NACO

National Association of Charterboat Operators

Designation of Critical Habitat for Lower Columbia River Coho Salmon and Puget Sound Steelhead; Proposed Rule

We, the National Marine Fisheries Service (NMFS), propose to designate critical habitat for lower Columbia River coho salmon and Puget Sound steelhead, currently listed as threatened species under the Endangered Species Act (ESA). The specific areas proposed for designation for lower Columbia River coho include approximately 2,288 mi (3,681 km) of freshwater and estuarine habitat in Oregon and Washington. The specific areas proposed for designation for Puget Sound steelhead include approximately 1,880 mi of freshwater and estuarine habitat in Puget Sound, Washington. We propose to exclude a number of particular areas from designation because the benefits of exclusion outweigh the benefits of inclusion and exclusion will not result in the extinction of the species.

We are soliciting comments from the public on all aspects of the proposal, including information on the economic, national security, and other relevant impacts of the proposed designations, as well as the benefits to the species from designations. We will consider additional information received prior to making final designations.

Comments on this proposed rule must be received by 5 p.m. P.S.T. on April 15, 2013. Requests for public hearings must be made in writing by February 28, 2013.

 

ADDRESSES: You may submit comments on the proposed rule, identified by FDMS docket number [NOAA-NMFS-2012-0224], by any one of the following methods:

 

     Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

     Fax: 503-230-5441, Attn: Steve Stone.

     Mail: Chief, Protected Resources Division, Northwest Region, National Marine Fisheries Service, 1201 NE. Lloyd Blvd., Suite 1100, Portland, OR 97232.

    Instructions: Comments will be posted for public viewing as soon as possible during the comment period. All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. We may elect not to post comments with obscene or threatening content. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

We will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. The proposed rule, list of references and supporting documents (including the Draft Biological Report (NMFS 2012a), the Draft Economic Analysis (NMFS 2012b), and the Draft Section 4(b)(2) Report (NMFS 2012c)) are also available electronically at http://www.nwr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Steve Stone, NMFS, Northwest Region, Protected Resources Division, at the address above or at  503-231-2317; or Dwayne Meadows, NMFS, Office of Protected Resources, Silver Spring, MD,  301-427-8403.

Background

We are responsible for determining whether species, subspecies, or 

distinct population segments (DPSs) are threatened or endangered and 

which areas of their habitat constitute critical habitat for them under 

the ESA (16 U.S.C. 1531 et seq.). To be considered for listing under 

the ESA, a group of organisms must constitute a ``species,'' which is 

defined in section 3 to include ``any subspecies of fish or wildlife or 

plants, and any distinct population segment of any species of 

vertebrate fish or wildlife which interbreeds when mature.'' The agency 

has determined that a group of Pacific salmon populations (including 

lower Columbia River coho) qualifies as a distinct population segment 

(DPS) if the group is substantially reproductively isolated and 

represents an important component in the evolutionary legacy of the 

biological species (56 FR 58612, November 20, 1991). We determined that 

a group of Pacific steelhead populations qualifies as a DPS if it is 

markedly separate and significant to its taxon (61 FR 4722, February 7, 

1996; 71 FR 834, January 5, 2006). In previous rulemaking we determined 

that lower Columbia River coho (70 FR 37160, June 28, 2005) and Puget 

Sound steelhead (72 FR 26722, May 11, 2007) are each DPSs that warrant 

protection as threatened species under the ESA. We also determined that 

critical habitat was not determinable at the time of those final 

listing decisions and announced that we would propose critical habitat 

in separate rulemaking. Since the time of listing, the recovery 

planning process has progressed for these two DPSs and additional new 

information is now available to better inform the designation process. 

In view of these developments, we published an advance notice of 

proposed rulemaking (ANPR) on January 10, 2011 (76 FR 1392), to make 

the public aware of the opportunity to provide us with comments and 

information that may be useful in making proposed critical habitat 

designations for these two DPSs. We received several comments and 

datasets in response to the ANPR, and these have been reviewed and 

incorporated as appropriate into documents and analyses supporting this 

proposed rule (NMFS, 2012a; NMFS, 2012c). We encourage those who 

submitted comments on the ANPR to review and comment on this proposed 

rule as well. We will address all relevant comments in the final rule.

    We considered various alternatives to the critical habitat 

designation for these DPSs. The alternative of not designating critical 

habitat 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 these species. The alternative of designating 

all of the areas considered for designation (i.e., no areas excluded) 

was also considered and rejected because, for several areas, the 

benefits of exclusion outweighed the benefits of designation, and we 

determined that exclusion of these areas would not significantly impede 

conservation of the species or result in extinction of the species. The 

total estimated annualized economic impact associated with the 

designation of all of the areas considered would be $357,815

 

[[Page 2727]]

 

for lower Columbia River coho and $460,924 for Puget Sound steelhead.

    An alternative to designating critical habitat within all of the 

areas considered for designation is the designation of critical habitat 

within a subset of these areas. Under section 4(b)(2) of the ESA, we 

must consider the economic impacts, impacts on national security, and 

other relevant impacts of designating any particular area as critical 

habitat. We have 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 these species if an area were designated), so long as exclusion of 

the area will not result in extinction of the species. Exclusion under 

section 4(b)(2) of the ESA of one or more of the areas considered for 

designation would reduce the total impacts of designation.

    The determination of which units to exclude depends on our ESA 

section 4(b)(2) analysis, which is conducted for each area and 

described in detail in the draft ESA 4(b)(2) report (NMFS, 2012c). 

Under the preferred alternative we propose to exclude Indian lands as 

well as areas covered by several NMFS-approved habitat conservation 

plans. We also propose to exclude--due to economic impacts--some or all 

of the habitat areas in 1 of the 55 watersheds considered for lower 

Columbia River coho and 4 of the 66 watersheds considered for Puget 

Sound steelhead. The total estimated economic impact associated with 

the areas excluded due to economic impacts under this preferred 

alternative is $13,500 for lower Columbia River coho and $157,100 for 

Puget Sound steelhead. We determined that the exclusion of these areas 

would not significantly impede the conservation of either DPS or result 

in its extinction. We selected this as the preferred alternative 

because it results in a critical habitat designation that provides for 

the conservation of both lower Columbia River coho and Puget Sound 

steelhead while reducing economic and other relevant impacts. This 

alternative also meets the requirements under the ESA and our joint 

NMFS-U.S. Fish and Wildlife Service regulations concerning critical 

habitat.

 

Identifying Proposed Critical Habitat

 

Pacific Salmon and Steelhead Biology and Habitat Use

 

    Pacific salmon and steelhead are anadromous fish, meaning adults 

migrate from the ocean to spawn in freshwater lakes and streams where 

their offspring hatch and rear prior to migrating back to the ocean to 

forage until maturity. The migration and spawning times vary 

considerably between and within species and populations (Groot and 

Margolis, 1991). At spawning, adults pair to lay and fertilize 

thousands of eggs in freshwater gravel nests or ``redds'' excavated by 

females. Depending on lake/stream temperatures, eggs incubate for 

several weeks to months before hatching as ``alevins'' (a larval life 

stage dependent on food stored in a yolk sac). Following yolk sac 

absorption, alevins emerge from the gravel as young juveniles called 

``fry'' and begin actively feeding. Depending on the species and 

location, juveniles may spend from a few hours to several years in 

freshwater areas before migrating to the ocean. The physiological and 

behavioral changes required for the transition to salt water result in 

a distinct ``smolt'' stage in most species. On their journey juveniles 

must migrate downstream through every riverine and estuarine corridor 

between their natal (birth) lake or stream and the ocean. En route to 

the ocean the juveniles may spend from a few days to several weeks in 

the estuary, depending on the species. The highly productive estuarine 

environment is an important feeding and acclimation area for juveniles 

preparing to enter marine waters.

    Juveniles and subadults typically spend from one to five years 

foraging over thousands of miles in the North Pacific Ocean before 

returning to spawn. Some species, such as coho salmon, have precocious 

life history types (primarily male fish called ``jacks'') that mature 

and spawn after only several months in the ocean. Spawning migrations 

known as ``runs'' occur throughout the year, varying by species and 

location. Most adult fish return or ``home'' with great fidelity to 

spawn in their natal stream, although some do stray to non-natal 

streams. Salmon species die after spawning, while steelhead may return 

to the ocean and make repeat spawning migrations.

    This complex life cycle gives rise to complex habitat needs, 

particularly during the freshwater phase (see review by Spence et al., 

1996). Spawning gravels must be of a certain size and free of sediment 

to allow successful incubation of the eggs. Eggs also require cool, 

clean, and well-oxygenated waters for proper development. Juveniles 

need abundant food sources, including insects, crustaceans, and other 

small fishes. They need places to hide from predators (mostly birds and 

bigger fishes), such as under logs, root wads and boulders in the 

stream, and beneath overhanging vegetation. They also need places to 

seek refuge from periodic high flows (side channels and off channel 

areas) and from warm summer water temperatures (coldwater springs and 

deep pools). Returning adults generally do not feed in fresh water but 

instead rely on limited energy stores to migrate, mature, and spawn. 

Like juveniles, they also require cool water and places to rest and 

hide from predators. During all life stages salmon and steelhead 

require cool water that is free of contaminants. They also require 

migratory corridors with adequate passage conditions (timing, water 

quality, and water quantity) to allow access to the various habitats 

required to complete their life cycle.

    The homing fidelity of salmon and steelhead has created a meta-

population structure with discrete populations distributed among 

watersheds (McElhany et al., 2000). Low levels of straying result in 

regular genetic exchange among populations, creating genetic 

similarities among populations in adjacent watersheds. Maintenance of 

the meta-population structure requires a distribution of populations 

among watersheds where environmental risks (e.g., from landslides or 

floods) are likely to vary. It also requires migratory connections 

among the watersheds to allow for periodic genetic exchange and 

alternate spawning sites in the case that natal streams are 

inaccessible due to natural events such as a drought or landslide.

    More details regarding life history and habitat requirements of 

lower Columbia River coho and Puget Sound steelhead are found later in 

this rule under Species Descriptions and Area Assessments, as well as 

in the final listing rules cited above.

 

Statutory and Regulatory Background for Critical Habitat Designations

 

    The ESA defines critical habitat under section 3(5)(A) 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 [of Commerce] that such areas 

are essential for the conservation of the species.''

    Section 4(a) of the ESA precludes military land from designation, 

where

 

[[Page 2728]]

 

that land is covered by an Integrated Natural Resource Management Plan 

that the Secretary has found in writing will benefit the listed 

species.

    Section 4(b)(2) of the ESA requires us to designate critical 

habitat for threatened and endangered species ``on the basis of the 

best scientific data available and after taking into consideration the 

economic impact, the impact on national security, and any other 

relevant impact, of specifying any particular area as critical 

habitat.'' This section grants the Secretary of Commerce (Secretary) 

discretion to exclude any area from critical habitat if he determines 

``the benefits of such exclusion outweigh the benefits of specifying 

such area as part of the critical habitat.'' In adopting this 

provision, Congress explained that, ``[t]he consideration and weight 

given to any particular impact is completely within the Secretary's 

discretion.'' H.R. No. 95-1625, at 16-17 (1978). The Secretary's 

discretion to exclude is limited, as he may not exclude areas that 

``will result in the extinction of the species.''

    Once critical habitat is designated, section 7 of the ESA requires 

Federal agencies to ensure they do not fund, authorize, or carry out 

any actions that will destroy or adversely modify that habitat. This 

requirement is in addition to the section 7 requirement that Federal 

agencies ensure their actions do not jeopardize the continued existence 

of listed species.

 

Methods and Criteria Used To Identify Critical Habitat

 

    In the following sections, we describe the relevant definitions and 

requirements in the ESA and our implementing regulations and the key 

methods and criteria used to prepare this proposed critical habitat 

designation. Discussion of the specific implementation of each item 

occurs within the species-specific sections. In accordance with section 

4(b)(2) of the ESA and our implementing regulations (50 CFR 424.12), 

this proposed rule is based on the best scientific information 

available concerning the species' present and historical range, 

habitat, and biology, as well as threats to their habitat. In preparing 

this proposed rule, we reviewed and summarized current information on 

these species, including recent biological surveys and reports, peer-

reviewed literature, NMFS status reviews, and the proposed and final 

rules to list these species. All of the information gathered to create 

this proposed rule has been collated and analyzed in three supporting 

documents: a Draft Biological Report (NMFS, 2012a); a Draft Economic 

Analysis (NMFS, 2012b); and a Draft Section 4(b)(2) Report (NMFS, 

2012c). We used this information to inform the identification of 

specific areas as critical habitat. We followed a five-step process in 

order to identify these specific areas: (1) Determine the geographical 

area occupied by the species at the time of listing, (2) identify 

physical or biological habitat features essential to the conservation 

of the species, (3) delineate specific areas within the geographical 

area occupied by the species on which are found the physical or 

biological features, (4) determine whether the features in a specific 

area may require special management considerations or protections, and 

(5) determine whether any unoccupied areas are essential for 

conservation. Our evaluation and conclusions are described in detail in 

the following sections.

 

Geographical Area Occupied by the Species and Specific Areas Within the 

Geographical Area

 

    Federal, state, and tribal fishery biologists map salmonid species 

distribution at the level of stream reaches. The mapping includes areas 

where the species has been observed (within the past 20 years, but 

typically more recently) or where it is presumed to occur based on the 

professional judgment of biologists familiar with the watershed and the 

availability of suitable habitat, in particular the location of known 

barriers. Much of these data can be accessed and analyzed using 

geographic information systems (GIS) to produce consistent and fine-

scale maps. As a result, nearly all salmonid freshwater and estuarine 

habitats in Washington, Oregon, Idaho, and California are mapped and 

available in GIS at a scale of 1:24,000 (e.g., Oregon Department of 

Fish and Wildlife (ODFW), 2010a; Washington Department of Fish and 

Wildlife (WDFW), 2010), allowing for accurate and refined delineation 

of ``geographical area occupied by the species'' referred to in the ESA 

definition of critical habitat. We accessed these GIS data beginning in 

2010, modified them based on input from state and tribal fishery 

biologists, and believe that they represent the best available 

information about areas occupied by each species at the time of 

listing.

    To identify ``specific areas,'' we used ``HUC5'' watersheds as we 

did in our 2005 salmonid critical habitat designations (70 FR 52630, 

September 2, 2005). HUC5 watershed delineations are created by the U.S. 

Geological Survey and are generally available from various federal 

agencies and via the internet (Interior Columbia Basin Ecosystem 

Management Project, 2003; Regional Ecosystem Office, 2004; U.S. 

Department of Interior and USGS, 2009). We used this information to 

organize critical habitat information systematically and at a scale 

that was relevant to the spatial distribution of salmon and steelhead. 

Organizing information at this scale is especially relevant to 

salmonids, since their innate homing ability allows them to return to 

particular reaches in the specific watersheds where they were born. 

Such site fidelity results in spatial aggregations of salmonid 

populations (and their constituent spawning stocks) that generally 

correspond to the area encompassed by wider HUC4 subbasins or their 

constituent HUC5 watersheds (Washington Department of Fisheries, 

Washington Department of Wildlife and Western Washington Treaty Indian 

Tribes, 1992; Kostow, 1995; McElhany et al., 2000).

    In addition, HUC5 watersheds are consistent with the scale of 

recovery efforts for West Coast salmon and steelhead, and watershed-

level analyses are now common throughout the West Coast. There are 

presently hundreds of watershed councils or groups in the Pacific 

Northwest. Many operate at a geographic scale of one to several HUC5 

watersheds and are integral parts of larger-scale salmon recovery 

strategies (Shared Strategy for Puget Sound, 2007; NMFS, 2012d). In 

addition to these efforts, NMFS has developed various ESA guidance 

documents that underscore the link between salmon conservation and the 

recovery of watershed processes (NMFS, 2000; NMFS, 2005; NMFS, 2007). 

Aggregating stream reaches into HUC5 watersheds allowed the agency to 

delineate ``specific areas'' within or outside the geographical area 

occupied by the species at a scale that corresponds well to salmonid 

population structure and ecological processes.

    As in our 2005 critical habitat designations (70 FR 52630, 

September 2, 2005), we identified estuary features essential to 

conservation of these species. For streams and rivers that empty into 

marine areas, we included the associated estuary as part of the HUC5 

``specific area.'' Also, as in our 2005 salmonid designations, we 

identified certain prey species in nearshore and offshore marine waters 

(such as Pacific herring) as essential features, and concluded that 

some may require special management considerations or protection 

because they are commercially harvested. However, prey species move or 

drift

 

[[Page 2729]]

 

great distances throughout marine waters, often in association with 

oceanographic features that also move (such as eddies and 

thermoclines). Thus, although we sought new information to better 

inform this question, we continue to conclude that we cannot identify 

specific offshore marine areas where the essential habitat features may 

be found (NMFS, 2012e).

