Draft Pre-Decisional Document for Agency Review Purposes Only: Do Not Distribute



### DRAFT Endangered Species Act Section 7 Consultation Biological Opinion on the U.S. Environmental Protection Agency’s Proposed Pesticides General Permit

National Marine Fisheries Service

Office of Protected Resources

Silver Spring, MD 20910ii Consultation History .......................................................................................................... ....................................... 8

DESCRIPTION OF THE PROPOSED ACTION ............................................................................................ ...... 10
Pesticides Gene ral Permit ..................................................................................................... .................................. 12
Obtaining Authoriza tion under th e PGP ......................................................................................... ................... 12

Protective Me asures ........................................................................................................... ................................ 16
Limitations on Coverage ....................................................................................................... ............................. 24

Overview of NMFS’ Assessment Framework ........................................................................................ ................ 25
Application of this Appro ach to this Consulta tion ............................................................................. ..................... 25

Evidence Available fo r the Consultation ....................................................................................... ......................... 29

ACTION AREA ................................................................................................................... ...................................... 30

STATUS OF THE SPECIES AND CRITICAL HA BITAT AND ENVIRONMENTAL BASELINE ............... 31 Species and Critical Habitat Not Likely to be Adversely Affected by the Proposed Action .................................. 34
Endangered and Threaten ed Marine Mammals ...................................................................................... ............ 34
Endangered and Threat ened Sea Turtles ......................................................................................... ................... 35
Endangered and Threat ened Marine Fish ......................................................................................... .................. 36
Endangered and Threatened Marine Inve rtebrates ................................................................................ ............. 37
Johnson’s Seagrass ............................................................................................................ ................................. 38

Climate Change................................................................................................................. ...................................... 38
Species and Critical Habitat Likely to be Ad versely Affected by th e Proposed Action ......................................... 4 2
Anadromous Fish Species ....................................................................................................... ........................... 42

Southern Pacific Eu lachon Southern ............................................................................................ ...................... 42
Sturgeon ...................................................................................................................... ....................................... 44
Salmonid Anadromous Fish Species .............................................................................................. .................... 50

Chum Salmon ................................................................................................................... .................................. 64

Coho Salmon ................................................................................................................... ................................... 68
Sockeye Sa lmon ................................................................................................................ ................................. 74

Steelh ead ..................................................................................................................... ....................................... 78iii Marine Ma mmals ................................................................................................................ .................................... 97

Cook Inlet Be luga Whale ....................................................................................................... ............................ 97

Killer Whale Southern Resident Species......................................................................................... ................. 101

ENVIRONMENTAL BASELINE ........................................................................................................ .................. 103 The Changing Landscapes of the Unite d States .................................................................................. ............. 104

Status and Trends of Wate rs of the United States .............................................................................. .............. 106
Integration and Synthesis of the Environmen tal Base line ....................................................................... ......... 110

EFFECTS OF THE PR OPOSED ACTION ................................................................................................ .......... 112

Potential St ressors ........................................................................................................... ...................................... 113

Use Patterns to be Authorized by the Proposed Permit .......................................................................... .......... 114

Pesticide Occurrence in Rivers and Streams .................................................................................... ................ 117
Degradate Oc currence .......................................................................................................... ............................ 118

Environmental Mixtures ........................................................................................................ ........................... 118
Consequences of Exposing Listed Species and Designated Cr itical Hab itat ................................................... 119
Components of the Proposed PGP Designed to Minimize or Prevent Exposure ............................................. 130
Evaluation of Those Components of the Proposed PGP Designed to Mi nimize or Prevent Exposure ............ 140

Cumulative Effects ............................................................................................................ ................................... 151

INTEGRATION AND SYNT HESIS OF EFFECTS .......................................................................................... .. 151

CONCLUSION .................................................................................................................... .................................... 153 Listed Species and Critical Ha bitat ........................................................................................... ............................ 153

REASONABLE AND PRUD ENT ALTERNA TIVE ............................................................................................ 154

RPA Elem ent 1 ................................................................................................................. .................................... 155

Rationa le ..................................................................................................................... ..................................... 156

RPA Elem ent 2 ................................................................................................................. .................................... 158

Rationa le ..................................................................................................................... ..................................... 158

RPA Elem ent 3 ................................................................................................................. .................................... 159

Rationa le ..................................................................................................................... ..................................... 159iv INCIDENTAL TAKE STATEMENT ..................................................................................................... .............. 160

Amount or Extent of Take ...................................................................................................... .............................. 160

Reasonable and Prudent Measures ............................................................................................... ......................... 161

Terms and Conditions .......................................................................................................... ................................. 162

CONSERVATION RECO MMENDATIONS .................................................................................................. ..... 162

REINITIATION NOTICE ........................................................................................................... ........................... 163

LITERATURE CITED .............................................................................................................. ............................. 164v LIST of TABLES

Table 1. Proposed Annual Area Thresholds Required for Decision makers to File NOIs ............................. 14 Table 2. Species Listed as Threatened and Endange red and Proposed for Listing and their Designated Critical Habitat (Denoted by Asterisk) in the Acti on Area. Double Asterisks Denote Proposed Critical Habitat.

.............................................................................................................................. ......................................... 31 Table 3. Phenomena associated with projections of gl obal climate change including levels of confidence associated with projections (adapted from IPCC 2001 and Campbell-Lendrum Woodruff 2007) ................ 40 Table 4. Persistence of Some Commonly Used Pestic ides in Surface Water and Aquatic Sediments (After Mackay et al. , 1997)

.............................................................................................................................. ................. 114 Table 5. Percentage of Operators to be Aut horized by the Permit per Location and Type ......................... 116 Table 6. Summary of detections of chlorpyrifos, diazinon and malathion in filtered stream samples collected in California, Idaho, Or egon and Wash ington streams (Gilliom et al., 2006) ................................ 118 Table 7. Example of listed ingredients on labels of some products containing chlorpyrifos, diazinon and malathion (after NMFS 2008a)

.............................................................................................................................. 121 Table 8. Classification of the 171 active ingredients by class of pesticide. Ingr edients that are listed in bold type are discussed in greater detail in the document ............................................................................... 123 Table 9. Mixture concentrations resulting in 100% mortality of juvenile coho following 96h exposures (after NMFS 2008a)

.............................................................................................................................. .................. 128 Table 10. State Designated Uses that Explicitly Address Listed Species ...................................................... 134 Table 11. EPA’s FIFRA St andard Test Endpoints. ............................................................................................ 136 Table 12. EPA Estimated Number of O perators to be Affected by the PGP 1 ................................................ 141 Table 13. Types and Current Number of NPDES General Permits ................................................................ 145 Table 14. Number and Relative Proportion of Inspected Permittees According to Permit Type ................ 145 Table 15. Frequency and Relative Rate of Permit Violations for Minor Dischargers with and without Inspections

.............................................................................................................................. ................................. 146 Table 16. Frequency and Relative Rate of Permit Effluent Limit Violations with and without Inspections 146 Table 17. Relative Distribution of Enforcement Actions among Different Permit Types .............................. 147 Table 18. Relative Distribution of Enforcement Actions Among Permits with Effluent Violations ............... 1476 APPENDICES 1
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3 APPENDIX A: List of Pesticides Pollutants Authorized by the PGP 4 APPENDIX B: Definition of Adverse Incidents from the Proposed PGP 5

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87 National Marine Fisheries Service 9 Endangered Species Act Section 7 Consultation 10 Biological Opinion 11

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Agency: U.S. Environmental Protection Agency 13 14 Activities Considered: EPA’s Is suance of the Office of Water’s National Pollution Discharge 15 Elimination System, Pesticides General Permit under the Clean Water 16 Act for the District of Columbia, Idaho, Massachusetts and New 17 Hampshire, all Indian lands and Federal lands in Delaware, Vermont 18 and Washington State 19 20 Consultation Conducted by: Endangered Species Di vision of the Office of Protected Resources, 21 National Marine Fisheries Service 22 23 Approved by: __________________________________________________ 24 25 Date: ___________________________________________________ 26 27
Section 7(a)(2) of the Endangered Sp ecies Act of 1973, as amended (ESA; 16 U.S.C. 1536(a)(2)) requires each 28 Federal agency to insure that any action they authorize, fund or carry out is not likely to jeopardize the continued 29 existence of any endangered or threatened species or re sult in the destruction or adverse modification of critical 30 habitat of such species. When a Federal agency’s action “mayaffect” a protected species, that agency is required to 31 consult formally with the National Marine Fisheries Serv ice (NMFS) or the U.S. Fish and Wildlife Service (FWS; 32 together, “the Services”), depending upon the endangered sp ecies, threatened species, or designated critical habitat 33 that may be affected by the action (50 CFR 402.14(a)). Federal agencies are exempt from this general requirement if 34 they have concluded that an action “mayaffect, but is not likely to adversel y affect” endangered species, threatened 35 species, or designated critical habitat and NMFS or the FWS concur with that conclusion (50 CFR 402.14(b)). 36
This document represents NMFS’ Biological Opinion (Opinion) on the U.S. Environmental Protection Agency’s 37 (EPA’s) issuance of its Pesticides General Permit and its effects on threatened and endangered species and their 38 designated critical habitat. This Opinion is based on our review of the EPA’s Biological Evaluation for the 39 Environmental Protection Agency’s (EPA) Pesticides General Permit (PGP) , reviews of the effectiveness of the 40 National Pollution Discharge Elimination System (NPDES ) program and compliance for existing general permits, 41 pesticide risk assessments and Section 7 consultations on pesticide uses, species status reviews, listing documents, 42 recovery plans, reports on the status and trends of water quality, past and current research and population dynamics 43 modeling, published and unpublished scientific information and other sources of information as discussed in greater 44 detail in the Approach to the Assessment section of this Opinion. This Opinion has been prepared in accordance with 45 Section 7 of the ESA and associ ated implementing regulations. 46

47

488 Consultation History 49 On January 9, 2009, the Sixth Circuit U.S. Court of Appeals (Sixth Circuit) vacated EPA’s 2006 NPDES Pesticides 50 Rule (National Cotton Council, et al ., v. EPA, 553 F.3d 927). That rule stated that a National Pollution Discharge 51 Elimination System (NPDES) Permit, as authorized by th e Clean Water Act (CWA), is not required for: 1) the 52 application of pesticides directly to waters of the U.S. to control pests; and 2) the application of pesticides to control 53 pests that are present over –including near– waters where a portion of the pe sticides will unavoidably be deposited 54 to the waters of the U.S. to target the pests provided th at those applications are consistent with existing Federal 55 Insecticide, Fungicide and Rodenticide Act (FIFRA) requirements. 56
On June 8, 2009, the Sixth Circuit granted EPA a two-year stay of the order to provide the Agency time to develop a 57 general permit in order to guide States with delegated au thority to develop their own NPDES permits and to provide 58 outreach and education to regulated entities. 59
On February 22, 2010, the Supreme Court declined an industry group's request to review the Sixth Circuit decision. 60 Therefore all point-source disc harges of pesticides into waters of the U.S. were to require an NPDES permit by 61 April 9, 2011. 62
On November 3, 2009, EPA initiated informal consu ltation with NMFS on EPA’s development of its NPDES 63 Pesticides General Permit (PGP) pursuant to the Sixth Circuit’s decision. 64
On February 3, 2010, EPA held a meeting with the Services . At that meeting the Servi ces and EPA agreed that EPA 65 could use a list of representative pesticides and their us es in the representative states of MA and ID for their 66 Biological Evaluation (BE). 67
Between April 6, and June 7, 2010, NMFS reviewed and commented on portions of EPA’s draft permit and draft 68 BE. On June 10, 2010, NMFS sent EPA comments and concerns on the draft permit. These included: 1) Concerns 69 over why chlorine and bromine were not evaluated in the BE; 2) A request for information on the four pesticide use 70 patterns within the case study states; 3) Concerns that datafrom the EPA’s ECOTOX data base indicated that species 71 evaluated in the BE were much mo re sensitive to pesticides than the draft BE analyses suggested. 72
On July 30, 2010, EPA requested formal Section 7 consultation and sent a final BE and set of responses to NMFS’ 73

concerns. 74
On August 30, 2010, NMFS notified EPA that it could not initiate formal consultation because NMFS had not 75 received all of the information necessary to initiate formal cons ultation on the proposed ac tion as outlined in the 76 regulations governing interagency consultations (50 CFR §402.14). Specifically NMFS stated that in order to 77 complete the initiation package, EPA must provide: 1) A complete description of the action being considered; 2) A 78 complete description of the specific area that may be affect ed by the action; 3) A complete description of the manner 79 in which the action may affect any enda ngered or threatened species under NM FS’ jurisdiction or critical habitat, 80 and an analysis of any cumulative effect s; 4) Any other relevant studies or other information available on the action, 81 the affected listed species, or critical habitat. 82
On September 15, 2010, NMFS participated in a conference call at EPA’s request. NMFS reiterated its information 83 needs required to initiate formal consultation to EPA. 84
On October 20, 2010, NMFS notified EPA that as of October 14, 2010, either EPA had provided all information 85 required for initiating consultation or this informati on was otherwise accessible for NMFS’ consideration and 869 reference. Therefore, NMFS was conf irming the initiation of formal consultation on this action and that NMFS 87 expected to provide EPA with a final Biological Opinion no later than February 25, 2011. 88
On November 10, 2010 and December 8, 2010, EPA informed NMFS that EP A intended to change some permit 89 provisions. 90
On December 16, 2010, NMFS and EPA met to discuss EPA’ s planned changes to the proposed general permit . 91
On January 10, 2011, NMFS notified EPA via a confer ence call that NMFS was likely to reach a jeopardy 92 determination for listed species, and destruction or adverse modification to designated critical habitat determinations 93 on the proposed action. 94
On January 19, 2011, NMFS gave the EPA a draft list of po tential Reasonable and Prudent Alternatives (RPAs) that 95 NMFS believes would allow EPA’s action to proceed in compliance with ESA Section 7 (a)(2). 96
On March 1, 2011 NMFS sent a draft Biological Opinion to EPA. 97
On March 2, 2011, EPA filed a motion with the Sixth Circ uit seeking an extension until October 31 for the purpose 98 of, among other things, to complete consultation. As part of that motion, EPA and NMFS filed declarations 99 committing to meet or confer by telep hone at least once weekly through April 15 to attempt to reach consensus on 100 reasonable and prudent alternatives. 101
From March 4 through April 29, these meetings and conf erence calls occurred at least once weekly, and additional 102 informal discussion occurred frequently through this time period. Additional discussion continued after April 29 103 when needed. 104
On March 9, 2011 NMFS sent EPA detailed species location information so that EPA could identify overlap with its 105 proposed general permit and the range of ESA listed species under NMFS’ jurisdiction. 106
On March 28, 2011, the U.S. Court of Appeals for the Sixth Circuit granted EPA's request for an extension of the 107 deadline for when permits will be required for pesticide polluta nt discharges into U.S. waters from April 9, 2011 to 108 October 31, 2011. 109
On April 1, 2011, EPA posted a pre-publication version of its draft final pesticide general permit for discharges of 110 pesticide applications to U.S. waters on its website. 111
On June 17, 2011 at EPA’s request, NMFS provided a draf t Opinion to EPA in order for EPA to solicit public 112
comments. 113
A complete record of this consulta tion history is on file with NMFS. 114

11510 BIOLOGICAL OPINION 116

Description of the Proposed Action 117

The U.S. Environmental Protection Agency’s Office of Water proposes to authorize point source discharges of 118 pesticide pollutants on, over or near waters of the United States by issuing a Pesticides General Permit (PGP) for 119 four use patterns: 120
1. Mosquito (larvicides and adulticides) and other flying insect pest control; 121
2. Aquatic weed, algae and pathogen control; 122
3. Aquatic nuisance animal and pathogen control; and 123
4. Forest canopy pest and pathogen control. 124
The proposed PGP will authorize discharg es of point source pesticide pollutant s on, over, or near waters of the 125 United States from these four use patterns in those States and Territories where the EPA is the permitting authority: 126 Alaska, American Samoa, District of Columbia, Guam, Id aho, Johnston Atoll, Massachusetts, Midway Island, New 127 Hampshire, New Mexico, Northern Mariana Islands, Oklahoma 1 , Puerto Rico, and Wake Island. However, NMFS’ 128 Opinion is limited to discharges that occur in the Distri ct of Columbia, Idaho, Massachusetts and New Hampshire, 129 all Indian lands and Federal lands in Delaware, Vermont and Washington State. 130
The EPA also proposes to use the PGP to authorize discharges of pesticide pollutants on, over or near waters of the 131 United States resulting from pesticide applications on Fe deral lands located in Colorado, Delaware, Vermont and 132 Washington, as well as Indian lands nationwide. The stat utory authority for the proposed action is the National 133 Pollution Discharge Elimination System (NPDES ) of the Clean Water Act (33 U.S.C. 1342 et seq .; CWA). The 134 purpose of the proposed general permit is to satisfy the goals and policies of the CWA (33 U.S.C. 1251). The EPA 135 proposes to use the PGP to authorize discharges of pesticid e pollutants on, over, or near waters of the United States 136 for five years (at the end of that five-year period, the EPA can choose to extend, suspend, revoke, or modify the 137 proposed PGP). 138
The sixth Circuit Court of Appeals defined “pesticide pollutants” as all biological pesticides and those chemical 139 pesticides that leave a residue (National Cotton Council, et al ., v. EPA, 553 F.3d 927). A “pesticide residue” 140 includes any discarded, superfluous, refuse or excess chemical pesticide 2 . The EPAs Biological Evaluation states 141 that the EPA defines pollutants requiring a CWA permit with respect to pesticides as all biological pesticides, the 142 excess of a chemical pesticide that is applied to control pests over water and then falls into the water, and the 143 residuals of chemical pesticides applied directly to the water [40 CFR 122.2]. A pesticide residue includes any 144 discarded, superfluous, refuse or excess chemical pesticide th at no longer serves a pesticide function. This definition 145 is based on the Sixth Circuit Court’s vacating of the EP A's 2006 NPDES final pesticid e rule. In that rule, EPA 146

1 Both Alaska and Oklahoma have par tial NPDES programs but are not authoriz ed to issue NPDES permits for these applications. The State of Alaska has been authorized to ad minister the NPDES program but is not obligated to assume permitting responsibilities for discharges from pesticide applications until November, 2011.
2 See Appendix A for a list of pesticides covered by the proposed general permit.11 defined pesticide residues to "include excess amounts of pesticide that do not reach a target organism and materials 147 that remain after the application has completed its in tended task" [71 FR 227]. The Court agreed with EPAs 148 definition of pesticide residue as pollutants but extended th is to include all biological pesticides because the CWA 149 specifies pollutants to includ e chemical "wastes" and biological "materials ." The distinction between the use of the 150 terms "wastes" and "materials" was recognized as Congress ' intent to treat biological and chemical pesticides 151 differently. However, the EPA argued that pesticide re sidues are not subject to the NPDES permitting program 152 because “at the time of discharge to a water of the United States, the materi al in the discharge must be both a 153 pollutant, and from a point source" [71 FR 227]. The court disagreed, concluding that requiring a temporal 154 connection to a pollutant discharge to a point source "does not follow the plain language of the Clean Water Act" 155 and "is also contrary to the purpose of the permitting program, which is “to prevent harmful discharges into the 156 Nation’s waters.” 157
The pits BE for the PGP the EPA states that it assumes that "all chemical pesticides will leave a residue once the 158 product has performed its intended purp ose.” Because of this, we define al l chemical pesticides –including 159 degradates, adjuvants, surfactants and other additives in the formulations of those pesticides– as pesticide pollutants, 160 regardless of the time frame over which the pesticide performs its intended task. 161

NMFS must also consider the effects of interrelated and interdependent actions of the proposed action. 162 Interdependent actions are actions having no independent utility apart from the proposed action [50 CFR §402-02]. 163 They are typically a consequence of the proposed action. For example, if our consultation were evaluating the 164 effects of building a road, an interdependent action would be the planned construction of homes and other structures 165 that would not be accessible without the pr esence of that road. Interrelated actions are actions that are part of a larger 166 action and depend on the larger action for their justification [50 CFR §402-02]. They are actions that are typically 167 associated with the proposed action. In the case of the PGP, NMFS has iden tified the discharges of pesticide on, 168 over or near waters of the U.S as interrelated actions becaus e the general permit authorizes the discharge of pesticide 169 residues which result from the application of pesticide to control pest species. 170
Although the proposed general permit would authorize discharges of pesticide pollutants on, over or near waters of 171 the United States under the CWA, these pesticide application uses were origin ally evaluated and registered and are 172 regulated under the Federal Insecticide, Fungicide and R odenticide Act (FIFRA) as amended by the Food Quality 173 Protection Act (FQPA) of 1996 and the Pesticide Registration Improvement Act (PRIA) of 2003. The EPA 174 administers the CWA and FIFRA through the Office of Wate r and the Office of Pesticide Programs, respectively. 175 The EPA proposes to require such discharges to be authorized under the CWA and be subject to the terms of the 176 proposed general permit but is not proposing to make any significant changes to pesticide uses currently authorized 177 and labeled under FIFRA. 178
Requiring a CWA permit for these discharges provides EPA with the authority to enforce CWA requirements that 179 may not have been addressed under FIFRA, including the ab ility of citizens to sue for permit violations. Therefore, 180 in addition to understanding the proposed PGP it is also important to understand the CWA and FIFRA and the way 181 that EPA administers each act in order to evaluate the EPA’s decision making process and determine whether the 182 EPA has insured that endangered or threatened species und er NMFS’ jurisdiction are not likely to be jeopardized or 183 designated critical habitat for those species is not likely to be destroyed or adversely modified by activities 184 authorized by the issuance of the proposed general permit. The following pages describe the proposed PGP and 185 pertinent aspects of the CWA and FIFRA. 18612 Pesticides General Permit 187 The proposed PGP would authorize point-source discharges of pesticide pollutants into a wide variety of aquatic 188 habitats from the application of pesticides on, over, or ne ar waters of the United Stat es for the four use patterns 189 described in the preceding subsection: (1) Mosquito (larvicides and adulticides) an d other flying insect pest control; 190 (2) aquatic weed, algae and pathogen control; (3) aquatic nuisance animal and pathogen control; and (4) forest 191 canopy pest and pathogen control. In this Op inion we use these terms interchangeably. 192
The proposed permit would cover all “ope rators,” who are defined as: (1) any en tity associated with the application 193 of pesticides, or who has day-to-day control of the application; or (2) any entity with control over the decision to 194 perform pesticide applications including the ability to modify those decisions. For the purposes of the proposed 195 permit, EPA defines “applicators” as those entities who perfor m the application of a pesticide or who has day-to-day 196 control of the application. “Decision makers” are defined as those entities with control over the decision to perform 197 pesticide applications including the ability to modify those d ecisions that result in a discharge to waters of the U.S. 198
This proposed permit would not affect the existing CWA exemptions for irrigation agriculture return flows or 199 agricultural stormwater runoff. These discharges are excluded from the definition of a point source under Section 200 502 (14) of the CWA. Agricultural stormwater runoff an d irrigation agriculture return flows do not require NPDES 201 permits. Therefore, runoff from irrigation agriculture return flows and agricultural stormwater are not considered in 202 this Opinion. 203
Obtaining Authorization under the PGP 204 As proposed, this proposed permit covers all “operators,” For the purposes of the proposed general permit, the EPA 205 defines “applicators” as those entities who perform the appli cation of a pesticide or who has day-to-day control of 206 the application. “Decision makers” are defined as those en tities with control over the decision to perform pesticide 207 applications including the ability to modify those decisions that result in a discharge on, over or near waters of the 208 United States. 209
The PGP eligibility requirements apply to any “operator” who discharges pesticides on, over, or near waters of the 210 United States. for the four use patterns described in the previous section. If a decision maker: (1) Is a State or 211 Federal facility; (2) is a mosquito, irrigation and aquatic we ed control or other pest control district; (3) intends to 212 discharge into designated outstanding national resource (Tier 3) waters, or; (4) has reason to believe that it will 213 exceed the annual treatment thresholds 3 established by the EPA as described in the permit, that decision maker is 214 required to submit a Notice of Intent (NOI) to obtain coverage. 215
As proposed, the NOIs will contain a section that direct s the decision maker to self-certify whether pesticide 216 application activities will overlap with the distribution of en dangered or threatened species or designated critical 217 habitat, and if so: 218

1. Whether their pesticide applications have undergone ESA Section 7 consultations or if the operator has 219 received an ESA Section 10 (a)(1)(b) permit and; 220

3 According to the EPA in their BE for the PGP, “To determ ine the appropriate thresholds that would trigger the NOI requirement, EPA’s Office of Water; Office of Pesticides, Pollution, and Toxic Subs tances; and Regional Offices, engaged in discussions with USDA, and representatives from industries including pesticide regi strants, applicators, and land managers. Based on these discussions and EPA’s best professional judgment, EPA devel oped annual treatment ar ea thresholds that differentiate between applications to small areas and those treatments to larger areas which are believed to have a greater potential for impact on Waters of the US.“13 2. To provide a list of those endangered or threaten ed species, or designated critical habitat whose 221 distributions overlap with treatment areas. 222 In addition to these two criteria, NOIs would contain information from the d ecision makers that identify: 1) The 223 name, address, type and contact information of the operator expected to discharge pollutants, and the; 2) The 224 pesticide use patterns and planned locations of these applications. The decision maker would be authorized to 225 discharge pesticide pollutants by the proposed general permit no earlier than 10 days after EPA posts a receipt of a 226 complete and accurate NOI. EPA has not yet expl ained how it will evaluate these NOIs for accuracy. 227

Other decision makers who do not ex pect to exceed the annual treatment thresholds, but otherwise meet the 228 eligibility requirements, would be automatically authorized to discharge pesticides on, over or near waters of the 229 United States without being required to submit an NOI. Ho wever, they would still be subject to the terms of the 230 proposed permit. If a decision maker that was previously not required to submit an NOI discovers that they will 231 exceed a treatment threshold, that deci sion maker must submit an NOI at least 10 days prior to exceeding the 232 threshold in order to be authorized by the proposed permit. The proposed annual treatment area thresholds for the 233 four use patterns under this permit are listed in Table 1. 234

Calculations of total treatment areas are to include the area of the applications made to waters of the United States 235 and conveyances at the time of pesticide application. Individual applications for mosquito and other flying insect 236 pest control or forest canopy pest control are cumulative on an annual basis. That is, if the total cumulative annual 237 treatment area for all application is to exceed any treatment threshold, a decision maker must file an NOI. 238
This is not the case for aquatic weed an d algae control or aquatic nuisance animal control. For these use patterns, the 239 application areas are not considered cumulative. That is, a decision maker may make multiple pesticide applications 240 onto an aquatic habitat, but as long as no single app lication exceeds a treatment thre shold, that decision maker 241 would not be required to file an NOI. 242

Timing 243 Any decision maker that meets an NO I requirement threshold must submit an NOI by January 9, 2012. However, 244 any discharges to waters of the United States made by that decision maker before that date would be eligible for 245 coverage under the permit. Decision makers requesting firs t-time coverage under the PGP must wait 30 days before 246 discharging pesticides. If a decision maker expects to treat an area not identified in the previous NOI, that decision 247 maker must submit an NOI at least 10 days before discharging. That operator would be authorized by the PGP no 248 earlier than 10 days after EPA posts r eceipt of the complete and accurate NOI. Unless there is a change in location 249 or use pattern, one NOI suffices for the five year duratio n of the permit. The NOI does not contain any requirement 250 for notification of which pesticide produc t may be used or the exact location or timing of each individual discharge. 251

252

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254

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25714 Table 1. Proposed Annual Area Thresholds Required for Decision makers to File NOIs Mosquitoes and Other Flying Insect Pests 1 6,400 acres of treatment area (adulticides) 640 acres (larvicides) Aquatic Weed and Algae Control 2

In Water 80 acres of treatment area At Water's Edge 20 linear miles of treatment area Aquatic Nuisance Animal Control 3

In Water 80 acres of treatment area At Water's Edge 20 linear miles of treatment area Forest Canopy Pest Control 4 6,400 acres of treatment area All Federal and State Agencies with a responsibility to contro l mosquitoes for public health, nuisance control or animal welfare, as well as Mosquito Control Districts (or similar Pest Contro l Districts), are required to file NOIs regardless of treatment area. All Federal and State Agencies with a res ponsibility to control aquatic nuisance vegeta tion, as well as Weed Control Districts (or similar Pest control Districts), are required to file NOIs regardless of treatment area. The control of nuisance aquatic animals usua lly requires that their treatment covers entire or large portions of water bodies. All Federal and State Agencies with a respons ibility to control aquatic nuisance animal s are required to file NOIs regardless of treatment area. Forest canopy pest suppression programs ar e designed to aerially blanke t large tracts of terrain, throughout which operators may not be able to see waters of the United States beneath the ca nopy. All Federal and State Agencies with a responsibility to cont rol forest canopy pests are required to file NOIs regardless of treatment area.

Emergencies 258 The PGP allows for immediate pesticide pollutant di scharges for declared pest emergency situations 4 . There are four 259 types of exemptions of Federal and State Agencies for use of pesticides under emergency conditions: specific, 260 quarantine, public health and crisis exemptions. This exem ption is based on a rule under Section 18 of FIFRA. 261

1. Specific exemption . A specific exemption may be authorized in an emergency condition to avert: 262

a. A significant economic loss, or; 263

b. A significant risk to: 264

i. Endangered species, 265

ii. Threatened species, 266

iii. Beneficial organisms, or 267

iv. The environment. 268

2. Quarantine exemption . A quarantine exemption may be authorized in an emergency condition to control 269 the introduction or spread of any pest that is an invasive species, or is otherwise new to or not theretofore 270 known to be widely prevalent or distributed within and throughout the United States and its territories. 271

4 51 FR 1902, Jan. 15, 1986, as amended at 71 FR 4495, Jan. 27, 2006 http://frwebgate.access.gpo.gov/cgi bin/getpage.cgi?position=all&page=4495&dbname=2006_register15 3. Public health exemption . A public health exemption may be authorized in an emergency condition to 272 control a pest that will cause a significant risk to human health. 273

4. Crisis exemption . A crisis exemption may be utilized in an emergency condition when the time from 274 discovery of the emergency to the time when the pesticide use is needed is insufficient to allow for the 275 authorization of a specific, quarantine or public health exemption. 276
In these cases all decision makers must file an NOI no later than 30 days afte r beginning a discharge in response to a 277 declared pest emergency. 278

Outstanding National Resource Waters (Tier 3) 279 The PGP authorizes pesticide pollutant discharges into designated Tier 3 waters. States, Territories or Tribes 280 designate outstanding national resource waters “Tier 3” and they generally include the highest quality waters of the 281 United States The current version of the proposed general permit requires that any discharges to these waters require 282 an NOI along with an explanation of why such discharges are necessary. The proposed general permit states: 283
“Except for pesticide applications that do not degrade water quality or only degrade water quality 284 on a short-term or temporary basis, you are not eligible for coverage under this permit for 285 discharges from a pesticide application to waters desi gnated by a state, territo ry, or tribe as Tier 3 286 (Outstanding National Resource Waters) for antideg radation purposes under Title 40 of the Code 287 of Federal Regulations (CFR) 131.12(a)(3) (a list of Tier 3 waters in geographic areas covered 288 under this permit is on EPA’s website at www.epa.gov/npdes/pesticides ).” 289 The EPA has not defined what is meant by pesticides applications that “do not degrade water quality or only degrade 290 water quality on a short-term or temporary basis,” nor is th ere a list of designated Tier 3 waters on the website listed 291 in the proposed general permit as of the date of this Opinion. 292

The EPA’s rationale is as follows: 293 “In some cases, in order to protect Tier 3 water qu ality (e.g., from invasive species) or to protect 294 public health (e.g., from mosqu ito-borne illness outbreak s), pesticide application may be necessary 295 to Tier 3 waters. The CWA says th at WQS’ [Water Quality Standards] shall be such as to protect 296 the public health and welfare, enhance the quality of the water and serve the purposes of the act.’ 297 The national interpretation with respect to the Outstanding National Resource Water (ONRW) 298 provision of the antidegradation policy is that it means no new or increased discharges. The only 299 exception to this is discussed in the preamble to the water quality standards regulation to indicate 300 that States may allow some limited activities whic h result in temporary and short-term changes in 301 water quality. The preamble further discusses the rationale for why we revised the wording in the 302 ONRW paragraph of the regulation. It clearly indi cates that the change was made to allow for 303 these temporary activities to occur and did not extend the notion of ‘significant’ changes to 304 ONRW waters.” 305 When a decision maker expects to discharge pesticide pollutants into any Tier 3 water, that decision maker must 306 submit an NOI at least 10 days before discharging unless these discharges are in response to a designated pest 307 emergency. In such a case, the decision maker must submit an NOI no later than 30 days after discharging, but no 308 earlier than January 9, 2012. For discharges made into Tier 3 waters not in response to declared pest emergencies, 309 the operator would be authorized unde r the proposed general permit 10 days afte r EPA posts receipt of the complete 310 and accurate NOI. Operators discharging into Tier 3 waters in response to a designated pest emergency would be 311 authorized immediately. 31216 Any decision maker that expects to disc harge into any Tier 3 water not specifi cally identified in their most recently 313 submitted NOI must submit an NOI at least 10 days before discharging into the newly identified Tier 3 water. That 314 operator would be authorized under the proposed general permit no earlier than 10 days after EPA posts receipt of 315 the new complete and accurate NOI. These requirements do not apply if such Tier 3 discha rges are in response to a 316 declared pest emergency, in which case the emergency discharge NOI requirements mentioned previously would 317 apply. 318

Protective Measures 319
The EPA proposes several measures intended to minimize any environmental effects resulting from these 320 discharges, including: the identification of overlap of endangered or threatened species, or designated critical habitat 321 and pesticide applications in the NOI process, technology based effluent limitations, compliance with existing water 322 quality standards, decision maker self-reporting of adverse incidents and annual reporting. 323

The NOI Process 324 As mentioned before, decision makers who are to exceed on e or more of the annual treatment area thresholds must 325 file an NOI. Also, irrigation and aquatic weed control or ot her pest control districts, Federal agencies, State facilities 326 and those intending to discharge into designated Tier 3 wa ters must file NOIs. The NOIs are to contain a section 327 where the decision maker is to self-certify whether its pesticide application activities will overlap with the 328 distribution of listed species or designated critical habitat, and if so, must state: 1) if these applications have 329 undergone ESA Section 7 consultations or received an ESA Section 10 permit and, 2) which of these endangered or 330 threatened species, or designated critical habitat overlap with treatment areas. In addition to ESA listed species 331 concerns, NOIs contain information from the decision makers that identify: 1) The name , address, type and contact 332 information of the operator expected to discharge pollutants, and; 2) Pesticide use patterns and planned locations of 333 these applications. The proposed general permit would cover the decision maker no earlier than 10 days after EPA 334 posts a receipt of a complete and accurate NOI. Decision makers requesting first-time coverage under the PGP must 335 wait 30 days before discharging pesticides. 336

Technology Based Effluent Limitations 337 Operators would be required to implement control measures to minimize the discharge of pesticide pollutants to 338 waters of the United States through the use of technology based effluent limitations to the extent technologically 339 available and economically achievable and practicable. All operators must: 340

1. To the extent determined by the decision maker, use only the amount of pesticide and frequency of pesticide 341 applications necessary to control the target pest, usin g equipment and application procedures appropriate for 342 this task. 343

2. Maintain pesticide application equipment in proper operating condition, including requirements to calibrate, 344 clean and repair such equipment and prevent leaks, spills or other unintended discharges. 345

3. Assess weather conditions in the treatment area to insure application is consistent with all applicable Federal 346 requirements. 347

Pesticide Management Measures 348 Decision makers must minimize the discharge of pesticides through the use of pesticide management measures. 349 Pesticide management measures are defined as: “any practice used to meet the effluent limitations that comply with 350 manufacturer specifications, industry standards and recommended industry practices related to the application of 35117 pesticides, relevant legal requirements and other provisio ns that a prudent operator would implement to reduce or 352 eliminate pesticide pollutant discharges to waters of the United States To the extent any decision maker determines 353 the amount of pesticide or frequency of pesticide application, the decision maker must use only the amount of 354 pesticide and frequency of pesticide application necessary to control the target pest. Any operator must review or 355 modify pest management measures if: 356

1. An unauthorized discharge occurs 357

2. Operators become aware that the meas ures are not sufficient to meet applicable water quality standards 358

3. Monitoring activities indicate a failure to: 359

a. Use the amount of pesticide and frequency of pesticide application necessary to control the target 360 pest, using equipment and application procedures appropriate for this task 361

b. Maintain pesticide application equipment in pr oper operating condition by calibrating, cleaning 362 and repairing such equipment and preventing leaks, spills or other unintended discharges 363

c. Assess weather conditions 364

4. An inspection by EPA, State, Tribal or local entities reveal modifications are necessary to meet applicable 365 water quality standards 366

5. An operator is made aware of an adverse incident 367 An operator must make such changes before or –if not practicable– as soon as possible before discharging again. 368
Additional Pesticide Management Measures fo r Decision Makers Required to Submit NOIs 369 In addition to these pesticide management measures, all decision makers who are required to submit NOIs must also 370 implement the following pesticide management measures. 371
Mosquito and Other Flying Insect Pest Control 372
1. Identify the Problem 373
Prior to the first pesticide application, and at least once each calendar year thereafter prior to the first pesticide 374 application for that calendar year , for each pest management area 5 , decision makers must do the following: 375

 Establish densities for larval and adult mosquito or flying insect pest populations or identify environmental 376 condition(s), either current or based on hist orical data, to serve as action threshold(s) 6 for implementing 377 pest management measures; 378

5 In its draft permit, the EPA defines Pest Management Area as “ The area of land, including any water, for which an operator has responsibility for and is authorized to conduct pest management ac tivities as covered by this perm it (e.g., for an operator tha t is a mosquito control district, the pest management area is the total area of the district).”

6 Action Threshold – the point at which pest populations or environmental conditions cannot be tolerate d necessitating that pest control action be taken based on economic, hum an health, aesthetic, or other effects. An action threshold may be based on curre nt and/or past environmental factors that are or have been demonstrat ed to be conducive to pest emergence and/or growth, as well a s past and/or current pest presence. Action thresholds are those conditions that indicate both the need for control actions and t he proper timing of such actions.18  Identify target pest(s) to develop pest management measures based on developmental and behavioral 379 considerations for each pest; 380

 Identify known breeding sites for source reduction, larval control program, and habitat management; 381

 Analyze existing surveillance data to identify new or un identified sources of mosquito or flying insect pest 382 problems as well as sites that have recurring pest problems, and; 383

 In the event there are no data for the pest manageme nt area in the past calenda r year, use other available 384 data as appropriate to m eet the permit conditions. 385 2. Pest Management Options 386
The decision maker must evaluate the following management options, considering impact to water quality, impact to 387 non-target organisms, feasibility and cost effectiveness: 388

 No action 389

 Prevention 390

 Mechanical or physical methods 391

 Cultural methods 392

 Biological control agents 393

 Pesticides 394

3. Pesticide Use 395

Decision makers must: 396

 Conduct larval and/or adult surveillance in an area that is representative of the pest problem or evaluate 397 existing larval surv eillance data, environmental conditions, or data from adjacent area prior to each 398 pesticide application to assess the pest management area and to determine when the action threshold(s) is 399 met; 400

 Reduce the impact on the environment and on non-target organisms by applying the pesticide only when 401 the action threshold(s) has been met; 402

 In situations or locations where practicable and feasible for efficaciou s control, use larvicides as a preferred 403 pesticide for mosquito or flying insect pest control wh en the larval action threshold(s) has been met, and; 404

 In situations or locations where larvicide use is not practicable or feasible for efficacious control, use 405 adulticides for mosquito or flying insect pest control when the adult action threshold(s) has been met. 406
Aquatic Weed, Algae and Pathogen Pest Control 407
1. Identify the Problem 408
Prior to the first pesticide application, and at least once each calendar year thereafter prior to the first pesticide 409 application for that calendar y ear, for each pest management area decision makers must: 410

 Identify areas with pest problems and characterize the extent of the probl ems, including, for example, water 411 use goals not attained (e.g. wildlife habita t, fisheries, vegetation and recreation); 412

 Identify target pest(s); 413

 Identify possible factors causing or contributing to the pest problem (e.g., nutrients, invasive species, etc); 414

 Establish any pest-and site-specific action threshold, and; 41519 

###  In the event there are no data for the pest manageme nt area in the past calenda r year, use other available 416 data as appropriate to m eet the permit conditions. 417
2. Pest Management Options 418
The decision maker must evaluate the following management options, considering impact to water quality, impact to 419 non-target organisms, feasibility and cost effectiveness: 420

 No action 421

 Prevention 422

 Mechanical or physical methods 423

 Cultural methods 424

 Biological control agents 425

 Pesticides 426

3. Pesticide Use 427

Decision makers must: 428

 Conduct surveillance in an area that is representative of the pest problem prior to each pesticide application 429 to assess the pest management area and to determine when the action threshold(s) is met, and; 430

 Reduce the impact on the environmen t and non-target organisms by applying the pesticide only when the 431 action threshold has been met. 432
Animal Pest and Pathogen Control 433
This part applies to discharges from the application of pesticides for control of animal pests as defined in Part 1.1.1. 434
1. Identify the Problem 435
Prior to the first pesticide application, and at least once each calendar year thereafter prior to the first pesticide 436 application for that calendar y ear, for each pest management area decision makers must: 437

 Identify areas with pest problems and characterize the extent of the probl ems, including, for example, water 438 use goals not attained (e.g. wildlife habita t, fisheries, vegetation and recreation); 439

 Identify target pest(s); 440

 Identify possible factors causing or contributing to the problem (e.g., nutrients, invasive species); 441

 Establish any pest-and site-specific action threshold, and; 442

 In the event there are no data for the pest manageme nt area in the past calenda r year, use other available 443 data as appropriate to m eet the permit conditions. 444
2. Pest Management Options 445
The decision maker must evaluate the following management options, considering impact to water quality, impact to 446 non-target organisms, feasibility and cost effectiveness: 447

 No action 448

 Prevention 449

 Mechanical or physical methods 45020  Cultural methods 451

 Biological control agents 452

 Pesticides 453

3. Pesticide Use 454

Decision makers must: 455

 Conduct surveillance in an area that is representative of the pest problem prior to each application to assess 456 the pest management area and to determine when the action threshold(s) is met, and; 457

 Reduce the impact on the environment and non-target organisms by evaluating site restrictions, application 458 timing and application method in add ition to applying the pesticide only when the action threshold(s) has 459 been met. 460
Forest Canopy Pest and Pathogen Control 461
1. Identify the Problem 462
Prior to the first pesticide application, and at least once each calendar year thereafter prior to the first pesticide 463 application for that calendar y ear, for each pest management area decision makers must: 464

 Establish any pest-and site-specific action threshold; 465

 Identify target pest(s) to develop pest management measures based on developmental and behavioral 466 considerations for each pest; 467

 Identify current distribution of the target pest and assess potential distribution in the absence of pest 468 management measures, and; 469

 In the event there are no data for the pest manageme nt area in the past calenda r year, use other available 470 data as appropriate to m eet the permit conditions. 471
2. Pest Management Options 472
The decision maker must evaluate the following management options, considering impact to water quality, impact to 473 non-target organisms, feasibility and cost effectiveness: 474

 No action 475

 Prevention 476

 Mechanical or physical methods 477

 Cultural methods 478

 Biological control agents 479

 Pesticides 480

3. Pesticide Use 481

The decision maker must: 482

 Conduct surveillance in an area that is representative of the pest problem prior to each application to assess 483 the pest management area and to determine when the pest action threshold is met; 48421  Reduce the impact on the environment and non-target organisms by evaluating the restrictions, application 485 timing, and application methods in ad dition to applying the pe sticide only when the action threshold(s) has 486 been met, and; 487

 Evaluate using pesticides against the most susceptible developmental stage. 488

Water Quality Based Effluent Limitations 489 All operators would be required to control discharges to meet applicable numeric and narrative State, Territory, or 490 Tribal water quality standards. If at any time the pe rmittee becomes aware, or the EPA determines, that the 491 discharge causes or contributes to an excursion of appli cable water quality standards, the permittee must take 492 corrective action. 493

Pesticide Discharge Management Plan (PDMP) 494 Decision makers that exceed NOI thresholds (except for thos e made in response to a declared pest emergency) and 495 are “large entities” must prepare a PDMP to document th e selection and implementation of the control measures 496 employed to comply with the effluent limitations described above. The permit defines “large entities” as: (1) Any 497 public entity that serves a populati on greater than 10,0 00, or; (2) A private enterp rise that exceeds the Small 498 Business Administration size standard as identified at: http://www.sba.gov/content/table-small-business-size499 standards. Decision makers are required to retain a copy of the current PDMP, along with all supporting documents. 500 These materials must be readily available upon request. The following information must be provided in the PDMP: 501

1. Pesticide discharge management team information 502

2. Problem identification 503

3. Pest management options evaluation 504

4. Spill and adverse incident response procedures 505

5. Documentation to support eligibility considerations under other Federal laws 506

6. Signature requirements. 507

Record Keeping and Annual Reports 508 All operators must keep records of: 509

1. Adverse incident reports 510

2. Any rationale for not reporting incidents as adverse 511

3. A copy of corrective action determinations 512

4. A copy of any spill or other non-permitted discharges 513 In addition to the record keeping requirements for all operato rs, any decision maker that is not a “large entity” and is 514 required to submit an NOI must also keep records of: 515

1. A copy of the NOI and any correspondence with EPA about the NOI 516

2. Documentation of equipment calibration (only if the decision maker is the applicator) 517

3. Information on each treatment area 518 Any decision maker that is a “large entity” and is re quired to submit an NOI must also keep records of: 51922 1. A copy of the NOI and any correspondence with EPA about the NOI 520

2. A copy of the PDMP 521

3. A copy of annual reports submitted to EPA 522

4. Documentation of equipment calibration (only if the decision maker is the applicator) 523

5. Information on each treatment area 524 Any decision maker that is a “large entity” and is required to submit an NOI must also submit an annual report to 525 EPA. The annual report must contain: 526

1. Operator contact information 527

2. NPDES permit tracking number 528

3. For each treatment area: 529

a. Description of the treatment area 530

b. Identification of any waters receiving discharged pesticides 531

c. Pesticide use patterns 532

d. Total amount by application method of each pesticide product 533

e. Whether this pest control activity was addressed in the operator’s PDMP prior to pesticide 534 application 535

f. Any adverse incidents and a description of any corrective actions 536

Permit Inspections and Oversight 537 The operator would be required to allow EPA or an authorized representative to: 538

1. “Enter the premises where a regulated facility or activity is located or conducted, or where records must be 539 kept under the conditions of the permit” 540

2. “Have access to and copy, at reasonable times, any reco rds that must be kept und er the conditions of the 541 permit” 542

3. “Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), 543 practices, or operations regulated or required under the permit” 544

4. “Sample or monitor at reasonable tim es, for the purposes of assuring permit compliance or as otherwise 545 authorized by the Clean Water Act, any subs tances or parameters at any location” 546

Monitoring 547 All operators would be required to monitor: 548

1. The amount of pesticide and frequency of pesticide app lications necessary to control the target pest, using 549 equipment and application procedur es appropriate for this task 550

2. Pesticide application activities to insure pesticide app lication equipment is maintained in proper operating 551 conditions by calibrating, cleaning and repairing such equipment and preventing leaks, spills or other 552 unintended discharges 55323 3. Weather conditions in the treatment area to insure app lication is consistent with all applicable Federal 554 requirements 555 If a reportable spill occurs 7 , the operator must contact the National Resp onse Center immediately. The operator must 556 document and retain information on the spill within 30 days. 557
The permit would also require visual monitoring assessments for adverse incidents. These visual assessments of the 558 application site must be performed du ring any operator post-appli cation surveillance or effi cacy check or during any 559 pesticide application when safety and feasibility allows. Adverse incidents are defined in the permit as follows 560 (emphasis is EPA’s): 561 An unusual or unexpected incident that an operator has observed upon inspection or of which the operator 562 otherwise becomes aware, in which: 563

1. There is evidence that a person or non-target organism has been exposed to a pesticide residue, and 564

2. The person or non-target organism suffered a toxic or adverse effect. 565 The phrase toxic adverse effects includes effects that occur within waters of the United States on non-target 566 plants, fish or wildlife that are unus ual or unexpected as a result of exposure to a pesticide residue, and may 567 include: 568

a. Distressed or dead juvenile and small fishes 569

b. Washed up or floating fish 570

c. Fish swimming abnormally or erratically 571

d. Fish lying lethargically at wate r surface or in shallow water 572

e. Fish that are listless or nonresponsive to disturbance 573

f. Stunting, wilting or desiccation of non-target submerged or emergent aquatic plants 574

g. Other dead or visibly distressed non-target aquatic organisms 575 Any operator that has observed or been made aware of any adverse incident must notify EPA within 24 hours of that 576 operator becoming aware of such an incident. If an operator is unable to notify EPA within 24 hours that operator 577 must do so as soon as possible and provide a rationale as to why the incident could not be reported earlier. The 578 operator must then provide a written report to EPA within 30 days. 579
If an operator observes or is otherwise made aware of an adverse incident involving a listed resource, that operator 580 must immediately contact either USFW S or NMFS depending on whose jurisdiction the listed resource is under. 581

Corrective Actions 582
Situations Requiring Revision of Control Measures 583 If any of the following situations occur, operators must review and revise the evaluation and selection of their 584 control measures as necessary to insure that the situation is eliminated and will not be repeated in the future: 585

1. An unauthorized discharge associat ed with the application occurs 586

7 See; 40 CFR 110, 40 CFR 117, 40 CFR 30224 2. The operator becomes aware that its control measures are not sufficient to meet applicable water quality 587 standards; 588

3. Monitoring activities indicate that: 589

a. The operator failed to use the lowest amount of pesticide product per application and optimum 590 frequency of pesticide applications necessary to control the target pest 591

b. The operator failed to perform regular maintena nce activities to reduce unintended discharges of 592 pesticides 593

c. The operator failed to maintain pesticide application equipment in proper operating condition 594

d. An inspection or evaluation by an EPA official, or local, State, Territorial or Tribal entity 595 determines that modifications to the control m easures are necessary to meet the non-numeric 596 effluent limits 597

e. The operator observ es or are otherwise made aware of an adverse incident 598 If an operator determines that changes to its control meas ures are necessary, such changes must be made before the 599 next pesticide application if practicable, or if not, as soon as possible thereafter. 600

Effect of Corrective Action 601 The occurrence of a situations requiring revision of cont rol measures (as defined above) may constitute a violation 602 of the permit. Correcting the situation does not necessar ily absolve the operator of liability. The EPA will consider 603 the appropriateness and promptness of corrective action in determining enforcement responses to permit violations. 604 The EPA or a court may impose additional re quirements and schedules of compliance. 605
Limitations on Coverage 606

Impaired Waters 607 States, Territories and Tribes are requir ed to develop lists of impaired wate rs under section 303(d) of the CWA. 608 These impaired waters do not meet water quality standards that the States, Territories and Tribes have set for them. 609 The proposed PGP would not authorize the discharge of a pes ticide pollutant to any impaired Water of the U.S. that 610 is impaired by the specific pesticide, or degradates of the pe sticide, to be permitted to be discharged. In this case, the 611 operator would have to obtain coverage under an individual permit for such a discharge or chose some other means 612 of pest management. 613

Discharges Covered under other Permits 614 If a proposed discharge is already authorized under another permit, the operator is ineligible for coverage by the 615 PGP permit. If the intended discharge was included in a permit that has been or is in the process of being denied, 616 terminated or revoked by EPA in the past five years, the proposed discharge is ineligible for coverage under this 617 permit. 618

619

62025 Approach to the Assessment 621

Section 7(a)(2) of the Endangered Speci es Act, as amended (16 U.S.C. 1536(a )(2)) requires Federal agencies, in 622 consultation with NMFS and U.S. Fish and Wildlife Service (the Services), to insure that any action they authorize, 623 fund, or carry out is not likely to jeop ardize the continued existence of any endangered or threatened species or 624 result in the destruction or adverse modification of critical habitat of endangered or threatened species. Section 625 7(a)(2) of the ESA also requires the Services and Federal action agencies to use the be st scientific and commercial 626 data available during those consultations. 627

Overview of NMFS’ Assessment Framework 628 NMFS uses a series of sequential analyses to determine wh ether Federal agencies have insured that actions they 629 authorize, fund, or carry out are not lik ely to jeopardize the continued existence of endangered or threatened species 630 under its jurisdiction, or to critical habitat that has be en designated for those species. The first analysis identifies 631 those physical, chemical or biotic aspects of proposed actions that are likely to have individual, interactive, or 632 cumulative direct and indirect effect on the environment (we use the term “ potential stressors” for these aspects of 633 an action). As part of these analyses, we identify the spatia l extent of any potential stressors and recognize that the 634 spatial extent of those stressors may change with time (the spatial extent of these stre ssors is the “action area” for a 635 consultation). During the consultation, we examine any me asures an action agency proposes to use to reduce or 636 eliminate the number stressors or their intensity. 637
The second analysis determines whether endangered species , threatened species, or designated critical habitat are 638 likely to occur in the same space and at the same time as these potential stre ssors. If we conclude that such co639 occurrence is likely, we then try to estim ate the nature of that co-occurrence (t hese represent our exposure analyses). 640 In this step of our analyses, we try to identify the number , age (or life stage), and gender of the individuals that are 641 likely to be exposed to an Action’s effects and the populations or subpopulations those individuals represent. During 642 the consultation, we examine any measures an action agency pr oposes to use to insure that endangered or threatened 643 species or designated critical habitat are not likely to be ex posed to particular stressors or to reduce the intensity, 644 duration, frequency, or geographic extent of any exposure. 645
Once we identify which listed resources (endangered and th reatened species and designated critical habitat) are 646 likely to be exposed to potential stressors associated with an action and the nature of that exposure, in the third step 647 of our analyses we examine the scien tific and commercial data available 8 to determine whether and how those listed 648 resources are likely to respond given their exposure (these represent our response analyses). In the final steps of our 649 analyses we establish the risks those responses pose to ESA listed species and designated critical habitat (these 650 represent our risk analyses). 651 Application of this Approach to this Consultation 652 In this case, we have consulted with, and provided assistance to, the EPA so that they can insure that discharges of 653 pesticides pollutants that would be authorized by their proposed PGP is not likely to jeopardize the continued 654 existence of endangered or th reatened species under NMFS’ jurisdiction, or to destroy or adversely modify critical 655

8 Although Section 7(a)(2) of the Endangered Species Act of 1973, as amended, requires us to use the best scientific and commercial data available, at this stage of our analyses, we c onsider all lines of evidence, including the best scientific and commercial data as well as traditi onal ecological knowledge from Native Ameri can tribes and Pacific Islanders..26 habitat that has been designated for those species. Howe ver, because of the spatial and temporal scope of the 656 proposed PGP, we were faced with substantial uncerta inty about the number, location, timing, frequency and 657 intensity of the discharges that would be authorized by the permit, the formulations associated with the discharges 658 and the methods operators or applicators would employ during those discharges. The magnitude of this uncertainty 659 made it impossible for us to assess whether or to what degree EPA had insured that specific discharges complied 660 with the requirements of Section 7(a)(2) of the ESA. 661
Instead, we treated EPA’s proposed permit as a “pro gram” that would authorize a wide array of activities 662 (discharges of pesticide pollutants) and asked whether and to what degree the EPA structur ed this “program” so that 663 it could insure that individual discharges and the collection of discharges were not likely to jeopardize the continued 664 existence of endangered and threatened species under NMFS’ jurisdiction or result in the destruction or adverse 665 modification of critical habitat that has been designated for those species. Here, “program structure” refers to the 666 decision-making processes, applications of standards and criteria (including standards of information and treatment 667 of uncertainty), feedback loops (through monitoring an d enforcement), and controls (including permit conditions) 668 that agencies employ to ensure that agency decisions to author ize fund, or carry out speci fic actions or a class of 669 actions are likely to fulfill the mandates of the program befo re the agency authorizes, funds, or carries out those 670 actions. Generally, an agency’s decision-making process involves formal procedures (such as, regulatory procedures 671 and public noticing requirements), information standards (that is, agency “guidelines,” and the judgments agency 672 personnel make when they confront conflicting information and make judgments in the face of uncertainty). 673
When we conduct programmatic examinations of proposals such as the PGP, we ask whether or to what degree the 674 Federal action agency (in this case, th e EPA) has constructed a decision-making process that would consider the 675 information, standards and criteria that NMFS would normally consider during consultations on specific actions. We 676 also ask whether that decision-making process is likely to produce outcomes that would reliably prevent or minimize 677 endangered or threatened species under NMFS’ jurisdiction and those species’ designated critical habitat from being 678 exposed to physical, chemical, or biotic stressors that would directly or indi rectly reduce the reproductive success of 679 endangered or threatened individual s increase the extinction risks of the population(s) those individual might 680 represent, or increase the extinction risks of the species those popul ations comprise. Specifically, we ask: 681
1. Has the EPA structured the proposed PGP so that the EPA will know or be able to reliably estimate the 682 probable individual and cumulative effects of the discharg es of pesticide pollutants on, over or near waters 683 of the U.S.? For example, has the EPA structured the PGP so that the EPA will know or be able to reliably 684 estimate the probable number of discharges that would be authorized by the program? Has the EPA 685 structured the proposed PGP so that the EPA will know or be able to reliably estimate the probable location 686 and timing of the discharges of pesticide pollutants that would be authorized by the program? 687
2. Has the EPA structured the proposed PGP so that the EPA will know or be able to reliably estimate the 688 physical, chemical, or biotic stressors that are likely to be produ ced as a direct or indirect result of the 689 discharges of pesticide pollutants that would be authorized by the PGP (that is, the stressors produced by 690 the actual discharges of pesticide pollutants on, over, or near waters of the U.S.)? 691
Alternatively, has the EPA structured the PGP so that the EPA will know or be able to determine reliably 692 whether or to what degree physical, chemical, or biotic stressors that are not authorized by the PGP have 693 been produced as a direct or indirect result of the discharges of pesticide pollutants that would be 694 authorized by the permit; or, has the EPA’s Office of Water structured the PGP so that the EPA will know 695 or be able to reliably estimate that discharges of pesticide pollutants that would be authorized by the 69627 proposed general permit have not occurred in concentrations, frequencies, or for durations that exceed the 697 authorization of the proposed permit? 698
3. Has the EPA structured the PGP so that the EPA will know or be able to determine reliably whether or to 699 what degree operators, applicators, or decision makers have complied with the conditions, restrictions or 700 mitigation measures the proposed general permit requires when they discharge pesticide pollutants on, over 701 or near waters of the U.S.? 702
4. Has the EPA structured the PGP so that the EPA will know or be able to reliably estimate whether or what 703 degree specific endangered or threaten ed species or designated critical ha bitat are likely to be exposed to 704 (a) potentially harmful concentrations of the pesticide pollutants the proposed general permit would 705 authorize to be discharged on, over, or near waters of the U.S.; (b) Potentially harmful mixtures of the 706 pesticide pollutants the proposed general permit would auth orize to be discharged on, over, or near waters 707 of the U.S., or; (c) to the ecological consequences of discharging pesticide pollutants on, over, or near 708 waters of the U.S.? 709
5. Has the EPA structured the PGP so that the EPA will continuously identify, collect, and analyze any 710 information that suggests that the discharges of pestic ide pollutants on, over, or near waters of the United 711 States may have exposed endangered or threatened sp ecies or designated critical habitat to pesticide 712 pollutants at concentrations, intensities, durations, or frequencies that are known or suspected to produce 713 physical, physiological, behavioral, or ecological responses that have potential individual or cumulative 714 adverse consequences for individual organisms or constituent elements of critical habitat? 715
6. Has the EPA structured the PGP so that the EPA will employ an analytical methodology that considers (a) 716 the status and trends of endangered or threatened sp ecies or designated critical habitat; (b) the demographic 717 and ecological status of populations and individuals of those species given their exposure to pre-existing 718 stressors in different drainages and watersheds; (c) the direct and indirect pathways by which endangered or 719 threatened species or designated cr itical habitat might be exposed to the discharges of pesticide pollutants 720 on, over, or near waters of the U.S.; and (d) the physical, physiological, behavior, sociobiological, and 721 ecological consequences of exposing endangered or threatened species or designated critical habitat to 722 pesticide pollutants at concentrations, durations, or frequencies that are known or suspected to produce 723 physical, physiological, behavioral, or ecological responses, given their pre-existing demographic and 724 ecological condition? 725
7. Has the EPA structured the PGP so that the EPA will be able to minimize or prevent endangered or 726 threatened species or designated critical habitat from be ing exposed to discharges of pesticide pollutants (a) 727 at concentrations, durations, or frequencies that are potentially harmful to individual listed organisms, 728 populations, or the species; (b) in mixtures that are potentially harmful to individual listed organisms, 729 populations, or the species; or (c) to ecological consequences that are potentially harmful to individual 730 listed organisms, populations, the species or Primary Constituent Elements of designated critical habitat? 731 How quickly would the EPA be able to implement preventive measures? 732
Our assessment focused on whether and to what degree th e EPA structured the PGP in ways that would prevent 733 endangered or threatened species or cr itical habitat that has been designated for those species from being exposed to 734 pesticide pollutants because exposures co mmonly trigger a cascade of events with ultimate co nsequences difficult to 735 prevent. For example, once individual pl ants and animals are exposed to a pesticide pollutant, their responses to the 736 exposure is controlled by the concentration, duration and frequency associated with the exposure, their sensitivity to 73728 the pesticide pollutant, other physical, chemical, or biotic stre ssors that they are exposed to in the same time interval, 738 their pre-existing physiological Stat e and their constitutional endowment. Becau se it is so difficult to prevent free739 ranging organisms from responding to anthropogenic stressors once they have been exposed, the most effective 740 management measures are designed to influence the exposure itself. For that reason, our assessment focuses on 741 whether and to what degree the PGP prevents endangered an d threatened species and designated critical habitat from 742 being exposed to pesticide pollutants that would be authorized by the proposed Pesticide General Permit. 743
A Federal agency’s failure to insure th at their actions comply with the requirements of Section 7(a)(2) of the ESA 744 may not be sufficient such that endangered or threatened species or designated critical habitat would necessarily be 745 adversely affected as a result of that failure. To addr ess this possibility, we supplement our assessment by assessing 746 the probable consequences of the actions that would be authorized, funded or carried out by the Federal agency’s 747 program for endangered and threatened species and critical habitat that ha s been designated for those species. 748 Specifically, we: 749
1. Examine the four use patterns that would be authorized by the proposed PGP: 1) Mosquito (larvicides and 750 adulticides) and other flying insect pest control; (2) Aquatic weed, algae and pathogen control; (3) Aquatic 751 nuisance animal and pathogen control; and (4) Forest canopy pest and pathogen control. 752
These analyses summarize (a) Each use pattern; (b) Th e geographic distribution of use patterns (including 753 geographic differences in pesticides — as formulated— used); (c) Seasonal patterns associated with the 754 different use patterns in the different geographic areas; (d) The pesticides (formulations) typically used 755 with each pattern (particularly “pesticide pollutants”); (e) Any information on application rates with the 756 different use patterns (and with different formulations); and (f) Identify those components of the 757 formulations that would constitute “pollutants.” 758
2. We determine the degree of spatial overlap betwee n use patterns, listed species and designated critical 759 habitat. 760
These analyses describe spatial overlap and any sp ecific evidence (reports or st udies) that particular 761 endangered or threatened species or designated critical habitat have been or are likely to be exposed to 762 those use patterns. However, this does not repres ent a detailed exposure analysis: we are merely 763 establishing whether or to what degree endangered or threatened species or de signated critical habitat 764 overlap, in space and time (some pesticides may be us ed when migratory species are not in an area, for 765 example). Given spatial and temporal overlap, we then have reason to ask whether or to what degree EPA’s 766 proposed PGP can insure that these species or critical habitat are not likely to be exposed. 767
3. We conducted a detailed review of the literature available on the physical, physiological, behavioral, social, 768 and ecological responses of endangered or threatenedspecies or constituent elements of critical habitat 769 given exposure to ingredients of pesticide formulations (active or otherwise), degradates or metabolites of 770 those formulations, or to the ecological effects (that is, effects resulting from changes in populations of 771 prey, predators, competitors, symbionts, etc.) of thos e formulations. Rather than discuss the literature for 772 each species, it would be equally eff ective to organize the data using sp ecies groups (for example, Pacific 773 Salmon; Sturgeon; Sea Turtles; etc.). 774

4. We summarize the probable consequences of the respon ses identified in the preceding section for 775 endangered and threatened species and designated critical habitat. Rather than discuss the literature for each 77629 species, it would be only be necessary to discuss the risks of exposing species groups (for example, Pacific 777 Salmon; Sturgeon; Sea Turtles; etc.). 778
In this Opinion, we will present the resu lts of these analyses before we present the results of our review and evaluate 779 EPA’s proposed PGP using the sequence of seven questions we identified at the beginning of this section. We use 780 the results of these combined analyses to determine whethe r and to what degree the EPA structured the PGP in ways 781 that would prevent jeopardy to endangered or threatened species or destruction or adverse modification of critical 782 habitat that has been designated for those species. 783

Evidence Available for the Consultation 784 We relied on two bodies of evidence for this consultation. We used the first body of evidence to determine whether 785 or to what degree the EPA structured th e PGP so that EPA could insure that discharges of pesticide pollutants on, 786 over, or near waters of the United States were not likel y to jeopardize the continued existence of endangered or 787 threatened species or result in the destruction or adverse modification of critical habitat that has been designated for 788 those species. After examining the proposedaction for elements that insure agai nst jeopardy, we used a second body 789 of evidence to assess the probable cons equences of PGP-authorized discharges of pesticide pollutants on, over, or 790 near waters of the United States on enda ngered or threatened species or criti cal habitat that has been designated for 791 those species. 792
To build this first body of evidence, we searched for, gathered, and analyzed published and unpublished sources that 793 examine the effectiveness of EPA’s NPDES program and whether or to what degree the program has had (1) 794 adverse consequences for natural flora and fauna that have some dependency on the quality of waters of the United 795 States or (2) adverse consequences for species that have been listed as endangered or threatened. In particular, we 796 considered information contained in EPA’s Biological Evaluation for the Envi ronmental Protection Agency’s (EPA) 797 Pesticides General Permit (PGP) and reviews of the effectiveness of the NPDES program and of existing general 798 permits. We also considered previous ESA Section 7 consultations on pesticide uses, species status reviews, listing 799 documents, recovery plans, reports on the status and tr ends of water quality, past and current research and 800 population dynamics modeling. 801
We supplemented this information by searching for NPDES compliance data in the Permit Compliance System 802 (PCS) and Integrated Compliance Information System - National Pollutant Discharge Elimination System (ICIS803 NPDES) databases 9 of EPA’s Online Tracking Information System. These databases track the number of inspections 804 and enforcement actions over five years along with the number of quarters in non compliance and the frequency of 805 effluent exceedances over three years. We collected the da ta on January 5, 2011, which contained data that were 806 current as of October 21, 2010. 807
Our search targeted general and individual permits for en tities where EPA was the permitting authority as identified 808 in the Description of the Proposed Action section of this Biological Opinion. The ICIS-NPDES query was run with 809 Compliance Status set to “on” since facilities with compliance status set to “off “ may have violations that have not 810 yet been entered into the database. The search also se lected only active permits, whic h are those designated as 811 “effective” or under “administrative continuation.” Data we re analyzed to evaluate th e compliance and enforcement 812 patterns of EPA’s existing general and individual permits. To avoid bias from permits with multiple inspections due 813

9 The PCS was the original tracking mechanism for NPDES permits an d currently includes data for 21 states. State by state, the data in PCS is being migrated into the newer ICIS-NPDES. The ICIS-NPDES currently tracks data for the remaining states not represented in PCS, U.S. territories, the Navajo Nation, and the St. Regis Tribe.30 to compliance and enforcemen t actions, the frequency data were converte d into presence/absence of inspection, 814 compliance and enfo rcement events. 815
We used a second body of evidence to assess the probab le consequences of authorizing discharges of pesticide 816 pollutants on, over, or near waters of the United States on endangered or threatened speci es or critical habitat that 817 has been designated for those species. To assemble this bo dy of information, we search ed peer-reviewed scientific 818 literature, master’s theses and doctoral dissertations, government reports and studies and reports from commercial 819 vendors. Specifically, we searched the National Library of Medicine’s Hazardous Substance Data Bank, TOXNET, 820 Toxline, EXTOXNET pesticide information profiles and EPA’s National Information System for the Regional 821 Integrated Pest Management Centers ( http://www.ipmcenters.org /Ecotox/DataAccess.cfm ) for papers on the toxicity 822 of representatives of the 171 active ingredients whose discharges would be authorized by the proposed PGP. 823
We supplemented those searches with searches of web- sites maintained by the Departments of Agriculture and 824 mosquito control authorities of the six States, territories and Indian lands that would be included in the proposed 825 PGP. We specifically focused on data in the States of Idaho, Massachusetts, and New Hampshire because those 826 States overlap greatly with the distributions of clusters of endangered and threatened species under NMFS’ 827 jurisdiction (listed species of Pacific salmon in the case of Idaho and listed sturgeon in the case of Massachusetts 828 and New Hampshire). We searched those sites for informati on on the active ingredients or formulations those States, 829 Territories, and Tribal governments employ for the four use patterns included in the PGP, data on concentrations of 830 active ingredients, degradates, and mixt ures on surface waters within the ju risdictional boundaries of those areas 831 where the EPA is the permitting authority, and data on the consequences of exposing endemic fish and wildlife to 832 those concentrations. These searches focu sed on identifying recent information on the biology, ecology, distribution, 833 status and trends of the threatened an d endangered species considered in this Opinion. We considered the results of 834 these searches based on the quality of their study design, sample sizes and study results. 835

Action Area 836

EPA has defined the action area for the PG P consultation as all waters of the United States (as defined in 40 CFR 837 122.2) in States and Territories where the EPA is the permitting authority: Alaska, American Samoa, District of 838 Columbia, Guam, Idaho, Johnston Atoll, Massachusetts, Midway Island, New Hampshire, New Mexico, Northern 839 Mariana Islands, Oklahoma, Puerto Rico and Wake Island. In addition, the action area also includes all waters of the 840 United States receiving discharges from pesticide applications on Federal lands in Colorado, Delaware, Vermont 841 and Washington, as well as Indian lands nationwide. This area includes waters from the line of ordinary low water 842 along the coast extending seaward to a distance of three miles. 843
Because endangered or threatened speci es that are under the jurisdiction of NMFS do not occur in all of these 844 geographic areas (for example, New Me xico, Oklahoma, Colorado, and many Indian lands), the Action Area for this 845 consultation encompasses the areas where the geographic areas where EPA is the permitting authority overlaps with 846 the distribution of endangered or threatened species unde r NMFS’ jurisdiction. As a result, we do not include New 847 Mexico, Oklahoma, Colorado or Indian lands that do not ov erlap with the distribution of endangered or threatened 848 species under NMFS’ jurisdiction in the Action Area for this Opinion. 849
Although degradates and metabolites of some of the pes ticide pollutants considered in this Opinion might be 850 transported more than three miles from our coastline at so me concentration, the data we would need to follow a 85131 pesticide as it is transported from a particular application si te to reservoirs in coastal waters and the open ocean are 852 not available to us. Similarly, the data we would need to trace pesticides found in the tissues of marine and coastal 853 animals back to particular terrestrial ap plications are not available. Without some data or other information, we can 854 only acknowledge the probability of this kind of transport in our Opinion; we do not extend the action area more 855 than three miles from the coast of the coastal states, territories, and possessions included in the proposed PGP. 856

Status of the Species and Critical Habitat and Environmental Baseline 857

In this section of this Opinion we desc ribe the threatened and endangered species 10 and their designated critical 858 habitat that occur in the action area and may be exposed to th e direct or indirect effects of discharges of pesticide 859 pollutants authorized by the proposed PGP. All listed species within NMFS’ jurisdiction are “aquatic” or “aquatic 860 dependent” and may occur within portions of the action ar ea. NMFS has determined that the following species and 861 critical habitat “may be affected” by EPA’s proposed PGP (Table 2). 862

Table 2. Species Listed as Threatened and Endangered and Proposed for Listing and their Designated Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed Critical Habitat.

