have been caught inrecent years. According to accounts ofYurok Tribal elders, the last noticeableruns of eulachon were observed in theKlamath River in 1988 and 1989 byTribal fishers (Larson and Belchik,1998). However, in January 2007, andagain in February 2011, a small numberof eulachon were reportedly caught by

Tribal fishers on the Klamath River(Yurok Tribe, 2008; McCovey, 2011).Larson and Belchik (1998) report thateulachon have not been of commercialimportance in the Klamath in recentyears and are unstudied as to theircurrent run strengths.

Approximately 68 km (42 mi) of thelower Klamath River is bordered by theYurok Indian Reservation. The lowerKlamath River is listed as a NationalWild and Scenic River from the mouth,upstream to just below Iron Gate Dam,for a total of 460 km (286 mi). Of these,

19 km (12 mi) are designated Wild, 39km (24 mi) are designated Scenic, and402 km (250 mi) are designatedRecreational.

(4) Umpqua River/Winchester Bay,OR: The Umpqua River Basin consists ofa 10,925 km2 (4,220 mi2) drainage areacomprised of the main Umpqua River,the North Umpqua River, the South

Umpqua River, and associated tributarystreams (Snyder et al., 2006). TheUmpqua River drains a variedlandscape, from steep-sloped uplands,to low gradient broad floodplains.Upstream, the Umpqua River collectswater from tributaries as far east as theCascade Mountains.

Historically, a large and consistentrun of eulachon returned to the UmpquaRiver, and both recreational andcommercial fisheries occurred. TheUmpqua River eulachon sport fisherywas active for many years during the1970s and 1980s, with the majority offishing activity centered near the townof Scottsburg. A commercial fishery alsoharvested eulachon during that time.Approximately 1,800 to 2,300 kg (4,000to 5,000 lbs) of eulachon were landed bytwo commercial fishermen in theUmpqua River during 31 days of driftgill net fishing from late December 1966to mid-March 1967 (OFC, 1970).Numbers of fish returning to theUmpqua seem to have declined in the1980s and do not appear to haverebounded to previous levels. Johnsonet al. (1986) list eulachon as occurringin trace amounts in their trawl and

beach-seine samples from April 1977 to

January 1986. Williams (2009) reportedon the results of seine collectionsconducted during March to Novemberfrom 1995 to 2003 in Winchester Bayestuary on the Lower Umpqua River,which confirmed the presence ofeulachon in four of the years in whichsampling occurred.

Eulachon have been documented inthe lower Umpqua River duringspawning, from the mouth upstream tothe confluence of Mill Creek, just belowScottsburg (Williams, 2009). Thisindicates that the area downstream fromthis confluence contains the spawning

and incubation, and migration corridoressential features.(5) Tenmile Creek, OR: The Tenmile

Creek watershed lies entirely withinLane County, Oregon and encompassesapproximately 60 km2 (23 mi2) on thecentral Oregon Coast (Johnson, 1999).The watershed is in a unique location,

bet

dept of commerce. noaa final rule

Documents