    We also considered marine areas in Puget Sound for steelhead as 

potential specific areas, but concluded that at this time the best 

available information suggests there are no areas that meet the 

definition of critical habitat in the statute. In our 2005 rule (70 FR 

52630, September 2, 2005), we designated critical habitat in nearshore 

areas for Puget Sound Chinook and Hood Canal summer-run chum salmon. 

However, steelhead move rapidly out of freshwater and into offshore 

marine areas, unlike Puget Sound Chinook and Hood Canal summer chum, 

making it difficult to identify specific foraging areas where the 

essential features are found. We therefore determined that for Puget 

Sound steelhead it is not possible to identify specific areas in the 

nearshore zone in Puget Sound.

 

Primary Constituent Elements and Physical or Biological Features 

Essential to the Conservation of the Species

 

    Agency regulations at 50 CFR 424.12(b) interpret the statutory 

phrase ``physical or biological features essential to the conservation 

of the species.'' The regulations state that these features include, 

but are not limited to, space for individual and population growth and 

for normal behavior; food, water, air, light, minerals, or other 

nutritional or physiological requirements; cover or shelter; sites for 

breeding, reproduction, and rearing of offspring; and habitats that are 

protected from disturbance or are representative of the historical 

geographical and ecological distribution of a species. The regulations 

further direct us to ``focus on the principal biological or physical 

constituent elements * * * that are essential to the conservation of 

the species, and specify that these elements shall be the `known 

primary constituent elements'.'' The regulations identify primary 

constituent elements (PCE) as including, but not being limited to: 

``roost sites, nesting grounds, spawning sites, feeding sites, seasonal 

wetland or dryland, water quality or quantity, host species or plant 

pollinator, geological formation, vegetation type, tide, and specific 

soil types.''

    For the 2005 critical habitat designations (70 FR 52630, September 

2, 2005), NMFS biologists developed a list of physical and biological 

features relevant to determining whether occupied stream reaches within 

a watershed meet the ESA section (3)(5)(A) definition of ``critical 

habitat,'' consistent with the implementing regulation at 50 CFR 

424.12(b). Relying on the biology and life history of each species, we 

determined the physical or biological habitat features essential to 

their conservation. For the present rulemaking, we use the same 

features, which we identified in the advance notice of proposed 

rulemaking (76 FR 1392, January 10, 2011). These features include sites 

essential to support one or more life stages of the DPS (sites for 

spawning, rearing, migration and foraging). These sites in turn contain 

physical or biological features essential to the conservation of the 

DPS (for example, spawning gravels, water quality and quantity, side 

channels, forage species). Specific types of sites and the features 

associated with them (both of which are referred to as PCEs) include 

the following:

    1. Freshwater spawning sites with water quantity and quality 

conditions and substrate supporting spawning, incubation and larval 

development.

    2. Freshwater rearing sites with water quantity and floodplain 

connectivity to form and maintain physical habitat conditions and 

support juvenile growth and mobility; water quality and forage 

supporting juvenile development; and natural cover such as shade, 

submerged and overhanging large wood, log jams and beaver dams, aquatic 

vegetation, large rocks and boulders, side channels, and undercut 

banks.

    3. Freshwater migration corridors free of obstruction with water 

quantity and quality conditions and natural cover such as submerged and 

overhanging large wood, aquatic vegetation, large rocks and boulders, 

side channels, and undercut banks supporting juvenile and adult 

mobility and survival.

    4. Estuarine areas free of obstruction with water quality, water 

quantity, and salinity conditions supporting juvenile and adult 

physiological transitions between fresh- and saltwater; natural cover 

such as submerged and overhanging large wood, aquatic vegetation, large 

rocks and boulders, and side channels; and juvenile and adult forage, 

including aquatic invertebrates and fishes, supporting growth and 

maturation.

    5. Nearshore marine areas free of obstruction with water quality 

and quantity conditions and forage, including aquatic invertebrates and 

fishes, supporting growth and maturation; and natural cover such as 

submerged and overhanging large wood, aquatic vegetation, large rocks 

and boulders, and side channels.

    6. Offshore marine areas with water quality conditions and forage, 

including aquatic invertebrates and fishes, supporting growth and 

maturation.

    We re-evaluated these PCEs and determined that they are all fully 

applicable to lower Columbia River coho and Puget Sound steelhead. The 

habitat areas proposed for designation in this rule currently contain 

PCEs within the acceptable range of values required to support the 

biological processes for which the species use the habitat (NMFS 

2012a). The contribution of the PCEs to the habitat varies by site and 

biological function, illustrating that the quality of the elements may 

vary within a range of acceptable conditions.

 

Special Management Considerations or Protection

 

    An occupied area cannot be designated as critical habitat unless it 

contains physical and biological features that ``may require special 

management considerations or protection.'' Agency regulations at 50 CFR 

424.02(j) define ``special management considerations or protection'' to 

mean ``any methods or procedures useful in protecting physical and 

biological features of the environment for the conservation of listed 

species.'' Many forms of human activity have the potential to affect 

the habitat of listed salmon species: (1) Forestry; (2) grazing; (3) 

agriculture; (4) road building/maintenance; (5) channel modifications/

diking; (6) urbanization; (7) sand and gravel mining; (8) mineral 

mining; (9) dams; (10) irrigation impoundments and withdrawals; (11) 

river, estuary, and ocean traffic; (12) wetland loss/removal; (13) 

beaver removal; (14) exotic/invasive species introductions. In addition 

to these, human harvest of salmonid prey species (e.g., herring, 

anchovy, and sardines) may present another potential habitat-related 

activity (Pacific Fishery Management Council, 1999). All of these 

activities have PCE-related impacts via their alteration of one or more 

of the following: stream hydrology, flow and water-level modifications, 

fish passage, geomorphology and sediment transport, temperature, 

dissolved oxygen, vegetation, soils, nutrients and chemicals, physical 

habitat structure, and stream/estuarine/marine biota and forage (Spence 

et al., 1996; Pacific Fishery Management Council, 1999).

 

Unoccupied Areas

 

    Section 3(5)(A)(ii) of the ESA authorizes the designation of 

``specific

 

[[Page 2730]]

 

areas outside the geographical area occupied at the time [the species] 

is listed'' if these areas are essential for the conservation of the 

species. 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.'' We focused our attention on the species' historical range 

when considering unoccupied areas since these logically would have been 

adequate to support the evolution and long-term maintenance of distinct 

population segments. As with occupied areas, we considered the stream 

segments within a HUC5 watershed to best describe specific areas. While 

it is possible to identify which HUC5s represent geographical areas 

that were historically occupied with a high degree of certainty, this 

is not always the case with specific stream segments. This is due, in 

part, to the emphasis on mapping currently occupied habitats and to the 

paucity of site-specific or systematic historical stream surveys. As 

described later in this proposed rule, we did identify unoccupied 

stream reaches that are essential for conservation of Puget Sound 

steelhead as well as an unoccupied area that might be essential for 

conservation of lower Columbia River coho.

 

Military Lands

 

    Section 4(a)(3) of the ESA precludes the Secretary from designating 

military lands as critical habitat if those lands are subject to an 

Integrated Natural Resource Management Plan (INRMP) under the Sikes Act 

that the Secretary certifies in writing benefits the listed species. We 

consulted with the Department of Defense (DOD) and determined that 

three installations in Washington with either draft or final INRMPs 

overlap with streams occupied by Puget Sound steelhead: (1) Naval Base 

Kitsap; (2) Naval Radio Station, Jim Creek; and (3) Joint Base Lewis-

McChord (Army and Air Force). We did not identify any INRMPs or DOD 

installations within the range of lower Columbia River coho.

    We identified habitat meeting the statutory definition of critical 

habitat at each of the above installations and reviewed the INRMPs, as 

well as other information available regarding the management of these 

military lands. Our preliminary review indicates that each of these 

INRMPs address Puget Sound steelhead habitat, and all contain measures 

that provide benefits to this DPS (NMFS, 2012c). Examples of the types 

of benefits include actions that eliminate fish passage barriers, 

control erosion, protect riparian zones, increase stream habitat 

complexity, and monitor listed species and their habitats. As a result, 

we are not proposing to designate critical habitat in areas subject to 

the INRMPs identified above.

 

Critical Habitat Analytical Review Teams

 

    To assist in the designation of critical habitat, we convened two 

Critical Habitat Analytical Review Teams (Teams)--one for lower 

Columbia River coho and another for Puget Sound steelhead. The Teams 

consisted of NMFS salmonid habitat biologists who were tasked with 

assessing biological information pertaining to areas under 

consideration for designation as critical habitat (NMFS, 2012a). The 

Teams examined each habitat area within the watershed to determine 

whether the reaches occupied by the species contain the physical or 

biological features essential to conservation. The Teams also relied on 

their experience conducting section 7 consultations to determine 

whether the features ``may require special management considerations or 

protection.''

    In addition to occupied areas, the definition of critical habitat 

includes unoccupied areas if we determine the area is essential for 

conservation. Accordingly, the Teams were next asked whether there were 

any unoccupied areas within the historical range of the DPSs that may 

be essential for conservation. Where information was available to make 

this determination, the Teams identified any currently unoccupied areas 

essential for conservation. In some cases, the Teams did not have 

information available that would allow them to draw that conclusion. 

The Teams nevertheless identified areas they believe might, in the 

future, be determined essential through ongoing recovery planning 

efforts. These are identified under the Species Descriptions and Area 

Assessments section, and we are specifically requesting information 

regarding such areas (see Public Comments Solicited below).

    The Teams were next asked to determine the relative conservation 

value of each area for each DPS. The Teams scored each habitat area 

based on several factors related to the quantity and quality of the 

physical and biological features (see NMFS, 2012a for details). They 

next considered each area in relation to other areas and with respect 

to the population occupying that area. Based on a consideration of the 

raw scores for each area, and a consideration of that area's 

contribution to conservation in relation to other areas and in relation 

to the overall population structure of the DPS, the Teams rated each 

habitat area as having a ``high,'' ``medium'' or ``low'' conservation 

value.

    The rating of habitat areas as having a high, medium or low 

conservation value informed the discretionary balancing consideration 

in ESA section 4(b)(2). The higher the conservation value for an area, 

the greater may be the likely benefit of the ESA section 7 protections. 

The Teams also assessed the likelihood of section 7 consultations in a 

particular watershed (that is, how strong is the ``Federal nexus'') and 

how much protection would exist in the absence of a section 7 

consultation (that is, how protective are existing management measures 

and would they likely continue in the absence of section 7 

requirements). The Teams determined that all of the watersheds had a 

high likelihood of receiving a section 7 consultation, but with varying 

degrees of benefit from designation as critical habitat.

    As discussed earlier, the scale chosen for the ``specific area'' 

referred to in ESA section 3(5)(a) was a HUC5 watershed. There were 

some complications with the way some watersheds were delineated that 

required us to adapt the approach for some areas. In particular, a 

large stream or river might serve as a rearing and migration corridor 

to and from many watersheds, yet be embedded itself in a watershed. In 

any given watershed through which it passes, the stream may have a few 

or several tributaries. For rearing/migration corridors embedded in a 

watershed, the Teams were asked to rate the conservation value of the 

watershed based on the tributary habitat. We assigned the rearing/

migration corridor the rating of the highest-rated watershed for which 

it served as a rearing/migration corridor. The reason for this 

treatment of migration corridors is the role they play in the salmon's 

life cycle. Salmon are anadromous--born in fresh water, migrating to 

salt water to feed and grow, and returning to fresh water to spawn. 

Without a rearing/migration corridor to and from the sea, salmon cannot 

complete their life cycle. It would be illogical to consider a spawning 

and rearing area as having a particular conservation value and not 

consider the associated rearing/migration corridor as having a similar 

conservation value.

 

Species Descriptions and Area Assessments

 

    This section describes the lower Columbia River coho and Puget 

Sound

 

[[Page 2731]]

 

steelhead DPSs, noting specific life-history traits and associated 

habitat requirements, and summarizes the Teams' assessment of habitat 

areas for each DPS. The Teams' assessments addressed PCEs in the 

habitat areas within watersheds as well as a separate Columbia River 

rearing/migration corridor for lower Columbia River coho. For ease of 

reporting and reference these watersheds have been organized into their 

larger, associated subbasin.

 

Lower Columbia River Coho Salmon Life History and Conservation Status

 

    The lower Columbia River coho DPS includes all naturally spawned 

populations of coho in the Columbia River and its tributaries in 

Washington and Oregon, from the mouth of the Columbia River upstream to 

and including the Big White Salmon and Hood Rivers, and including the 

lower Willamette River up to Willamette Falls, Oregon, as well as coho 

from twenty-five artificial propagation programs located in numerous 

watersheds throughout the range of the DPS (70 FR 37160, June 28, 

2005).

    Coho populations in this DPS display one of two major life history 

types based on when and where adults migrate from the Pacific Ocean to 

spawn in fresh water. Early returning coho (Type S) typically forage in 

marine waters south of the Columbia River and return beginning in mid-

August, while late returning coho (Type N) generally forage to the 

north and return to the Columbia River from late September through 

December (ODFW, 2010b). It is thought that early returning coho migrate 

to headwater areas and late returning fish migrate to the lower reaches 

of larger rivers or into smaller streams and creeks along the Columbia 

River. Although there is some level of reproductive isolation and 

ecological specialization between early and late types, there is some 

uncertainty regarding the importance of these differences (Myers et 

al., 2006). Some tributaries historically supported spawning by both 

life history types.

    Mature coho of both types typically enter fresh water to spawn from 

late summer to late autumn. Spawning typically occurs between November 

and January. Migration and spawning timing of specific local 

populations may be affected by factors such as latitude, migration 

distance, flows, water temperature, maturity, or migration obstacles. 

Coho generally occupy intermediate positions in tributaries, typically 

further upstream than chum salmon or fall-run Chinook salmon, but often 

downstream of steelhead or spring-run Chinook salmon (ODFW, 2010b). 

Typical coho spawning habitat includes pea to orange-size spawning 

gravel in small, relatively low-gradient tributaries (ODFW, 2010b). Egg 

incubation can take from 45 to 140 days, depending on water 

temperature, with longer incubation in colder water. Fry may thus 

emerge from early spring to early summer. Juveniles prefer complex 

instream structure (primarily large and small woody debris) and shaded 

streams with tree-lined banks for rearing; they often overwinter in 

off-channel alcoves and beaver ponds (where available) (ODFW, 2010a). 

Freshwater rearing lasts until the following spring when the juveniles 

undergo physiological changes (smoltification) and migrate to salt 

water. Juvenile coho are present in the Columbia River estuary from 

March to August (Washington Lower Columbia Salmon Recovery and Fish and 

Wildlife Subbasin Plan, 2010). Coho grow relatively quickly in the 

ocean, reaching up to six kilograms after about 16 months of ocean 

rearing. Most coho are sexually mature at age three, except for a small 

percentage of males (jacks) who return to natal waters after only a few 

months of ocean residency. All coho die after spawning.

    There are 24 historical populations of lower Columbia River coho 

identified in three ecological zones or ``strata'' within the range of 

this DPS: Coast, Cascade, and Gorge strata (Myers et al., 2006). 

McElhany et al. (2007) assessed the viability of lower Columbia River 

coho populations and determined that only one--the Clackamas River--is 

approaching viability. They also observed that, with the exception of 

the Clackamas and Sandy populations, it is likely that most of the wild 

lower Columbia River coho populations were effectively extirpated in 

the 1990s and that no viable populations appear to exist in either the 

Coast or Gorge stratum. Although recently there is evidence of some 

natural production in this DPS, the majority of populations remain 

dominated by hatchery origin spawners, and there is little data to 

indicate they would naturally persist in the long term (NMFS, 2003). 

Approximately 40 percent of historical habitat is currently 

inaccessible, which restricts the number of areas that might support 

natural production, and further increases the DPS's vulnerability to 

environmental variability and catastrophic events (NMFS, 2003). The 

extreme loss of naturally spawning populations, the low abundance of 

extant populations, diminished diversity, and fragmentation and 

isolation of the remaining naturally produced fish confer considerable 

risks to lower Columbia River coho.

    Major habitat factors limiting recovery in fresh water include 

floodplain connectivity and function, channel structure and complexity, 

riparian areas and large woody debris recruitment, stream substrate, 

stream flow, and water quality (Pacific Coast Salmon Restoration Funds, 

2007). In addition to impacts of the Federal Columbia River Hydropower 

System (especially Bonneville Dam on the mainstem Columbia River), 

numerous other populations are affected by upstream and tributary dams 

in the White Salmon, Hood, Lewis, Cowlitz, Sandy, and Clackamas basins, 

although many of those effects are being addressed as a result of 

recent Federal Energy Regulatory Commission re-licensing and associated 

ESA section 7 consultations. For example, the removal of Marmot and 

Little Sandy dams in the Sandy River basin has improved passage for the 

coho population into the upper watershed, and the removal of Condit Dam 

in 2011 is expected to support restoration of the White Salmon River 

portion of the Washington Upper Gorge coho population.