Common Name Scientific Name Status

Cetaceans Beluga whale* (Cook Inlet) Delphinapterus leucas Endangered

Blue whale Balaenoptera musculus Endangered
Bowhead whale Balaena mysticetus Endangered
Fin whale Balaenoptera physalus Endangered Humpback whale Megaptera novaeangliae Endangered
Killer Whale (Southern Resident*) Orcinus orca Endangered North Atlantic right whale* Eubalaena glacialis Endangered
North Pacific right whale* Eubalaena japonica Endangered

Sei whale Balaenoptera borealis Endangered Sperm whale Physeter macrocephalus Endangered

Pinnipeds
Hawaiian monk seal* † Monachus schauinslandi Endangered Steller sea lion (Eastern population*) Eumetopias jubatus Threatened

10 We use the word “species” as it has been defined in section 3 of the ESA, which include “species, subspecies, and any distinct population segment of any species of verteb rate fish or wildlife wh ich interbreeds when mature (16 U.S.C. 1533)”. Pacific salmon that have been listed as endangered or threatened we re listed as “evolutionarily significant units (ESU)” which NMFS uses to identify distinct population segments (DPS) of Pacific salmon. Any ESU or DPS is a “species” for the purposes of the ESA.32 Table 2. Species Listed as Threatened and Endangered and Proposed for Listing and their Designated Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed Critical Habitat.

Common Name Scientific Name Status

Steller sea lion (Western population*) Endangered Guadalupe fur seal Arctocephalus townsendi Threatened
Spotted seal (southern population) Phoca largha Threatened

Marine Turtles Green sea turtle (Florida & Mexi co’s Pacific coast colonies)* Chelonia mydas Endangered Green sea turtle (All other areas)* Threatened

Hawksbill sea turtle* Eretmochelys imbricate Endangered
Kemp’s ridley sea turtle Lepidochelys kempii Endangered Leatherback sea turtle* (also **) Dermochelys coriacea Endangered
Loggerhead sea turtle Caretta caretta Threatened Olive ridley sea turtle (Mexico’ s Pacific coast breeding colonies) Lepidochelys olivacea Endangered
Olive ridley sea turtle (All other areas) Threatened

Marine and Anadromous Fish Atlantic salmon (Gulf of Maine)* Salmo salar Endangered

Bocaccio Sebastes paucispinis Endangered
Canary rockfish Sebastes pinniger Threatened
Pacific eulachon/smelt (Southern**) Thaleichthys Pacificus Threatened
Yelloweye rockfish Sebastes ruberrimus Threatened

Chinook salmon (California coastal *) Oncorhynchus tshawytscha Threatened Chinook salmon (Central Valley spring-run*) Threatened Chinook salmon (Lower Columbia River*) Threatened Chinook salmon (Upper Columbia River spring-run*) Threatened Chinook salmon (Puget Sound*) Threatened
Chinook salmon (Sacramento River winter-run*) Endangered Chinook salmon (Snake River fall-run*) Threatened
Chinook salmon (Snake River spring/summer-run*) Threatened
Chinook salmon (Upper Willamette River*) Threatened
Chum salmon (Columbia River*) Oncorhynchus keta Threatened33 Table 2. Species Listed as Threatened and Endangered and Proposed for Listing and their Designated Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed Critical Habitat.

Common Name Scientific Name Status

Chum salmon (Hood Canal summer-run*) Threatened

Coho salmon (Central California coast*) Oncorhynchus kisutch Endangered
Coho salmon (Lower Columbia River) Threatened
Coho salmon (Southern Oregon & Northern California coast*) Threatened
Coho salmon (Oregon coast*) Threatened
Green sturgeon (Southern*) Acipenser medirostris Threatened
Gulf sturgeon* Acipenser oxyrinchus desotoi Threatened
Shortnose sturgeon Acipenser brevirostrum Endangered

Smalltooth sawfish* Pristis pectinata Endangered
Sockeye salmon (Ozette Lake*) Oncorhynchus nerka Threatened
Sockeye salmon (Snake River*) Endangered
Steelhead (Central California coast*) Oncorhynchus mykiss Threatened
Steelhead (California Central Valley*) Threatened
Steelhead (Lower Columbia River*) Threatened
Steelhead (Middle Columbia River*) Threatened
Steelhead (Northern California*) Threatened
Steelhead (Puget Sound) Threatened
Steelhead (Snake River*) Threatened
Steelhead (South-Central California Coast*) Threatened
Steelhead (Southern California*) Endangered
Steelhead (Upper Columbia River*) Threatened
Steelhead (Upper Willamette River*) Threatened

Marine Invertebrates

Black abalone** Haliotis cracherodii Endangered

White abalone Haliotis sorenseni Endangered Elkhorn coral* Acropora palmata Threatened
Staghorn coral* Acropora cervicornis Threatened

Marine Plant34 Table 2. Species Listed as Threatened and Endangered and Proposed for Listing and their Designated Critical Habitat (Denoted by Asterisk) in the Action Area. Double Asterisks Denote Proposed Critical Habitat.

Common Name Scientific Name Status
Johnson’s seagrass* Halophila johnsonii Threatened

† Proposed for revision (74 FR 27988). 863 NMFS and the U.S. Fish and Wildlife Service have joint juri sdiction over sea turtles, gulf sturgeon and Atlantic 864 salmon. To avoid redundancy, the U.S. Fish and Wildlife Service is generally responsible for endangered and 865 threatened sea turtles above mean higher high water (when they are on their nesting beaches as opposed to when 866 they are in or beyond the surf zone) and for Gulf sturge on and Atlantic salmon when they are in fresh water (as 867 opposed to when they are in estuarine or marine water). Because the FWS is responsibl e for assessing the effects of 868 Federal actions on gulf sturgeon and Atlantic salmon while they are in fresh water and the proposed action 869 constitutes such a Federal action, the FWS is responsible for assessing the effects of EPA’s proposal on gulf 870 sturgeon, Atlantic salmon, and critical habitat that has been designated for gulf sturgeon pursuant to Section 7 (a)(2) 871 of the Act. We do not consider these species further in this Opinion. 872 Species and Critical Habitat Not Likely to be Adversely Affected by the Proposed Action 873

As described in the Approach to the Assessment , NMFS uses two criteria to identify those endangered or threatened 874 species or critical habitat that are not likely to be adversel y affected by discharges of pesticide pollutants that would 875 be authorized by the proposed PGP. The first criterion is exposure or some reasonable expectation of a co876 occurrence between one or more discharges of the pesticide pollutants that would be authorized by the proposed 877 PGP and a particular listed species or designated critical habitat. If we conclude that a listed species or designated 878 critical habitat is not likely to be exposed to those discharges through direct or indirect exposure pathways, we must 879 conclude that the critical habitat is not likely to be advers ely affected by those activities. The second criterion is the 880 probability of a response given exposure, which considers susceptibility : species that may be exposed to the 881 discharges of pesticide pollutants that would be authorized by the proposed PGP, but that exposure is not likely to 882 have adverse physical, physiological, behavioral or ecological consequences for individuals that are likely to be 883 exposed. We applied these criteria to the species listed at the beginning of this section; the subsections that 884 immediately following this introductory paragraph summarize the results of those evaluations. 885
Based upon our analyses, we concluded that many of the endangered or threatened species listed in Table 2 are 886 either not likely to be exposed to discharges of pesticide pollutants that would be authorized by the proposed PGP or 887 are not likely to respond upon being exposed to those pes ticide pollutants. Specifically, we would not expect the 888 following threatened or endangered species to respond physically, physiologically, behaviorally, or ecologically 889 given exposure to discharges associated with the proposed PGP: 890
Endangered and Threatened Marine Mammals 891 Blue whales, bowhead whales, fin whales, humpback whal es, North Atlantic right whales, North Pacific right 892 whales, sei whales, sperm whales, Guadalupe fur seals, Ha waiian monk seals, spotted seal, western population of 893 Steller sea lion, and eastern population of Steller sea lion all occur or have been reported to occur within three miles 894 of the coast of one or more of the states, territories, or possessions that are included in the proposed PGP. As a 895 result, they occur within the Action Area for this consultatio n. Nevertheless, these species are either not likely to be 896 exposed to the direct or indirect effects of the discharges that would be authorized by the proposed PGP or they are 89735 not likely to respond given exposure. 898
In North America, bowhead whales occur in the Beaufort, Bering and Chukchi Seas. Discharges associated with the 899 four use patterns authorized by the proposed PGP have no t traditionally occurred in coastal areas of the U.S. 900 portions of the Beaufort and Chukchi Seas or the freshwater rivers that drain in to the U.S. portions of the Beaufort 901 and Chukchi Seas, so bowhead whales ar e not likely to be exposed to pesticid e residues in those geographic areas. 902 Similarly, discharges of pesticide pollutants are not likely to occur in coastal areas of th e Bering Sea, although they 903 might occur in rivers that drain into the Bering Sea from the U.S. (for example, discharges associated with forest 904 treatments in the upper Yukon or Kuskokwim River basins). However, because wintering bowhead whales do not 905 appear to feed while wintering (like other large whales), they are not likely to be exposed to pesticide pollutants 906 through their diets or because of changes in the distribution or abundance of their forage base while in the Bering 907 Sea. As a result, we conclude that bowh ead whales are not likely to be exposed to the direct or indirect effects of the 908 proposed action and we will not discuss this species further in this Opinion. 909
Because they breathe air (rather than re spire through gills or similar anatomical struct ures), blue whales, fin whales, 910 humpback whales, North Atlantic right whales, North Pacifi c right whales, sei whales, sperm whales, Guadalupe fur 911 seals, Hawaiian monk seals, members of the western po pulation of Steller sea lions, members of the eastern 912 population of Steller sea lions and spotted seals would only be exposed to pesticide pollutants through their diets or 913 because of changes in the distribution or abundance of their prey (tropic expos ure). Because the distances that would 914 separate the foraging areas of these sp ecies from discharges of pesticide pollu tants are substantial and any pesticide 915 pollutants would be degraded by exposure to sunlight, microbial action, and chemical processes in the freshwater 916 ecosystems,, estuaries, and coastal areas before they would enter the diets or af fect the prey base of these species, 917 residual concentrations of those pesticide pollutants would probably be below concentrations that would have no 918 observed adverse effect on the marine ma mmals or their prey. As a result, we conclude that these species might be 919 exposed to residual concentrations of pesticide pollutants associated with the proposed PGP, but they are not likely 920 to be exposed at concentrations that are likely produce adverse physical, chemical, physiological, behavioral or 921 ecological responses in those species. As a result, these species are not likely to be adversely affected by the 922 proposed action and we will not discuss them further in this Opinion. 923
Endangered and Threatened Sea Turtles 924 Green sea turtles, hawksbill sea turtles, Kemp’s ridley sea turtles, leathe rback sea turtles, loggerhead sea turtles, 925 olive ridley sea turtles all occur or have been reported to occur within three miles of the coast of one or more of the 926 states, territories, or possessions that are included in the proposed PGP. As a result, they occur within the Action 927 Area for this consultation. Nevertheless, these species are ei ther not likely to be exposed to the direct or indirect 928 effects of the discharges that would be authorized by the proposed PGP or they are not likely to respond given 929
exposure. 930
Because, like marine mammals, sea turtles breathe air they could only be exposed to pesticide pollu tants through 931 their diets or because of changes in the distribution or abundance of thei r prey (tropic expos ure). Because the 932 distances that would separate the fora ging areas of these species from di scharges of pesticide pollutants are 933 substantial and any pesticide pollutants would be degraded by exposure to sunlight, microbial action, and chemical 934 processes in the freshwater ecosystems, estuaries, and coasta l areas before they would enter the diets or affect the 935 prey base of these species, concentrations of those pestic ide pollutants would probably be below concentrations that 936 would have no observed adverse effect on the sea turtles or their prey. As a result, we conclude that these species 937 might be exposed to concentrations of pesticide pollutants associated with the proposed PGP, but they are not likely 938 to be exposed at concentrations that are likely produce adverse physical, chemical, physiological, behavioral or 93936 ecological responses in those species. As a result, these species are not likely to be adversely affected by the 940 proposed action and we will not discuss them further in this Opinion. 941
Endangered and Threatened Marine Fish 942 Bocaccio, canary rockfish, yelloweye rockfi sh, and smalltooth sawfish all occur or have been reported to occur in 943 coastal waters of the Action Area for th is consultation. Nevertheless, these speci es are either not lik ely to be exposed 944 to the direct or indirect effects of th e discharges that would be authorized by the proposed PGP or they are not likely 945 to respond given exposure. 946
Adult Georgia Basin bocaccio are most common at depths be tween 50 and 250 meters (1 60 and 820 feet); Georgia 947 Basin yelloweye rockfish are most common at depths between 91 and 180 meters (300 to 580 feet), although they 948 may occur in waters 50 to 475 meters (160 and 1,400 feet ) deep; and canary rockfish are most common at depths 949 between 50 and 250 meters (160 and 820 feet) and may occur at depths of 425 meters (1,400 feet). The larvae of 950 these rockfish occur over areas that extend several hundred miles offshore where they are passively dispersed by 951 ocean currents and remain in larval form and as small juveniles for several m onths (Moser and Boehlert, 1991; Auth 952 and Brodeur, 2006). They appear to conc entrate over the continental shelf and sl ope, but have been captured more 953 than 250 nautical miles offshore of the Oregon coast (Richardsonet al. , 1980; Moser and Boehlert, 1991). Larval 954 rockfish have been reported to be uniformly distributed at depths of 13, 37 and 117 meters below surface, so they 955 occur at depths that would bring them into sound fields produced by mid-frequency active sonar (Lenarz et al. , 956 1991). Larval bocaccio had highe st abundance at depths of 13 meters , but were also captured in the 117-meter 957 samples. Larval canary rockfish were captured at all three depths, but their densities were highest at the 37- and 177- 958 meter depths (Lenarz et al. , 1991). 959
Because of the small size of the adult, breeding population of endangered and threatened rockfish, the large area 960 over which those larvae are likely to disperse, and their low relative frequency (that is, their density as a percent of 961 the density of the larvae of the more abundance species of rockfish), the density of larvae of endangered or 962 threatened rockfish will be very small offshore. Of the three species, Georgia Basin bo caccio are likely to have the 963 smallest densities because the size of the adult, breeding po pulation in this species is very small and they have the 964 lowest fecundities of the three species. Nevertheless, the density of Georgia Basin ca nary rockfish and Georgia 965 Basin yelloweye rockfish are also very small relative to th e densities of other, non-listed rockfish that have much 966 larger adult population sizes and fecundities that overlap with those of yelloweye rockfish (which are the most 967 fecund of the endangered or threatened rockfish). 968
Because of their geographic distributio n and distance from source of pesticid e applications, these species are not 969 likely to be exposed to the direct or in direct effects of the discharges that would be authorized by the proposed PGP 970 or they are not likely to be exposed at concentrations that would elicit adverse physical, chemical, physiological, 971 behavioral or ecological responses. As a result, these species are not likely to be adversely affected by the proposed 972 action and we will not discuss them further in this Opinion. 973
Smalltooth sawfish are tropical, marine and estuarine fish that inhabit shallow waters of inshore bars, mangrove 974 edges and seagrass beds, although they are occasionally found in deeper coastal waters (NMFS, 2000). Historically, 975 this species was common in the shallow waters of the Gulf of Mexico and along the eas tern seaboard of the United 976 States to North Carolina (rare sightings of this sawfish occurred as far north as New York). Their current range is 977 limited to peninsular Florida, where they are only found with any regularity off the extreme southern portion of the 978 peninsula (off Everglades National Park and Florida Bay). 979
The proposed PGP would not apply to any of the states within the geographic distribution of smalltooth sawfish, but 98037 it would apply to Indian lands within southern Florida (for example, Miccosukee Tribal lands and Seminole Tribal 981 lands). Any discharges of pesticide pollutants on those Tribal lands would have to be transported through Everglades 982 National Park or Big Cypress National Park where they woul d be degraded by exposure to sunlight, microbial action 983 and chemical processes in the wetlands th at form those parks before they would enter the diets or affect smalltooth 984 sawfish or their prey base. Because of those processes, concentrations of these pesticide pollutants would probably 985 be below concentrations that would have no observed adverse effect on smalltooth sawfish or their prey. As a result, 986 we conclude that smalltooth sawfish might be exposed to c oncentrations of pesticide pollutants associated with the 987 proposed PGP, but they are not likely to be exposed at concentrations that are likely produce adverse physical, 988 chemical, physiological, behavioral or ec ological responses in this species. As a result, smalltooth sawfish are not 989 likely to be adversely affected by the proposed action and we will not discuss them further in this Opinion. 990
Endangered and Threatened Marine Invertebrates 991 Elkhorn coral, staghorn coral, black abalone, and white abalone all occur or have been reported to occur in coastal 992 waters of the Action Area for this consultation. Nevertheless, these species are either not likely to be exposed to the 993 direct or indirect effects of the discharges that would be authorized by the proposed PGP or they are not likely to 994 respond given exposure. 995
Elkhorn and staghorn coral are found on coral reefs in southe rn Florida (particularly the Florida Keys), the Bahamas, 996 and throughout the Caribbean (Puerto Rico, St. John, St. Thomas, and St. Croix). The northern limit for elkhorn 997 coral is Biscayne National Park, Florida, and it extends south to Venezuela; it is not found in Bermuda. The northern 998 limit for staghorn coral is around Boca Raton, Florida. 999
The proposed PGP would not apply to Florida, but it would apply to Indian lands within southern Florida (for 1000 example, Miccosukee Tribal lands and Seminole Tribal lands) . In Florida, any discharges of pesticide pollutants on 1001 those Tribal lands would have to be transported through Everglades National Park or Big Cypress National Park 1002 where they would be degraded by exposure to sunlight, microbial action and chemical processes in the wetlands that 1003 form those parks before they would enter Florida Bay wher e they might interact with the Florida Keys. Because of 1004 those processes, concentrations of these pesticide pollutants would probably be below concentrations that would 1005 have no observed adverse effect on th ese coral. In Puerto Rico , the location of the elkhorn and staghorn corals are 1006 far enough from the location of potential discharge sites, the pesticide residues would be degraded by exposure to 1007 sunlight, microbial action, and chemical processes before th ey would enter the coastal waters in which the coral are 1008 located. As a result, we conclude that elkhorn and staghorn coral might be exposed to concentrations of pesticide 1009 pollutants associated with the proposed PGP, but they are not likely to be exposed at c oncentrations that are likely 1010 produce adverse physical, chemical, physiological, behavioral or ecological responses in this species. As a result, 1011 elkhorn and staghorn coral are not likely to be adversely affected by the proposed action and we will not discuss 1012 them further in this Opinion. 1013
Historically, black abalone occurred fr om about Point Arena in northern California to Bahia Tortugas and Isla 1014 Guadalupe, Mexico. Black abalone are rare north of San Francisco and south of Punta Eugenia, and unconfirmed 1015 sightings have been reported as far north as Coos Bay, Oregon. The northernmost documented record of black 1016 abalone (based on museum specimens) is from Crescent City (Geiger, 2004). Most experts agree that the current 1017 range of black abalone extends from Point Arena (Mendocino County, California, USA) south to Northern Baja 1018 California, Mexico. Black abalone may ex ist, but are considered extremely rare , north of San Francisco to Crescent 1019 City, California, USA and south of Punta Eugenia to Cabo San Lucas, Baja California, Mexico (P. Raimondi, 1020 personal communication). 1021
Historically, white abalone occurred fr om Point Conception, California to Punt a Abreojos, Baja California, Mexico. 102238 They are the deepest-liv ing of the west coast abalone species (Hobday and Tegner, 2000) : they had been caught at 1023 depths of 20-60 m (66-197 ft) but had been reported as having had the highest abundance at depths of 25-30 m (80- 1024 100 ft (Cox, 1960). At these depths, white abalone are found in open low relief rock or boulder habitat surrounded 1025 by sand (Tutschulte, 1976). Over the past 30 years, the white abalone populations have declined precipitously in 1026 abundance primarily as a result of e xploitation. Surveys conducted at Tanner and Cortez Banks have yielded 1027 numbers of white abalone in the low hundreds (Butler et al. , 2006). 1028
Because of their geographic distributio n and distance from source of pesticid e applications, these species are not 1029 likely to be exposed to the direct or in direct effects of the discharges that would be authorized by the proposed PGP 1030 or they are not likely to be exposed at concentrations that would elicit adverse physical, chemical, physiological, 1031 behavioral or ecological responses. As a result, these species are not likely to be adversely affected by the proposed 1032 action and we will not discuss them further in this Opinion. 1033
Johnson’s Seagrass 1034 Johnson’s seagrass and the critical habitat for this species occur in Indian River lagoon along the Atlantic coast of 1035 southern Florida. The proposed PGP would not apply to Florida, but it would apply to Indian lands within southern 1036 Florida (for example, Miccosukee Tribal lands and Seminole Tribal lands). Any discharges of pesticide pollutants on 1037 those Tribal lands would have to be transported through Everglades National Park or Big Cypress National Park, not 1038 east to Indian River lagoon. As a result, Johnson’s seagra ss are not likely to be exposed to the proposed action and, 1039 therefore, is not likely to be adversely affected by the proposal. We will not discuss this species further in this 1040 Opinion. 1041 Climate Change 11 1042 There is now widespread consensus within the scientific community that atmospheric temperatures on earth are 1043 increasing (warming) and that these incr eases will continue for at least the ne xt several decades (IPCC, 2001). The 1044 Intergovernmental Panel on Climate Change (IPCC) estimated that average global land and sea surface temperature 1045 has increased by 0.6°C (± 0.2) since the mid-1800s, with most of the change occurring since 1976. This temperature 1046 increase is greater than what would be expected given the range of natural climatic variability recorded over the past 1047 1,000 years (Crowley and Berner, 2001). The IPCC reviewed computer simulations of the effect of greenhouse gas 1048 emissions on observed climate variations that have been re corded in the past and evaluated the influence of natural 1049 phenomena such as solar and volcanic activity. Based on their review, the IPCC concluded that natural phenomena 1050 are insufficient to explain th e increasing trend in land and sea surface temperature, and that atmospheric warming 1051 observed over the last 50 years is probably attributable to human activities (IPCC, 2001). Climatic models estimate 1052 that global temperatures woul d increase between 1.4 to 5.8 ° C from 1990 to 2100 if humans do nothing to reduce 1053 greenhouse gas emissions from current levels (IPCC, 2001). 1054
In the Northeast, annual average temperatures have in creased by 2°F since 1970, with winter temperatures 1055 increasing by up to 4°F (Karl et al. , 2009). Over the same time interval, th e Northeast has experienced more days 1056 with temperatures greater than 90°F , a longer growing season, increased heavy precipitation, more winter 1057 precipitation falling as rain than as snow, reduced snowpack, earlier breakup of winter ice on lakes and rivers, earlier 1058 spring snowmelt resulting in earlier peak river flows, rising sea surface temperatures and sea level. 1059

11 The threats posed by the direct and indirect effects of global climatic change are or will be common to all of the species we discuss in this Opinion. Because of this commonality, we pres ent this single narrative rather than in each of the species-speci fic narratives that appear later in this section of our Opinion.39 Over the next several decades, the Northeast is expected to experience temper atures increases of another 2.5 to 4°F 1060 during the winter season and 1.5 to 3.5°F during the summer season as a result of carbon emissions that have already 1061 occurred (Burakowski et al. , 2008; Karl et al. , 2009). Forecasts beyond the middle of this century are sensitive to the 1062 level of carbon emissions produced today. If carbon emissions are not reduced, the length of the winter snow season 1063 would be cut in half across northern New York, Vermont, New Hampshire, and Maine, and reduced to a week or 1064 two in southern parts of the region; the Northeast would have fewer cold days during the winter and experience 1065 more precipitation (Hayhoe et al. , 2007; Karl et al. , 2009). 1066
Cities in the Northeast that currently experience temperat ures greater than 100°F for a few days each summer would 1067 experience an average of 20 days of such temperatures each summer; some cities in the Northeast -- Hartford, 1068 Connecticut, and Philadelphia, Pennsylv ania, for example -- would experience an average of 30 days of such 1069 temperatures each summer (Karl et al. , 2009). Hot summer conditions would arrive three weeks earlier and last three 1070 weeks longer into the fall. Droughts lasting from one- to three-months are projected to occur as frequently as once 1071 each summer in the Catskill an d Adirondack Mountains, and across the New England states. Finally, sea levels in 1072 this region are projected to rise more than the global average, which woul d increase coastal flooding and coastal 1073 erosion (Kirshen et al. , 2008; Karl et al. , 2009). 1074
In the Pacific Northwest, annual aver age temperatures have increased by about 1.5°F over the past century with 1075 some areas experiencing incr eases of up to 4°F (Karl et al. , 2009; Littell et al. , 2009; Elsner and Hamlet, 2010). 1076 Higher temperatures during the cool season (October through March) have caused more precipitation to fall as rain 1077 rather than snow and contribute to earlier snowmelt. The amount of snowpack remaining on April 1, which is a key 1078 indicator of natural water storage available for the warm season, has declined substantially throughout the Northwest 1079 region. In the Cascade Mountains, for ex ample, the snowpack remaining on Apr il 1 declined by an average of 25 1080 percent over the past 40 to 70 years; most of this decline is attributed to the 2.5°F in crease in temperatures during 1081 the winter season over the time interval (Payne et al. , 2004; Christensen et al. , 2007). 1082
Over the next century, average temperat ures in the Northwest Regi on are projected to increase by another 3 to 10°F, 1083 with higher emissions scenarios resulting in warm ing in the upper end of this range (Christensen et al. , 2007; Karl et 1084 al. , 2009). Increases in winter precipitation and decreases in summer precipitation are projected by many climate 1085 models, though these projections are less certain than those for temperature. 1086

There is consensus within the scientif ic community that warming trends will continue to alter current weather 1087 pattern and patterns of natural phenomena that are influenced by climate, including the timing and intensity of 1088 extreme events such as heat -waves, floods, storms, and wet-dry cycles. Oceanographic models project a weakening 1089 of the thermohaline circulation resulting in a reduction of heat transport into high latitudes of Europe, an increase in 1090 the mass of the Antarctic ice sheet, and a decrease in th e Greenland ice sheet, alth ough the magnitude of these 1091 changes remain unknown (Schmittner et al. , 2005; Levermann et al. , 2007). As ice melts in the Earth’s polar regions 1092 in response to increases in temperature, increases in th e distribution and abundance of cold water are projected to 1093 influence oceanic currents, which would further alter weather patterns. In addition to influencing atmospheric 1094 temperatures and weather patterns, incr eases in greenhouse gases in the Earth’s atmosphere have begun to increase 1095 rates of carbon capture and storage in the oceans: as carb on dioxide levels in the oceans increase, the waters will 1096 become more acidic, which would affect the physiology of large marine animals and cause structures made of 1097 calcium carbonate (for example, corals) to dissolve (IPCC, 2001; Royal Society of London, 2005). 1098
Climate change is projected to have substantial direct an d indirect effects on individu als, populations, species, and 1099 the structure and function of marine, coastal, and terre strial ecosystems in the fo reseeable future (McCarthy et al. , 1100 2001; Parry et al. , 2007) (see Table 3). Climate-mediated change s in the global distribution and abundance are 110140 expected to reduce the productivity of th e oceans by affecting keystone prey sp ecies in marine ecosystems such as 1102 phytoplankton, krill, cephalopods. 1103
Increasing atmospheric temperatures have already contribute d to changes in the quality of the freshwater, coastal 1104 and marine ecosystems that are essential to the survival and recovery of salmon populations and have contributed to 1105 the decline of populations of endang ered and threatened species (Mantua et al. , 1997; Karl et al. , 2009; Littell et al. , 1106 2009). Since the late 1970s, sea surface temperatures have increased and coastal upwelling -which is recognized as 1107 an important mechanism governing the production of both phytoplankton and zooplankton- has decreased resulting 1108 in reduced prey availability and poorer marine survival of Pacific salmon. Changes in the number of Chinook 1109 salmon escaping into the Klamath River between 1978 and 2005 corresponded with changes in coastal upwelling 1110 and marine productivity and the survival of Snake River spring/summer Chinook salmon and Oregon coho salmon 1111 has been predicted using indices of coastal ocean upwelling (Karl et al. , 2009; Littell et al. , 2009; Elsner and 1112 Hamlet, 2010). The majority (90%) of year-to-year variab ility in marine survival of hatchery reared coho salmon 1113 between 1985 and 1996 can be explained by coastal oceanographic conditions. 1114

Table 3. Phenomena associated with projections of global climate change including levels of confidence associated with projections (adapted from IPCC 2001 and Campbell-Lendrum Woodruff 2007 )

Phenomenon Confidence in Observed Changes (observed in the latter 20 th Century) Confidence in Projected Changes (during the 21 st Century) Higher maximum temperatures and a greater number of hot days over almost all land areas Likely Very likely
Higher minimum temperatures with fewer cold days and frost days over almost all land areas Very likely Very likely
Reduced diurnal temperature range over most land

areas Very likely Very likely
Increased heat index over most land areas Likely over many areas Very likely over most areas

More intense precipitation events Likely over many mid- to highlatitude areas in Northern Hemisphere Very likely over many areas

Increased summer continental drying and associated probability of drought Likely in a few areas Likely over most mid-latitude continental interiors (projections are inconsistent for other areas)

Increase in peak wind intensities in tropical cy clones Not observed Likely over some areas Increase in mean and peak precipitation intensities in tropical cyclones Insufficient data Likely over some areas

1115 Changes in temperature and precipitation projected over the next few decades are projected to decrease snow pack, 1116 affect stream flow and water quality thr oughout the Pacific Northwest region (Stewart et al. , 2004; Knowles et al. , 1117 2006; Mote et al. , 2008; Rauscher et al. , 2008). Warmer temperatures are ex pected to reduce snow accumulation 1118 and increase stream flows during the winter, cause spring snowmelt to occur earlier in the year causing spring 1119 stream flows to peak earlier in the year , and reduced summer stream flows in rivers that depend on snow melt (most 1120 rivers in the Pacific Northwest depend on snow melt). As a result, seasonal stream flow timing will likely shift 1121 significantly in sensitive watersheds (Littell et al. , 2009). 1122
The States of Idaho, Oregon , and Washington, are likely to experience increased forest growth over the next few 112341 decades followed by decreased forest grow th as temperature increases overwhelm the ability of trees to make use of 1124 higher winter precipitation and higher carbon dioxide. In coastal areas, clim ate change is forecast to increase coastal 1125 erosion and beach loss (caused by rising sea levels), increase the number of landslides caused by higher winter 1126 rainfall, inundate areas in southern Puget Sound around the city of Olympia, Washington (Littell et al. , 2009). 1127
Rising stream temperatures will likely reduce the quality and extent of freshwater salm on habitat. The duration of 1128 periods that cause thermal stress and migration barriers to salmon is projected to at least double by the 2080s for 1129 most analyzed streams and lakes (Littell et al. , 2009). The greatest increases in th ermal stress (including diseases 1130 and parasites which thrive in warmer waters) would occu r in the Interior Columbia River Basin and the Lake 1131 Washington Ship Canal. The combined effects of warming stream temperatures and altered stream flows will very 1132 likely reduce the reproductive success of many salmon popula tions in Washington watersheds, but impacts will vary 1133 according to different life-history types an d watershed-types. As more winter precipitation falls as rain rather than 1134 snow, higher winter stream flows scour streambeds, damaging spawning nests and washing away incubating eggs 1135 for Pacific Northwest salmon. Earlier peak stream flows flush young salmon from rivers to estuaries before they are 1136 physically mature enough for transition, increasing a vari ety of stressors including the risk of being eaten by 1137 predators. 1138
As a result of these changes, about one third of the current habitat for either the endange red or threatened Northwest 1139 salmon species will no longer be suitable for them by the end of this century as key temperature thresholds are 1140 exceeded (Littell et al. , 2009). As summer temperatures increase, juvenile salmon are expected to experience 1141 reduced growth rates, impaired smoltificat ion and greater vulnerability to predators. 1142
Ocean acidification caused by increas ing amounts of carbon dioxide (CO 2 ) in the Earth’s atmosphere poses a more 1143 wide-spread threat because virtually every major biological function has been shown to respond to acidification 1144 changes in seawater, including photosyn thesis, respiration rate, growth rates, calcification rates, reproduction, and 1145 recruitment (London, 2005; Smith, 2008). 1146
At the same time as these changes in regional weather pa tterns and ocean productivity ar e expected to occur, the 1147 oceans are expected to being increasingly acidic. Over the past 200 years, the o ceans have absorbed about half of the 1148 CO 2 produced by fossil fuel burning and other human activities. This increase n carbon dioxide has led to a 1149 reduction of the pH of surface seawater of 0.1 units, equivalent to a 30 percent increase in the concentration of 1150 hydrogen ions in the ocean. If global emissions of carbon dioxide from human activities continue to increase, the 1151 average pH of the oceans is projected to fall by 0.5 units by the year 2100 (Royal Society of London, 2005). 1152
Although the scale of these changes would vary regionally, this resulting pH would be lower than the oceans have 1153 experienced over at least the past 420,000 years and the rate of change is probably one hundred times greater than 1154 the oceans have experienced at any time over that time inte rval. More importantly, it will take tens of thousands of 1155 years for ocean chemistry to return to a condition similar to that occurring at pre-industrial times (Royal Society of 1156 London, 2005). 1157
Marine species such as fish, larger invertebrates, and some zooplankton take up oxygen and lose respired carbon 1158 dioxide through their gills. Increased carbon dioxide levels and decreased pH would have a major effect on this 1159 respiratory gas exchange system because oxygen is muchharder to obtain from surface seawater than it is from air 1160 (primarily because concentrations of ox ygen are lower in water). The processes involved in supplying oxygen to the 1161 gills means that more carbon dioxide is removed from th ese aquatic animals than is removed from air breathing 1162 animals of a similar size. This more ready removal of carbon dioxide from body fluids means that the level and 1163 range of CO 2 concentration in the bodies of water-breathing animals are much lower than is the case for air- 116442 breathing animals. As a result, large water breathing ma rine animals are more sensitive to changes in the carbon 1165 dioxide concentration in the surrounding seaw ater than are large air-breathing animals. 1166
This has important implications because higher ambient levels of carbon dioxide would acidify the body tissues and 1167 fluids of these species and affect the ability of their blood to carry oxygen. Experimental studies have demonstrated 1168 that acidosis of tissues decrea se cellular energy use, lower respiratory ac tivity, and lower rates of protein synthesis 1169 (Pörtner et al. , 2000; Pörtner et al. , 2004)(Pörtner et al 2000, 2004). These changes would reduce the performance 1170 of almost every physiological process of larger animals including their growth and reproduction (Langenbuch and 1171 Pörtner, 2002, 2003). By itself, this effect of climate change poses seve re risks for endangered and threatened 1172 anadromous and marine species. In combination with change s in seasonal temperatures, formation of snow pack in 1173 terrestrial ecosystems, upwelling phenomena, and ocean productivity, ocean acidification would lead us to expect 1174 the status of endangered and threatened anadromous, coastal, and marine species to trend toward increasing decline 1175 over the next three or four decades. 1176

1177 Species and Critical Habitat Likely to be Adversely Affected by the Proposed Action 1178 The species’ narratives that fo llow focus on attributes of a species’ life history and distribution that influence the 1179 manner and likelihood that a particular species may be ex posed to the proposed action, as well as the species 1180 potential response and risk when exposure occurs. Subsequent narratives summarize a larger body of information on 1181 worldwide distribution, as well as localized movements with in fresh water, estuarine, intertidal, and ocean waters, 1182 population structure, feeding, diving and social behaviors. 1183
Each species’ narrative is followed by a description of its critical habitat (if applicable) with particular emphasis on 1184 any essential features of the habitat that may be exposed to the proposed action and may warrant special attention. 1185
Anadromous Fish Species 1186

Southern Pacific Eulachon Southern 1187 Eulachon are small smelt native to eastern North Pacific wate rs from the Bering Sea to Monterey Bay, California, or 1188 from 61o N to 31o N (1944; Eschmeyer et al. , 1983; Minckley et al. , 1986; Hay and McCarter, 2000). Eulachon that 1189 spawn in rivers south of the Nass River of British Columbia to the Mad River of California comprise the southern 1190 population of Pacific eulachon. This species is designated based upon timing of runs and genetic distinctions (Hart 1191 and McHugh, 1944; McLean et al. , 1999; Hay and McCarter, 2000; McLean and Taylor, 2001; Beacham et al. , 1192 2005). 1193
Adult eulachon are found in coastal and offshore marine habitats (Allen and Smith, 1988; Hay and McCarter, 2000; 1194 Willsonet al. , 2006). Larval and post larval eulachon prey upon phytoplankton, copepods, copepod eggs, mysids, 1195 barnacle larvae, worm larvae, and other eulachon larvae until they reach adult size (WDFW and ODFW, 2001). The 1196 primary prey of adult eulachon are copepods and euphau siids, malacostracans and cumaceans (Smith and Saalfeld, 1197 1955; Barraclough, 1964; Drake and Wilson, 1991; Sturdevant et al. , 1999; Hay and McCarter, 2000) 1198
Although primarily marine, eulachon return to freshwater to spawn. Adult eulachon have been observed in several 1199 rivers along the west coast (Odemar, 1964; Moyle, 1976b; Minckley et al. , 1986; Emmett et al. , 1991; Jennings, 1200 1996; Wright, 1999; Larson and Belchik, 2000; Musick et al. , 2000; WDFW and ODFW, 2001). For the southern 1201 population of Pacific eulachon, most spawning is believed to occur in the Columbia River and its tributaries as well 1202 as in other Oregonian and Washingtonian rivers (Emmett et al. , 1991; Musick et al. , 2000; WDFW and ODFW, 1203 2001). Southern species fish likely take less time to mature than do fish from more northerly rivers and generally 120443 spawn earlier in southern portions of their range than in northern rivers (Clarke et al. , 2007). 1205
Spawning takes place at differential time and temperat ures, depending upon the river system involved (Willson et 1206 al. , 2006). In the Columbia River and further south, spawning occurs from late January to March, although river 1207 entry occurs as early as December (Hay and McCarter, 2000). The peak of eu lachon runs in Washington State is 1208 from February through March. Alaskan runs occur in May and river entry may extend into June (Hay and McCarter, 1209 2000). Females lay eggs over sand, course gravel or detritial su bstrate. Eggs attach to gravel or sand and incubate for 1210 30 to 40 days after which larvae drift to estuaries an d coastal marine waters (Wydoski and Whitney, 1979). 1211
Eulachon generally die following spawning (Scott and Crossman, 1973). The maximum known lifespan is 9 years of 1212 age, but 20 to 30% of individuals live to 4 years and most individuals survive to 3 years of age, although spawning 1213 has been noted as early as 2 years of age (Ba rraclough, 1964; Parente and Snyder, 1970; Langer et al. , 1977; 1214 Wydoski and Whitney, 1979a; Barrett et al. , 1984; Hugg, 1996; Hay and McCarter, 2000; WDFW and ODFW, 1215 2001). The age distribution of spawners varies between river and from year-to-year (Willsonet al. , 2006). 1216

Status and Trends 1217 The southern population of Pacific eulachon was listed as threatened on March 18, 2010 (75 FR 13012). It is 1218 considered to be at moderate risk of extinction through out its range because of a variety of factors, including 1219 predation, commercial and recreational fishing pressure (directed and bycatch), and loss of habitat. Further 1220 population decline is anticipated to continue as a result of climate change and bycatch in commercial fisheries. 1221 However, because of their fecundity, eulachon are assume d to have the ability to recover quickly if given the 1222 opportunity (Bailey and Houde, 1989). 1223
Eulachon formerly experience d widespread, abundant runs and have been a staple of Native American diets for 1224 centuries along the northwest coast. However, such runs that were formerly present in several California rivers as 1225 late as the 1960s and 1970s (i.e., Klamath River, Mad River and Redwood Creek) no longer occur (Larson and 1226 Belchik, 2000). This decline likely began in the 1970s and continued until, in 1988 and 1989, the last reported 1227 sizeable run occurred in the Klamath Ri ver and no fish were found in 1996, a lthough a moderate run was noted in 1228 1999 (Larson and Belchik, 2000; Moyle, 2002). Eulachon have not been identified in the Mad River and Redwood 1229 Creek since the mid-1990s (Moyle, 2002). 1230

Critical Habitat 1231 Critical habitat has been proposed for the southern population of Pacific eulachon (76 FR 515). 1232

Threats 1233 Natural threats. Numerous predatory fishes, marine mammals, bi rds and terrestrial mammals prey on eulachon 1234 (Clemens et al. , 1936; Hart, 1973; Scott and Crossman, 1973; Jeffries, 1984; Drake and Wilson, 1991; Yang and 1235 Nelson, 1999; Willson et al. , 2006). The high fat content of eulachon make them a valu able prey for white sturgeon 1236 in the Columbia and Fraser rivers during winter (Willsonet al. , 2006). 1237
Anthropogenic threats . Fisheries harvests are likely a major contribu tor to eulachon decline. The best available 1238 information for catches comes from the Columbia River, where catches have been as high as 5.7 million pounds per 1239 year, but averaged near 2 million pounds from 1938 to 1993 (Wydoski and Whitney, 1979). Since 1993, catches 1240 have not exceeded 1 million pounds annually and the median catch has been 43,000 pounds (97.7% reduction in 1241 catch), even when effort is acco unted for (WDFW and ODFW, 2001). Bycatch from fishing along U.S. and 1242 Canadian coasts has also been high, composing up to 28% of the total catch by weight (Hay and McCarter, 2000; 1243 DFO, 2008). 124444 Construction projects have also had a negative impact on eulachon stocks. Dams, such as the Bonneville Dam on the 1245 Hood River, have blocked eulachon from moving into former spawning habitat (Smith and Saalfeld, 1955). Such 1246 damming projects also alter sedimentation and flow dynamics that eulachon have developed around in their 1247 evolution. River substrate composition, likely critical to successful spawning, is also altered by dams. The 1248 impoundment of water tends to raise water temperatures; a f actor that spawning eulachon are particularly sensitive 1249 to (NMFS, 2008c). Eulachon ecotoxicological studies show high contaminant burdens, particularly of arsenic and 1250 lead (Futer and Nassichuk, 1983; Rogers et al. , 1990; EPA, 2002). 1251
Sturgeon 1252
Sturgeon ( Acipenseridae ) are one of the oldest Osteichthyes (bony fish) families in ex istence. They are native to 1253 rivers and coastal areas of North America. The two listed sturgeon, discussed below, are part of the genus Acipenser 1254 and share some common characteristics. Members of the genus have a characteristic external morphology 1255 distinguished by the inferior mouth typical of bottom-feeder s. Most species are anadromous, although a few species 1256 are entirely fresh water and many species can survive if th ey become land-locked. Both listed species (discussed 1257 below) are anadromous and tend to remain in coastal wate rs. As an anadromous fish, sturgeon spawn in fresh water 1258 and feed and rear in marine or estuarine waters. Sturgeon are capable of many reproductive cycles and tend to be 1259 very long-lived. 1260

Threats 1261 Natural Threats. Birds and larger freshwater fish feed on eggs and larvae, while sharks, pinnipeds and other large 1262 predators prey on marine adult and subadult fish. 1263
Anthropogenic Threats. In general sturgeon have declined from the combined effects from the construction of dam 1264 and water diversion projects, dredging and blasting, water po llution and fisheries. As a result of their longevity, slow 1265 rate of growth and delayed maturation, and bottom-feeding habits, in general sturgeon have a life history that makes 1266 them susceptible to over-harvest and exposure to (and the accumulation of) contaminants. Many sturgeon also do 1267 not spawn on an annual basis, but may spawn every other y ear or even more infrequently. Thus even small increases 1268 in mortality can affect population productivity (Heppell, 2007). The body form and feeding habits of sturgeon may 1269 expose them to a different suite of contaminants than pe lagic fish due to their affinity with bottom sediments. 1270 Exposure pathways would include a dissolved or water borne exposure, but for sediment-associated contaminants 1271 the sediment exposure pathway may be more significant. Benthic dwelling fish may be exposed through the direct 1272 contact with sediment, exposed to the boundary layer over the sediment, and commonly have a higher rate of 1273 incidental ingestion and exposure through direct consumption of sediments. 1274
Southern Green Sturgeon 1275
Distribution and Descriptio n of the Listed Species 1276 Green sturgeon occur along the west coast of North America from Mexico to the Bering Sea (Adams et al. , 2002; 1277 Colway and Stevenson, 2007). Distingu ished primarily according to genetic differences and spawning locations, 1278 NMFS recognizes two species of green sturgeon: a northern species whose populations are relatively healthy, and a 1279 Southern species that has unde rgone significan t decline (Adams et al. , 2007). NMFS listed the Southern species of 1280 green sturgeon as threatened in 2006 (71 FR 17757). 1281
Green sturgeon are considered one of the most marine-ori ented sturgeon species, spendi ng much of their lives in 1282 coastal marine waters, estuaries and bays. Early life stages r ear in fresh water, and adults return to fresh water when 1283 they are 15 years old or older to spawn. Across the species’ range only three rivers contain documented spawning 128445 (Moyle et al. , 1992; CDFG, 2002). Outside of natal rivers, the distribution of southern green sturgeon and northern 1285 green sturgeon overlap. Both the northern species and southern species of green sturgeon occupy coastal estuaries 1286 and coastal marine waters from southern California to Alaska, including Humbolt Bay, the lower Columbia River 1287 estuary, Willapa Bay, Grays Harbor an d southeast Alaska. In general, green sturgeon are more common north of 1288 Point Conception, California. 1289
Green sturgeon are spring spawners and initiate spawning mi grations as early as March. Fish in the Klamath River 1290 have been observed initiating migrations between April and June, Rogue River fish between May and July, whereas 1291 Heubein et al., (2009) observed Sacramento River fish making their upstream migrations between March and April. 1292 Spawning generally occurs in deep pools of large rivers or off-channel coves (Moyle et al. , 1992; Moyle et al. , 1293 1995; Rien et al. , 2001; Heublein et al. , 2009). Fish then tend to aggregate in deep pools, where they will over1294 summer before outmigrating in the fall, although some fi sh have been observed outmigrating relatively soon after 1295 presumed spawning events (Heublein et al. , 2009). In the Sacramen to River adult green sturgeon spawn in late 1296 spring and early summer (Heubleinet al. , 2009). It appears that specific ha bitat for spawning includes large 1297 cobblestones (where eggs can settle between), although sp awning is known to occur ove r clean sand or bedrock. 1298
Green sturgeon are a long-lived fish and likely live for 60 to 70 years (Moyle, 2002). Age at first maturation for 1299 green sturgeon is at least 15 years old, after which adults likely return every 2 to 5 years to spawn (Adams et al. , 1300 2002; Van Eenennaam et al. , 2006). Most male spawners are young (17 to 18 years) while females on the spawning 1301 grounds are often older (27 to 28 years). 1302
Green sturgeon spend their first 1 to 4 years in their natal streams and rivers (Nakamoto et al. , 1995; Beamesderfer 1303 and Webb, 2002), although they are believed to be physiologically adapted to sea water survival at 6 months of age 1304 (Allen and Cech, 2007; Allen and J.J. Cech, 2007; Allenet al. , 2009). Larvae are active at night, a behavior that 1305 likely reduces predation and avoids being moved downstream more than necessary (Cech Jr. et al. , 2000). Green 1306 sturgeon larvae grow very rapidly, reaching about 300 mm by age one (Deng, 2000). While in fresh water, juveniles 1307 feed on a variety of fishes and invertebrates (Moyle et al. , 1992). One juvenile from the Sacramento-San Joaquin 1308 estuary was found to have preyed most commonly upon opisthobranch mollusks ( Philline sp.), with bay shrimp 1309 ( Crangon sp.) and overbite clams ( Potamocorbula amurensis ) as secondary prey. Other juveniles in the Sacramento 1310 River delta feed on opossum shrimp ( Neomysis mercedis ) and Corophium amphipods (Radtke, 1966). 1311
Upon outmigration from fresh water, subadult green sturgeon disperse widely along through continental shelf waters 1312 of the west coast within the 110 meter contour (Moyle et al. , 1992; Erickson and Hightower, 2007). It appears that 1313 green sturgeon generally distribute north of the river mouth from whence they emerge as juveniles during fall and 1314 move into bays and estuaries during summer and fall (Moser and Lindley, 2007; Israel et al. , 2009). The limited 1315 feeding data available for subadult and adult green sturgeonshow that they consume be nthic invertebrates including 1316 shrimp, clams, chironomids, copepods, mollusks, amphipods and small fish ((Houston, 1988; Moyle et al. , 1992). 1317 Sturgeon use electroreception to locate prey. Olfaction and taste may also be important to foraging, while vision is 1318 thought to play a minor role in prey capture (Miller, 2004). 1319

Status and Trends 1320 NMFS listed the southern population of the North American green sturgeon as threatened on April 7, 2006 (71 FR 1321 17757). Trend data for green sturgeon is severely limited. Available information comes from two predominant 1322 sources, fisheries and tagging. Only three data sets were c onsidered useful for the populat ion time series analyses by 1323 NMFS’ biological review team: the Klamath Yurok Tribal fishery catch, San Pablo sport fishery tag returns and 1324 Columbia River commercial landings (NMFS, 2005c). Us ing San Pablo sport fishery tag recovery data, the 1325 California Department of Fish and Game produced a population time series estimate for the southern species. San 132646 Pablo data suggest that green sturgeon abundance may be increasing, but the data showed no significant trend. The 1327 data set is not particularly convincing, however, as it suffers from inconsistent effort and since it is unclear whether 1328 summer concentrations of green sturgeon provide a strong indicator of population performance (NMFS, 2005c). 1329 Although there is not sufficient inform ation available to estimate the curr ent population size of southern green 1330 sturgeon, catch of juveniles during State and Federal sa lvage operations in the Sa cramento delta are low in 1331 comparison to catch levels before the mid-1980s. 1332

Critical Habitat 1333 On October 9, 2009, NMFS designated cr itical habitat for southern green sturgeon (74 FR 52300). The geographical 1334 area identified as critical habitat is base d upon the overlapping distribution of the southern and northern species, and 1335 encompasses all areas where the presence of southern green sturgeon have been confirmed or where their presence is 1336 likely. Therefore the geographi cal area defined as critical habitat is the en tire range of the biological species, green 1337 sturgeon, from the Bering Sea, AK, to Ensenada, Mexico. Specific fresh water areas include the Sacramento River, 1338 Feather River, Yuba River and the Sacramento-San Joaq uin Delta. Specific coastal bays and estuaries include 1339 estuaries from Elkhorn Slough, California, to Puget Sound, Washington. Coastal marine areas include waters along 1340 the entire biological species’ range within a depth of 60 fathoms. The principal biological or physical constituent 1341 elements essential for the conservation of southern green st urgeon in fresh water includ e: food resources; substrate 1342 of sufficient type and size to support viable egg and larval development; water flow, water quality such that the 1343 chemical characteristics support normal behavior, grow th and viability; migratory corridors; water depth; and 1344 sediment quality. Primary constituent elements of estuarine habitat include food resources, water flow, water 1345 quality, migratory corridors, water depth and sediment quality. The specific primary constituent elements of marine 1346 habitat include food resources, water quality and migratory corridors. 1347
Critical habitat of the Southern species of green sturgeon is threatened by several anthropogenic factors. Four dams 1348 and several other structures currently are impassible for gr een sturgeon to pass on the Sacramento, Feather and San 1349 Joaquin rivers, preventing movement into spawning habitat. Threats to these riverine habitats also include increasing 1350 temperature, insufficient flow that may impair recruitm ent, the introduction of striped bass that may eat young 1351 sturgeon and compete for prey, and the presence of heavy metals and contaminants in the river. 1352
Final Protective Regulations 1353 The final 4(d) rule for southern green sturgeon was issued June 2, 2010, an d became effective July 2, 2010 (75 FR 1354 30714). Under this rule, the prohibitions listed under ESA sections 9(a)(1)(A) through 9(a)(1)(G) are applied for the 1355 Southern species, including all the ESA section 9(a)(1)(B) an d 9(a)(1)(C) prohibitio ns except for: 1) Certain Federal, 1356 State or private-sponsored research or monitoring activitie s; 2) Emergency fish rescue and salvage activities; 3) 1357 Habitat restoration activities; 4) Commercial and recrea tional fisheries activities, if conducted under approved 1358 Fisheries Management and Evaluation Plans, and; 5) Certain Tribal fishery management activities. 1359

Threats 1360 Natural Threats. Green sturgeon eggs and larvae are likely preyed up on by a variety of larger fish and animals, 1361 while sub-adult and adult sturgeon may occasionally be preyed upon by shark sea lions, or other large body 1362 predators (NMFS, 2005c). 1363
Anthropogenic Threats. The principle threat to southern green sturgeon comes from a drastic reduction in available 1364 spawning area from impassible barriers (e .g., Oroville, Shasta and Keswick dams). Other threats include potentially 1365 lethal temperature limits, harvest, entrainment by water projects and toxins and invasive species (Adams et al. , 1366 2007; Erickson and Webb, 2007; Lackey, 2009). Since this species is composed of a single spawning population 1367 within the Sacramento River, stochastic variation in environmental conditions and significant fluctuations in 136847 demographic rates increases the risk of extinction for this species. 1369
Studies from other sturgeon species indicate that sturgeon readily bioaccumulate contaminants. White sturgeon from 1370 the Kootenai River have been found to contain aluminum, arsenic, cadmium, chromium, cobalt, copper, iron, lead, 1371 manganese, mercury, nickel, selenium, zinc, DDE, DDT, PCBs and other organochlorines (Kruse and Scarnecchia, 1372 2001). Mercury has also been identified from white sturgeon of the lower Columbia River (Webb et al. , 2006). 1373 Numerous organochlorines, including DDT, DDD, DDE, chlordane and dieldrin have also been identified in these 1374 fish (Foster et al. , 2001). Observed concentrations are likely sufficient to influence reproductive physiology. 1375
Shortnose Sturgeon 1376
Distribution and Descriptio n of the Listed Species 1377 Shortnose sturgeon occur along the Atlantic Coast of North America, from the St. John River in Canada, south to the 1378 St. Johns River in Florida. NMFS’ recovery plan (1998c) recognized 19 wild populations based on their strong 1379 fidelity to their natal streams and several captive p opulations (from a Savannah River broodstock) that are 1380 maintained for educational and res earch purposes (NMFS, 1998c). 1381
Shortnose sturgeon are generally anadromous, but may migrate between fresh and salt water for reasons other than 1382 spawning. They can also maintain freshwater resident populations. In general, shortnose sturgeon are benthic fish 1383 that occupy the deep channel sections of large rivers or estuarine waters of their natal rivers and will migrate 1384 considerable distances. Dadswell (1979 in Dadswell et al . 1984) observed shortnose sturgeon traveling up 160 km 1385 between tagging and recapture in the St. John estuary and it is not uncommon for adults to migrate 200 km or more 1386 to reach spawning areas (Kynard, 1997). After spawning in the spring, adults tend to migrate rapidly downstream to 1387 feeding areas in the estuary or to tida lly influenced fresh water (see Dadswell et al. , 1984a). 1388
Young-of-the year shortnose sturgeon move downstream after hatching, remaining in fresh water for about 1 year 1389 (Kynard, 1997). Initially, young shortnose sturgeon will resi de short distances from spawning areas and as they 1390 grow will tend to move further downstream (see Dadswell et al. , 1984a). By age 3 or older juvenile sturgeon will 1391 spend a large portion of th eir year at the salt- and fresh water in terface of coastal rivers (NMFS, 1998b). 1392
Habitat use in fresh water during summer and winter months overlaps between adult and age-1 shortnose sturgeon 1393 (O'Herron II et al. , 1993; Kynard et al. , 2000; Moser et al. , 2000). Kynard et al., (2000) found that both age classes 1394 preferred deep-water curves with sand and cobble to higher velocity runs, particularly during winter months and 1395 shifted to channel habitat as water temperatures rose in summer months. In the Connecticut River and the 1396 Merrimack, Kynard et al., (2000) found shortnose generally used water about 3 meters deep, ranging from less than 1397 a meter to about 15 meters deep. 1398
Female shortnose sturgeon spawn every three to five years. Males spawn every other year, although some may 1399 spawn in consecutive years (Dovel et al. , 1992; Collins and Smith, 1993; Kieffer and Kynard, 1993; NMFS, 1998a). 1400 Spawning typically occurs during the spring, between mid-March and late May. Spawning areas are often located 1401 just below the fall line at the farthest accessible upstream reach of the river (NMFS, 1998a). 1402
Male shortnose sturgeon in southern rivers will first spawn between ages 2 and 5, while fish as far north as the St. 1403 John River, Canada first spawn at about 10 to 11 years of age (Dadswell et al. , 1984a; NMFS, 1998a). Age at first 1404 spawning for female shortnose sturgeon varies from about age 6 to 18 years, like males, varying on a latitudinal 1405 cline (Dadswell et al. , 1984a; NMFS, 1998a). In general, fish in the northern portion of the species’ range live 1406 longer than individuals in the southern portion of the sp ecies’ range (Gilbert, 1989). The maximum age reported for 140748 a shortnose sturgeon in the St. John River in New Brunswi ck is 67 years (for a female ), 40 years for the Kennebec 1408 River, 37 years for the Hudson River, 34 years in the Conne cticut River, 20 years in the Pee Dee River and 10 years 1409 in the Altamaha River (Gilbert, 1989). Male shortnose st urgeon appear to have shorter life spans than females 1410 (Gilbert, 1989). 1411
Like all sturgeon, shortnose have ventrally located, sucker-like mouths, structured for feeding on benthos. Foraging 1412 generally occurs in areas with abundant macrophytes, where juvenile and adult shortnose sturgeon feed on 1413 amphipods, polychaetes an d gasteropods (Dadswell et al. , 1984b; Moser and Ross, 1995; NMFS, 1998a). Sturgeon 1414 use electroreception to id entify prey. Olfaction and taste are also likely important to foraging, while vision is thought 1415 to play a minor role (Miller, 2004). As adults, a significant portion of a shortnose sturgeon’s diet may consist of 1416 freshwater mollusks (Dadswell et al. , 1984b). Based on observations by Kynard et al., (2000), shortnose sturgeon 1417 will consume the entire mollusk, excre ting the shell after ingestion. 1418

Status and Trends 1419 Shortnose sturgeon were listed as endangered on March 11, 1967, under the Endangered Species Preservation Act 1420 (32 FR 4001) and remained on the endangered species list with enactment of the ESA of 1973, as amended. 1421 Pollution and overfishing, including bycatch in the shad fi shery, were listed as principal reasons for the species' 1422 decline. Shortnose sturgeon are listed as an e ndangered species throughout all of its range 1423
Northern shortnose sturgeon population abundances are generally larger than southern populations (Kynard, 1997). 1424 Updated population estimates also suggest that three of the largest populations (Kennebec, Hudson and Delaware 1425 River) may be increasing or stable, although data is limited. The New York (Hudson River) shortnose sturgeon 1426 population is the largest extant population of this species and, based on available data, appears to have increased 1427 (Bain et al. , 2000). The most recen t population estimate indicates this population consists of about 61,000-shortnose 1428 sturgeon (95% confidence interval [CI] was between 52,898 and 72,191 fish (Bain et al. , 2000). A comparison of the 1429 Bain estimate to the 1979/1980 population estimate of spawning adults by Dovel et al., (1992); about 13,000 fish) 1430 led Bain et al., (2000) to conclude that the population had made a dramatic increase (about 400% increase) between 1431 1979 and 1997. While still evidence of an increasing p opulation, a comparison of total population estimates 1432 (30,000:60,000) would suggest the population has only doubled in size during the study years. Similarly, the 1433 Kennebec River population appear s to be increasing. The most recent estimate for this popu lation is about 9,500 fish 1434 (Squiers, 2003), suggesting the population has increased by about 30% in about a twenty year period. 1435
Data from the Delaware River suggest that the populatio n may be stable. Brundage and O’Herron (2006) estimate 1436 that the current population for the Delaware River is 12,0 47 adult fish (1999-2003; 95% CI: 10,757-13,589), which 1437 is similar to the 1981/84 estimate by Hastings et al., (1987) of 12,7 96 fish (95% CI: 10 ,288-16367). The recent 1438 capture of several fish that were tagged as adults by Hastings et al., (1987) suggests that older fish may comprise a 1439 substantial portion of the Delaware River population. Based on studies from other sturgeon species we know of no 1440 evidence of senescence in sturgeon and we would expect that these fish are reproductively active (Paragamian et al. , 1441 2005). Despite their longevity, the viability of sturgeon populations is sensitive to variability in juvenile recruitment 1442 and survival (Anders et al. , 2002; Gross et al. , 2002; Secor et al. , 2002). Although interannual variation in juvenile 1443 recruitment would be expected as a result of stochastic fact ors that influence spawning an d egg/larval survival, if the 1444 mean population size does not chan ge over the long-term it then it would appear there is sufficient juvenile survival 1445 to provide at least periodic recruitment into the adult age cl asses. Data on juvenile recruitment or age-1+ survival 1446 would, however, establish whether this population is at a stable equilibrium. 1447
South of Chesapeake Bay, populations are relatively small co mpared to their northern counterparts. The largest of 1448 the southern populations of shortnose sturgeon is the Altamaha River population. Population estimates have been 144949 calculated several times for sturgeon in the Altamaha si nce 1993. Total popu lation estimates show n pretty sizeable 1450 interannual variation is occurring; estimates have ranged from as low as 468 fish in 1993 to over 6,300 fish in 2006 1451 (NMFS, 1998a; DeVries, 2006). The Ogeechee River is the next most studied river south of Chesapeake Bay and 1452 abundance estimates indicate that the shor tnose sturgeon population in this river is considerably smaller than that in 1453 the Altamaha River. The highest point estimate in 1993 using a modified Schnabel technique resulted in a total 1454 population estimate of 361 shortnose sturgeon (95% CI: 326-400). In contrast the most recent survey resulted in an 1455 estimate of 147 shortnose sturgeon (95% CI: 104-249), suggesting that the population may be declining. 1456
Throughout the species range there are other extant populations, or at least evidence that several other basins are 1457 used periodically. That is, shortnose sturgeon have been documented in the St. Johns River (FL), the St. Mary’s 1458 River, Chesapeake Bay, Potomac River, Piscataqua River, the Housatonic River and others. Some basins probably 1459 previously contained shortnose populations, but recent sampling has been largely unsuccessful. Despite the 1460 occasional observations of shortnose sturge on, populations may be extinct in several basins (e.g., St. John’s (FL), St. 1461 Mary’s, Potomac, Housatonic and Neuse rivers). Those fe w fish that have been observed in these basins are 1462 generally presumed to be immigrants from neighboring basins. In some cases, (e.g. Chesapeake Bay) migratory 1463 information collected from tagged fish and genetic evidence confirms that fish captured in Chesapeake Bay were 1464 part of the Delaware River population (Grunwald et al. , 2002; Wirginet al. , 2005). 1465

Threats 1466 Natural Threats. Yellow perch, sharks and seals are predators of shortnose sturgeon juveniles (NMFS, 1998a). The 1467 effects of disease and parasites are generally unknown. 1468
Anthropogenic Threats. Historic fishery harvests, as well as the incide ntal harvest in current fisheries, have had 1469 lasting effects on shortnose sturgeon. In the late nine teenth and early twentieth cen turies shortnose sturgeon 1470 commonly were harvested incidental to Atlantic sturgeon, the larger and more commercially valuable of these two 1471 sympatric sturgeon species (N MFS, 1998a). The effects of these harvests may have latent and long-lasting impacts 1472 on some populations. At present there is no legal directed fishing effort for shortnose sturgeon in the U.S., although 1473 some illegal poaching is suspected. Additionally, shortnose st urgeon are often caught incidental to other fisheries. 1474 For instance, shortnose are caught incidentally by bass anglers, and incidentally to alewife/gaspereau and shad 1475 fisheries in the St. John River in Canada, shad fisheries in the Altamaha River, Hudson River, and others 1476 (COSEWIC, 2005). 1477
Habitat alterations from discharges, dredging or disposal of material into waterways and other developmental 1478 activities along riverine and estuarine systems threaten shor tnose sturgeon habitat. Periodic maintenance of harbors 1479 and rivers likely results in the direct take of some sturgeon, but perhaps of greater impact is the manner in which 1480 dredging alters benthic topography and community structure and water quality (increase in suspended sediments). 1481 Shoreline development may increase the potential of ship strikes. In the Bay of Fundy, a tidal turbine killed at least 1482 three Atlantic salmon in the 1980s and may be a threat to shortnose sturgeon as well (Dadswell and Rulifson, 1994). 1483 Although currently the only example of this type of turb ine in North America, increasing interests in finding 1484 alternative energy sources is expected to result in an incr ease in the number of marine turbines along the coast. 1485
Shortnose sturgeon and other benthic organisms are regularly in direct contact with legacy pollutants, as well as a 1486 suite of common contaminants added from more current industrial and agricultural practices. Studies demonstrate 1487 that shortnose sturgeon carry a wide number of potentially hazardous contam inants. Individuals from the Delaware 1488 River contain numerous metals (mercury, aluminum, antim ony, barium, cadmium, calcium, chromium, copper, iron, 1489 magnesium, manganese, nickel, potassium, sodium, vanadium and zinc), PCDDs, PCDFs, PCBs, DDE, DDD, bis 1490 (2-ethylhexyl) phthalate, di-n-butylphthalate and chlordane (ERC, 2002). Most of these metals, PCDDs, PCDFs and 149150 PCBs were also found in shortnose sturgeon in the Kennebec River (ERC, 2003). 1492

Critical Habitat 1493 NMFS has not designated critical habitat for shortnose sturgeon. 1494
Salmonid Anadromous Fish Species 1495

Protective Regulations for Threatened Salmonid Species 1496
Since 1997 NMFS promulgated a total of 29 limits to the ESA section 9(a) take prohibitions for 21 threatened 1497 Pacific salmon and steelhead species (62 FR 38479, July 18, 1997; 65 FR 42422, July 10, 2000; 65 FR 42485, July 1498 10, 2000; 67 FR 1116, January 9, 2002; 73 FR 7816, February 11, 2008). On June 28, 2005, as part of the final 1499 listing determinations for 16 species of West Coast sa lmon, NMFS amended and str eamlined the 4(d) protective 1500 regulations for threatened salmon and steelhead (70 FR 37160). NMFS took this action to provide appropriate 1501 flexibility to ensure that fisheries and artificial prop agation programs are managed consistently with the 1502 conservation needs of threatened salm on and steelhead. Under this change, the section 4(d) protections apply to 1503 natural and hatchery fish with an intact adipose fin, but not to ESA listed hatchery fish that have had their adipose 1504 fin removed prior to release into the wild. 1505
Additionally, NMFS made several simplifying and clarifying changes to the 4(d) protective regulations including 1506 updating an expired limit (§ 223.203(b)(2)), providing a temporary exemption for ongoing research and 1507 enhancement activities, and applying the same set of 14 lim its to all threatened Pacific salmon and steelhead species. 1508 These limits are: 1509

1. Activities conducted in accordance with ESA sectio n 10 incidental take authorization (50 CFR § 1510 223.203(b)(1)) 1511

2. Ongoing scientific and conservation activities for whic h a permit application has been timely submitted, 1512 and treaty and non-treaty fish eries for which a comanager’s management plan has been timely submitted (§ 1513 223.203(b)(2)) 1514

3. Emergency actions related to injured, stranded, or dead salmonids (§ 223.203(b)(3)) 1515

4. Fishery management activities (§ 223.203(b)(4)) 1516

5. Hatchery and genetic management programs (§ 223.203(b)(5)) 1517

6. Activities in compliance with joint Tribal/State plans (§ 223.203(b)(6)) 1518

7. Scientific research activities conducted or permitted by the States (§ 223.203(b)(7)) 1519

8. State, local and private habitat restoration activities (§ 223.203(b)(8)) 1520

9. Properly screened water diversion devices (§ 223.203(b)(9)) 1521

10. Routine road maintenance activities (§ 223.203(b)(10)) 1522

11. Certain park pest management activities (§ 223.203(b)(11)) 152351 12. Certain municipal, residential, commercial and industrial development and redevelopment activities (§ 1524 223.203(b)(12)) 1525

13. Forest management activities on State and private lands within the State of Washington (§ 223.203(b)(13)) 1526

14. Activities undertaken consistent with an approved Tribal resource management plan (§ 223.204). 1527

Chinook Salmon 1528
Description of the Species 1529 Chinook salmon are the largest of the Pacific salmon and historically ranged from the Ventura River in California to 1530 Point Hope, Alaska in North America, and in northeastern Asia from Hokkaido, Japan to the Anadyr River in Russia 1531 (Healey, 1991). In this section, we di scuss the distribution, status and critical habitats of the nine species of 1532 endangered and threatened Chinook salmon separately, and summarize their common dependence on waters of the 1533 United States. However, because Chinook salmon species share many characteristics, we begin this section 1534 describing those common characteristics. 1535
Chinook salmon exhibit one of the most varied and complex life history strategies. The “stream-type” of Chinook 1536 salmon resides in freshwater for a year or more following emergence and the “ocean-type” migrates to the ocean 1537 within their first year. The ocean-typ e typifies populations north of 56oN (Healey, 1991). The Chinook salmon life 1538 cycle spans fresh and marine waters. Chinook salmon are semelparous (i.e. they die after spawning). Spawning 1539 migrations generally occur in the spring and fall, and temperature and stream flow can significantly influence the 1540 timing of migrations and spawning and the selection of spawning habitat (Geist et al. , 2009; Hatten and Tiffan., 1541 2009). Spawning typically occurring earlier in the spring/s ummer at northern latitudes and later in southern latitudes 1542 (Healey, 1991). 1543
While in fresh water, juvenile Chinook salmon are often fo und in the lower reaches of a river near its estuary in 1544 areas of low water velocity. As they grow, they tend to m ove to deeper waters where the velocity is higher (Healey, 1545 1991). Generally, Chinook salmon outmigrants (smolts) are about 2 to 5 inches long when they enter saline (often 1546 brackish) waters. The process of smoltification enable s salmon to adapt to the ocean environment (Wedemeyer et 1547 al. , 1980). Several factors can affect smoltification process, not only at the interface between fresh water and salt 1548 water, but higher in the watershed the pr ocess of transformation begins long before fish enter salt waters including: 1549 exposure to chemicals such as heavy metals and elevated water temperatures (Wedemeyer et al. , 1980). 1550
Chinook salmon feed on a variety of prey organisms depending upon life stage. Adult oceanic Chinook salmon eat 1551 small fish, amphipods and crab megalops (Healey, 1991). Fish, in particular herring, make up the largest portion of 1552 an adult Chinook salmon’s diet. In estuaries, Chinook salmon smolts tend to feed on chironomid larvae and pupae, 1553 Daphnia , Eogammarus , Corphium and Neomysis, as well as juvenile herring, sticklebacks and other small fish. In 1554 fresh water, Chinook salmon juveniles feed on adult and larv al insects including terrestri al and aquatic insects such 1555 as dipterans, beetles, stoneflies, chir onomids and plecopterans (Healey, 1991). 1556

Threats 1557

Natural Threats. Chinook salmon are prey for pelagic fishes, birds and marine mammals, including harbor seals, sea 1558 lions and killer whales. There have been recent concer ns that the increasing size of tern, seal and sea lion 1559 populations in the Pacific Northwest may have re duced the survival of some salmon species. 156052 Anthropogenic Threats. Salmon survive only in aquatic ecosystems and, therefore, depend on the quantity and 1561 quality of those ecosystems. Chinook salmon have declined under the combined effects of multiple anthropogenic 1562 stressors. Examples of these include fishery over-harvest, competition from hatchery fish and non-native species, the 1563 effects of dams, water diversions, destruction or degradation of riparian habitat and land use practices that destroy or 1564 degrade wetland and riparian ecosystems (Buhle et al. , 2009). 1565
Salmon along the west coast of the U.S. share many of th e same threats. Therefore, anthropogenic threats for all 1566 species and populations are summarized here. Population declines have resulted from several human-mediated 1567 causes, but the greatest negative influence has likely been the establishment of waterway obstructions such as dams, 1568 power plants and sluiceways for hydropower, agriculture, flood control and water storage. These structures have 1569 blocked salmon migration to spawning habitat or resulted in direct mortality and have eliminated entire salmon runs 1570 as a result. While some of these barriers remain, others have been reengineered, renovated or removed to allow for 1571 surviving runs to access former habitat, but success has been limited. Th ese types of barriers alter the natural 1572 hydrograph of basins, both upstream and downstream of th e structure and significantly reduce the availability and 1573 quality of spawning and rearing habitat (H atten and Tiffan., 2009). Many streams and rivers, particularly in urban or 1574 suburban areas, suffer from streamside development, which contributes sediment, chemical pollutants from pesticide 1575 applications and automobile or industrial activities, a ltered stream flows, loss of streamside vegetation and 1576 allochthonous materials to name a fe w. These factors can directly cause mortality, reduce reproductive success or 1577 affect the health and fitnes s of all salmon life stages. 1578
Fishing pressure has also negatively affected salmon populations. Fishing reduces the number of individuals within 1579 a population and can lead to uneven exploitation of certain populations and size classes (Reisenbichler, 1997). 1580 Targeted fishing of larger individuals results in excluding the most fecund individuals from spawning 1581 (Reisenbichler, 1997). Genetic changes that promote smaller body sizes have occurred in heavily exploited 1582 populations in response to size-selective harvest pressure s (Reisenbichler, 1997). Fishing pressure can reduce age at 1583 maturity in fished populations as the fished populations compensate for the reductions in the numbers of spawning 1584 adults (Reisenbichler, 1997). 1585
Pacific salmon species are exposed to a number of contaminants throughout their range and life history cycle. 1586 Exposure to pollution is also of significant concern for all life stages, but is likely particularly significant for 1587 freshwater life stages. Organic pollutants, particularly PCBs, DDT and its congeners, pesticides and endocrine 1588 disruptors are of particular concern. These chemicals can inhibit smell, disrupt reproductive behavior and 1589 physiology, impair immune function and lead to mortality through impairment of water balance when traveling 1590 between fresh and salt water systems (Varanasi et al. , 1993). Diffuse and extensive population centers contribute 1591 increased contaminant volumes and vari ety from such sources as wastewat er treatment plants and sprawling 1592 development. Urban runoff from impervious surfaces and roadways often contains oil, copper, pesticides, PAHs and 1593 other chemical pollutants and flow into surface waters. Point and nonpoint pollution sources entering rivers and their 1594 tributaries affect water quality in available spawning and rearing habitat for salmon. Juvenile salmonids that inhabit 1595 urban watersheds often carry high contaminant burdens, which is partly attributable to the biological transfer of 1596 contaminants through the food web (Varanasi et al. , 1993). 1597
Changes in hydrological regimes are closely linked to salmon abundance (Hicks et al. , 1991). From studies that have 1598 examined the effects of changes in land use patterns, we know that changes in hydrology can profoundly affect 1599 salmon abundance and the amount and availability of quality habitat. Hydrology is strongly correlated to early 1600 survival and can lead to the displacem ent of young fish as well as altering immigration and emigration timing which 1601 impacts the relative abundance of salmon within a watershed, as well as the relative abundance of age-classes (Hicks 160253 et al. , 1991; Gregory and Bisson, 1997). Such ecosystem changes are also likely to alter macroinvertebrate 1603 communities and habitats, affecting important forage for salmon and trout (McCarthy et al. , 2009; Williams et al. , 1604 2009). 1605

California Coastal Chinook Salmon 1606
Distribution and Descriptio n of the Listed Species 1607 The California Coastal Chinook salmon species includes all naturally spawned populations of Chinook salmon from 1608 rivers and streams south of the Klamath River to the Russian River, California. Seven artificial propagation 1609 programs are part of this species. California Coastal Chi nook salmon are a fall-run, ocean-type fish. A spring-run 1610 (river-type) component existed historically, but is now considered extinct (Bjorkstedt et al. , 2005). 1611

Status and Trends 1612 NMFS listed California Coastal Chinook salmon as threatened on September 16, 1999 (64 FR 50393) and they 1613 retained their threatened status on June 28, 2005 (70 FR 37160). California Coastal Chinook salmon were listed due 1614 to the combined effect of dams that prevent them from reaching spawning ha bitat, logging, ag ricultural activities, 1615 urbanization and water withdrawals in the river drainages that support them. Historical estimates of escapement, 1616 based on professional opinion and evaluation of habitat conditions, suggest abundance was roughly 73,000 in the 1617 early 1960s with the majority of fish spawning in the Eel River (Good et al. , 2005). Since its original listing and 1618 status review, little new data are available or suitable for analyzing trends or estimating changes in this population’s 1619 growth rate (Good et al. , 2005). 1620
Long-term trends in Sprowl and Tomki creeks (tributa ries of the Eel River), how ever, are negative. Good et al., 1621 (2005) caution against making inferences on the basin-wide status of these p opulations as they may be weak because 1622 the data likely include unquantified variability due to flow-related changes in spawners’ use of mainstem and 1623 tributary habitats. 1624

Critical Habitat 1625 NMFS designated critical habitat for California Coastal Chinook salmon on September 2, 2005 (70 FR 52488). 1626 Specific geographic areas designated include the following CALWATER hydrological units: Redwood Creek, 1627 Trinidad, Mad River, Eureka Plain, Eel River, Cape Mendocino, Mendocino Coast and the Russian River. These 1628 areas are important for the species’ overall conservation by protecting quality growth, reproduction and feeding. The 1629 critical habitat designation for this species identifies prim ary constituent elements that include sites necessary to 1630 support one or more Chinook salmon life stages. Specific sites include freshwater spawning sites, freshwater rearing 1631 sites, freshwater migration corridors, nearshore marine habitat and estuarine areas. The physical or biological 1632 features that characterize these sites include water qua lity and quantity, natural cover, forage, adequate passage 1633 conditions and floodplain connectivity. The critical habitat designation (70 FR 52488) contains additional details on 1634 the sub-areas that are included as part of this designa tion and the areas that were excluded from designation. 1635
In total, California Coastal Chinook salmon occupy 45 wa tersheds (freshwater and estuarine). The total area of 1636 habitat designated as critical includes about 1,500 miles of stream habitat and about 25 square miles of estuarine 1637 habitat, mostly within Humboldt Bay. This designation in cludes the stream channels w ithin the designated stream 1638 reaches and includes a lateral extent as defined by the ordi nary high water line. In areas where the ordinary high1639 water line is not defined the lateral extent is defined as the bankfull elevation. In estuarine areas the lateral extent is 1640 defined by the extreme high water because extreme high tide areas encompass those areas typically inundated by 1641 water and regularly occupied by juvenile salmon during the spring and summer, when they are migrating in the 164254 nearshore zone and relying on cover and refuge qualities provi ded by these habitats and while they are foraging. Of 1643 the 45 watershed reviewed in NMFS' assessment of criti cal habitat for California Coastal Chinook salmon, eight 1644 watersheds received a low rating of conservation value, 10 received a medium rating an d 27 received a high rating 1645 of conservation value for the species. 1646
Critical habitat in this species consists of limited quantity and quality summer and winter rearing habitat, as well as 1647 marginal spawning habitat. Compared to historical conditions, there are fewer pools, limited cover and reduced 1648 habitat complexity. The limited instream cover that does exist is provided mainly by large cobble and overhanging 1649 vegetation. Instream large woody debris, needed for foraging sites, cover and velocity refuges is especially lacking 1650 in most of the streams throughout the basin. NMFS has determined that these degraded habitat conditions are, in 1651 part, the result of many human-induced factors affecting critical habitat including dam construction, agricultural and 1652 mining activities, urbanization, stream channelization, water diversion and logging, among others. 1653

Central Valley Spring-Run Chinook Salmon 1654
Distribution and Descriptio n of the Listed Species 1655 The Central Valley spring-run Chinook salmon species includes all naturally spawned populations of spring-run 1656 Chinook salmon in the Sacramento River and its tributarie s in California. This species includes one artificial 1657 propagation program. Central Valley spring-run Chinook salmon species includes Chinook salmon entering the 1658 Sacramento River from March to July and spawning from late August through early October, with a peak in 1659 September. Spring-run fish in the Sacramento River e xhibit an ocean-type life history, emigrating as fry, sub1660 yearlings and yearlings. Central Valley spring-run Chinook salmon require cool freshwater while they mature over 1661 the summer. 1662

Status and Trends 1663 NMFS originally listed Central Valley spring-run Chinook salmon as threatened on September 16, 1999 (64 FR 1664 50393), a classification this species retained on June 28, 2005 (70 FR 37160). This sp ecies was listed because dams 1665 isolate them from most of their historic spawning habitat and the habitat remaining to them is degraded. Historically, 1666 spring-run Chinook salmon were predominant throughout the Central Valley occupying the upper and middle 1667 reaches (1,000 to 6,000 feet) of the San Joaquin, American, Yuba, Feather, Sacramento, McCloud and Pit Rivers, 1668 with smaller populations in most tributaries with sufficien t habitat for over-summering adults (Stone, 1874; Rutter, 1669 1904; Clark, 1929). 1670
The Central Valley drainage as a whole is estimated to have supported spring-run Chinook salmon runs as large as 1671 700,000 fish between the late 1880s and the 1940s (Fisher, 1994), although these estim ates may reflect an already 1672 declining population, in part from the commercial gillnet fishery that occurred in this species (Good et al. , 2005). 1673 Before construction of Friant Dam, nearly 50,000 adults were counted in the San Joaquin River alone (Fry, 1961). 1674 Following the completion of Friant Dam, the native popula tion from the San Joaquin River and its tributaries (i.e., 1675 the Stanislaus and Mokelumne Rivers) was extirpated. Spri ng-run Chinook salmon no longer exist in the American 1676 River due to the operation of Folsom Dam. Naturally spawning populations of Central Valley spring-run Chinook 1677 salmon currently are restricted to acce ssible reaches of the upper Sacramento River, Antelope Creek, Battle Creek, 1678 Beegum Creek, Big Chico Creek, Butte Creek, Clear Creek, Deer Creek, Feather River, Mill Creek and Yuba River 1679 (CDFG, 1998). Since 1969, the Central Valley spring-run Chinook salmon species (excluding Feather River fish) 1680 has displayed broad fluctuations in abundance ranging from 25,890 in 1982 to 1,403 in 1993 (Good et al. , 2005). 1681
As noted by Good et al., (2005), the average abundance fo r the species was 12,499 for the period of 1969 to 1979, 168255 12,981 for the period of 1980 to 1990 and 6,542 for the period of 1991 to 2001. In 2003 and 2004, total run size for 1683 the species was 8,775 and 9,872 adults respectively, well ab ove the 1991 to 2001 averag e. Evaluating the species as 1684 a whole, however, masks significant ch anges that are occurring among popul ations that comprise the species 1685 (metapopulation). For example, the mainstem Sacramento River population has undergone a significant decline 1686 while the abundance of many tributary populations increased. Average abundance of Sacramento River mainstem 1687 spring-run Chinook salmon recently declined from a high of 12,107 for the period 1980 to 1990, to a low of 609 for 1688 the period 1991 to 2001, while the average abundance of Sacramento River tributary po pulations increased from a 1689 low of 1,227 to a high of 5,925 over the same periods. 1690
Abundance time series data for Mill, Deer, Butte and Bi g Chico creeks spring-run Chinook salmon confirm that 1691 population increases seen in the 1990s have continued through 2001(Good et al. , 2005). Habitat improvements, 1692 including the removal of several small dams and increas es in summer flows in the watersheds, reduced ocean 1693 fisheries, and a favorable terrestrial an d marine climate, have likely contributed to this. All three spring-run Chinook 1694 salmon populations in the Central Valley have long-and short-term positive population growth. 1695

Critical Habitat 1696 NMFS designated critical habitat for Central Valley spring-run Chinook salmon on September 2, 2005 (70 FR 1697 52488). Specific geographic areas desi gnated include the following CALWA TER hydrological units: Tehama, 1698 Whitmore, Redding, Eastern Tehama, Sacramento Delta, Valley-Putah-Cache, Marysville, Yuba, Valley-American, 1699 Colusa Basin, Butte Creek and Shasta Bally hydrological units. These areas are important for the species’ overall 1700 conservation by protecting quality growth, reproduction and fe eding. The critical habitat designation for this species 1701 identifies primary constituent elements that include site s necessary to support one or more Chinook salmon life 1702 stages. Specific sites include freshwater spawning sites, freshwater rearing sites, fresh water migration corridors, 1703 nearshore marine habitat and estuarine ar eas. The physical or biolog ical features that characterize these sites include 1704 water quality and quantity, natural cover, forage, ade quate passage conditions and floodplain connectivity. The 1705 critical habitat designation (70 FR 52488) contains additional de tails on the sub-areas that are included as part of this 1706 designation and the areas that we re excluded from designation. 1707
In total, Central Valley spring-run Chinook salmon occupy 37 watersheds (freshwater and estuarine). The total area 1708 of habitat designated as critical includes about 1,100 miles of stream habitat and about 250 square miles of estuarine 1709 habitat in the San Francisco-San Pablo- Suisun Bay complex. This designation includes the stream channels within 1710 the designated stream reaches and include s a lateral extent as defined by the ordinary high water line. In areas where 1711 the ordinary high-water line is not defined the lateral extent is defined as the bankfull elevation. In estuarine areas 1712 the lateral extent is defined by the extreme high wate r because extreme high tide areas encompass those areas 1713 typically inundated by water and regularly occupied by juvenile salmon during the spring and summer, when they 1714 are migrating in the nearshore zone and relying on cover and refuge qualities provided by these habitats and while 1715 they are foraging. Of the 37 watersheds reviewed in NM FS' assessment of critical habitat for Central Valley spring1716 run Chinook salmon, seven watersheds received a low rating of conservation value, three received a medium rating 1717 and 27 received a high rating of co nservation value for the species. 1718
Factors contributing to the downward tr ends in this species include: redu ced access to spawning/rearing habitat 1719 behind impassable dams, climatic variation, water mana gement activities, hybridization with fall-run Chinook 1720 salmon, predation and harvest (CDFG, 1998). Several actions have been taken to improve and increase the primary 1721 constituent elements of critical habitat for spring-run Chinook salmon. These include improved management of 1722 Central Valley water, implementing new and improved screen and ladder designs at major water diversions along 1723 the mainstem Sacramento River and tributaries, removal of several small dams on important spring-run Chinook 172456 salmon spawning streams and changes in ocean and inland fishing regulations to minimize harvest. Although 1725 protective measures and critical habitat restoration likely ha ve contributed to recent increases in spring-run Chinook 1726 salmon abundance, the species is still below levels observed from the 1960s through 1990. Many threats still exist. 1727

Lower Columbia River Chinook Salmon 1728
The Lower Columbia River Chinook salmon species includes all naturally spawned populations of Chinook salmon 1729 from the Columbia River and its tributaries from its mout h at the Pacific Ocean upstream to a transitional point 1730 between Washington and Oregon, east of the Hood River and the White Salmon River and includes the Willamette 1731 River to Willamette Falls, Oregon, exclusive of spri ng-run Chinook salmon in the Clackamas River. 1732
Lower Columbia River Chinook salmon have three life history types, including early fall runs (tules), late fall runs 1733 (brights) and spring-runs. Spring and fall runs have been designated as part of a Lower Columbia River Chinook 1734 salmon species. The Cowlitz, Kalama, Lewis, White Salmon and Klickitat Rivers are the major river systems on the 1735 Washington side and the lower Willamette and Sandy Rivers are foremost on the Oregon side. The eastern boundary 1736 for this species occurs at Celilo Falls, which corresponds to the edge of the drier Columbia Basin Ecosystem and 1737 historically may have been a barrier to salmon migration at certain times of the year. Fall Chinook salmon typically 1738 enter the Columbia River in August through October to spawn in the mainstem of the large rivers (Kostow, 1995). 1739 Spring Chinook salmon enter freshwater in March through June to spawn in upstream tributaries and generally 1740 emigrate from fresh water as yearlings. 1741

Status and Trends 1742 NMFS originally listed Lower Columbia River Chinook salmon as threatened on March 24, 1999 (64 FR 14308); 1743 NMFS reaffirmed the threatened status of Lower Columbia River Chinook salmon on June 28, 2005 (70 FR 37160). 1744 Historical records of Chinook salmon ab undance are sparse, but cannery record s suggest a peak run of 4.6 million 1745 fish (43 million pounds) in 1883 (Lichatowich, 1999). A lthough fall-run Chinook salm on are still present throughout 1746 much of their historical range, they are still subject to la rge-scale hatchery production, relatively high harvest and 1747 extensive habitat degradation. The Lewis River late-fall-run Chinook salmon population is the healthiest and has a 1748 reasonable probability of being self-sustaining. Abundances largely declined during 1998 to 2000 and trend 1749 indicators for most popul ations are negative, especially if hatchery fish are assumed to have a reproductive success 1750 equivalent to that of natural-origin fish (Good et al. , 2005). Most populations for which data are available have a 1751 long-term declining population trend (Goodet al. , 2005). 1752

Critical Habitat 1753 NMFS designated critical habitat for Lower Columbia River Chinook salmon on September 2, 2005 (70 FR 52630). 1754 Designated critical habitat includes all Columbia River es tuarine areas and river reache s proceeding upstream to the 1755 confluence with the Hood Rivers as we ll as specific stream reaches in a numbe r of tributary subbasins. These areas 1756 are important for the species’ overall conservation by protecting quality growth, reproduction and feeding. The 1757 critical habitat designation for this species identifies prim ary constituent elements that include sites necessary to 1758 support one or more Chinook salmon life stages. Specific sites include freshwater spawning sites, freshwater rearing 1759 sites, freshwater migration corridors, nearshore marine habitat and estuarine areas. The physical or biological 1760 features that characterize these sites include water qua lity and quantity, natural cover, forage, adequate passage 1761 conditions and floodplain connectivity. Of 52 subbasins re viewed in NMFS' assessment of critical habitat for the 1762 Lower Columbia River Chinook salmon species, 13 subbasins were rated as having a medium conservation value, 1763 four were rated as low, and the remaining subbasins (35), were rated as having a high conservation value to Lower 1764 Columbia River Chinook salmon. Factors contributin g to the downward trends in this species are 176557 hydromorphological changes resulting from hydropower development, loss of tidal marsh and swamp habitat and 1766 degraded freshwater and marine habitat from industrial harbor and port development and urban development. 1767 Limiting factors identified for this species include reduced a ccess to spawning/rearing habitat in tributaries, hatchery 1768 impacts, loss of habitat diversity and channel stability in tr ibutaries, excessive fine sediment in spawning gravels, 1769 elevated water temperature in tr ibutaries and harvest impacts. 1770

Upper Columbia River Spring-run Chinook Salmon 1771
Distribution and Descriptio n of the Listed Species 1772 The Upper Columbia River spring-run Chinook salmon species includes all naturally spawned populations of 1773 Chinook salmon in all river reaches acces sible to Chinook salmon in Columbia River tributaries upstream of Rock 1774 Island Dam and downstream of Chief Joseph Dam in Wa shington, excluding the Okanogan River. Six artificial 1775 propagation programs are part of this species. Spring-run Chinook salmon currently spawn in only three river basins 1776 above Rock Island Dam: the Wenatchee, Entiat and Methow Rivers (Good et al. , 2005). 1777

Status and Trends 1778 NMFS listed Upper Columbia River spring-run Chinook salmon as endangered on March 24, 1999 (64 FR 14308), 1779 and reaffirmed their status as endangered on June 28, 2 005 (70 FR 37160), because they had been reduced to small 1780 populations in three watersheds. Based on redd count data series, spawning escapements for the Wenatchee, Entiat 1781 and Methow rivers have declined an average of 5.6%, 4.8% and 6.3% per year, respectively, since 1958. In the most 1782 recent 5-year geometric mean (1997 to 2001), spawning escapement for naturally produ ced fish was 273 for the 1783 Wenatchee population, 65 for the Entiat population, and 282 for the Methow population, only 8% to 15% of the 1784 minimum abundance thresholds, although escapement increased substantially in 2000 and 2001 in all three river 1785 systems. Based on 1980-2004 returns, the average annual gr owth rate for this species is estimated at 0.93 (meaning 1786 the population is not replacing itself; Fisher and Hinrichs en 2006). Assuming that population growth rates were to 1787 continue at 1980 to 2004 levels, Upper Columbia River spring-run Chinook salmon populations are projected to 1788 have very high probabilities of decline within 50 years. Population viability analyses for this species (using the 1789 Dennis Model) suggest that these Chinook salmon face a sign ificant risk of extinction: a 75 to 100% probability of 1790 extinction within 100 years (given return rates for 1980 to present). 1791
Hatchery influence and genetic diversity are significant is sues for the continued survival of Upper Columbia River 1792 Chinook salmon. This is a result of reduced genetic diversity from homogenization of populations that occurred 1793 under the Grand Coulee Fish Maintenance Project from 1939 to 1943. Stray hatchery fish and a high proportion of 1794 hatchery fish during spawning have contributed to the high genetic diversity risk. 1795

Critical Habitat 1796 NMFS designated critical habitat for Upper Columbia River spring-run Chinook salmon on September 2, 2005 (70 1797 FR 52630). The designation includes all Columbia River es tuaries and river reaches upstream to Chief Joseph Dam 1798 and several tributary subbasins. This de signation includes the stream channels within the designated stream reaches 1799 and includes a lateral extent as defined by the ordinary hi gh water line. In areas where th e ordinary high-water line is 1800 not defined the lateral extent is defined as the bankfull elevation. These areas are important for the species’ overall 1801 conservation by protecting quality growth, reproduction and fe eding. The critical habitat designation for this species 1802 identifies primary constituent elements that include site s necessary to support one or more Chinook salmon life 1803 stages. Specific sites include freshwater spawning sites, freshwater rearing sites, fresh water migration corridors, 1804 nearshore marine habitat and estuarine ar eas. The physical or biolog ical features that characterize these sites include 1805 water quality and quantity, natural cover, forage, ade quate passage conditions and floodplain connectivity. The 180658 Upper Columbia River spring-run Chinook salmon species has 31 watersheds within its range. Five watersheds 1807 received a medium rating and 26 receive d a high rating of conservation value to the species. The Columbia River 1808 rearing/migration corridor downstream of the spawning range was rated as a high conservation value. Factors 1809 contributing to the downward trends in this species include mainstem Columbia River hydropower system mortality, 1810 tributary riparian degradation and loss of in-river wood, altered tributary floodplain and channel morphology, 1811 reduced tributary stream flow and impaired passage and harvest impacts. 1812

Puget Sound Chinook Salmon 1813
Distribution and Descriptio n of the Listed Species 1814
The Puget Sound Chinook salmon species includes all naturally spawned populations of Chinook salmon from rivers 1815 and streams flowing into Puget Sound including the Straits of Juan De Fuca from the Elwha River, eastward, 1816 including rivers and streams flowing into Hood Canal, South Sound, North Sound and the Strait of Georgia in 1817 Washington. Twenty-six artificial propagation programs ar e part of the species. The Puget Sound species is 1818 comprised of 31 historical populations, of which 22 or more are believed to be extant and nine are considered 1819 extinct. 1820
Chinook salmon in this area generally have an “ocean-typ e” life history. Puget Sound populations include both 1821 early-returning and late-returning Chinook salmon spawners described by Healey (1991). However, within these 1822 generalized behavioral forms, significant variation occurs in residence time in fresh water and estuarine 1823 environments. For example, Hayman et al., (1996) described three juvenile Chinook salmon life histories with 1824 varying residency times in the Skagit River system in northern Puget Sound. Chinook salmon utilize nearshore 1825 Puget Sound habitats year-round, although they can be far from their natal river systems (Brennan et al. , 2004). 1826

Status and Trends 1827 NMFS listed Puget Sound Chinook salmon as threatened in 1999 (64 FR 14308); that status was reaffirmed on June 1828 28, 2005 (70 FR 37160). This species has lost 15 spawning aggregations (nine from the early-run type) that were 1829 either independent historical populations or major components of the remaining 22 existing independent historical 1830 populations identified (Good et al. , 2005). The disproportionate loss of early-run life history diversity represents a 1831 significant loss of the evolutionary legacy of the historical species. 1832
Data reported by Good et al., (2005) indicate that long term trends in abundance for this species are split with about 1833 half of the populations declining and the other half increasin g. In contrast, the short-term trend for four populations 1834 is declining. The overall long-term trend in abundance indi cates that, on average, popul ations are just replacing 1835 themselves. Estimates of the short-term median population growth rate ( λ ) (data years 1990-2002) indicate an even 1836 split between populations that are growing and those that are declining, although estimates would be lower for 1837 several populations if the fraction of naturally spawning hatchery fish were available for all populations within the 1838 species. For available data, when λ is calculated assuming that hatchery fish have the equivalent success of natural 1839 spawners then the largest estimated d ecline occurs in the Green River. Populations with the largest positive short 1840 and long-term trends include the White Rive r and the North Fork Nooksack River (Good et al. , 2005). Lambda for 1841 the Skagit River, which produces the most Chinook salmon in this species, has increased s lightly. Overall, the recent 1842 analysis by Good et al., (2005) illustrated that there has not be much change in this species since NMFS’ first status 1843 review (Busbyet al. , 1996). Individual populations have improved, while others have declined. However, the lack of 1844 information on the fraction of naturally spawning, hatchery-origin fish for 10 of the 22 populations that comprise 1845 this species limits our understanding of the trends in natu rally spawning fish for a la rge portion of the species. 184659 The estimated total run size of Chinook salmon in Puget Sound in the early 1990s was 240,000 fish, representing a 1847 loss of nearly 450,000 fish from hist oric numbers. During a recent 5-year pe riod, the geometric mean of natural 1848 spawners in populations of Puget Sound Chinook salmon ranged from 222 to just over 9,489 fish. Most populations 1849 had natural spawners numbering in the hundreds (median recent natural escapement is 766), and of the six 1850 populations with greater than 1,000 natural spawners, only two have a low fraction of hatchery fish. The populations 1851 with the greatest estimated component of hatchery fish tend to be in mid to southern Puget Sound, Hood Canal and 1852 the Strait of Juan de Fuca regions. Estimates of the hi storical equilibrium abundan ce, based on pre-European 1853 settlement habitat conditions, range from 1,700 to 51,000 potential Puget Sound Chinook salmon spawners per 1854 population. The historical estimates of spawner capacity are several orders of magnitude higher than spawner 1855 abundances currently observed throughout the species (Good et al. , 2005). 1856

Critical Habitat 1857 NMFS designated critical habitat for Puget Sound Chinook salmon on September 2, 2005 (70 FR 52630). The 1858 specific geographic area includes portions of the NooksackRiver, Skagit River, Sauk River, Stillaguamish River, 1859 Skykomish River, Snoqualmie River, Lake Washington, Green River, Puyallup River, White River, Nisqually River, 1860 Hamma Hamma River and other Hood Canal watersheds, the Dungeness/Elwha Watersheds and nearshore marine 1861 areas of the Strait of Georgia, Puget Sound, Hood Canal and the Strait of Juan de Fuca. This designation includes the 1862 stream channels within the designated stream reaches and in cludes a lateral extent as de fined by the ordinary high 1863 water line. In areas where the ordinary high water line is not defined the lateral extent is defined as the bankfull 1864 elevation. 1865
The designation for this species includ es sites necessary to support one or more Chinook salmon life stages. These 1866 areas are important for the species’ overall conservation by protecting quality growth, reproduction and feeding. 1867 Specific primary constituent elements include freshwater sp awning sites, freshwater r earing sites, freshwater 1868 migration corridors, nearshore marine habitat and estuar ine areas. The physical or biological features that 1869 characterize these sites include water quality and quantity, natural cover, forage, adequate passage conditions and 1870 floodplain connectivity. Of 49 subbasins (5th field Hydr ological Units) reviewed in NMFS' assessment of critical 1871 habitat for the Puget Sound species, nine subbasins were rated as having a medium conservation value, 12 were 1872 rated as low, and the remaining subbasins (40), where the bul k of Federal lands occur for this species, were rated as 1873 having a high conservation value to Puget Sound Chinook salmon. Factors contributing to the downward trends in 1874 this species are hydromorphological changes (such as diking, revetments, loss of secondary channels in floodplains, 1875 widespread blockages of streams and changes in peak flows), degraded freshwater and marine habitat affected by 1876 agricultural activities and urbanization and upper river tributar ies widely affected by poor forest practices. Changes 1877 in habitat quantity, availability, diversity, flow, temper ature, sediment load and channel stability are common 1878 limiting factors in areas of critical habitat. 1879

Sacramento River Winter-Run Chinook Salmon 1880
Distribution and Descriptio n of the Listed Species 1881 The Sacramento River winter-run Chinook salmon species in cludes all naturally spawned populations of winter-run 1882 Chinook salmon in the Sacramento River and its tributarie s in California. Two artificial propagation programs are 1883 included in this species. 1884
This species consists of a single spawning population th at enters the Sacramento River and its tributaries in 1885 California from November to June and spawns from late April to mid-August, with a peak from May to June (Good 1886 et al. , 2005). Sacramento River winter-run Chinook salmon hist orically occupied cold, h eadwater streams, such as 188760 the upper reaches of the Little Sacramento, McCloud an d lower Pit Rivers. Young winter-run Chinook salmon 1888 venture to sea in November and December, after only four to seven months in fresh water (Groot and Margolis., 1889 1991). 1890

Status and Trends 1891 NMFS listed Sacramento River winter-run Chinook salmon as endangered on January 4, 1994 (59 FR 440), and 1892 reaffirmed their status as endangered on June 28, 2005 (70 FR 37160), b ecause dams restrict access to a small 1893 fraction of their historic spawning habitat and the habitat remaining to them is degraded. Sacramento River winter1894 run Chinook salmon consist of a single self-sustaining population which is entirely dependent upon the provision of 1895 suitably cool water from Shasta Reservoir during periods of spawning, incubation and rearing. 1896

Construction of Shasta Dams in the 19 40s eliminated access to hi storic spawning habitat for winter-run Chinook 1897 salmon in the basin. Winter-run Chinook salmon were not e xpected to survive this habitat alteration (Moffett, 1949). 1898 However, cold water releases from Shasta Dam have created conditions suitable for winter Chinook salmon for 1899 roughly 60 miles downstream from the dam. As a resu lt the species has been reduced to a single spawning 1900 population confined to the mainstem Sacramento River below Keswick Dam, although some adult winter-run 1901 Chinook salmon were recently observed in Battle Creek , a tributary to the upper Sacramento River. 1902
Quantitative estimates of run-size are not available for the period before 1996, the completion of Red Bluff 1903 Diversion Dam. However, winter-runs may have been as large as 200,000 fish based upon commercial fishery 1904 records from the 1870s (Fisher, 1994). The California Department of Fish and Game estimated spawning 1905 escapement of Sacramento River winter-run Chinook salm on at 61,300 (60,000 in the mainstem, 1,000 in Battle 1906 Creek and 300 in Mill Creek) in the early 1960s. During the first 3 years of operation of the county facility at the 1907 Red Bluff Diversion Dam (1967 to 1969), the spawning run of winter-run Chinook salmon averaged 86,500 fish. 1908 From 1967 through the mid-1990s, the population declined at an average rate of 18% per year, or roughly 50% per 1909 generation. The population reached critically low levels during the drought of 1987 to 1992; the 3-year average run 1910 size for the period of 1989 to 1991 was 388 fish. Based on the Red Bluff Diversion Dam counts, the population has 1911 been growing rapidly since the 1990s. Mean run size from 1995-2000 has been 2,191, but have ranged from 364 to 1912 65,683 (Good et al. , 2005). Most recent estimates indicate that the short term trend is 0.26, while the population 1913 growth rate is still less than 1(Goodet al. , 2005). The draft recovery goal for th e species is an average of 10,000 1914 female spawners per year and a population growth ra te >1.0, calculated over 13 years of data (Good et al. , 2005). 1915

Critical Habitat 1916 NMFS designated critical habitat for Sacramento River winter-run Chinook salmon on June 16, 1993 (58 FR 1917 33212). The following areas consisting of the water, waterway bottom and adjace nt riparian zones: the Sacramento 1918 River from Keswick Dam, Shasta County (river mile 302) to Chipps Island (river mile 0) at the westward margin of 1919 the Sacramento-San Joaquin Delta and other specified estuarine waters. Thes e areas are important for the species’ 1920 overall conservation by protecting quality growth, reproducti on and feeding. Factors contributing to the downward 1921 trends in this species include reduced access to spawning/r earing habitat, possible loss of genetic integrity through 1922 population bottlenecks, inadequately screened diversions, pr edation at artificial structures and by nonnative species, 1923 pollution from Iron Mountain Mine and other sources, adverse flow conditions, high summer water temperatures, 1924 unsustainable harvest rates, passage problems at va rious structures and vulnerability to drought (Good et al. , 2005). 192561 Snake River Fall-Run Chinook Salmon 1926
Distribution and Descriptio n of the Listed Species 1927 The Snake River fall-run Chinook salmon species includes all naturally spawned populations of fall-run Chinook 1928 salmon in the mainstem Snake River below Hells Canyon Dam, and in the Tucannon River, Grande Ronde River, 1929 Imnaha River, Salmon River and Clearwater River subbasins. Four artificial propagation pr ograms are part of this 1930 species. 1931
Historically, the primary fall-run Chinook salmon spawni ng areas occurred on the upper mainstem Snake River 1932 (Connor et al. , 2005). A series of Snake River dams blocke d access to the upper reaches, which significantly 1933 reduced spawning and rearing habitat. Consequently, salmon now reside in waters that are generally cooler than pre1934 dam habitats. Currently, natural spawning occurs at the upper end of Lower Granite Reservoir to Hells Canyon 1935 Dam, the lower reaches of the Imnaha, Grande Ronde, Clearwater and Tucannon rivers and small mainstem sections 1936 in the tailraces of the lower Sn ake River hydroelectric dams. 1937
Adult Snake River fall-run Chinook salmon enter the Columbia River in July and August, and spawning occurs from 1938 October through November. Juveniles emerge from the gravels in March and April of the following year, moving 1939 downstream from natal spawning and early rearing areas from June through early autumn. Prior to dam construction, 1940 fall Chinook salmon were primarily ocean-type (migrated downstream and reared in the mainstem Snake River 1941 during their first year). However, today both an ocean-type and reservoir-type occur (Connor et al. , 2005). The 1942 reservoir-type juveniles overwinter in pools created by dams before migrating to sea; this response is likely due to 1943 early development in cooler temperatur es which prevents rapid growth. Phenotypic characteristics have shifted in 1944 apparent response to environmental changes from hydroelectric dams (Connor et al. , 2005). Migration downstream 1945 appears to be influenced by flow velocity within both river and reservoir systems (Tiffan et al. , 2009). 1946

Status and Trends 1947 NMFS originally listed Snake River fall-run Chinook salmon as endangered in 1992 (57 FR 14653) but reclassified 1948 their status as threatened on June 28, 2005 (70 FR 37160). Estimated annual returns for the period 1938 to 1949 was 1949 72,000 fish, and by the 1950s, numbers had declined to an annual average of 29,000 fish (Bjornn and Horner 1980). 1950 Numbers of Snake River fall-run Chinook salmon continued to decline during the 1960s and 1970s as approximately 1951 80% of their historic habitat was eliminated or severely degraded by the construction of the Hells Canyon complex 1952 (1958 to 1967) and the lower Snake River dams (1961 to 1975). Counts of natural-origin adult Snake River fall-run 1953 Chinook salmon at Lower Granite Dam were 1,000 fish in 1975, and ranged from 78 to 905 fish (with an average of 1954 489 fish) over the ensuing 25-year period (Good et al. , 2005). Numbers of natural-origin Snake River fall-run 1955 Chinook salmon have increased over the last few years, with estimates at Lower Granite Dam of 2,652 fish in 2001, 1956 2,095 fish in 2002, and 3,895 fish in 2003. 1957
Snake River fall-run Chinook salmon have exhibited an upward trend in returns over Lower Granite Dam since the 1958 mid 1990s. Returns classified as natural-origin spawners exceeded 2,600 fish in 2001, compared to a 1997 to 2001 1959 geometric mean natural-origin count of 871 (35% of the proposed delisting abundance criteria of 2,500 natural 1960 spawners averaged over 8 ye ars). Both the long- and shor t-term trends in natural returns are positive. Harvest 1961 impacts on Snake River fall Chinook salmon declined after listing and have remained relatively constant in recent 1962 years. Mainstem conditions for sub-yearling Chinook migrants from the Snake River have generally improved since 1963 the early 1990s. The hatchery component, derived from outside the basin, has decreased as a percentage of the run at 1964 Lower Granite Dam from the 1998/99 status reviews (5-year average of 26.2%) to 2001 (8%). This reflects an 1965 increase in the Lyons Ferry component, systematic removal of marked hatchery fish at the Lower Granite trap, and 196662 modifications to the Umatilla supplementation program to increase homing of fall Chinook salmon release groups. 1967 Hatcheries stocking fish to the Snake River fall run produce genetic affects in the population due to three major 1968 components: natural-origin fish (which may be progeny of hatchery fish), returns of Snake River fish from the 1969 Lyons Ferry Hatchery program and strays from hatchery programs outside the Snake River. 1970

Critical Habitat 1971 NMFS designated critical habitat for Snake River fall-run Chinook salmon on December 28, 1993 (58 FR 68543). 1972 This critical habitat encompasses the waters, waterway bottoms and adjacent riparian zones of specified lakes and 1973 river reaches in the Columbia River that are or were accessible to ESA listed Snake River salmon (except reaches 1974 above impassable natural falls and Dworshak and Hells Ca nyon Dams). These areas are important for the species’ 1975 overall conservation by protecting quality growth, reproduction and feeding. Adjacent riparian zones are defined as 1976 those areas within a horizontal distance of 300 feet from th e normal line of high water of a stream channel or from 1977 the shoreline of a standing body of water. Designated critic al habitat includes the Columbia River from a straight 1978 line connecting the west end of the Clatsop jetty (Oregon side) and the west end of the Peacock jetty (Washington 1979 side) and including all river reaches fr om the estuary upstream to the confluence of the Snake River and all Snake 1980 River reaches upstream to Hells Canyon Dam. Critical ha bitat also includes several river reaches presently or 1981 historically accessible to Snake River fall-run Chinook salmon. Limiting factors identified for Snake River fall-run 1982 Chinook salmon include: mainstem lower Snake and Columbia hydrosystem mortality, degraded water quality, 1983 reduced spawning and rearing habitat due to mainstem lower Snake River hydropower system, harvest impacts, 1984 impaired stream flows, barriers to fish passage in tributaries, excessive sediment and altered floodplain and channel 1985 morphology (NMFS, 2005b). 1986

Snake River Spring/Summer-Run Chinook Salmon 1987
Distribution and Descriptio n of the Listed Species 1988 The Snake River spring/summer-run Chinook salmon species includes all naturally spawned populations of 1989 spring/summer-run Chinook salmon in the mainstem Snake River and the Tucannon River, Grande Ronde River, 1990 Imnaha River and Salmon River subbasins. Fifteen artific ial propagation programs are part of the species. The 1991 Interior Columbia Basin Technical Recovery Team has identified 32 populations in five major population groups 1992 (Upper Salmon River, South Fork Salmon River, Middle Fork Salmon River, Grande Ronde/Imnaha, Lower Snake 1993 Mainstem Tributaries) for this species. Historic popu lations above Hells Canyon Dam are considered extinct 1994 (ICBTRT, 2003). 1995
Snake River spring/summer-run Chinook salmon have a stream -type life history. Spawning occurs in late summer 1996 and early fall and eggs incubate over the following winter an d hatch in late winter and early spring of the following 1997 year. Juveniles mature in the river for one year before mi grating to the ocean in the spring of their second year. 1998 Larger outmigrants have a higher survival rate during outmigration (Zabel and Williams, 2002; Zabel and Achord, 1999 2004). Depending on tributary and the specific habitat conditions, juveniles ma y migrate widely from natal reaches 2000 into alternative summer-rearing or overwintering areas. Spawners return to spawn primarily as 4- and 5-year-olds 2001 after 2 to 3 years in the ocean. 2002

Status and Trends 2003 NMFS originally listed Snake River spring/summer-run Chin ook salmon as threatened on April 22, 1992 (57 FR 2004 14653), and reaffirmed their status as threatened on June 28, 2005 (70 FR 37160). Although direct estimates of 2005 historical annual Snake River spring/summer Chinook salmon returns are not available, returns may have declined 2006 by as much as 97% between the late 1800s and 2000. Acco rding to Matthews and Waples (1991), total annual Snake 200763 River spring/summer Chinook salmon production may have exceeded 1.5 million adult fish in the late 1800s. Total 2008 (natural plus hatchery origin) returns fell to roughly 100,000 spawners by the late 1960s (Fulton, 1968). The 1997 to 2009 2001 geometric mean total return for the summer run component at Lower Granite Dam was slightly more than 2010 6,000 fish, compared to the geometric mean of 3,076 fish for the years 1987 to 1996 (Good et al. , 2005). Good et 2011 al., (2005) reported that risks to individual populations within the species may be greater than the extinction risk for 2012 the entire species due to low levels of annual abundance and the extensive production ar eas within the Snake River 2013 basin. Although the average abundan ce in the most recent decade is more ab undant than th e previous decade, there 2014 is no obvious long-term trend. 2015

Critical Habitat 2016 NMFS designated critical habitat for Snake River spring/ summer-run Chinook salmon on October 25, 1999 (64 FR 2017 57399). This critical habitat encompasses the waters, wate rway bottoms and adjacent ri parian zones of specified 2018 lakes and river reaches in the Columbia River that are or were accessible to ESA listed Snake River salmon (except 2019 reaches above impassable natural falls an d Dworshak and Hells Canyon Dams). Adjacent riparian zones are defined 2020 as those areas within a horizontal distan ce of 300 feet from the normal line of high water of a stream channel or 2021 from the shoreline of a standing body of water. Design ated critical habitat includes the Columbia River from a 2022 straight line connecting the west end of the Clatsop jetty (Oregon side) an d the west end of the Peacock jetty 2023 (Washington side) and including all river reaches from th e estuary upstream to the co nfluence of the Snake River 2024 and all Snake River reaches upstream to Hells Canyon Dam; the Palouse River from its confluence w ith the Snake 2025 River upstream to Palouse Falls, the Clearwater River fr om its confluence with the Snake River upstream to its 2026 confluence with Lolo Creek; the No rth Fork Clearwater River from its confluence with the Clearwater river 2027 upstream to Dworshak Dam. Critical habita t also includes several river reaches presently or historically accessible to 2028 Snake River spring/summer Chinook salmon. These areas are important for the species’ overall conservation by 2029 protecting quality growth, reproduction and feeding. Limiting factors identified for this species include hydrosystem 2030 mortality, reduced stream flow, altered channel morphology and floodplain, excessive fine sediment and degraded 2031 water quality (NMFS, 2006). 2032

Upper Willamette River Chinook Salmon 2033
Distribution and Descriptio n of the Listed Species 2034 The Upper Willamette River Chinook salmon species includes all naturally spawned populations of spring-run 2035 Chinook salmon in the Clackamas River and in the Willame tte River, and its tributaries, above Willamette Falls, 2036 Oregon. Seven artificial propagation programs are part of the species. 2037
Upper Willamette River Chinook salmon occupy the Willamette River and its tributaries. All spring-run Chinook 2038 salmon in the species, except those entering the Clackamas River, must pass Willamette Falls. In the past, this 2039 species included sizable numbers of spawning salmon in th e Santiam River, the middle fork of the Willamette River, 2040 and the McKenzie River, as well as smaller numbers in the Molalla River, Calapooia River and Albiqua Creek. 2041 Historically, access above Willamette Falls was restricted to the spring when flows were high. In autumn, low flows 2042 prevented fish from ascending past the falls. The Upper Willamette spring-run Chinook salmon are one of the most 2043 genetically distinct Chinook salmon groups in the Columbia River Basin. Upper Willamette River Chinook salmon 2044 enter the Columbia River and estuary earlier th an other spring Chinook salmon species (Meyers et al. , 1998). Fall2045 run Chinook salmon spawn in the Upper Willamette but are not considered part of the species because they are not 2046 native. 204764 Status and Trends 2048 NMFS originally listed Upper Willamette River Chinook salm on as threatened on March 24, 1999 (64 FR 14308), 2049 and reaffirmed their status as threatened on June 28, 2005 (70 FR 37160). The total abundance of adult spring-run 2050 Chinook salmon (hatchery-origin plus natural-origin fish) passing Willamette Falls has remained relatively steady 2051 over the past 50 years (ranging from approximately 20,000 to 70,000 fish), but it is an order of magnitude below the 2052 peak abundance levels observed in the 1920s (approximately 300,000 adults). Until recent years, interpretation of 2053 abundance levels has been confounded by a high but uncertain fraction of hatchery-produced fish. Although the 2054 number of adult spring-run Chinook salmon crossing Willamette Falls is in the same range (about 20,000 to 70,000 2055 adults) it has been for the last 50 years, a large fraction of these are hatche ry produced. Estimates of the percentage 2056 of hatchery fish range according to tributary, several of which exceed 70% (Good et al. , 2005). The Calapooia River 2057 is estimated to contain 100% hatchery fish. Insufficient information on hatchery production in the past prevents a 2058 meaningful analysis of the population trend; ther efore no formal trend analysis is available. 2059
Most natural spring Chinook salmon populations of the Up per Willamette River are likely extirpated or nearly so, 2060 with only one remaining naturally reproducing population identified in this species: the spring Chinook salmon in 2061 the McKenzie River. Unfortunately, recently short-term de clines in abundance suggest that this population may not 2062 be self-sustaining (Meyers et al. , 1998). Abundance in this population has been relatively low (low thousands) with 2063 a substantial number of these fish being of hatchery or igin. The population increased substantially from 2000 to 2064 2003, probably due to increased survival in the ocean. Future survival ra tes in the ocean are unpredictable, and the 2065 likelihood of long-term sustainability for this population has not been determined. Of concern is that a majority of 2066 the spawning habitat and approximately 30 to 40% of tota l historical habitat are no longer accessible because of 2067 dams (Good et al. , 2005). Individuals from the species migrate far north and are caught incidentally in ocean 2068 fisheries, particularly off southeast Alaska and norther n Canada, and in the mainstem Columbia and Willamette 2069 rivers during spring. 2070

Critical Habitat 2071 NMFS designated critical habitat for Upper Willamette River Chinook salmon on September 2, 2005 (70 FR 2072 52630). Critical habitat for upper Willamette River Chinook salmon includes defined areas within subbasins of the 2073 middle fork Willamette River, upper Willamette River, Mc Kenzie River, Santiam River, Crabtree Creek, Molalla 2074 River and Clackamas River. This design ation includes the stream channels w ithin the designated stream reaches and 2075 includes a lateral extent as defined by the ordinary high wa ter line. In areas where the or dinary high-water line is not 2076 defined the lateral extent is defined as the bankfull elevation. The critical habitat designation for this species 2077 identifies primary constituent elements that include site s necessary to support one or more Chinook salmon life 2078 stages. Specific sites include freshwater sp awning and rearing sites, freshwater migration corridors. The physical or 2079 biological features that characterize these sites include water quality and quantity, natural cover, forage, adequate 2080 passage conditions and floodplain connectivity. Of 65 subbas ins reviewed in NMFS’ assessment of critical habitat 2081 for the Upper Willamette River Chinook salmon species, 19 subbasins were rated as having a medium conservation 2082 value, 19 were rated as low, and the 27 remaining subb asins were rated as having a high conservation value to 2083 Upper Willamette River Chinook salmon. Federal lands were generally rated as having high conservation value to 2084 the species’ spawning and rearing. Fact ors contributing to the downward tren ds in this species include reduced 2085 access to spawning/rearing hab itat in tributaries, hatchery impacts, altered water quality and temperature in 2086 tributaries, altered stream flow in tributaries and lost or degraded flo odplain connectivity and lowland stream 2087 habitat. 2088

Chum Salmon 2089 Chum salmon are more widely distributed than other salmon and may have at one time made up nearly 50% of the 209065 Pacific salmon biomass in the Pacific Ocean (Salo, 1991). Historically, chum salmon were distributed throughout 2091 the coastal regions of western Canada and the U.S., as far s outh as Monterey Bay, California, to the Arctic coast and 2092 east to the Mackenzie River, in the Beaufort Sea. They also ranged in Asia from Korea to the Arctic coast of the 2093 Soviet Union and west to the Lena River. Presently, major spawning populations on the west coast of the U.S. are 2094 found only as far south as Tillamook Bay on the northern Or egon coast. In this section of our Opinion, we discuss 2095 the distribution, status and critical habitats of the two listed species of threatened chum salmon separately. However, 2096 because chum salmon species share many characteristics, we begin this section describing those characteristics 2097 common across species. 2098
There are no known landlocked or naturalized freshwater populations of chum salmon. Like Chinook salmon, chum 2099 salmon are semelparous (Randall et al ., 1987 as cited in Johnson et al. , 1997). Their general life cycle spans fresh 2100 and marine waters, although chum salmon are more marine oriented than the other Pacific salmon. Chum salmon 2101 spend 2 to 5 years in feeding areas in the northeast Pacific Ocean (Johnson et al. , 1997). Chum salmon distribute 2102 throughout the North Pacific Ocean and Bering Sea (Neave et al ., 1976 as cited in Johnson et al. , 1997). 2103
Spawning migrations generally occur in the summer and fall; the precise spawn timing and migration varies across 2104 populations. Generally, spawning runs consist of fish between 2 and 5 years of age. Fecundity is highly variable and 2105 is correlated with body size and regi on (Salo, 1991). Once theyemerge from their gravel nests, chum salmon fry 2106 outmigrate to seawater almost immedi ately (Salo, 1991). This ocean-type migratory behavior contrasts with the 2107 stream-type behavior of other species in its genus. Because of their small size chum salmon will form loosely 2108 aggregated schools, presumably to reduce predation by swamping predators (Miller and Brannon 1982; Pitcher 2109 1986). 2110
Generally, chum fry emigrate to estuaries between March th rough May where they forage on epibenthic and neritic 2111 food resources. The timing of juvenile entry into sea water is commonly correlated with nearshore warming and 2112 associated plankton blooms (Groot and Margolis., 1991). As food resources decline and the fish grow, they move 2113 further out to forage on pelagic and nektonic organisms (Simenstad and Salo, 1982; Salo, 1991). Migratory studies 2114 indicate that chum salmon in their first year of life will typically maintain a coastal migratory pattern although the 2115 pattern is variable as they mature at sea. At sea chum salmon feed on pter opods, euphausiids, amphipods, fish and 2116 squid larvae (Salo, 1991). 2117

Threats 2118 Natural Threats . Chum salmon are exposed to high rates of natura l predation each stage of their life stage and in 2119 particular during migration. Mortality at emergence or prior to emergence is significant because eggs develop in the 2120 interstitial spaces in the stream gravel an d storm surges that redeposit gravels an d wash out eggs or introduce silt to 2121 the interstitial spaces can reduce egg surv ival. Other factors that reduce egg su rvival and larvae development include 2122 low dissolved oxygen, poor percolation and extreme cold or warm temperatures. 2123
Anthropogenic Threats. Chum salmon, like the other listed salmon, have declined under the combined effects of 2124 overharvests in fisheries; competition from fish raised in hatcheries and native and non-native exotic species; dams 2125 that block their migrations and alter river hydrology; gravel mining that impedes their migration and alters the 2126 dynamics (hydrogeomorphology) of the rivers and streams that support juveniles; water diversions that deplete 2127 water levels in rivers and streams; destruction or degradati on of riparian habitat that increases water temperatures in 2128 rivers and streams sufficient to reduce the survival of juvenile chum salmon; and land use practices (logging, 2129 agriculture, urbanization) that destroy wetland and riparian ecosystems while introducing sediment, nutrients, 2130 biocides, metals and other pollutants into surface and gr ound water and degrade water quality in the fresh water, 213166 estuarine and coastal ecosystems throug hout the Pacific Northwest. These thr eats are the same as those summarized 2132 in detail under the Chinook salmon of this section. 2133

Columbia River Chum Salmon 2134
Distribution and Descriptio n of the Listed Species 2135 The Columbia River chum species includes all naturally spawned populations of chum salmon in the Columbia 2136 River and its tributaries in Washington and Oregon. Three artificial propagation programs are part of the species. 2137
Most of the chum salmon that comprise this species return to northern tributaries of the Columbia River (in 2138 Washington State), primarily the Grays River, in areas immediately below Bonneville Dam and in smaller numbers 2139 under the I-205 bridge near Vancouver. Chum populations that formerly occupied tributaries on the south bank of 2140 the Columbia (in Oregon) are considered extirpated or nearly so. Observers have documented spawning over 2141 multiple years in the mainstem Columbia River, near McCord Creek and Multnomah Falls in Oregon, although the 2142 number of spawners in these areas are generally quite low (McElhany et al. , 2007). 2143

Status and Trends 2144 NMFS listed Columbia River chum salmon as threatened on March 25, 1999, and reaffirmed their threatened status 2145 on June 28, 2005 (71 FR 37160). Chum salmon in the Columbia River once numbered in the hundreds of thousands 2146 of adults and were reported in almost every river in the Lower Columbia River basin, but by the 1950s most runs 2147 disappeared (Rich, 1942; Marr, 1943; Fulton, 1970). The total number of chum salmon returning to the Columbia 2148 River in the last 50 years has averaged a few thousand per year, with returns limited to a very restricted portion of 2149 the historical range. Significant spawning occurs in only two of the 16 historical populations, meaning that 88% of 2150 the historical populations are extirpated, or nearly so (Good et al., 2005 ) . The two remaining populations are the 2151 Grays River and the lower Columbia Gorge tributaries (Good et al. , 2005). Both long- and short-term trends for 2152 Grays River abundance are negative, but the current trend in abundance for the lower Columbia Gorge tributaries is 2153 slightly positive. Chum salmon appear to be extirpated from the Oregon portion of this species. In 2000, ODFW 2154 conducted surveys to determine the abundance and distribution of chum salmon in the Columbia River, and out of 2155 30 sites surveyed, only one chum salmon was observed. 2156

Few Columbia River chum salmon have been observed in tributaries between The Dalles and Bonneville dams. 2157 Surveys of the White Salmon River in 2002 found one male and one female carcass, with no evidence of spawning 2158 (Ehlke and Keller, 2003). Chum salmon were not observed in any upper Columbia Gorge tributaries during the 2003 2159 and 2004 spawning ground surveys. Finally, most Columbia River chum populations have been functionally 2160 extirpated or are presently at very low abundance levels. 2161
Historically, the Columbia River chum salmon supported a la rge commercial fishery in the first half of this century 2162 which landed more than 500,000 fish per year as recen tly as 1942. Commercial catches declined beginning in the 2163 mid-1950s, and in later years rarely exceeded 2,000 per year (Good et al. , 2005). During the 1980s and 1990s, the 2164 combined abundance of natural spawners for the lower Columbia Gorge, Washougal and Grays River populations 2165 was below 4,000 adults. In 2002, however, the abundance of natural spawners exhibited a substantial increase at 2166 several locations (estimate of natural spaw ners is approximately 20,000 adults) (Good et al. , 2005). The cause of this 2167 dramatic increase in abundance is unknown. However, long- and short-term productivity trends for populations are 2168 at or below replacement. The loss of off-channel habitat and the extirpation of approximately 17 historical 2169 populations increase this species’ vulnerability to enviro nmental variability and catastrophic events. Overall, the 2170 populations that remain have low abundance, limited distribution and poor connectivity (Good et al. , 2005). 217167 Critical Habitat 2172 NMFS designated critical habitat for Columbia River chum salmon on September 2, 2005 (70 FR 52630). The 2173 designated includes defined areas in the following subbasins: Middle Columbia/Hood, Lower Columbia/Sandy, 2174 Lewis, Lower Columbia/Clatskanie, Lower Cowlitz, Lower Columbia subbasin and river corridor. This designation 2175 includes the stream channels within the designated stream reaches and includes a lateral extent as defined by the 2176 ordinary high water line. In areas where the ordinary high-water line is not defined the lateral extent is defined as the 2177 bankfull elevation. 2178
The critical habitat designation for this species identifies primary constituent elem ents that include sites necessary to 2179 support one or more chum salmon life stages. These areas are important for the species’ overall conservation by 2180 protecting quality growth, reproduction and feeding and are rated as having high conservation value to the species. 2181 Columbia River chum salmon have primary constituent el ements of freshwater spaw ning, freshwater rearing, 2182 freshwater migration, estuarine areas free of obstruction, ne arshore marine areas free of obstructions and offshore 2183 marine areas with good water quality. The physical or biolog ical features that characterize these sites include water 2184 quality and quantity, natural cover, forage, adequate pa ssage conditions and floodplain connectivity. Of 21 2185 subbasins reviewed in NMFS' assessment of critical hab itat for the Columbia River chum salmon species, three 2186 subbasins were rated as having a medium conservation value, no subbasins were rated as low, and the majority of 2187 subbasins (18), were rated as having a high conservation value to Columbia River chum salmon. The major factors 2188 limiting recovery for Columbia River chum salmon are alte red channel form and stability in tributaries, excessive 2189 sediment in tributary spawning gravels, altered stream flowin tributaries and the mainstem Columbia River, loss of 2190 some tributary habitat types and harassment of spawners in the tributaries and mainstem. 2191

Hood Canal Summer-Run Chum Salmon 2192
Distribution and Descriptio n of the Listed Species 2193 The Hood Canal summer-run chum salmon species includes all naturally spawned populations of summer-run chum 2194 salmon in Hood Canal and its tributaries as well as populations in Olympic Peninsula rivers between Hood Canal 2195 and Dungeness Bay, Washington (64 FR 14508) from mid-September to mid-October (WDF, 1993), but may enter 2196 natal rivers in late August. Eight artificial propagation programs are considered to be part of the species. 2197
On average Hood Canal chum salmon reside in estuaries for 23 days; daily tidal migrations have not been observed, 2198 but prey availability does influence movement patterns (Bax, 1983). Upon leaving their natal estuaries summer-run 2199 chum salmon generally migrate through Hood Canal and into the main body of Puget Sound. 2200

Status and Trends 2201 NMFS listed Hood Canal summer-run chum salmon as threatened on March 25, 1999 (64 FR 14508), and 2202 reaffirmed as threatened on June 28, 2005 (70 FR 37160). Historically, Hood Canal summer-run chum salmon 2203 comprised an estimated 16 populations. Only eight extant populations remain within this species (Good et al. , 2005). 2204 Most of the extirpated populations historically occurred on the eastern side of Hood Canal, which is cause for 2205 concern over the current spatial structure of this species. The widespread loss of estuary and lower floodplain habitat 2206 is a continuing threat to species spatial structure and connectivity. 2207
Although adult returns for some populations showed modest improvements in 2000, with upward trends continuing 2208 in 2001 and 2002 (Good et al. , 2005), the recent 5-year mean abundance is variable among populations in the 2209 species, ranging from one fish to nearly 4,500 fish in the Big/Little Quilcene rivers. Hood Canal summer-run chum 2210 are the focus of an extensive rebuilding program developed and implemented since 1992 by the State and Tribal 221168 comanagers. Two populations (the combined Quilcene and Union River populations) are above the conservation 2212 thresholds established by the rebuilding plan. However, most populations remain depressed. Estimates of the 2213 fraction of naturally spawning hatchery fish exceed 60% for some populations, indicating that reintroduction 2214 programs are supplementing the numbers of total fish spawning naturally in streams (Good et al. , 2005). Long-term 2215 trends in productivity are above replacement for only the Quilcene an d Union River populations (Good et al. , 2005). 2216 Buoyed by recent increases, seven populations are exhib iting short-term productivity trends above replacement. 2217
Of the eight programs releasing summer-run chum salmon that are considered to be part of the Hood Canal summer 2218 chum species, six of the programs are supplementation programs implemented to preserve and increase the 2219 abundance of native populations in their natal watersheds. NMFS’ assessment of the effects of artificial propagation 2220 on species extinction risk concluded that these hatchery programs collectively do not substantially reduce the 2221 extinction risk of the species. The ha tchery programs are reducing risks to species abundance by increasing total 2222 species abundance as well as the number of na turally spawning summer-run chum salmon. 2223

Critical Habitat 2224 NMFS designated critical habitat for Hood Canal summer-run chum salmon on September 2, 2005 (70 FR 52630). 2225 The specific geographic area includes the Skokomish River, Hood Canal subbasin, which includes the Hamma 2226 Hamma and Dosewallips rivers and others, the Puget Sound subbasin, Dungeness/Elwha subbasin and nearshore 2227 marine areas of Hood Canal and the Strait of Juan de Fuca from the line of extreme high tide to a depth of 30 meters. 2228 This includes a narrow nearshore zone from the extrem e high-tide to mean lower low tide within several Navy 2229 security/restricted zones. This also includes about 8 miles of habitat that was unoccupied at the time of the 2230 designation Finch, Anderson and Chimacum creeks (69 FR 74572; 70 FR 52630), but has recently been re-seeded. 2231 The designation for Hood Canal summer-run chum, like others made at this time, includes the stream channels 2232 within the designated stream reaches and includes a lateral exte nt as defined by the ordinary high water line. In areas 2233 where the ordinary high-water line is not defined the lateral extent is defined as the bankfull elevation. 2234
The specific primary constituent elements identified fo r Hood Canal summer-run chum salmon are areas for 2235 spawning, freshwater rearing and migra tion, estuarine areas free of obstruction, nearshore marine areas free of 2236 obstructions and offshore marine areas with good water quality . The physical or biological features that characterize 2237 these sites include water quality and quantity, natural c over, forage, adequate passage conditions and floodplain 2238 connectivity. Of 17 subbasins reviewed in NMFS' assessment of critical habitat for the Hood Canal chum salmon 2239 species, 14 subbasins were rated as having a high conservation value, while only three were rated as having a 2240 medium value to conservation. These areas are important for the species’ overall conservation by protecting quality 2241 growth, reproduction, and feeding. Limiting factors identif ied for this species include degraded floodplain and 2242 mainstem river channel structure, degraded estuarine conditions and loss of estuarine habitat, riparian area 2243 degradation and loss of in-river wood in mainstem, excessive sediment in spaw ning gravels and reduced stream flow 2244 in migration areas. 2245