    The ocean survival of juvenile lower Columbia River coho can be 

affected by estuary factors such as changes in food availability and 

the presence of contaminants. Characteristics of the Columbia River 

plume are also thought to be significant to lower Columbia River coho 

migrants during transition to the ocean phase of their lifecycle, 

because yearling migrants appear to use the plume as habitat, in 

contrast to other species whose sub-yearling juveniles stay closer to 

shore (Fresh et al., 2005). Predation and growth during the first 

marine summer appear to be important components determining coho brood-

year strength (Beamish et al., 2001).

    Recovery planning for coho and other ESA-listed salmon and 

steelhead in the lower Columbia River is underway, and a proposed 

recovery plan was made available for public comment in May 2012 (77 FR 

28855, 16 May 2012). The proposed recovery plan includes three 

``management unit'' plans, or plans addressing geographic areas smaller 

than the entire range of the DPS: (1) A Washington Lower Columbia 

management unit plan overseen and coordinated by the Lower Columbia 

Fish Recovery Board (LCFRB); (2) a White Salmon management unit plan 

overseen by NMFS and addressing the White Salmon River basin in 

Washington; and (3) an Oregon Lower Columbia management unit plan led 

by the ODFW with participation by the Oregon Governor's Natural 

Resources

 

[[Page 2732]]

 

Office, NMFS, and the Oregon Lower Columbia River Stakeholder Team. Two 

other documents--an estuary module and a hydropower module--are key 

components of this recovery plan. These documents, which address 

regional-scale issues affecting lower Columbia River salmon and 

steelhead and other listed Columbia River DPSs, provide a consistent 

set of assumptions and recovery actions that were incorporated into 

each management unit plan. The plans also are all consistent with work 

by the Willamette/Lower Columbia Technical\Recovery Team, which was 

formed by NMFS to assess the population structure and develop viability 

criteria for listed lower Columbia River salmon and steelhead (see 

McElhany et al., 2003; McElhany et al., 2006; Myers et al., 2006; and 

McElhany et al., 2007). Because the ESA requires that recovery plans 

address the entire listed entity/DPS, NMFS synthesized these management 

unit plans and modules into a single recovery plan that also 

underscores interdependencies and issues of regional scope, and ensures 

that the entire salmon life cycle is addressed.

    Critical habitat is currently designated for three DPSs of salmon 

and steelhead that use lower Columbia tributary watersheds for spawning 

and rearing: lower Columbia River Chinook salmon, lower Columbia River 

steelhead, and Columbia River chum salmon (70 FR 52630, September 2, 

2005). Critical habitat is also designated in the lower Columbia River 

and several tributaries for bull trout (75 FR 63898, October 18, 2010) 

and the Southern DPS of Pacific eulachon (76 FR 65324, October 20, 

2011). In addition, green sturgeon (74 FR 52300, October 9, 2009) and 

several listed salmonid DPSs that spawn in watersheds upstream of the 

range of lower Columbia River coho (e.g., Snake River fall Chinook 

salmon) have rearing and migration areas designated as critical habitat 

in areas occupied by coho in the lower Columbia River and estuary (58 

FR 68543, December 28, 1993; 64 FR 57399, October 25, 1999; 70 FR 

52630, September 2, 2005). These existing designations have extensive 

overlap with areas under consideration as critical habitat for lower 

Columbia River coho, and given the shared general life history 

characteristics of all these anadromous salmonids, the essential 

habitat features will likewise be similar to those for existing salmon 

and steelhead designations.

    The lower Columbia River Team's assessment for this DPS addressed 

10 subbasins containing 55 occupied watersheds, as well as the lower 

Columbia River rearing/migration corridor. Each of these 56 areas 

constituted the specific areas for the analysis of critical habitat for 

this species. The Team evaluated the conservation value of habitat 

areas on the basis of the habitat requirements of lower Columbia River 

coho, consistent with the PCEs described in the ``Primary Constituent 

Elements and Physical or Biological Features Essential to the 

Conservation of the Species'' section above. The Team also considered 

the conservation value of each specific area in the context of the 

populations within the strata identified by a separate Technical 

Recovery Team (TRT) convened to address biological issues relating to 

the recovery of this DPS (Myers et al., 2006). Summarized information 

is presented below by USGS subbasin because the subbasin presents a 

convenient and systematic way to organize the Team's watershed 

assessments for this DPS and their names are generally more 

recognizable because they typically identify major river systems. Full 

details are in the biological report supporting this proposed 

designation (NMFS, 2012a).

    Middle Columbia/Hood Subbasin--This subbasin contains 13 

watersheds, 8 of which are occupied by this DPS. Occupied watersheds 

encompass approximately 1,370 mi\2\ (3,548 km\2\). Fish distribution 

and habitat use data identify approximately 212 miles (341 km) of 

occupied riverine habitat in the watersheds, including a 23-mile (37-

km) segment of the Columbia River (ODFW, 2010a; WDFW, 2010). Myers et 

al. (2006) identified a single ecological zone (Columbia Gorge) 

containing three populations: Upper Gorge Tributaries, Big White Salmon 

River, and Hood River. The Team concluded that all occupied areas 

contain spawning, rearing, or migration PCEs for this DPS and 

identified several management activities that may affect the PCEs, 

including agriculture, channel modifications/diking, forestry, 

irrigation impoundments and withdrawals, and urbanization (NMFS, 

2012a). The Team also determined that the occupied watersheds in this 

subbasin were of either high or medium conservation value to the DPS. 

Of the eight watersheds reviewed, five were rated as having high 

conservation value and three were rated as having medium conservation 

value to the DPS. The Team noted that two watersheds (Middle Columbia/

Eagle Creek and Middle Columbia/Grays Creek) contain a high value 

rearing and migration corridor in the Columbia River connecting high 

value upstream watersheds with downstream reaches and the ocean. The 

Team also considered whether blocked historical habitat above Condit 

Dam (on the White Salmon River) may be essential for conservation of 

the DPS. The decommissioning of this 100-year-old dam occurred in the 

summer of 2011 and will allow coho and other salmonids access to at 

least 26 miles (42 km) of habitat in the basin upstream (PacifiCorp, 

2012a; PacifiCorp, 2012b). The Team determined that accessing this 

habitat would likely provide a benefit to the DPS. However, the Team 

concluded that it was unclear whether the areas above Condit Dam are 

essential for conservation of the entire DPS, especially in comparison 

to other, more extensive, historical habitats where coho are actively 

being reintroduced and that may be of greater potential benefit to the 

DPS (e.g., areas in the Upper Lewis River). We seek comments and 

information specific to this unoccupied area and whether it is 

essential to the conservation of lower Columbia River coho.

    Lower Columbia/Sandy Subbasin--This subbasin contains nine 

watersheds, all of which are occupied by this DPS. Occupied watersheds 

encompass approximately 1,076 mi\2\ (2,787 km\2\). Fish distribution 

and habitat use data identify approximately 453 miles (729 km) of 

occupied riverine habitat in the watersheds, including a 26-mile (42-

km) segment of the Columbia River (ODFW, 2010a; WDFW, 2010). Myers et 

al. (2003) identified two ecological zones associated with this 

subbasin (Western Cascade Range and Columbia Gorge) containing four 

populations (Lower Gorge tributaries, Sandy River, Washougal River, and 

Salmon Creek). The Team concluded that all occupied areas contain 

spawning, rearing, or migration PCEs for this DPS and identified 

several management activities that may affect the PCEs, including 

agriculture, channel modifications/diking, forestry, irrigation 

impoundments and withdrawals, road building/maintenance, and 

urbanization (NMFS, 2012a). The Team also determined that the occupied 

watersheds in this subbasin were of high or medium conservation value 

to the DPS. Of the nine watersheds reviewed, four were rated as having 

high conservation value and five were rated as having medium 

conservation value to the DPS. The Team also noted that one watershed 

(Columbia Gorge Tributaries) contains a high value rearing and 

migration corridor in the Columbia River connecting high value upstream 

watersheds with downstream reaches and the ocean.

 

[[Page 2733]]

 

    Lewis Subbasin--This subbasin contains six watersheds, all of which 

are currently occupied by this DPS (including four watersheds above 

Merwin Dam now accessible to coho via trap and haul operations in the 

Upper Lewis River (PacifiCorp et al., 2004). Occupied watersheds 

encompass approximately 456 mi\2\ (1,181 km\2\). Fish distribution and 

habitat use data identify approximately 299 miles (481 km) of occupied 

riverine habitat in the watersheds (WDFW, 2010). Myers et al. (2003) 

identified one ecological zone associated with this subbasin (Western 

Cascade Range) containing two populations--one in the East Fork Lewis 

River and the other in the North Fork Lewis River. The Team concluded 

that all occupied areas contain spawning, rearing, or migration PCEs 

for this DPS and identified several management activities that may 

affect the PCEs, including agriculture, channel modifications/diking, 

forestry, irrigation impoundments and withdrawals, road building/

maintenance, and urbanization (NMFS, 2012a). The Team also determined 

that the occupied watersheds in this subbasin ranged from high to low 

conservation value to the DPS. Of the six watersheds reviewed, three 

were rated as having high conservation value, two were rated as having 

medium conservation value, and one was rated as having low conservation 

value to the DPS.

    Lower Columbia/Clatskanie Subbasin--This subbasin contains six 

watersheds, all of which are occupied by this DPS. Occupied watersheds 

encompass approximately 841 mi\2\ (2,178 km\2\). Fish distribution and 

habitat use data identify approximately 387 miles (623 km) of occupied 

riverine habitat in the watersheds (ODFW, 2010a; WDFW, 2010). Myers et 

al. (2003) identified two ecological zones (Coast Range and Western 

Cascade Range) containing four populations (Kalama River, Clatskanie 

River, Elochoman Creek, and Scappoose Creek) in this subbasin. The Team 

concluded that all occupied areas contain spawning, rearing, or 

migration PCEs for this DPS and identified several management 

activities that may affect the PCEs, including agriculture, channel 

modifications/diking, forestry, irrigation impoundments and 

withdrawals, road building/maintenance, urbanization, and wetlands 

loss/removal (NMFS, 2012a). The Team also determined that the occupied 

watersheds in this subbasin were of high or medium conservation value 

to the DPS. Of the six watersheds reviewed, three were rated as having 

high conservation value and three were rated as having medium 

conservation value to the DPS.

    Upper Cowlitz Subbasin--This subbasin contains five watersheds, all 

of which are occupied by this DPS. Occupied watersheds encompass 

approximately 1,030 mi\2\ (2,668 km\2\). Fish distribution and habitat 

use data identify approximately 181 miles (291 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010). This entire habitat is located 

upstream of impassable dams (Mayfield and Mossyrock dams) and only 

accessible to anadromous fish via trap and haul operations. Myers et 

al. (2003) identified one ecological zone (Western Cascade Range) 

containing two populations (Upper Cowlitz River and Cispus River) in 

this subbasin. The Team concluded that all occupied areas contain 

spawning, rearing, or migration PCEs for this DPS and identified 

several management activities that may affect the PCEs, including 

agriculture, channel modifications/diking, forestry, road building/

maintenance, and urbanization (NMFS, 2012a). The Team also determined 

that four of the occupied HUC5 watersheds in this subbasin were of high 

conservation value and one was of medium conservation value to the DPS.

    Lower Cowlitz Subbasin--This subbasin contains eight watersheds, 

all of which are occupied by this DPS. Occupied watersheds encompass 

approximately 1,460 mi\2\ (3,781 km\2\). Fish distribution and habitat 

use data identify approximately 791 miles (1,273 km) of occupied 

riverine habitat in the watersheds (WDFW, 2010). Habitat in two 

watersheds--Tilton River and Riffe Reservoir--is located upstream of 

impassable dams (Mayfield Dam and Mossyrock Dam) and only accessible to 

anadromous fish via trap and haul operations. Myers et al. (2003) 

identified one ecological zone (Western Cascade Range) containing six 

populations (Upper Cowlitz River, Lower Cowlitz River, Tilton River, 

Coweeman River, North Fork Toutle River, and South Fork Toutle River) 

in this subbasin. The Team concluded that all occupied areas contain 

spawning, rearing, or migration PCEs for this DPS and identified 

several management activities that may affect the PCEs, including 

agriculture, channel modifications/diking, forestry, irrigation 

impoundments and withdrawals, road building/maintenance, urbanization, 

and wetlands loss/removal (NMFS, 2012a). The Team also determined that 

the occupied watersheds in this subbasin ranged from high to low 

conservation value to the DPS. Of the eight watersheds reviewed, six 

were rated as having high conservation value, one was rated as having 

medium conservation value, and one was rated as having low conservation 

value to the DPS.

    Lower Columbia Subbasin--This subbasin contains three watersheds, 

all of which are occupied by this DPS. Occupied watersheds encompass 

approximately 515 mi\2\ (1,334 km\2\). Fish distribution and habitat 

use data identify approximately 370 miles (595 km) of occupied riverine 

habitat in the watersheds (ODFW, 2010a; WDFW, 2010). Myers et al. 

(2003) identified one ecological zone (Coast Range) containing three 

populations (Grays/Chinook Rivers, Big Creek, and Youngs Bay) in this 

subbasin. The Team concluded that all occupied areas contain spawning, 

rearing, or migration PCEs for this DPS and identified several 

management activities that may affect the PCEs, including agriculture, 

channel modifications/diking, forestry, irrigation impoundments and 

withdrawals, road building/maintenance, urbanization, and wetlands 

loss/removal (NMFS, 2012a). Of the three watersheds reviewed, one was 

rated as having high conservation value and two were rated as having 

medium conservation value to the DPS.

    Middle Willamette Subbasin--The occupied portion of this subbasin 

is downstream of Willamette Falls and includes a single watershed 

(Abernethy Creek) as well as a short segment (approximately 1 mile (1.6 

km)) of the Willamette River downstream of Willamette Falls. The 

Abernethy Creek watershed encompasses approximately 134 mi\2\ (347 

km\2\). Fish distribution and habitat use data from ODFW identify 

approximately 27 miles (43 km) of occupied riverine habitat in the 

subbasin (ODFW, 2010a). Myers et al. (2003) identified one ecological 

zone (Western Cascade Range) containing one population (Clackamas 

River) in this subbasin. The Team concluded that all occupied areas 

contain spawning, rearing, or migration PCEs for this DPS and 

identified several management activities that may affect the PCEs, 

including agriculture, channel modifications/diking, forestry, 

irrigation impoundments and withdrawals, road building/maintenance, 

urbanization, and wetlands loss/removal (NMFS, 2012a). The Team also 

determined that the single occupied watershed in this subbasin was of 

low conservation value to the DPS.

    Clackamas Subbasin--This subbasin contains six watersheds, two of 

which are occupied by this DPS. Occupied watersheds encompass 

approximately 270 mi\2\ (699 km\2\). Fish distribution and

 

[[Page 2734]]

 

habitat use data identify approximately 253 miles (407 km) of occupied 

riverine habitat in the watersheds (ODFW, 2010a). Myers et al. (2003) 

identified one ecological zone (Western Cascade Range) containing one 

population (Clackamas River) in this subbasin. The Team concluded that 

all occupied areas contain spawning, rearing, or migration PCEs for 

this DPS and identified several management activities that may affect 

the PCEs, including agriculture, channel modifications/diking, 

forestry, irrigation impoundments and withdrawals, road building/

maintenance, urbanization, and wetlands loss/removal (NMFS, 2012a). The 

Team also determined that all of the occupied watersheds in this 

subbasin were of high conservation value to the DPS.

    Lower Willamette Subbasin-- This subbasin contains three 

watersheds, all of which are occupied by this DPS. Occupied watersheds 

encompass approximately 407 mi\2\ (1,054 km\2\). Fish distribution and 

habitat use data identify approximately 163 miles (262 km) of occupied 

riverine habitat in the watersheds (ODFW, 2010b). Myers et al. (2003) 

identified two ecological zones (Coast Range and Western Cascade Range) 

containing two populations (Clackamas River and Scappoose Creek) in 

this subbasin. The Team concluded that all occupied areas contain 

spawning, rearing, or migration PCEs for this DPS and identified 

several management activities that may affect the PCEs, including 

agriculture, channel modifications/diking, forestry, irrigation 

impoundments and withdrawals, road building/maintenance, urbanization, 

and wetlands loss/removal (NMFS, 2012a). Of the three watersheds 

reviewed, two were rated as having high conservation value and one was 

rated as having medium conservation value to the DPS.