Coho Salmon 2246

Description of the Species 2247 Coho salmon occur naturally in most major river basins around the North Pacific Ocean from central California to 2248 northern Japan (Laufle et al. , 1986). They spawn in the fall and winter and the young emerge in the spring. Adult 2249 coho salmon may remain in fresh water three or more months before spawning, with early migrants often moving 2250 farther upstream than later migrants (Sandercock, 1991). Spawning occurs in a few third-order streams, but most 2251 spawning activity occurs in fourth- and fifth-order streams. As with other Pacific salmon, coho salmon fecundity 225269 varies with the size of the fish and latitudinally with co ho salmon in northern climes generally exhibiting higher 2253 rates of fecundity (Sandercock, 1991). Most coho salmon ma ture and spawn at age 3, although there are exceptions 2254 (Sandercock, 1991). 2255
The outmigration of coho smolts begins as early as February and may continue through the summer and fall, with 2256 peak outmigration often between March and June, although this varies among basins and environmental conditions 2257 (Sandercock, 1991). While at sea, coho salmon tend to eat fish including herring, sand lance, sticklebacks, sardines, 2258 shrimp and surf smelt. While in estuaries and in fresh wa ter coho salmon are significant predators of Chinook, pink 2259 and chum salmon, as well as aquatic and terrestrial insects. Smaller fish, such as fry, eat chironomids, plecoptera and 2260 other larval insects and typically use visual cues to find their prey. 2261

Threats 2262 Natural Threats . Coho salmon, like other salmon, are exposed to high rates of natural predation at each life stage. 2263 Most mortality, however, occurs in the freshwater life stages. Winter mortality may be significant for coho salmon 2264 because they overwinter in fresh wate r, where they can be swept downstre am from freshets or eaten by raccoon, 2265 cutthroat trout or other small animal s. Once coho reach the ocean, survival is high (Sandercock, 1991). 2266
Anthropogenic Threats. Coho salmon have declined under the combined effects of overharvests in fisheries; 2267 competition from fish raised in hatcheries and native and non-native exotic species; dams that block their migrations 2268 and alter river hydrology; gravel mining that impedes their migration and alters the dynamics 2269 (hydrogeomorphology) of the rivers and streams that support juveniles; water diversions that deplete water levels in 2270 rivers and streams; destruction or degradation of riparian habitat that increase water temperatures in rivers and 2271 streams sufficient to reduce the survival of juvenile c oho salmon; and land use practices (logging, agriculture, 2272 urbanization) that destroy wetland and riparian ecosystems while introducing sediment, nutrients, biocides, metals 2273 and other pollutants into surface and ground water and degrad e water quality in the fresh water, estuarine and coastal 2274 ecosystems throughout the species’ rang e. These threats are the same as those summarized in detail under the 2275 Chinook salmon of this section. 2276

Central California Coast Coho Salmon 2277
Distribution and Descriptio n of the Listed Species 2278 The Central California Coast coho salmon species extends from Punta Gorda in northern California south to and 2279 including the San Lorenzo River in central California (Sandercock, 1991). The species includes all naturally 2280 spawned populations of coho salmon from Punta Gorda in northern California south to and including the San 2281 Lorenzo River in central California, as well as populatio ns in tributaries to San Fr ancisco Bay, excluding the 2282 Sacramento-San Joaquin River system. Four artificial propagation programs are part of the Central California Coast 2283 coho salmon species. 2284
Coho salmon in this species enter rivers to spawn very late (peaking in January), with little time spent in fresh water 2285 between river entry and spawning. This compressed adult fr eshwater residency appears to coincide with the single, 2286 brief peak of river flow characteristic of this region. 2287

Status and Trends 2288 NMFS originally listed the central California coast coho sa lmon species as threatened on October 31, 1996 (61 FR 2289 56138) and later reclassified their status to endangered June 28, 2005 (70 FR 37160). Information on the abundance 2290 and productivity trends for the naturally spawning component of the central California coast coho species is 229170 extremely limited. There are no long-term time series of spawner abundan ce for individual river systems. Historical 2292 estimated escapement for this species is 56,100 for 1963 and more recent estimates suggest the species dropped to 2293 about one-fourth that size by the late 1980s and early 1990s (Good et al. , 2005). 2294
Where data are available, analyses of juvenile coho presence-absence information, juvenile density surveys and 2295 irregular adult counts for the South Fork Noyo River indicate low abundance and long-term downward trends for the 2296 naturally spawning populations throughout the species (Good et al. , 2005). Improved ocean conditions coupled with 2297 favorable stream flows and harvest restrictions have contributed to increased returns in 2001 in streams in the 2298 northern portion of the species, as indicated by an increase in the observed presen ce of fish in historically occupied 2299 streams (Good et al. , 2005). Data are particularly lacking for many river basins in the southern two-thirds of the 2300 species where naturally spawni ng populations are considered to be at the greatest risk. The extirpation or near 2301 extirpation of natural coho salmon populations in several major river basins, and across most of the southern 2302 historical range of the species, repres ents a significant risk to species spatial structure and diversity (Good et al. , 2303 2005). 2304
Artificial propagation of coho salmon within the Central California Coast sp ecies has declined since the species was 2305 listed in 1996 though it continues at the Noyo River and Scott Creek facilities. Two captive broodstock populations 2306 have recently been established. Genetic diversity risk asso ciated with out-of-b asin transfers appears to be minimal, 2307 but diversity risk from domestication selection and low effective population sizes in the remaining hatchery 2308 programs remains a concern. An artificial propagation program for coho was operated at the Don Clausen hatchery 2309 on the Russian River through the mid 1990s, but was terminated in 1996. 2310
For the naturally spawning component of the species, the biological review team found very high risk of extinction 2311 for the abundance, productivity and spatial structure of the Viable Salmon Population (VSP) parameters and 2312 comparatively moderate risk with respect to the diversity VSP parameter. The lack of direct estimates of the 2313 performance of the naturally spawned populations in this sp ecies, and the associated uncertainty this generates, was 2314 of specific concern to the biological review team. Informed by the VSP ri sk assessment and the associated 2315 uncertainty, the strong majority opinion of the biological review team was that the naturally spawned component of 2316 the Central California Coast coho species was “in danger of extinction.” Accordingly, NMFS upgraded the status of 2317 central California coast coho species to endangered on June 28, 2005 (70 FR 37160). 2318
Central California Coast coho salmon populations continue to be depressed relative to historical numbers. Strong 2319 indications show that breeding groups have been lost from a significant percentage of historical stream range. A 2320 number of coho populations in the southern portion of the range appear to be either extinct or nearly so, including 2321 those in Gualala, Garcia, and Russian rivers, as well as smaller coastal streams in and south of San Francisco Bay 2322 (Goodet al. , 2005). 2323

Critical Habitat 2324 NMFS designated critical habitat for central California coast coho salmon on May 5, 1999 (64 FR 24049). The 2325 designation encompasses accessible reaches of all rivers (i ncluding estuarine areas and riverine reaches) between 2326 Punta Gorda and the San Lorenzo River (inclusive) in California, including two streams entering San Francisco Bay: 2327 Arroyo Corte Madera Del Presidio and Corte Madera Creek. This critical habitat designation includes all waterways, 2328 substrate and adjacent riparian zones of estuarine and riverine reaches (including off-channel habitats) below 2329 longstanding naturally impassable barriers (i.e. natural wate rfalls in existence for at least several hundred years). 2330 These areas are important for the species’ overall conservation by protecting growth, reproduction and feeding. 233171 Lower Columbia River Coho Salmon 2332
Distribution and Descriptio n of the Listed Species 2333 The lower Columbia River coho salmon species includes all naturally spawned populations of coho salmon in the 2334 Columbia River and its tributaries in Washington and Oregon, from the mouth of the Columbia up to and including 2335 the Big White Salmon and Hood Rivers, and includes the Willamette River to Willamette Falls, Oregon. Twenty2336 five artificial propagation progra ms are part of this species. 2337
Two distinct runs distinguished by the timing of adult retu rns to fresh water (early returners and later returners) 2338 occur within the species. Earl y returning adults generally migrate south of the Columbia River once they reach the 2339 ocean, returning to fresh water in mid- August and to spawning tributaries in early September. Peak spawning of 2340 early returning adults occurs from mid-October to earl y November. Late returning adult coho salmon exhibit a 2341 northern oceanic distribution, return to the Columbia River from late September through December and enter 2342 tributaries from October through January. Most late return adults spawn between November through January, 2343 although some spawn in February and as late as March (Sandercock, 1991). Almost all Lower Columbia River 2344 species coho salmon females and most males spawn at 3 years of age. 2345

Status and Trends 2346 NMFS listed Lower Columbia River coho salmon as threatened on June 28, 2005 (70 FR 37160). The vast majority 2347 (over 90%) of the historic population in the Lower Columbia River coho salmon species appear to be either 2348 extirpated or nearly so. 2349
Only two populations of coho salmon th at comprise this species produce a sizeable number of naturally spawned 2350 fish, the upper Sandy River population above Marmot Dam and the Clackamas River population above the North 2351 Fork Dam. Most of the other populations are believed to have very little, if any, natu ral production. The long-term 2352 and short-term trends for Marmot Dam counts are both negative. The long-term median growth rate is slightly 2353 positive for both the Sandy and Clackamas rivers, but the confidence intervals for each are very wide indicating 2354 there is a large amount of uncertainty. Both populations within the Sandy and Clackamas rivers have suffered from 2355 recruitment failure a number of times over the past 15 years, despite the reductions in harvest. The most serious 2356 threat facing this species is the scar city of naturally-produced spawners, with attendant risks associated with small 2357 populations, loss of diversity and fragmentation and isolation of the remaining naturally-produced fish. Spatial 2358 structure has been substantially reduced by the loss of access to upper basins from tributary hydro development (i.e., 2359 Condit Dam on the Big White Salmon River and Powerdale Dam on the Hood River). The diversity of populations 2360 in all three areas has been eroded by large hatchery influences and periodically, low effective population sizes. 2361

Critical Habitat 2362 NMFS has not designated critical habitat for Lower Columbia River coho salmon. 2363

Southern Oregon/Northern California Coast Coho Salmon 2364
Distribution and Descriptio n of the Listed Species 2365 Southern Oregon/Northern California coast coho salmon consists of all naturally spawning populations of coho 2366 salmon that reside below long-term, naturally impassible barriers in streams between Punta Gorda, California and 2367 Cape Blanco, Oregon, as well as three artificial propaga tion programs: the Cole Rivers Hatchery, Trinity River 2368 Hatchery and Iron Gate Hatchery coho hatchery programs. The three major river systems supporting Southern 2369 Oregon – Northern Coastal California coast coho are the Rogue, Klamath (including the Trinity) and Eel rivers. 237072 Southern Oregon and Northern California coast coho immigrate to natal rivers in September or October. River entry 2371 is much later south of the Klamath Rive r Basin, occurring in November and Decem ber, as well as in basins south of 2372 the Klamath River to the Mattole River, California. Rive r entry occurs from mid-D ecember to mid-February in 2373 rivers farther south. Because individuals enter rivers late, they spend much less time in the river. Coho salmon adults 2374 spawn at age 3, spending just over 1 year in fresh water and a year and a half in the ocean. 2375

Status and Trends 2376 Southern Oregon/Northern California coast coho salmon were listed as threatened on May 7, 1997 (62 FR 24588); 2377 they retained that classification when their status was reviewed on June 28, 2005 (70 FR 37160). Southern 2378 Oregon/Northern California Coast coho salmon extend from Cape Blanco in southern Oregon to Punta Gorda in 2379 northern California (Sandercock, 1991). The status of coho salmon coast-wide, including the Southern 2380 Oregon/Northern California Coast coho salmon species, was formally assessed in 1995 (Sandercock, 1991). Two 2381 subsequent status review updates have been published by NMFS, one addressing all West Coast coho salmon 2382 species and a second specifically addr essing the Oregon Coast Southern Oregon/Northern California Coast coho 2383 salmon species (NMFS, 1996, 1997a). In the 1997 status update, estimates of natural population abundance were 2384 based on very limited information. New data on presence/absence in northern California streams that historically 2385 supported coho salmon were even more disturbing than ear lier results, indicating that a smaller percentage of 2386 streams contained coho salmon compared to the percentage presence in an earlier study (Good et al. , 2005). 2387 However, it was unclear whether these new data represented actual trends in local extinctions or were biased by 2388 sampling effort. 2389
Data on population abundance and trends are limited for th e California portion of this sp ecies. No regular estimates 2390 of natural spawner escapement are available. Historical point estimates of coho sa lmon abundance for the early 2391 1960s and mid-1980s suggest that coho spawning escapement in the 1940s ranged between 200,000 and 500,000 2392 fish. Numbers declined to about 100,000 fish by the mid-1960s with about 43% originating from this species. Brown 2393 et al., (1994) estimated that the California portion of this species was represented by about 7,000 wild and 2394 naturalized coho salmon (Good et al. , 2005). In the Klamath River, the es timated escapement has dropped from 2395 approximately 15,400 in the mid-1960s to about 3,000 in the mid 1980s, and more recently to about 2,000 (Good et 2396 al. , 2005). The second largest producing river in this species, the Eel River, dropped from 14,000, to 4,000 to about 2397 2,000 during the same period. Historical estimates are considered “best guesses” made using a combination of 2398 limited catch statistics, hatchery records and the personal observations of biologists and managers. 2399
Most recently, Williams et al., (2006) described the structure of historic populations of Southern Oregon/Northern 2400 California Coast coho salmon. They described three categories of populations: functionally independent 2401 populations, potentially independent populations and dependent populations. Functionally independent populations 2402 are populations capable of existing in isolation with a minimal risk of extinction. Potentially independent 2403 populations are similar but rely on some interchange with adjacent populations to maintain a low probability of 2404 extinction. Dependent populations have a high risk of extinction in isolation over a 100-year timeframe and rely on 2405 exchange of individuals from adjacent populations to maintain themselves. 2406

Critical Habitat 2407 NMFS designated critical habitat for Southern Oregon/Northern California Coast coho salmon on May 5, 1999 (64 2408 FR 24049). Critical habitat for this species encompasses all accessible ri ver reaches between Cape Blanco, Oregon 2409 and Punta Gorda, California. Critical habitat consists of the water, substrate and river reaches (including off-channel 2410 habitats) in specified areas. Accessible reaches are those with in the historical range of the species that can still be 2411 occupied by any life stage of coho salmon. Of 155 histor ical streams for which data are available, 63% likely still 241273 support coho salmon. These river habitats are important for a variety of reasons, such as supporting the feeding and 2413 growth of juveniles and serving as spawning habitat for ad ults. Limiting factors identifie d for this species include: 2414 loss of channel complexity, connectivity and sinuosity, loss of floodplain and estuarine habitats, loss of riparian 2415 habitats and large in-river wood, reduced stream flow, poor water quality, temperature and excessive sedimentation 2416 and unscreened diversions and fish passage structures. 2417

Oregon Coast Coho Salmon 2418
Distribution and Descriptio n of the Listed Species 2419 The Oregon Coast coho salmon species includes all naturally spawned populations of coho salmon in Oregon 2420 coastal streams south of the Columbia River and north of Cape Blanco (63 FR 42587; August 1998). One hatchery 2421 population, the Cow Creek hatchery coho salmon, is considered part of the species. 2422

Status and Trends 2423 The Oregon coast coho salmon species was listed as a th reatened species under the ES A on February 11, 2008 (73 2424 FR 7816), the conclusion to a 13-year history of court cases. The most recent NMFS status review for the Oregon 2425 Coast coho species was conducted by the biological review team in 2003, which assessed data through 2002. The 2426 abundance and productivity of Oregon Coast coho since the pr evious status review represented some of the best and 2427 worst years on record (Sandercock, 1991). Yearly adult returns for the Oregon Coast coho species were over 2428 160,000 natural spawners in 2001 and over 260,000 in 2002, far exceeding the abundan ce observed for the past 2429 several decades (Goodet al. , 2005). These increases in spawner ab undance in 2000 to 2002 followed three 2430 consecutive brood years (the 1994 to 1996 brood years returning in 1997 to 1999, respectively) exhibiting 2431 recruitment failure (recruitment failure is when a given year class of natural spawners fails to replace itself when its 2432 offspring return to the spawning grounds 3 years later). These 3 years of recruitment failure were the only such 2433 instances observed thus far in the entire 55-year abundance time series for Oreg on Coast coho salmon (although 2434 comprehensive population-level survey data have only been available since 1980). The 2000 to 2002 increases in 2435 natural spawner abundance occurred in many populations in the northern portion of the species, which were the 2436 most depressed at the time of the last review (Sandercock, 1991). Although encouraged by the increase in spawner 2437 abundance in 2000 to 2002, th e biological review team noted that the long -term trends in species productivity were 2438 still negative due to the low abundances observed during the 1990s. 2439
Since the biological review team conv ened, the total abundance of natural spawners in the Oregon Coast coho 2440 species has declined each year (i.e., 2003 to 2006). The abundance of total natural spawners in 2006 (111,025 2441 spawners) was approximately 43% of the recent peak abunda nce in 2002 (255,372 spawners ). In 2003, species-level 2442 productivity (evaluated in terms of the number of spawning recruits resulting from spawners 3 years earlier) was 2443 above replacement, and in 2004, produc tivity was approximately at replacemen t level. However, productivity was 2444 below replacement in 2005 and 2006 and dropped to the lowest level since 1991 in 2006 (73 FR 7816). 2445
Preliminary spawner survey data for 2007 (the average peak number of spawners per mile observed during random 2446 coho spawning surveys in 41 streams) suggest that the 2007 to 2008 return of Oregon Coast coho is either (1) much 2447 reduced from abundance levels in 2006, or (2) exhibiting delayed run timi ng from previous years. As of December 2448 13, 2007, the average peak number of spawners per mile was below 2006 levels in 38 of 41 surveyed streams (see 2449 ODFW 2007 in 73 FR 7816). It is possible that the timing of peak spawner abundance is delayed relative to previous 2450 years, and that increased sp awner abundance in late December and Januar y 2008 will comp ensate for the low levels 2451 observed thus far. 245274 The recent 5-year geometric mean abun dance (2002 to 2006) of approximately 152,960 total natural spawners 2453 remains well above that of a decade ag o (approximately 52,845 from 1992 to 1996). However, the decline in 2454 productivity from 2003 to 2006, despite generally favorable marine survival conditions and low harvest rates, is of 2455 concern (73 FR 7816). 2456

Critical Habitat 2457 NMFS designated critical habitat for Oregon Coast coho on February 11, 2008 (73 FR 7816). The designation 2458 includes 72 of 80 watersheds occupied by Oregon Coast coho salmon, and totals about 6,600 stream miles including 2459 all or portions of the Nehalem, Ne stucca/Trask, Yaguina, Alsea, Umpqua and Coquille basins. These areas are 2460 essential for feeding, migration, spawning and rearing. The specific primary constituent elements include: spawning 2461 sites with water and substrate quantity to support spawni ng, incubation and larval development; freshwater rearing 2462 sites with water quantity and floodplain connectivity to fo rm and maintain physical habitat conditions and support 2463 juvenile growth, foraging, behavioral development (e.g., predator avoidance, competition) and mobility; freshwater 2464 migratory corridors free of obstruction w ith adequate water quantity and quality conditions; and estu arine, nearshore 2465 and offshore areas free of obstruction with adequate wa ter quantity, quality and salinity conditions that support 2466 physiological transitions between fresh- and saltwater, predator avoidance, foraging and other life history behaviors. 2467
Sockeye Salmon 2468
Description of the Species 2469 Sockeye salmon are the second most abundant of the seve n Pacific salmon species and occur in the North Pacific 2470 and Arctic oceans and associated freshwater systems. This species ranges south as far as the Sacramento River in 2471 California and northern Hokkaido in Japan, to as far north as far as Bathurst Inlet in the Canadian Arctic and the 2472 Anadyr River in Siberia (Burgner, 1991). The largest populations, and hence the most important commercial 2473 populations, occur north of the Columbia River. 2474
The majority of sockeye salmon are an adromous fish that make use of lacustrine habitat for juvenile rearing. 2475 Sockeye salmon also have a wholly freshwater life history form, called kokanee (Burgner, 1991). In some cases a 2476 single population will give rise to both the anadromous and freshwater life history form. While in fresh water 2477 juveniles of both life history types prey primarily upon in sects. In coastal lakes, where the migration to sea is 2478 relatively short and energetic costs are mi nimal, kokanee populations are rare. 2479
Once smolts enter the Pacific Ocean, they distribute wide ly across the North Pacific, generally above 40oN where a 2480 current boundary is located. Season, temperature, salinity, life stage, age, size, availability of prey and population2481 of-origin are all factors that influence offshore movements (Burgner, 1991). They may migrate several thousand 2482 miles in search of prey and are cons idered to travel continuously (Royce et al. , 1968). While at sea, sockeye prey 2483 upon a variety of organisms, including small fish (capelin, lantern fish, cod, sand lance, herring and pollock), squid, 2484 crustacean larvae, krill and other inve rtebrates (Foerster, 1968; Frenchet al. , 1976; Wing, 1977). 2485
Spawning generally occurs in late summer and autumn, but the precise time can vary greatly among populations. 2486 Age at maturity varies by region from 2 to 5 years, but is generally 2 to 4 years in Washington State (Burgner, 2487 1991). Males often arrive earlier than females on the sp awning grounds and will persist longer during the spawning 2488 period. 2489
Incubation is a function of water temperatures, but generally lasts between 100 and roughly 200 days (Burgner, 2490 1991). After emergence, fry move rapidly downstream or upstream along the banks to the lake rearing area. Fry 249175 emerging from lakeshore or island spawning grounds may simply move along the shoreline of the lake (Burgner, 2492 1991). 2493

Threats 2494 Sockeye salmon have declined under the combined effect s of overharvesting; competition from fish raised in 2495 hatcheries of native and non-native exotic species; dams that block migration patterns and alter river hydrology; 2496 water diversions that deplete water levels in rivers and streams; destruction or adve rse modification of riparian 2497 habitat; and land use practices that destroy wetland and riparian ecosystems while introducing sediment, nutrients, 2498 biocides, metals and other pollutants into surface and gr ound water and degrade water quality in the fresh water, 2499 estuarine and coastal ecosystems throug hout the species’ range. These threats ar e the same as those summarized in 2500 detail under the Chinook salmon of this section. 2501

Ozette Lake Sockeye Salmon 2502
Distribution and Descriptio n of the Listed Species 2503 This species includes all naturally spawned sockeye salmon in Ozette Lake, Ozette River, Coal Creek and other 2504 tributaries flowing into Ozette Lake, Washington. Compos ed of only one population, the Ozette Lake sockeye 2505 salmon species consists of five spawning aggregations or subpopulations which ar e grouped according to their 2506 spawning locations. The five spawning locations are Umbrella and Crooked creeks, Big River and Olsen’s and 2507 Allen’s beaches (NMFS, 2009b). 2508
Adult Ozette Lake sockeye salmon enter Ozette Lake th rough the Ozette River from mid-April to mid-August, 2509 holding three to nine months in Ozette Lake prior to spawning in late October through January. Sockeye salmon 2510 spawn primarily in lakeshore upwelling ar eas in Ozette Lake (particularly at Allen's Bay and Olsen's Beach) and in 2511 two tributaries Umbrella Creek and Big River. Minor spawning may occur below Ozette Lake in the Ozette River or 2512 in Coal Creek, a tributary of the Ozette River. Beach sp awners are almost all age fo ur adults, while tributary 2513 spawners are ages three and five (Haggerty et al., 2009). Spawning occurs in the fall through early winter, with peak 2514 spawning in tributaries in November and December. Eggs an d alevins remain in the gravel until the fish emerge as 2515 fry in spring. Fry then migrate immediately to the limnetic zone in Ozette Lake, where the fish rear. After one year 2516 of rearing, in late spring, Ozette Lake sockeye salmon emigrate seaward as age-1+ smolts, where they spend 2517 between 1 and 3 years in ocean before returning to fresh water. 2518

Status and Trends 2519 NMFS originally listed Ozette Lake sockeye salmon species as a threatened species in 1999 (64 FR 14528). This 2520 classification was retained on June 28, 2005 (70 FR 37160). This species includes all naturally spawned populations 2521 of sockeye salmon in Ozette Lake, Ozette River, Coal Creek and other tributaries flowing into Ozette Lake, 2522 Washington. Two artificial propagation pr ograms are considered part of this species: The Umbrella Creek and Big 2523 River sockeye salmon hatchery programs. NMFS considers these artificially propagated populations no more 2524 divergent relative to the local natural population than would be expected between closely related natural populations 2525 (70 FR 37160). 2526

The historical abundance of Ozette Lake sockeye salmon is poorly documented, but may have been as high as 2527 50,000 individuals (Blum, 1988). The overall abundance of naturally–produced Ozette Lake sockeye salmon is 2528 believed to have declined substantially from historical levels . In the first study of lake escapement of Ozette Lake 2529 sockeye salmon (Kemmerich, 1945), the ru n size entering the lake was estimated at a level of several thousand fish. 253076 These counts appear to be roughly double the current m ean lake abundance, considering that they were likely 2531 conducted upstream from fisher ies in or near to the Ozette River. Maka h Fisheries Management (as cited in Good et 2532 al. , 2005 ) concluded that there appears to be a substantial dec line in the Tribal catch of Ozette Lake sockeye salmon 2533 beginning in the 1950s and a similar decline in the run size since the 1920s weir counts reported by Kemmerich 2534 (1945). 2535
An analysis of total annual Ozette Lake sockeye salmon ab undance (based on adult run size data presented in Jacobs 2536 et al., 1996) indicates a trend in abundance averaging -2% per year over the period 1977 through 1998 (NMFS, 2537 1998d). The current tributary-based hatchery program wa s planned and initiated in response to the declining 2538 population trend identified for the Ozette Lake sockeye salm on population. The most recent (1996 to 2003) run-size 2539 estimates range from a low of 1,609 in 1997 to a high of 5,075 in 2003, averaging approximately 3,600 sockeye per 2540 year (NMFS, 2009b). For return years 2000 to 2003, the 4-year average abundance estim ate was slightly over 4,600 2541 sockeye. Because run-size estimates befo re 1998 are likely to be even more unreliable than recent counts, and new 2542 counting technology has resulted in an increase in estimated run sizes, no statistical estimation of trends is reported. 2543 The current trends in abundance are unknown for the beach spawning aggregations. Although overall abundance 2544 appears to have declined from historical levels, whet her this resulted in fewer spawning aggregations, lower 2545 abundances at each aggr egation, or both, is not known (Good et al. , 2005). Based on estimates of habitat carrying 2546 capacity, a viable sockeye salmon population in Lake Oze tte watershed would range between 35,500 to 121,000 2547 spawners (Rawson et al. , 2009). 2548

There has been no harvest of Ozette La ke sockeye salmon for the past four br ood-cycle years (since 1982). Prior to 2549 that time, ceremonial and subsistence harvests by the Makah Tribe were low, ranging from zero to 84 fish per year. 2550 Harvest has not been an important mortality factor for the population in over 35 years. In addition, due to the early 2551 river entry timing of returning Ozette Lake sockeye salmon (b eginning in late April, with the peak returns prior to 2552 late-May to mid-June), the fish are not intercepted in Ca nadian and U.S. marine area fi sheries directed at Fraser 2553 River sockeye salmon. There are currently no known mari ne area harvest impacts on Ozette Lake sockeye salmon. 2554
Overall abundance is substantially below historical levels (Good et al. , 2005). Declines in abundance have been 2555 attributed to a combination of introduced species, predat ion, loss of tributary populations, a loss of quality of beach 2556 spawning habitat, temporarily unfavorable ocean conditions , habitat degradation and excessive historical harvests 2557 (Jacobs et al. , 1996). In the last few years the number of returning adults has increased, although some of these 2558 individuals are of hatchery origin. This produces uncertain ty regarding natural growth rate and productivity of the 2559 species’ natural component. In addition, genetic integrityhas perhaps been compromised due to the artificial 2560 supplementation that has occurred in this population, since approximately one million sockeye have been released 2561 into the Ozette watershed from the late 1930s to present (Kemmerich, 1945). 2562

Critical Habitat 2563 On September 2, 2005, NMFS designated critical habita t for the Ozette Lake sockeye salmon species (70 FR 2564 52630). The specific geographic areas designated as critic al are the Hoh/Quillayute Subbasin, Ozette Lake and the 2565 Ozette Lake watershed, and include: the Ozette River upstr eam to endpoints in Big River, Coal Creek, East Branch 2566 Umbrella Creek, the North and South Fork of Crooked Creek and several other tributaries. The specific primary 2567 constituent elements identified for Lake Ozette sockeye salmon are areas fo r spawning, freshwater rearing and 2568 migration, estuarine areas free of obstruction, nearshore marine areas free of obstructions and offshore marine areas 2569 with good water quality. The physical or biological features that characterize these sites include water quality and 2570 quantity, natural cover, forage and adequate passage conditi ons. Only one watershed supports this species and it is 2571 rated as having a high conservation value. This watershed is essential to the species’ overall conservation by 257277 protecting quality growth, reproduction and feeding. 2573

Snake River Sockeye Salmon 2574
Distribution and Descriptio n of the Listed Species 2575 Snake River sockeye salmon are unique compared to other sockeye salmon populations: it spawns at a higher 2576 elevation (6,500 feet) and a longer freshwater migration (approximately 900 miles) than any other sockeye salmon 2577 population in the world. Sockeye salmon in this species spawn in Redfish Lake in Idaho’s Stanley Basin (Bjornn et 2578 al. , 1968; Foerster, 1968). Stanley Basin sockeye salmon are separated by 700 or more river miles from two other 2579 extant upper Columbia River populations in the Wenatchee River and Okanogan River drainages. These latter 2580 populations return to lakes at substantially lower elevations (Wenatchee at 1,870 feet an d Okanagon at 912 feet) and 2581 occupy different ecoregions. The Snak e River sockeye salmon species includes all anadromous and residual sockeye 2582 salmon from the Snake River basin of Idaho, as well as hatchery individuals from the Redfish Lake Captive 2583 Broodstock Program. 2584

Status and Trends 2585 Snake River sockeye salmon were originally listed as endanger ed in 1991 and retained that classification when their 2586 status was reviewed on June 28, 2005 (70 FR 37160). The only extant sockeye salmon population in the Snake River 2587 basin at the time of listing was that in Redfish Lake, in the Stanley Basin (upper Salmon River drainage) of Idaho. 2588 Other lakes in the Snake River basin historically supported sockeye salmon populations, including Wallowa Lake 2589 (Grande Ronde River drainage, Oregon), Payette Lake (Payette River drainage, Idaho) and Warm Lake (South Fork 2590 Salmon River drainage, Idaho; (Waples et al. , 1997). These populations are now considered extinct. Although 2591 kokanee, a resident form of O. nerka , occur in numerous lakes in the Snake River basin, other lakes in the Stanley 2592 Basin, and sympatrically with sockeye in Redfish Lake, resident O. nerka were not considered part of the species at 2593 the time of listing (1991). Subsequent to the 1991 listing, a residual form of sockeye residing in Redfish Lake was 2594 identified. The residuals are non-anadromous, completing thei r entire life cycle in fresh water, but spawn at the same 2595 time and in the same location as anadromous sockeye sa lmon. In 1993, NMFS determin ed that residual sockeye 2596 salmon in Redfish Lake were part of the Snake River sockeye salmon. Also, artificially propagated sockeye salmon 2597 from the Redfish Lake Captive Propagation program are co nsidered part of this species (70 FR 37160; June 28, 2598 2005). 2599
Five lakes in the Stanley Basin historically containe d sockeye salmon: Alturas, Pettit, Redfish, Stanley and 2600 Yellowbelly (Bjornn et al. , 1968). It is generally believed that adults were prevented from returning to the Sawtooth 2601 Valley from 1910 to 1934 by Sunbeam Dam. Sunbeam Dam was constructed on the Salmon River approximately 20 2602 miles downstream of Redfish Lake. Whether Sunbeam Dam was a complete barrier to adult migration remains 2603 unknown. It has been hypothesized that some passage occurred while the dam was in place, allowing the Stanley 2604 Basin population or populations to persist (Bjornn et al. , 1968; Waples et al. , 1991). 2605
Adult returns to Redfish Lake during the period 1954 through 1966 ranged from 11 to 4,361 fish (Bjornn et al. , 2606 1968). Sockeye salmon in Alturas Lake were extirpated in the early 1900s as a result of irrigation diversions, 2607 although residual sockeye may still exist in the lake (Chapman and Witty, 1993). From 1955 to 1965, the Idaho 2608 Department of Fish and Game eradicated sockeye salmon from Pettit, Stanley and Yellowbelly lakes, and built 2609 permanent structures on each of the lake outlets that prevented re-entry of anadromous sockeye salmon (Chapman 2610 and Witty, 1993). In 1985, 1986, and 1987, 11, 29, and 16 sockeye, respectively, were counted at the Redfish Lake 2611 weir (Good et al. , 2005). Only 18 natural origin sockeye salmon have returned to the Stanley Basin since 1987. 2612 During the fall of 1990, during the course of NMFS’ first status review on the species, no fish were observed at 261378 Lower Granite Dam or entering the lake and only one fish was observed in each of the two previous years. The first 2614 adult returns from the captive broodstock program returned to the Stanley Basin in 1999. From 1999 through 2005, a 2615 total of 345 captive brood program adults that had migrated to the ocean returned to the Stanley Basin. 2616

Recent annual abundances of natural origin sockeye salmon in the St anley Basin have been extremely low. No 2617 natural origin anadromous adults have returned since 1998 and the abundance of residual sockeye salmon in Redfish 2618 Lake is unknown. This species is entirely supported by adults produced through the captive propagation program at 2619 the present time. Current smolt-to-adult survival of sockeye originating from the Stanley Basin lakes is rarely greater 2620 than 0.3% (Hebdon et al. , 2004). The status of this sp ecies is extremely precarious, such that there was unanimous 2621 consent among the biological review team members that the species rema ins in danger of extinction (Good et al. , 2622 2005). 2623

Critical Habitat 2624 Critical habitat for these salmon was designated on December 28 , 1993 (58 FR 68543) and encompasses the waters, 2625 waterway bottoms and adjacent riparian zones of specified lakes and river reaches in the Columbia River that are or 2626 were accessible to ESA listed Snake River salmon (except r eaches above impassable natural falls and Dworshak and 2627 Hells Canyon Dams). Adjacent riparian zones are defined as those areas within a horiz ontal distance of 300 feet 2628 from the normal line of high water of a stream channel or from the shoreline of a standing body of water. Designated 2629 critical habitat includes the Columbia River from a straight line connecting the west end of the Clatsop jetty (Oregon 2630 side) and the west end of the Peacock jetty (Washington side) and including all river reaches from the estuary 2631 upstream to the confluence of the Snak e River and all Snake River reaches upst ream to the confluence of the Salmon 2632 River; all Salmon River reaches to Alturas Lake Creek; Stanley, Redfis h, Yellow Belly, Pettit and Alturas Lakes 2633 (including their inlet and outlet creeks); Alturas Lake Cree k and that portion of Valley Creek between Stanley Lake 2634 Creek and the Salmon River. Critical habitat also includes all river lakes and reaches presently or historically 2635 accessible to Snake River sockeye salmon. These habitats are criti cal for the conservation of the species because it 2636 provides spawning and juvenile rearing habitat, areas fo r juvenile growth and development and migration corridors 2637 for smolts to the ocean and adults to spawning habitat fr om the Pacific Ocean. Limiting factors identified for Snake 2638 River sockeye include: reduced tributary stream flow, impaired tributary passage and blocks to migration and 2639 mainstem Columbia River hydropower system mortality 2640

Steelhead 2641
Description of the Species 2642 Steelhead, the common name of the anadromous form of O. mykiss , are native to Pacific Coast streams extending 2643 from Alaska south to northwestern Mexico (Moyle, 1976a; NMFS, 1997b). The life history of this species varies 2644 considerably throughout its range. Gene rally, steelhead fall into two races: th e stream-maturing type; and the ocean2645 maturing type. 2646
Summer steelhead enter fresh water between May and October in the Pacific Northwest (Nickelson et al. , 1992; 2647 Busby et al. , 1996). They require cool, deep holding pools during summer and fall, prior to spawning (Nickelson et 2648 al. , 1992). Summer steelhead migrate inla nd toward spawning areas, overwinter in the larger rivers, resume 2649 migration in early spring to natal streams, and then spawn in January and February (Barnhart, 1986; Meehan and 2650 Bjornn, 1991; Nickelson et al. , 1992). Winter steelhead enter fresh water between November and April in the Pacific 2651 Northwest (Nickelson et al. , 1992), migrate to spawning areas an d spawn generally between April and May 2652 (Barnhart, 1986). Some adults, however, do not enter some coastal streams until spring, just before spawning 2653 (Meehan and Bjornn, 1991). 265479 In late spring, after emerging from the gravel, fry usually inhabit shallow water along banks of perennial streams 2655 (Nickelson et al. , 1992). Summer rearing takes place pr imarily in the faster parts of pools, while winter rearing 2656 occurs more uniformly at lower densities across a wide range of fast and slow habitat types. Some older juveniles 2657 move downstream to rear in larger tr ibutaries and mainstem rivers (Nickelson et al. , 1992). 2658
There is a high degree of overlap in spawn timing between populations regardless of run type (Busby et al. , 1996). 2659 Difficult field conditions at that time of year and the remoteness of spawning grounds contribute to the relative lack 2660 of specific information on steelhead spawning. Unlike Pacifi c salmon, steelhead are capable of spawning more than 2661 once before death, although steelhead rarely spawn more than twice before dying; most that do spawn more than 2662 twice tend to be female (Nickelson et al. , 1992; Busby et al. , 1996). 2663
Juvenile steelhead migrate little during their first summer and occupy a range of habitats featuring moderate to high 2664 water velocity and variable depths (Bisson et al. , 1988). Steelhead hold territories close to the substratum where 2665 flows are lower and sometimes counter to the main stream ; from these, they can ma ke forays up into surface 2666 currents to take drifting food (Kalleberg 1958). Juveniles rear in fresh water from 1 to 4 years, then smolt and 2667 migrate to the ocean in March and April (Barnhart, 1986). Winter steelhead juve niles generally smolt after 2 years in 2668 fresh water (Busby et al. , 1996). Juveniles feed primarily on insects (chironomids, baetid mayflies and hydropsychid 2669 caddisflies (Merz, 1994) while adults fe ed on aquatic and terrestrial insect s, mollusks, crustaceans, fish eggs, 2670 minnows and other small fishes (Chapman and Bjornn, 1969) . 2671

Threats 2672 Natural Threats . Steelhead, like other salmon, are exposed to high rates of natural predatio n each stage of their life 2673 stage. Mortality is high early in life and decreases with age. For example, Puget Sound steelhead leaving freshwater 2674 and estuarine habitats experience 55-86% survival to the point of reaching Hood Canal and 0-49% from Hood Canal 2675 to the Strait of Juan de Fuca, w ith survival increasing greatly upon entering the Pacific Ocean (Moore et al. , 2010). 2676 In fresh water, fry fall prey to older steelhead and other trout, as well as birds, sculpin and various mammals. In the 2677 ocean, marine mammals and other fish prey on steelhead but the extent of such pr edation is not well known. 2678
Anthropogenic Threats. Steelhead have declined under the combinedeffects of overharvests in fisheries, 2679 competition from hatchery fish and exotic species, dams that block their migrations and alter river hydrology, 2680 hydrogeomorphological changes, destruction or degradation of riparian habitat and land use practices that destroy or 2681 degrade fresh water, estuarine and coasta l ecosystems throughout the species’ range. These threats are the same as 2682 those summarized in detail under the Chinook salmon of this section. 2683

Central California Coast Steelhead 2684
Distribution and Descriptio n of the Listed Species 2685 The Central California Coast steelhead species includes all naturally spawned anadromous steelhead populations 2686 below natural and manmade impassable barriers in California streams from the Russian River (inclusive) to Aptos 2687 Creek (inclusive), and the drainages of San Francisco, San Pablo, and Suisun Bays eastward to Chipps Island at the 2688 confluence of the Sacramento and San Joaquin Rivers. Tributary streams to Suisun Marsh including Suisun Creek, 2689 Green Valley Creek, and an unnamed tributary to Cordelia Slough (commonly referred to as Red Top Creek), 2690 excluding the Sacramento-San Joaquin River Basin, as well as two artificial propagation programs: the Don Clausen 2691 Fish Hatchery, and Kingfisher Flat Hatchery/ Scott Creek (Monterey Bay Salmon and Trout Project) steelhead 2692 hatchery programs. 269380 The species is entirely composed of wint er run fish, as are those species to th e south. As winter-run fish adults 2694 migrating upstream from December-April, and smolts emigrating between March-May (Shapovalov and Taft, 1954; 2695 Hayes et al. , 2008). At the time of the 1996 status review and 1997 listing, little information was available on the 2696 specific demographics and life history characteristics of steelhead in this species. While age at smoltification 2697 typically ranges from one to four years, recent studies by Sogard and Williams (2009) that growth rates in Soquel 2698 Creek likely prevent juveniles from unde rgoing smoltification until ag e 2. Survival in freshwa ter reaches tends to be 2699 higher in summer and lower from winter through spring for year cla sses zero and one (Sogardet al. , 2009). Larger 2700 individuals also survive more readily than do smaller fish within year classes (Sogard et al. , 2009). Greater 2701 movement of juveniles in fresh water has been observed in winter and spring versus summer and fall time periods, 2702 with smaller individuals more likely to move between stream areas (Sogard et al. , 2009). Growth rates during this 2703 time have rarely been observed to exceed 0.3 mm per day and are highest in winter through spring, potentially due 2704 to higher water flow rates and gr eater food availability (Boughton et al. , 2007; Hayes et al. , 2008; Sogard et al. , 2705 2009). 2706

Status and Trends 2707 The Central California Coast steelhead species was listed as a threatened species on August 18, 1997 (62 FR 43937); 2708 threatened status was reaffirmed on Ja nuary 5, 2006 (71 FR 834). Estimates of historical abundance are provided 2709 here only for background, as the accuracy of the estimates is unclear. An estimate of historical abundance for the 2710 species is provided by CDFG at 94,000 fish. This estimate is based on a partial data set and “best professional 2711 judgment” (see Good et al. , 2005). Other estimates of historical abundance are on a per river basis: Shapovalov and 2712 Taft (1954) (as cited in Busby et al. , 1996) described an average of about 500 adults in Waddell Creek (Santa Cruz 2713 County) for the 1930s and early 1940s. 2714
No current estimates of total population size are available fo r this species, and consequen tly there is no time series 2715 data available to evaluate the central California coast steel head population trends. Rather, a general lack of data on 2716 adult steelhead within the species, led the biological revi ew team to examine data coll ected on juvenile steelhead 2717 (see Good et al. , 2005). In general, juvenile data is considered a poor indicator of the reproductive portion of the 2718 population as juvenile age classes exhibit greater mortality rates, which are closely tied to stochastic events, and may 2719 move widely within a basin (which may include intermixing with other populations). There is no simple relationship 2720 between juvenile and adult numbers (Shea and Mangel, 2001). Nonetheless, there was not enough adult data upon 2721 which the biological review team could base an assessment of the population trends within the species. Therefore, 2722 the biological review team log transf ormed and normalized juvenile survey data from a number of watersheds 2723 (presumed populations). As a result, the team derived trend estimates for five populations: the San Lorenzo River, 2724 Scott Creek, Waddell Creek, Gazos Creek and Redwood Creek in Marin County (see Good et al. , 2005). All 2725 populations exhibited downward trends in abundance. Accordingly, provided the juvenile data is representative of 2726 the true trend, this data suggests that there is an overall downward trend in abundance in the species. 2727

In the most recent review of the st atus of this species, most members of the biological review team (69%) 2728 considered this species “likely to b ecome endangered” thus supporting the re newal of the threatened status for 2729 central California coast steelhead . Notably, 25% of the team voted that the species be upgraded to endangered status 2730 (see Good et al. , 2005). Abundance and productivity were of relatively high concern (as a contributing factor to risk 2731 of extinction) and spatial structure was also of concern. 2732
Since the original status review, fishing regulations have changed in a way that probably reduces extinction risk for 2733 Central California Coast steelhead. Ocean sport harvest is prohibite d and ocean harvest is co nsidered rare. Although 2734 freshwater streams are closed to fishing year round, CDFG has identified certain streams as exceptions where they 273581 allow catch-and-release angling or summer trout fishing. In catch-and-release st reams, all wild steelhead must be 2736 released unharmed. 2737

Critical Habitat 2738 Critical habitat was designated for the Central California Coast steelhead species on September 2, 2005 (70 FR 2739 52488) and includes areas within the following hydrologic units: Russian River, Bodega, Marin Coastal, San Mateo, 2740 Bay Bridge, Santa Clara, San Pablo and Big Basin. These areas are important for the species’ overall conservation 2741 by protecting quality growth, reproduction and feeding. Th e critical habitat designation for this species identifies 2742 primary constituent elements th at include sites necessary to support one or more steelh ead life stages. Specific sites 2743 include freshwater spawning sites, freshwater rearing sites, freshwater migration corridors, nearshore marine habitat 2744 and estuarine areas. The physical or biological features that characterize these sites include water quality and 2745 quantity, natural cover, forage, adequate passage conditions and floodplain connectivity. The critical habitat 2746 designation (70 FR 52488) contains additional details on the sub-areas that are included as part of this designation 2747 and the areas that were excluded from designation. 2748
In total, Central California Coast steelhead occupy 46 wa tersheds (fresh water and estuarine). The total area of 2749 habitat designated as critical includes about 1,500 miles of stream habitat and about 400 square miles of estuarine 2750 habitat (principally Humboldt Bay). This designation incl udes the stream channels with in the designated stream 2751 reaches and includes a lateral extent as defined by the ordi nary high water line. In areas where the ordinary high2752 water line is not defined the lateral extent is defined as the bankfull elevation. In estuarine areas the lateral extent is 2753 defined by the extreme high water because extreme high tide areas encompass those areas typically inundated by 2754 water and regularly occupied by juvenile salmon during the spring and summer, when they are migrating in the 2755 nearshore zone and relying on cover and refuge qualities provi ded by these habitats and while they are foraging. Of 2756 the 46 occupied watersheds reviewed in NMFS' assessment of critical habitat for Centra l California Coast steelhead, 2757 14 watersheds received a low rating of conservation valu e, 13 received a medium rating and 19 received a high 2758 rating of conservation value for the species. 2759

California Central Valley Steelhead 2760
Distribution and Descriptio n of the Listed Species 2761 California Central Valley steelhead salmon occupy the Sacramento and San Joaquin Rivers and their tributaries, 2762 although they were once widespread throughout the Central Valley (Busby et al. , 1996; Zimmerman et al. , 2009). 2763 Steelhead were found from the upper Sacramento and Pit River systems (n ow inaccessible due to Shasta and 2764 Keswick Dams), south to the Kings and possibly the Ke rn River systems (now inaccessible due to extensive 2765 alteration from water diversion projects) and in both east- and west-side Sacramento River tributaries (Yoshiyama et 2766 al. , 1996). The present distribution has been greatly reduced (McEwan and Jackson, 1996). The CACSS (1988) 2767 reported a reduction of steelhead habitat from 6,000 miles historically to 300 miles today. Historically, steelhead 2768 probably ascended Clear Creek past the French Gulch area, but access to the upper basin was blocked by 2769 Whiskeytown Dam in 1964 (Yoshiyama et al. , 1996). Steelhead also occurred in the upper drainages of the Feather, 2770 American, Yuba and Stanislaus Rivers which are no w inaccessible (McEwan and Jackson, 1996; Yoshiyama et al. , 2771 1996). 2772
Existing wild steelhead populations in the Central Valley are mostly confined to the upper Sacramento River and its 2773 tributaries, including Antelope, Deer, and Mill Creeks and the Yuba River. Populations may exist in Big Chico and 2774 Butte Creeks and a few wild steelhead are produced in the American and Feather Rivers (McEwan and Jackson, 2775 1996). Recent snorkel surveys (1999 to 2002 ) indicate that steelhead are present in Clear Creek (Good et al. , 2005). 277682 Because of the large resident O. mykiss population in Clear Creek, steelhead spawner abundance has not been 2777 estimated. Until recently, steelhead were thought to be extirpated from the San Joaquin River system. Recent 2778 monitoring has detected small self-sustaining populations of steelhead in the Stanislaus, Mokelumne, Calaveras and 2779 other streams previously thought to be void of steelhead (McEwan, 2001). On the Stanislaus River, steelhead smolts 2780 have been captured in rotary screw traps at Caswell State Park and Oakdale each year since 1995 (Demko and 2781 Cramer, 2000). It is possible that naturally spawning populations exist in many other streams but are undetected due 2782 to lack of monitoring programs. 2783
The Sacramento and San Joaquin Rivers offer the only migration route to the drainages of the Sierra Nevada and 2784 southern Cascade mountain ranges for anadromous fish. The CDFG considers all steelhead in the Central Valley as 2785 winter steelhead, although “three distinct runs,” including summer steelhead, may have occurred there as recently as 2786 1947 (McEwan and Jackson, 1996). Steel head in these basins travel extensive distances in fresh water (some exceed 2787 300 km to their natal streams), making these the longest freshwater migrations of any population of winter steelhead. 2788 The upper Sacramento Ri ver essentially receives a single continuous run of steelhead in from July through May, 2789 with peaks in September and February. Spawning begins in late December and can extend into April (McEwan and 2790 Jackson, 1996). 2791

Status and Trends 2792
NMFS originally listed California Central Valley steelhead as threatened in 1998; this status was reviewed and 2793 retained on January 5, 2006 (71 FR 834). Historic Central Valley steelhead run size is difficult to estimate given the 2794 paucity of data, but may have approached one to two m illion adults annually (McEwan, 2001). By the early 1960s, 2795 the steelhead run size had declined to about 40,000 adults(McEwan, 2001). Over the past 30 years, the naturally 2796 spawned steelhead populations in the upper Sacramento River have declined substantially. Hallock et al., (1961) 2797 estimated an average of 20,540 adult steelhead occurred in the Sacramento Ri ver (upstream of the Feather River). 2798 Steelhead counts at Red Bluff Diversion Dam declined from an average of 11,187 for the period of 1967 to 1977, to 2799 an average of approximately 2,000 through the early 1990s , with an estimated total annual run size for the entire 2800 Sacramento-San Joaquin system at no more than 10,000 adults (McEwan and Jackson, 1996; McEwan, 2001). The 2801 five-year geometric mean is approximate ly 2,000 steelhead and the long-term trend suggests that the population is 2802 declining (Good et al., 2005). 2803
The only consistent data available on steelhead numbers in the San Joaquin River basin come from CDFG mid2804 water trawling samples collected on the lower San Joaqui n River at Mossdale. These data indicate a decline in 2805 steelhead numbers in the early 1990s, which have remained low through 2002 (Good et al. , 2005). In 2004, a total of 2806 12 steelhead smolts were co llected at Mossdale (Good et al. , 2005). 2807
Reynolds et al., (1993) reported that 95% of salmonid habitat in California’s Central Valley has been lost, largely 2808 due to mining and water development activities. They also noted that declines in Central Valley steelhead 2809 populations are “due mostly to water development, inadequate instream flows, rapid flow fluctuations, high summer 2810 water temperatures in streams immedi ately below reservoirs, diversion dams which block access and entrainment of 2811 juveniles into unscreened or poorly screened diversions.” Thus, overall habitat problems in this species relate 2812 primarily to water development resulting in inadequate flows, flow fluctuations, blockages and entrainment into 2813 diversions (McEwan and Jackson, 1996). Other problems related to land use practices (agriculture and forestry) and 2814 urbanization have also contributed to population declines. It is unclear how harvest has affected California’s Central 2815 Valley steelhead, although it is likely a co ntinuing threat. A CDFG creel census in 2000 indicated that most fish are 2816 caught and released, but due to the size of the catch and release fishery (more th an 14,000 steelhead were caught and 2817 released according to the survey) even a small amount of mortality in this fishery could cause declines in the 281883 populations. 2819

Critical Habitat 2820
NMFS designated critical habitat for California Central Valley steelhead on September 2, 2005 (70 FR 52488). 2821 Specific geographic areas designated include the following CALWATER hydrological units: Tehama, Whitmore, 2822 Redding, Eastern Tehama, Sacramento Delta, Valley-Puta ch-Cache, American River, Marysville, Yuba, Valley 2823 American, Colusa Basin, Butte Creek, Ball Mountain, Shata Bally, North Valley Floor, Upper Calaveras, Stanislaus 2824 River, San Joaquin Valley, Delta-Mendota Canal, North Diablo Range and the San Joaquin Delta. These areas are 2825 important for the species’ overall conservation by protec ting quality growth, reproduction and feeding. The critical 2826 habitat designation for this species iden tifies primary constitu ent elements that include si tes necessary to support one 2827 or more steelhead life stages. Specific sites include freshwa ter spawning sites, freshwat er rearing sites, freshwater 2828 migration corridors, nearshore marine habitat and estuar ine areas. The physical or biological features that 2829 characterize these sites include water quality and quantity, natural cover, forage, adequate passage conditions and 2830 floodplain connectivity. The critical habitat designation (7 0 FR 52488) contains additional details on the sub-areas 2831 that are included as part of this designation and the areas that were excluded from designation. 2832
In total, California Central Valley steelhead occupy 67 watersheds (freshwater and estuarine). The total area of 2833 habitat designated as critical includes about 2,300 miles of stream habitat and about 250 square miles of estuarine 2834 habitat in the San Francisco-San Pablo- Suisan Bay estuarine complex. This designation includes the stream channels 2835 within the designated stream reaches and includes a lateral exte nt as defined by the ordinary high water line. In areas 2836 where the ordinary high-water line is not defined the lateral extent is defined as the bank full elevation. In estuarine 2837 areas the lateral extent is defined by the extreme high water because extreme high tide areas encompass those areas 2838 typically inundated by water and regularly occupied by juvenile salmon during the spring and summer, when they 2839 are migrating in the nearshore zone and relying on cover and refuge qualities provided by these habitats and while 2840 they are foraging. Of the 67 watersheds reviewed in NMFS' assessment of critical habitat for California Central 2841 Valley steelhead, seven watersheds received a low rating of conservation value, three r eceived a medium rating and 2842 27 received a high rating of cons ervation value for the species. 2843

Lower Columbia River Steelhead 2844
Distribution and Descriptio n of the Listed Species 2845

Lower Columbia River steelhead includ e naturally produced steelhead returning to Columbia River tributaries on 2846 the Washington side between the Cowlitz and Wind rivers in Washington and on the Oregon side between the 2847 Willamette and Hood rivers, inclusive. In the Willamette River, the upstream boundary of this species is at 2848 Willamette Falls. This species includes both winter and summer steelhead. Two hatchery populations are included in 2849 this species, the Cowlitz Trout Hatchery winter-run popu lation and the Clackamas River population but neither was 2850 listed as threatened 2851
Summer steelhead return sexually immature to the Columbia River from May to November and spend several 2852 months in fresh water prior to spawning. When winter steelhead enter fresh water from November to April, they are 2853 close to sexual maturity and spawn shortly after arrival in their natal streams. Where bo th races spawn in the same 2854 stream, summer steelhead tend to spawn at highe r elevations than the winter forms (see Good et al., 2005). 285584 Status and Trends 2856
NMFS listed Lower Columbia River steelhead as threatened on March 19, 1998 (63 FR 13347), and reaffirmed their 2857 status as threatened on January 5, 2006 (71 FR 834). The 1998 status review noted that this species is characterized 2858 by populations at low abundance relative to historical levels, significant population declines since the mid-1980s, 2859 and widespread occurrence of hatchery fish in naturally spawning steelhead populations. During this review NMFS 2860 was unable to identify any natural populations that would be considered at low risk. 2861
All populations declined between 1980 and 2000, with sharp declines beginning in 1995. Those with adequate data 2862 for modeling are estimated to have a high extinction risk (Good et al. , 2005). Abundance trends are generally 2863 negative, showing that most populations are in decline, a lthough some populations, particularly summer run, have 2864 shown higher return in the last 2 to 3 years (Good et al. , 2005). Historical counts in some of the larger tributaries 2865 (Cowlitz, Kalama and Sandy Rivers) suggest the population probably exceeded 20,000 fish while in the 1990s fish 2866 abundance dropped to 1,000 to 2,000. Recent abundance estimates of natu ral-origin spawners range from completely 2867 extirpated for some populations above impassable barriers to over 700 for the Kalama and Sandy winter-run 2868 populations (Goodet al. , 2005). A number of the populations have a substantial fraction of hatchery-origin spawners 2869 in spawning areas and are hypothesized to be sustained largely by hatchery production. Exceptions are the Kalama, 2870 the Toutle and East Fork Lewis winter-run populations (Good et al. , 2005). 2871

Critical Habitat 2872
NMFS designated critical habitat for Lower Columbia River steelhead on September 2, 2005 (70 FR 52630). 2873 Designated critical habitat includes the following subbasins: Middle Columbia/Hood subbasin, Lower 2874 Columbia/Sandy subbasin, Lewis subbasin, Lower Columbia /Clatskanie subbasin, Upper Cowlitz subbasin, Cowlitz 2875 subbasin, Clackamas subbasin, Lower Willamette subbasin an d the Lower Columbia River corridor. These areas are 2876 important for the species’ overall conservation by protec ting quality growth, reproduction and feeding. The critical 2877 habitat designation for this species iden tifies primary constitu ent elements that include si tes necessary to support one 2878 or more steelhead life stages. Specific sites include freshwa ter spawning sites, freshwat er rearing sites, freshwater 2879 migration corridors, nearshore marine habitat and estuar ine areas. The physical or biological features that 2880 characterize these sites include water quality and quantity, natural cover, forage, adequate passage conditions and 2881 floodplain connectivity. The critical habitat designation (70 FR 52630) contains additional description of the 2882 watersheds that are included as part of this designation and any areas specifically excluded from the designation. 2883
In total, Lower Columbia River steelhead occupy 32 wa tersheds. The total area of habitat designated as critical 2884 includes about 2,340 miles of stream habitat. This designation includes the stream channels within the designated 2885 stream reaches and includes a lateral exte nt as defined by the ordinary high wa ter line. In areas where the ordinary 2886 high-water line is not defined the lateral extent is define d as the bankfull elevation. Of the 32 watersheds reviewed 2887 in NMFS' assessment of critical habitat for Lower Columb ia River steelhead, two watersheds received a low rating 2888 of conservation value, 11 received a medium rating and 26 received a high rating of conservation value for the 2889 species. Limiting factors identified for Lower Columbia Ri ver steelhead include: degr aded floodplain and steam 2890 channel structure and function, reduced access to spawning/r earing habitat, altered str eam flow in tributaries, 2891 excessive sediment and elevated water temperat ures in tributaries and hatchery impacts. 289285 Middle Columbia River Steelhead 2893
Distribution and Descriptio n of the Listed Species 2894
The Middle Columbia River steelhead species includes all naturally spawned anadromous steelhead populations 2895 below natural and manmade impassible barriers in Oregon and Washington drainages upstream of the Hood and 2896 Wind River systems, up to and including the Yakima River (61 FR 41541). Steelhead from the Snake River Basin 2897 are excluded from this species. Se ven artificial propagation programs are part of this species. 2898
Middle Columbia River steelhead occupy the intermountain region of the Pacific Northwest, which includes some of 2899 the driest areas in the region generallyreceiving less than 15.7 inches of ra infall annually. The major drainages that 2900 support this species are the Deschutes, John Day, Umatilla, Walla Walla, Yakima and Klickitat river systems. The 2901 area is generally characterized by its dry climate and hars h temperature extremes. Almost all steelhead populations 2902 within this species are summer-run fish; the only exceptio ns are the only populations of inland winter steelhead, 2903 which occur in the Klickitat Rive r and Fifteen-mile Creek (Busbyet al. , 1996). According to Interior Columbia 2904 Basin Technical Recovery Team (ICTRT, 2003) this species is comprised of 16 putative populations in four major 2905 population groups (Cascades Eastern Slopes Tributaries, John Day River, Walla Walla and Umatilla Rivers, and 2906 Yakima River) and one unaffiliated independent population (Rock Creek). 2907
There are two extinct populations in the Cascades Eastern Slope major population group, the White Salmon River 2908 and Deschutes Crooked River above the Pelton/Round Butte Dam complex. Present population structure is 2909 delineated largely based on geographical proximity, topograp hy, distance, ecological similarities or differences. 2910 Additional genetic studies are needed to describe the species substructure, as well as the fine-scale genetic structure 2911 of the populations within a particular basin (e.g., John Day River). 2912

Most Middle Columbia River steelhead smolt at 2 years of age and spend 1 to 2 years at sea prior to re-entering 2913 natal river systems. They may remain in such rivers for up to a year prior to spawning (Howell et al. , 1985b). 2914 Factors contributing to the decline of Middle Columbia river steelhead include hydropower development and 2915 agriculture; these land uses impede or prevent migrati ons, alter water availability and alter water chemistry and 2916 temperatures. 2917

Status and Trends 2918 Middle Columbia River steelhead were listed as threatened in 1999 (64 FR 14517), and their status was reaffirmed 2919 on January 5, 2006 (71 FR 834). The precise pre-1960 abundance of this species is unknown. Based upon the 2920 Washington Department of Fish and Wildlife’s estimates of the historic run size for the Yakima River at 100,000 2921 steelhead, Busby et al., (1996) surmised that total species abundance likel y exceeded 300,000 re turning adults. By 2922 1993, the estimated 5-year av erage size (ending in 1993) of the Middle Co lumbia steelhead species was 142,000 fish 2923 (Busby et al. , 1996). Survey data collected between 1997 and 2001 indicates that several populations within the 2924 species have increased since the last status review (Good et al. , 2005). However, long-term annual population 2925 growth rate ( λ ) is negative for most populations. 2926
In contrast, short term trends in major areas were positiv e for seven of the 12 areas with available data (see Good et 2927 al., 2005). Spawner numbers in the Yakima River, the Deschutes River and sections of the John Day River system 2928 were substantially higher compared to numbers surveyed between 1992 and 1997 (Good et al. , 2005). Similarly, 2929 spawner numbers substantially increased in the Umatilla River and Fifteen-mile Creek relative to annual levels in 2930 the early 1990s. Nonetheless, most populations remain be low interim target levels. For instance, the Yakima River 2931 returns are still substantially below interim target levels of 8,900 (the current 5-yearaverage is 1,747 fish) and 293286 estimated historical return levels. In fact, the majority of spawning occurs in only one tributary, Satus Creek (Berg, 2933 2001as cited in Good et al ., 2005). Based on recent 5-year geometric means, only the Deschutes River exceeded 2934 interim target levels (Good et al. , 2005). While increases in short-term tr ends could suggest improvements within 2935 the species, given that the average popu lation growth rate across all stream s is negative (0.98 assuming hatchery 2936 spawners do not contribute to production, and 0.97 assuming that both hatchery and natural-origin fish contribute 2937 equally) and evidence of large fluctuation in marine survival for the species, recent increases in population sizes 2938 must be viewed cautiously (Good et al. , 2005). 2939

Critical Habitat 2940 NMFS designated critical habitat for Middle Columbia River steelhead on September 2, 2005 (70 FR 52630). 2941 Designated critical habitat includes the following subbasins: Upper Yakima, Naches, Lower Yakima, Middle 2942 Columbia/Lake Wallula, Walla Walla, Umatilla, Middle Colu mbia/Hood, Klickitat, Upper John Day, North Fork 2943 John Day, Middle Fork John Day, Lower John Day, Lower Deschutes, Trout, and the Upper Columbia/Priest Rapids 2944 subbasins and the Columbia River corridor. These areas are important for the species’ overall conservation by 2945 protecting quality growth, reproduction and feeding. The cr itical habitat designation for this species identifies 2946 primary constituent elements th at include sites necessary to support one or more steelh ead life stages. Specific sites 2947 include freshwater spawning sites, freshwater rearing sites, freshwater migration corridors, nearshore marine habitat 2948 and estuarine areas. The physical or biological features that characterize these sites include water quality and 2949 quantity, natural cover, forage, adequate passage conditions and floodplain connectivity. The final rule (70 FR 2950 52630) lists the watersheds that comprise the designated subbasins and any areas that ar e specifically excluded from 2951 the designation. 2952
In total, there are 114 watersheds within the range of Middle Columbia River steelhead. The total area of habitat 2953 designated as critical includes about 5, 800 miles of stream habitat. This designation includes the stream channels 2954 within the designated stream reaches and includes a lateral exte nt as defined by the ordinary high water line. In areas 2955 where the ordinary high-water line is not defined the lateral extent is defined as the bankfull elevation. Of the 114 2956 watersheds reviewed in NMFS' assessment of critical habita t for Middle Columbia River steelhead, nine watersheds 2957 received a low rating of conservation value, 24 receive d a medium rating and 81 received a high rating of 2958 conservation value for the species. Although pristine habita t conditions are still present in some wilderness, roadless 2959 and undeveloped areas, habitat complexity has been greatly reduced in many areas of designated critical habitat for 2960 Middle Columbia River steelhead. Limiting factors identified for Middle Columbia River steelhead include: 2961 hydropower system mortality, reduced stream flow, impair ed passage, excessive sediment, degraded water quality 2962 and altered channel morphology and floodplain. 2963

Northern California Steelhead 2964
Distribution and Descriptio n of the Listed Species 2965 The Northern California species of steelhead includes all naturally spawned steelhead populations below natural and 2966 manmade impassible barriers in California coastal river basins from Redwood Creek south to, but not including the 2967 Russian river and two artificial propagation programs (Yager Creek Hatchery and North Fork Gualala River 2968 Hatchery). In the recent update on the status of this sp ecies, the southern boundary of the species was redefined to 2969 include the small coastal streams south of the Gualala River (between the Gual ala River and the Russian River) that 2970 support steelhead. This species consists of winter and summ er-run fish, as well as “half- pounders” – a steelhead that 2971 returns from the sea after spending less than a year in the ocean. 297287 Status and Trends 2973 NMFS listed Northern California steelhead as threatened on June 7, 2000 (65 FR 36074), and reaffirmed their status 2974 as threatened on January 5, 2006 (71 FR 834). Long-term data sets are limited for Northern California steelhead. 2975 Before 1960, estimates of abundance specific to this species were available from dam counts in the upper Eel River 2976 (Cape Horn Dam; annual average number of adults was 4,400 in the 1940s), the South Fork Eel River (Benbow 2977 Dam; annual average number of adults was 18,000 in the 1940s) and the Mad River (Sweasey Dam; annual average 2978 number of adults was 3,800 in the 1940s). According to California Department of Fish & Game nearly 200,000 2979 spawning steelhead may have comprised this species in the early 1960s (Good et al. , 2005). At the time of the first 2980 status review on this population, adult escapement trends could be calculated for seven populations. Five of the 2981 seven populations exhibited declines, while two exhibited in creases with a range of almost 6% annual decline to a 2982 3.5% increase. At the time, little information was available on the actual contribution of hatchery fish to natural 2983 spawning, there was and continues to be insufficient info rmation to calculate an over all abundance estimate for 2984 Northern California steelhead (Busbyet al. , 1996). 2985

Recent time series data is also limi ted for this species, with recent abunda nce estimates available for only four 2986 populations, three summer-run and one winter-run. Similarly, Good et al., (2005) could only calculate the 2987 population growth rate for three populations. Population gr owth rates are negative for two of the three populations, 2988 the South Fork Eel River winter-run and the Middle Fork Eel River summer-run. Based on time series data for the 2989 Middle Fork Eel River, both the long-term and short-term trends are downward. Due to the lack of adult data on 2990 which to base their risk assessment, Good et al., (2005) also examined data on ju venile steelhead and found both 2991 upward and downward trends. The lack of data for the populations within this species, particular winter-run fish is 2992 of continuing concern. 2993

Critical Habitat 2994 NMFS designated critical habitat for Northern California steelhead on September 2, 2005 (70 FR 52488). Specific 2995 geographic areas designated include the following CALWATER hydrological units: Redwood Creek, Trinidad, 2996 Mad River, Eureka Plain, Eel River, Cape Mendocino and the Mendocino Coast. These areas are important for the 2997 species’ overall conservation by protecting quality growth, reproduction and feeding. The critical habitat designation 2998 for this species identifies primary constituent elements that include sites necessary to support one or more steelhead 2999 life stages. Specific sites include freshwater spawning sites, freshwater rearing sites, fres hwater migration corridors, 3000 nearshore marine habitat and estuarine ar eas. The physical or biolog ical features that characterize these sites include 3001 water quality and quantity, natural cover, forage, ade quate passage conditions and floodplain connectivity. The 3002 critical habitat designation (70 FR 52488) contains additional de tails on the sub-areas that are included as part of this 3003 designation and the areas that we re excluded from designation. 3004
In total, Northern California steelhead occupy 50 watersheds (fresh water and estuarine). The total area of habitat 3005 designated as critical includes about 3,000 miles of stream habitat and about 25 square miles of estuarine habitat, 3006 mostly within Humboldt Bay. This de signation includes the str eam channels within the designated stream reaches 3007 and includes a lateral extent as defined by the ordinary hi gh water line. In areas where th e ordinary high-water line is 3008 not defined the lateral extent is defined as the bankfull elev ation. In estuarine areas the lateral extent is defined by 3009 the extreme high water because extrem e high tide areas encompass those areas typically inundated by water and 3010 regularly occupied by juvenile salmon during the spring and summer, when they are migrating in the nearshore zone 3011 and relying on cover and refuge qualities provided by th ese habitats and while they are foraging. Of the 50 3012 watersheds reviewed in NMFS' assessment of critical habitat for Northern California steelhead, nine watersheds 3013 received a low rating of conservation value, 14 receive d a medium rating and 27 received a high rating of 3014 conservation value for the species. Two estuarine areas used for rearing and migration (Humboldt Bay and the Eel 301588 River estuary) also received a ratin g of high conservation value. 3016

Puget Sound Steelhead 3017
Distribution and Descriptio n of the Listed Species 3018 The Puget Sound species for steelhead includes all naturally spawned anadromous winter-run and summer-run 3019 steelhead populations in watersheds of the Strait of Juan de Fuca, Puget Sound and Hood Canal, Washington. 3020 Boundaries of this species ex tend to and include the Elwha River to the west and the Nooksack River and Dakota 3021 Creek to the north. Hatchery production of steelhead is widespread throughout this species, but only two artificial 3022 propagation programs are part of this species: the Green River natural and Hamma Hamma winter-run steelhead 3023 hatchery populations. The remaining hatchery programs are not considered part of the Puget Sound steelhead 3024 species because they are more than moderately diverged from the local native populations (Hard et al. , 2007). 3025
The oceanic distribution of Puget Sound steelhead is not well understood. Winter and summer runs from multiple 3026 steelhead species comingle in the North Pacific Ocean and some may undergo exte nsive migrations as a result of the 3027 location of their natal streams and o ceanic “centers of abundance” (Light et al. , 1989). Tagging and genetic studies 3028 indicate that Puget Sound steelhead migrate to the central North Pacific ocean (see French et al . 1975, Hartt and Dell 3029 1986, and Burgner et al . 1992 in Hard et al. , 2007). Oceanic residence times varies among populations within the 3030 species, with some populations spending only one season in the ocean and others spending three years in marine 3031 waters before returning to their natal stream for spawning. Generally, winter-run steelhead enter their natal 3032 freshwater systems later (November to April) in the year than summer-run steelhead (May to October. Winter-run 3033 steelhead have a lower pre-spawn mortality rate than summer-run steelhead (Hard et al. , 2007). Winter-run 3034 steelhead are also more prevalent than summer-run fish, comprising 37 of the 53 populations within this species. 3035

Status and Trends 3036 NMFS listed Puget Sound steelhead as a threatened species on May 11, 2007 (72 FR 26722). At the time of the 3037 listing, the biological review team concluded that: the viability of Puget Sound steelhead is at a high risk due to 3038 declining productivity and abundance; Puget Sound steelhead are at moderate risk due to reduced spatial complexity 3039 and connectivity among populations within the species and re duction in life-history diversity within populations and 3040 from the threats posed by artificial propagation and harves t. The Puget Sound steelhead species includes 53 putative 3041 populations; most of which are composed of winter-run fish. Summer-run populations within Puget Sound are small, 3042 with most averaging less than 200 spaw ners and most lack sufficient data to estimate population abundance (Hard et 3043 al. , 2007). 3044
In general, steelhead are most abundant in the northern Puget Sound streams (Hard et al. , 2007). The largest 3045 populations in this species are in the Skagit River and Snohomish River winter-run steelhead populations. The recent 3046 geometric mean escapement is 5,608 winter-run steelhead in the Skagit, and 3,230 winter-run steelhead in the 3047 Snohomish River (Hard et al. , 2007). The Green River and Puyallup River populations, in central Puget Sound, are 3048 the next largest populations and average approximately 1,500 (Green) and 1,000 (Puyallup) winter-run steelhead 3049 spawners annually (Hard et al. , 2007). 3050
Estimates of historical abundance for this species are largely based on catch data. The earliest catch records from 3051 commercial fisheries in the late 1880s indicate that the cat ch peaked at 163,796 steelhead in Puget Sound in 1895 3052 (Hard et al. , 2007). Based on this catch data, estimates for the peak run size for Puget Sound steelhead ranges 3053 between 300,000 and 550,000 fish (Hard et al. , 2007). Given that most fish were harvested in terminal fisheries (nets 3054 set at the mouth of rivers) NMFS expect s that this estimate is a fair estimat e of the Puget Sound species as it is 305589 unlikely to include fish from neighboring rivers outside of the Puget Sound species. As early as 1898, Washington 3056 officials expressed concerns that the run had declin ed by half of its size in only three years (Hardet al. , 2007). Since 3057 1925, Washington has managed steelhead as a game fish, and in 1932 the State proh ibited the commercial catch, 3058 possession or sale of steelhead. 3059
Run size for this species was calculated in the early 1980s at about 100,000 winter-run fish and 20,000 summer-run 3060 fish. It is not clear what portion were hatchery fish, but a combined estimate with coas tal steelhead suggested that 3061 roughly 70% of steelhead in ocean runs were of hatchery origin. Escapement of wild fish to spawning grounds 3062 would be much lower without the influx of hatchery fish (Busby et al. , 1996). 3063
NMFS’ first status review for Puget Sound steelhead demonstrated that 80% of the runs for which there was data 3064 had declining trends in abundance. Busby et al., (1996) noted that the largest d ecline, an 18% annual decline, 3065 occurred in the Lake Washington population. On the contrary, the largest increase in abundance occurred in the 3066 Skykomish River winter-run steelhead (the Skykomish River is a tributary to the Snohomish River) at a 7% annual 3067 increase. Estimates of spawner abundan ce in the Skagit and Snohomish rivers, the two largest steelhead producing 3068 basins in the species, were about 8,000 naturally spawning adult steelhead each. These tw o basins exhibited modest 3069 overall upward trends at the time of the first status revi ew. Recent data demonstrates significant declines in the 3070 natural escapement of steelhead throughout the species, especially in the southern Puget Sound populations. 3071 Significant positive trends have occurred in the Samish and the Hamma Hamma winter-run populations. The 3072 increasing trend in the Hamma Hamma River appears to be the result of a captive rearing program, rather than due 3073 to natural escapement. The predominant downward trends in escapement and run size of natural steelhead in the 3074 Puget Sound species, both over the long-term and short-term, is of concern particularly given that despite 3075 widespread reductions in direct harvest since the mid 1990s (Hard et al. , 2007). 3076

Critical Habitat 3077 NMFS has not designated critical ha bitat for Puget Sound steelhead. 3078

Snake River Steelhead 3079
Distribution and Descriptio n of the Listed Species 3080 The Snake River Basin steelhead species includes all natura lly spawned populations of steelhead in streams in the 3081 Snake River basins of southeast Washington, northeast Oregon and Idaho. Six artificial propagation programs are 3082 considered part of this species: The Tucannon River, Dworshak National Fish Hatchery, Lolo Creek, North Fork 3083 Clearwater, East Fork Salmon River and the Little Sheep Creek/Imnaha river hatchery programs. 3084
Snake River Basin steelhead are distributed throughout the Snake River drainage basin, migrating a considerable 3085 distance from the ocean to use high- elevation tributaries (typically 1, 000-2,000 m above sea level) (Good et al. , 3086 2005). Generally classified as summer-run fish, Snake Rive r steelhead enter the Columbia River from late June to 3087 October. (Goodet al. , 2005) After remaining in the river through the winter, Snake River steelhead spawn the 3088 following spring (March to May) (Good et al. , 2005). Managers recognize two life history patterns within Snake 3089 River steelhead primarily based on ocean age and adult size upon return: A-run steelhead are typically smaller, have 3090 a shorter fresh water and ocean residence (generally 1 year in the ocean) , and begin their up-river migration earlier 3091 in the year; whereas B-run steel head are larger, spend more time in fresh water and the ocean (generally 2-years in 3092 ocean) and appear to start their upstr eam migration later in the year (Good et al. , 2005). 309390 Status and Trends 3094 NMFS listed Snake River steelhead as threatened in 1997 (6 2 FR 43937), and reaffirmed their status as threatened 3095 on January 5, 2006 (71 FR 834). NMFS 1997 status review identified sharp declines in the returns of naturally 3096 produced steelhead, beginning in the mid-1980s. At the time nine of 13 trend indicators were in decline and the 3097 average abundance (geometric mean, 1992-1996) for the species was 75,000 adult steelhead (8,900 naturally 3098 produced). Of this, about 7,000 were A-run adults, and about 1,400 were B-run adults (Busby et al. , 1996). 3099
The lack of data on adult spawning escapement for specifi c tributaries of the Snake River Basin species continues to 3100 make a quantitative assessment of viability difficult. Availabl e data indicate that the overall long-term estimates of 3101 population trends have remained negative (Good et al. , 2005). Annual return estimates are limited to counts of the 3102 aggregate return over Lower Granite Dam, and spawner estimates for the Tucannon, Asotin, Grande Ronde and 3103 Imnaha Rivers. The 2001 return over Lower Granite Dam was substantially higher relative to the low levels seen in 3104 the 1990s; the recent geometric 5-year m ean abundance (Total escapement 106,17 5 with 14,768 natural returns) was 3105 approximately 28% of the interim recovery target level (52,000 natural spawners) (Good et al. , 2005). The 10-year 3106 average for natural-origin steelhead passing Lower Gran ite Dam between 1996 and 2005 is 28,303 adults. Long3107 term trend estimates of the population growth rate ( λ ) across the available data set was 0.998 assuming that natural 3108 returns are produced only from natural-origin spawners, and 0.733 if both hatchery and wild spawners are 3109 contributing to production equally (Good et al. , 2005). The Snake River supports approximately 63% of the total 3110 natural-origin production of steelhead in the Columbia River Basin (Good et al. , 2005). 3111

Critical Habitat 3112 NMFS designated critical habitat for Snake River steelhead on September 2, 2005 (70 FR 52630). Designated 3113 critical habitat includes the following subbasins: Hells Canyon, Imnaha River, Lower Snake/Asotin, Upper Grand 3114 Ronde River, Wallowa River, Lower Grand Ronde, Lower Snake/Tucannon, Upper Salmon, Pahsimeroi, Middle 3115 Salmon-Panther, Lemhi, Upper Middle Fork Salmon, Lower Middle Fork Salmon, Middle Salmon, South Fork 3116 Salmon, Lower Salmon, Little Salmon, Upper and Lower Se lway, Lochsa, Middle and South Fork Clearwater, and 3117 the Clearwater subbasins and the Lower Snake/Columbia Ri ver corridor. These areas are important for the species’ 3118 overall conservation by protecting quality growth, reproduction, and feeding. The critical habitat designation for this 3119 species identifies primary constituent elements th at include sites necessary to su pport one or more steelhead life 3120 stages. Specific sites include freshwater spawning sites, freshwater rearing sites, fresh water migration corridors, 3121 nearshore marine habitat and estuarine ar eas. The physical or biolog ical features that characterize these sites include 3122 water quality and quantity, natural cover, forage, adequate passage conditions, and floodplain connectivity. The final 3123 rule (70 FR 52630) lists the watersheds that comprise the designated subbasins and any areas that are specifically 3124 excluded from the designation. 3125

There are 289 watersheds within the ra nge of Snake River steelhead . The total area of habitat designated as critical 3126 includes about 8,000 miles of stream habitat. This designation includes the stream channels within the designated 3127 stream reaches, and includes a lateral extent as defined by the ordinary high water line. In areas where the ordinary 3128 high-water line is not defined the lateral extent is define d as the bankfull elevation. Of the 289 fifth order streams 3129 reviewed in this species, 231 received a high conservation value rating, 44 received a medi um rating and 14 received 3130 a rating of low conservation value for the species. The lower Snake/Columbia rearing/migration corridor 3131 downstream of the spawning range has a high conservation value. Limiting factors identified for Snake River Basin 3132 steelhead include: hydrosystem mortality, reduced stream flow, altered channel morphology and floodplain, 3133 excessive sediment, degraded water quality, harvest impacts, and hatchery impacts. 313491 South-Central California Coast Steelhead 3135
Distribution and Descriptio n of the Listed Species 3136 The South-Central California Co ast steelhead species includes all naturally spawned populations of steelhead (and 3137 their progeny) in streams from the Pajaro River (inclusive) to, but not including the Santa Maria River, California

. 3138 No artificially propagated steelhead populations that reside within the historical geograph ic range of this species are 3139 included in this designation. The two largest basins within this species’ range are the inland basins of the Pajaro 3140 River and the Salinas River. Both of these watersheds drain intercoastal mountain ranges and have long alluvial 3141 lower stretches. Principle sub-basins in the Pajaro River that support steelhead include: Corralitos Creek, Pescadero 3142 Creek, Uvas Creek and Pacheco Creek. Pr inciple sub-basins in the Salinas Rive r that support steelhead include the 3143 Arroyo Seco River, Gabilan Creek, Paso Robles Cr eek, Atascadero Creek and Santa Margarita Creek. Other 3144 important watersheds include the smaller coastal basins of the Carmel River, and St. Rosa and San Luis Obispos 3145 creeks. 3146

Status and Trends 3147 NMFS listed South-Central California Coast steelhead as th reatened in 1997, and reaffirmed their status as 3148 threatened on January 5, 2006 (71 FR 834). Historical da ta on the South-Central California Coast steelhead species 3149 are sparse and no credible historic or recent estimates of total species size ar e available. Steelhead are present in a 3150 large portion of the historically occupied basins within this species’ range (estimat ed 86-95%) but observed and 3151 inferred abundance suggest many of this basins support a small fragment of their historic run size. Present 3152 population trends within individual watersheds continuing to support runs is generally unknown, but may vary 3153 widely between watersheds. No data are available to estim ate the steelhead abundance or trends in the two largest 3154 watersheds in the species, the Pajaro and Salinas basins. These basins are highly degraded and expected to support 3155 runs much reduced in size from historical levels. 3156

Steelhead in the Carmel Basin have been monitored at San Clemente Dam since 1964, representing one of the 3157 longest data sets available for steelhead in this species. However, this data is also limited because a nine year gap 3158 exists in the series, a large portion of the run spawns below the dam and the older dam counts may be incomplete. 3159 Between NMFS’ 1997 status review and 2005 status update, continuous data from San Clement dam suggests that 3160 the abundance of adult spawners in the Carmel River has increased. Carmel River time series data indicate that the 3161 population declined by about 22% per year between 1963 and 1993, and between 1991 and 1997 the population 3162 increased from one adult to 775 ad ults at San Clemente Dam. Good et al., (2005) deemed this in crease too great to 3163 attribute simply to improved reproduction and survival of the local steelhead population. Other possibilities were 3164 considered, including that the substantial immigration or tr ansplantation occurred or that resident trout production 3165 increased as a result of improved environmental conditi ons within the basin. The five-year geometric mean 3166 calculated by Good et al., (2005) for the Carmel River population (1998-2002) was 611. 3167

Critical Habitat 3168 NMFS designated critical habitat for South-Central California Coast steelhead on September 2, 2005 (70 FR 52488). 3169 Specific geographic areas designated include the following CALWATER hydrological units: Pajaro River, Carmel 3170 River, Santa Lucia, Salinas River and Estero Bay. These areas are important for the species’ overall conservation by 3171 protecting quality growth, reproduction and feeding. The cr itical habitat designation for this species identifies 3172 primary constituent elements th at include sites necessary to support one or more steelh ead life stages. Specific sites 3173 include freshwater spawning sites, freshwater rearing sites, freshwater migration corridors, nearshore marine habitat 3174 and estuarine areas. The physical or biological features that characterize these sites include water quality and 3175 quantity, natural cover, forage, adequate passage conditions and floodplain connectivity. The critical habitat 317692 designation (70 FR 52488) contains additional details on the sub-areas that are included as part of this designation 3177 and the areas that were excluded from designation. 3178
In total, South-Central California Coast steelhead occupy 30 watersheds (fresh water an d estuarine). The total area 3179 of habitat designated as critical includes about 1,250 miles of stream habitat and about 3 square miles of estuarine 3180 habitat (e.g., Morro Bay). This designation includes the stre am channels within the desi gnated stream reaches and 3181 includes a lateral extent as defined by the ordinary high wa ter line. In areas where the or dinary high-water line is not 3182 defined the lateral extent is defined as the bankfull elevatio n. In estuarine areas the lateral extent is defined by the 3183 extreme high water because extreme high tide areas en compass those areas typically inundated by water and 3184 regularly occupied by juvenile salmon during the spring and summer, when they are migrating in the nearshore zone 3185 and relying on cover and refuge qualities provided by thes e habitats and while they are foraging. Of the 30 3186 watersheds reviewed in NMFS' assessment of critical ha bitat for South-Central California Coast steelhead, six 3187 watersheds received a low rating of conservation value, 11 received a medium rating an d 13 received a high rating 3188 of conservation value for the species. 3189

Southern California Steelhead 3190
Distribution and Descriptio n of the Listed Species 3191 The Southern California steelh ead species includes all naturally spawned po pulations of steelhead in streams from 3192 the Santa Maria River, San Luis Obispo County, Califor nia (inclusive) to the U.S.-Mexico border. Artificially 3193 propagated steelhead that reside within the historical geographic range of this sp ecies are not included in the listing. 3194
A comprehensive assessment of the distribution of steelhead within the Southern California species indicates that 3195 steelhead occur in most of the coastal basins (Boughton and Fish 2003 in Good et al., 2005). Major watersheds 3196 occupied by steelhead in this species include the Santa Maria, Santa Ynez, Ventura, Santa Clara rivers. Smaller 3197 watersheds that support steelhead include the Los Angeles, San Gabriel, San Luis Rey and Sweetwater rivers, and 3198 San Juan and San Mateo creeks. Significant portions of several upper watersheds are contained with four national 3199 forests (Los Padres, Angeles, Clevelan d and San Bernardino National Forests), whereas coastal and inland valleys 3200 are dominated by urban development, with the Los Angeles basin being the most expansive and densest urban area 3201 in the species. Populations within the southernmost portion of the species (San Juan Creek, San Luis Rey River and 3202 San Mateo Creek) are separated from the northernmost populations by about 80 miles. 3203

Status and Trends 3204 NMFS listed Southern California steelhead as endangered in 1997 (62 FR 43937), and reaffirmed their status as 3205 endangered on January 5, 2006 (71 FR 834). Historical and recent data is generally lacking for Southern California 3206 steelhead, making a general assessment of their status difficu lt. The historical run size estimate for the entire species 3207 was between 32,000-46,000 steelhead, but this estimate omits the Santa Maria system and basins south of Malibu 3208 Creek (Busby et al. , 1996). Estimates for the Santa Ynez River Basin, probably the largest run historically, range 3209 from 13,000 to 30,000 spawners, although this number may underestimate the steelhead abundance in the basin prior 3210 to the construction of Juncal and Gibraltar dams (Busby et al., 1996; Good et al., 2005). No recent data are available 3211 for steelhead in the Santa Ynez basin and most of the historical spawning habitat was blocked by Bradbury and 3212 Gibraltar dams. 3213

Steelhead and rainbow trout are known to occur in streams downstream of Bradbury Dam, but no estimates of 3214 abundance or trends are available. Similarly, Twitchell Dam in the Santa Maria River, and Casitas Dam on Coyote 3215 Creek and Matilija Dam on Matilija Creek block access to signi ficant portions of histori cal spawning and rearing 321693 habitat and alter the hydrology of the basins. A fish ladder and counting trap at the Vern Freeman Diversion Dam on 3217 the Santa Clara River is thought to be dysfunctional (Good et al. , 2005). In general run sizes in river systems within 3218 the species are believed to range between less than five anadromous adults per year, to less than 100 anadromous 3219 adults per year. An estimated 26-52% of historically occupied basins are believed to contain some steelhead and 3220 about 30% are believed vacant, extirpated or nearly extirpated due to dewatering or barriers that block spawning 3221 habitat. 3222

Critical Habitat 3223 NMFS designated critical habitat for Southern California steelhead on September 2, 2005 (70 FR 52488). Specific 3224 geographic areas designated include the following CALWATER hydrological units: Santa Maria River, Santa 3225 Ynez, South Coast, Ventura River, Santa Clara Calleguas, Santa Monica Bay, Callequas and San Juan hydrological 3226 units. These areas are important for the species’ overall c onservation by protecting quality growth, reproduction and 3227 feeding. The critical habitat designation for this species identifies primary constituent elements that include sites 3228 necessary to support one or more steelhe ad life stages. Specific sites include freshwater spawning sites, freshwater 3229 rearing sites, freshwater migration corridors, nearshore marine habitat and estuarine areas. The physical or biological 3230 features that characterize these sites include water qua lity and quantity, natural cover, forage, adequate passage 3231 conditions and floodplain connectivity. The critical habitat designation (70 FR 52488) contains additional details on 3232 the sub-areas that are included as part of this designa tion and the areas that were excluded from designation. 3233
In total, Southern California steelhead occupy 32 watersheds (fresh water and estuarine). The total area of habitat 3234 designated as critical includes about 70 0 miles of stream habitat and about 22 square miles of estuarine habitat, 3235 mostly within Humboldt Bay. This de signation includes the str eam channels within the designated stream reaches 3236 and includes a lateral extent as defined by the ordinary hi gh water line. In areas where th e ordinary high-water line is 3237 not defined the lateral extent is defined as the bankfull elev ation. In estuarine areas the lateral extent is defined by 3238 the extreme high water because extrem e high tide areas encompass those areas typically inundated by water and 3239 regularly occupied by juvenile salmon during the spring and summer, when they are migrating in the nearshore zone 3240 and relying on cover and refuge qualities provided by thes e habitats and while they are foraging. Of the 32 3241 watersheds reviewed in NMFS' assessment of critical habitat for Southern California steelhead, five watersheds 3242 received a low rating of conservation value, six receive d a medium rating and 21 received a high rating of 3243 conservation value for the species. 3244

Upper Columbia River Steelhead 3245
Distribution and Descriptio n of the Listed Species 3246 The Upper Columbia River steelhead speci es includes all naturally spawned populations of steelhead in streams in 3247 the Columbia River Basin upstream from the Yakima River, Washington, to the U.S.-C anada border. Six artificial 3248 propagation programs are part of this species. 3249
Rivers in this species primarily drai n the east slope of the northern Cascad e Mountains and include the Wenatchee, 3250 Entiat, Methow and Okanogan River Basins. Some of these upper Columbia River subbasins, including the 3251 Okanogan River and the upper Columbia River proper, extend into British Columbia although steelhead do not 3252 occur in significant numbers in British Columbia and thus we re not included in the species. Identified largely based 3253 on spawning distributions, this species is composed of four putative populations defined by the Wenatchee, Entiat, 3254 Methow and Okanogan rivers. Historically (before the construction of Grand Coulee Dam blocked 50% of the river 3255 to Upper Columbia steelhead) major watershed that may have supported steelhead that comprise this species were 3256 the Sanpoil, Spokane, Colville, Kettle, Pend Or eille and Kootenai rivers (ICBTRT, 2003). 325794 All upper Columbia River steelhead are summer-run steelhead. Adults return in the late summer and early fall, with 3258 most migrating relatively quickly to their natal tributaries. A portion of the returning a dult steelhead overwinters in 3259 mainstem reservoirs, passing over upper-mid-Columbia dams in April and May of the following year. Spawning 3260 occurs in the late spring of the year following river entr y. Juvenile steelhead spend one to seven years rearing in 3261 fresh water before migrating to sea. Smolt outmigrations are predominantly year cla ss two and three (juveniles), 3262 although some of the oldest smolts are reported from this species (7 years). Most adu lt steelhead return to fresh 3263 water after one or two years. 3264

Status and Trends 3265 NMFS originally listed Upper Columbia River steelhead as endangered in 1997 (62 FR 43937). On January 5, 2006, 3266 after reviewing the status of Upper Columbia River st eelhead and noting an increase in abundance and more 3267 widespread spawning, NMFS reclassified the status of Upper Columbia River threatened (71 FR 834). In accordance 3268 with a U.S. District Court decision, NMFS reinstated the endangered status of Upper Columbia River steelhead in 3269 June 2007 (62 FR 43937). NMFS appealed the Court’s decision, and on June 18, 2009, the District Court revised its 3270 ruling, effectively reinstating threatenedstatus for Upper Columbia River steelhead (74 FR 42605). Thus, consistent 3271 with the court’s rulings and the NMFS’ listing determinati on of January 5, 2006, Upper Columbia River steelhead 3272 are listed as threatened under the ESA. 3273
Since the 1940s, artificially propagated steelhead have seeded this species to supplement the numbers lost with the 3274 construction of the Grand Coulee Dam. Abundance estimates of returning naturally produced Upper Columbia River 3275 steelhead have been based on extrapolations from mainstem dam counts and associated sampling information (e.g., 3276 hatchery/wild fraction, age composition). Early estimates of steelhead in this species may be based on runs that were 3277 already depressed due to dams and steelhead fisheries. Neve rtheless, these early dam coun ts are the best source of 3278 available data on the former size of the populations withinthis species. From 1933-1959 counts at Rock Island Dam 3279 averaged between 2,600 and 3,700 steelhead adults, which suggested the pre-fishery r un size likely exceeded 5,000 3280 adults destined for tributaries above Rock Island Dam (Chapman et al. , 1994 as cited in Busby et al . 1996). Using 3281 counts at Priest Rapids Dam (located below the production areas for this species) as an indicator of species size and 3282 trends suggests that the total number of spawners has increased since NMFS’ 1996 status review. The 1992-1996 3283 average annual total returns (hatchery pl us natural) of steelhead spawners was 7,800, and the 1997-2001 average is 3284 12,900 steelhead (hatchery plus natural). The natural component increased in these same periods from 1,040 to 3285 2,200, respectively (Good et al. , 2005). 3286
While the total number of naturally produced fish in this species increased between status reviews, the proportion of 3287 naturally produced steelhead to hatchery-origin fish has declined. Total escapement increased in the combined 3288 estimate for the Wenatchee and Entiat rivers to a geometric mean of 3,279 spawners (900 natural spawners) over 3289 NMFS’ previous estimate of 2,500 hatchery and natural steelhead spawners (1989 to 1993, natural component 800 3290 steelhead) (Good et al. , 2005). Estimates of the hatchery contribution to this population increased from 65% to 71% 3291 of total escapement. (Good et al. , 2005) A comparison of estimates for the Methow and Okanogan rivers during the 3292 same periods indicate that the total escapement increased from 2,400 to 3,714 while naturally produced steelhead 3293 declined from 450 to 358. Thus, the contribution of naturally produced steelhead declined from 19% to only 9% of 3294 total escapement between the 1993 and 2001 estimates (Good et al. , 2005). 3295
The assumptions of the role that hatchery fish play in the overall productivity and h ealth of the species strongly 3296 influence estimates of population growth rates. Estimates based on the assumption that hatchery fish contribute to 3297 natural production at the same rate as natural-origin sp awners consistently result in long-term population growth 3298 rates (expressed as λ ) that are consistently below 1 (Good et al. , 2005). Under the assumption that hatchery fish do 329995 not contribute to natural production, estimates of long term population growth rate suggest the population is 3300 growing. Determining the actual contribution of hatchery fi sh to natural production is important for understanding 3301 the true status of this species, particularly given that the proportion of naturally produced steelhead to hatchery3302 origin steelhead continues to decline. The extremely low replacement rate of naturally produced steelhead in this 3303 species is of concern. 3304
The majority of the biological review team (54%) felt that this species warranted an “endangered” listing due to the 3305 growth rate and productivity and uncertainty over the contribution of hatchery fish to natural production. NMFS, 3306 after convening a review of the artificial propagation programs of the six hatcheries concluded that the programs 3307 collectively mitigate the immediacy of extinction risk of the species. Thus, NMFS listed the species as threatened 3308 rather than threatened (71 FR 834). NMFS concluded that the hatchery programs have increased total escapement 3309 and the distribution of spawning areas and minimize the potential risks asso ciated with artificial propagation. 3310 However, the abundance and productivity of naturally spawned steelhead remains a concern. 3311

Critical Habitat 3312 NMFS designated critical habitat for Upper Columbia River steelhead on September 2, 2005 (70 FR 52630). 3313 Designated critical habitat includes the following subb asins: Chief Joseph, Okanogan, Similkameen, Methow, 3314 Upper Columbia/Entiat, Wenatchee, Lower Crab, and the Upper Columbia/Priest Rapids subbasins and the 3315 Columbia River corridor. These areas are important for the species’ overall conservation by protecting quality 3316 growth, reproduction and feeding. The critical habitat de signation for this species identifies primary constituent 3317 elements that include sites necessary to support one or more steelhead life stages. Specific sites include freshwater 3318 spawning sites, freshwater rearing sites, freshwater migr ation corridors, nearshore marine habitat and estuarine 3319 areas. The physical or biological features that character ize these sites include water quality and quantity, natural 3320 cover, forage, adequate passage conditions and floodpla in connectivity. The final rule (70 FR 52630) lists the 3321 watersheds that comprise the designated subbasins and any areas that are specifically excl uded from the designation. 3322
There are 42 watersheds within the range of Upper Columbia River steelhead. The total ar ea of habitat designated as 3323 critical includes about 1,250 miles of stream habitat. Th is designation includes the stream channels within the 3324 designated stream reaches and includes a lateral extent as de fined by the ordinary high wa ter line. In areas where the 3325 ordinary high-water line is not defined the lateral extent is defined as the bankfull elevation. Of the 42 watersheds 3326 reviewed in NMFS' assessment of critical habitat for Uppe r Columbia River steelhead, three watersheds received a 3327 low rating of conservation value, eight received a medium rating and 31 receive d a high rating of conservation value 3328 for the species. In addition, the Columbia River rearing/mi gration corridor downstream of the spawning range was 3329 rated as a high conservation value. Limiting factors iden tified for the Upper Columbia River steelhead include: 3330 mainstem Columbia River hydropower system mortality, reduced tributary stream flow, tributary riparian 3331 degradation and loss of in-river wood, altered tributary floodplain and channel morphology and excessive fine 3332 sediment and degraded tributary water quality. 3333

Upper Willamette River Steelhead 3334
Distribution and Descriptio n of the Listed Species 3335 The Upper Willamette River steelhead species includes all naturally spawned populations of winter-run steelhead in 3336 the Willamette River, Oregon and its tributaries upstream fr om Willamette Falls to the Calapooia River (inclusive). 3337 No artificially propagated populations that reside within th e historical geographic range of this species are included 3338 in this listing. Hatchery summer-run steelhead occur in the Willamette Basin but are an out-of-basin population that 3339 is not included in this species. 334096 The native (late) winter-run steelhead, with spring Chinook salmon, are the only two populations of salmon believed 3341 to historically occur above Willametter Falls. The construction of a fish ladder at the falls in the late 1880s, allowed 3342 for the passage of summer steelhead from Skamania Creek and winter-run steelhead fr om Big Creek (i.e., Gnat 3343 Creek). The two groups of winter-run steelhead exhibit different return times. The later run exhibits the historical 3344 phenotype adapted to passing the seasonal barrier that existed at Willamette Falls prior to construction of the fish 3345 ladder. The early run of winter-run steelhead are considered non-native and were derived from Columbia River 3346 steelhead outside the Willamette River (Good et al. , 2005). While the release of these hatchery winter-run fish was 3347 recently discontinued, some fish from earlier releases now reproduce natura lly within the upper Willamette River 3348 Basin. Nonnative summer-run hatchery steelhead con tinue to be released within the upper basin (Good et al. , 2005). 3349
Native steelhead in the Upper Willamette are a late-migrati ng winter group that enters fresh water in January and 3350 February (Howell et al. , 1985a). They do not ascend to their spawning areas until late March or April (Dimick and 3351 Merryfield, 1945) and spawning occurs from April to June 1. The smolt migration past Willamette Falls also begins 3352 in early April and proceeds into early June, peaking in early- to mid-May (Howell et al., 1985). Smolts generally 3353 migrate through the Columbia via Multnomah Channel rather than the mouth of the Willamette River. Most spend 2 3354 years in the ocean before re-entering natal rivers to spawn (Busby et al. , 1996). Steelhead of the Upper Willamette 3355 River species generally spawn once or twice, although some may spawn three times. Repeat spawners are 3356 predominantly female and generally account fo r less than 10% of the total run size (Busby et al. , 1996). 3357

Status and Trends 3358 NMFS originally listed Upper Willamette River steelhead as threatened in 1999 (64 FR 14517), and reaffirmed their 3359 status as threatened on January 5, 2006 (71 FR 834). The Upper Willamette steelhead species consists of four 3360 demographically independent populations, each of which remains extant although depressed from historical levels. 3361 Available data for this species comes from a combination of dam counts, redd count index surveys and hatchery trap 3362 counts. Estimates of abundance from NMFS 1996 status revi ew on this species, demonstrate a mix of trends with the 3363 largest populations, Mollala and North Santiam Rivers, declini ng over the period of analysis. The 2005 review of the 3364 status of the Upper Willamette steelh ead species indicated that each population showed a declining trend over the 3365 data series that extended to 2000 and 2001, while one population, the Calapooia River, increased over the short-term 3366 (Good et al., 2005). 3367
More recently, data reported in McElhany et al., (2007) indicate that currently the two largest populations within 3368 this species are the Santiam River populations. Mean sp awner abundance in both the North Santiam River and the 3369 South Santiam River is about 2,100. Long-term growth is negative for three of the populations within the species, 3370 with Calapooia River demonstrating a lambda of >1 in dicating long-term growth in this population (McElhany et 3371 al., 2007). Spatial structure for the North and South Santiam populations has been substantially reduced by the loss 3372 of access to the upper North Santiam ba sin and the Quartzville Creek watershe d in the South Santiam subbasin due 3373 dam construction lacking passage facilities (McElhany et al. , 2007). Additionally, habitat in the Molalla subbasin 3374 has been reduced significantly by habitat degradation and in the Calapooia by habitat degradation as well as passage 3375 barriers. Finally, the diversity of some populations has been eroded by small population size, the loss of access to 3376 historical habitat, legacy effects of past winter-run hatc hery releases and the ongoing release of summer steelhead 3377 (McElhanyet al. , 2007). 3378

Critical Habitat 3379 NMFS designated critical habitat for Upper Willamette River steelhead on September 2, 2005 (70 FR 52488). 3380 Designated critical habitat includes the following subbasins: Upper Willamette, North Santiam, South Santiam, 3381 Middle Willamette, Molalla/Pudding, Yamhill, Tualatin, and the Lower Willamette subbasins and the lower 338297 Willamette/Columbia River corridor. These areas are important for the species’ overall conservation by protecting 3383 quality growth, reproduction and feeding. The critical ha bitat designation for this species identifies primary 3384 constituent elements that include sites necessary to suppor t one or more steelhead life stages. Specific sites include 3385 freshwater spawning sites, freshwater rearing sites, freshwater migration corridors, nearshore marine habitat and 3386 estuarine areas. The physical or biological features that characterize these sites include water quality and quantity, 3387 natural cover, forage, adequate passage conditions and floo dplain connectivity. The final rule (70 FR 52630) lists the 3388 watersheds that comprise the designated subbasins and any areas that are specifically excl uded from the designation. 3389
There are 38 watersheds within the range of Upper Willa mette River steelhead. The total area of habitat designated 3390 as critical includes about 1,250 miles of stream habitat. This designation includes the stream channels within the 3391 designated stream reaches and includes a lateral extent as de fined by the ordinary high wa ter line. In areas where the 3392 ordinary high-water line is not defined the lateral extent is defined as the bankfull elevation. Of the 38 watersheds 3393 reviewed in NMFS' assessment of criti cal habitat for Upper Willamette River steelhead, 17 watersheds received a 3394 low rating of conservation value, six r eceived a medium rating and 15 received a high rating of conservation value 3395 for the species. In addition, the lower Willamette/Columbia River rearing/migration corridor downstream of the 3396 spawning range was rated as a high conservation value. 3397

Marine Mammals 3398
Cook Inlet Beluga Whale 3399
Distribution and Description of the Listed Species 3400 Beluga whales are widely distributed in Arctic and subarc tic waters and in Alaska five putative populations exist 3401 (Beaufort Sea, eastern Chukchi Sea, Bristol Bay, eastern Bering Sea and Cook Inlet) (Angliss et al. , 2001). Cook 3402 Inlet beluga whales are the only population that is liste d under the ESA. Mitochondrial and nuclear DNA distinguish 3403 Alaskan beluga whales from those that occur in Hudson Strait, Baffin Bay and the St. Lawrence River, with the 3404 Cook Inlet population demonstrating the strong evidence of genetic isolation from the other Alaskan populations and 3405 other populations demonstrating weak to moderate evidence of genetic isolation (O'Corry-Crowe et al. , 2007; 3406 O'Corry-Crowe, 2008). 3407
Based on past studies of the summer distribution of beluga whales in Cook Inlet, it appears that the population has 3408 experienced a contraction in its overall distribution (Speckman and Piatt., 2000; Hobbs et al. , 2008; Rugh et al. , 3409 2010). According to Hobbs et al., (2008) 90% of the whales in the 1970s were observed within 70 nmi of the 3410 western tip of Anchorage (Point Woronz of), whereas more recently (1998-2007) 90% were det ected within 20 nmi. 3411 Although the precise reason for the range contraction is not known, the shrinking summer distribution likely reflects 3412 the reduction in the population size over the same interval s and the beluga whale’s preference for dense aggregations 3413 of preferred prey species. 3414
Analyses of beluga whale stomach cont ents indicate that beluga whales ar e opportunistic feeders, but specific 3415 species form the bulk of the prey when they are seasonally abundant (Hobbs et al. , 2008). For instance, eulachon 3416 ( Thaleichthys pacificus ) also known as smelt or candlefish, are a small anadromous fish return that their natal rivers 3417 in spring for spawning. The high fat content of this speci es confers a significant source of energy for beluga whales, 3418 including calving whales that occur in the upper inlet during the same period (Calkins, 1989). Based on stomach 3419 sample analyses from 2002-2007 fish compose the majority of the prey species, with gadids (cod and walleye 3420 pollock) and salmonids composing the majority of the fish eaten (Hobbs et al. , 2008). Anadromous salmonids begin 3421 concentrating at the river mouths and intertidal flats in upper Cook Inlet in late spring and early summer as 3422 emigrating smolts and immigrating adult spawners. Like eulachon, salmon are another source of lipid-rich prey for 342398 the beluga whale and represent the great est percent frequency of occurrence of the prey species found in Cook Inlet 3424 beluga whale stomachs (Hobbs et al. , 2008). As salmonid numbers dwindle in the fall and winter, beluga whales 3425 return to feed on nearshore or deeper water species including cod, sculpi n, flounder, sole, shrimp, crab and others 3426 (Hobbs et al. , 2008). 3427
Beluga whale calving is not well documented but the presence of cow/calf pairs in large river estuaries in the upper 3428 inlet, and accounts of Alaskan Natives, suggests that calvi ng and nursery areas are located near the mouths of the 3429 Beluga and Susitna Rivers, Chickaloon Bay and Turnag ain Arm (see NMFS, 2008b). R ecent surveys suggest that 3430 cow/calf pairs also make extensive use of Knik Arm in th e summer and fall (Funk et al. 2005 as cited in NMFS, 3431 2008b). Neonates are often not seen until June in Cook Inlet (Burns and Seaman, 1986). Some researchers have 3432 suggested that the shallow waters of Cook Inlet may be important for reproduction and calving, as the shallower 3433 water is warmer which may confer an important thermal a dvantage for calf survival as they have relatively limited 3434 fat deposits at birth (see NMFS, 2008b). A beluga female’s first parturition is at age five or six. Breeding is 3435 presumed to occur shortly after calving, in the late summer after about 14-15 months of gestation (Calkins, 1989). 3436 Lactation lasts about two years, with breeding occurring during lactation (Calkins, 1989). 3437

Status and Trends 3438 On October 22, 2008, NMFS listed the Cook Inlet beluga whale as endangered (73 FR 62919). Historic numbers of 3439 beluga whales in Cook Inlet are unknown. Dedicated surveys began in earnest in the 1990s when NMFS began 3440 conducting aerial surveys for beluga whales in Cook Inlet. Prior to then, survey efforts were inconsistent, part of 3441 larger sea bird and marine mammal surveys, made by vessel, or estimated following interviews with fishermen 3442 (Klinkhart, 1966). In many cases the survey methodology or confidence intervals were not described. For instance, 3443 Klinkhart (1966) conducted aerial surveys in 1964 and 1965, where he describes having estimated the populations at 3444 300-400 whales, but the methodology was not described nor did he report the variance around these estimates. Other 3445 estimates were incomplete due to the small area the survey focused upon (e.g. river mouth estimates; e.g., Hazard 3446 1988). The most comprehensive survey effort prior to the 1990s occurred in 1979 and included transects from 3447 Anchorage to Homer, and covered the upper, middle and lower portions of Cook Inlet. From this effort, and using a 3448 correction factor of 2.7 to account for submerged whales Calkins (1989) estimated the 1979 abundance at about 3449 1,293 whales. 3450
In 1993, NMFS began systematic aerial surveys of beluga whales in Cook Inlet and lik e the 1979 survey cover the 3451 upper, middle and lower portions of Cook Inlet. The survey protocol involves using paired observers who make 3452 independent counts at the same time a video of the whale gr ouping is recorded. Each group size estimate is corrected 3453 for subsurface and missed animals, or if video counts are not available then additional corrections are made (Allen 3454 and Angliss, 2010). 3455
Between 1979 and 1994, according to above noted population estimates, Cook Inlet beluga whales declined by 50%, 3456 with another 50% decline observed between 1994 and 1998. Using a growth fitted model Hobbs et al., (2008) 3457 observed an average annual rate of decline of -2.91% (SE = 0.010) from 1994 to 2008, and a -15.1% (SE = 0.047) 3458 between 1994 and 1998. A comparison with the 1999-2008 da ta suggests the rate of d ecline at -1.45% (SE=0.014) 3459 per year (Hobbs et al., 2008). Given that harvest was curtailed significantly between 1999 and 2008, NMFS had 3460 expected the population would begin to recover at a rate of 2-6% per year. However, abundance estimates 3461 demonstrate that this is not the case (Hobbs and Shelden, 2008). 3462
In conducting its status revi ew, NMFS ran a number of population viability analyses (PVAs) to estimate the time to 3463 extinction for Cook Inlet beluga whales. The models were sensitive to a variety of parameters such as killer whale 346499 predation, allee effects and unusual mortality events. The best approximation of the current population incorporated 3465 killer whale predation at only one beluga whale per year and allowed for an unusual mortality event occurring on 3466 average every 20 years. According to this model, there is an 80% probability that the population is declining, a 26% 3467 probability that the population will be extinct in 100 year s (by 2108) and a 70% probability that the population will 3468 be extinct within 300 years (by 2308). 3469

Threats 3470 Natural Threats. Natural threats to Cook Inlet beluga whales include stranding, predation, parasitism and disease, 3471 environmental change and genetic risks associated with small populations (e.g., inbreeding, loss of genetic 3472 variability). As noted in NMFS’ Cook Inlet beluga whale conservation plan (NMFS, 2008b),beluga whales may 3473 strand accidentally as they occupy sha llow water areas or escape predators, or as a result of diseases, illness or 3474 injury. Given the extreme tidal fluctuations in Cook Inlet, beluga whale strandings are not uncommon. According to 3475 NMFS (2008b) killer whales have been observed in Cook In let concurrent to beluga whale strandings and evidence 3476 of killer whale attacks is apparent in some beluga whale strandings. 3477
Over 700 beluga whales have stranded in Cook Inlet since 1988, many of which occurred in Turnagain Arm and 3478 often coincided with extreme tidal fluctuations (NMF S, 2008b). Where stranding oc curs from extreme tidal 3479 fluctuations and animals are out of the water for extended periods the risk of mortality increases from cardiovascular 3480 collapse. Ten hours may be the upper limit for out of the water for beluga whales before serious injury or death 3481 occurs (NMFS, 2008b). Strandings may re present a significant threat to the co nservation and recovery of the Cook 3482 Inlet beluga whale population. 3483
Gaydos et al., (2004) identified 16 infectious agents in free-ranging and captive southern resident killer whales, but 3484 concluded that none of these pathogens were known to have high potential to cause epizootics. Many of these same 3485 infectious agents could pose a problem for Cook Inlet beluga whales. At this time little information is available to 3486 date to suggest bacterial or viral agen ts are actively contributing to the decline in the Cook Inlet population. About 3487 80% of Cook Inlet beluga whales examined , however, have evidence of the parasite Crassicauda giliakiana in the 3488 kidneys, although it is presently unclear whether the para site is affecting the status of the population (NMFS, 3489 2008b). Necropsies have also revealed infestations of the common nematode anasakids, or whaleworm in the 3490 stomach of adult Cook Inlet beluga whales. While the paras ite tends to favor the stomach and can cause gastritis or 3491 ulcerations, the infestations in beluga whales has not be en considered severe enough to have caused clinical 3492 responses (NMFS, 2008b). Liver trematodes have also been identified in at least one be luga whale. At present, 3493 NMFS has no information to suggest that parasites are having a measureable impact on the survival and health of the 3494 Cook Inlet whale population (NMFS, 2008b). 3495
Anthropogenic Threats. Human induced threats to Cook Inlet beluga wh ales include subsistence harvest, poaching 3496 and illegal harvest, incidental take during commercial fishing and reduction of prey through fishing harvests, 3497 pollution, oil and gas development, urban development, vessel traffic including from tourism and whale watching, 3498 noise, as well as research activities directed at beluga whales. During the early 1900s there was a short-lived 3499 commercial whaling company, The Beluga Whaling Company, which operated at the Beluga River in upper Cook 3500 Inlet. The Company during its 5 years of operation harvest 151 belugas from 1917-1921 (Mahoney and Shelden, 3501 2000). Another commercial hunt of beluga whales in 1930s is recollected by residents, but no record of the hunt 3502 exists in Alaska fishery and fur seal documents (as cited in Mahoney and Shelden, 2000). In 1999 and 2000 there 3503 was a voluntary moratorium on subsistence harvest. Thereafter, subsistence harvests have been conducted under co3504 management agreements. Since 2000, no more than 2 beluga whales have been taken in subsistence harvests in any 3505 one year (NMFS, 2008b). 3506100 Commercial fisheries likely have varying levels of interact ions with Cook Inlet beluga whales, according to the 3507 timing, gear types, targeted species and location of ac tivities (NMFS, 2008b). Reports of fatal interactions with 3508 commercial fisheries have been noted in the literature (Hobbs et al. , 2008). Direct interactions with fishing vessels 3509 and nets are considered unusual, based on observer data and unlikely to inhibit the recovery of Cook Inlet beluga 3510 whales. The reduction of prey species, however, is of more concern for the species. In 2000 NMFS recommended 3511 the closing of the eulachon fishery due to a lack of understanding of how this fishery interfered with beluga whale 3512 feeding, but in 2005 this fishery was reopened with a harves t limited at 100 tons of eulachon. Currently, it is unclear 3513 if fishery harvest of prey species is having a significant impact on the beluga whale population. Impacts from 3514 recreational fisheries, which are very popular in the region, likely include the reduction of fish prey species 3515 particularly salmonid species and also the harassment from noise and risk of injury from vessel strikes from the 3516 operation of small watercraft in the estuarine/river mouths (NMFS, 2008b). 3517
Contaminants in beluga whales are of concern for both wh ale health and the health of subsistence users. Tissue 3518 samples are regularly collected from subsistence harveste d and stranded beluga whales and archived. Tissues and 3519 organs commonly collected include blub ber, liver and kidneys, as well as muscle, heart, bone, skin and brain. 3520 Blubber is the most commonly collected; due to the lipid content it typically contains the most lipophilic substances 3521 (Becker, 2000). The kidney and liver ar e used to analyze heavy metal compou nds. Relatively high levels of PCBs, 3522 chlorinated pesticides and mercury are evident in beluga whales, although the more contaminated belugas are from 3523 the St. Lawrence River, Canada (Becker 2000). Concentrations of chlorinated hydrocarbons in Cook Inlet beluga 3524 whales range from 0.1-2.4 μg/g, w.w. DDT, 0.6-4.7 μg/g, w.w. PCB, 0.1-0.6 μg/g, w.w. chlordane, <0.1-4.3 μg/g, 3525 w.w. toxaphene. Studies indicate that PCBs and chlorinated pesticide concentrations are higher in male beluga 3526 whales than females, reflecting the tr ansference of body loads to the offsprin g that occurs during gestation and 3527 lactation (Becker et al. , 2000). Other contaminants det ected in Cook Inlet beluga whal es include heavy metals such 3528 as cadmium, mercury, selenium, copper and zinc. Comparative studies suggest that Cook Inlet beluga whales 3529 generally carry less contaminant body burdens than beluga whales from other areas. An exception is copper, which 3530 is two to three times higher in Cook Inlet beluga whales than beluga whales from the eastern Beaufort Sea and the 3531 eastern Chukchi Sea, but is similar concentrations found in Hudson Bay beluga whales (Becker et al. , 2000). 3532

Critical Habitat 3533 On April 11, 2011 NMFS designated critical habitat for the Cook Inlet beluga whale 76 FR 20180. Two specific 3534 areas are designated comprising 7,800 square kilometers of marine habitat. Area one encompasses all marine waters 3535 of Cook Inlet north of a line from the mouth of Threemile Creek (61°08.5 ′ N., 151°04.4 ′ W.) connecting to Point 3536 Possession (61°02.1 ′ N., 150°24.3 ′ W.), including waters of the Susitna River south of 61°20.0 ′ N., the Little Susitna 3537 River south of 61°18.0 ′ N. and the Chickaloon River north of 60°53.0 ′ N. (2) Area two encompasses all marine 3538 waters of Cook Inlet south of a line from the mouth of Threemile Creek (61°08.5 ′ N., 151°04.4 ′ W.) to Point 3539 Possession (61°02.1 ′ N., 150°24.3 ′ W.) and north of 60°15.0 ′ N., including waters within two nautical miles seaward 3540 of the mean high water boundary along the western shoreline of Cook Inlet between 60°15.0 ′ N. and the mouth of 3541 the Douglas River (59°04.0 ′ N., 153°46.0 ′ W.); all waters of Kach emak Bay east of 151°40.0 ′ W.; and waters of the 3542 Kenai River below the Warren Ames bridge at Kenai, Alaska. 3543
Area 1 has the highest concentration of beluga whales in the spring through fall as well as the greatest potential for 3544 adverse impact from anthropogenic threats. It contains many rivers with large eulachon and salmon runs, including 3545 two rivers in Turnagain Arm (Twenty-mile River and Placer River) which are visited by beluga whales in the early 3546 spring. Use declines in the summer and increases again in August through the fall, coinciding with coho salmon 3547 returns. Also included in Area 1 are Knik Arm and the Susitna delta. Area 2 is located south of Area 1 and is used 3548 by Cook Inlet beluga whales for fall and winter feeding and as transit waters. 3549101 The primary constituent elements essential to the conservation of Cook Inlet beluga whales are: (1) Intertidal and 3550 subtidal waters of Cook Inlet with depths <30 ft. (MLLW) and within 5 miles of high and medium flow 3551 accumulation anadromous fish streams; (2) Primary prey species consisting of four species of Pacific salmon 3552 (Chinook, coho, sockeye and chum salmon), Pacific eul achon, Pacific cod, walleye pollock, saffron cod and 3553 yellowfin sole; (3) Waters free of toxins or other harmfu l agents; (4) Unrestricted passage within or between the 3554 critical habitat areas, and; (5) An absenc e of in-water noise levels that result in the abandonment of habitat by Cook 3555 Inlet beluga whales. 3556

Killer Whale Southern Resident Species 3557
Distribution and Description of the Listed Species 3558 The SRKW has been listed as endangered under the ESA si nce November 18, 2005 (70 FR 69903); critical habitat 3559 for this species was designated on November 29, 2006 (71 FR 69054). In April 2004, the Washington Department of 3560 Fish and Wildlife (WDFW) designated killer whales in Wa shington State as a “State endangered species” (WAC 3561 232-12-297). SRKWs are also protected by the MMP A and Canada’s Species at Risk Act (SARA). 3562
The Southern Resident killer whale ( Orcinus orca ) is a toothed whale and is the largest member of the dolphin 3563 family. Based on genetic research, it is believed that multip le subspecies of killer whales exist worldwide (Krahn et 3564 al., 2004; Reeves et al. , 2004; Waples and Clapham, 2004; Jefferson et al. , 2008). Resident killer whales in the 3565 Northeast Pacific are distributed from Alaska to Californi a, with four distinct communities recognized: southern, 3566 northern, southern and western Alaska (Krahn et al. , 2002; Krahn et al. , 2004). The SRKW occurs in the 3567 northeastern Pacific Ocean al ong the west coasts of the U.S. and Canada. Resident whales exhibit advanced vocal 3568 communication and live in highly stable social matriarchal groupings called pods. They frequent a variety of marine 3569 habitats and their range does not appear to be limited by depth, temperature or salinity (Baird, 2000). 3570
The SRKW species consists of three pods, designated J, K and L, that reside for part of the year in the inland 3571 waterways of Washington State and Britis h Columbia (Strait of Georgia, Strait of Juan de Fuca and Puget Sound), 3572 principally during the late spring, summer and fall (Bigg, 1982; Ford et al. , 2000; Krahnet al. , 2002). Pods have 3573 visited coastal sites off Washington and Vancouver Island (Ford et al. , 2000) and are known to travel as far south as 3574 central California and as far north as the Queen Charlotte Islands off British Columbia. The locations of SRKWs in 3575 the late fall, winter and early spring are less well known. 3576
Parsons (2009) noted that members of different pods intera ct, but members generally remain within their matrilinear 3577 group. Interaction between pods has increased over the past two decades and may be the result of a common 3578 response among pods to the stress of a declining population (Parsons et al. , 2009). The rate of intrapod interaction 3579 was lowest within L pod, which is the largest of the SRKW pods (Parsons et al. , 2009). 3580
Male SRKWs become sexually mature at a mean age of approximately 15 year s and are thought to remain sexually 3581 active throughout their adult lives (Christensen et al. , 1984; Perrin and Reilly, 1984; Duffield and Miller, 1988; 3582 Olesiuk et al. , 1990). Females first give birth at a mean age of approximately 14.9 years an d produce an average of 3583 approximately 5.4 surviving calves over a reproductive life span of about 25 years (Olesiuk et al. , 1990; Matkin et 3584 al. , 2003). Gestation periods, as observed in captiv e killer whales, average around 17 months (Asper et al. , 1988; 3585 Walker et al. , 1988; Duffield et al. , 1995). The mean inte rval between viable calve births is four years (Bain, 1990). 3586 Older mothers tend to have greater calving success and they appear to be assisted in calf rearing by grandmothers 3587 (Ward et al. , 2009b). Some females may r each 90 years of age (Olesiuk et al. , 1990). Mothers and offspring 3588 maintain highly-stable, lifelong social bonds and this relati onship appears to be the basis for their matrilinear social 3589 structure (Bigg et al. , 1990; Baird, 2000; Fordet al. , 2000). 3590102 Although mating can occur year-round, most killer whale reproduction in the North Pacific has been observed to 3591 occur primarily from April to October (Olesiuk et al. , 1990; Matkin et al. , 1997), with a peak in calving occurring 3592 between September and March (Olesiuk et al. , 2005; Jefferson et al. , 2008). Killer whales are polygamous 3593 (Dahlheim and Heyning, 1999) and genetic data indicate that resident males mate with females outside of their own 3594 pods almost exclusively. This reduces the chances of inbreeding (Barrett-Lennard, 2000; Barrett-Lennard and Ellis, 3595 2001). 3596
Killer whales are apex predators and consume a varied diet but fish are their preferre d prey (Scheffer and Slipp, 3597 1948; Fordet al. , 1998; Fordet al. , 2000; Saulitis et al. , 2000). Although the record is incomplete, data suggest that 3598 SRKWs have a strong preference for Chinook salmon during late spring to fall (Hansonet al. , 2005; Ford and Ellis, 3599 2006). Their winter and early spring diet is largely unknown. SRKWs spend about half of their time hunting prey. 3600 Approximately 95% of their time spent underwater is at depths of less than 30 m (Baird, 2000; Baird et al. , 2003; 3601 Bairdet al. , 2005). They detect prey via echolocation and passive listening and likely hunt through a combination of 3602 vision and echolocation (Barrett-Lennard et al. , 1996; Baird, 2000). Maximum observed dive depths average 141 m 3603 (Baird et al. , 2003). Baird et al., (2005) reported that although the deepest recorded dive for a SRKW is 264 m, they 3604 are probably capable of diving to at least 330 m. No significant differences in the diving behavior of the three 3605 Southern Resident pods has been observed (Baird et al. , 2005). 3606

Status and Trends 3607 The only pre-1974 account of Southern Resident abundance is from Sheffer and Slipp (1948) and merely notes that 3608 the species was “frequently seen” during the 1940s in the Strait of Juan de Fuca, northern Puget Sound, and off the 3609 coast of the Olympic Peninsula, with smaller numbers along Washington’s outer coast. Little information exists on 3610 the historic abundance of SRKWs. Until the mid- to late-1800s, the SRKW community may have numbered more 3611 than 200 animals (Krahn et al. , 2002). Using the estimated abundance of SRKWs in 1971 of 67 whales and factoring 3612 in various sources of mortality, NM FS estimated a minimum historical ab undance of about 140 SRKWs (Olesiuk et 3613 al. , 1990). The SRKW population had grown to 90 whales by September 2006, but declined in 2007 with the loss of 3614 five individuals and the gain of two new calves leaving the total number at 87, with 25 whales in J pod, 19 whales in 3615 K pod and 43 whales in L pod (Center for Whale Research, unpublished data cited in NMFS, 2008d). At present, the 3616 Southern Resident population has declined to essentially the same size that was estimated during the early 1960s, 3617 when it was considered to be depleted (Olesiuk et al. , 1990). 3618
Photo-identification catalogs for SRKWs provide information on recent abundance and trends of these pods (see 3619 Dahlheim, 1997; Dahlheim et al. , 1997; Ford and Ellis, 1999; Matkin et al. , 1999). From 1974–2007, the SRKWs as 3620 a whole have gone through several periods of growth and d ecline. For example, the species appeared to experience a 3621 period of recovery by increasing to 99 whales in 1995, but then declined by 20% to 79 whales in 2001 before 3622 another slight increase to 83 whales in 2003 (Fordet al. , 2000; Carretta et al. , 2005). This abrupt decline and 3623 unstable population status continue to be cause for concern, particularly given the small size of the species which 3624 makes it potentially vulnerable to Allee effects (e.g., inbreeding depression) that could cause further population 3625 decline or preclude a substantial incr ease in abundance (see NMFS, 2008d). Th e intensity of factors affecting the 3626 species is increased by stochastic events such as the small number of reproductive age males and high mortality 3627 rates for this group and is a major reason that the SRKWwas listed as endangered rather than threatened (NMFS, 3628 2008d). 3629
Using data from 1974–2003, Krahn et al., (2002; 2004) further analyzed the population dynamics of the species to 3630 identify demographic factors contributing to the latest decline in abundance. Changes in survival were not related to 3631 stochastic variation caused by the SRKW community’s small size, such as random patterns in births or deaths or to 3632103 annual fluctuations in survival. Rather, the survival pattern s were more likely influenced by external causes, such as 3633 changes in prey availability etc. 3634

Threats 3635

Natural Threats. The population of SRKWs has declined recently. The recent decline and unstable population 3636 structure make it difficult for SRKWs to recover from natu ral spikes in mortality (NMFS, 2008d). Although disease 3637 outbreaks have not been identified in this population, increased contaminant loading may increase the susceptibility 3638 of individuals to disease. 3639
Anthropogenic Threats. Salmon is the primary prey of killer whales and has been severely reduced due to habitat 3640 loss (NRC, 1996; Slaney et al. , 1996; Gregory and Bisson, 1997; Lichatowich, 1999; Lackey, 2003; Pess et al. , 3641 2003; Schoonmaker et al. , 2003). A 50% reduction in killer whale calving has been correlated with years of low 3642 Chinook salmon abundance (Ward et al. , 2009b). 3643
Contaminants entering SRKW habitat in Puget Sound an d its surrounding waters accumulate in water, benthic 3644 sediments and in prey organisms (Krahn et al. , 2009). SRKWs bioaccumulate these toxins in their tissues which 3645 may lead to numerous adverse physiological changes (Krahn et al. , 2009). The greatest contaminant threats are from 3646 organochlorines (e.g. PCBs, pesticides, dioxins, furans and DDT) (Ross et al. , 2000; CBD, 2001; Krahn et al. , 2002; 3647 Cullonet al. , 2009; Krahn et al. , 2009). These chemicals bioaccumulate in fatty tissues, persist and can be 3648 transmitted from mother to offspring (Haraguchi et al. , 2009; Krahnet al. , 2009). 3649
Vessel activity has also been identified as a threat to SRKW s. In 2005, a U.S. vessel participating in sonar exercises 3650 apparently caused significant behavior changes in killer whale activity , such that the whales vacated the area 3651 (NMFS, 2005a). Additionally, the increase in “background noise” resulting from vessel traffic has the potential to 3652 influence or disrupt the ability of SRKWs to navigate, communicate and forage (Bain and Dahlheim, 1994; Gordon 3653 and Moscrop, 1996; Erbe, 2002; Williams et al. , 2002a; Williams et al. , 2002b; Holt et al. , 2009). 3654

Critical Habitat 3655 NMFS designated critical habitat for Southern Resident killer whales on November 29, 2006 (71 FR 69054). Three 3656 specific areas were designated; (1) the Summer Core Area in Haro Strait and waters around the San Juan Islands; (2) 3657 Puget Sound; and (3) the Strait of Juan de Fuca, which comprise approximately 6,630 square kilometers of marine 3658 habitat. Three primary constituent elements exist in thes e areas: water quality to support growth and development, 3659 prey species of sufficient quantity, quality and availability to support individual growth, reproduction and 3660 development, as well as overall population growth, and passage conditions to allow for migration, resting and 3661 foraging. Water quality has declined in recent years due to agricultural run-off, urban development resulting in 3662 additional treated water discharge, industrial development and oil spills. The primary prey of southern residents, 3663 salmon, has also declined due to overfishing and reproductive impairment associated with loss of spawning habitat. 3664 The constant presence of whale-watching vessels and growing anthropogenic noise background has raised concerns 3665 about the health of areas of growth and reproduction as well. 3666

Environmental Baseline 3667

By regulation, environmental baselines for biological opinions include the past and present impacts of all state, 3668 Federal or private actions and other human activities in the action area, the anticipated impacts of all proposed 3669104 Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact 3670 of State or private actions which are contemporaneous with the consultation in process (50 CFR 402.02). The 3671 environmental baseline for this biological opinion includes the effects of several activities that affect the survival 3672 and recovery of endangered and threatened in the Action Area. 3673

A number of human activities have contributed to the current status of populations of endangered and threatened 3674 species in the action area. Some of those activities, most notably commercial whaling, occurred extensively in the 3675 past, ended, and no longer appear to affect populations of these species, although the effects of these reductions 3676 likely persist today. Other human activities are ongoing and a ppear to continue to affect populations of endangered 3677 and threatened species in the Action Area. The following discussion summarizes the principal phenomena in the 3678 Action Area that are known to affect the likelihood that these endangered and threatened species will survive and 3679 recover in the wild. 3680
Because this is a programmatic consultation, however, on what is primarily a continui ng action with a geographic 3681 scope that encompasses all lands and waters of the United States, its territories and possessions, this Environmental 3682 Baseline serves a slightly differen t purpose. First, because this is both a programmatic and national consultation that 3683 does not assess the consequences of the Corps proposed ac tion for specific sites or liste d resources that occur at 3684 those sites, this Environmental Baseline focuses primarily on the status and trends of the aquatic ecosystems in the 3685 United States and the consequences of that status for listed resources. As such, this Environmental Baseline 3686 elaborates on some of the narratives we ha ve already presented in our treatments of the Status of Listed resources by 3687 focusing on the status and trends of waters of the United States at a national scale. However, this Opinion is limited 3688 to discharges that occur in the Distri ct of Columbia, Idaho, Massachusetts an d New Hampshire, all Indian lands and 3689 Federal lands in Delaware, Vermont and Washington State. 3690
We begin this Environmental Baseline with a discussion of the status and tr ends of waters of the United States. 3691 Because the status and trends of those waters, and the en dangered and threatened species that depend on them, has 3692 been strongly influenced by wetland ecosystems in the United States, we summarize the status and trends of 3693 wetlands in the United States as a second step. Then we summarize the effect of Federal programs designed to 3694 protect and restore waters of the United States. We conclude by integrating and synthesizing this information to 3695 assess the effect of these programs on endangered species, threatened specie s, and designated critical habitat. 3696
The Changing Landscapes of the United States 3697 The continental United States has a land area of about 2.3 billion acres. In 2002, about 20 percent of this area (442 3698 million acres) was cropland in 2002, 26 percent (587 milli on acres) was permanent grassl and pasture and range, 29 3699 percent (651 million acres) was forest-use land, and urban areas represented about 3 percent (60 million acres) of 3700 this land area, while a variety of other land uses -parks and recreational areas, wildlife areas, rural highways, roads, 3701 railroads, airport rights-of-way- represented about 13 percent of the land area (Lubowski et al. , 2006). 3702
Since the 1940s, the acreage of land dedicated to forest-uses has declined since, although this acreage has increased 3703 by about 2 percent between 1997 and 2002. Between 1945 and 2002, the acreage of land dedicated to cropland uses 3704 declined by about 2 percent; between 1997 and 2002, total cropland decreased by 14 million acres (3 percent) to its 3705 lowest level since 1945 (Lubowski et al,. 2006). The acreage of land dedicated to grassland pasture and range 3706 increased by almost 7 million acres (1 percent) from 1997 to 2002; howeve r, the area dedicated to grazing has 3707 declined from the 1940s to 2002 (Lubowski et al., 2006). Between 1945 and 2002, the land area dedicated to 3708 special-uses and urban areas has increa sed continuously. Between 1990 and 2002, the acres in urban areas increased 3709 by about 13 percent to 60 million acres (Lubowski et al ., 2006). 3710105 Since colonial times, the landscapes of the United States reflect the abunda nce, distribution and economics of the 3711 human population. In 1790, the United States had a resident population that was slightly less than 4 million and a 3712 population density of 4.5 people per square mile. By 2000, that population had grown to slightly more than 281 3713 million people and the population density had increased to 79.6 per square mile. In 2007, the population of the 3714 United States increased to more than 300 million people for the first time in its history. 3715
Most of the population growth in the United States occurred in urban areas, first in central cities and later suburbs. 3716 Population sizes of cities in the eastern United States incr eased from the early 1800s until the 1950s; since then, the 3717 population size of western cities like Los Angeles and Phoe nix increased while large eastern and Midwestern cities 3718 started to decline (Gibson, 1998). At the same time, an increasing percentage of our nation’s population was located 3719 in suburban areas. In 1910, three times more Americans lived in central cities than in suburban areas; by 1970, 3720 slightly more Americans lived in suburban areas than in either cities or rural areas. From 1950 to 1996, the urban 3721 population increased by 63 percent, the rural population de creased by 19 percent, and the greatest relative change 3722 occurred in the suburban population, an increase of 274 percent. 3723
By 2000, half of the population in the United States lived in the suburbs (Hobbs et al. , 2002). About 75 percent of 3724 all Americans now live in areas that are urban or suburban in character; that is, about 75 percent of the people in the 3725 lower 48 States live in less than 2 percent of the land area of the lower 48 states. Most of the urban or suburban areas 3726 occur in the South and Midwest, but cities and suburbs acco unt for less than 2 percent of the land area in those 3727 regions. In comparison, urban and suburban lands in the Northeast made up over 5 percent of the landscape. The 3728 percentage of “undeveloped” land or natural areas in th e South, Northeast and West was almost the same as the 3729 percentage of urban and suburban area in those regions (about 22 percent). The Midwest had the lowest percentage 3730 of these lands (17 percent). In the Northeast and South, these lands are represented by forest cover; in the Midwest, 3731 these lands are represented by farmland, and in the West the lands are represented by grassland and shrub cover. 3732