    Lower Columbia River Corridor--The lower Columbia River rearing and 

migration corridor consists of that segment of the Columbia River from 

the confluences of the Sandy River (Oregon) and Washougal River 

(Washington) to the Pacific Ocean. Fish distribution and habitat use 

data from ODFW and WDFW identify approximately 118 miles (190 km) of 

occupied riverine and estuarine habitat in this corridor (ODFW 2010a, 

WDFW 2010). After reviewing the best available scientific data for all 

of the areas within the freshwater and estuarine range of this DPS, the 

Team concluded that the lower Columbia River corridor was of high 

conservation value to the DPS. Other upstream reaches of the Columbia 

River corridor (within the Middle Columbia/Hood and Lower Columbia/

Sandy subbasins above) are also high value for rearing/migration. The 

Team noted that the lower Columbia River corridor connects every 

watershed and population in this DPS with the ocean and is used by 

rearing/migrating juveniles and migrating adults. The Columbia River 

estuary is a particularly important area for this DPS as both juveniles 

and adult salmon make the critical physiological transition between 

life in freshwater and marine habitats (Interdisciplinary Scientific 

Advisory Board, 2000; Marriott et al., 2002).

    Unoccupied Areas--The Team also considered whether any blocked 

historical habitats may be essential for conservation of the DPS. As 

noted above in the Middle Columbia/Hood Subbasin, efforts are underway 

to allow salmon to access areas in the upper White Salmon River above 

Condit Dam. Access to these historical habitats will likely benefit 

lower Columbia River coho. However, the Team concluded that it was 

unclear whether the areas above Condit Dam are essential for 

conservation of the entire DPS, especially in comparison to other, more 

extensive, historical habitats where coho are actively being 

reintroduced and that may be of greater potential benefit to the DPS 

(e.g., areas in the Upper Lewis River). We solicit information and 

public comment on the importance of these areas to coho salmon and 

whether our final designation should include these areas as designated 

critical habitat.

 

Puget Sound Steelhead Life History and Conservation Status

 

    Steelhead populations can be divided into two basic reproductive 

ecotypes, based on the state of sexual maturity at the time of river 

entry (summer or winter) and duration of spawning migration (Burgner et 

al., 1992). The Puget Sound DPS includes all naturally spawned 

anadromous winter-run and summer-run steelhead populations in streams 

in the river basins of the Strait of Juan de Fuca, Puget Sound, and 

Hood Canal, Washington, bounded to the west by the Elwha River 

(inclusive) and to the north by the Nooksack River and Dakota Creek 

(inclusive), as well as the Green River natural and Hamma Hamma winter-

run steelhead hatchery stocks. Non-anadromous ``resident'' O. mykiss 

occur within the range of Puget Sound steelhead, but are not part of 

the DPS due to marked differences in physical, physiological, 

ecological, and behavioral characteristics (71 FR 15666, March 29, 

2006).

    Stream-maturing steelhead, also called summer-run steelhead, enter 

fresh water at an early stage of maturation, usually from May to 

October. These summer-run fish migrate to headwater areas and hold for 

several months before spawning in the spring. Ocean-maturing steelhead, 

also called winter-run steelhead, enter fresh water from December to 

April at an advanced stage of maturation and spawn from March through 

June (Hard et al., 2007). While there is some temporal overlap in spawn 

timing between these forms, in basins where both winter- and summer-run 

steelhead are present, summer-run steelhead spawn farther upstream, 

often above a partially impassable barrier. In many cases it appears 

that the summer migration timing evolved to access areas above falls or 

cascades that present velocity barriers to migration during high winter 

flow months, but are passable during low summer flows. Winter-run 

steelhead are predominant in Puget Sound, in part because there are 

relatively few basins in the Puget Sound DPS with the geomorphological 

and hydrological characteristics necessary to establish the summer-run 

life history. Summer-run steelhead stocks within this DPS are all small 

and occupy limited habitat.

    Steelhead eggs incubate from one to four months (depending on water 

temperature) before hatching, generally between February and June. 

After emerging from the gravel, fry commonly occupy the margins of 

streams and side channels, seeking cover to make them less vulnerable 

to predation (WDFW, 2008). Juvenile steelhead forage for one to four 

years before emigrating to sea as smolts. Smoltification and seaward 

migration occur principally from April to mid-May. The nearshore 

migration pattern of Puget Sound steelhead is not well understood, but 

it is generally thought that smolts move quickly offshore, bypassing 

the extended estuary transition stage which many other salmonids need 

(Hartt and Dell, 1986).

    Steelhead oceanic migration patterns are also poorly understood. 

Evidence from tagging and genetic studies indicates that Puget Sound 

steelhead travel to the central North Pacific Ocean (French et al., 

1975; Hartt and Dell, 1986; Burgner et al., 1992). Puget Sound 

steelhead feed in the ocean for one to three years before returning to 

their natal stream to spawn. They typically spend two years in the 

ocean, although, notably, Deer Creek summer-run steelhead spend only a 

single year in the ocean before spawning. In contrast with other 

species of Pacific salmonids, steelhead are iteroparous, capable of 

repeat spawning. While winter steelhead spawn shortly after returning 

to fresh water, adult summer steelhead rely on ``holding habitat''--

typically

 

[[Page 2735]]

 

cool, deep pools--for up to 10 months prior to spawning (WDFW, 2008). 

Adults tend to spawn in moderate to high-gradient sections of streams. 

In contrast to semelparous Pacific salmon, steelhead females do not 

guard their redds, or nests, but return to the ocean following spawning 

(Burgner et al., 1992). Spawned-out fish that return to the sea are 

referred to as ``kelts.''

    The Puget Sound steelhead DPS includes more than 50 stocks of 

summer- and winter-run fish (WDFW, 2002). Hatchery steelhead production 

in Puget Sound is widespread and focused primarily on the propagation 

of winter-run fish derived from a stock of domesticated, mixed-origin 

steelhead (the Chambers Creek Hatchery stock) originally native to a 

small Puget Sound stream that is now extirpated from the wild. Hatchery 

summer-run steelhead are also produced in Puget Sound; these fish are 

derived from the Skamania River in the Columbia River Basin.

    Habitat utilization by steelhead in the Puget Sound area has been 

dramatically affected by large dams and other manmade barriers in a 

number of drainages, including the Nooksack, Skagit, White, Nisqually, 

Skokomish, and Elwha river basins. In addition to limiting habitat 

accessibility, dams affect habitat quality through changes in river 

hydrology, altered temperature profile, reduced downstream gravel 

recruitment, and the reduced recruitment of large woody debris. Such 

changes can have significant negative impacts on salmonids (e.g., 

increased water temperatures resulting in decreased disease resistance) 

(Spence et al., 1996; McCullough, 1999).

    Many upper tributaries in the Puget Sound region have been affected 

by poor forestry practices, while many of the lower reaches of rivers 

and their tributaries have been altered by agriculture and urban 

development. Urbanization has caused direct loss of riparian vegetation 

and soils, significantly altered hydrologic and erosional rates and 

processes (e.g., by creating impermeable surfaces such as roads, 

buildings, parking lots, sidewalks etc.), and polluted waterways with 

stormwater and point-source discharges. The loss of wetland and 

riparian habitat has dramatically changed the hydrology of many 

streams, with increases in flood frequency and peak low during storm 

events and decreases in groundwater driven summer flows (Moscrip and 

Montgomery, 1997; Booth et al., 2002; May et al., 2003). River braiding 

and sinuosity have been reduced through the construction of dikes, 

hardening of banks with riprap, and channelization of the mainstem. 

Constriction of river flows, particularly during high flow events, 

increases the likelihood of gravel scour and the dislocation of rearing 

juveniles. The loss of side-channel habitats has also reduced important 

areas for spawning, juvenile rearing, and overwintering habitats. 

Estuarine areas have been dredged and filled, resulting in the loss of 

important juvenile rearing areas. In addition to being a factor that 

contributed to the present decline of Puget Sound steelhead 

populations, the continued destruction and modification of steelhead 

habitat is the principal factor limiting the viability of the Puget 

Sound steelhead DPS into the foreseeable future. Because of their 

limited distribution in upper tributaries, summer-run steelhead may be 

at higher risk than winter-run steelhead from habitat degradation in 

larger, more complex watersheds.

    Recovery planning in Puget Sound is proceeding as a collaborative 

effort between NMFS and numerous tribal, state, and local governments 

and interested stakeholders. The Puget Sound Partnership is the entity 

responsible for working with NMFS to recover the listed Puget Sound 

Chinook salmon DPS. The Hood Canal Coordinating Council is the regional 

board implementing the recovery plan for the Hood Canal summer chum 

salmon DPS. There is a good deal of overlap between the geographical 

area occupied by Puget Sound steelhead and these two salmon DPSs, both 

of which had critical habitat designated on September 2, 2005 (70 FR 

52630). A Technical Recovery Team was convened in 2008 to identify the 

historically independent spawning populations of steelhead within, and 

viability criteria for, the Puget Sound steelhead DPS. In 2011 the TRT 

completed an initial draft assessment (Puget Sound Steelhead Technical 

Recovery Team, 2011) and has begun work on viability criteria for this 

DPS. Upon completion of the technical work from the TRT, we will 

develop a recovery plan for Puget Sound steelhead and will work 

directly with the two regional boards to augment implementation plans 

to include measures to recover Puget Sound steelhead. During the 

critical habitat designation process for Puget Sound steelhead we will 

continue to review and incorporate as appropriate the information from 

these regional recovery plans as well as the ongoing population work by 

the TRT.

    Critical habitat is currently designated for other salmonid DPSs 

that inhabit Puget Sound watersheds, including Puget Sound Chinook 

salmon and Hood Canal summer-run chum salmon (70 FR 52630, September 2, 

2005) as well as bull trout (75 FR 63898, October 18, 2010). These 

existing designations have extensive overlap with areas under 

consideration as critical habitat for Puget Sound steelhead. In the 

case of ESA-listed Chinook and chum salmon, the PCEs we identified are 

the same as those proposed for Puget Sound steelhead (NMFS, 2012a). 

However, watershed conservation values for steelhead may differ due to 

species-specific differences in population structure and habitat 

utilization.

    The Puget Sound Team's assessment for this DPS addressed 18 

subbasins containing 66 occupied watersheds. Each of these 66 areas 

constituted the specific areas for the analysis of critical habitat for 

this species. The Team evaluated the conservation value of habitat 

areas on the basis of the physical and biological habitat requirements 

of Puget Sound steelhead, consistent with the PCEs described in the 

``Primary Constituent Elements and Physical or Biological Features 

Essential to the Conservation of the Species'' section above. The Team 

also considered the conservation value of each watershed in the context 

of the demographically independent populations within the three 

ecological zones/major population groups (MPGs) (Northern Cascades, 

Central and South Puget Sound, and Olympic Peninsula) in Puget Sound 

identified by the Puget Sound TRT (2011). Summarized information is 

again presented below by USGS subbasin because they present a 

convenient and systematic way to organize the Team's watershed 

assessments for this DPS and their names are generally more 

recognizable because they typically identify major river systems. Full 

details are in the biological report supporting this proposed 

designation (NMFS, 2012a).

    Strait of Georgia Subbasin--This subbasin contains three 

watersheds, all of which are occupied by this DPS. Occupied watersheds 

encompass approximately 428 mi\2\ (1,109 km\2\). Fish distribution and 

habitat use data from WDFW (2010) and the Northwest Indian Fisheries 

Commission (NWIFC) (2011) identify approximately 118 miles (190 km) of 

occupied riverine habitat in the watersheds. Preliminary analyses by 

the Puget Sound TRT (2011) have identified one ecological zone/MPG 

(Northern Cascades) containing two winter-run populations (Drayton 

Harbor Tributaries and Samish River) in this subbasin. The Team 

concluded that all occupied areas contain spawning, rearing, or 

migration PCEs for this DPS and identified several management 

activities that may affect the PCEs, including agriculture, channel

 

[[Page 2736]]

 

modifications/diking, forestry, irrigation impoundments and 

withdrawals, forestry, and urbanization (NMFS, 2012a). The Team also 

determined that all of the occupied watersheds in this subbasin were of 

medium conservation value to the DPS.

    Nooksack Subbasin--This subbasin contains five watersheds, all of 

which are occupied by this DPS. Occupied watersheds encompass 

approximately 795 mi\2\ (2,059 km\2\). Fish distribution and habitat 

use data identify approximately 324 miles (521 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Northern Cascades) containing one winter-run population 

(Nooksack River) and one summer-run population (South Fork Nooksack 

River) in this subbasin. The Team concluded that all occupied areas 

contain spawning, rearing, or migration PCEs for this DPS and 

identified several management activities that may affect the PCEs, 

including agriculture, channel modifications/diking, forestry, 

irrigation impoundments and withdrawals, and road building/maintenance 

(NMFS, 2012a). Of the five watersheds reviewed, three were rated as 

having high conservation value and two were rated as having medium 

conservation value to the DPS.

    Upper Skagit Subbasin--This subbasin contains five watersheds, all 

of which are occupied by this DPS. Occupied watersheds encompass 

approximately 999 mi\2\ (2,587 km\2\). Fish distribution and habitat 

use data identify approximately 167 miles (269 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Northern Cascades) containing two winter-run populations 

(Baker River and Skagit River) in this subbasin. The Team concluded 

that all occupied areas contain spawning, rearing, or migration PCEs 

for this DPS and identified several management activities that may 

affect the PCEs, including, dams, forestry, and road building/

maintenance (NMFS, 2012a). Of the five watersheds reviewed, four were 

rated as having high conservation value and one was rated as having 

medium conservation value to the DPS.

    Sauk Subbasin--This subbasin contains four watersheds, all of which 

are occupied by this DPS. Occupied watersheds encompass approximately 

741 mi\2\ (1,919 km\2\). Fish distribution and habitat use data 

identify approximately 156 miles (251 km) of occupied riverine habitat 

in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary analyses by 

the Puget Sound TRT (2011) have identified one ecological zone/MPG 

(Northern Cascades) containing one winter-run population (Sauk River) 

in this subbasin. The Team concluded that all occupied areas contain 

spawning, rearing, or migration PCEs for this DPS and management 

activities that may affect the PCEs, including forestry and road 

building/maintenance (NMFS, 2012a). Of the four watersheds reviewed, 

three were rated as having high conservation value and one was rated as 

having medium conservation value to the DPS.

    Lower Skagit Subbasin--This subbasin contains two watersheds, both 

of which are occupied by this DPS. Occupied watersheds encompass 

approximately 447 mi\2\ (1,158 km\2\). Fish distribution and habitat 

use data identify approximately 210 miles (338 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Northern Cascades) containing four winter-run populations 

(Baker River, Nookachamps Creek, Sauk River, and Skagit River) in this 

subbasin. The Team concluded that all occupied areas contain spawning, 

rearing, or migration PCEs for this DPS and identified several 

management activities that may affect the PCEs, including, agriculture, 

channel modifications/diking, forestry, wetland loss/removal, and 

urbanization (NMFS, 2012a). The Team also determined that both of the 

occupied watersheds in this subbasin were of high conservation value to 

the DPS.

    Stillaguamish Subbasin--This subbasin contains three watersheds, 

all of which are occupied by this DPS. Occupied watersheds encompass 

approximately 704 mi\2\ (1.823 km\2\). Fish distribution and habitat 

use data identify approximately 351 miles (465 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Northern Cascades) containing two summer-run populations 

(Deer Creek and Canyon Creek) and one winter-run population 

(Stillaguamish River) in this subbasin. The Team concluded that all 

occupied areas contain spawning, rearing, or migration PCEs for this 

DPS and identified several management activities that may affect the 

PCEs, including, forestry, wetland loss/removal, and urbanization 

(NMFS, 2012a). The Team also determined that all of the occupied 

watersheds in this subbasin were of high conservation value to the DPS.

    Skykomish Subbasin--This subbasin contains five watersheds, all of 

which are occupied by this DPS. Occupied watersheds encompass 

approximately 853 mi\2\ (2,209 km\2\). Fish distribution and habitat 

use data identify approximately 230 miles (370 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Northern Cascades) containing one summer-run population 

(North Fork Skykomish River) and one winter-run population (Snohomish/

Skykomish River) in this subbasin. The Team concluded that all occupied 

areas contain spawning, rearing, or migration PCEs for this DPS and 

identified several management activities that may affect the PCEs, 

including, agriculture, dams, forestry, road building/maintenance, and 

urbanization (NMFS 2012a). Of the five watersheds reviewed, three were 

rated as having high conservation value and two were rated as having 

medium conservation value to the DPS.

    Snoqualmie Subbasin--This subbasin contains two watersheds, both of 

which are occupied by this DPS. Occupied watersheds encompass 

approximately 504 mi\2\ (1,305 km\2\). Fish distribution and habitat 

use data identify approximately 199 miles (320 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Northern Cascades) containing one summer-run population (Tolt 

River) and one winter-run population (Snoqualmie River) in this 

subbasin. The Team concluded that all occupied areas contain spawning, 

rearing, or migration PCEs for this DPS and identified several 

management activities that may affect the PCEs, including agriculture 

and forestry (NMFS, 2012a). The Team also determined that both of the 

occupied watersheds in this subbasin were of high conservation value to 

the DPS.

    Snohomish Subbasin--This subbasin contains two watersheds, both of 

which are occupied by this DPS. Occupied watersheds encompass 

approximately 278 mi\2\ (720 km\2\). Fish distribution and habitat use 

data identify approximately 215 miles (557 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Northern Cascades) containing two summer-run populations 

(North Fork Skykomish River and Tolt River) and

 

[[Page 2737]]

 

three winter-run populations (Pilchuck River, Snohomish/Skykomish 

River, and Snoqualmie River) in this subbasin. The Team concluded that 

all occupied areas contain spawning, rearing, or migration PCEs for 

this DPS and identified several management activities that may affect 

the PCEs, including agriculture, channel modifications/diking, dams, 

forestry, urbanization, and sand/gravel mining (NMFS, 2012a). The Team 

also determined that both of the occupied watersheds in this subbasin 

were of high conservation value to the DPS.

    Lake Washington Subbasin--This subbasin contains four watersheds, 

all of which are occupied by this DPS. Occupied watersheds encompass 

approximately 619 mi\2\ (1,603 km\2\). Fish distribution and habitat 

use data identify approximately 202 miles (325 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Central and South Puget Sound) containing two winter-run 

populations (Cedar River and Lake Washington Tributaries) in this 

subbasin. The Team concluded that all occupied areas contain spawning, 

rearing, or migration PCEs for this DPS and identified several 

management activities that may affect the PCEs, including, channel 

modifications/diking, dams, road building/maintenance, forestry, and 

urbanization (NMFS, 2012a). Of the four watersheds reviewed, one was 

rated as having medium conservation value and three were rated as 

having low conservation value to the DPS.

    Duwamish Subbasin--This subbasin contains three watersheds, all of 

which are occupied by this DPS. Occupied watersheds encompass 

approximately 487 mi\2\ (1,261 km\2\). Fish distribution and habitat 

use data identify approximately 178 miles (286 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Central and South Puget Sound) containing one winter-run 

population (Green River) in this subbasin. The Team concluded that all 

occupied areas contain spawning, rearing, or migration PCEs for this 

DPS and identified several management activities that may affect the 

PCEs, including agriculture, channel modifications/diking, dams, 

irrigation impoundments/withdrawals, and urbanization (NMFS, 2012a). 

The Team also determined that all of the occupied watersheds in this 

subbasin were of high conservation value to the DPS.

    Puyallup Subbasin--This subbasin contains five watersheds, all of 

which are occupied by this DPS. Occupied watersheds encompass 

approximately 996 mi\2\ (2,580 km\2\). Fish distribution and habitat 

use data identify approximately 272 miles (438 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Central and South Puget Sound) containing two winter-run 

populations (Puyallup River/Carbon River and White River) in this 

subbasin. The Team concluded that all occupied areas contain spawning, 

rearing, or migration PCEs for this DPS and identified several 

management activities that may affect the PCEs, including agriculture, 

channel modifications/diking, dams, irrigation impoundments/

withdrawals, and urbanization (NMFS, 2012a). The Team also determined 

that all of the occupied watersheds in this subbasin were of high 

conservation value to the DPS.

    Nisqually Subbasin--This subbasin contains two watersheds, both of 

which are occupied by this DPS. Occupied watersheds encompass 

approximately 472 mi\2\ (1,222 km\2\). Fish distribution and habitat 

use data identify approximately 161 miles (259 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Central and South Puget Sound) containing one winter-run 

population (Nisqually River) in this subbasin. The Team concluded that 

all occupied areas contain spawning, rearing, or migration PCEs for 

this DPS and identified several management activities that may affect 

the PCEs, including agriculture, dams, and urbanization (NMFS, 2012a). 

The Team also determined that both of the occupied watersheds in this 

subbasin were of high conservation value to the DPS.

    Deschutes Subbasin--This subbasin contains two watersheds, both of 

which are occupied by this DPS. Occupied watersheds encompass 

approximately 168 mi\2\ (435 km\2\). Fish distribution and habitat use 

data identify approximately 63 miles (101 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Central and South Puget Sound) in this subbasin. The Puget 

Sound TRT did not identify a demographically independent population of 

steelhead in this subbasin and noted that the Deschutes River was 

historically impassable to anadromous fish at Tumwater Falls. Winter 

steelhead were introduced into the Deschutes River when a fish ladder 

was installed at Tumwater Falls in 1954, but it is unclear if a 

naturally self-sustaining population exists (WDFW, 2008). Despite these 

uncertainties, the Team noted that steelhead spawning in this watershed 

would likely be considered part of the listed DPS. The Team concluded 

that all occupied areas contain spawning, rearing, or migration PCEs 

for this DPS and identified several management activities that may 

affect the PCEs, including agriculture, forestry, and grazing (NMFS, 

2012a). The Team also determined that both of the occupied watersheds 

in this subbasin were of low conservation value to the DPS.

    Skokomish Subbasin--This subbasin consists of one watershed 

occupied by this DPS, encompassing approximately 248 mi\2\ (642 km\2\). 

Fish distribution and habitat use data identify approximately 86 miles 

(138 km) of occupied riverine habitat in the watershed (WDFW, 2010; 

NWIFC, 2011). Preliminary analyses by the Puget Sound TRT (2011) have 

identified one ecological zone/MPG (Olympic Peninsula) containing one 

winter-run population (Skokomish River) in this subbasin. The Team 

concluded that all occupied areas contain spawning, rearing, or 

migration PCEs for this DPS and identified several management 

activities that may affect the PCEs, including channel modifications/

diking, dams, forestry, and urbanization (NMFS, 2012a). The Team also 

determined that the single occupied watershed in this subbasin was of 

high conservation value to the DPS.

    Hood Canal Subbasin--This subbasin contains seven watersheds, all 

of which are occupied by this DPS. Occupied watersheds encompass 

approximately 605 mi\2\ (1,567 km\2\). Fish distribution and habitat 

use data identify approximately 153 miles (246 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Olympic Peninsula) containing three winter-run populations 

(East, West, and South Hood Canal Tributaries) in this subbasin. The 

Team concluded that all occupied areas contain spawning, rearing, or 

migration PCEs for this DPS and identified several management 

activities that may affect the PCEs, including agriculture, channel 

modifications/diking, forestry, road building/maintenance, and 

urbanization (NMFS, 2012a). Of the seven watersheds reviewed, four were 

rated as having

 

[[Page 2738]]

 

high conservation value and three were rated as having medium 

conservation value to the DPS.

    Kitsap Subbasin--This subbasin contains six watersheds, all of 

which are occupied by this DPS. Occupied watersheds encompass 

approximately 1,087 mi\2\ (2,815 km\2\). Fish distribution and habitat 

use data identify approximately 260 miles (418 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified two ecological 

zones/MPGs (Olympic Peninsula and South Central Cascades) containing 

three winter-run populations (Strait of Juan de Fuca Lowland 

Tributaries, East Kitsap Peninsula Tributaries, and South Sound 

Tributaries) in this subbasin. The Team concluded that all occupied 

areas contain spawning, rearing, or migration PCEs for this DPS and 

identified several management activities that may affect the PCEs, 

including agriculture, channel modifications/diking, forestry, grazing, 

and urbanization (NMFS, 2012a). Of the six watersheds reviewed, four 

were rated as having low conservation value and two were rated as 

having medium conservation value to the DPS.

    Dungeness/Elwha Subbasin--This subbasin contains five watersheds, 

all of which are occupied by this DPS. Occupied watersheds encompass 

approximately 828 mi\2\ (2,145 km\2\). Fish distribution and habitat 

use data identify approximately 144 miles (232 km) of occupied riverine 

habitat in the watersheds (WDFW, 2010; NWIFC, 2011). Preliminary 

analyses by the Puget Sound TRT (2011) have identified one ecological 

zone/MPG (Olympic Peninsula) containing four winter-run populations 

(Dungeness River, Elwha River, Strait of Juan de Fuca Lowland 

Tributaries, and Strait of Juan de Fuca Independent Tributaries) in 

this subbasin. The Team concluded that all occupied areas contain 

spawning, rearing, or migration PCEs for this DPS and identified 

several management activities that may affect the PCEs, including 

agriculture, channel modifications/diking, dams, forestry, irrigation 

impoundments/withdrawals, road building/maintenance, and urbanization 

(NMFS, 2012a). Of the five watersheds reviewed, four were rated as 

having high conservation value and one was rated as having medium 

conservation value to the DPS.

    Unoccupied Areas--The Team also considered whether blocked 

historical habitat above Elwha Dam and Glines Canyon Dam (on the Elwha 

River) may be essential for conservation of the DPS. The 

decommissioning of these dams began in 2011 and will allow steelhead 

and other salmonids access to at least 45 miles (72 km) of habitat in 

the basin upstream (WDFW, 2011; Olympic National Park, 2012). The Team 

determined that stream reaches above both dams are essential for 

conservation of the DPS, noting the significant amount of additional 

spawning habitat available relative to other much smaller streams in 

the Strait of Juan de Fuca, as well as the high likelihood that these 

habitats will likely be able to support both summer- and winter-run 

life forms of steelhead. We seek comments and information specific to 

this unoccupied area and our conclusion that it is essential to the 

conservation of Puget Sound steelhead.

    Nearshore Marine Areas of Puget Sound--Unlike most other Pacific 

salmonids, steelhead appear to make only ephemeral use of nearshore 

marine waters. The species' lengthy freshwater rearing period results 

in large smolts that are prepared to move rapidly through estuaries and 

nearshore waters to forage on larger prey in offshore marine areas 

(Quinn, 2005; Welch, 2010). Although data specific to Puget Sound are 

limited, recent studies of steelhead migratory behavior strongly 

suggest that juveniles spend little time (a matter of hours in some 

cases) in estuarine and nearshore areas and do not favor migration 

along shorelines (Moore et al., 2010a, Moore et al., 2010b; Romer, 

2010). In contrast, stream-type Puget Sound Chinook and Hood Canal 

summer-run chum salmon are known to make extensive use of nearshore 

areas in Puget Sound, spending from several days to several months in 

and adjacent to natal estuaries (WDFW and Point No Point Treaty Tribes, 

2000; Redman et al., 2005; Fresh, 2006). That well-documented behavior 

led us to designate specific nearshore areas as critical habitat for 

those two species (70 FR 52630, September 2, 2005). The data for 

steelhead, however, suggest the opposite conclusion.

    Anecdotal reports suggest that juvenile steelhead may travel short 

distances in nearshore areas as they move between adjacent river 

mouths. There are similar reports of limited nearshore use by 

precocious steelhead (i.e., fish that are reproductively mature but 

have not reached their typical adult age and size). Although such 

behaviors could be important life history strategies for steelhead, it 

is uncertain whether and where such behaviors occur in Puget Sound. 

Therefore, given the best available information, we conclude that there 

are not specific nearshore areas within the geographical area occupied 

by Puget Sound steelhead on which are found those physical or 

biological features essential to their conservation. We request 

comments and information regarding this conclusion.

 

Application of ESA Section 4(b)(2)

 

    The foregoing discussion describes those areas that are eligible 

for designation as critical habitat--the specific areas that fall 

within the ESA section 3(5)(A) definition of critical habitat, not 

including lands owned or controlled by the Department of Defense, or 

designated for its use, that are covered by an INRMP that we have 

determined in writing provides a benefit to the species. Specific areas 

eligible for designation are not automatically designated as critical 

habitat. Section 4(b)(2) of the ESA requires that the Secretary 

consider the economic impact, impact on national security, and any 

other relevant impact of designating those areas. The Secretary has the 

discretion to exclude a ``particular area'' from designation if he 

determines the benefits of exclusion (that is, avoiding the impact that 

would result from designation), outweigh the benefits of designation. 

The Secretary may not exclude an area from designation if, based on the 

best available scientific and commercial information, exclusion will 

result in the extinction of the species. Because the authority to 

exclude is ``wholly'' discretionary, exclusion is not required for any 

areas.

    The first step in conducting an ESA section 4(b)(2) analysis is to 

identify the ``particular areas'' to be analyzed. Section 3(5) of the 

ESA defines critical habitat as ``specific areas,'' while section 

4(b)(2) requires the agency to consider certain factors before 

designating any ``particular area.'' Depending on the biology of the 

species, the characteristics of its habitat, and the nature of the 

impacts of designation, ``specific'' areas might be different from, or 

the same as, ``particular'' areas. For lower Columbia River coho and 

Puget Sound steelhead, we analyzed two types of ``particular'' areas. 

Where we considered economic impacts, and weighed the economic benefits 

of exclusion against the conservation benefits of designation, we used 

the same biologically based ``specific'' areas we had identified under 

section 3(5)(A), the HUC5 watershed. This worked well because upslope 

and upstream activities in a watershed can affect the stream within the 

watershed (see the draft Economic Analysis Report (NMFS 2012b) for 

definition of the HUC5s and more information). This approach allowed us 

to most effectively consider the conservation value of the different

 

[[Page 2739]]

 

areas when balancing conservation benefits of designation against 

economic benefits of exclusion. Where we considered impacts on Indian 

lands and lands subject to a habitat conservation plan (HCP), however, 

we instead used a delineation of ``particular'' areas based on 

ownership or control of the area. Specifically, these particular areas 

consisted of occupied freshwater and estuarine areas that overlap with 

Indian and HCP lands. This approach allowed us to consider impacts and 

benefits associated with land ownership and management by Indian tribes 

and HCP partners.

    The use of two different types of areas required us to account for 

overlapping boundaries (that is, ownership may span many watersheds and 

watersheds may have mixed ownership). The order in which we conducted 

the 4(b)(2) balancing became important because of this overlap. To 

ensure we were not double-counting the benefits of exclusion, we first 

considered exclusion of particular areas based on land ownership and 

determined which areas to recommend for exclusion. We then considered 

economic exclusion of particular areas based on watersheds, with the 

economic impact for each watershed adjusted based on whether a given 

type of ownership had already been recommended for exclusion.

 

Benefits of Designation

 

    The primary benefit of designation is the protection afforded under 

the ESA section 7 requirement that all Federal agencies ensure their 

actions are not likely to destroy or adversely modify designated 

critical habitat. This type of benefit is sometimes referred to as an 

incremental benefit because the protections afforded to the species 

from critical habitat designation are in addition to the requirement 

that all Federal agencies ensure their actions are not likely to 

jeopardize the continued existence of the species. In addition, the 

designation may enhance the conservation of habitat by informing the 

public about areas and features important to species conservation, 

which may help focus and contribute to conservation efforts for salmon 

and steelhead and their habitats.

    With sufficient information, it may be possible to monetize these 

benefits of designation by first quantifying the benefits expected from 

an ESA section 7 consultation and translating that into dollars. We are 

not aware, however, of any available data to monetize the benefits of 

designation (e.g., estimates of the monetary value of the physical and 

biological features within specific areas that meet the definition of 

critical habitat, or of the monetary value of general benefits such as 

education and outreach). In an alternative approach that we have 

commonly used in the past (70 FR 52630, September 2, 2005), we 

qualitatively assessed the benefit of designation for each of the 

specific areas identified as meeting the definition of critical habitat 

for each DPS. Our qualitative consideration began with an evaluation of 

the conservation value of each area. We considered a number of factors 

to determine the conservation value of an area, including the quantity 

and quality of physical or biological features, the relationship of the 

area to other areas within the DPS, and the significance to the DPS of 

the population occupying that area.

    There are many Federal activities that occur within the specific 

areas that could impact the conservation value of these areas. 

Regardless of designation, Federal agencies are required under Section 

7 of the ESA to ensure these activities are not likely to jeopardize 

the continued existence of lower Columbia River coho and Puget Sound 

steelhead. If the specific areas are designated as critical habitat, 

Federal agencies will additionally be required to ensure their actions 

are not likely to adversely modify the critical habitat. We grouped the 

potential Federal activities that would be subject to this additional 

protection into several broad categories: water supply, in-stream work, 

development, Federal lands management, transportation, utilities, 

mining, and hydropower.