About half of all natural lands in urban and suburban areas consist of patches that are smaller than 10 acres. 3733 Nationally, less than 5 percent of all natural areas consist of patches at least 1,000 acres in size. The northeast States 3734 have a higher percentage of natural areas between 100 and 1,000 acres and 1,000 to 10,000 acres in size than the 3735 other regions. Only western States have natural areas greater than 10,000 acres; these natural areas, however, 3736 account for 0.3 percent of all natural lands in urban and suburban areas. 3737
In some cases suburbs developed along major highways and transportation systems to connect pre-existing, rural 3738 communities with nearby urban areas. In other cases, su burbs developed in areas that had previously been 3739 agricultural or had been dominated by natural communitie s because of favorable envi ronmental conditions, zoning 3740 ordinances or land costs (Abler, 1976; Matlack, 1997). As a result, most modern metropolitan areas encompass a 3741 mosaic of different land covers and uses (Hart, 1991). The mosaic or land uses associated with urban and suburban 3742 centers has been cited as the primary cause of declining environmental conditions in the United States (Flather et 3743 al. , 1998) and other areas of the world (Houghton, 1994). 3744
Other human activities that have altered the landscapes of the United States include agricultural practices that 3745 include land conversion, sod busting, and applications of pesticides; forest practices that include timber harvests, 3746 silviculture, and the construction of logging roads; mining practices that include open-pit mining, mountain-top 3747 mining, placer mining, heap-leach mining, and removal of overburden materials; road construction practices that 3748 include alteration of land in the right of way, spraying herbicides to maintain the right of way, and construction of 3749 quarries for source materials; civil works projects that include canals, drainage ditches, projects to deliver water to 3750 arid lands in the western States, project s to drain wetlands in southeastern States, projects to control flooding in mid3751 western and eastern States, port construction, projects to maintain shipping channels, and the construction of more 3752106 than 8,100 major dams on rivers and streams in the Unite d States, Puerto Rico, and th e U.S. Virgin Islands. 3753

The direct and indirect effects of thes e changes in land-use and land-cover change have had a lasting effect on the 3754 quantity, quality and distribution of every major terrestrial, aquatic, and coastal ecosystem in the United States, its 3755 territories and possessions. By the mid-1990s, at least 27 types of ecosystems had declined by more than 98 percent 3756 (Noss and Murphy, 1995). These include old growth and virg in forests in the eastern United States, pine barrens 3757 across Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island 3758 (Cryan, 1985); more than 95 percent of the natural barrie r island beaches in Maryland had been destroyed along with 3759 more than 50 percent of barrier island dunes. By 1986, mo re than 98 percent of the pre-settlement longleaf pine 3760 ( Pinus palustris ) forests in the southeastern coastal plain had been destroyed (Ware et al. , 1993; Noss and Murphy, 3761 1995). Many other native ecosystems have experienced substantial reductions in area. About 90 percent of the 3762 original 58 million hectares of tallgra ss prairie had been destroyed; 99 perc ent of the tallgrass prairie east of the 3763 Missouri River and 85 percent of the tallgrass prairie west of the Missouri River has been destroyed (Klopatek et al. , 3764 1979). 3765
Aquatic and semi-aquatic ecosystems have not fared much better than these terrestrial ecosystems. Between the 3766 1780s and 1980s, 30 percent of the nation’s wetlands had been destroyed, including 74 percent of the wetlands in 3767 Connecticut, 73 percent of the wetlands in Maryland, 52 per cent of the wetlands in Texas, 91 percent of all wetlands 3768 in California, including 94 percent of all inland wetlands (Dahl, 1990). From 1982 to 1987, the wetland area 3769 throughout the conterminous United States declined by 1.1 percent and the expansion of urban – suburban 3770 metropolitan areas accounted for 48 percent of this decline (Brady an d Flather., 1994). 3771
Because of these changes in land use, many of the native plant and animal species that inhabited those native 3772 ecosystems over the past have become ex tinct or extinct in the wild over th e past 200 years. The last passenger 3773 pigeon, a species that once numbered in the billions and covered most of the eastern and mid-western United States, 3774 became extinct in 1912. In the same year, the Louisiana parakeet ( Conuropsis carolinensis ludoviciana ) became 3775 extinct followed two years later by the extinc tion of its relative, the Carolina parakeet ( C

. c

. carolinensis ). The heath 3776 hen became extinct in the mid-1920s, the June sucker ( Chasmistes liorus liorus ) in the mid-1930s, Tecopa pupfish 3777 ( Cyprinodon nevadensis calidae ) in the early 1940s, and Ash Meadows killifish ( Empetrichthys merriami ) and 3778 Thicktail chub ( Gila crassicauda ) in the 1950s. Over the past 200 years, a substantial portion of the bird fauna of the 3779 Hawaiian islands — including the Oahu akepa, Kona finc h, Lanai creeper, black mamo, and Hawai’i o’o — became 3780 extinct combined with the extinction of substantial portio ns of the freshwater mussel fauna of the Mississippi, Ohio, 3781 and Tennessee Rivers and regional extirpations of the flora and fauna of California, Florida, Oregon, Puerto Rico, 3782 and the desert states. 3783

Status and Trends of Waters of the United States 3784 All of the endangered and threatened species and designated critical habitat under the jurisdiction of NMFS depend 3785 on the health of aquatic ecosystems for their survival. All of these species were listed as endangered or threatened, at 3786 least in part, because of the consequences of human activitie s on the aquatic ecosystems -the estuaries, rivers, lakes, 3787 streams, and associated wetlands, floodplains, and ripari an ecosystems- of the United States, its Territories and 3788 possessions. The status and trends of those aquatic ecosyste ms determines the status and trends of these species and 3789 the critical habitat that has been designated for them. 3790
Over the past 30 to 40 years, the nation’s aquatic ecosy stems have improved substantially. In particular, pollution 3791 from point sources has been significantly reduced over the past 35 years. Sewage and industrial discharges into 3792 aquatic ecosystems have been controlled and some agricultura l pesticides have been restricted or banned. Programs 3793 like the Conservation Reserve Program have taken highly erodible lands out of production. Despite this progress, 3794107 however, many aquatic ecosystems remain highly polluted. Of the waters bodies they assessed -39 percent of the 3795 river and stream miles, 46 percent of the lake area and 51 percent of the estuarine area- one or more designated uses 3796 are impaired. Non-point pollution from urban and agricultural land (e.g. siltation, nutrie nts, bacteria, metals and 3797 oxygen depleting substances) that is transported by precipitation and runoff was the primary cause of the 3798 impairment. 3799
These water quality problems, particularly the problem of non-point sources of pollution, have resulted from the 3800 changes humans have imposed on the landscapes of the United States over the past 100 – 200 years. One way of 3801 relating these changes in water quality to land uses relie s on the surface area of a wate rshed that is covered by 3802 porous versus impervious su rfaces. Most land areas that are covered by natural vegetation are highly porous and 3803 have very little sheet flow; precipitation falling on these lands capes infiltrates the soil, is transpired by the vegetative 3804 cover or evaporates. The increased transformation of the land scapes of the United States into a mosaic of urban and 3805 suburban land uses has increased the area of impervious surfaces -roads, rooftops, parking lots, driveways and 3806 sidewalks- in those landscapes. 3807
The amount of impervious surface in a watershed is a relia ble indicator of a suite of phenomena that influence a 3808 watershed’s hydrology (Center for Watershed Protection, 2003). Above certain thresholds, landscapes with 3809 impervious surfaces respond to precipitation differently than other land-uses: rain that would normally infiltrate in 3810 forest, grassland and wetland soils falls on and flows over impervious surfaces. That ru noff is then channeled into 3811 storm sewers and released directly into surface waters (rivers and streams), whic h changes the magnitude and 3812 variability of water velocity and volume in those receiving waters. 3813

Clean Water Act 3814 The Federal Water Pollution Control Act, or Clean Water Ac t, is the principal law concerned with polluting activity 3815 in streams, lakes and estuaries in the United States. This 1948 statute was totally re-written in 1972 (P. L. 92-500) to 3816 produce its current purpose: “to restore and maintain the chemical, physical, and biological integrity of the Nation's 3817 waters” (Federal Water Pollution Control Act, Public Law 92 –500). Congress made substantial amendment to the 3818 Clean Water Act in the Water Quality Act of 1987 (P. L. 100 -4) in response to the significant and persistent water 3819 quality problems. 3820
The Clean Water Act uses two primary approaches to achieve its goal. The first approach uses regulations to achieve 3821 a goal of zero discharge of pollutants into waters of the United States. The second approach provides Federal 3822 technical assistance for munici pal wastewater treatment construction. Both approaches are supported by research 3823 activities, permits and provisions for enforcement. 3824
To achieve its objectives, the Clean Water Act prohibits all discharges into the nation’s waters, unless they are 3825 specifically authorized by a permit. For example, the National Pollutant Discharge Elimination System or NPDES 3826 program regulates discharges of pollutants like bacteria, oxygen-consuming materials, and toxic pollutants like 3827 heavy metals, pesticides, and other organic chemicals. On the other hand, Section 404 of the Clean Water Act 3828 prohibits discharges of dredged or fill material in to waters of the United States without a permit. 3829
Most of these Federal programs are admi nistered by the EPA, while state and local governments have the principal 3830 day-to-day responsibility for implementing the law. Howeve r, other section of the Clean Water Act, such as the 3831 regulation of discharges of dredged or fill material into waters of the United States pursuant to section 404 (33 3832 U.S.C section 1344) are administered by the U.S. Army Corps of Engineers, or a state with a program approved by 3833 the EPA. Nonpoint sources of water pollution, which are believed to be responsible for the majority of modern water 3834108 quality problems in the United States, are not subject to Clean Water Act permits or the regulatory requirements. 3835 Instead, non-point sources of pollutio n are regulated by State programs. 3836

Puget Sound as an Example of the Impact 3837 Puget Sound provides and illustrative example of the imp acts of the environmental baseline on endangered and 3838 threatened species under NMFS’ jurisdiction. Between 2000 and 2006, counties in Puget Sound increased by 3839 315,965 people or by more than 50,000 people per year, with associated increases in the area of impervious surface 3840 and population density per square mile of impervious surface in the Puget Sound region (Puget Sound Action Team 3841 2007). Between 1991 an d 2001, the area of impervio us surface in the Puget Sound basin increased 10.4 percent 3842 (Puget Sound Action Team, 2 007). By 2001, impervious su rface covered 7. 3 percent of the Puget Sound region 3843 below 1,000 feet elevation; in some counties and watersheds in the region, this area was substantially higher. 3844
Over the same time interval, about 190 square miles of fo rest (about 2.3 percent of the total forested area of the 3845 Puget Sound basin) was converted to other uses. In areas below 1,000 feet elevation, the change was more dramatic: 3846 3.9 percent of total forest area was converted to other us es. By 2004, about 1,474 fresh and marine waters in Puget 3847 Sound were listed as “impaired waters” in Puget Sound. Fifty-nine percent of these waters tested were impaired 3848 because of toxic contamination, pathogens, low dissolved ox ygen or high temperatures. Less than one-third of these 3849 impaired waters have cleanup plans in place. Chin ook salmon from Puget Sound have 2-to-6 times the 3850 concentrations of PCBs in their bodies as other Chinook salmon populations on the Pacific Coast. Because of this 3851 contamination, the Washington State Department of Health issued consumption advisories for Puget Sound chinook 3852 (Puget Sound Action Team, 2007). 3853
The quality of water in the Puget Sound Basin and aquatic biota those water support have been affected by a range 3854 of forestry, agricultural, and urban development practices. The chemical quality of surface water in the foothills and 3855 mountains is generally suitable for most uses. However, the physical hydrology, water temperature and biologic 3856 integrity of streams have been influenced to varying degrees by logging (Black and Silkey, 1998). 3857
Because of development, many streams in the Puget Lowl ands have undergone change s in structure and function 3858 with a trend toward simplification of stream channels and loss of habitat (Black and Silkey, 1998). Sources of 3859 contaminants to lowland streams and lo wer reaches of large rivers are largel y nonpoint because most major point 3860 sources discharge directly to Puget Sound. Compared with that in small streams in the Puget Lowlands, the quality 3861 of water in the lower reaches of large rivers is better because much of the flow is derived from the forested 3862 headwaters. 3863
More than half of the agricultural acreage in the basi n is located in Whatcom, Skagit and Snohomish Counties. 3864 Agricultural land use consists of about 60 percent cropland and 40 percent pasture. Livestock produce a large 3865 amount of manure that is applied as fertilizer to cropland, some- times in excess amounts, resulting in runoff of 3866 nitrogen and phosphorus to surface wate r and leaching of nitrate to ground water. Runoff from agricultural areas 3867 also carries sediment, pesticides, and bacteria to streams (Staubitz et al. , 1997). Pesticides and fumigant-related 3868 compounds are present, usually at low concentratio ns, in shallow ground water in agricultural areas. 3869
Heavy industry is generally located on the shores of the urban bays and along the lowe r reaches of their influent 3870 tributaries, such as Commencement Bay and the Puyallu p River in Tacoma and Elliott Bay and the Duwamish 3871 Waterway in Seattle. High-density commercial and resident ial development occurs primarily within and adjacent to 3872 the major cities. Development in recent years has con tinued around the periphery of these urban areas but has 3873 trended toward lower density. This trend has resulted in increasing urban sprawl in the central Puget Sound Basin. 3874109 Urban land-use activities have significantly reduced the qu ality of streams in the Puget Sound Basin (Staubitz and 3875 others, 1997). Water-quality concerns related to urban de velopment include providing adequate sewage treatment 3876 and disposal, transport of contaminants to streams by storm runoff, and preservation of stream corridors. Water 3877 availability has been and will continue to be a major, long- term issue in the Puget Sound Basin. It is now widely 3878 recognized that ground-water withdrawals can deplete streamflows (Morgan and Jones, 1999), and one of the 3879 increasing demands for surface water is the need to main tain instream flows for fish and other aquatic biota. 3880
Chinook salmon from Puget Sound have 2-to-6 times the concentrations of PCBs in their bodies as other Chinook 3881 salmon populations on the Pacific Coast. Because of this contamination, the Washington State Department of Health 3882 has issued consumption advisories for Puget Sound Ch inook (Puget Sound Action Team, 2007). Nevertheless, 3883 between 2000 and 2006, counties in Puget Sound counties increased by 315,965 people or by more than 50,000 3884 people per year, with associated in creases in impervious surfaces and population density per square mile of 3885 impervious surface (Puget Sound Action Team, 2007). 3886
Pollutants founds in Puget Sound chinook salmon have found their way into the food chain of the Sound. Harbor 3887 seals in southern Puget Sound, which feed on Chinook salmon, have PCB levels that are seven times greater than 3888 those found in harbor seals from the Georgia Basin. Concentrations of polybrominated diphenyl ether (also known 3889 as PBDE, a product of flame retardants that are used in ho usehold products like fabrics, furniture, and electronics) in 3890 seals have increased from less than 50 parts per billion in fatty tissue to more than 1,000 ppb over the past 20 years 3891 (Puget Sound Action Team, 2007). 3892
Water quality appears poised to have larger-scale effects on the marine ecosystem of the Puget Sound Georgia Basin 3893 as evidenced by the intensity and persistence of water st ratification in the basin. Historically, Puget Sound was 3894 thought to have an unlimited ability to assimilate waste from cities, farms and industries in the region and decisions 3895 about human occupation of the landscape were based on th at belief. More recent data suggests that the marine 3896 ecosystems of the basin have a much more limited ability to a ssimilate pollution, particular ly in areas such as Hood 3897 Canal, south Puget Sound, inner Whidbey basin and the central Georgia Basin. In these areas, as strong stratification 3898 has developed and persisted, the respective water quality has steadily decreased. As waters become more stratified, 3899 through weather, climate or circulation changes, they become even more limited in their ability to assimilate 3900 pollution. 3901
The presence of high levels of persistent organic pollutants, such as PCB, DDT, and flame–retardants have also been 3902 documented in southern resident killer whales (Herman et al. , 2005; Ross, 2006; Ylitalo et al. , 2008). Although the 3903 consequences of these pollutants on the fitness of indivi dual killer whales and the population itself remain unknown, 3904 in other species these pollutants have been reported to suppress immune responses (Kakuschke and Prange, 2007), 3905 impair reproduction and exacerbate the energetic consequen ces of physiological stress re sponses when they interact 3906 with other compounds in an animal’s tissues (Martineau, 20 07). Because of their long life span, position at the top of 3907 the food chain, and their blubber st ores, killer whales would be capable of accumulating high concentrations of 3908 contaminants. 3909
Ambient Noise in the Puget Sound Region 3910 Ambient noise is background noise in the environment. When one considers the distance from its source that a 3911 signal can be detected, the intensity and frequency character istics of ambient noise are important factors to consider 3912 in combination with the rate at which sound is lost as it is transmitted from its sour ce to a receiver (Richardson et 3913 al. , 1995). Generally, a signal would be detectable or salient only if it is stronger than the ambient noise at similar 3914 frequencies. The lower the intensity of ambient noise, the farther signals would travel and remain salient. 3915110 There are many sources of ambient noise in the ocean, including wind and waves, rain and hail, human activities 3916 such as shipping, fishing boats, and seismic surveys; sounds produced by living organisms, seismic noise from 3917 volcanic and tectonic activity, and thermal noise that results from molecular agitation (which is important at 3918 frequencies greater than 30 kHz). 3919
Several authors have reported that ambient noise levels in the northeast Pacific Ocean increased between the mid3920 1960s, the mid-1990s, and the early 2000s. Andrew et al . (2002) reported that ambient sound levels increased by 3921 about 10 dB in the frequency ranges between 20 and 80 Hz and 200 and 300 Hz between the period from 1963 to 3922 1965 and 1994 to 2001. In the frequency range between 200 and 300 Hz, ambient sound levels increased by about 3 3923 dB. Since the 1960s, ambient noise in the 30–50 Hz band has increased by 10–12 dB, with most of this increase 3924 resulting from changes in commercial shipping (McDonald et al. , 2006) and increases in whale song (Andrew et al

. 3925 2002). 3926
Measurements taken at San Nicholas Island, which were considered representative of patterns that would occur 3927 across the Pacific Coast of California, Oregon, and Washin gton, identified seasonal di fferences in ocean ambient 3928 levels due to seasonal changes in wind driven waves, biological sound production, and shipping route changes 3929 (McDonald et al., 2006). The strongest seasonal signal at the San Ni colas South site was attributed to blue whale 3930 singing (Burtenshaw et al. , 2004) which had a broad peak near 20 Hz in the spectral data (because fin whales occur 3931 in the area throughout the year, the seasonal difference was attributed to blue whales, which only occur in the areas 3932 seasonally). When the band of fin whale calls were excl uded, the average February 2004 ambient pressure spectrum 3933 level was 10–14 dB higher than the February 1965 and 1966 levels over the 10–50 Hz band Above 100 Hz, there 3934 was a 1–2 dB difference between the two sets of February noise data (McDonald et al ., 2006). 3935

Noise in the marine environment has received a lot of attent ion in recent years and is lik ely to continue to receive 3936 attention in the near future. Several investigators have argued that anthropogenic sources of noise have increased 3937 ambient noise levels in the ocean over the last 50 years (Richardson et al., 1995). As discussed in the preceding 3938 section, much of this increase is due to increased shipping as ships become more numerous and of larger tonnage 3939 (National Research Council, 2003). Commercial fishing vessels, cruise ships, transport boats, airplanes, helicopters 3940 and recreational boats all contribute sound into the ocean (National Research Council, 2003). The military uses 3941 sound to test the construction of new vessels as well as for naval operations. In so me areas where oil and gas 3942 production takes place, noise originates from the drilling and pro duction platforms, tankers, vessel and aircraft 3943 support, seismic surveys, and the ex plosive removal of platforms (National Research Council, 2003). Many 3944 researchers have described behavioral responses of mari ne mammals to the sounds produced by helicopters and 3945 fixed-wing aircraft, boats and ships, as well as dredging, construction, geological explorations, etc. (Richardson et 3946 al,. 1995). 3947
Integration and Synthesis of the Environmental Baseline 3948 The direct and indirect effects of ch anges in land-use and land-cover in th e states of Alaska, Delaware, Idaho, 3949 Hawaii (only Midway Island), Massachusetts, New Hampshire, Vermont and Washington; the District of Columbia; 3950 the territories of American Samoa, Guam, and Puerto Rico ; the Commonwealth of the Northern Mariana Islands; the 3951 possessions Johnston Atoll and Wake Island; and Indian lands throughout the United States have had lasting effect 3952 on the quantity, quality, and distribution of every major te rrestrial, aquatic, and coastal ecosystem in those states, 3953 district, territories, and possessions. Many native ecosyst ems exist as small isolated fragments surrounded by 3954 expanses of urban and suburban landscapes or “natural” ar eas that are dominated by non-native species. As a result, 3955 many of the native plant and animal species that inhabited those native ecosystems over the past have become 3956 extinct, extinct in the wild, endangered, or threatened over the past 200 years. 3957111Beginning in the 1960s, a wide variety of programs undertaken by Federal, State, and local governments, non3958 governmental organizations, and private individuals have been established to protect or restore our nation’s forests, 3959 grasslands, wetlands, estuaries, rivers, lakes, and streams. Those programs have helped slow and, for many 3960 ecosystems, reverse declining trends that began in the past. However, those efforts have benefited some ecosystems 3961 and their associated flora and fauna more than other ecosys tems. Despite the efforts of agencies at every level of 3962 government, non-governmental organizations, and private individuals, non-point sources of pollution still degraded 3963 our rivers, lakes, and streams; freshwater aquifers in coastal areas remain at ri sk from saltwater intrusion because of 3964 water withdrawals; nutrients transported down the Mississippi River remains sufficient to produce an hypoxic zone 3965 in the Gulf of Mexico that had more than doubled in size; and the acreage of wetland declined from slightly more 3966 than 274 million acres of wetlands to about 107.7 million acres between the 1980s and 2004 (Dahl, 2006). 3967

Southern Resident Killer Whales 3968 As discussed in the Status of the Species section of this Opinion, southern resident killer whales were listed as 3969 endangered because of their exposure to the various stressors that occur in the action area for this consultation. 3970 Exposure to those stressors resulted in the species’ decline from around 200 individuals to about 67 individuals in 3971 the 1970s and the species’ apparent inability to increase in abundance above the 75 to 90 individuals that currently 3972 comprise this species. These phenomena would increase the extinction probability of southern resident killer whales 3973 and amplify the potential consequences of human-relate d activities on this species. Based on their population size 3974 and population ecology (that is, slow-growing mammals that give birth to single calves with several years between 3975 births), we assume that southern resident killer whales would have elevated extinction probabilities because of 3976 exogenous threats caused by anthropogenic activities that resu lt in the death or injury of individual whales (for 3977 example, ship strikes or entanglement) and natural phenomena (such as disease, predation, or changes in the 3978 distribution and abundance of their prey in response to changing climate) as well as endogenous threats resulting 3979 from the small size of their population. Based on the number of other species in similar circumstances that have 3980 become extinct (and the small number of species that have avoided extinction in similar circumstances), the longer 3981 southern resident killer whales remain in these circumstances, the greater their extinction probability becomes. 3982

Pacific Salmon 3983 When NMFS listed Sacramento River winter-run Chinook salmon as endangered and designated critical habitat for 3984 the species, its final rules to list the species and designat ed its critical habitat identified water quality degradation 3985 associated with the section 404 permits the Corps issued in the Sacramento River, Sa cramento River-San Joaquin 3986 Delta, and San Francisco Bay as one of several reasons for the listing (57 FR 36626, 59 FR 440). When NMFS 3987 proposed Oregon coast, Southern Oregon Northern Coastal California, and Central California Coast coho salmon as 3988 threatened, the proposal also identified the loss of wetland habitat, including the Corps failure to consider the 3989 cumulative impact of its 404 permits, as one of several reasons for listing these salmon as threatened (60 FR 38011, 3990 61 FR 56138). 3991
Similarly, when NMFS proposed and listed Central Califor nia Coast, South Central California Coast, Central 3992 Valley, Upper Columbia River, Snake River Basin, Lower Columbia River, and Northern California steelhead as 3993 threatened and Southern California steelhead as endangered, NMFS identified the loss of wetland habitat as one of 3994 several reasons these steelhead warr anted protection under the ESA (61 FR 41541, 62 FR 43937). Rules designating 3995 or proposing critical habitat for green and hawksbill sea turtles, several populations of steelhead, and coho salmon 3996 have also identified water quality degradation caused by activities authorized by Corps permits as one of several 3997 reasons for these critical habitat designations (64 FR 36274, July 6, 1999; 63 FR 46693, September 2, 1998, 64 FR 3998 5740, February 5, 1999; 64 FR 24049, May 5, 1999; and 64 FR 24998, May 10, 1999). 3999112 Effects of the Proposed Action 4000

The Description of the Proposed Action section of this Opinion summarized the proposed Action. The Status of the 4001 Listed Resources and Environmental Baseline section then identified the endanger ed species, threatened species and 4002 designated critical habitat under NMFS’ jurisdiction that are likely to be adversely affected by the proposed action 4003 and summarized the status and trends of those species, their dependence on wa ters of the United States and other 4004 ecological information that might be re levant to our effects’ analyses, then summarized the consequences of a 4005 variety of human activities on endangered species, thre atened species and designated critical habitat. 4006

In the Effects of the Action section of this programmatic consultation we evaluate the decision-making process that 4007 EPA uses to insure that the activities it authorizes are not likely to result in jeopardy to threatened or endangered 4008 species or result in adverse modification of designated critical habitat. For many programmatic consultations, the 4009 action agency has structured the program so that neither sp ecies nor critical habitat are exposed to the stressors of 4010 the action until there is a separate ESA section 7 consulta tions addressing site specific activities that will result in 4011 exposure. However, in this instance, EPA intends to auth orize a large number of discharges without subsequent ESA 4012 section 7 consultations, except for those discharges that do not qualify for coverage under the general permit and for 4013 which the discharger must seek an individual permit. Accordingly, if there is overlap with species, EPA’s 4014 programmatic action will result in exposure of species and cr itical habitat to the action. In this section we approach 4015 analyses of the EPA’s decisions and ac tions through a series of steps. The first step identifies those aspects of 4016 proposed actions that are likely to have individual, interac tive or cumulative direct or i ndirect physical, chemical and 4017 biotic effects on the environment. We refer to these aspects of the action as “potential stressors.” Potential stressors 4018 include the actual phenomena that cause stress to an organism as well as the events resulting in those phenomena. 4019
The second step of our analyses identifie s the endangered or threatened species, or designated critical habitat that are 4020 likely to occur in the same space and at the same time as these poten tial stressors. Once we identify which 4021 endangered or threatened species, or designated critical habitat are likely to be exposed to an action’s effects and the 4022 nature of that exposure, we examine the scientific an d commercial data available to determine whether and how 4023 those endangered or threatened species, or designated critical habitat are likely to respond given their exposure. This 4024 step represents our Exposure and Response Analyses . The Risk Analyses are the final steps of our analyses and 4025 establish the risks those responses pose to the continued existence of listed species or designated critical habitat. 4026
Because the continued existence of listed species depends on the fate of the populations that comprise them, the 4027 viability of listed species (i.e. the probability of extinction or probability of persistence) depends on the viability of 4028 the populations that comprise these species. Similarly, the continued existence of populations are determined by the 4029 fate of the individuals that comprise them; populations grow or decline as the individuals that comprise the 4030 population live, die, grow, mature, migrate and reproduce (or fail to do so). 4031
For designated critical habitat, our “destruction or adverse modification” determinations are based on an action’s 4032 effects on the conservation value of habitat that has been designated as critical to threatened or endangered species 12

. 4033 If critical habitat designation is likely to be exposed to the direct or indirect consequences of the proposed action on 4034

12 We are aware that several Courts have ruled that the defini tion of destruction or adverse m odification that appears in the Section 7 regulations at 50 CFR 4 02.02 is invalid and do not rely on that defini tion for the determinations we make in this Opinion. Instead, as we explain in the te xt, we use the “conservation value” of cri tical habitat for our determinations, which focuses on the designated area’s ability to contribute to the conservation or the species for which the area was designated.113 the natural environment, we ask if any primary or secondary constituent elements included in the designation or 4035 physical, chemical or biotic phenomena are likely to respond to that exposure. 4036
For the final part of our Effects Analysis , we examine the EPA’s decision maki ng process and the protective control 4037 measures it intends to establish to protect listed species or designated critical habitat from the adverse direct or 4038 indirect effects of the activities authorized by the permit. We then determine whether these controls are sufficient 4039 such that EPA can insure that these activities are not likel y to result in jeopardy to the continued existence of any 4040 listed species or designated critical habitat under NMFS’ juri sdiction. As part of this analysis, we analyze the past 4041 performance of similar control measures in the individual and general permits that the EPA has issued and consider 4042 the performance of those controls as indicative of how well the controls of the PGP are likely to work. 4043
To conduct these analyses, we rely on all of the evidence available to us 13 . This evidence might consist of 4044 monitoring reports submitted by past and present permit holders, reports from NMFS Science Centers, reports 4045 prepared by State or Tribal natural resource agencies, reports from non-governmental organizations involved in 4046 marine conservation issues and the genera l scientific literature. In addition to this evidence, we consider reports and 4047 other documents (e.g. environmental assessments, enviro nmental impact statements and monitoring reports) 4048 prepared by other Federal and State agencies such as the Minerals Management Service, U.S. Coast Guard and U.S. 4049 Navy whose operations extend into the marine environment. 4050

Potential Stressors 4051 In this section, we identify those asp ects of the proposed action that are likely to have individual, interactive, or 4052 cumulative direct or indirect physical, chemical and biotic effects on the environment. In this Opinion we are 4053 primarily concerned with the potential adverse effects to endangered or threatened species, or designated critical 4054 habitat by pesticides discharged on, over or near waters of the United States as authorized by the issuance of the 4055 PGP. 4056
The EPA focused on the active ingredients of pesticide form ulations when it registered these compounds for the use 4057 patterns to be authorized by the PGP. Many of these pes ticide active ingredients persist in the aquatic environment 4058 long after their intended uses (see Table 4). In addition, these active ingredients also include adjuvants, surfactants 4059 and other additives. The effects of exposure to these ot her product ingredients were not evaluated in the FIFRA 4060 registration process. 4061
The EPA permits more than 4,000 poten tially hazardous additives for use in pesticide formulations. For example, 4062 nonylphenols are ingredients that may be included in the formulations of pesticide pollutants and are common 4063 wastewater contaminants fr om industrial and municipal sources. A national survey of streams found that 4064 nonylphenol was among the most common organic wastewater contaminants in the U.S. and was detected in more 4065 than 50% of the samples tested (Koplin et al. , 2002a). The common pesticide additive xylene is a neurotoxin and the 4066 additive coal tar is a known carcinogen. To complicate ma tters, several permitted add itives are also registered 4067 pesticide active ingredients. 4068

4069

13 Although Section 7(a)(2) of the Endangered Species Act of 1973, as amended, requires us to use the best scientific and commercial data available, at this stage of our analyses, we consider all lines of evidence.114 Table 4. Persistence of Some Commonly Used Pesticides in Surface Water and Aquatic Sediments (After Mackay et al. , 1997)

Use Class Chemical Class Example Half Life Surface Water Aquatic Sediment Herbicides Amino acid derivatives Glyphosate ~2 months ~8 months

Chlorphenoxy acids 2,4-D, ~2 days ~2 months

Triazines Atrazine ~2 years ~2 months
Simazine ~3 weeks ~8 months
Insecticides Carbamates Carbaryl ~1 week ~2 months Organophosphates Chlorpyrfos ~1 week ~2 months

Diazinon ~2 months ~8 months
Malathion ~2 days ~3 weeks
4070
Because individual components of pestic ide formulations other than the active ingredients may themselves be toxic, 4071 we consider all pesticides –including adjuvants, surfactants and other additives in the formulations of those 4072 pesticides– that are to be authorized to be discharged on, over or near waters of the United States by the proposed 4073 PGP to be pesticide pollutants. 4074
Use Patterns to be Authorized by the Proposed Permit 4075
Mosquito and Other Flying Insect Pest Control 4076 This use pattern includes any application of pesticides in, over or near waterbodies wher e these pests spend at least 4077 part of their life cycle. Applications may occur to prevent disease outbreaks or other health reasons or to support 4078 recreational activities. 4079
The variety of pesticides and formulations that are used will commonly depend on the life stage of mosquito that is 4080 being controlled. To control larval stages, formulations of Bacillus thuringiensis and B

. sphaericus are common 4081 while formulations of carbaryl, chlorpyrifos, deltamethri n, malathion, methoprene, sumithrin and temephos are 4082 common to control flying adults. The 13 mosquito abatement districts in the St ate of Idaho, for example, generally 4083 apply different formulations of Bacillus thuringiensis and B

. sphaericus to mosquito breeding habitats when their 4084 larvae are in the first to third instar stages of life (A nonymous, 2003), although some districts will also apply 4085 methoprene, temephos (in the formulation Abate), or pyrethrins. To control flying adult mosquitoes, these districts 4086 apply ultra-low volumes of insecticides, which include a malathion-based ultra-low volume concentrate, naled, 4087 pyrethrins and pyrethroids (Anonymous, 2003). 4088
The Central Massachusetts Mosquito Control Project 14 , as another example, also applies different formulations of 4089 Bacillus thuringiensis and B

. sphaericus to control mosquito larvae, also supplemented with formulations of 4090 methoprene. To control flying adult mosquitoes, these di stricts apply ultra-low volumes of insecticides, which 4091 include formulations of sumithrin, deltamethrin and pyrethroids. The State of New Hampshire Department of Health 4092

14 http://www.cmmcp.org/115 and Human Services 15 uses similar formulations to control mosquitoes. 4093
Aquatic Weed and Algae and Pathogen Control 4094 The aquatic weed and algae control pesticide use pattern includes the application of pesticides in, over or near 4095 waterbodies to control algae and other submergent or emer gent nuisance aquatic plants to protect sensitive aquatic 4096 habitats and to maintain recreational us es. This is a broad use pattern covering many types of aquatic habitats. 4097
There are a variety of formulations and application methods for this use pattern. For example, the pesticides that the 4098 EPA currently authorizes for aquatic weed and algae cont rol in Idaho include 2,4-D, copper compounds, diquat, 4099 endothall, fluridone, glyphosate and triclopyr 16 . Application methods include boom sprayers, spreaders, backpack 4100 sprayers and aerial applications. Applications under this use pattern include spot treatme nts or large scale treatments 4101 of several acres. These applications are usually made when the target plants are pres ent and not dormant. Because 4102 these factors can vary widely between regions and individual waterbodies, these applications may occur at any time 4103 of year. 4104
Aquatic Nuisance Animal and Pathogen Control 4105 The aquatic nuisance animal control use pattern includes the a pplication of pesticides in, over or near waterbodies to 4106 control a wide variety of aquatic animals. These uses include fisheries management, invasive species eradication and 4107 equipment maintenance. 4108
Aquatic nuisance animal pests include a range of taxa in cluding vertebrates and invert ebrates such as insects, 4109 mollusks or crustaceans in a variety of aquatic habitats. Exam ples of the types of pesticides authorized for this use 4110 pattern include sodium chlorate and rotenone, which are currently authorized by the EPA use in Idaho 16 . In addition, 4111 the EPA authorizes other pesticides such as antimyci n-A and TFM for other areas under this use pattern. 4112
Applications are usually made over an entire waterbody and applications methods include drip-feed devices, 4113 backpack sprayers, boat bailers and aerial applications. Tr eatments are usually made several years apart and may 4114 occur at any time of year. 4115
Forest Canopy Pest and Pathogen Control 4116 The forest canopy pest control use pattern includes pestic ide applications in and over forest canopies where these 4117 pesticides may enter waters of the United States. These app lications usually occur over areas in response to specific 4118 pest outbreaks. Examples of such pests include gypsy moths, southern pine beetles and locust borers. This is a broad 4119 use category and covers a wide range of aquatic habitats with a variety of pesticide formulations and application 4120 methods. For example, the EPA authorizes carbaryl, chlorpyrifos and dimethoate for use in Idaho under this use 4121 pattern. Other pesticides including diflubenzuron, disparlure, malathion and trichlorfon are authorized by the EPA 4122 for forest canopy pest control in other locations. Application methods include hand sprayers, aerial applications and 4123 drip or overhead irrigation systems. These applications may occur at any time of year. 4124

Spatial Overlap between Use Patterns, Listed Species and Designated Critical Habitat 4125
Location of Use Patterns Authorized by the Permit 4126 To determine the spatial overlap between the use patterns to be authorized by the PGP and the endangered or 4127

15 http://www.dhhs.nh.gov/dphs/cdcs/arboviral/mosquito.htm

16 Idaho State Department of Agriculture: http: //www.kellysolutions.com/I D/searchbyproductname.asp116 threatened species and designated critical habitat under NMFS’ authority, we first determined the relative number of 4128 operators by location and type that EPA estimates will be authorized to discharge pesticide pollutants by the 4129 proposed permit. The results of this analysis are presented in Table 5. The EPA did not identify any differences in 4130 the timing, pesticide formulations or application rates to be used between geographic regions for any use pattern. 4131
Based on this analysis, one or more use patterns are expected to overlap with the distributions of endangered or 4132 threatened species or designated critical habitat under NMFS’ jurisdiction in all of the locations where EPA is the 4133 permitting authority. Of the 35,183 total operators that EPA expects to authorize under the proposed permit, in 4134 locations where endangered or threat ened species under NMFS’ jurisdiction occur, most pesticide pollutant 4135 discharges will occur in the State of Idaho (47.10%), fo llowed by Massachusetts (6.48%) then by New Hampshire 4136 with 2.17%. Operators in Alaska and Indian lands would comprise 1.09% and 0.48% of all operators respectively. 4137 Idaho is within the range of listed Chinook salmon, chum salmon, coho salmon, sockeye salmon and steelhead trout 4138 species and also contains designated critical habitat for Chinook salmon, sockeye salmon and steelhead trout. New 4139 Hampshire is within the range the endangered shortnose sturgeon. Shortnose sturgeon are also found in 4140 Massachusetts, especially the Merrimack River. 4141
The majority of mosquito and other flying pest control use pattern operators would occur in New Hampshire 4142 (36.36%), followed by Idaho (19.01%). Most of the aquatic weed and algae control operat ors are in Idaho (48.17%) 4143 followed by Massachusetts with 5.96%. Most of the aquatic nuisance animal control oper ators that overlap with the 4144 distribution of endangered or threat ened species and designated critical ha bitat under NMFS’ authority are in 4145 Massachusetts and Alaska (both at 6.82%), followed by Idaho at 5.45%. 4146
The forest canopy pest control use patterns overlap with the distributions of endangere d and threatened species and 4147 designated critical habitat under NMFS’ jurisdiction in all of the locations where EPA is the permitting authority 4148 except the District of Columbia. Of these, most operators are located in Massachusetts (38.93%) followed by New 4149 Hampshire with 15.32%. 4150

Table 5. Percentage of Operators to be Authorized by the Permit per Location and Type

Location Mosquito and Other Flying Insect Control Aquatic Weed and Algae

Control Aquatic
Nuisance Animal Control Forest Canopy Pest Control TOTAL

Alaska* 1.65% 1.02% 6.82% 2.95% 1.09%

Idaho* 19.01% 48.17% 5.45% 7.87% 47.10%

Massachusetts* 7.44% 5.96% 6.82% 35.08% 6.48%

New Hampshire* 36.36% 1.83% 3.64% 13.93% 2.17%

New Mexico 10.74% 30.41% 9.55% 4.26% 29.76%

Oklahoma 0.83% 11.36% 33.64% 26.07% 11.72%

District of Columbia* 0.83% 0.02% 0.91% 0.00% 0.03%

Territories* 0.83% 0.92% 17.27% 0.66% 1.01%117 Table 5. Percentage of Operators to be Authorized by the Permit per Location and Type

Location Mosquito and Aquatic Weed Aquatic Forest Canopy TOTAL

Indian Lands* 14.05% 0.27% 11.36% 5.57% 0.48%

Federal Facilities* 8.26% 0.03% 4.55% 3.61% 0.15%

* Denotes areas where discharges may overlap with the distribu tion of listed species or desi gnated critical habitat under NMFS’ jurisdiction.

Pesticide Occurrence in Rivers and Streams 4151 Pesticides or their degradates were de tected in at least one of the water sa mples from every stream sampled in the 4152 U.S. Geological Survey’s NAWQA study of Californi a, Idaho, Oregon and Wa shington waters (Gilliom et al. , 4153 2006). Streams in agricultural and urban areas had one or more detectable pesticide or degradate 97% of the time; 4154 streams in mixed land-use areas had one or more detectable pesticide or degradate 94% of the time; and streams in 4155 undeveloped areas had one or more detectable pesticide or degradate 65% of the time (Gilliom et al. , 2006). The 4156 NAWQA study concluded that the presence of pesticide co mpounds in undeveloped wate rsheds might have resulted 4157 from earlier or contemporary uses within the watershed for forest management, maintenance of rights-of-way, uses 4158 associated with small areas of ur ban or agricultural land, or atmospheric transport from other areas. 4159
Of 186 stream sites sampled as part of the NAWQA study (Gilliom et al., 2006), 57% of 83 agricultural streams had 4160 concentrations of at least one pesticid e that exceeded one or more aquatic-lif e benchmarks at least once during the 4161 year (68% of sites sampled during 1993–1994, 43% during 1995–1997, and 50% during 1998–2000); 83% of 30 4162 urban streams had concentrations of at least one pesticide th at exceeded one or more aquatic-life benchmarks at least 4163 once during the year (90% of sites sampled during 1993–1994, 100% during 1995–1997, and 64% during 1998– 4164 2000); and 42% of 65 mixed-land-use streams had concentrations of at least one pesticide that exceeded one or more 4165 aquatic-life benchmarks at least once during the year (38% of sites sampled during 1993–1994, 40% during 1995– 4166 1997 and 46% during 1998–2000). 4167
In urban streams, most concentrations greater than a benchmark involved the insecticides diazinon (73% of sites), 4168 chlorpyrifos (37%) and malathion (30%). The pesticides detected most frequently in streams and ground water were 4169 primarily those had been used the most and had the greatest mobility or persistence in aquatic ecosystems. They 4170 included atrazine (and its degradate d eethylatrazine), metolachlor, cyanazine , alachlor and acetochlor, which were 4171 the most heavily-used agricultural pesticides between 1992 and 2001; simazine, prometon, tebuthiuron, 2,4-D and 4172 diuron, which were the most heavily-used non-agricultura l pesticides; and diazinon, chlorpyrifos and carbaryl, 4173 which were the most heavily-used insecticides between 1992 and 2001. Simazine, prometon, diuron, 2,4-D, diazinon 4174 and carbaryl, which are commonly used to control weeds, insects and other pests in urban areas, were frequently 4175 found at relatively high levels in urban streams throughout the Nation. Within California, Idaho, Oregon and 4176 Washington, malathion was detected in approximately 6% of the samples of surface waters analyzed in river basins 4177 included in the NAWQA study (Gilliom et al ., 2006). Table 6 identifies the number of detections of chlorpyrifos, 4178 diazinon and malathion, the maximum and minimum concentrations of these three active ingredients and summary 4179 statistics. 4180
An evaluation of pesticides concentrations in eight tr ibutaries of Idaho’s Clearwater River basin (Campbell 2004) 4181 detected the pesticides metribuzon (found in 23% of 47 detections), diuron (found in 15% of 47 detections), dicamba 4182 (found in 13% of 47 detections), atrazine (found in 11% of 47 detections), picloram (found in 8% of 47 detections), 4183 dimethoate (found in 6% of 47 detections), hexazinone (found in 6% of 47 detections), bromacil (found in 4% of 47 4184118 detections), linuron (found in 2% of 47 detections), methomyl (found in 4% of 47 detections), simazine (found in 4185 2% of 47 detections), tralkoxydim (found in 2% of 47 detections) and 2,4,-D (found in 2% of 47 detections). 4186 Pesticides with the highest detections were diuron (1.1  g/L), dicamba (0.76 ppb), picloram (0.75  g/L), methomyl 4187 (0.36 ppb) and 2,4-D (0.28  g/L). Five of the eight streams in this basin – Holes Creek, Little Canyon Creek, 4188 Mission Creek, Sweetwater Creek and Six Mile Creek – are lis ted as impaired because of pesticide concentrations 4189 and also support salmon populations. Similar surveys of pe sticide concentrations in the Lower Payette River basin 4190 and Boise River basin detected 21 and 24 pesticides, respectively, including chlorpyrifos, malathion, methomyl, 4191 bromacil, dimethoate, diuron and 2,4-D (Campbell, 2009). 4192

Table 6. Summary of detections of chlorpyrifos, diazinon and malathion in filtered stream samples collected in California, Idaho, Oregon and Washington streams (Gilliom et al ., 2006) Chemical Chlorpyrifos Diazinon Malathion Number of detections 1,131 1,767 272 Minimum (μg/L) 0.004 0.002 0.005 Maximum (μg/L) 0.401 3.800 1.350 Arithmetic Mean (μg/L) 0.022 0.084 0.049 Standard Deviation (μg/L) 0.037 0.230 0.121
Degradate Occurrence 4193 Over time, pesticides are transformed into other compounds by chemical, photochemical and biologically-mediated 4194 reactions; these other compounds are generally called “degradates” or “metabolites” (Boxall et al. , 2004; Gilliom et 4195 al. , 2006). Some degradates are as prevalent as parent pesticides while others are more prevalent. For example, 4196 deethylatrazine, which is a degradate of atrazine and other triazine herbic ides, was one of the most frequently 4197 detected pesticide compounds in water and one of the most frequent contributors to pesticide mixtures in the U.S. 4198 Geological Survey’s NAWQA analyses (Gilliom et al., 2006). NAWQA surveys also re ported that degradates and 4199 by-products of organochlorine pesticides were among the most commonly detected pesticide compounds in fish 4200 (Gilliom et al., 2006). Many degradates are more persistent and more mobile in the environment than their parent 4201 compounds (Boxall et al., 2004; Gilliom et al., 2006). 4202
Degradates, like their parent compounds, have the potential to adversely affect water quality, depending on their 4203 toxicity. Degradates may be either more or less toxic than their parent pesticides, although most have toxicities to 4204 aquatic life that are similar to, or lower than, those of their parent compounds (Sinclair and Boxall, 2003; Boxall et 4205 al. , 2004; Gilliom et al. , 2006). Sinclair and Boxall (2003) reported that 41% of degradates were less toxic than their 4206 parent compounds, 39% had toxicities similar to their parent s, 20% were more than 3 times more toxic than their 4207 parent compound and 9% were more than 10 times more toxic. 4208

Environmental Mixtures 4209 More than 90% of streams surveyed by the NAWQA study in developed land-use settings detected two or more 4210 pesticides or degradates; about 70% of the time, streams had five or more pesticides or degradates, and about 20% of 4211 the time, streams had detections of 10 or more pesticides or degradates (Gilliom et al., 2006). Mixtures also were 4212 found in streams draining undeveloped watersheds, although these streams have compounds: about 25% of the time, 4213 undeveloped streams had detections of five or more pes ticides or degradates, but no samples had more than 10 4214 detections. 4215
The individual pesticides that were reported in the NAWQA study were the pesticides that were detected the most 4216 often and included the herbicides atrazine (and its degrad ate deethylatrazine), metolach lor, simazine and prometon, 4217119 each of which was present in more th an 30% of all mixtures found in ag ricultural and urban areas, and in both 4218 streams and ground water (Gilliom et al., 2006). In agricultural streams, cy anazine, alachlor, metribuzin and 4219 trifluralin were detected in more than 30% of the mixtures ; in urban streams, dacthal an d the insecticides diazinon, 4220 chlorpyrifos, carbaryl and malathion were detected in mo re than 30% of the mixtures. The NAWQA study detected 4221 more than 6,000 unique mixtures of five pesticides in agricultural streams (Gilliom et al., 2006). 4222
Mixtures of organochlorine pesticide compounds were common in samples of fish-tissue taken from most of the 4223 streams that were sampled in the NAWQA study (Gilliom et al., 2006). About 90% of fish samples collected in 4224 urban streams contained two or more pesticide compounds and 33% contained 10 or more; about 75% of fish 4225 samples from streams draining watersheds with agricultural and mixed land use contained two or more pesticide 4226 compounds while 10% had 10 or more. Mixtures were detected least often in fish from undeveloped streams, in 4227 which two or more compounds were detected in about 25% of the fish-tissue samples. 4228
Surveys of pesticide concentrations in five streams in the Boise River basin detected up to 17 pesticides in some 4229 streams (Mason Creek and Fifteenmile); the lowest number of detections was 10 pesticides (Campbell, 2009). 4230 Detections included degradates of atrazine (Campbell, 2009). 4231
Consequences of Exposing Listed Species and Designated Critical Habitat 4232 The preceding section of this Opinion presented the evidence that leads us to conclude th at endangered or threatened 4233 species and designated critical habitat under the jurisdiction of the NMFS are likely to co -occur with discharges of 4234 pesticide pollutants on, over or near waters of the United States In this section of this Opinion, we summarize 4235 information on the probable physical, physiological, behavioral, social and ecological responses of endangered or 4236 threatened species or constituent elements of critical habitat given exposure to active ingredients in formulations, 4237 other ingredients of formulations, degradates of these ingredients, or chemical mixtures. Our purpose is not to 4238 provide a comprehensive review of the probable responses of endangered or threatened species to formulations that 4239 include all 171 of the active ingredients who formulations the PGP would authorize; instead, our intention is to 4240 identify the range of representative responses we would ex pect listed species to exhibit given exposure to these 4241 chemicals. 4242
EPA’s proposed PGP would authorize discharges of pesticide formulations that include about 171 active ingredients 4243 (Appendix A) on, over, or near waters of the United States Table 8 organizes those 171 active ingredients by class of 4244 pesticide, which includes benzoic acids, botanical pesticides, carbamate pesticides, inorganic pesticides, microbial 4245 pesticides, organophosphate pesticides, py rethroid pesticides and rodenticides. 4246

Consequences of Exposure to Active Ingredients and Formulations 4247 The preceding section of this Opinion presented the evidence that leads us to conclude th at endangered or threatened 4248 species and designated critical habitat under the jurisdiction of the NMFS are likely to co -occur with discharges of 4249 pesticide pollutants on, over or near waters of the U.S. In this section of this Opinion, we summarize information on 4250 the probable physical, physiological, behavioral, social and ecological responses of endangered or threatened species 4251 or constituent elements of critical habitat given exposure to active ingredients in formulations, other ingredients of 4252 formulations, degradates of these ingredients, or chemical mixtures. Our purpose is not to provide a comprehensive 4253 review of the probable responses of endangered or threat ened species to formulations that include all 171 of the 4254 active ingredients for which formulations the PGP would authorize discharges on, over or near waters of the United 4255 States; instead, our intention is to identify the range of representative responses we would expect listed species to 4256 exhibit given exposure to these chemicals. 4257120 EPA’s proposed Pesticides General Permit would authorize di scharges of pesticide formulations that include about 4258 171 active ingredients (Appendix A) on, over, or near waters of the U.S. Table 8 organizes those 171 active 4259 ingredients by class of pesticide, which includes benzoic acids, botanical pesticides, carbamate pesticides, inorganic 4260 pesticides, microbial pesticides, organophosphate pe sticides, pyrethroid pesticides and rodenticides. 4261
Consequences of Exposure to Active Ingredients and Formulations 4262 All pesticide products contain one or more active ingredie nts. Most pesticide products also contain ingredients 4263 called “adjuvants” (which are designed to increase the effectiveness of the activ e ingredient and are usually referred 4264 to as inert ingredients on product labe ls) “surfactants” (which reduce the interf acial or surface tension of a system or 4265 a surface-active substance) and carriers, as well as other ingredients. Some formulations may contain multiple active 4266 ingredients. 4267
Piperonyl butoxide, nonylphenol and nonylphenol polyethoxylates are examples of “inert” ingredients that may be 4268 formulated in pesticide products or added as adjuvant ingredients during pesticide applications. Piperonyl butoxide 4269 is a common synergist in formulations of synthetic pyrethroids. Nonylphenol and nonylphenol polyethoxylates are 4270 common ingredients in detergents, cosmetics and other industrial products. These compounds are also common 4271 wastewater contaminants fr om industrial and municipal sources. A national survey of streams found that 4272 nonylphenol was among the most common organic wastewater contaminants in the U.S. and was detected in more 4273 than 50% of the samples tested. The median concentration of nonylphenol in streams was 0.8 μg/L and the 4274 maximum concentration detected was 40.0 μg/L. Related compounds were also detect ed at a relatively high 4275 frequency (Koplin et al. , 2002b). 4276
For an example of the other ingredients that might appear in formulations, registered pesticide products containing 4277 chlorpyrifos, diazinon and malathion always include othe r ingredients such as carriers and surfactants and may 4278 include other registered active ingredients (Table 7). 4279
Because the proposed PGP will au thorize discharges of formulations of pes ticides on, over or near waters of the 4280 U.S., we are concerned about those components of formulations that might be toxic to endangered or threatened 4281 species under our jurisdiction. Therefor e, the summary of the literature that follows discusses various ingredients 4282 that appear in pesticides formulati ons. Some of these ingredients would be listed as “active ingredients” on a 4283 pesticide label while others would be listed as “inert” ingredients. 4284

Research that has been conducted over several decades has established that many, but not all, of the 171 ingredients 4285 in the 24 classes of pesticides pose serious risks for many aquatic organisms. When they are exposed at some 4286 concentration of some pesticides, individuals of some species or stages of species die as a result of their exposure. 4287 Other individuals of aquatic species experience reductions in developmental patterns, rates of growth or 4288 reproductive success as a direct result of the exposure or because of the chem ical’s effect on their behavioral 4289 patterns. Exposure to some of the chemicals whose discharges would be authorized by EPA’s proposed Pesticide 4290 General Permit has been demonstrated to have physical, physiological or neural effects on individuals that have been 4291 exposed and these changes increase their probability of being captured and killed by predators. 4292
Some of the pesticides in the 24 classes identified in Table 8 have been reported to have few, if any, adverse 4293 consequences for aquatic organisms, including endangered or threatened species. For ex ample, despite a half-life 4294 that is estimated to be about two months in clean river water that is low in sediment, bromacil is not toxic to 4295 invertebrates and is only slightly toxic to practically non-toxic to fish. The 48-hour LC 50 for bromacil in rainbow 4296 trout is 56-75 mg/L, in bluegill sunfish is 71 mg/L and in carp is 164 mg/L. The 96-hour LC 50 in fathead minnows is 4297 182 mg/L. The microbial insecticide Bacillus thuringiensis (or B.t. ) did not adversely affect aquatic vertebrates, 4298121 including brook trout, white suckers and smallmouth bass even a month after aerial applications, although it may 4299 adversely affect non-target invertebrate s, including butterflies (Lepidoptera). 4300

Table 7. Example of listed ingredients on labels of some products containing chlorpyrifos, diazinon and malathion (after NMFS 2008a)

EPA Product Registration

Number Active Ingredients Other Ingredients 499-405 chlorpyrifos 8%, cyfluthrin 1.6% 90.4% 4329-36 chlorpyrifos 12% permethrin 4% 84% 39039-6 chlorpyrifos 12% diazinon 4% 60% 655-441 chlorpyrifos 13%, dichlorvos 4.82% 82.18% 66222-19 chlorpyrifos 42.5% 57.5%
7501-112-5905 diazinon 15%, lindane 25%, carboxin 14% 46%

11556-123 diazinon 20%, coumaphos 20% 60% 270-260 diazinon 18%, piperonyl butoxide 2% 80% 61483-92 diazinon 40%, tetr achlorvinphos 10% 50%

4-122 malathion 6%, carbaryl 0.3%, captan 11.8% 81.9% 4-59 malathion 3%, carbaryl 0.5%, captan 5.87% 90.63% 4-355 malathion 6%, sulfur 25%, captan 6.03% 62.97% 4-157 malathion 13.5%, captan 13.5% 73% 7401-163 malathion 7.5%, PCNB 12.5% 80% 11474-96 malathion 2%, piperonyl butoxide 0.12%, pyrethrins 0.05% 97.83% 5481-275 malathion 2%,carbaryl 2% 96%
8329-29 malathion 30.6%, piperonyl butoxide 4.96 %, resmethrin 1.88% 62.66%
769-646 malathion 5.5%, petroleum distillates and mineral oil 89.0% 5.5% 4301 Some of the chemicals in the 24 classes identified in Table 8 have more severe consequences for aquatic organisms 4302 that are exposed to them, although the different groups of chemicals affect species through different modes of 4303 action. Organophosphates and carbamates inhibit acetylch olinesterase; organotins prevent the formation of 4304 adenosine triphosphate; pyrethroids keep sodium channels in neuronal membranes open, which affects the 4305 peripheral and central nervous systems and cause a hyper-excitable state; symptoms include tremors, lack of 4306 coordination, hyperactivity and paralysis; rotenone which inhibits respiratory enzymes; and limonene which affects 4307 the sensory nerves of the peripheral nervous system. 4308

Botanicals 4309 The botanicals included in the proposed PGP are cube resins (other than rotenone) and Rotenone. Rotenone is used 4310 as a fish toxin (piscicide) so we would expect to be highly toxic to fish, including endangered and threatened species 4311 of fish. Cheng and Farrell (2007) reported that rotenone wa s not toxic to juvenile rainbow trout when they were 4312 exposed at concentrations of 5.0  g/L during 96-hour tests, but 100% of the juveniles died when at concentrations of 4313 6.6  g/L for 96 hours. Johnson and Finley (1980) reported 96-hour LC 50 for rotenone was 23  g/L for rainbow trout 4314 and 2.6  g/L for channel catfish. Finlayson et al ., (2010) exposed rainbow trout for 4 and 8 hours to concentrations 4315 of synergized and non-synergized formulations of rotenone. Exposing rainbow trout to a CFT Legumine formulation 4316 of rotenone at 5.3 μ g/L for an average of eight hours killed half of the rainbow trout; exposing them to a Nusyn4317 Noxfish formulation of rotenone at 6.2 μ g/L for an average of 8 hours also killed half of the rainbow trout. 4318122 In addition, populations of aquatic invertebrates have b een eliminated in streams that have been treated with 4319 rotenone. Binns (1965) reported that aquatic invertebrate populations in the Green River, Wyoming were almost 4320 completely eliminated following rotenone treatments. Mangum and Madrigal (1999) reported that the richness of 4321 Ephemeroptera in the Strawberry River in north eastern Utah had been reduced by 67-100%, Plecoptera by 67-100% 4322 and Trichoptera by 61-100% after two rotenone treatments, of 3 mg/L for 48 hours. In Great Basin National Park, 4323 rotenone treatments reduced species in these taxa by 99% for one month. 4324

Carbamates 4325 The carbamates whose uses would be authorized by the proposed PGP include carbaryl, asulam and sodium salt. 4326 Numerous authors have studied and reported the responses of vertebrate species exposed to carbamates (Shea and 4327 Berry, 1983; Zinkl et al. , 1987; Hanazato, 1991; Sharma et al. , 1993; Beyers et al. , 1994; Beyers and Sikoski, 1994; 4328 Relyea and Mills, 2001; Relyea, 2004; Boran et al. , 2007; Davidson and Knapp, 2007). Carbaryl, which is also 4329 known by the trade name Sevin, is an example of the group known as N-methyl carbamates, which includes other 4330 pesticides like carbofuran and methomyl. These chemi cals act as neurotoxicants by impairing nerve cell 4331 transmission in vertebrates and invertebrates; specifically, th ey interfere with normal nerve transmissions and, as a 4332 result, can affect a wide array of physiological systems. Organophosphates have the same mode of action and 4333 produce similar physiological responses. 4334
Beyers et al., (1994) studied the toxicity of tec hnical carbaryl (1-napthyl methylcar bamate, 99%) and Sevin-4-Oil (a 4335 formulation containing 49% carbaryl and petroleum dis tillates) to Federally endangered Colorado squawfish 4336 ( Ptychocheilus lucius ) and bonytail ( Gila elegans ). In Colorado squawfish, median lethal concentrations for 4337 technical carbaryl were 1.31 mg/L (95% confidence interv al: 1.23-1.40 mg/L) and were 3.18 mg/L (95% confidence 4338 interval: 2.87-3.52 mg/L) for Sevin-4-Oil. In bonytail, medi an lethal concentrations for technical carbaryl were 2.02 4339 mg/L (95% confidence interval: 1.78 -2.25 mg/L) and were 3.31 mg/L (3.06, -3.55 mg/L) for Sevin-4-Oil. Because 4340 Colorado squawfish and bonytail are about as sensitive to carbaryl as cutthroat trout ( Oncorhynchus clarki ), rainbow 4341 trout, Atlantic salmon ( Salmo salar ) and brook trout ( Salvelinus fontinalis ), these results should also be applicable to 4342 ESA listed Atlantic salmon and listed steelhead (Beyers et al., 1994). 4343
Carlson (1971) exposed fathead minnow to five treatments of carbaryl (8, 17, 62, 210 and 680 μg/L) in a flow 4344 through system for nine months; capturing the life cycle of the fathead minnow. Fathead minnows showed reduced 4345 number of eggs per female and reduced number of eggs spawned when exposed to 680 μg/L; none of the eggs that 4346 were spawned hatched. Zinkl et al., (1987) reported that carbaryl killed rain bow trout when they were exposed to 4347 concentrations at or above 1,000 μg/L for as few as 90 minutes and the trout exhibited AChE inhibition from 61 to 4348 91% when exposed to concentrations of 250 – 4,000 μg/L for 24 hours. 4349123Table 8. Classification of the 171 active ingredients by class of pesticide. Ingredients that are listed in bold type are discussed in greater detail in the documentPesticide ClassPesticide Active Ingredient, as listed in Biological EvaluationBenzoic acidDicamba,Dicamba,diglycoamine salt,Dicamba,dimethylamine salt,Dicamba,sodium saltBiochemical 2, 4-Dodecadienoic acid, 11-methoxy-3, 7, 11-trimethyl-, 1-met, Methoprene, Nonanoic acidBotanicalCube Resins other than rotenone,RotenoneBromine Compound Bromine chloride, Sodium bromideCarbamateCarbaryl,Asulam, sodium saltChlorine Compound Calcium hypochlorite, Chlorine, Chlorine dioxide, Sodium hypochloriteDinitroaniline2, 4-Dinitro-N3, N3-dipropyl-6-(trifluoromethyl)-1, 3-benzenedia, Oryzalin, PendimethalinHydantoin 1, 3-Dibromo-5, 5-dimethylhydantoin,1-Bromo-3-chloro-5, 5-dimethylhydantoinImidazolinone(+-)-2-(4, 5-Dihydro-4-methyl-4-(1-methylethyl)-5-oxo-1H-imida,Imazapic, Imazapic-ammonium, Imazapyr, Imazapyr, isopropylaminesalt, Imazaquin, monoammonium saltInorganicCopper as metallic (in the form of chelatesof copper citrate), Copper carbonate, basic, Copper ethanolamine complex, Copperethylenediamine complex,Copper sulfate pentahydrate, Copper triethanolamine complex, Hydrogen peroxide, Sodium chlorate,Sodium metaborate (NaBO2), Zinc sulfate monohydrateMicrobialAntimycin A, Bacillus thuringiensis subspecies israelensis Strain BMP, Bacilluslicheniformis SB3086, Bacillus sphaericus,Bacillusthuringiensissubspecies israelensis, Bacillus thuringiensis subspecies aizawai, Bacillus thuringiensis subspecies kurstaki, Bacillusthuringiensis subspecies tenebrionis, Polyhedral inclusion bodies of gypsy moth nucleopolyhedrosis virus, Lagenidium giganteum,mycelium or oosporesOrganophosphateAcephate, Chlorpyrifos, Diazinon, Dichlorvos,Dimethoate,Malathion, Naled,Temephos, Trichlorfon, TriclorfonOtherAcrolein, Saflufenacil,Diflubenzuron, Diquat dibromide, Tebufenozide, Oxyfluorfen,Dodecylguanidine hydrochloride, Imidacloprid,Monosodium acid methanearsonate, Methoxychlor, (**)-Trifluoro-4-nitro-m-cresol (**)= alpha, alpha, alpha-, 1-Bromo-1-(bromomethyl)-1,3-propanedicarbonitrile, 2-(1-Methyl-2-(4-phenoxyphenoxy)ethoxy)pyridine, 2, 2-Dibromo-3-nitrilopropionamide, Benzenesulfonamide, 2-(2, 2-difluoroethoxy)-N-(5, 8-dimethoxy[1,Carfentrazone-ethyl, CAS Reg. No. 68038-71-1, Endothall, dipotassium salt, Endothall,mono(N, N-dimethylcocoamine) salt, Erioglaucine, Ethyl 2-chloro-5-[4-chloro-(5-difluoromethoxy)-1-methyl-1H-py, Etofenprox, Fluridone,Fosamine ammonium,Glufosinate-ammonium, Glutaral, Methanone, [3-(4, 5-dihydro-3-isoxazolyl)-2-methyl-4-(methylsu, Methyl 9-hydroxyfluorene-9-carboxylate, Mono-molecular surfacefilm, Niclosamide, Phenol, 4-nitro-3-(trifluoromethyl),Poly(oxyethylene(dimethyliminio)ethylene(dimethyliminio)ethyl,Saccharopolyspora spinosa fermentation product containing Spi, Sodiumpercarbonate, Spinosad, Tartrazine, Tetrakis(hydroxymethyl)phosphonium sulphate (THPS), Chlorflurenol, methyl ester, Methyl 2,7-dichlorohydroxyfluorene-9-carboxylate, Peroxyacetic acid, Cis-7, 8-Epoxy-2-methyloctadecane, POE isooctadecanolPetroleum derivative Espesol 3A, Mineral oil, Mineral oil - includes paraffinoil from 063503, Petroleum distillatePhenoxy(R)-2-(2, 4-Dichlorophenoxy)propanoic acid, dimethylamine salt,2-4, D, 2-Ethylhexyl (R)-2-(2, 4-dichlorophenoxy)propionate, 2-124Table 8. Classification of the 171 active ingredients by class of pesticide. Ingredients that are listed in bold type are discussed in greater detail in the documentEthylhexyl 2-(2, 4-dichlorophenoxy)propionate, Acetic acid, (2, 4-dichlorophenoxy)-, 2-ethylhexyl ester, Butoxyethyl 2, 4-dichlorophenoxyacetate, Diethanolamine (2, 4-dichlorophenoxy)acetate, Dimethylamine (R)-2-(2-methyl-4-chlorophenoxy)propionate,Dimethylamine 2, 4-dichlorophenoxyacetate, Isooctyl 2-(2, 4-dichlorophenoxy)propionate, Isopropylamine 2, 4-dichlorophenoxyacetate,MCPA, dimethylamine salt, Mecoprop (and salts and esters), Sodium 2, 4-dichlorophenoxyacetate, Triisopropanolamine 2, 4-dichlorophenoxyacetatePhosphonoglycineGlycine, N-(phosphonomethyl)- potassium salt, Glycine, N-(phosphonomethyl)-, diammonium salt,Glyphosate, Glyphosate, ammoniumsalt, Glyphosate, isopropylamine saltPyrethroids, Pyrethrins & SynergistsPhenothrin, Bifenthrin, Deltamethrin, D-Phenothrin, N-Octyl bicycloheptene dicarboximide, Permethrin, Permethrin, mixed cis, trans,Piperonyl butoxide, Prallethrin, Pyrethrins, Resmethrin, Sumithrin, Tau-fluvalinatePyridineButoxyethyl triclopyr, CAS Reg. No. 566191-87-5, CAS Reg.No. 566191-89-7, Clopyralid, Clopyralid, monoethanolamine salt,Clopyralid, triethanolamine, Fluroxypyr 1-methylheptyl ester, Picloram, triisopropanolamine salt,Triclopyr, Triethylamine triclopyrQuaternary CompoundAlkyl* dimethyl benzyl ammonium chloride *(50%C14, 40%C12, 10, Alkyl* dimethyl benzyl ammonium chloride *(60%C14, 30%C16, 5%,Alkyl* dimethyl ethylbenzyl ammonium chloride *(68%C12, 32%C1, Didecyl dimethyl ammonium chlorideRodenticide Chlorophacinone, Difethialone,Diphacinone, Zincphosphide (Zn3P2)Sulfonylurea1-(4, 6-dimethoxypyrimidin-2-yl)-3-(2-ethylsulfonylimidazo{1, 2,Chlorsulfuron, Metsulfuron-methyl, Rimsulfuron, Sulfometuron methylTriazine/Triazinetrione/TriazinonePrometon, Sodium dichloroisocyanurate dihydrate, Sodium dichloro-s-triazinetrione, Trichloro-s-triazinetrione, Hexazinone,SulfentrazoneUracilBromacil, Bromacil, lithium saltUreaDiuron, Tebuthiuron125 Exposure to carbaryl appears to make cutthroat trout more susceptible to predation, perhaps by inhibiting AChE 4350 activity in brain and muscle. Cutthroat trout experienced higher predation rates when exposed to carbaryl at 4351 concentrations of 200 μg/L, 500 μg/L and 1,000 μg/L. At 200 μg/L, an increase in predation was evident (Labenia et 4352 al. , 2007). Little et al., (1990) reported similar results from their studies of the effects of exposing rainbow trout fry 4353 (0.5-1.0 g) to carbaryl at 10, 100 and 1,000  g/L for 96 hours. At all of these exposure concentrations, significantly 4354 more rainbow trout were consumed compared with unexposed fish. At concentrations of 1,000  g/L, exposed 4355 rainbow trout fry experienced significant reductions in swimming capacity, swimming activity, prey strike 4356 frequency, daphnids consumed, percent consuming daphnids and percent survival from predation. 4357
Organophosphates 4358 The organophosphates whose uses would be authorized by the proposed PGP include acephate, chlorpyrifos, 4359 diazinon, dichlorvos, dimethoate, malathion, naled, temephos, trichlorfon and triclorfon. Numerous authors have 4360 studied and reported the responses of vertebrate species exposed to organophosphates (Shea and Berry, 1983; Zinkl 4361 et al. , 1987; Hanazato, 1991; Sharma et al. , 1993; Beyers et al. , 1994; Beyers and Sikoski, 1994; Relyea and Mills, 4362 2001; Relyea, 2004; Boran et al. , 2007; Davidson and Knapp, 2007). Li ke carbamates, these chemicals act as 4363 neurotoxicants by impairing nerve cell transmission in verteb rates and invertebrates; specifically, they interfere with 4364 normal nerve transmissions and, as a result, can affect a wide array of physiological systems. 4365
Chlorpyrifos is highly toxic to freshwater fish, aquatic invertebrates and estuarine and marine organisms. EPA’s 4366 Office of Pesticide Programs estimated environmental concentrations for formulations of chlorpyrifos that assumed 4367 that 10% of the applied rate may drift to surface water. As a result, an applica tion rate of 0.025 lbs chlorpyrifos per 4368 acre would result in concentrations of 1.5 – 18.5 μg/L chlorpyrifos in surface water at depths of six inches to six 4369 feet. The EPA (1989) reported that application of concentrations as low as 0.01 pounds of active ingredient per acre 4370 may cause fish and aquatic invertebrate deaths. The 96-hour LC 50 for chlorpyrifos is 0.009 mg/L in mature rainbow 4371 trout, 0.098 mg/L in lake trout, 0.806 mg/L in goldfish, 0.01 mg/L in bluegill sunfish and 0.331 mg/L in fathead 4372 minnow (EPA, 1986). Therefore, mature rainbow trout exposed to chlorpyrifos concentrations produced by 4373 application rates of 0.025 lbs of chlorpyrifos per acre would be expected to have a 50% probability of dying after 96 4374 hours of exposure (alternatively, we would expect about half of an exposed population of rainbow trout to die as a 4375 result of their exposure to these concentrations of chlorpyrifos for 96 hours). 4376
When fathead minnows were exposed to Dursban (a formulation of chlorpyrifos) growth was reduced within 30 4377 days at 2.68 micrograms/liter and within 60 days at 1.21 μg/L. The maturation rate of first-generation fish was 4378 reduced at all Dursban exposure concentration and reproduction was significantly reduced at concentrations of at 4379 least 0.63 micrograms/liter. Growth rates and estimated biomass of 30-day-old second-generation fish were 4380 significantly reduced when they were exposed at concentrations of 0.12 micrograms/liter (Jarvinenet al. , 1983). 4381 Carp ( Cyprinus carpio ) fingerlings exposed to concentrations of chlorpyrifos ranging from 0.120 to 0.200 mg/L for 4382 96 hours had acute toxicities at concentrations of 0.160 mg /L. When these carp were exposed for 1, 7 and 14 days at 4383 concentrations of 0.0224 mg/L and 0.0112 mg/L, they exhibited irregular, erratic and darting swimming movements, 4384 hyper-excitability and loss of equilibrium and sinking to the bottom. Caudal bending was also reported during 4385 exposures (Ramesh and David, 2009). 4386
Diazinon exposures have been implicated in five fish kills reported in California since 2002. One of the fish kills, 4387 which EPA classified as probably caused by the use of diazinon, occurred in June 2002 and consisted of 2,000 4388 salmon that were found Tembladera Slough and the Old Salinas River channel in Monterey County, California. 4389 Monterey County Agricultural Commissioner staff indicated that a small number of applications of diazinon had 4390 been made in the general area when the fish kill occurred . Water samples collected from the sites detected diazinon 4391126 in four of six samples with concentrations ranging from 0.095 – 0.183 μg/L. Gill samples from all five fish showed 4392 recent exposure to chlorpyrifos with concentrations ranging from 5 - 40 μg/kg. Methidathion, another 4393 organophosphate, was also detected at low concentrations in the water but was absent in gill tissue. Although 4394 concentrations of diazinon in the water column were well below median lethal concentrations for fish that had been 4395 observed in the laboratory, peak concentrations probably had not been detected because diazinon concentrations had 4396 probably dissipated in the few days between the occurrence of the fish kill and sampling. 4397
Diazinon also affects the olfaction of juvenile salmon, which mediates a suite of fish behaviors involved in feeding, 4398 predator avoidance, kin recognition, spawning, homing and migration. For example, Moore and Waring (1996) 4399 studied the effects of diazinon exposure on olfaction in Atlantic salmon parr. They first exposed male parr to 4400 diazinon concentrations (0, 0.1, 1.0, 2.0, 5.0, 10 and 20 μg/L) for 30 minutes and determined the parrs’ ability to 4401 detect priming odorant released by female salmon that synchronizes spawning and also has a role as a primer on 4402 male plasma steroids and gonadotropin production. At 1.0 μg/L, diazinon significantly reduced the capacity for parr 4403 to detect the priming odorant by 22% (compared with controls); at 20 μg/L, diazinon inhibited olfaction by 79%. 4404 Olfaction was affected for up to 4-5 hours following exposure. 4405
They also studied the effect of longer-term exposure to diazinon on male parrs’ plasma reproductive steroid levels 4406 after the males were exposed to the urine of ovulating females. Diazinon concentrations of 0.3 – 45 μg/L abolished 4407 the induction of male hormones, although levels of testosterone and one ketotestosterone were not significantly 4408 affected by the diazinon exposure. Milt production was redu ced by about 28% at concentrations of diazinon ranging 4409 from 0.3 - 45 μg/L. We would expect these outcomes to impair Atlantic salmon’s ability to detect and respond to 4410 reproductive scents and increase their probability of mi ssing spawning opportunities, which would reduce the 4411 lifetime reproductive success of individu als that experience this response. 4412