    The benefit of designating a particular area depends upon the 

likelihood of a section 7 consultation occurring in that area and the 

degree to which a consultation would yield conservation benefits for 

the species. Based on past consultations for listed salmon and 

steelhead in this region, we estimated that a total of 55 actions would 

require section 7 consultation annually for lower Columbia River coho 

within the particular areas being considered for designation (NMFS, 

2012b). For Puget Sound steelhead, we estimated that a total of 117 

actions would require section 7 consultation annually within the 

particular areas being considered for designation (NMFS, 2012b). The 

most common activity types subject to consultation in the range of each 

DPS would be in-stream work and transportation projects, accounting for 

approximately 80 percent of estimated actions (a complete list of the 

estimated annual actions, allocated by particular area, is included in 

the Draft Economic Analysis [NMFS, 2012b]). These activities have the 

potential to adversely affect water quality and substrate composition 

and quality for salmon and steelhead. Consultation would yield 

conservation benefits for the species by preventing or ameliorating 

such habitat effects.

 

Impacts of Designation

 

    Section 4(b)(2) of the ESA provides that the Secretary shall 

consider ``the economic impact, impact on national security, and any 

other relevant impact of specifying any particular area as critical 

habitat.'' The primary impact of a critical habitat designation stems 

from the requirement under section 7(a)(2) of the ESA that Federal 

agencies ensure their actions are not likely to result in the 

destruction or adverse modification of critical habitat. Determining 

this impact is complicated by the fact that section 7(a)(2) contains 

the overlapping requirement that Federal agencies must ensure their 

actions are not likely to jeopardize the species' continued existence. 

The true impact of designation is the extent to which Federal agencies 

modify their actions to ensure their actions are not likely to destroy 

or adversely modify the critical habitat of the species, beyond any 

modifications they would make because of listing and the jeopardy 

requirement. Additional impacts of designation include state and local 

protections that may be triggered as a result of the designation. In 

addition, if the area proposed for designation overlaps an area already 

designated as critical habitat for another species, the true impact of 

designation is the modification Federal agencies would make beyond any 

modification they would make to avoid adversely modifying the already-

designated critical habitat.

    In determining the impacts of designation, we predicted the 

incremental change in Federal agency actions as a result of critical 

habitat designation and the adverse modification prohibition, beyond 

the changes predicted to occur as a result of listing and the jeopardy 

provision. In August 2012 we and the U.S. Fish and Wildlife Service 

published a proposed rule to amend our joint regulations at 50 CFR 

424.19 to clarify that in considering impacts of designation as 

required by Section 4(b)(2), we would consider the incremental impacts 

(77 FR 51503, August 24, 2012). This approach is in contrast to our 

2005 critical habitat designations for salmon and steelhead (70 FR 

52630, September 2, 2005) and for Southern Resident killer whales (71 

FR 69054, November 29, 2006), where we considered the ``coextensive'' 

impact of designation. The consideration of co-extensive impacts was in 

accordance

 

[[Page 2740]]

 

with a Tenth Circuit Court decision (New Mexico Cattle Growers 

Association v. U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 

2001)). More recently, several courts (including the 9th Circuit Court 

of Appeals) have approved an approach that considers the incremental 

impact of designation. The Federal Register Notice announcing the 

proposed policy on considering impacts of designation (77 FR 51503, 

August 24, 2012) describes and discusses these court cases (Arizona 

Cattlegrowers' Ass'n v. Salazar, 606 F3d 1160, 1172-74 (9th Cir. 2010), 

cert. denied, 131 S.Ct. 1471, 179 L. Ed. 2d 300 (2011); Homebuilders 

Ass'n v. FWS, 616 F3d 983 (9th Cir. 2010) cert. denied, 131 S. Ct. 

1475, 179 L. Ed. 2d 301 (2011); M-3706 The Secretary's Authority to 

Exclude Areas from Critical Habitat Designation Under 4(b)(2) of the 

Endangered Species Act (October 3, 2008) (DOI 2008)). In more recent 

critical habitat designations, both NMFS and the U.S. Fish and Wildlife 

Service have considered the incremental impact of critical habitat 

designation (for example, NMFS' designation of critical habitat for the 

Southern DPS of green sturgeon (74 FR 52300, October 9, 2009) and the 

Southern DPS of Pacific eulachon (76 FR 65324, October 20, 2011), and 

the U.S. Fish and Wildlife's designation of critical habitat for the 

Oregon chub (75 FR 11031, March 10, 2010)). Consistent with our 

proposed regulatory amendments, the more recent court cases, and more 

recent agency practice, we estimated the incremental impacts of 

designation, beyond the impacts that would result from the listing and 

jeopardy provision. In addition, because these proposed designations 

almost completely overlap our previous salmonid critical habitat 

designations, and the essential features are the same, we estimated 

only the incremental impacts of designation beyond the impacts already 

imposed by those prior designations.

    To determine the impact of designation, we examined what the state 

of the world would be with the designation of critical habitat for the 

lower Columbia River coho and Puget Sound steelhead DPSs and compared 

it to the state of the world without the designations. The ``without 

critical habitat'' scenario represents the baseline for the analysis. 

It includes process requirements and habitat protections already 

afforded these DPSs under their Federal listing or under other Federal, 

state, and local regulations. Such regulations include protections 

afforded to habitat supporting these two DPSs from other co-occurring 

ESA listings and critical habitat designations, in particular listings/

designations for West Coast salmon and steelhead (70 FR 52630, 

September 2, 2005). In the case of lower Columbia River coho, the 

proposed designation overlaps with existing designations for lower 

Columbia River steelhead and Chinook, and Columbia River chum, as well 

as several DPSs that spawn upstream in the middle and upper Columbia 

and Snake Rivers. In the case of Puget Sound steelhead, the proposed 

designation overlaps with existing designations for Puget Sound Chinook 

and Hood Canal summer-run chum. The ``with critical habitat'' scenario 

describes the incremental impacts associated specifically with the 

designation of critical habitat for lower Columbia River coho and Puget 

Sound steelhead. The primary impacts of critical habitat designation we 

found were: (1) The costs associated with additional administrative 

effort of including a critical habitat analysis in section 7 

consultations for these two DPSs; (2) project modifications required 

solely to avoid destruction or adverse modification of their critical 

habitat; (3) potential impacts on national security if particular areas 

were designated critical habitat for Puget Sound steelhead; and (4) the 

possible harm to our working relationship with Indian tribes and some 

HCP landowners. There are no military areas eligible for designation 

that overlap with critical habitat areas, so we did not consider 

impacts to national security. Because we have chosen to balance 

benefits and consider exclusions, we consider these impacts in more 

detail below in the section devoted to each type of impact.

 

Economic Impacts

 

    Our economic analysis sought to determine the impacts on land uses 

and activities from the proposed designation of critical habitat that 

are above and beyond--or incremental to--those ``baseline'' impacts due 

to existing or planned conservation efforts being undertaken due to 

other Federal, State, and local regulations or guidelines (NMFS, 

2012b). Other Federal agencies, as well as State and local governments, 

may also seek to protect the natural resources under their 

jurisdiction. If compliance with the Clean Water Act or State 

environmental quality laws, for example, protects habitat for the 

species, such protective efforts are considered to be baseline 

protections and costs associated with these efforts are not quantified 

as impacts of critical habitat designation.

    When critical habitat is designated, section 7 of the ESA requires 

Federal agencies to ensure that their actions will not result in the 

destruction or adverse modification of critical habitat (in addition to 

ensuring that the actions are not likely to jeopardize the continued 

existence of the species). The added administrative costs of 

considering critical habitat in section 7 consultations and the 

additional impacts of implementing project modifications to protect 

critical habitat are the direct result of the designation of critical 

habitat. These costs are not in the baseline, and are considered 

incremental impacts of the rulemaking.

    Incremental impacts may also include the direct costs associated 

with additional effort for future consultations, reinitiated 

consultations, new consultations occurring specifically because of the 

designation, and additional project modifications that would not have 

been required to avoid jeopardizing the continued existence of the 

species. Additionally, incremental impacts may include indirect impacts 

resulting from reaction to the potential designation of critical 

habitat (e.g., developing ESA habitat conservation plans (HCPs) in an 

effort to avoid designation of critical habitat), triggering of 

additional requirements under State or local laws intended to protect 

sensitive habitat, and uncertainty and perceptional effects on markets.

    To evaluate the economic impact of critical habitat we first 

examined our ESA section 7 consultation record for West Coast salmon 

and steelhead. That voluminous record includes consultations on 

habitat-modifying Federal actions both where critical habitat has been 

designated and where it has not. As further explained in the supporting 

economic report (NMFS, 2012b), to quantify the economic impact of 

designation, we employed the following three steps:

    (1) Define the geographic study area for the analysis, and identify 

the units of analysis (the ``particular areas''). In this case, we 

defined HUC5 watersheds that encompass occupied stream reaches as the 

study area.

    (2) Identify potentially affected economic activities and determine 

how management costs may increase due to the designation of critical 

habitat for lower Columbia River coho and Puget Sound steelhead, both 

in terms of project administration and project modification.

    (3) Estimate the economic impacts associated with these changes in 

management.

    We estimated a total annualized incremental cost of approximately 

$357,815 for designating all specific

 

[[Page 2741]]

 

areas as critical habitat for lower Columbia River coho. The greatest 

costs are associated with transportation, water supply, and in-stream 

work activities (see NMFS, 2012b). The Columbia Slough/Willamette River 

HUC5 watershed had the largest estimated annual impacts ($54,000) while 

the Jackson Prairie HUC5 watershed had the lowest, with zero estimated 

annual impacts (NMFS, 2012b).

    For Puget Sound steelhead, we estimated a total annualized 

incremental administrative cost of approximately $460,924 for 

designating all specific areas as critical habitat. The greatest costs 

are associated with transportation and in-stream work activities (see 

NMFS, 2012b). Several watersheds located throughout the range of the 

DPS had zero estimated annual impacts, while the Lake Washington HUC5 

watershed had the largest estimated annual impacts ($103,000) (NMFS, 

2012b).

    In weighing economic impacts, we followed the policy direction in 

Executive Order 12866 to ``maximize net benefits'' and seek to achieve 

regulatory objectives in ``the most cost effective manner.'' Consistent 

with our past practice for salmon and steelhead critical habitat 

designations, we took into consideration a cost-effectiveness approach 

giving priority to excluding habitat areas with a relatively lower 

benefit of designation and a relatively higher economic impact. The 

circumstances of these and other listed salmon and steelhead DPSs can 

make a cost-effectiveness approach useful because different areas have 

different conservation value relative to one another. Pacific salmon 

and steelhead are wide-ranging species and occupy numerous habitat 

areas with thousands of stream miles. Not all occupied areas are of 

equal importance to conserving a DPS. Within the currently occupied 

range there are areas that historically were more or less productive, 

that are currently more or less degraded, or that support populations 

that are more or less central to conservation of the DPS as a whole. As 

a result, in many cases it may be possible to construct a designation 

scenario in which conservation of the DPS as a whole will be possible 

even if the entire area meeting the definition of critical habitat is 

not designated. This creates the potential to consider exclusions where 

conservation values are relatively low and economic impacts are 

relatively high. This is the same approach we took in our 2005 salmonid 

critical habitat designations (70 FR 52630, September 2, 2005) and 

green sturgeon critical habitat designation (74 FR 52300, October 9, 

2009).

    In seeking a cost-effective designation that would minimize 

economic impacts, we also heeded the policy direction to conserve 

salmon and steelhead habitat described above. In accordance with the 

policy direction to conserve salmon and steelhead habitat, we do not 

propose to exclude any habitat areas based on economic impacts if 

exclusion would ``significantly impede conservation.'' We adopted this 

test because habitat loss and degradation are leading factors for the 

decline of both DPSs (70 FR 37160, June 28, 2005; 72 FR 26722, May 11, 

2007), and habitat protection and restoration have been identified as 

key actions in Lower Columbia River and Puget Sound recovery plans and 

assessments (Puget Sound Salmon Recovery Plan, 2009; Judge, 2011; NMFS, 

2012d). Consistent with this test, we did not consider any areas for an 

economic exclusion that we had identified as having a high conservation 

value. We gave greater weight to the benefit of designating these high 

value areas than to the benefit of avoiding economic impacts because of 

the historic loss and degradation of habitat, the ongoing threats to 

habitat, and the importance of habitat protection and restoration in 

recovering the DPSs. The approach taken here is the same approach we 

took in our 2005 salmon and steelhead critical habitat designations (70 

FR 52630, September 2, 2005) and green sturgeon critical habitat 

designation (74 FR 52300, October 9, 2009). Also consistent with this 

test, we do not propose to exclude any medium or low quality habitat 

areas if we concluded that their exclusion would significantly impede 

conservation, as described further below.

    In the first step of balancing economic benefits, we identified for 

potential exclusion the low value habitat areas with an annual economic 

impact greater than or equal to $10,000 and the medium value habitat 

areas with an annual economic impact greater than or equal to $100,000. 

These dollar thresholds are substantially lower than the thresholds we 

used in our 2005 designations because here we have used the incremental 

impact of designation, while in the 2005 rule we used the co-extensive 

impact of designation. (Our 2005 rule explains in greater detail how 

and why we relied on co-extensive impacts [see 70 FR 52630, September 

2, 2005 and NMFS, 2005].) As with the 2005 designations, the thresholds 

we selected for identifying habitat areas eligible for exclusion do not 

represent an objective judgment that, for example, a low value area is 

worth a certain dollar amount and no more. The statute directs us to 

balance dissimilar values but also emphasizes the discretionary nature 

of the balancing task. The cost estimates developed by our economic 

analysis do not have obvious break points that would lead to a logical 

division between ``high,'' ``medium,'' and ``low'' costs. Given these 

factors, a judgment that any particular dollar threshold is objectively 

``right,'' would be neither necessary nor possible. Rather, what 

economic impact is ``high'' and, therefore, might outweigh the benefit 

of designating a medium or low value habitat area is a matter of 

discretion and depends on the policy context.

    In the second step of the process, we asked the Teams whether 

exclusion of any of the low- or medium-value habitat areas would 

significantly impede conservation of the DPS. The Teams considered this 

question in the context of: (1) The Indian lands and HCP lands they 

assumed would be excluded based on ``other relevant impacts'' 

(exclusions discussed later in this report); (2) all of the areas 

eligible for economic exclusion; and (3) the information they had 

developed in providing the initial conservation ratings. The Critical 

Habitat Designations section below describes the results of applying 

the two-step process to each DPS. The results are discussed in greater 

detail in a separate report that is available for public review and 

comment (NMFS, 2012c).

 

Other Relevant Impacts--Impacts to Tribal Sovereignty and Self-

Governance

 

    Much of the benefit of designating critical habitat on Indian lands 

is the same as designating critical habitat on other lands. In an ESA 

section 7 consultation, Federal agencies must ensure their actions do 

not destroy or adversely modify the designated critical habitat, in 

addition to ensuring their actions do not jeopardize the continued 

existence of the species. There is a broad array of activities on 

Indian lands that may trigger section 7 consultations. The other 

benefit is the notice that designation gives that an area is important 

to conservation of the species. Both of these benefits may be 

diminished by the fact that tribes are actively working to address the 

habitat needs of the species on their lands as well as in the larger 

ecosystem, and are fully aware of the conservation value of their 

lands. (This is documented in correspondence from the tribes, several 

in response to the agency's ANPR (76 FR 1392, January 10, 2011)).

    Indian lands potentially affected by a critical habitat designation 

only occur

 

[[Page 2742]]

 

within the range of the Puget Sound steelhead DPS, and they comprise 

only a minor portion (approximately 2 percent) of the total habitat 

under consideration for designation (NMFS, 2012c). This percentage is 

likely an overestimate as it includes all habitat area within 

reservation boundaries. In many cases, a considerable portion of the 

land within the reservation boundaries is no longer held in trust for 

the tribe or in fee status by individual tribal members.

    The longstanding and distinctive relationship between the Federal 

and tribal governments is defined by treaties, statutes, executive 

orders, judicial decisions, and agreements, which differentiate tribal 

governments from the other entities that deal with, or are affected by, 

the Federal government. This relationship has given rise to a special 

Federal trust responsibility involving the legal responsibilities and 

obligations of the United States toward Indian Tribes with respect to 

Indian lands, tribal trust resources, and the exercise of tribal rights 

(e.g., Executive Order 13175 and Secretarial Order 3206). Pursuant to 

these federal policies and authorities lands have been retained by 

Indian Tribes or have been set aside for tribal use. These lands are 

managed by Indian Tribes in accordance with tribal goals and objectives 

within the framework of applicable treaties and laws.

    In addition to the distinctive trust relationship, for Pacific 

salmonids in the Northwest, there is a unique partnership between the 

Federal government and Indian tribes regarding salmonid management. 

Northwest Indian tribes are regarded as ``co-managers'' of the salmonid 

resource, along with Federal and state managers. This co-management 

relationship evolved as a result of numerous court decisions clarifying 

the tribes' treaty right to take fish in their usual and accustomed 

places. The tribes have stated in letters and meetings that designation 

of Indian lands as critical habitat will undermine long-term working 

relationships and reduce the capacity of tribes to participate at 

current levels in the many and varied forums addressing ecosystem 

management and conservation of fisheries resources. 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.

    The current co-manager process addressing activities on an 

ecosystem-wide basis throughout the Northwest is beneficial for the 

conservation of the salmonids. We also believe that maintaining our 

current co-manager relationship consistent with existing policies is an 

important benefit to continuing our tribal trust responsibilities and 

relationship. Based upon our consultation with the Tribes, we believe 

that designation of Indian lands as critical habitat would adversely 

impact our working relationship and the benefits resulting from this 

relationship. The benefits of excluding Indian lands from designation 

include: (1) Furthering established national policies, our Federal 

trust obligations and our deference to the tribes in management of 

natural resources on their lands; (2) maintaining effective long-term 

working relationships to promote the conservation of salmonids on an 

ecosystem wide basis across four states; (3) allowing continued 

meaningful collaboration and cooperation in scientific work to learn 

more about the conservation needs of the species on an ecosystem-wide 

basis; and (4) continued respect for tribal sovereignty over management 

of natural resources on Indian lands through established tribal natural 

resource programs.

    Based upon these considerations, we have determined to exercise 

agency discretion under ESA section 4(b)(2) and propose to exclude 

Indian lands from the critical habitat designation for Puget Sound 

steelhead. The Indian lands specifically excluded from critical habitat 

are those defined in the Secretarial Order, including: (1) lands held 

in trust by the United States for the benefit of any Indian tribe; (2) 

lands held in trust by the United States for any Indian Tribe or 

individual subject to restrictions by the United States against 

alienation; (3) fee lands, either within or outside the reservation 

boundaries, owned by the tribal government; and (4) fee lands within 

the reservation boundaries owned by individual Indians. These 

particular areas comprise only 2 percent of the total area under 

consideration for designation as critical habitat for Puget Sound 

steelhead (NMFS, 2012c).

 

Other Relevant Impacts--Impacts to Landowners With Contractual 

Commitments to Conservation

 

    Conservation agreements with non-Federal landowners (e.g., HCPs) 

enhance species conservation by extending species protections beyond 

those available through section 7 consultations. We have encouraged 

non-Federal landowners to enter into conservation agreements, based on 

a view that we can achieve greater species' conservation on non-Federal 

land through such voluntary partnerships than we can through coercive 

methods (61 FR 63854, December 2, 1996).

    Section 10(a)(1)(B) of the ESA authorizes us to issue to non-

Federal entities a permit for the incidental take of endangered and 

threatened species. This permit allows a non-Federal landowner to 

proceed with an activity that is legal in all other respects, but that 

results in the incidental taking of a listed species (i.e., take that 

is incidental to, and not the purpose of, the carrying out of an 

otherwise lawful activity). The ESA specifies that an application for 

an incidental take permit must be accompanied by a conservation plan, 

and specifies the content of such a plan. The purpose of such an HCP is 

to describe and ensure that the effects of the permitted action on 

covered species are adequately minimized and mitigated, and that the 

action does not appreciably reduce the likelihood of the survival and 

recovery of the species.

    In previous critical habitat designations for West Coast salmon and 

steelhead (70 FR 52630, September 2, 2005), we have exercised 

discretion to exclude some (but not all) lands covered by an HCP from 

designation after concluding that benefits of exclusion outweighed the 

benefits of designation. For lands covered by an HCP, the benefits of 

designation typically arise from section 7 protections as well as 

enhanced public awareness. The benefits of exclusion generally include 

relieving regulatory burdens on existing conservation partners, 

maintaining good working relationships with them (thus enhancing 

implementation of existing HCPs), and encouraging the development of 

new partnerships.

    We contacted the HCP landowners whose lands were excluded in our 

2005 designations (Washington Department of Natural Resources, Green 

Diamond Resources Company, and West Fork Timber Company) to discuss the 

critical habitat designations for lower Columbia River coho and Puget 

Sound steelhead. We also contacted several additional landowners whose 

HCPs had been authorized subsequent to our 2005 critical habitat 

designations (Washington Forest Practices, City of Portland-Bull Run 

Water Supply, City of Kent Water Supply) or were existing then but now 

determined to overlap with new habitat areas being considered for 

designation (J.L. Storedahl and Sons). All of them except one (City of 

Portland) requested that their lands be excluded from designation as 

critical habitat for these DPSs, and were of the opinion that exclusion 

would be a

 

[[Page 2743]]

 

benefit and enhance the partnership between NMFS and the HCP landowner. 

We also reviewed the activities covered by the HCPs, the protections 

afforded by the HCP agreement, and the Federal activities that are 

likely to occur on the affected lands (NMFS, 2012c). From this 

information we determined that the conservation benefits to the species 

from the HCPs outweigh the conservation benefits of designation and 

therefore are proposing to exclude HCP lands where the landowner 

requested exclusion.

 

Exclusion Will Not Result in Extinction of the Species

 

    Section 4(b)(2) limits our discretion to exclude areas from 

designation if exclusion will result in extinction of the species.

    Since we have not recommended excluding any habitat areas based on 

economic impacts if the exclusion would significantly impede 

conservation, we have determined for each DPS that the exclusion of the 

areas we recommend based on economic impacts will not result in the 

extinction of either DPS. All areas proposed for exclusion are of low 

conservation value. Moreover, they comprise a small fraction--less than 

5 percent--of all habitat areas considered for designation as critical 

habitat for either DPS.

    We also conclude that excluding Indian lands--and thereby 

furthering the federal government's policy of promoting respect for 

tribal sovereignty and self-governance--will not result in extinction 

of either species. Habitat on Indian lands represents a small 

proportion of total area occupied by the Puget Sound steelhead DPS, and 

the Tribes are actively engaged in fisheries, habitat management, and 

species recovery programs that benefit steelhead and other salmonids.

    In addition, we conclude that excluding lands covered by several 

HCPs will not result in extinction of either species. These particular 

HCPs result in management actions that promote conservation of the 

listed species in a manner that is not available through the section 7 

requirements regarding critical habitat. Excluding these HCP areas from 

designation is expected to enhance our relationship with the landowner 

and may provide an incentive to other landowners to seek conservation 

agreements with us. These outcomes will in turn generally benefit our 

recovery efforts to foster voluntary efforts on vast areas of 

nonfederal lands which make up a large proportion of each species' 

range and will play a critical role in avoiding species extinction.

    In total, for Lower Columbia River coho we are proposing to 

designate 2,288 stream miles and exclude 1,065 stream miles, and for 

Puget Sound steelhead we are proposing to designate 1,880 stream miles 

and exclude 1,639 stream miles. For the following reasons, we conclude 

that these exclusions in combination will not result in the extinction 

of either DPS: (1) Except for exclusions due to economic impacts, there 

are no watersheds that are proposed for exclusion in their entirety. 

The most area excluded for any single watershed is the Puget Sound/East 

Passage watershed, with 70% proposed for exclusion due to the presence 

of HCPs. This area was rated as having a low conservation value; (2) 

although the extent of the exclusions overall is significant (nearly 

50% of the critical habitat for Puget Sound steelhead and nearly 30% of 

the critical habitat for lower Columbia coho), and many of the areas 

excluded are of medium or high conservation value to the species, most 

of the exclusions are based on the presence of HCPs, which have a 

conservation benefit for the species. Also, the likely leverage to 

obtain significant conservation benefits from an ESA section 7 

consultation is expected to be low for most areas. Because the presence 

of high quality forested habitat is key to salmon and steelhead 

recovery, the protections of the HCP, which all involve forested/

riparian lands, will have significant benefits over the long term as 

riparian forest habitat is developed. In addition, we believe that the 

HCP exclusions in particular may provide an incentive to other 

landowners to seek conservation agreements with us; (3) the few cases 

where an entire watershed was proposed for exclusion (due to economic 

impacts) all involved habitat areas that the Teams deemed to be of low 

conservation value; and (4) the proposed Indian land exclusions involve 

stream reaches that are already managed by the tribes for salmonid 

conservation.

 

Critical Habitat Designations

 

    In previous salmonid critical habitat designations we identified 

the end-point of designated stream segments using latitude and 

longitude coordinates and provided maps depicting the designated areas 

(70 FR 52630, September 2, 2005). In May of 2012, we and the USFWS 

amended our regulations regarding critical habitat designation (77 FR 

25611, May 1, 2012). The revised regulation provides that the 

boundaries of critical habitat as mapped or otherwise described in the 

Regulation Promulgation section of a rulemaking published in the 

Federal Register will be the official delineation of the designation 

(50 CFR 424.12). In this proposed designation we include both the 

latitude-longitude coordinates and maps to make it easier to compare 

the areas proposed for designation with overlapping areas designated 

for other salmon and steelhead DPSs in 2005 (70 FR 52630, September 2, 

2005).

 

Lower Columbia River Coho Salmon

 

    We are proposing to designate approximately 2,288 stream miles 

(3,681 km) within the geographical area presently occupied by the lower 

Columbia River coho DPS (see Table 1). Other ESA-listed species in this 

area with designated critical habitat include lower Columbia River 

Chinook and steelhead, Columbia River chum (70 FR 52630, September 2, 

2005), bull trout (75 FR 63898, October 18, 2010), green sturgeon (74 

FR 52300, October 9, 2009), and the Southern DPS of Pacific eulachon 

(76 FR 65324, October 20, 2011). Also, the mainstem lower Columbia 

River is designated critical habitat for numerous other salmon and 

steelhead DPSs whose spawning range is upstream of the area presently 

occupied by lower Columbia River coho (70 FR 52630, September 2, 2005).

 

 Table 1--Approximate Quantity of Habitat and Ownership Within Watersheds Containing Habitat Areas Proposed for

                      Designation as Critical Habitat for Lower Columbia River Coho Salmon

----------------------------------------------------------------------------------------------------------------

                                                                 Land ownership type (percent)

          Streams and lakes mi (km)          -------------------------------------------------------------------

                                                  Federal           Tribal           State           Private

----------------------------------------------------------------------------------------------------------------

2,288 (3,681)...............................            14.6                0              2.0             83.4

----------------------------------------------------------------------------------------------------------------

 

 

[[Page 2744]]

 

    The areas proposed for designation are all occupied and contain 

physical and biological features essential to the conservation of the 

species and that may require special management considerations or 

protection. No unoccupied areas were identified that are considered 

essential for the conservation of the species, but several areas above 

Condit Dam on the White Salmon River may warrant consideration in the 

future. There are 55 watersheds within the range of this DPS. Three 

watersheds received a low conservation value rating, 18 received a 

medium rating, and 34 received a high rating (NMFS 2012a). The lower 

Columbia River rearing/migration corridor downstream of the spawning 

range is considered to have a high conservation value. As a result of 

the balancing process for economic impacts described above, we are 

proposing to exclude from the designation all or portions of 28 

watersheds listed in Table 2. Of the habitat areas eligible for 

designation, approximately 27 stream miles (43 km) or 0.8 percent are 

being proposed for exclusion because the economic benefits of exclusion 

outweigh the benefits of designation. Also, we are proposing to exclude 

approximately 1,038 stream miles (1,671 km) covered by four HCPs (J.L. 

Storedahl and Sons HCP, Washington Department of Natural Resources--

West of Cascades HCP, Washington Forest Practices HCP, and West Fork 

Timber HCP) because the benefits of exclusion outweigh the benefits of 

designation. None of the HCP exclusions overlap with areas also 

proposed for exclusion due to economic impacts. Total potential 

estimated economic impact, with no exclusions, would be $357,815. The 

proposed economic-related exclusions identified in Table 2 would reduce 

the total estimated economic impact approximately 4 percent to $344,315 

(NMFS, 2012b).

 

    Table 2--Habitat Areas Within the Geographical Range of Lower Columbia River Coho Salmon and Proposed for

                                         Exclusion From Critical Habitat

             [WDNR = Washington Department of Natural Resources; WFP = Washington Forest Practices]

----------------------------------------------------------------------------------------------------------------

        Watershed code              Watershed name                   Area(s) proposed for exclusion

----------------------------------------------------------------------------------------------------------------

1707010509....................  Wind River...........  WFP HCP lands.

1707010511....................  Wind River...........  WDNR and WFP HCP lands.

1707010512....................  Middle Columbia/Grays  WFP HCP lands.

                                 Creek.

1707010513....................  Middle Columbia/Eagle  WFP HCP lands.

                                 Creek.

1708000106....................  Washougal River......  WDNR and WFP HCP lands.

1708000107....................  Columbia River Gorge   WDNR and WFP HCP lands.

                                 Tributaries.

1708000109....................  Salmon Creek.........  WDNR and WFP HCP lands.

1708000201....................  Upper Lewis River....  WFP HCP lands.

1708000202....................  Muddy River..........  WFP HCP lands.

1708000203....................  Swift Reservoir......  WDNR and WFP HCP lands.

1708000204....................  Yale Reservoir.......  WDNR and WFP HCP lands.

1708000205....................  East Fork Lewis River  WDNR, WFP, and Storedahl HCP lands.

1708000206....................  Lower Lewis River....  WDNR and WFP HCP lands.

1708000301....................  Kalama River.........  WDNR and WFP HCP lands.

1708000304....................  Germany/Abernathy....  WDNR and WFP HCP lands.

1708000305....................  Skamokawa/Elochoman..  WDNR and WFP HCP lands.

1708000402....................  Upper Cowlitz River..  WDNR and WFP HCP lands.

1708000403....................  Cowlitz Valley         WDNR, WFP, and WFT HCP lands.

                                 Frontal.

1708000405....................  Lower Cispus River...  WFP HCP lands.

1708000501....................  Tilton River.........  WDNR, WFP, and WFT HCP lands.

1708000502....................  Riffe Reservoir......  WDNR and WFP HCP lands.

1708000503....................  Jackson Prairie......  WDNR and WFP HCP lands.

1708000504....................  North Fork Toutle      WDNR and WFP HCP lands.

                                 River.

1708000506....................  South Fork Toutle      WFP HCP lands.

                                 River.

1708000507....................  East Willapa.........  WDNR and WFP HCP lands.

1708000508....................  Coweeman.............  WDNR and WFP HCP lands.

1708000603....................  Grays Bay............  WDNR and WFP HCP lands.

1709000704....................  Abernethy Creek......  Entire watershed due to economic impacts.

----------------------------------------------------------------------------------------------------------------

 

Puget Sound Steelhead

 

    We are proposing to designate approximately 1,880 stream miles 

(3,026 km) within the geographical area presently occupied by the Puget 

Sound steelhead DPS (see Table 3). Other ESA-listed salmonids in this 

area with designated critical habitat include Puget Sound Chinook, Hood 

Canal summer-run chum (70 FR 52630, September 2, 2005), and bull trout 

(75 FR 63898, October 18, 2010).

 

 Table 3--Approximate Quantity of Habitat and Ownership Within Watersheds Containing Habitat Areas Proposed for

                            Designation as Critical Habitat for Puget Sound Steelhead

----------------------------------------------------------------------------------------------------------------

                                                                 Land ownership type (percent)

               Streams mi (km)               -------------------------------------------------------------------

                                                  Federal           Tribal           State           Private

----------------------------------------------------------------------------------------------------------------

1,880 (3,026)...............................            15.5                0              3.8             80.7

----------------------------------------------------------------------------------------------------------------

 

 

[[Page 2745]]

 

    Most of the areas proposed for designation are occupied and contain 

physical and biological features essential to the conservation of the 

species and that may require special management considerations or 

protection. One unoccupied area in the upper Elwha River watershed was 

identified as essential for the conservation of the species and is 

being proposed for designation as critical habitat. There are 66 

watersheds within the range of this DPS. Nine watersheds received a low 

conservation value rating, 16 received a medium rating, and 41 received 

a high rating to the DPS (NMFS, 2012a).

    Approximately 28 stream miles (45 km) are not proposed for 

designation because they are within lands controlled by the military 

that contain qualifying INRMPs. Approximately 68 miles (109 km) of 

stream are within the boundaries of Indian reservations, but only those 

reaches defined as Indian lands (see Government-to-Government 

Relationship With Tribes) are proposed for exclusion. Also, we are 

proposing to exclude approximately 1,434 miles (2,307 km) of stream 

covered by four HCPs (City of Kent, Green Diamond, Washington 

Department of Natural Resources--West of Cascades HCP, and Washington 

Forest Practices HCP) because the benefits of exclusion outweigh the 

benefits of designation. As a result of the balancing process for 

economic impacts described above, the Secretary is proposing to exclude 

from the designation all or portions of the 60 watersheds listed in 

Table 4. Of the habitat areas eligible for designation, approximately 

138 stream miles (262 km) or 3.9 percent are being proposed for 

exclusion because the economic benefits of exclusion outweigh the 

benefits of designation. Only a small amount (24 stream miles (39 km)) 

proposed for exclusion due to economic impacts overlap with areas also 

proposed for exclusion as HCP lands or Indian lands. Total potential 

estimated economic impact, with no exclusions, would be $460,924. The 

proposed economic-related exclusions identified in Table 4 would reduce 

the total estimated economic impact approximately 29 percent to 

$326,966 (NMFS, 2012c).