Scholz et al., (2000) also studied the effects of 24 hour exposures to diazinon on the swimming and feeding behavior 4413 of juvenile coho salmon. They reported statistically significant effects on swimming and feeding behaviors in the 4414 presence of an alarm cue following expo sures at concentrations of diazinon at 1 and 10 μg/L (compared to control 4415 fish) and reduced homing at 0.1 μg/L. 4416
Temephos shows a wide range of toxicity to aquatic or ganisms, depending on the formulation. Generally, the 4417 technical grade compound is considered moderately toxi c while the emulsifiable conc entrate and wettable powder 4418 formulations are highly to very highly toxic. The most se nsitive species of fish is the rainbow trout with a temephos 4419 LD 50 ranging from 0.16 mg/L to 3.49 mg/L (Johnson and Finley, 1980). Other 96-hour LD 50 values are reported as: 4420 coho salmon 0.35 mg/L, largemouth bass 1.44 mg/L, channel catfish 3.23 mg/L to >10 mg/L, bluegill sunfish 1.14 4421 mg/L to 21.8 mg/L, and Atlantic salmon 6.7 mg/L to 21 mg/L (Johnson and Finley, 1980; Kidd and James, 1991). 4422
Trichlorfon is also highly toxic to several species of fish and aquatic invertebrates, including species like Daphnia 4423 and stoneflies that are prey for fish. LC 50 (96-hour) values for trichlorfon are 0.18 mg/L (48-hour) in Daphnia, 0.01 4424 mg/L in stoneflies, 7.8 mg/L in crayfish, 1.4 mg/L in rainbow trout, 2.5 mg/L in brook trout, 0.88 mg/L in channel 4425 catfish and 0.26 mg/L in bluegill (Hudson et al. , 1984; Hill and Camardese, 1986). 4426
Pyrethroids, Pyrethrins and Synergists 4427 The pyrethroids, pyrethrins and synergists whose uses would be authorized by the proposed PGP include 4428 permethrin, permethrin, mixed cis, trans, resmethrin, sumithrin, piperonyl butoxide and n-octyl bicycloheptene 4429 dicarboximide. The latter substances, piperonyl butoxide and n-octyl bicycloheptene dicarboximide (mgk-264) are 4430 synergists. As we described previously, formulations of these pesticides are used to control adult mosquitoes. 4431127 Paul et al ., (2005) compared the toxicity of synergized and technical formulations of permethrin, sumithrin and 4432 resmethrin to brook trout ( Salvelinus fontinalis ) and brown trout ( Salmo trutta ). They reported that the toxicity of 4433 the synergized permethrin formulation was significantly increased in 24, 48 and 96-hour tests, compared to tests 4434 with the technical formulation. There was little difference in the toxicity of synergized and technical formulations of 4435 sumithrin until 48 hours had elapsed. They reported that many test fish were strongly intoxicated by either 4436 formulation of permethrin or sumithrin, but the synergized formulations of both chemicals affected fish at lower 4437 concentrations. Intoxication was potentially severe enough to reduce the survival of these fish in the wild. Finally, 4438 they tested the ability of exposed fish to swim against a current and concluded that fish exposed for 6 hours to 4439 synergized permethrin and resmethrin had far less swimming stamina than those exposed to technical formulations. 4440 They did not find a difference in the effect on swimmi ng between the synergized and technical formulation of 4441 sumithrin. They concluded that the synergized formulations of these pesticides appeared to cause a faster response 4442 than the technical formulations and this response increased th e lethal and sublethal effect of the insecticides on the 4443
trout. 4444
‘Inert’ ingredients 4445 Some of the other ingredients of formulations of these pesticides are also toxic. For example, piperonyl butoxide is a 4446 common constituent of insecticide containing formulations (for example, it is a common synergist in formulations of 4447 synthetic pyrethroids) and is toxic to aquatic invertebrates and fish. EPA (2006) reported an LC 50 for rainbow trout 4448 of 1.9 mg/L. In longer term exposures piperonyl butoxide affects fish and aquatic invertebrates at concentrations as 4449 low as 0.11 mg/L. Piperonyl butoxide is highly toxic to aquatic invertebrates with a reported EC 50 of 0.51 mg/L for 4450 Daphnia magna (EPA, 2006). 4451
As another example, methoxychlor is a co-constituent in formulations with malathion. Formulated products are 4452 more toxic than methoxychlor alone. It is also an organo-chlorine insecticide that is toxic to fish and aquatic 4453 invertebrates. Johnson and Finley (1980) reported LC 50 s less than 20 μg/L and one 96-hour LC 50 of 1.7 μg/L was 4454 reported for Atlantic salmon (Howard, 1991). 4455
Consequences of Exposure to Degradates 4456 As we discussed in the preceding subs ection, over time, pesticides are tr ansformed into other compounds by 4457 chemical, photochemical and biologi cally-mediated reactions; these othe r compounds are generally called 4458 “degradates” or “metabolites” (Boxall et al. , 2004; Gilliom et al. , 2006). Degradates, like their parent compounds, 4459 have the potential to adversely affect water quality, depend ing on their toxicity. Sinclair and Boxall (2003) reported 4460 that 41% of degradates were less toxic than their parent compounds, 39% had to xicities similar to their parents, 20% 4461 were more than 3 times more toxic than their parent compound and 9% were more than 10 times more toxic. 4462
For example, the major metabolite of carbaryl is 1-napht hol, which is formed by abiotic and microbially mediated 4463 processes and has been reported to represent up to 67% of the applied carbaryl in degradation studies. This 4464 degradate is more toxic than carbaryl itself. For example, Shea and Berry (1983) compared 10-day acute lethalities 4465 between carbaryl and 1-naphthol in goldfish ( Carassius auratus ) and killifish ( Fundulus heteroclitus ). They 4466 concluded that 1-naphtol was about five times more toxic than carbaryl in goldfish and twice as toxic as carbaryl in 4467 killifish. In addition, fish exposed to 1-naphthol showed neurological trauma including erratic swimming behaviors 4468 and increased opercula beats following 4-hour exposures at 5 mg/L and 24-hour exposures at 10 mg/L. They did not 4469 observe any of these symptoms in the carbaryl treatments. 4470
Consequences of Exposure to Mixtures 4471 As we also discussed in the preceding subsection, most a quatic species are likely to be exposed to mixtures of 4472128 pesticides, their degradates and other chemicals that exis t in the environment. Once in a mixture, co-occurring 4473 pesticides (including their degradates) can either act independently of one anot her (called an “independent” effect); 4474 they can have additive effects (for example, this might be expected, for example, for pesticides with a common 4475 mode of action and similar chemical stru cture); they can have synergistic effects in which their combined toxicity is 4476 greater than their additive toxicity; or they can have combined toxicity that is less than their additive toxicity (called 4477 an “antagonistic” effect). 4478
As an example of synergistic effects, (Relyea and M ills, 2001; 2004) exposed amphibians to a combination of 4479 pesticides and chemical cues mimicking natural predators and found that these combinations induced stress and, as a 4480 result, increased the mortality rates of the amphibians (see also Sih et al. , 2004). For some species, exposing the 4481 amphibians to combinations of pesticides and natural st ressors produced mortality rates that were substantially 4482 greater than mortality rates associated with each individual stressor. For example, carbaryl was up to 46 times more 4483 lethal to gray treefrog tadpoles ( Hyla versicolor ) when they were exposed to a combination of this pesticide and 4484 chemical cues emitted by aquatic predators (Relyea and Mills, 2001). When they were exposed to malathion at 4485 concentrations of 5 mg/L, 42% of the gray treefrog tadpoles died when predator cues were absent, but 82% died 4486 when predator cues were present (Rhatigan, 2004). 4487
Mixtures containing malathion resulted in additive effect s (when mixed with DDT, toxaphene), synergistic effects 4488 (when mixed with Baytex, parathion, carbaryl, perthane) and antagonistic effects (when mixed with copper sulfate) 4489 (Macek, 1975). Mixtures of diazinon and parathion killed more bluegill sunfish than predicted. Tierney et al. (2008), 4490 exposed juvenile steelhead to environmentally realistic concentrations of a mixture that included chlorpyrifos, 4491 diazinon and malathion (the realistic mixture contained chlorpyrifos at 13.4 ng/L; diazinon at 157 ng/L; and 4492 malathion at 46.3 ng/L, respectively). Exposures to this mixture for 96 hours compromised the ability of juvenile 4493 steelhead to detect changes in odorant concentrations, which would impair behavior that rely on smell such as 4494 homing and migration. 4495
Mixtures that paired two organophosphates produced a greater degree of synergism than mixtures containing one or 4496 two carbamates, particularly mixtures containing malathion coupled with either diazinon or chlorpyrifos Table 9. At 4497 the highest exposure treatment, 1.0 EC 50 (malathion at 37.3 μg/L, chlorpyrifos at 2 μg/L, diazinon at 72.5 μg/L), 4498 binary combinations produced synergistic toxicity. Coho salmon exposed to combinations of diazinon and malathion 4499 as well as chlorpyrifos and malathion all died (Laetz et al. , 2009). Fish exposed to these organophosphate mixtures 4500 showed toxic signs of inhibition of AChE, including loss of equilibrium, rapid gilling, altered startle response and 4501 increased mucus production before dying. Organophosphate combinations were also synergistic at the lowest 4502 concentrations tested. Diazinon and chlorpyrif os were synergistic when combined at 7.3  g/L and 0.1  g/L, 4503 respectively. The pairing of diazinon (7.3  g/L) with malathion (3.7  g/L) produced severe (> 90%) AChE 4504 inhibition including classical signs of poisoning as well as death with some combinations. For binary combinations 4505 of malathion, diazinon and chlorpyrifos synergism was likely to occur at exposure concentrations that were below 4506 the lowest used by Laetz et al., (2009) i.e., chlorpyrifos concentrations lower than 0.1 μg/L; diazinon concentrations 4507 lower than 7.3 μg/L; malathion concentrations lower than 3.7 μg/L. 4508
Table 9. Mixture concentrations resulting in 100% mortality of juvenile coho following 96h exposures (after NMFS 2008a) Mixture Concentration, μg/L

diazinon + malathion 72.5 diazinon, 37.3 malathion 29.0 diazinon, 14.9 malathion
chlorpyrifos + malathion chlorpyrifos, 37.3 malathion129 In our 2008 biological opinion on the EPA’s registration of pesticides containing chlorpyrifos, diazinon and 4509 malathion, NMFS concluded that anadromous salmonids were likely to die following short term exposure (less than 4510 96 hours) to these three insecticides. Concentrations of ch lorpyrifos, diazinon and malathion can occur at levels well 4511 over 100μg/l and upwards of 1,000 μg/l based on measured environmental concentrations and exposure models. We 4512 concluded that the youngest, swimming salmonids appeared to be the most likely to die from short-term, acute 4513 exposures, although adult salmon were also susceptible at higher concentrations. We di d not expect acute exposures 4514 to these pesticides to kill eggs. 4515

Trophic Consequences of the Proposed PGP on Listed Cetaceans 4516 Salmon are a significant contributor to the overall ecological food web throughout their range. Two significant 4517 indirect effects of the proposed action to Chinook, coho, sockeye and chum salmon and st eelhead could result in the 4518 further loss of prey species for southern resident killer wh ales and Cook Inlet beluga whales. Such reductions would 4519 also likely result in the loss of nutrient transport to fr eshwater systems that are important to Pacific salmonids 4520 themselves. Bilby et al., (1996) demonstrate that juvenile and older age classes of salmon grow more rapidly with 4521 the appearance of spawners because th ese younger fish will feed on eggs an d spawner carcasses. Salmon carcasses 4522 in rivers and streambanks are a significant source of f ood to a wide number of animals and affect the overall 4523 productivity of nutrient-poor systems (Bilby et al. , 1996; Cederholm et al. , 2000). The loss of these “marine derived 4524 nutrients” would reduce the survival of their own species, particularly in nutrient poor streams. Bilby et al., (1996) 4525 showed that up to 45% of the carbon in cutthroat trout and 40% of the carbon in young coho comes from the 4526 decaying carcasses of the previous generation of salmon. Incr eased body size is directly correlated to increases in 4527 over winter survival and marine survival. They suggest that reduced nutrient transport is one important indicator of 4528 ecosystem failure and is contributing to the observed reductions in abundance we have seen in many salmon 4529 populations, which could further diminish the success of re covery efforts. Given many salmon populations comprise 4530 the prey component of killer whale and be luga whale critical habitat, any additio nal reduction in prey attributable to 4531 the PGP could adversely modify their critical habitat. 4532
Southern resident killer whales feed primarily on salmon. Any reductions in salmon populations as a result of this 4533 action can be expected to have adverse effects on southe rn resident killer whales via reductions in the prey 4534 component of their designated critical habitat. Based on killer whale stomach conten ts from stranded whales and 4535 field observations of predation, Ford et al., (1998) determined that 95% of the diet of resident killer whales consists 4536 of fish, with roughly 66% being Chinook salmon. The authors suggested that killer whales might preferentially hunt 4537 Chinook salmon because these fish have large body sizes and a high fat co ntent. A reduction in Pacific salmon – 4538 Chinook salmon in particular– from effects from the proposed action is likely to have a dverse effects on the fitness 4539 of southern resident killer whales and their population viability. As noted earlier, a 50% reduction in killer whale 4540 calving has been correlated with year s of low Chinook salmon abundance (Wardet al. , 2009a). 4541
A reduction in the number of adult Chinook salmon in the Puget Sound would reduce the forage base for southern 4542 resident killer whales. Southern resident killer whales are not restricted to Puget Sound, but do spend a large portion 4543 of time in Puget Sound, the Strait of Juan de Fuca and Ha ro Strait. Prey losses could also be realized throughout 4544 their range, including Oregon and California. Such reductions in prey could impede recovery. 4545
Pacific salmon and eulachon (C alkins, 1989) are an important prey species for Cook Inlet beluga whales. Pacific 4546 salmon are an especially important prey item as these whales build their lipid body stores essential to their winter 4547 survival (Abookire and Piatt, 2005; Litzow et al. , 2006). As a result, Cook Inlet beluga whales could similarly 4548 experience a reduction in their most abundant summer and fall prey species (most of which are non-listed Chinook, 4549 coho, sockeye and chum species). These losses could reduce the forage base of Cook Inlet beluga whales and as a 4550130 result, could impede recovery. 4551

Critical Habitat of Southe rn Resident Killer Whales 4552 We evaluated the potential effects of EP A’s issuance of their PGP on critical habitat by first reviewing the essential 4553 features or primary constituent elements of critical habitat for listed designatio ns. Based on our analysis, the primary 4554 features that may be affected by pesticide pollutant discha rges authorized by the issuance of this permit are those 4555 designated as “prey species of sufficient quantity, quality and availability to support individual growth, reproduction 4556 and development, as well as overall population growth.” Ba sed on our analysis, EPA has not insured that the actions 4557 it authorizes will not reduce the availability of Pacific sa lmonid species to southern resident killer whales. As a 4558 result, these species may experience reductions in population. These losses could diminish the ability of critical 4559 habitat to provide for conservation of the southern resident killer whales. 4560
Proposed Critical Habitat of Cook Inlet Beluga Whales 4561 We evaluated the potential effects of EP A’s issuance of their PGP on critical habitat by first reviewing the essential 4562 features or primary constituent elements of critical habitat for the proposed designation for Cook Inlet beluga 4563 whales. Based on our analysis, the primary features that ma y be affected by pesticide pollutant discharges authorized 4564 by the issuance of this permit are those designated as “prey species of sufficient quantity, quality and availability to 4565 support individual growth, reproduction and development, as well as overall population growth.” Based on our 4566 analysis, EPA has not insured that the actions it author izes will not reduce the availability of pacific salmonid 4567 species to Cook Inlet beluga whales. As a result, thes e species may experience reductions in population. These 4568 losses could diminish the ability of critical habitat to provide for conservation of Cook Inlet beluga whales. 4569
Components of the Proposed PGP Designed to Minimize or Prevent Exposure 4570
The EPA proposes several control measures to minimize any environmental effects resulting from these activities 4571 authorized by the permit. These include the existing statutory requirements of the CWA and FIFRA and the 4572 additional controls to be included specifically in the proposed permit. Given the large number of pesticide 4573 discharges that EPA intends to authorize, we determine wh ether these control measures are sufficient such that EPA 4574 can insure that these activities are not likely to result in je opardy to the continued existence of any listed species or 4575 designated critical habitat under NMFS’ jurisdiction. 4576
To accomplish this, we examine existing risk assessments for pesticides produced by EPA and NMFS and contrast 4577 the approach used to register pesticides under FIFRA and with that used to derive water quality criteria under the 4578 CWA. We then examine the effectiveness of the NPDES program that will administer the PGP. We analyze the 4579 performance of similar control measures in previous general permits that the EPA has issued and consider the 4580 performance of those controls as an indicator of how we ll the controls of the proposed PGP are likely to work. 4581
Finally, we analyze the general conditions specific to the PGP that are designed to mitigate the exposures of 4582 pesticides to ESA listed species or designated critical habitat. We determine whether these controls are sufficient to 4583 insure that the actions authorized by the permit are not likely to expose en dangered or threatened species, or 4584 designated critical habitat to the e ffects of the actions it authorizes. 4585
The control measures intended to minimize any direct or indirect environmental effects resulting from activities 4586 authorized by the permit are described below. 4587

Clean Water Act 4588 The stated objective of the CWA is to “...restore and maintain the chemical, physical and biological integrity of the 4589131 Nation’s waters.” The Act further states: “...it is the national policy that the discharge of toxic pollutants in toxic 4590 amounts be prohibited.” Identification of toxic pollutants in toxic amounts is provided for by §304(a)(1) of the CWA 4591 which requires that EPA develop Nationa l Water Quality Criteria (WQC) that accurately reflect the latest scientific 4592 knowledge about the effects of priority chemical pollutants on aquatic life. These criteria represent numeric limits on 4593 the amounts of specific pollutants that can be present in waters of the United States without causing “harm” 17 to 4594 aquatic life. The WQC were developed for the 120 prior ity pollutants listed in section 307 of the CWA and an 4595 additional 47 non-priority pollutants. These WQC are app lied through the basic framework of programs, such as 4596 NPDES, established by the CWA to control sources of pollutants that may impair or threaten water quality. The 4597 recommended WQC are intended to be protective of the majority of aquatic communities in the U.S. Individual 4598 States may adopt these criteria directlyor they may adjust them, with EPA’s approval, to suit State needs or 4599 designated uses for speci fic bodies of water. 4600

The EPA’s Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic 4601 Organisms and Their Uses (National Guidelines 18 ) (Stephenet al. , 1985) describe an objective way of deriving 4602 national criteria intended to provide an appropriate level of protection for aquatic organisms. Aquatic life criteria are 4603 based on the National Guidelines and consist of two metrics: 1) The Criterion Maximum Concentration (CMC) 4604 intended to protect against severe acut e effects, and; 2) The Criterion Con tinuous Concentration (CCC) intended to 4605 protect against longer-term effects on survival, growth and reproduction. The acute criterion limits peak exposures 4606 by requiring that 1-hour averages of exposure concentrations not exceed th e CMC more often than once in three 4607 years on average. The chronic criterion limits more prol onged exposures by requiring that 4-day averages of 4608 exposure concentrations not exceed the CCC more often than once in thr ee years on average. The CMC and CCC 4609 are calculated using endpoints derived from standard toxicity tests in which organisms are exposed to a range of 4610 concentrations of a toxicant. These te sts use standard surrogate species to represent large groups of taxa. For 4611 example, rainbow trout ( Oncorhynchus mykiss ) are considered acceptable su rrogates for coldwater fish 19 . Organism 4612 responses at each concentration are recorded. 4613
The results of the exposures are then analyzed to produce standardized endpoint values described in the following 4614 paragraphs. The acute criterion is based on available ac ute endpoint values: median lethal concentrations (LC 50 20 ) or 4615 median effect concentrations (EC 50 21 ) for severe acute effects such as immo bilization from acute toxicity tests (48- 4616 to 96-hours long) meeting certain data quality requir ements. To compute an acute criterion, EPA’s National 4617 Guidelines require that acceptable acute values be available fo r at least eight families to address a range of 4618 taxonomic diversity. These minimum data requirements include three vertebrates (a salmonid, another bony fish and 4619 another vertebrate) and five in vertebrates (a planktonic cr ustacean, a benthic crustacean, an insect, a species from a 4620

17 For the purposes of the Clean Water Act, EPA defines the term “harm “to include increased mortality or reductions in growth or reproduction as well as the accumulation of harmful levels of toxic chemicals in the tissues of aquatic organisms that may adversely affect consumers of such organi sms. This usage should not be confused w ith how NMFS has defined “harm” for the purposes of the ESA.
18 http://water.epa.gov/sc itech/swguidance/waterquality/standard s/criteria/aqlife/upload/85guidelines.pdf
19 Dwyer, F. James, Linda C. Sappington, Denny R. Buckler an d Susan B. Jones. 1995. Use of Surrogate Species in Assessing Contaminant Risk to Endangered and Threatened Fishes . EPA/600/R-96/029. U.S. Envi ronmental Protection Agency, Environmental Research Laboratory, Gulf Breeze, FL. 78 p. (EPA/600/X-92/139, Environmental Research Laboratory, Gulf Breeze, FL)
20 LC 50 = concentration at which 50 % of exposed organisms die.
21 EC 50 = concentration at which 50% of exposed organisms are affected.132 phylum other than Chordata or Arthropoda and a species from another order of insect or another phylum not already 4621 represented. 4622
For each genus, the EPA calculates a Genus Mean Acute Valu e (GMAV) by first taking the geometric mean of the 4623 available acute values within each speci es (Species Mean Acute Value, [SM AV]) and then the geometric mean of 4624 the SMAVs within the genus. The GMAVs are then ranked and a regression analysis is performed on the four most 4625 sensitive GMAVs resulting in an estimate of the concentration of the pollutant corresponding to a cumulative 4626 probability of 0.05 (the 5 th percentile of the species sensitivity distribution). This is the Final Acute Value (FAV). 4627 When appropriate, the EPA may lower the FAV to equal the SMAV of an important, sensitive species. The FAV is 4628 then divided by two to derive the acute Criterion Maximum Concentration value (CMC) that is expected to fall 4629 below where any acute adverse effects to organisms are observed. 4630
Chronic tests for invertebrate species ar e required to include the entire life-cy cle, but for fish species partial life4631 cycle and/or early life-stage tests may be accepted. Sufficient data for chronic toxicity are rarely available for 4632 deriving criteria as described for acute criterion above. When such data are available, the chronic criterion (CCC) is 4633 calculated in the same manner as the FAV. If chronic values are available for at least one fish, one invertebrate and 4634 one acutely sensitive species, then the chronic criterion may be estimated by dividing the FAV by a Final Acute to 4635 Chronic Ratio based on the available paired acute and chronic values. A chronic criterion may not be calculated if 4636 fewer chronic values are available. Altern atively, the chronic criterion may be ba sed on plant toxicity data if aquatic 4637 plants are more sensitive than aquatic animals. 4638
National Pollution Discharge E limination System (NPDES) 4639 Among the programs established by the CWA to control sources of pollutants, Section 402 of the CWA authorizes 4640 the EPA to issue permits for the discharge of pollutants under NPDES. Permits establish effluent limitations that are 4641 designed to prevent the discharge of to xic pollutants in toxic amount s such that pollutant leve ls in receiving water do 4642 not violate WQC or other permit-specific standards. An NPDES permit is required for entities that discharge 4643 pollutants from a point source on, over or near waters of the United States. An individual permit is specifically 4644 tailored to an individual discharger, while a general perm it covers multiple dischargers within a specific category. 4645 According to the NPDES regulations (40 CFR l22.28), general permits like the PGP may be written to cover 4646 categories of point source discharges that have common elements. General permits may only be issued to 4647 dischargers within a specific geographical area. This allows EPA to cover a large group of individual without 4648 putting forth the resources necessary to review applica tions and issue permits on a case-by-case basis. When 4649 developing and issuing general NPDES permits, the EPA generally collects data to demonstrate that a category of 4650 dischargers has enough similar attributes to warrant a general permit, such as: 4651

1. The number of dischargers or facilities to be authorized. 4652

2. Any similarities in production processes or activities among dischargers. 4653

3. Any similarities in the pollutants to be discharged among dischargers. 4654
The EPA then develops the draft general permit and fact sh eet and makes it available for public comment. After the 4655 public comment period, EPA addresses the comments and makes any necessary changes before the final general 4656 permit is issued. After issuance of the final general permit, entities that wish to be authorized under the general 4657 permit may submit an NOI to the EPA. The EPA then has the authority to request additional information. After 4658 review of the additional information, the applicant is notif ied either that their planned activities are authorized under 4659 the general permit or that they must apply for an individual permit. 4660133 The EPA is authorized to directly implement the NPDES pr ogram or to authorize States , Territories or Tribes to 4661 implement all or parts of the national program. Any State, Territory or Tribe may seek the authority to implement 4662 the NPDES program. The EPA no longer administers NPDES permits or administers any parts of this program once 4663 a State, Territory or Tribe is authorized to conduct th ese activities. The EPA does reserve the right to review each 4664 permit issued by the State, Territory or Tribe and may object to elements that conflict with Federal requirements. 4665 Once a permit is issued through a government agency, it is enforceable by the approved St ate, Territorial, Tribal and 4666 Federal agencies with authority to impl ement and enforce the permit. If the Stat e, Territory or Tribe does not have 4667 approval for administering the NPDES program, the EPA w ill operate the NPDES program. Once a permit is issued, 4668 it is enforceable by the approved Stat e, Territorial, Tribal and Federal agencies with authority to implement and 4669 enforce the permit. 4670
All NPDES permits consist of at least five general sections: 4671

1. A Cover Page: A statement with the name and location of the facility or discharger, a description of the 4672 permitted activity and the specific locatio ns where discharges are authorized. 4673

2. Effluent Limits: A statement describing the means for controlling discharges of pollutants based on 4674 applicable standards. 4675

3. Monitoring and Reporting Requirements: A statemen t that characterizes streams and receiving waters, 4676 evaluates pollution reducing efficiency and de termines compliance with permit conditions. 4677

4. Special Conditions: A statement describing measures to supplement effluent limit guidelines such as: Best 4678 Management Practices (BMPs), additional monitoring ac tivities, surveys and toxicity reduction evaluations 4679 (TREs). 4680

5. Standard Condition: A statement describing the legal, administrative and procedural requirements of permit 4681 conditions that apply to all NPDES permits. 4682
While monitoring and reporting requirements set forth in a permit are the primary component of compliance 4683 monitoring, the permitting authority may also conduct inspections to verify that permit requirements are being met. 4684 Specifically, inspections are conducted to: determine if permittee is in compliance with regulations, permit 4685 conditions and other program requirements, verify the accuracy of information submitted and verify the adequacy of 4686 sampling and monitoring. An inspection may also be conducted to obtain information that supports the permitting 4687 process, gather evidence to support en forcement actions, or to assess complia nce with orders or consent decrees. 4688
EPA oversight of permits, both those it administers and those administered by non-Fed eral authorized agencies, 4689 includes collection of compliance information. Depending on the State or territory of origin, this data is entered into 4690 one of two national databases: the Permit Compliance Sy stem (PCS) and the Integrated Compliance Information 4691 System for the National Pollutant Discharge Elimination System (ICIS-NPDES). These databases track information 4692 on the number of self-reported violations, the number of compliance evaluations performed, the number of non4693 compliances found, the number of formal and informal enforcement actions taken and the penalties assessed. 4694
Water Quality Standards 4695 Water Quality Standards are mandated by the Clean Water Act and define the goals for a water body by designating 4696 that waterbody’s uses, setting criteria to protect those designated uses and preventing degradation of water quality 4697 through antidegradation provisions. 4698134 Designated Uses 4699 Designated uses are statements of management objectives and expectations for water bodies under State or Tribal 4700 jurisdiction. As defined in 40 CFR 131 .3, designated uses are specified for each water body or water body segment 4701 regardless of whether or not they are being attained. Desi gnated uses include, but are not limited to: water supply 4702 (domestic, industrial and agricultural); stock watering; fish and shellfish uses (salmonid migration, rearing, 4703 spawning and harvesting; other fish migration, rearing, spawning and harvesting); wildlife habitat; ceremonial and 4704 religious water use; recreation (primary contact recreation; sport fishing; boating and aesthetic enjoyment); and 4705 commerce and navigation. 4706
The water quality standards regulation requires that States and Tribes specify which water uses are to be achieved 4707 and protected. These uses are determined by considering the value and suitability of water bodies based on their 4708 physical, chemical and biological characteristics as well as their geographical settings, aesthetic qualities and 4709 economic attributes. Each water body does not necessarily require a unique set of uses. Rather, water bodies sharing 4710 characteristics necessary to support a use can be grouped to gether. If water quality standards specify designated uses 4711 of a lower standard than those that are actually being attained , the State or Tribe is required to revise its standards to 4712 reflect these uses. 4713
Only California and Puerto Rico explicitly address threatened or endangered species as part of their designated uses. 4714 California’s designated uses include a broad statement that the waters must support the survival and maintenance of 4715 aquatic species that are protected, and Puerto Rico’s desi gnated uses note that endangere d and threatened species are 4716 included as part of the broader category of desirable species (Table 10). Other states have revised their designated 4717 uses to incorporate the specific needs of certain threaten ed or endangered species (e.g., Oregon and Washington 4718 adopted designated uses for the protection of Pacific salmon). Washington’s designated uses explicitly denote the 4719 following categories of aquatic life uses: char spawning and rearing; core summer salmonid habitat; salmonid 4720 spawning; rearing and migration; salmonid rearing and migration only and several others (WAC 173-201A-200). 4721 Washington’s designated uses should provide additiona l protection for Washington’s native char, bull trout and 4722 Dolly Varden and several species of Pacific salmon that are lis ted as threatened or endangered, as well as others that 4723 are not listed. 4724

Table 10. State Designated Uses that Explicitly Address Listed Species State Designated Use Description EPA Effective Date

CA Regions 1, 2, 3, 4, 5, 6, 7, 8, 9 Uses of water that support aquatic habi tats necessary, at least in part, for the survival and successful main tenance of plant or animal species established under State or Federal law as rare, threatened or endangered. 8/18/1994

PR Coastal waters and estuarine waters intended for use in primary and secondary contact recreation and for propagation and preservation of desirable species, including th reatened or endangered species. 6/26/2003

4725 Antidegradation 4726 The water quality standards regulation also requires that States and Tribes establish a three-tiered antidegradation 4727 program. The specific steps to be followed depend upon which tier or tiers apply. These tiers are listed below: 4728

 Tier 1: These requirements are app licable to all surface waters. They pr otect existing uses and water quality 4729 conditions necessary to support such uses. These uses can be established if they can be demonstrated to have 4730 actually occurred since November 28, 1975, or if water quality can be demonstrated to be suitable for such uses. 4731135 If an existing use is established, it must be protected ev en if it is not listed in the water quality standards as a 4732 designated use. 4733

 Tier 2: These requirements maintain and protect "high quality" water bodies where existing conditions are 4734 better than those necessary to support CWA § 101(a)(2 ) "fishable/swimmable" uses. Although the water quality 4735 in these water bodies can be lowered, States and Trib es must identify procedures that must be followed and 4736 questions that must be answered before a reduction in water quality can be allowed. The water quality of these 4737 water bodies cannot be lowered to a level that would interfere with existing or designated uses. 4738

 Tier 3: These requirements maintain and protect water quality in outstanding national resource waters 4739 (ONRWs) and generally include the highest quality waters of the United States ONRW classification also offers 4740 special protection for waters of excep tional ecological significance. Except for certain temporary changes, water 4741 quality cannot be lowered in these waters. States and Tribes decide which water bodies qualify as ONRWs. 4742
In a January 27, 2005, memorandum to its Regional Offices, EPA concluded that ESA Section 7 consultation does 4743 not apply to EPA’s approvals of State antidegradation policies because EPA’s approval action does not meet the 4744 “Applicability” standard defined in the regulations implementing Section 7 of the ESA (EPA 2005; 50 CFR 402.03). 4745 Section 402.03 of the consultation regulations (50 CFR Part 402) states that Sectio n 7 and the requirements of 50 4746 CFR parts 402 apply to all actions in which there is discretionary Federal involvement or control. 4747
EPA concluded that they are compelled to approve State antidegradation policies if State submissions me et al l 4748 applicable requirements of the Water Quality Standards Regulation (40 CFR part 131) and lack discretion to 4749 implement measures that would benefit listed species. As a result, EPA determined that consultation is not 4750 warranted on antidegradation policies becau se the Agency does not possess the re gulatory authority to require more 4751 than the minimum required elements of the regulations. For these reasons, EPA’s approvals of State antidegradation 4752 policies are not part of this consultation. 4753

FIFRA 4754 The EPA regulates pesticides under FIFRA, as amended by the FQPA of 1996 and the Pesticide Registration 4755 Improvement Act of 2003. Under FIFRA, the EPA is responsible for evaluating and registering all pesticide uses in 4756 the U.S. To do so, the EPA evaluates scientific data provided by the applicants and other sources of evidence 4757 including data from the open literature (as presented in their Ecotoxicology [ECOTOX] database 22 ). To determine 4758 whether those data demonstrate that the registration of these pesticide uses will not cause “unreasonable adverse 4759 effects on the environment,” which is defined “any unreasonable risk to man or the environment, taking into account 4760 the economic, social, and environmental costs and benefits of the use of any pesticide...”). This is important because 4761 under FIFRA, the EPA must weigh the economic and soci al costs of registering pe sticide uses against the 4762 environmental costs and benefits they may pose. Under Section 7 of the ESA, the Services do not include such 4763 considerations in jeopardy to species or destruction or adverse modification of designated critical habitat 4764 determinations. 4765
Under FIFRA, the EPA does not consider the toxicity or potential environmental impacts of specific pesticides in 4766 relation to other pesticides during the registration process. Instead, the EPA evaluates the potential direct and 4767 indirect environmental effects of these pesticide uses on a case-by-case basis and does not recommend that any 4768 pesticide be used as opposed to any other pesticide. 4769

22 The ECOTOX database may be found onl ine at: http://cfpub.epa.gov/ecotox/.136 The EPA works with stakeholders to develop voluntary measures or regulatory controls to reduce risks pesticides 4770 may pose to human health and to the environment. For aq uatic systems, the EPA relies on computer models to 4771 calculate Estimated Environmental Concentrations (EECs) in the environment. These mode ls simulate the expected 4772 behavior of these pesticides in a: “s tandard pond” receiving direct applicati on or spray drift, runoff and transport 4773 through soil pore water from treated ar eas. A “standard pond” is modeled as having constant volume and without 4774 flow. These models incorporate variables such as chemical properties of the pesticide, average rainfall in the area, 4775 transpiration of water from vegetation, hydrology and chemical transport. These models assume 5% spray drift from 4776 aerial pesticide applications and 1% spray drift for appli cations from the ground. Where water-monitoring data are 4777 available, EPA will take into consideration whether measured pesticide concentrations ar e higher than estimated by 4778 computer models. 4779
The EPA risk assessment process compares EECs to species toxicity endpoints derived from standard toxicity tests 23 4780 where standard test species are exposed to concentratio n gradients of pesticide activ e ingredients, formulated 4781 pesticide products or degradates. Organism responses at each concentration are recorded and analyzed to produce 4782 standardized endpoint values. The standard test species used are intended to represent large groups of taxa. The EPA 4783 may use data on other species from other sources to inform their risk assessments if it deems that the studies that 4784 produced these data were at least as stringent as the st andard tests. The acute and chronic toxicity endpoints for 4785 animals and endpoints for terrestrial listed and non-listed pl ants relevant to our Opinio n are summarized in Table 4786 11.The EPA then uses a Risk Quotient (RQ) method to estimate the potential direct effects of pesticides to non4787 target organisms. To calculate RQs, the EPA divides the EECs by the endpoint values described above 4788 (RQ=EEC/Endpoint) 24 . The measure of exposure for assessing direct effects to aquatic animals is the modeled peak 4789 EEC for acute effects compared to the lowest tested EC 50 or LC 50 for representative freshwat er and estuarine/marine 4790 fish and invertebrates. 4791

Table 11. EPA’s FIFRA Standard Test Endpoints.

Aquatic Animals

Acute Toxicity assessment Lowest tested EC 50 or LC 50 for freshwater fish and invertebrates and estuarine/marine fish and invert ebrates acute toxicity tests.
Chronic Toxicity assessment Lowest NOEC 1 for freshwater fish and invertebrates and estuarine/marine fish and invertebrates early life-st age or full life-cycle tests.
Plants

Terrestrial Listed Lowest EC 25 2 values from both seedling emergence and vegetative vigor for both monocots and dicots. Aquatic (Listed and Non-listed) Lowest EC 50 for both vascular and algae.
Terrestrial Non-listed Lowest EC 05 3 or NOEC for both seedling emergence and vegetative vigor for both monocots and dicots

. 1 No Observed Effect Concentration: The hi ghest concentration of a pest icide that resulted in no observed effect to any tested 4792 organism. For fish, this value is typically obtained from a sta ndard life cycle test where “fish should be cultured in the pres ence 4793 of the test substance from one stage of the life cycle to at le ast the same stage of the next generation (e.g. egg to egg) 4794 http://www.epa.gov/ocspp/pubs/frs/public ations/OPPTS_Harmonized/850_Ecologica l_Effects_Test_Guidelines/Drafts/850- 4795

23 See EPA’s Office of Chemical Safety and Pollution Prev ention (OCSPP) test guidelines for more information: http://www.epa.gov/ocspp/pubs/ frs/home/draftguidelines.htm
24 See: http://www.epa.gov/espp/consultation/ecorisk-overview.pdf137 1500.pdf . If no such data are available, the EPA estimates this va lue using and Acute to Chronic Ratio (ACR) based on data for 4796 similar species. 4797
2 Effective Concentration 25: The concentration of pesticide that resulted in 25% of individuals tested exhibiting an effect. 4798
3 Effective Concentration 5: The concentration of pesticide that resulted in 5% of individuals tested exhibiting an effect. 4799 A rolling mean modeled EEC is used to estimate chro nic effects and compared to the lowest NOEC for 4800 representative freshwater and estuarine/marine fish and i nvertebrate early life-stage or full life-cycle tests. The 4801 modeled EEC for 60 days after a pesticide application, or series of applications, is used for assessing chronic 4802 exposure for fish. The modeled EEC for 21 days after pesticide application is used for assessing chronic exposure 4803 for aquatic invertebrates. 4804
These RQs are then compared to the Levels of Concern (LOC s) that EPA has established to estimate potential risk to 4805 non-target organisms for chronic and acut e exposures. These LOCs are as follows: 4806

 Non-listed Species Direct Acute Risk: RQ > 0.5 for aqua tic animals (greater than 50% of the laboratory test 4807 organisms exposed to the peak EECs would be expected to exhibit an effect greater than or equal to that 4808 described by the standard acute toxicity endpoint.) 4809

 Non-listed Species Direct Acute for Restricted Use 25 Pesticides: RQ > 0.1 for aquatic animals (greater than 4810 10% of the laboratory test organisms exposed to the peak EECs would be expected to exhibit an effect 4811 greater than or equal to that described by the standard acute endpoint.) 4812

 ESA Listed Species Direct Acute: RQ > 0.05 for aquatic animals (greater than 5% of the laboratory test 4813 organisms exposed to the peak EECs would be expected to exhibit an effect greater than or equal to that 4814 described by the standard acute endpoint.) 4815

 Direct Chronic Risk: RQ > 1 for both ESA listed and non-listed animals (The long term EECs would be 4816 greater than the NOEC for 100% of the laboratory test organisms) 4817

 Non-listed Species Aquatic and Terrestrial Plant Direct Effects: RQ >1 (100% of the laboratory test 4818 organisms exposed to the EECs would be expected to exhibit an effect greater than or equal to that 4819 described by the standard endpoint for non-listed species.) 4820

 ESA Listed Species Aquatic and Terrestrial Plant Dir ect Effects: RQ>1 (100% of the laboratory test 4821 organisms exposed to the EECs would be expected to exhibit an effect greater than or equal to that 4822 described by the standard endpoint for listed plant species.) 4823 The EPA has set its ESA listed animal species acute LOCs an order of magnitude lower than those for non-listed 4824 species but does not make a distinction between the chronic effect risk LOCs between listed and non-listed animal 4825 species. The LOCs for listed plants are the same as for non- listed species, but the RQs for listed terrestrial plants are 4826 calculated using lower toxicity endpoints than non-listed pl ants. The EPA gives no such consideration to ESA listed 4827 aquatic plant species. 4828
When registering pesticides, the EPA generally considers that any species for which th e RQs do not exceed their 4829 designated LOC to not be at risk from the pesticide us e being evaluated. If the RQs for a taxonomic group in 4830 question exceed LOCs, the EPA may conduct additional analyses and then must weigh the economic and social 4831 costs of registering that pesticide use against the environmental costs and benefits such a pesticide use may pose. 4832

25 The "Restricted Use" classification restricts a product, or its uses, to use by a certificated pesticide applicator or under the direct supervision of a certified applicator.138 It is important to note that for acute aquatic animal effect estimations, the EPA uses an endpoint based on the 4833 amount of the pesticide that is observed to kill test sp ecies. This is the case for non-listed species as well as 4834 threatened or endangered species. Based on this methodology, EECs for pesticide pollutants in the water could be 4835 expected to kill or adversely affect threatened or en dangered species under NMFS’ jurisdiction without exceeding 4836 the EPA’s LOC. 4837
In order to analyze indirect effect s to ESA listed organisms, the EPA us es the direct effects LOCs for each 4838 taxonomic group upon which a listed species may rely for su rvival. If the RQs for thes e taxonomic groups are below 4839 the direct effect listed species LOCs, the EPA considers any effects to these resources and indirect effects that these 4840 exposures may cause to ESA listed species to be of no c oncern. These determinations are designed to capture any 4841 effects to designated critical habitat. 4842
Additional Requirements of the PGP 4843 The EPA’s conclusion, as presented in its BE, is that the additional requirements provided in the proposed PGP will 4844 likely reduce the potential adverse effects to ESA listed spec ies from those that would be expected from current 4845 pesticide applications approved and registered under the FIFRA. These additional requirements are presented in the 4846 Description of the Proposed Action section of this Opinion and are summarized below. 4847
Technology Based Effluent Limitations 4848 Under this requirement of the permit, operators would be required to implement control measures to minimize the 4849 discharge of pesticide pollutants to waters of the United States through the use of technology based effluent 4850 limitations to the extent technologically available and economically achievable and practicable. All operators must 4851 review or modify pest management measures if an event occurs such as an unauthorized discharge, water quality 4852 standards are not met, operators failed to use the amount of pesticide and frequency of pesticide application 4853 necessary to control the target pest, pesticide applicatio n equipment is not kept in proper operating condition, 4854 weather conditions are not considered, an adverse incident o ccurs or an inspection by EP A, State, Tribal or local 4855 entities reveal modifications are necessary to meet applicab le water quality standards. An operator must make such 4856 changes before or –if not practicable– as soon as possible before the next discharge. 4857
Water Quality Standards 4858 All operators would be required to control discharges to meet applicable numeric and narrative State, Territory or 4859 Tribal water quality standards. If at any time the permitte e becomes aware, or EPA determines, that the discharge 4860 causes or contributes to an excursion of applicable water quality standards, the permittee must take corrective action. 4861
Pesticide Discharge Management Plan 4862 Decision makers that exceed NOI thresholds (except for thos e made in response to a declared pest emergency) and 4863 are “large entities” must prepare a PDMP to document the selection and implementation of control measures used to 4864 comply with the effluent limitations described earlier. The pe rmit defines “large entities” as any: 1) public entity that 4865 serves a population greater than 10,000 or; 2) a private enterprise that ex ceeds the Small Business Administration 4866 size standard. Pesticide discharge management team information, problem identification, pest management options 4867 evaluation, spill and adverse incident response procedures are required to be included in the PDMP by the permit. 4868
Oversight and Corrective Actions 4869 All operators would be required by the permit to allow EP A or an authorized representative to enter the premises 4870 where a regulated facility or activity is located or conducted; have access to any records that must be kept under the 4871 conditions of the permit; inspect any facilities, equipment pr actices, or operations regula ted or required under the 4872 permit, and; sample or monitor for the purposes of assuring permit compliance. 4873139 If an operator becomes aware that: an adverse incident o ccurs; an unauthorized discharge occurs; control measures 4874 are not sufficient to meet applicable water quality standards; the operator failed to use the optimum frequency of 4875 pesticide applications necessary to control the target pest; the operator failed to perform regular maintenance 4876 activities to reduce unintended discharges; the operator failed to maintain pesticide application equipment, or; if an 4877 inspection or evaluation by an EPA official, or local, State, Territorial or Tribal entity determines that modifications 4878 to the control measures are necessary to meet the non-numeric effluent limits, that operator must review and revise 4879 the evaluation and selection of their control measures as nece ssary to insure that the situation is eliminated and will 4880 not be repeated in the future. 4881
If an operator determines that changes to its control meas ures are necessary, such changes must be made before the 4882 next pesticide application if practicable, or if not, as soon as possible thereafter. 4883
The occurrence of a situations requiring revision of cont rol measures (as defined above) may constitute a violation 4884 of the permit. The EPA will consider the appropriaten ess and promptness of corrective action in determining 4885 enforcement responses to permit viola tions and, along with the Courts, may impose additional requirements and 4886 schedules of compliance. 4887
Limitations on Coverage 4888 The proposed PGP would not authorize the discharge of pe sticide to impaired Water of the U.S. that is such 4889 impaired by the specific pesticide, or degradates of the pesticide, to be permitted to be discharged. In this case, the 4890 operator would have to obtain coverage under an individual permit for such a discharge or chose some other means 4891 of pest management. 4892
If a proposed discharge is already authorized under another permit, the operator is ineligible for coverage under the 4893 PGP permit. If the intended discharge was included in a permit that has been or is in the process of being denied, 4894 terminated or revoked by EPA in the past five years, the proposed discharge is ineligible for coverage under this 4895 permit. 4896
IPM/Pest Management Measures 4897 Under the PGP, operators are required to use Pest Management Measures not currently required under FIFRA. The 4898 EPA anticipates that these requ irements will lead to a decrea se in the amount of pesticides used and an increase in 4899 the use of non-chemical pest control methods. For each use pattern, the perm it requires that each decision maker 4900 evaluate the use of non-chemical methods and to consider impacts to non-target organisms. 4901

NOI and Determinations of Potentia l Effects to ESA listed Resources 4902 Under the PGP, all decision makers expecting to discharge pesticides on, over or near waters of the United States. 4903 on Federal lands or into designated Tier 3 waters are required to submit an NOI containing information on whether 4904 these discharges will overlap with the distributions of enda ngered or threatened species, or designated critical habitat 4905 (listed resource effect determinations). All State or Fe deral operators and mosquito, irrigation and aquatic weed 4906 control or other pest control districts must submit NOIs. All other decision makers, including decision makers 4907 expecting to discharge on Indian lands, are required to submit an NOI to obtain coverage for discharges resulting 4908 from the application of pesticides if it has reason to believe it will exceed one or more of the treatment area 4909 thresholds. Decision makers who do not expect to exceed one or more of the treatment area thresholds are not 4910 required to submit an NOI; those discharges would au tomatically be authorized under the proposed permit. 4911
To determine the appropriate thresholds that would trig ger the NOI requirements, the EPA discussed these proposed 4912 thresholds with the U.S. Department of Agriculture and industry representatives. The EPA then developed annual 4913140 treatment area thresholds based on these discussions as well as from comments received during the public comment 4914 process. These thresholds are meant to differentiate between applications to small and larger areas. EPA’s 4915 assumption was that the larger areas “are believed to have a greater potential for impact on Waters of the US.” 4916
Earlier in the consultation process, the EPA 26 stated that they were: 4917 “assuming that 100% of categories 1 [mosquito and other flying insect pests control] and 3 [aquatic 4918 nuisance animal control] will submit NOIs; a sign ificantly lesser percentage will submit NOIs for 4919 category 2 [aquatic nuisan ce weed and algae control] (<10%); and it seems as though about 10% of 4920 the category 4 [forest canopy pest control] activities will be required to submit an NOI...” 4921 However, on December 16, 2010, EPA notified NMFS that it was raising the NOI thresholds for some of the use 4922 patterns. NOI threshold requirements for nuisance aquatic plant and animal treatments increased fourfold from 20 to 4923 80 square acres (the linear area threshol d remained unchanged at 20 miles). The EPA also raised the NOI thresholds 4924 for forest canopy applications and mosquito adulticide app lications an order of magnitude from 640 ac to 6,400 ac 4925 (ten square miles). 4926
Monitoring and Reporting 4927 Under the conditions of the PGP, all operators would be required to: monitor the amount of pesticide and frequency 4928 of pesticide application used to control the target pest; monitor pesticide application activities to insure pesticide 4929 application equipment is maintained in proper operating conditions; and monitor weather conditions in the treatment 4930 area to insure application is consistent with all applicab le Federal requirements. If a reportable spill occurs, the 4931 operator must contact the National Response Center immediately. The operator must document and retain 4932 information on the spill within 30 days. 4933
All operators must keep records of adverse incidents report s; a copy of corrective actio n determinations and a copy 4934 of any spill or other non-permitted discharges. Any decision maker that is not a “large entity” and is required to 4935 submit an NOI must also keep records of the NOI and an y correspondence w ith EPA about the NOI; documentation 4936 of equipment calibration, and; Information on each treatme nt area. These decision makers must also submit an 4937 annual report to EPA. 4938
The permit also requires visual monitoring assessments by all operators of the application area and notification to 4939 the permitting authority if adverse effect s are observed. The EPA also states in its BE that: “[Visual monitoring by 4940 permittees] ... should provide valuable information to EPA and the States about where adverse environmental 4941 effects are occurring. This knowledge will help EPA id entify where problems may remain and where improvements 4942 can be made in the next PGP.” 4943
Evaluation of Those Components of the Proposed PGP Designed to Minimize or Prevent Exposure 4944
EPA’s Ability to Estimate the Number and Locat ions of Discharges Authorized by the PGP 4945 To reliably estimate the probable individual or cumulative e ffects to ESA listed species or designated critical habitat, 4946 the EPA would need to know or reliably estimate the probab le number of discharges th at it would authorize under 4947 the permit. The EPA is proposing to rely on a small subset of the estimated 35,183 operators to file NOIs to obtain 4948 this information. In addition, the NOIs that EPA expects provide very little information prior to discharge. These 4949 NOIs would contain: 1) The name, address, type and contact information of the operator expected to discharge 4950

26 April 5, 2010 Email from EPA on affe cted operator estimated numbers.141 pollutants, and; 2) Pesticide use patterns and planned locations of these applications. These NOIs would only 4951 provide information on the planned locations of discharges to waters of the United States where listed species or 4952 designated critical habitat occurs, but not the locations or timings of actual discharges that occur. Nor would the 4953 discharger be required to identify which product or products would be used. Further, most routine dischargers would 4954 file only one NOI at the beginning of the five year peri od. The number of operators that the EPA estimates will be 4955 affected by the proposed general permit is listed in Table 12. 4956
If a decision maker is a Federal facility and intends to disc harge into designated Tier 3 waters or has reason to 4957 believe that it will exceed the annual treatment thresholds established by the EPA as described in the proposed 4958 general permit, that decision maker is required to submit a Notice of Intent (NOI) to obtain coverage. The NOIs are 4959 to contain a section where the decision maker is to self -certify whether pesticide application activities will overlap 4960 with the distribution of endangered or threatened species, or designated criti cal habitat and, if so, whether these 4961 applications have undergone ESA Section 7 consultations or received an ESA Section 10 permit for take of listed 4962 species or designated critical habitat. The permit would cover the decision ma ker 10 days after EPA posts a receipt 4963 of a complete and accurate NOI. Any decision maker that e xpects to exceed any area thresholds must submit an NOI 4964 by January 9, 2012. It is also important to note that because of this, discharges to waters of the United States made 4965 by that decision maker would immediately be authorized under the permit before any NOI is required. 4966
The EPA’s Office of Water; Office of Pesticides, Pollution and Toxic Substances; and Regional Offices, engaged in 4967 discussions with USDA and representatives from industry to determine the thresholds that would trigger NOI 4968 requirements for the remaining operators. The EPA then developed annual treatment area thresholds that 4969 differentiate between smaller applications and the larger ap plications that it believes to have a greater potential for 4970 adverse impacts to waters of the United States All Stat e or Federal operators and operators that are mosquito, 4971 irrigation and aquatic weed control or other pest control districts must submit NOIs. 4972

4973

4974

Table 12. EPA Estimated Number of Operators to be Affected by the PGP 1

Mosquito and Other Flying Insect Control Aquatic Weed and Algae

Control Aquatic Nuisance Animal Control Forest Canopy Pest Control TOTAL

Alaska* 2 325 15 18 385
Idaho* 23 16,489 12 48 16,572
Massachusetts* 9 2,041 15 214 2,279 New Hampshire* 44 627 8 85 764
New Mexico 13 10,411 21 26 10,471
Oklahoma 1 3,889 74 159 4,123
District of Columbia* 1 8 2 0 11
Territories* 1 314 38 4 357
Tribes* 17 93 25 34 169
Federal Facilities* 10 10 10 22 52
Total 121 34,232 220 610 35,183142 * Denotes areas where discharges may affect ESA listed spec ies or designated critical habi tat under NMFS' jurisdiction. 4975
The EPA originally estimated that roughly 100% of operat ors under the Mosquito and other Flying Insect Control 4976 and Aquatic Nuisance Animal Control would be required to file NOIs. Less than 10% of operators under the Aquatic 4977 Weed and Algae control and roughly 10% of the Forest Canopy Pest Control operators were originally estimated to 4978 be required to file NOIs. NMFS estimated corrected numb ers of non-Federal operators expected to be required to 4979 file NOIs. Based on the original information given by EPA, NMFS adjusted the expected number of operators who 4980 would file NOIs based on the changes in the most recent version of the perm it that raised the threshold numbers. 4981
The NOI threshold for mosquitoes and other flying insect pest control is 6,400 acres. The EPA did not provide us 4982 with estimates of the number of decision makers that would be required to submit NOIs containing endangered or 4983 threatened species or designated critical habitat effects determinations. Howeve r, all State or Federal operators and 4984 operators that are mosquito or other pest control districts must submit NOIs. 4985
We believe discharges of pesticides to waters of the United States from mosquitoes and other flying insect pest 4986 control will occur in areas where liste d species under NMFS' jurisdiction occur. This is of concern because in 4987 addition to direct toxicity, these pesticides are toxic to invertebrates that constitute the prey base of ESA listed 4988 species and make up the ecological communities on which these species depend for survival. We expect that these 4989 discharges are likely to expose ESA listed species under NMFS' jurisdiction, their prey and habitat to pesticides and 4990 that these exposures may cause adverse effects to those spec ies or to designated critical habitat. For those decision 4991 makers who fall under the newly raised threshold, there wi ll be no mechanism for EPA to know or reliably estimate 4992 the number and locations of discharges. 4993
The EPA originally estimated that less than 10% of op erators under the aquatic weed and algae control would 4994 exceed the area threshold required to submit NOIs. Howe ver, these estimates were ba sed on proposed treatment 4995 thresholds of 20 acres with a linear treatment threshold of 20 linear miles and the assumption that not all Federal, 4996 State and aquatic weed control or other pest control districts would be required to submit NOIs. The EPA since 4997 raised the NOI threshold for aquatic weed and algae contro l to 80 acres of treatment area. The current proposed 4998 permit now requires that all State or Federal operators an d operators that are aquatic weed control or other pest 4999 control districts must submit NOIs. The EPA also changed th e requirement that these estimates be cumulative on an 5000 annual basis, to being mere single application estimates, meaning that a decision maker could discharge pesticides 5001 into an unlimited amount of area as long as the FIFRA approved pesticide label was followed and no single 5002 application exceeds 80 square acres or 20 linear miles. 5003
For many decision makers under this category, EPA will have no mechanism for determining the number and 5004 location of discharges. This is of concern because aquatic plants contribute a large part to the overall health of 5005 aquatic ecosystems. In fact, without aquatic plants, there would be no aquatic ecosystems. 5006
In addition, the death of aquatic plans from herbicide e xposure can result in hypoxic conditions in these ecosystems 5007 that are not easily observed, but may have adverse cons equences to ESA listed species under NMFS’ jurisdiction 5008 and their designated critical habitat. As a result, we expect that the aquatic w eed and algae control actions authorized 5009 by the permit may expose endangered or threatened species, or designated critical habitat to pesticides and that these 5010 exposures may cause adverse effects to these resources. 5011
The EPA originally estimated that appr oximately 100% of operators under the aquatic nuisance animal control use 5012 pattern would exceed the area threshold required to submit NOIs. However, th ese estimates were based on treatment 5013 thresholds of 20 acres. The EPA since raised this NOI threshold to 80 acres. All Federal and State decision makers 5014143 would be required to submit NOIs under the proposed permit. While EPA did not provide us with adequate 5015 information to determine how many non-Federal or State operators would now be required to submit NOIs for this 5016 use pattern, this number would be fewer than originally estima ted. As a result, we believe discharges of pesticides to 5017 waters of the United States from aquatic nuisance animal control activities authorized by the permit will occur in 5018 areas where listed species under NMFS’ ju risdiction occur. This is especially concerning because many of the 5019 pesticides under this use category are lethal to fish, incl uding listed species. We expect that these discharges are 5020 likely to result in exposures of pesticides to endangered or threatened species or desi gnated critical habitat under 5021 NMFS’ jurisdiction and that these exposures may cause adve rse effects to those species or to designated critical 5022 habitat. For the decision makers who will not be require d to submit NOIs, there will be no mechanism to prevent 5023 these exposures from occurring because no identificatio n of these potential exposures will now be required. 5024
The EPA originally estimated that approximately 10% of op erators discharging under the forest canopy pest control 5025 use category would be required to submit NOIs. However this estimate was based on an earlier threshold of 640 5026 acres. The NOI threshold for forest canopy pest control activ ities was raised to 6,400 acres. As a result, we estimate 5027 that only roughly 1% of the forest canopy pest control applicators would now be required to submit NOIs and that 5028 ~99% of these decision makers would be automatically authorized without being required to submit any endangered 5029 or threatened species, or designated critical habitat effects determinations to the EPA. Thus, the vast majority of 5030 applicators authorized to discharge pestic ides on, over or near waters of the United States for this use category under 5031 the permit would therefore not be required to make any lis ted resource effects determinations or to consider the 5032 impacts that these pesticides may have to these resources. We expect that these discharges are likely to result in 5033 exposures of pesticides to ESA listed species or designat ed critical habitat under NMFS’ jurisdiction. This is of 5034 concern because these pesticides may have effects to thos e species and their prey and, given the wide pesticide 5035 application pattern for this use, many streams upon which listed species depend for survival may be exposed. Thus, 5036 it is our opinion that these exposures will cause adverse e ffects to ESA listed species or designated critical habitat 5037 under NMFS’ jurisdiction. 5038
The current draft of the permit does require that all Fede ral facilities and decision makers who intend to discharge 5039 pesticides into Tier 3 waters submit NOIs and accompanying listed resource effect determinations. However, even if 5040 all decision makers were required to submit NOIs containing listed resource effect determinations, these decision 5041 makers would have little incentive to make a positive eff ect determination because su ch determinations could 5042 negatively affect them economically. It is also unlikel y that most decision makers would possess the ability or 5043 resources to make accurate effects determinations in the first place. Furthermore, the EPA has not explained how –or 5044 if– it intends to assess the effect determinations it does r eceive. The EPA has also not stated what consequences a 5045 positive effect determination would have to the decision maker’s ability to discharge pesticides in areas where 5046 endangered or threatened species or designated critical habitat occur. 5047
Any decision maker that is a “large entity” and is required to submit an NOI must also submit an annual report to 5048 EPA that includes: 1) A description of the treatment area; 2) Identification of any wate rs receiving discharged 5049 pesticides, and; 3) Any adverse incidents and a description of any corrective actions. The permit defines “large 5050 entities” as: 1) Any public entity that serves a population great er than 10,000 or; 2) A private enterprise that exceeds 5051 the Small Business Administration size standard. 5052
Most operators discharging pesticide pollutants on, over or near waters of the United States as authorized by the 5053 proposed general permit would not be required to provide NO Is or annual reports. Because of this, the EPA would 5054 not know how many pesticide pollutant discharges it would authorize under the proposed general permit or where 5055 these discharges occur. Those discharges that the EPA w ill require operators to report will only be reported after 5056144 those discharges have happened. Furthermore, decision makers would immediately be authorized under the permit 5057 before any NOI would be required. As such, the EPA has not structured the proposed general permit so that it could 5058 know or reliably estimate the number of discharges that it would authorize under the permit, nor can it know or 5059 reliably estimate the probable locations of these discha rges. Accordingly, the EPA cannot reliably estimate the 5060 effects of the discharges it proposes to authorize under th e PGP to ESA listed species or designated critical habitat. 5061