 

  Table 4--Habitat Areas Within the Geographical Range of Puget Sound Steelhead and Proposed for Exclusion From

                                                Critical Habitat

             [WDNR = Washington Department of Natural Resources; WFP = Washington Forest Practices]

----------------------------------------------------------------------------------------------------------------

        Watershed code              Watershed name                   Area(s) proposed for exclusion

----------------------------------------------------------------------------------------------------------------

1711000201....................  Bellingham Bay.......  WDNR and WFP HCP lands.

1711000202....................  Samish River.........  WDNR and WFP HCP lands.

1711000204....................  Birch Bay............  WFP HCP lands.

1711000401....................  Upper North Fork       WDNR and WFP HCP lands.

                                 Nooksack River.

1711000402....................  Middle Fork Nooksack   WDNR and WFP HCP lands.

                                 River.

1711000403....................  South Fork Nooksack    Indian lands and WDNR and WFP HCP lands.

                                 River.

1711000404....................  Lower North Fork       Indian lands and WDNR and WFP HCP lands.

                                 Nooksack River.

1711000405....................  Nooksack River.......  Indian lands and WDNR and WFP HCP lands.

1711000504....................  Skagit River/Gorge     WFP HCP lands.

                                 Lake.

1711000505....................  Skagit River/Diobsud   WDNR and WFP HCP lands.

                                 Creek.

1711000506....................  Cascade River........  WDNR and WFP HCP lands.

1711000507....................  Skagit River/Illabot   WDNR and WFP HCP lands.

                                 Creek.

1711000508....................  Baker River..........  WFP HCP lands.

1711000601....................  Upper Sauk River.....  WFP HCP lands.

1711000603....................  Lower Suiattle River.  WDNR and WFP HCP lands.

1711000604....................  Lower Sauk River.....  Indian lands and WDNR and WFP HCP lands.

1711000701....................  Middle Skagit River/   WDNR and WFP HCP lands.

                                 Finney Creek.

1711000702....................  Lower Skagit River/    WDNR and WFP HCP lands.

                                 Nookachamps Creek.

1711000801....................  North Fork             WDNR and WFP HCP lands.

                                 Stillaguamish River.

1711000802....................  South Fork             WDNR and WFP HCP lands and DOD lands.

                                 Stillaguamish River.

1711000803....................  Lower Stillaguamish    WDNR and WFP HCP lands.

                                 River.

1711000901....................  Tye and Beckler        WDNR and WFP HCP lands.

                                 Rivers.

1711000902....................  Skykomish River Forks  WDNR and WFP HCP lands.

1711000903....................  Skykomish River/       WDNR and WFP HCP lands.

                                 Wallace River.

1711000904....................  Sultan River.........  WDNR and WFP HCP lands.

1711000905....................  Skykomish River/Woods  WDNR and WFP HCP lands.

                                 Creek.

1711001003....................  Middle Fork            WDNR and WFP HCP lands.

                                 Snoqualmie River.

1711001004....................  Lower Snoqualmie       WDNR and WFP HCP lands.

                                 River.

1711001101....................  Pilchuck River.......  WDNR and WFP HCP lands.

1711001102....................  Snohomish River......  Indian lands and WDNR and WFP HCP lands.

1711001201....................  Cedar River..........  WDNR and City of Kent HCP lands.

1711001202....................  Lake Sammamish.......  Entire watershed due to economic impacts (including WDNR

                                                        and WFP HCP lands).

1711001203....................  Lake Washington......  Entire watershed due to economic impacts.

1711001204....................  Sammamish River......  Entire watershed due to economic impacts (including WDNR

                                                        and WFP HCP lands).

1711001301....................  Upper Green River....  WFP HCP lands.

1711001302....................  Middle Green River...  WDNR HCP lands.

1711001401....................  Upper White River....  WDNR and WFP HCP lands.

1711001402....................  Lower White River....  Indian lands and WFP HCP lands.

1711001403....................  Carbon River.........  WDNR and WFP HCP lands.

1711001405....................  Lower Puyallup River.  Indian lands and WFP HCP lands.

1711001502....................  Mashel/Ohop..........  WDNR and WFP HCP lands.

1711001503....................  Lowland..............  Indian lands, DOD lands, and WFP HCP lands.

1711001601....................  Prairie 1............  WFP HCP lands.

1711001602....................  Prairie 2............  WFP HCP lands.

 

[[Page 2746]]

 

 

1711001701....................  Skokomish River......  Indian lands and WFP and Green Diamond HCP lands.

1711001802....................  Lower West Hood Canal  WDNR and WFP HCP lands.

                                 Frontal.

1711001804....................  Duckabush River......  WDNR and WFP HCP lands.

1711001806....................  Big Quilcene River...  WDNR and WFP HCP lands.

1711001807....................  Upper West Hood Canal  WDNR and WFP HCP lands and DOD lands.

                                 Frontal.

1711001808....................  West Kitsap..........  WDNR and WFP HCP lands.

1711001900....................  Kennedy/Goldsborough.  Indian lands and WDNR and WFP, and Green Diamond HCP

                                                        lands.

1711001901....................  Puget................  WDNR and WFP HCP lands.

1711001902....................  Prairie 3............  WDNR and WFP HCP lands.

1711001906....................  Chambers Creek.......  DOD Lands.

1711001908....................  Port Ludlow/Chimacum   WDNR and WFP HCP lands.

                                 Creek.

1711002001....................  Discovery Bay........  WDNR and WFP HCP lands.

1711002002....................  Sequim Bay...........  Indian lands and WDNR and WFP HCP lands.

1711002003....................  Dungeness River......  WDNR and WFP HCP lands.

1711002004....................  Port Angeles Harbor..  WDNR and WFP HCP lands.

1711002007....................  Elwha River..........  Indian lands and WDNR and WFP HCP lands.

----------------------------------------------------------------------------------------------------------------

 

Lateral Extent of Critical Habitat

 

    In past designations we have described the lateral extent of 

critical habitat in various ways ranging from fixed distances to 

``functional'' zones defined by important riparian functions (65 FR 

7764, February 16, 2000). Designating a set riparian zone width will 

(in some places) accurately reflect the distance from the stream on 

which PCEs might be found, but in other cases may over- or understate 

the distance. Designating a functional buffer avoids that problem, but 

makes it difficult for Federal agencies to know in advance what areas 

are critical habitat. To address these issues we are proposing to 

define the lateral extent of designated critical habitat as the width 

of the stream channel defined by the ordinary high water line as 

defined by the U.S. Army Corps of Engineers in 33 CFR 329.11. In areas 

for which ordinary high-water has not been defined pursuant to 33 CFR 

329.11, the width of the stream channel shall be defined by its 

bankfull elevation. Bankfull elevation is the level at which water 

begins to leave the channel and move into the floodplain (Rosgen, 1996) 

and is reached at a discharge which generally has a recurrence interval 

of 1 to 2 years on the annual flood series (Leopold et al., 1992). Such 

an interval is commensurate with nearly all of the juvenile freshwater 

life phases of most salmon and steelhead DPSs. Therefore, it is 

reasonable to assert that for an occupied stream reach this lateral 

extent is regularly ``occupied.'' Moreover, the bankfull elevation can 

be readily discerned for a variety of stream reaches and stream types 

using recognizable water lines (e.g., marks on rocks) or vegetation 

boundaries (Rosgen, 1996). Since 2005 this has proven to be a 

successful approach for defining the lateral extent of critical habitat 

for West Coast salmon and steelhead (70 FR 52630, September 2, 2005); 

therefore, we propose to continue the practice in this proposed rule.

    As underscored in previous critical habitat designations, the 

quality of aquatic habitat within stream channels is intrinsically 

related to the adjacent riparian zones and floodplain, to surrounding 

wetlands and uplands, and to non-fish-bearing streams above occupied 

stream reaches. Human activities that occur outside the stream or 

designated critical habitat can modify or destroy physical and 

biological features of the stream. In addition, human activities that 

occur within and adjacent to reaches upstream (e.g., road failures) or 

downstream (e.g., dams) of designated stream reaches can also have 

demonstrable effects on physical and biological features of designated 

reaches. This designation will help to ensure that Federal agencies are 

aware of these important habitat linkages for lower Columbia River coho 

and Puget Sound steelhead.

    In the few cases where we are proposing to designate lakes/

reservoirs as critical habitat, the lateral extent may best be defined 

as the perimeter of the water body as displayed on standard 1:24,000 

scale topographic maps or the elevation of ordinary high water, 

whichever is greater.

 

Effects of Critical Habitat Designation

 

    Section 7(a)(2) of the ESA requires Federal agencies to insure that 

any action authorized, funded, or carried out by the agency (agency 

action) does not jeopardize the continued existence of any threatened 

or endangered species or destroy or adversely modify designated 

critical habitat. Federal agencies are also required to confer with us 

regarding any actions likely to jeopardize a species proposed for 

listing under the ESA, or likely to destroy or adversely modify 

proposed critical habitat, pursuant to section 7(a)(4). A conference 

involves informal discussions in which we may recommend conservation 

measures to minimize or avoid adverse effects. The discussions and 

conservation recommendations are to be documented in a conference 

report provided to the Federal agency. If requested by the Federal 

agency, a formal conference report may be issued (including a 

biological opinion prepared according to 50 CFR 402.14). A formal 

conference report may be adopted as the biological opinion when the 

species is listed or critical habitat designated, if no significant new 

information or changes to the action alter the content of the opinion.

    When a species is listed or critical habitat is designated, Federal 

agencies must consult with NMFS on any agency actions to be conducted 

in an area where the species is present and that may affect the species 

or its critical habitat. During the consultation, we would evaluate the 

agency action to determine whether the action may adversely affect 

listed species or critical habitat and issue our findings in a 

biological opinion or concurrence letter. If we conclude in the 

biological opinion that the agency action would likely result in the 

destruction or adverse

 

[[Page 2747]]

 

modification of critical habitat, we would also recommend any 

reasonable and prudent alternatives to the action. Reasonable and 

prudent alternatives (defined in 50 CFR 402.02) are alternative actions 

identified during formal consultation that can be implemented in a 

manner consistent with the intended purpose of the action, that are 

consistent with the scope of the Federal agency's legal authority and 

jurisdiction, that are economically and technologically feasible, and 

that would avoid the destruction or adverse modification of critical 

habitat.

    Regulations at 50 CFR 402.16 require Federal agencies that have 

retained discretionary involvement or control over an action, or where 

such discretionary involvement or control is authorized by law, to 

reinitiate consultation on previously reviewed actions in instances 

where: (1) Critical habitat is subsequently designated; or (2) new 

information or changes to the action may result in effects to critical 

habitat not previously considered in the biological opinion. 

Consequently, some Federal agencies may request reinitiation of a 

consultation or conference with us on actions for which formal 

consultation has been completed, if those actions may affect designated 

critical habitat or adversely modify or destroy proposed critical 

habitat.

    Activities subject to the ESA section 7 consultation process 

include activities on Federal lands and activities on private or state 

lands requiring a permit from a Federal agency (e.g., a Clean Water 

Act, Section 404 dredge or fill permit from U.S. Army Corps of 

Engineers) or some other Federal action, including funding (e.g., 

Federal Highway Administration funding for transportation projects). 

ESA section 7 consultation would not be required for Federal actions 

that do not affect listed species or critical habitat and for actions 

on non-Federal and private lands that are not Federally funded, 

authorized, or carried out.

 

Activities That May Be Affected by Critical Habitat Designation

 

    ESA section 4(b)(8) requires in any proposed or final regulation to 

designate critical habitat an evaluation and brief description of those 

activities (whether public or private) that may adversely modify such 

habitat or that may be affected by such designation. A wide variety of 

activities may affect the proposed critical habitat and may be subject 

to the ESA section 7 consultation process when carried out, funded, or 

authorized by a Federal agency. These include water and land management 

actions of Federal agencies (e.g., U.S. Forest Service (USFS)), Bureau 

of Land Management (BLM), U.S. Army Corps of Engineers (USACE), U.S. 

Bureau of Reclamation (BOR), Natural Resource Conservation Service, 

National Park Service (NPS), Bureau of Indian Affairs (BIA), the 

Federal Energy Regulatory Commission (FERC), and the Nuclear Regulatory 

Commission (NRC)) and related or similar Federally-regulated projects 

and activities on Federal lands, including hydropower sites licensed by 

the FERC; nuclear power sites licensed by the NRC; dams built or 

operated by the USACE or BOR; timber sales and other vegetation 

management activities conducted by the USFS, BLM and BIA; irrigation 

diversions authorized by the USFS and BLM; and road building and 

maintenance activities authorized by the USFS, BLM, NPS, and BIA. Other 

actions of concern include dredging and filling, mining, diking, and 

bank stabilization activities authorized or conducted by the USACE, 

habitat modifications authorized by the Federal Emergency Management 

Agency, and approval of water quality standards and pesticide labeling 

and use restrictions administered by the Environmental Protection 

Agency.

    Private entities may also be affected by these proposed critical 

habitat designations if a Federal permit is required, if Federal 

funding is received, or the entity is involved in or receives benefits 

from a Federal project. For example, private entities may have special 

use permits to convey water or build access roads across Federal land; 

they may require Federal permits to construct irrigation withdrawal 

facilities, or build or repair docks; they may obtain water from 

Federally funded and operated irrigation projects; or they may apply 

pesticides that are only available with Federal agency approval. These 

activities will need to be evaluated with respect to their potential to 

destroy or adversely modify critical habitat for lower Columbia River 

coho and Puget Sound steelhead. Changes to some activities, such as the 

operations of dams and dredging activities, may be necessary to 

minimize or avoid destruction or adverse modification of proposed 

critical habitat. Transportation and utilities sectors may need to 

modify the placement of culverts, bridges, and utility conveyances 

(e.g., water, sewer, and power lines) to avoid barriers to fish 

migration. Developments (e.g., marinas, residential, or industrial 

facilities) occurring in or near streams, estuaries, or marine waters 

designated as critical habitat that require Federal authorization or 

funding may need to be altered or built in a manner to ensure that 

critical habitat is not destroyed or adversely modified as a result of 

the construction or subsequent operation of the facility. Questions 

regarding whether specific activities will constitute destruction or 

adverse modification of critical habitat should be directed to NMFS 

(see ADDRESSES and FOR FURTHER INFORMATION CONTACT).

 

Public Comments Solicited

 

    We solicit comments or suggestions from the public, other concerned 

governments and agencies, the scientific community, industry, non-

governmental organizations, or any other interested party concerning 

the proposed designations and exclusions as well as the documents 

supporting this rulemaking. We are particularly interested in comments 

and information in the following areas: (1) Information describing the 

abundance, distribution, and habitat use of lower Columbia River coho 

and Puget Sound steelhead; (2) information on the identification, 

location, and the quality of physical or biological features which may 

be essential to the conservation of the species; (3) information 

regarding potential benefits of designating any particular area as 

critical habitat, including information on the types of Federal actions 

that may affect the area's physical and biological features; (4) 

information regarding potential impacts of designating any particular 

area, including the types of Federal actions that may trigger an ESA 

section 7 consultation and the possible modifications that may be 

required of those activities; (5) information regarding the benefits of 

excluding a particular area from critical habitat, including areas 

covered by an existing HCP; (6) current or planned activities in the 

areas proposed as critical habitat and costs of potential modifications 

to those activities due to critical habitat designation; (7) whether 

specific unoccupied areas (e.g., stream reaches above Condit Dam on the 

White Salmon River, Washington) not presently proposed for designation 

are or may be essential to the conservation of these DPSs; and (8) any 

foreseeable economic, national security, or other relevant impact 

resulting from the proposed designations.

    You may submit your comments and materials concerning this proposal 

by any one of several methods (see ADDRESSES). Copies of the proposed 

rule and supporting documentation can be found on the NMFS Web site 

http://www.nwr.noaa.gov. We will consider all comments pertaining to 

these designations received during the

 

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comment period in preparing the final rule. Accordingly, the final 

decision may differ from this proposed rule.

 

Public Hearings

 

    Agency regulations at 50 CFR 424.16(c)(3) require the Secretary to 

promptly hold at least one public hearing if any person requests one 

within 45 days of publication of a proposed rule to designate critical 

habitat. Such hearings provide the opportunity for interested 

individuals and parties to give comments, exchange information and 

opinions, and engage in a constructive dialogue concerning this 

proposed rule. We encourage the public's involvement in such ESA 

matters. Requests for a public hearing(s) must be made in writing (see 

ADDRESSES) by February 28, 2013.

 

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