EPA’s Ability to Estimate Stressors Produced from the Proposed Actions Authorized by the PGP 5062 To know or reliably estimate the physical , chemical or biotic stressors that ar e likely to be produced as a direct or 5063 indirect result of the discharges of pesticide pollutants that would be authorized by the PGP, the EPA would need to 5064 know or be able to reliably estimate whether those discharges have occurred in concentrations, frequencies or for 5065 durations that violate the terms of the proposed PGP. 5066
Under the proposed permit, all operators would be required to control discharges to meet applicable numeric and 5067 narrative State, Territory or Tribal water quality standards. As noted above, numeric standards have not been 5068 identified for most of the pesticide active ingredients an d degradates. If at any time the permittee becomes aware 5069 that the discharge causes or contributes to an excursion of applicable water quality standards, the permittee must 5070 take corrective action. However, it is unlikely that any op erator would become aware that its discharge has resulted 5071 in an exceedance of a water quality standard because the proposed general permit does not require either the 5072 operator or EPA to monitor for such exceedances for the vast majority of the discharges to be authorized. As such, 5073 the EPA cannot know or reliably estimate the physical, chemi cal or biotic stressors that are likely to be produced as 5074 a direct or indirect result of the activities to be authorized by the proposed permit. 5075

EPA’s Ability to Estimate Compliance with the Permit 5076 To know or be able to determine reliably whether or to what degree operators are complying with the conditions, 5077 restrictions or mitigation measures the proposed general permit requires when they discharge pesticide pollutants on, 5078 over or near waters of the U.S., the EPA must have an effective means of oversight. Under the conditions of the 5079 permit, any operator would be required to allow EPA or an authorized representative to: 1) Enter the premises where 5080 a regulated facility or activity is located or conducted; 2) Have access to and copy, at reasonable times, any records 5081 that must be kept under the conditions of the permit; 3) Inspect at reasonable times any facilities, equipment, 5082 practices, or operations regulated or required under the pe rmit, and; 4) Sample or monitor at reasonable times, for 5083 the purposes of assuring permit complian ce or as otherwise authorized by the Clean Water Act, any substances or 5084 parameters at any location. 5085
However, it is not explained how often, or if the EPA plans to carry out such oversight. The proposed general permit 5086 only states that the operator must allow EPA to do so. While we cannot know in advance the compliance rate for the 5087 PGP, the compliance rates of existing general permits provide an insight into the effectiveness of general permits in 5088 protecting water quality. 5089
EPA’s Online Tracking Information System (OTIS) was used to query NPDES compliance data in the Permit 5090 Compliance System (PCS) and Integrated Compliance Information System - National Pollutant Discharge 5091 Elimination System (IC IS-NPDES) databases 27 . The database was downloaded on January 5, 2011. The PCS and 5092

27 The PCS was the original tracking mechanism for NPDES permits an d currently includes data for 21 states. State by state, the data in PCS is being migrated into the newer ICIS-NPDES. The ICIS-NPDES currently tracks data for the remaining states not represented in PCS, U.S. territories, the Navajo Nation, and the St. Regis Tribe.145 ICIS-NPDES databases track the number of inspections and enforcement actions over fi ve years, along with the 5093 number of non-compliance and effluent guideline exceedances over three years. The data are divided between major 5094 and minor dischargers. Major dischargers are typically facilities with a flow of one million gallons per day or 5095 greater. Examples of major dischargers are cities, towns or regional sewer districts. For the purposes of this 5096 consultation, we consider all operators to be authorized to discharge pesticide pollutants on, over or near waters of 5097 the United States as minor dischargers. 5098
We focused on general and individual permits for entities where EPA is the permitting authority as identified in the 5099 Description of the Proposed Action section of this Biological Opinion. A list of the general types and number of 5100 NPDES general permits is listed in Table 13. 5101

Table 13. Types and Current Number of NPDES General Permits Activity # General Permits Aquaculture 90 Concentrated Animal Feed Operation 105
Construction General Permit 168 Cooling Water 23 Drinking Water 53
Groundwater Remediation 23 Hydroelectric Facilities 27 Hydrostatic Testing 4
Industrial 6
Industrial Storm Water 128 Log Transfer Facilities 84 Mining 590 Municipal Storm Water 48
Oil & Gas 2888
Other 386 Publicly Owned Treatment Works (POTW) 119
Seafood Processors 264 To avoid bias from permits with multiple inspections due to compliance and enforcement actions, we converted the 5102 frequency data into presence/absence of inspection, compliance and enforcemen t events. In this way, each permit 5103 was equally weighted in the analysis. Table 14 shows that the majority of major discharg ers (66%) were inspected at 5104 least once in the past 5 years. However, among minor dischargers, a much smaller proportion of general permittees 5105 (14%) were inspected relative to the proport ion of individual permittees inspected. 5106

Table 14. Number and Relative Proportion of Inspected Permittees According to Permit Type Discharger Type Permit Type Never Inspected Inspected Proportion Inspected Major General 0 41 100%
Individual 3 405 99%
Minor General 4292 673 14%
Individual 375 735 66%
The relationship between inspections and the detection of violations within general and individual permits is 5107146 illustrated in Table 15. Uninspected operators had fewer violations than inspected permittees. Substantially fewer 5108 violations were reported for the uninspected general permittees relative to those permittees that were inspected. Half 5109 of the inspected general permittees were found in violation at least once in the past three years while only 15% of 5110 the uninspected general permittees were reported to be in violation over that time period. This suggests that the 5111 reduced inspection rate among general permits for minor disc hargers results in a fairly large number of undetected 5112 violations. 5113

Table 15. Frequency and Relative Rate of Permit Violations for Minor Dischargers with and without Inspections Permit Type Inspected? No Permit Violations Permit Violations Proportion Violations General Never 3658 634 15%
Yes 335 338 50%
Individual Never 135 240 64%
Yes 173 562 76%
Due to the nature of general permits, only seven percent (356) of the general permittees had effluent limit data 5114 available. The rates of effluent violations for those pe rmits with effluent limits are detailed in Table 16. The 5115 proportion of effluent violations detected for minor dischargers with individual permits had similar violation rates, 5116 with the inspected permit violation rate at 91% and the uninspected permit violation rate of 83%. Effluent violations 5117 for uninspected minor dischargers with general permits were detected at a substantially lower rate (47%) than 5118 inspected operators, whose violation rate was 92%. 5119

Table 16. Frequency and Relative Rate of Permit Effluent Limit Violations with and without Inspections Permit Type Inspected? No Effluent Limit Violations Effluent Limit Violations Proportion with effluent violations General Never 133 117 47%
Yes 4 102 96%
Individual Never 42 203 83%
Yes 46 500 92%
These analyses suggest that general permits for minor dischargers have substantial undetected violations and that 5120 these violations include exceedances of effluent limits. The severity of a given violation is reflected by the 5121 enforcement action taken. Formal enfor cement actions are triggered by the failure to achieve compliance within a 5122 specified period of time under inform al enforcement measures or for viola tions of sufficiently serious nature 5123 triggering formal enforcement action with subsequent penalty order or judicial action. 28 Enforcement actions were 5124 more frequently pursued against major dischargers than minor dischargers irrespective of permit type (see Table 17). 5125 Informal enforcement actions were more common than form al enforcement actions among general permits for both 5126 minor and major dischargers. 5127

5128

5129

5130

28 USEPA 1989. The Enforcement Management System: National Pollutant Discharge E limination System, (C lean Water Act). Office of Water. # PB95-156527147 Table 17. Relative Distribution of Enforcement Actions among Different Permit Types Discharger Type Permit Type Formal Informal No Enforcement Major General 3% 52% 39%
Individual 24% 18% 38%
Minor General 2% 30% 67%
Individual 18% 11% 70%

While the dominance of informal enforcem ent actions for general permits suggests that these violations were less 5131 severe than violations committed under individual permits, this could be due to the absence of effluent limits among 5132 the general permits. If a formal enforcement action is more lik ely to be linked to an effluent limit violation, then 5133 formal enforcement actions are less likel y to occur among general permits. If th is were the case, one would expect 5134 that an examination of enforcement actions for only those permits with effluent violations would show similar rates 5135 of formal enforcement actions. Table 18 details the results of such an analysis. Among permits with effluent limit 5136 violations, general permits were less likely than individual permits to receive a formal enforcement action. However, 5137 it is interesting to note that general permits with effluent limit violations were somewhat less likely than individual 5138 permits to be met with any enforcement action. 5139

Table 18. Relative Distribution of Enforcement Actions Among Permits with Effluent Violations Discharger Type Permit Type Formal Informal No Enforcement Major General 0% 50% 50%
Individual 47% 15% 39%
Minor General 3% 10% 88%
Individual 21% 12% 67%
A review of inspection and compliance patterns for general permits recorded in EPA databases produced evidence 5140 that the reduced rate of inspections of minor dischargers with general permits likely results in a substantial number 5141 of undetected permit violations and that these violations include exceedances of effluent limits. General permit 5142 violations for minor dischargers are less likely to be met with formal enforcement actions, suggesting that general 5143 permit violations are less severe than violations found under individual permits. However, the disparity in the rate of 5144 formal enforcement actions for individual and general permits could be due to the differing nature of their 5145 discharges and the specificity of the constraints liste d within the permits. Individual permittees are largely 5146 wastewater treatment facilities and industrial dischargers re leasing effluents with known constituents (more or less) 5147 at a predictable rate from discrete point sources. This allows more specific monitoring and reporting requirements 5148 within a permit and, as a consequence, a greater probability of violating the permit conditions. These dischargers are 5149 also more likely to release constituents for which there ar e water quality criteria. Discharges of such constituents 5150 from a point source at a known rate are more easily monitored than the diffuse, episodic discharges typical of 5151 general permits. 5152
Previous investigations of general permits have examined the reliability of self-identification for permit coverage 5153 and self-reporting for permit violations. One investigation reported grossly incomplete compliance with State and 5154 EPA administered storm water general permits 10 years after implementation (Duke and Augustenborg, 2006). The 5155 researchers also determined that general permits administ ered by EPA attained higher compliance rates than State 5156 administered general permits. Another study found a compliance rate of 10% under Florida’s State wide general 5157 permit. Only 14 of the 136 industries examined which should have filed an NOI did so (Cross and Duke, 2008). 5158
Analysis of EPA’s permitting and compliance databases indicate high levels of non-compliance and lower rate of 5159148 enforcement actions with general permits as opposed to individual permits. Further, among general permits, those 5160 that were never inspected were half as likely to be listed with effluent violations. The lower rate of inspections for 5161 minor dischargers, such as those to be authorized by th e proposed PGP, appears to be a weak point in compliance 5162 with existing NPDES general permits. Given the findings of this analysis, NMFS expects that the EPA cannot insure 5163 compliance with the protective provisions of NPDES general permits. Becau se of this, the EPA is not likely to 5164 know, or be able to determine reliably, whether, or to what degree, operators that are to be authorized to discharge 5165 pesticide pollutants would be complying with the conditions, restrictions or mitigation measures that the proposed 5166 PGP requires. 5167
EPA’s Ability to Determine Exposures of Listed Resources to the Effects of the Proposed Action 5168 The EPA proposes to employ the NOI process on order to know or be able to reliably estimate whether or what 5169 degree specific endangered or threatened species are likely to be exposed to th e direct or indirect effects of the 5170 activities to be authorized by the proposed permit. The NOIs are to contain a section where the decision maker is to 5171 self-certify whether its pesticide app lication activities will overlap with the distribution of ESA listed species or 5172 designated critical habitat, and if so, mu st state: 1) If these applications have undergone ESA Section 7 consultations 5173 or received an ESA Section 10 permit and, 2) Which of these endangered or threat ened species, or designated 5174 critical habitat overlap with treatment areas. However, as mentioned previously, the majority of operators would be 5175 authorized by the proposed general permit without filin g such NOIs. In addition, some operators would be 5176 authorized to discharge pesticide pollutants before any such NOI would be required. 5177
Even if all decision makers were required to submit NOIs with ESA listed species and designated critical habitat 5178 effect determinations, these decision makers would have little incentive to make a positive effect determination 5179 given that such a determination could preclude their ability to apply pesticides and would therefore affect them 5180 economically. Furthermore, it is unlikely that the majority of decision makers would possess the ability or resources 5181 to make accurate effects determinations. 5182
Section 7(a)(2) of the ESA requires Federal Agencies to us e the best scientific and commercial data available to 5183 insure that any action authorized, funded or carried out by such Agency is not likely to jeopardize the continued 5184 existence of any listed resource. The conditions that EPA proposes to add to the permit require permittees to be 5185 responsible for complying with this requirement by determining whether the specific actions those permittees carry 5186 out, as authorized by the proposed general permit, may a ffect ESA listed species or designated critical habitat 5187 without. However it is unlikely that the majority of these operators would have access to the best scientific and 5188 commercial data available to make such determinations . Furthermore, the EPA has not explained how –or if– it 5189 intends to assess the effect determinations it does r eceive for accuracy. The EPA ha s also not stated what 5190 consequences such a positive effect determination would have to the decision maker’s ability to discharge pesticides 5191 in areas where endangered or threatened species or designat ed critical habitat occur. 5192
The condition that permittees be required to assess potential effects to ESA listed species from the activities 5193 authorized by the permit is not sufficient to insure th at these actions are not likel y to expose endangered or 5194 threatened species, or designated critical habitat to the direct or indirect eff ects of the actions. Because of the small 5195 percentage of decision makers that are required to submit NOIs containing determinations as to the presence of ESA 5196 listed species or designated critical habitat in the areas wh ere pesticide pollutants are to be discharged; and the fact 5197 that it is not likely that those few decision makers who ar e required to submit such determinations would possess the 5198 knowledge, skills or resources to make such determinations accurately; and th at it is not clear how –or if– the EPA 5199 will evaluate the few determinations it do es receive; or what the consequences of any such determinations would be; 5200 the NOI process is not sufficient such that the EPA woul d know or be able to reliably estimate whether or what 5201149 degree ESA listed species are likely to be exposed to the direct or indirect effects of the activities to be authorized by 5202 the proposed permit. 5203
EPA’s Ability to Monitor Adverse Effects from Activities Aut horized by the PGP 5204 In order to continually identify, coll ect and analyze information that sugges ts that the discharges of pesticide 5205 pollutants on, over or near waters of the United States may expose endangered or threatened species or designated 5206 critical habitat to pesticide pollutants at concentrations, durations or frequencies that are known or suspected to 5207 produce physical, physiological, behavioral or ecological responses that have potential individual or cumulative 5208 adverse consequences for individual organisms or constituent elements of critical habitat, the EPA proposes to 5209 require that operators self-m onitor for adverse effects resulting from th ese discharges. Under requirements of the 5210 PGP, permittees are required to monitor and report any ad verse incidents resulting from activities authorized by the 5211 permit. This places the responsibility for oversight largely on the permittees wh o would have little incentive to do so 5212 given that such observations could result in a violation of the permit and result in enforcement responses by the 5213 EPA. 5214
Adequate monitoring by the operator that would be sufficient to insure that no adverse exposures occurred from 5215 authorized discharges would be time and resource intensive. It is also unclear how an operator will have the ability 5216 to visually detect all adverse responses to pesticide ex posures to ESA listed species or their designated critical 5217 habitat. For example, while operators might have the ability to observe the mortality of adult or juvenile listed fish, 5218 they likely would not have the resources or ability to visually detect the death of the eggs or alevins of these species. 5219 Nor would they likely have the resources or ability to observ e reductions in the reproduction or growth rates of these 5220 species as a result of pesticide exposure s. The EPA states in its BE that: 5221 “[Visual monitoring by permittees] ... should provide valuable information to EPA and the States 5222 about where adverse environmental effects are o ccurring. This knowledge will help EPA identify 5223 where problems may remain and where improvements can be made in the next PGP.” 5224 While we agree that these monitoring efforts may certainly improve the permit over time, It is unlikely that the self5225 monitoring and self-reporting conditions of the permit are sufficient such that the EP A can continually identify, 5226 collect and analyze information that sugges ts that the discharges of pesticide pollutants on, over or near waters of the 5227 United States may expose endangered or threatened species or designated cr itical habitat under NMFS’ jurisdiction 5228 to pesticide pollutants at concentrations, durations or fr equencies that are known or suspected to produce physical, 5229 physiological, behavioral or ecological responses that have potential individual or cumulative adverse consequences 5230 for individual organisms or constituent elements of critical habitat. 5231
EPA’s Consideration of Species’ Status and Population Effects 5232 The EPA makes its determinations of the potential effect s pesticides may have on ESA listed species through an 5233 ecological risk assessment process specifi cally designed to address the active ingredients in pesticides under FIFRA. 5234 In order to prevent or mitigate risks ESA listed species and their designated critical habitat, the EPA employs a 5235 screening level risk assessment that uses a generic risk quo tient (RQ) method to estimate the potential direct effects 5236 of individual pesticides to non-target organisms. An RQ is the ratio of the Estimated Environmental Concentrations 5237 (EECs) in the environment and an endpoint value derived from a standard toxicity test exposing standard species to 5238 a gradient of pesticide concentrations 29 (RQ=EEC/Endpoint). The degree to which an endpoint value exceeds the 5239 EEC is classified according to pre-established levels of concern (LOC). 5240

29 See EPA’s Office of Chemical Safety and Pollution Prev ention (OCSPP) test guidelines for more information: http://www.epa.gov/ocspp/pubs/ frs/home/draftguidelines.htm150 In order to analyze indirect effect s to ESA listed organisms, the EPA us es the direct effects LOCs for each 5241 taxonomic group upon which an ESA listed species may rely for survival. If the RQs for these taxonomic groups are 5242 below the direct effect ESA listed species LOCs, the EPA considers any effects to these resources and indirect 5243 effects that these effects may cause to ESA listed species to be of no concern. These determinations are designed to 5244 capture any effects to designated critical habitat. 5245
The FIFRA registration process described above addresses toxicity for a single exposure to a single stressor in the 5246 lifetime of a standard test organism. It does not integrat e the status and trends of ESA listed species and critical 5247 habitat, the demographic and ecological status of ESA listed species populations and individuals comprising those 5248 populations or the pre-existing stressors in the watersheds where they occur. The exposure modeling employed does 5249 not examine the specific direct and indirect pathways through which ESA listed species and designated critical 5250 habitat are exposed. 5251
Summary of EPA’s Ability to Mi nimize or Prevent Exposure 5252 As the proposed general permit is structured, the EPA wo uld not know the total number of pesticide pollutant 5253 discharges it would authorize under the proposed general permit or where or when these discharges would occur. In 5254 addition, some of the discharges that the EPA would requ ire operators to report would only be reported after the 5255 fact. 5256
Though operators would be required to control discharges to meet applicable numeric and narrative State, Territory 5257 or Tribal water quality standards under the current draft ge neral permit, the majority of operators would not monitor 5258 water quality and would thus have no way of knowing whether a discharge has exceeded a water quality standard. 5259 Because of this, the EPA cannot know or reliably estimate the physical, chemical or biotic stressors that are likely to 5260 be produced as a direct or indirect result of the activities to be authorized by the proposed permit. 5261
There is a high level of non-compliance and lower rate of enforcement actions with general permits. There is also a 5262 low rate of inspections for minor dischargers, such as those to be authorized by the proposed PGP. Because of this, 5263 the EPA is not likely to know or be able to determine re liably whether or to what degree operators are complying 5264 with the conditions, restrictions or mitigation measures the proposed general permit requires when they discharge 5265 pesticide pollutants on, over or near waters of the U.S. 5266
The majority of operators will not be required to submit NOIs containing determinations as to the presence of ESA 5267 listed species or designated critical habitat in the areas wh ere pesticide pollutants are to be discharged. Furthermore, 5268 it is not clear how –or if– the EPA will ev aluate the determinations it does recei ve, or what the consequences of any 5269 such determinations would be. Because of these reasons, the NOI process is no t sufficient such that the EPA would 5270 know or be able to reliably estimate whether or what degr ee ESA listed species are likely to be exposed to the direct 5271 or indirect effects of the activities to be authorized by the proposed permit. 5272
The self-monitoring and self-reporting conditions of the permit are not sufficient such that the EPA can continually 5273 identify, collect and analyze information that would suggest that the discharges of pesticide pollutants may expose 5274 endangered or threatened species or designated critical habitat to pesticide pollutants. Because of this, the EPA 5275 would not know if these exposures are occurring at concentrations, durations or frequencies that are known or 5276 suspected to produce adverse effects to ESA listed species or constituent elements of critical habitat. 5277
The current draft general permit is not sufficient such that the EPA can reliably estimate whether or to what degree 5278 specific endangered or threatened species are likely to be aff ected by the direct or indirect effects of the activities to 5279 be authorized by the proposed permit. The FIFRA registration process that originally author ized the pesticide uses to 5280151 be authorized under the proposed general permit does not integrate information on the status and trends of ESA 5281 listed species and critical habitat, the demographic and ecological status of ESA listed species populations and 5282 individuals comprising those populations, or the pre-exis ting stressors in the watersheds where they occur. 5283
Because of these insufficiencies, the EPA would not be likely to know wher e or when most of the discharges it 5284 intends to authorize by the proposed general permit would occur; if these discharges were resulting in exposures to 5285 pesticide pollutants in concentrations, durations or frequencies that would cause adverse effects to ESA listed 5286 species or designated critical habitat or whether the permittees were complying with the conditions of the permit 5287 designed to prevent exposures to ESA listed species and designated critical habitat. As such, the EPA would not 5288 likely be able to implement preventive measures to stop such exposures. 5289
Therefore, the EPA has not structured the proposed PGP so that it will be able to prevent endangered or threatened 5290 species from being exposed to discharges of pesticide pollu tants: (a) At concentrations, durations, or frequencies that 5291 are potentially harmful to individual listed organisms, popula tions or the species; (b) In mixtures that are potentially 5292 harmful to individual listed organisms, populations or the species, or; (c) To ecological consequences that are 5293 potentially harmful to individual listed organisms, po pulations, species or Primary Constituent Elements of 5294 designated critical habitat. 5295

Cumulative Effects 5296

Cumulative effects include the e ffects of future state, Tribal, local or priv ate actions that are reasonably certain to 5297 occur in the action area considered in this Biological Opinion. Future Federal actions that are unrelated to the 5298 proposed action are not considered in this section because they require separate consultation pursuant to Section 7 of 5299 the ESA. 5300
The biological evaluation that EPA submitted to support its re quest for formal consultation and which is required to 5301 discuss cumulative effects (as they are defined for the purposes of section 7 of the ESA) did not identify future State, 5302 Tribal, local, or private actions that were reasonably certain to occur in the action area and that would not require 5303 Federal authorization, Federal funding, or the actions of a Federal agency. During this consultation, NMFS searched 5304 for information on future State, Tribal , local or private actions that were re asonably certain to occur in the action 5305 area. NMFS conducted electronic searches of business journals, trade journals and newspapers using First Search , 5306 Google and other electronic search engi nes. Those searches produced no evid ence of future private action in the 5307 action area that would not require Federal authorization or fu nding and is reasonably certain to occur. As a result, 5308 NMFS is not aware of any actions of th is kind that are likely to occur in the action area during the near future. 5309

Integration and Synthesis of Effects 5310

In the Assessment Approach section of this Opinion, our risk analyses began by identifying the probable risks 5311 actions pose to ESA listed individuals that are likely to be exposed to an action’s effects. We identify risks to 5312 individuals of endangered or threatened species using changes in the individuals’ “fitness” or the individual’s 5313 growth, survival, annual reproductive success and lifetime reproductive success. When we do not expect listed 5314 plants or animals exposed to an action’ s effects to experience reductions in f itness, we would not expect the action 5315 to have adverse consequences on the viability of the populations those individuals represent or the species those 5316 populations comprise (Stearns, 1977; Mills and Beatty, 19 79; Stearns, 1992; Anderson, 2000). As a result, if we 5317 conclude that listed plants or animals are not likely to experience reductions in th eir fitness, we would conclude our 5318152 assessment. If, however, we conclude that listed plants or animals are likely to experience reductions in their fitness, 5319 we would assess the potential consequences of those fitness reductions for the population or populations the 5320 individuals in an action area represent. 5321
As part of our risk analyses, we consider the consequenc es of exposing endangered or threatened species to the 5322 stressors associated with the proposed actions, individually and cumulatively, given that the individuals in the action 5323 areas for this consultation are also exposed to other stre ssors in the action area and elsewhere in their geographic 5324 range. These stressors or the response of individual an imals to those stressors can produce consequences - or 5325 “cumulative impacts” (in the National Environmental Policy Act sense of the term) - that would not occur if animals 5326 were only exposed to a single stressor. 5327

In the Effects of the Proposed Action section of this Opinion, we presented the evidence that leads us to conclude 5328 that endangered or threatened species and designated critical habitat under the jurisdiction of the NMFS are likely to 5329 co-occur with discharges of pesticide pollutants on, over or near waters of the United States As we discussed in the 5330 Approach to the Assessment section of this Opinion, the purpose of those analyses was to establish whether or to 5331 what degree endangered or threatened sp ecies or designated critical habitat are lik ely to be adversely affected if they 5332 are exposed to discharges of formulations of the 171 active ingredients. 5333

Based on our review of the commercial a nd scientific literature, many, but not all, of the 171 ingredients in the 24 5334 classes of pesticides pose serious risks for many aquatic organisms. When they are exposed to concentrations of 5335 some pesticides that we would expect to result from discharg es of formulations of these pesticides on, over, or near 5336 waters of the U.S., individuals of some species or life stages of species are likel y to die as a result of their exposure. 5337 Other individuals of aquatic species experience reductions in developmental patterns, rates of growth, reproductive 5338 success as a direct result of th e exposure or because of the chemical’s effect on their be havioral patterns. Exposure 5339 to some of the chemicals whose discharges would be authorized by EPA’s proposed PGP has been demonstrated to 5340 have physical, physiological or neural effects on individuals that have been exposed and these changes increase their 5341 probability of being captured and killed by predators. Because of the action of these chemicals on primary 5342 production (aquatic plants), invertebrate populations (insec ts) and other aquatic animals, the discharges of pesticide 5343 pollutants on, over or near waters of the U.S., endangered and threatened species under NMFS’ jurisdiction could be 5344 exposed to changes in their prey base, changes in the di stribution of abundance of predators and competitors. These 5345 changes in the ecological community of the endangered and threatened aqua tic animals are likely to represent 5346 changes in listed species, the populations they co mprise and their designated critical habitat. 5347
Because some of the species that have been studied in investigations into the responses of aquatic species to 5348 pesticides are taxonomically identical to species that have been listed as endangered or threatened (for example, 5349 Oncorhynchus mykiss and Salmo salar ), we assume that the responses of th e endangered and threatened taxa would 5350 be the same as those reported for the non-listed members of these taxa. We would expect the responses of listed 5351 salmon to be generally similar to the responses that have been reported for O

. mykiss

. 5352

We are not certain whether or to what degree the responses reported in the literature would be representative of the 5353 responses in the various species of sturgeon that have been listed or southern eulachon, but we do not have evidence 5354 that would lead us to conclude that their responses would not be representative of those species that have been 5355 studied. Therefore, we assume that the responses of these other endangered and threatened species will be generally 5356 similar to those reported in the literature, although th e exposure concentrations and durations might differ. 5357
A Biological Opinion NMFS issued in 2008 concluded that the registration of chlorpyrifos, diazinon and malathion 5358 was likely to jeopardize the continued existence of 27 sp ecies of endangered and threatened salmon and was likely 5359153 to destroy or adversely modify critical habitat designat ed for 25 of those species (NMFS, 2008a). A separate 5360 Biological Opinion NMFS issued in 2009 concluded that the proposed registration of carbaryl, carbofuran and 5361 methomyl was likely to jeopardize the co ntinued existence of 22 species of endangered and threatened salmon and 5362 was likely to destroy or adversely modify critical hab itat designated for 20 of those species (NMFS, 2009a). The 5363 literature review that we conducted for this consultation updates and reaffirms the conclusions we reached in those 5364 prior Biological Opinions on carbaryl, chlorpyrifos, diazinon, malathion and methomyl: exposing endangered and 5365 threatened species of anadromous fish under NMFS’ juri sdiction to concentrations of these active ingredients, 5366 mixtures of these active ingredients, or degradates of these active ingredients or other components of formulations 5367 containing these active ingredients would increase their lik elihood of becoming extinct in the foreseeable future. 5368

Conclusion 5369

Listed Species and Critical Habitat 5370 After reviewing the current status of the listed species, th e environmental baseline for the action area, the potential 5371 direct and indirect effects of the EP A’s proposal to issue a Pesticide General Permit that authorizes point-source 5372 discharges of pesticide pollutants into a wide variety of aqua tic habitats from the applicatio n of pesticides to or over, 5373 including near, waters of the United States where the EPA is the permitting authority, an examination of the controls 5374 EPA proposes to implement to mitigate these effects, and cumulative effects, it is our Biological Opinion that EPA 5375 has failed to insure that the discharges of pesticide pollu tants it proposes to authorize using the proposed Pesticide 5376 General Permit are not likely to result in jeopardy to an y listed threatened or endangered species under NMFS’ 5377 jurisdiction. 5378

As a result of that failure and based on our review of the best scientific and commercial data available, it is NMFS’ 5379 Biological Opinion that discharges of pesticide pollutants that would be authorized by the Pesticide General Permit 5380 are likely to jeopardize the continued existence of Calif ornia coastal Chinook salmon, Central Valley spring-run 5381 Chinook salmon, Lower Columbia River Chinook salmon, Upper Columbia River spring-run Chinook salmon, 5382 Puget Sound Chinook salmon, Sacramento River winter-run Chinook salmon, Snake River fall-run Chinook salmon, 5383 Snake River spring/summer-run Chinook salmon, Upper W illamette River Chinook salmon, Columbia River chum 5384 salmon, Hood Canal summer-run chum salmon, Central Calif ornia Coast coho salmon, Lower Columbia River coho 5385 salmon, Southern Oregon and Northern California Coast coho salmon, Oregon Coast coho salmon, Pacific eulachon, 5386 Southern green sturgeon, Shortnose sturgeon, Lake Ozette sockeye salmon, Snake River sockeye salmon, Central 5387 California Coast steelhead, California Central Valley steelh ead, Lower Columbia River steelhead, Middle Columbia 5388 River steelhead, Northern California steelhead, Puget Sound steelhead, Snake River steelhead, South-Central 5389 California Coast steelhead, Southern California coast steelhead, Upper Columbia river steelhead and Upper 5390 Willamette River steelhead, Killer whale (southern resident) and Beluga whale (Cook Inlet). 5391
After reviewing the current status of the critical habitat that has been designated for endangered and threatened 5392 species, the environmental baseline of the action area, the po tential direct and indirect effects of the action, an 5393 examination of the controls EPA proposes to implement to mitigate these effects, and cumulative effects, it is our 5394 Biological Opinion that EPA has not insured that the activ ities it proposes to authorize under its proposed PGP are 5395 not likely to destroy or adversely modify designated critical habitat. As a result of that failure and based on our 5396 review of the best scientific and commercial data ava ilable, it is NMFS’ Biological Opinion that discharges of 5397 pesticide pollutants that would be authorized by the Pestic ide General Permit are, likely to result in the destruction 5398154 or adverse modification of designated critical habitat for California coastal Chinook salmon, Central Valley spring5399 run Chinook salmon, Lower Columbia River Chinook salmon, Upper Columbia River spring-run Chinook salmon, 5400 Puget Sound Chinook salmon, Sacramento River winter-run Chinook salmon, Snake River fall-run Chinook salmon, 5401 Snake River spring/summer-run Chinook salmon, Upper W illamette River Chinook salmon, Columbia River chum 5402 salmon, Hood Canal summer-run chum salmon, Central Calif ornia Coast coho salmon, Lower Columbia River coho 5403 salmon, Southern Oregon and Northern California Coast coho salmon, Oregon Coast coho salmon, Southern green 5404 sturgeon, Lake Ozette sockeye salmon, Snake River sockeye salmon, Central California Coast steelhead, California 5405 Central Valley steelhead, Lower Columbia River steelhead , Middle Columbia River steelhead, Northern California 5406 steelhead, Snake River steelhead, Sout h-Central California Coast steelhead, Southern California coast steelhead, 5407 Upper Columbia river steelhead and Upper Willamette River steelhead, Cook Inlet beluga whale and killer whale 5408 (southern resident). 5409

Reasonable and Prudent Alternative 5410

This Opinion has concluded that EPA’s issuance of the PGP is likely to jeopardize the continued existence of 33 5411 species under NMFS’ jurisdiction and result in the destruction or adverse modification of critical habitat that has 5412 been designated for 29 species. The cl ause “jeopardize the continued existen ce of” means “to engage in an action 5413 that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival 5414 and recovery of ESA listed species in the wild by reducing the reproduction, numbers or distribution of that species 5415 (50 CFR §402.02). 5416
NMFS reached this conclusion because as the general permit is currently structured, the EPA would not be likely to 5417 know where or when most of the discharges it intends to authorize would occur; if these discharges were resulting in 5418 exposures to pesticide pollutants in concentrations, duration s or frequencies that would cause adverse effects to ESA 5419 listed species or designated critical habitat and would not be in a position to take measures to avoid those adverse 5420 effects; or whether the permittees were complying with the conditions of the permit designed to protect ESA listed 5421 species and designated critical habitat from being exposed. 5422
Because we have concluded that the proposed general perm it fails to comply with the requirements of section 5423 7(a)(2) of the ESA, we have provided a Reasonable and Prudent Alternative (RPA) that would allow EPA to comply 5424 with the requirements of section 7(a)(2) of the ES A. Regulations implementing Section 7 of the Act (50 CFR 5425 402.02) define RPAs as alternative actions, identified during formal consultation, that: (1) can be implemented in a 5426 manner consistent with the intended purpose of the action; (2) can be implemented consistent with the scope of the 5427 action agency’s legal authority and jurisdiction; (3) are ec onomically and technologically feasible; and (4) would, 5428 NMFS believes, avoid the likelihood of jeopardizing the continued existence of ESA listed species or resulting in 5429 the destruction or adverse modification of critical habitat. Because the general permit, for purposes of endangered or 5430 threatened species under NMFS’ jurisdiction, authorizes discharges in the District of Columbia, Idaho, 5431 Massachusetts and New Hampshire, all Indian lands and Fede ral lands in Delaware, Vermont and Washington State, 5432 the RPA described below applies only in those locations. In addition, this RPA is not applicable to discharges on 5433 Federal lands for which an existing consultation covers those discharges. 5434
The RPA is comprised of three required elements which must be implemented in their entirety to insure that the 5435 actions authorized by the general permit are not likely to jeopardize endangered or th reatened species under the 5436 jurisdiction of NMFS or destroy or adversely modify critic al habitat that has been designated for any of these 5437155 species. 5438
Because this Biological Opinion has concluded that the EPA’s proposed PGP is likely to jeopardize the continued 5439 existence of endangered species and thr eatened species under the jurisdiction of NMFS and is likely to result in the 5440 destruction or adverse modification of designated critical habitat, the EPA is required to notify the NMFS Office of 5441 Protected Resources of its final decision on implem entation of the reasonable and prudent alternatives. 5442

The Reasonable and Prudent Alternative is as follows: 5443

RPA Element 1 5444 The EPA will, with the technical assistance of NMFS, and based on EPA’s FIFR A risk assessments and Registration 5445 Eligibility Decision documents, identify 30 the discharges that are eligible for coverage under the general permit 5446 based on three conditions: 1) those discharges would not occu r in the range of any endangered or threatened species 5447 under NMFS’ jurisdiction; 2) the pesticide pollutants th at would be discharged are known not to cause adverse 5448 effects to endangered or threatened sp ecies under NMFS’ jurisdiction or to re presentative surrogate species, or; 3) 5449 the discharges of pesticide pollutants resulting from the maximum allowed pesticide use rates are not expected to 5450 result in pesticide pollutants in the water in peak concen trations that exceed the no observed adverse effect 5451 concentration/level for those species or for representative surrogate species. To determine whether the discharge is 5452 eligible under this criterion, the EPA must compare the Peak Estimated Environmental Concentrations (Peak EECs) 5453 for the maximum application rate for that pesticide use to the NOAECs or NOAELs for endangered or threatened 5454 species or for representativ e surrogate species as presented in EPA’ s FIFRA risk assessments or Registration 5455 Eligibility Decision documents. In the absence of such data the EPA shall consult NMFS to determine the 5456 appropriate category. 5457

These discharges will be authorized under the existing terms of the permit and, in addition, all operators that make 5458 such discharges must employ the protective measures as described in the “Decision-Maker’s Responsibilities: For 5459 Decision-makers Required to Submit NOIs” section of the draft general permit (see p. 18 of this Opinion). 5460
Any discharge 5461
(a) That has not been identified as eligible, and; 5462
(b) Would occur within the range of endangered or listed species under NMFS’ jurisdiction, 5463
would not be authorized under the general permit unless the operator provides evidence sufficient to demonstrate to 5464 EPA, with the technical assistan ce and concurrence of NMFS, that: 5465

1. Any endangered or threatened species under NMFS’ juri sdiction will not be directly or indirectly exposed 5466 to pesticide pollutants produced by the discharge (e.g ., the species will not occur in the discharge area when 5467 that time of year, the species will not be present inthe hydrologic unit in which the discharge will occur, 5468 the species is not present because of the pres ence of the pest being controlled etc.), or; 5469

30 These calculations are used as a screeni ng tool to determine whether a discharge can be covered under the general permit witho ut further evaluation, other than to verify the accu racy of the information provided. A determ ination that a particular pesticide product does not fall into this category is not a determination that the ch emical is likely to jeopardize ESA listed sp ecies or destroy or adversely modify cri tical habitat designated for those species, but rather a de termination that EPA has failed to insure that discharges of that pesticide under the general permit is not likely to jeopardize listed species or dest roy or adversely modify critical habitat.156 5470 2. The discharge for a specific pesticide use is below th e maximum allowed pesticide use rate such that the 5471 discharge will result in peak pesticide pollutant concentr ations in the water that are less than those known 5472 to exceed the no observed adverse effect concentratio n/level for those species or representative surrogate 5473 species, or; 5474 5475 3. After consultation (pursuant to sec tion 7(a)(2) of the ESA) between EPA and the NMFS Regional, Branch, 5476 or Field Office with responsibility for the area in which the discharge occurs, that consultation concludes 5477 that the pest to be controlled poses a greater threat to the survival or recovery of the endangered or 5478 threatened species under NMFS’ jurisdiction than the pesticide pollutant (e.g. lampreys, snakehead, 5479 noxious vegetation causing anoxia etc.). The explanation and evidence that supports the conclusion that the 5480 pest to be controlled poses a greater threat to liste d species should appear in any concurrence letter or 5481 Biological Opinion that would result from such a consultation (such a document would demonstrate that the 5482 operator has provided sufficient evidence that the pest that needs to be controlled poses a greater threat to 5483 the survival of endangered or thr eatened species under NMFS’ jurisdiction than the pesticide pollutant). If 5484 that consultation produces a Biological Opinion and an exemption to the ESA’s section 9 prohibitions is 5485 warranted, the Biological Opinion would contain an incidental take exemption for the pesticide discharge. 5486

If an operator fails to demonstrate that a discharge fulfills one or more of these criteria, that discharge shall not be 5487 authorized by the proposed PGP. If, however, EPA and NMFS agree that the operator has demonstrated that the 5488 discharge fulfills one or more of these criteria, that di scharge will be covered under the existing terms of the permit 5489 and all such operators must employ the additional prot ective measures as described in the “Decision-Maker’s 5490 Responsibilities: For Decision-makers Required to Submit NOIs ” part of section 2.2 of the draft permit (see p. 18 if 5491 this Opinion). 5492
If the operator seeks to make this demonstration for mo re than one discharge, the operator must identify each 5493 pesticide formulation to be used; app lication method; amount and rate for each discharge; the precise location of 5494 each discharge; and the approximate date of each discha rge. EPA with the technical assistance of NMFS will 5495 determine which if any of the planned discharges are eligible under the general permit and which if any of the 5496 planned discharges must be covered by an individual permit to proceed. 5497
For any discharges determined to be eligible under the general permit, the operator must make the same 5498 demonstration if the operator wishes to change for any in dividual discharge the chemical used, the amount used, the 5499 location of discharge or the approximate date. The EPA, with the technical assistance and concurrence of NMFS 5500 shall make any determination as to eligibility to discharge under the general permit. NMFS will provide technical 5501 assistance and concurrence within 30 days from receipt of the operator’s ma terials from EPA. NMFS will provide its 5502 technical assistance its opinion, if any, on whether the discharge meets the eligibility criteria within 30 days from 5503 receipt of the operator’s materials from EPA. The operator can provide this demonstration to EPA prior to filing a 5504 NOI, at the time of filing a NOI, or subsequent to filing a NOI. However, discharge is not authorized until EPA 5505 agrees, with the technical assistance and concurrence of NM FS, that the discharge or group of discharges meets the 5506 eligibility criteria above. 5507

Rationale 5508 The EPA relied on the FIFRA registration process for the evaluation of the pesticide uses that will result in the 5509 pesticide pollutant discharges that it intends to author ize in the proposed general permit. However, the FIFRA 5510 registration process does not integrate the status and trends of ESA listed species and critical habitat, the 5511157 demographic and ecological status of the populations those species comprise or the environmental baseline for those 5512 species. The EPA risk assessment pro cess compares estimated environmental concentrations to species toxicity 5513 endpoints derived from standard toxicity tests where individual standard test organisms are exposed to concentration 5514 gradients of pesticide active ingredients, formulated pesticide products or degradates in a laboratory setting over the 5515 course of that individual test organism’s lifespan. 5516
In addition, the FIFRA process does not necessarily prohibit the registration of pesticide uses that are expected to 5517 result in concentrations of pesticide pollutants in the wate r that can kill or adversely affect ESA listed species under 5518 NMFS’ jurisdiction, or representative surrogate species. When evaluating and registering pesticide uses, the EPA 5519 must weigh the economic and social cost s of registering pesticides against the environmental costs and benefits 5520 these pesticide uses may pose. Under the ESA, the Services do not include such considerations in their species 5521 jeopardy, or destruction or adverse modification of designated critical habitat determinations. 5522
To determine estimated environmental concentrations of pesticide pollutants in the water, the EPA employs 5523 computer models to simulate the expected behavior of these pesticide pollutants in a “standard pond” receiving 5524 direct applications of pesticides or receiving pesticide pollutant s from spray drift, runoff or transport through soil 5525 pore water from treated areas. The “standard pond” covers an area of 1 hectare, is 2 meters deep, has no flow and 5526 contains 20,000 cubic meters of water. However, endang ered and threatened anadrom ous fish species under NMFS’ 5527 jurisdiction use a variety of river and stream habitats through their life cycle. These habitats have a broad range of 5528 geological features and flow regimes. 5529
In many cases, the estimated environmental concentratio ns as modeled by the “sta ndard pond” scenario may 5530 represent a conservative estimate. However, backwater areas that are connected to streams, creeks, rivers or alcoves 5531 are also ESA listed anadromous fish habitats and may not adequately be represented by the “standard pond” 5532 scenario. Furthermore, the EPA uses an endpoint based on the concentration of pesticide pollutant required to kill 5533 test species to determine direct acute effects. As such, comparing a lethality derived endpoint to peak estimated 5534 environmental concentrations derived from a “standard pond” model may not capture all expected direct acute 5535 effects to the survival of ESA listed anadromous fish species. 5536
Similarly, EPA’s compares a growth and reproduction derive d endpoint such as a life-cycle test derived no observed 5537 adverse effect concentration/level to a computer modeled 60 day rolling mean estimated environmental 5538 concentration. This approach may not capture all chronic, behavioral, reproductive or sublethal effects to those 5539 species. Anadromous species exhibit chemical avoidan ce and other behavioral responses that can influence 5540 migration. EPA’s comparison of a computer modeled 60 day rolling mean of estimated environmental pesticide 5541 pollutant concentrations to a no observed adverse effect concentration/level based on a life-cycle test may not 5542 capture such effects. 5543
Because of these reasons, the evaluatio n and registration of pesticide applica tions by the EPA under FIFRA and the 5544 authorization of discharges on, over or near waters of the United States pursuant to the general permit are not 5545 sufficient such that the EPA would know or be able to re liably estimate the consequences of the direct or indirect 5546 effects of the activities authorized by the general permit to ESA listed species or designated critical habitat under 5547 NMFS’ jurisdiction. This RPA elemen t accounts for these insufficiencies by comparing the peak estimated 5548 environmental concentrations for a “standard pond” to the pesticide pollutant concentration value that is known to 5549 not cause observed adverse effects to ES A listed fish species under NMFS jurisdiction, or to representative surrogate 5550 species. By incorporating this element of the RPA, the proposed general permit would not result in any peak 5551 concentrations of pesticide pollutants in the water that would be expected cause adverse effects to endangered or 5552 threatened species under NMFS’ jurisdiction unless the pest be ing controlled poses a greater threat to the survival of 5553158 those species than would the exposure to that pesticide pollutant. 5554
By preventing direct adverse effects to ESA listed salmonid fish species under NMFS’ jurisdiction, unless the pest 5555 being controlled poses a greater threat to the survival of those species than would the exposure to that pesticide 5556 pollutant, this element of the RPA would prevent the salmonid fish prey base of southern resident killer whales and 5557 Cook Inlet beluga whales from becoming appreciably dimini shed by the activities authorized by the issuance of the 5558 proposed general permit. In addition, by requiring that all operators that make such discharges must employ the 5559 additional protective pesticide management measures such as applying pesticides only when the action threshold has 5560 been met and selecting pesticide applications that have le ss adverse effects on not target organisms (e.g. selecting 5561 larvicides as a preferred pesticide for mosquito or flying insect pest control), in addition to the technology based 5562 effluent limitations in the proposed general permit, the EPA can reduce the impacts of these applications to 5563 designated critical habitat for all ESA listed species. This reduction in environmental impacts, along with the limited 5564 spatial and temporal overlap of the proposed pesticide applications with the range of ESA listed species under 5565 NMFS’ jurisdiction and the targeted nature of those applications, will allow the EPA to insure that the actions it 5566 intends to authorize by the proposed general permit will not appreciably diminish the value of designated critical 5567 habitat for the survival or recovery of any endangered or threatened species fish under NMFS’ jurisdiction. 5568 Therefore, by implementing this element of the RPA, the EPA can insure that no designated critical habitat of any 5569 endangered or listed species under NMFS’ jurisdiction would be destroyed or adversely modified. 5570

RPA Element 2 5571 Any decision maker that meets the eligibility criteria for discharge under RPA Element 1 and plans to discharge 5572 pesticide pollutants into waters of the U.S. in the ra nge of endangered or thr eatened species under NMFS’ 5573 jurisdiction must file a Notice of Intent (NOI) to discharge that identifies the pesticide product to be discharged, the 5574 planned quantity and rate of discharge, the number of pl anned discharges, and the category of that discharge as 5575 identified in the first element of the RP A. That decision maker must also file an annual report containing: 1) A 5576 description of treatment area, including location and size; 2) The approximate date of any discharge; 3) 5577 Identification of any waters of the U. S. to which pesticide pollutants are di scharged; 4) The pesticide use pattern 5578 resulting in any discharge (i.e., mosquito and other flying insect pest control, aquatic weed and algae control, aquatic 5579 nuisance animal control, or forest canopy pest control); 5) Any target pest; 6) Contact information for the decision 5580 maker or any pesticide applicator, if different from the decision maker; 7) The total amount of each pesticide 5581 product applied for the reporting year by application method; 8) If applicable, an annual report of any adverse 5582 incidents as a result of any discharge; 9) If applicable, a description of any corrective action. The EPA must collect 5583 and summarize these reports and pr ovide this summary to NMFS. 5584

Rationale 5585 Under the proposed general permit, only those decision ma kers who meet the eligibility requirements to submit an 5586 NOI would be required to notify the EPA if their disc harge would expose any endangered or threatened species 5587 under NMFS’ jurisdiction to a pesticide pollutant. Accordin g to EPA estimates, only a small fraction of the total 5588 number of operators that would discharge within the range of endangered or threatened species under NMFS’ 5589 jurisdiction would be required to file such a notification. In addition, it is unlikely that those few decision makers 5590 that would be required to file these notifications would po ssess the ability or resources to make such determinations 5591 accurately. For these reasons, the EPA w ould not know if the majority of disc harges it plans to authorize would 5592 expose endangered or threatened species under NMFS’ jurisdic tion to the direct or indirect effects of the activities to 5593 be authorized by the proposed permit. B ecause of this, the EPA cannot reliably estimate the probable individual or 5594 cumulative effects of those activities to those species or to their designated critical habitat. 5595159 This RPA element addresses these insuffici encies by requiring all operators that intend to discharge into waters of 5596 the U.S. within the range of ESA liste d species under NMFS’ jurisdiction to f ile an NOI that identifies where such 5597 discharges would occur and of which use patterns these discharges would consist. By implementing this RPA 5598 element, the EPA would know or be able to reliably es timate whether or to what degree ESA listed species under 5599 NMFS’ jurisdiction would be likely to be exposed to the direct or indirect effects of the activities to be authorized by 5600 the general permit. 5601
This RPA element also allows the EPA to reliably esti mate the probable individual or cumulative effects to 5602 endangered or threatened species under NMFS’ jurisdiction and designated critical habitat by requiring that all 5603 operators that discharge into waters of the U.S. within the range of ESA listed species under NMFS’ jurisdiction file 5604 an annual report that includes information on total the amount of each pesticide product applied, any adverse 5605 incidents that occurred as a result of any such discha rges and a description of an y corrective action that was 5606 undertaken. This gives the EPA the ability to make corrective actions or to implement preventive or corrective 5607 measures based on this information recei ved on those probable individual or cumu lative effects. This also allows the 5608 EPA to know whether reinitiation of formal consultation is required as provided in 50 CFR 402.16. 5609

RPA Element 3 5610 In addition to the current monitoring requirements in the general permit, within two years of the issuance of the 5611 general permit the EPA shall develop and implement a NMFS-approved monitoring plan for the presence of 5612 pesticide pollutants in habitats where en dangered or threatened sp ecies, or designated critical habitat occur to insure 5613 that the pesticide pollutant discharges it authorizes under the general permit do not exceed any Water Quality 5614 Criterion or occur in concentrations that are likely to result in adverse effects to endangered or threatened species or 5615 to designated critical habitat under NMFS’ jurisdiction. 5616
The plan shall include sampling and analyses for the presen ce of pesticide pollutants in representative habitats where 5617 and when endangered or threatened species, or designated critical habitat may be exposed to discharges of pesticide 5618 pollutants as authorized by the proposed general permit, in cluding non-target waters of the U.S. into which these 5619 discharges may flow. The report shall be submitted to NMFS OPR and will summarize annual monitoring data and 5620 provide all raw data. 5621

Rationale 5622 The majority of operators who are eligible for coverage under the proposed general permit would not monitor water 5623 quality and would thus have no way of knowing whether a discharge has exceeded a water quality standard or 5624 resulted in any pesticide pollutant in the water in a toxi c amount. As a result, the proposed general permit is not 5625 currently structured such that the EP A can continually identify, collect and analyze information that would indicate 5626 whether authorized discharges of pesticide pollutants on, over or near waters of th e U.S. may expose ESA listed 5627 species or designated critical habitat under NMFS’ jurisdicti on to pesticide pollutants at concentrations, durations or 5628 frequencies that are known or suspected to produce physical, physiological, behavioral or ecological responses that 5629 have potential individual or cumulative adverse consequences for individual organisms or constituent elements of 5630 critical habitat. 5631
In addition, there is a greater level of non-compliance and lower rate of enforcement actions with general permits. 5632 There is also a low rate of inspections for minor dischargers, such as those to be authorized by the proposed PGP. 5633 Because of the lack of water quality m onitoring requirements in the proposed general permit, the EPA is not likely 5634 to know or be able to determine reliably whether or to what degree operators are complying with the conditions, 5635 restrictions or mitigation measures the proposed general permit requires when they discharge pesticide pollutants on, 5636160 over or near waters of the U.S. 5637
To address these insufficiencies, this element of the RP A requires that the EPA monitor for any exceedance of any 5638 water quality standard or for any pesticide pollutant occurr ing in excess of levels known not to have adverse effects 5639 to ESA listed species under NMFS’ jurisdiction or to re presentative surrogate species . By monitoring for such 5640 exceedances in representative habitats where and when endangered or threatened species, or designated critical 5641 habitat may be exposed to these discharges, the EPA will be able to know or reliably determine whether or to what 5642 degree operators are complying with the conditions, restric tions or mitigation measures the proposed general permit 5643 requires. As a result, the EPA can know whether those discharges are exposing ESA listed species or designated 5644 critical habitat under NMFS’ jurisdiction to pesticide polluta nts at concentrations, durations or frequencies that are 5645 known or suspected to produce potential individual or cumulative adverse consequences. The EPA can then make 5646 corrective or enforcement actions as necessary. This also allows the EPA to know whether reinitiation of formal 5647 consultation is required as provided in 50 CFR 402.16. 5648
By assuring that no activities authorized by the general pe rmit would result in any peak concentrations of pesticide 5649 pollutants in the water that would be expected cause ad verse effects to endangered or threatened species under 5650 NMFS’ jurisdiction unless the pest being controlled poses a great er threat to the survival of those species than would 5651 the exposure to that pesticide pollutant as required by the first element of the RPA, and if all operators who 5652 discharge into waters of the U.S. w ithin the range of ESA listed species un der NMFS’ jurisdiction are identified as 5653 required in the second element of the RPA, and if all of those operators comply with the terms of the general permit 5654 as would be assured by the third element of the RPA, the di rect or indirect effects of the activities to be authorized 5655 by that general permit should not cause direct adverse effects to any of those species unless the pest being controlled 5656 were to pose a greater threat to the survival of those species than would the exposure to that pesticide pollutant. 5657 Thus, by implementing these combined el ements of the RPA, the EPA can insu re that the actions it proposes to 5658 authorize by the general permit will not jeopardize the conti nued existence of any endangered or threatened species 5659 under NMFS’ jurisdiction or result in the destruction or adverse modification of any designated critical habitat of 5660 those species 5661

Incidental Take Statement 5662

Section 9 of the ESA and Federal regulations pursuant to section 4(d) of the ESA prohibit the take of endangered 5663 and threatened species, respectiv ely, without special exemption. Take is defined as to: “harass, harm, pursue, hunt, 5664 shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct.” Harm is further defined by 5665 NMFS to include significant habitat modification or degradation that results in death or injury to ESA listed species 5666 by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. Incidental take is 5667 defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under 5668 the terms of Section 7(b)(4) and Section 7(o)(2), taking that is incidental to and not inte nded as part of the agency 5669 action is not considered to be prohibited taking under the Act provided that such taking is in compliance with the 5670 terms and conditions of this Incidental Take Statement. 5671

Amount or Extent of Take 5672
This programmatic consultation focuses on whether the EPA has insured that their issuance of the general permit is 5673 not likely to jeopardize the continued existence of any enda ngered or threatened species or result in the destruction 5674161 or adverse modification of critical habitat of such species. It does not address specific actions that the general permit 5675 would authorize. The RPAs are designed to reduce or in most cases prevent the exposure of endangered or 5676 threatened species under NMFS’ jurisdiction to pesticide po llutants as a result of activities authorized by the general 5677 permit. However, it is possible that such exposures may s till take place as a result of those activities, and it is 5678 possible that these exposures may cause incidental take. In particular, NMFS anticipates that incidental take could 5679 occur in those situations in which EPA has determined, with the technical assistance of NM FS, that a discharge of a 5680 pesticide that adversely affects listed species is preferable to exposing the species to the pest. As a result, incidental 5681 take of endangered or threatened species is possible over the duration of the proposed general permit. 5682
Because of the large scale and broad scope of the proposed action, even the best scientific and commercial data 5683 available are not sufficient to enable NMFS to estimate th e specific amount of potential incidental take associated 5684 with the action. Therefor e, NMFS identifies, as a surrogate for the allowa ble extent of take, the ability of this action 5685 to proceed without any adverse incident as defined in Appendix A of the PG P (see Appendix B) to fish of any 5686 species, that is attributed to any pesticide pollutant discha rged in accordance with the general permit in the range of 5687 listed endangered or threatened species under NMFS’ jurisdiction. An adverse incident to fish is considered 5688 attributable to a pesticide pollutant di scharged in accordance with the general permit if that pesticide pollutant is 5689 known to have been discharged prior to and near or upstream of the adverse incident and if the pesticide pollutant is 5690 detected in water samples or in tissue samples of affected fish. 5691

Reasonable and Prudent Measures 5692
The measures to avoid or minimize take described below are non-discretionary and must be undertaken by the EPA 5693 so that they become a binding condition of any applicant, as appropriate, for the exemption in section 7(o)(2) to 5694 apply. The EPA has a continuing duty to regulate the activity covered by this incidental take statement. The 5695 protective coverage of section 7(o)(2) may lapse f the EPA: (1) fails to assume and implement the terms and 5696 conditions, or; (2) fails to require any applicant to adhere to the terms and conditions of the incidental take statement 5697 through enforceable terms that are added to the general permit. In order to monitor the impact of incidental take, the 5698 EPA must report the progress of the action and its impact on the species to NMFS OPR as specified in the incidental 5699 take statement (50 CFR§402.14(i)(3)). The reporting requirements will be established in accord ance with 50 CFR 5700 220.45 and 228.5. 5701
To satisfy its obligations pursuant to section 7(a)(2) of the ESA, the EPA must: (1) monitor the direct, indirect, and 5702 cumulative impacts of the activities authorized by the issuance of the general permit, and; (2) evaluate the direct, 5703 indirect, or cumulative impacts of the activities author ized by the issuance of the general permit and the 5704 consequences of those effects on enda ngered and threatened species under NM FS’ jurisdiction. The purpose of the 5705 monitoring is to provide data for the EPA to use to identif y necessary modifications to the general permit in order to 5706 reduce exposures to endangered and threatened species under NMFS’ jurisdiction. NMFS believes all measures 5707 described as part of the proposed action, together with use of the Reasonable and Prudent Measures and Terms and 5708 Conditions described below, are necessary and appropriate to minimize the likelihood of incidental take of ESA 5709 listed species due to implementation of the proposed action. 5710

5711 The EPA shall: 5712

1. Monitor any incidental take or surrogate measur e of take that occurs from the action, and; 5713

2. Report annually to NMFS OPR on the monitoring results from the previous year. 5714162 5715

Terms and Conditions 5716
To be exempt from the prohibitions of section 9 of the ESA, the EPA must comply with the following condition. 5717 This condition implements the reasonable and prudent measures described above. This condition is non5718 discretionary. 5719
The EPA shall include the following instructions requiring reporting of adverse incidents to fish in the general 5720 permit: 5721

“NOTICE: Incidents where fish appear injured or killed as a result of discharges into Waters of 5722 the U.S. from pesticide applications as authorized by this permit in the range of endangered or 5723 threatened species under the jurisdiction of the National Marine Fisheries Service shall be reported 5724 to the National Marine Fisheries Service, Office of Protected Resources at (301) 713.1401 and 5725 EPA at (202) 564.0748. The finder should leave th e fish alone, make note of any circumstances 5726 likely causing the death or injury, note the location and number of fish involved and, if possible, 5727 take photographs. Adult fish should not be disturbed unless circumstances arise where an adult 5728 fish is obviously injured or killed by pesticide exposure, or some unnatural cause. The finder may 5729 be asked to carry out instructions provided by NMFS OPR to collect specimens or take other 5730 measures to ensure that evidence intr insic to the specimen is preserved.” 5731 5732

Conservation Recommendations 5733

Section 7(a)(1) of the Act directs Federal agencies to utili ze their authorities to further the purposes of the Act by 5734 carrying out conservation programs for the benefit of endangered and threatened species. Conservation 5735 recommendations are discretionary agency activities to mini mize or avoid adverse effects of a proposed action on 5736 ESA listed species or critical habitat, to help implement recovery plans, or to develop information. 5737
The following conservation recommendations would provide information for future consultation involving EPA’s 5738 approval of State water quality standards: 5739

1. The EPA should work with States with the delegated authority to implement the NPDES program to 5740 develop their permits in a manner that is protective of endangered or threatened species or designated 5741 critical habitat and to create monito ring programs that evaluate whet her these permits are successful in 5742 accomplishing that goal. 5743
In order to keep NMFS’ Endangered Species Division informed of actions minimizing or avoiding adverse effects or 5744 benefiting ESA listed species or their habitats, the U. S. Environmental Protection Agency should notify the 5745 Endangered Species Division of an y conservation recommendations they implement in their final action. 5746

5747163 Reinitiation Notice 5748

This concludes formal consultation on the U.S. Enviro nmental Protection Agency’s issuance of the Pesticides 5749 General Permit. As provided in 50 CFR 402.16, reinitiation of formal consultation is required where discretionary 5750 Federal agency involvement or control over the action has been retained (or is authorized by law) and if: (1) new 5751 information reveals effects of the ag ency action that may affect endangere d or threatened sp ecies under NMFS’ 5752 jurisdiction or to designated critical habitat in a manner or to an extent not considered in this Opinion; (2) the agency 5753 action is subsequently modified in a manner that causes an effect to the ESA listed species or critical habitat not 5754 considered in this Opinion; (3) a new species is listed or critical habitat designated that may be affected by the 5755 action; or (4) the amount or extent to take specified in the incidental take statement is exceeded. In instances where 5756 the amount or extent of take specifi ed in the incidental take statemen t is exceeded, the U.S. Environmental 5757 Protection Agency must immediately request reinitiation of Section 7 consultation. 5758

5759164 Literature Cited 5760

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Chapman and Hall, New York, pp. 223-244. 6495 Relyea, R.A., 2004. Growth and surviv al of five amphibian species exposed to combinations of pesticides. 6496 Environmental Toxicology and Chemistry 23, 6. 6497 Relyea, R.A., Mills, N., 2001. Predator-induced stress make s the pesticide carbaryl more deadly to gray treefrog 6498 tadpoles ( Hyla versicolor ). Proceedings of the National Academy of Sc iences of the United States of America 98, 6499 2491 - 2496. 6500 Reynolds, F.L., Mills, T.J., Benthin, R. , Low, A., 1993. Restoring central valle y streams: A plan for action. Calif. 6501 Dep. Fish Game, Sacramento, CA, p. 184. 6502 Rhatigan, M., 2004. Legislation overlap: should the CleanWater Act or the Federal Insecticide, Fungicide and 6503 Rodenticide Act prevail when pesticides end up in US waters? The Notre Dame Law Review 79, 30. 6504 Rich, W.H., 1942. The salmon runs of the Columbia River in 1938. Fishery Bulletin 50, 103-147. 6505 Richardson, S.L., Laroche, J.L., Richar dson, M.D., 1980. Larval fish assemblages and associations in the north-east 6506 Pacific Ocean along the Oregon coast, winter-spring 1972-1975. Estuarine and Coastal Marine Science 11, 671-699. 6507 Richardson, W.J., Greene Jr, C.R., Ma lme, C.I., Thomson, D.H., 1995. Marine mammals and noise. Academic 6508 Press, Inc., San Di ego, California. 6509 Rien, T.A., Burner, L.C., Farr, R.A., Howell, M.D., North, J.A., 2001. Green sturgeon population characteristics in 6510 Oregon. Annual Progress Report. Sportfish Restoration Project F-178-R. 6511 Rogers, I.H., Birtwell, I.K., Kruzynski, G.M., 1990. The Pacific eulachon (Thaleichthy s pacificus) as a pollution 6512 indicator organism in the Fraser River estuary, Vancouv er, British Columbia. Science of the Total Environment 97- 6513 98, 713-727. 6514 Ross, P.S., 2006. Fireproof killer whales ( Orcinus orca ): flame-retardant chemicals and the conservation imperative 6515 in the charismatic icon of British Columbia, Canada. Cana dian Journal of Fisheries and Aquatic Sciences 63. 6516 Ross, P.S., Ellis, G.M., Ikonomou, M.G., Barrett-Lennard, L. G., Addison, R.F., 2000. High PCB concentrations in 6517 free-ranging Pacific kille r whales, Orcinus orca: effects of age, sex, and dietary preference. Mar. Pollut. Bull. 40, 6518 504-515. 6519 Royce, W.F., Smith, L.S., Hartt, A.C., 1968. Models of oceanic migrations of Pacific salmon and comments on 6520 guidance mechanisms. Fisheries Bulletin 66, 441-462. 6521 Rugh, D.J., Shelden, K.E.W., Hobbs, R.C., 2010. Range contraction in a beluga whale population. Endangered 6522 Species Research 12, 69-75. 6523 Salo, E.O., 1991. Life history of chum salmon (Oncorhynchus keta). In: Groot, C., Margolis, L. (Eds.), Pacific 6524 salmon life histories. University of British Colu mbia Press, Edmonton, Alberta., pp. 231-309. 6525181 Sandercock, F., 1991. The History of Coho Salmon (Oncorhynchus kisutch). . In: Groot, C., Margolis, L. (Eds.), 6526 Pacific Salmon Life History. University of British Columbia Press, Vancouver. 6527 Saulitis, E., Matkin, C., Barrett-Lennard, L., Heise, K., Ellis, G., 2000. Foraging strategies of sympatric killer whale 6528 ( Orcinus orca ) populations in Prince William Sound, Alaska. Mar. Mamm. Sci. 16, 16. 6529 Scheffer, V.B., Slipp, J.W., 1948. The wh ales and dolphins of Washington stat e - with a key to the cetaceans of the 6530 West Coast of North America. . American Midland Naturalist 39, 257-337. 6531 Schmittner, A., Latif, M., Schneider, B. , 2005. Model projections of the North Atlantic thermohaline circulation for 6532 the 21st century assessed by observations. Geophysical Research Letters 32, L23710. 6533 Scholz, N.L., Truelove, N.K., French, B. L., Berejikian, B.A., Quinn, T.P., Cas illas, E., Collier, T.K., 2000. Diazinon 6534 disrupts antipredator and homing behaviors in chinook salmon ( Oncorhynchus tshawytscha ). Canadian Journal of 6535 Fisheries and Aquatic Sciences 57, 1911-1918. 6536 Schoonmaker, P.K., Gresh, T., Lichatowich, J., Radtke, H.D., 2003. Past and present salmon abundance: 6537 Bioregional estimates for key life history stages. Pages 33-40 in: J.G. Stockner, editor. Nutrients in salmonid 6538 ecosystems: Sustaining production and biodiversity. American Fisheries Society, Symposium 34, Bethesda, 6539 Maryland. 6540 Scott, W.B., Crossman, E.J., 1973. Freshwater fishes of Ca nada. Bulletin of the Fisheries Research Board of Canada 6541 184, 1-966. 6542 Secor, D., Anders, P., Webster, V.W., Dixon, D., 2002. Can we study sturgeon to extinction? What we do and don't 6543 know about the conservation of North American sturgeon. Pages 3-9 in: Webster, V.W., editor. Biology, 6544 management, and protection of North American sturgeon, Symposium 28. American Fisheries Society, Bethesda, 6545 Maryland. 6546 Shapovalov, L., Taft, A.C., 1954. The life histories of the steelhead rainbow trout (Salmo gairdneri gairdneri) and 6547 silver salmon (Oncorhynchus kisutch) with special reference to Waddell Creek, California, and recommendations 6548 regarding their management. California Department of Fish Game Bulletin 98. Available: 6549 http://content.cdlib.org/xtf/view?docId=kt9x0 nb3v6&brand=calisphere&doc.view=entire_text (May 2008). 6550 Sharma, B., Gopal, K., Khanna, Y.P., 1993. Interaction of carbaryl with acetylcholinesterase of the teleost, Clarias 6551 batrachus . Toxicological and Environmental Chemistry 39, 147-152. 6552 Shea, K., Mangel, M., 2001. Detection of population trends in threatened coho salmon. Can. J. Fish. Aquat. Sci 58, 6553 375-385. 6554 Shea, T.B., Berry, E.S., 1983. Toxicity of carbaryl and 1-naphthol to goldfish ( Carassius auratus ) and killifish 6555 ( Fundulus heteroclitus ). Bulletin of Environmental Contamination and Toxicology 31, 526-529. 6556 Sih, A., Bell, A.M., Kerby, J.L., 2004. Two stressors are far deadlier than one. Trends in Ecology and Evolution 19, 6557 274-276. 6558 Simenstad, C.A., Salo, E.O., 1982. Foraging success as a de terminant of estuarine and nearshore carrying capacity 6559 of juvenile chum salmon (O ncorhychus keta) in Hood Canal, Washin gton. Proceedings of the North Pacific 6560 Aquaculture Symposium, Alaska Sea Grant 82, 21-37. 6561 Sinclair, C.J., Boxall, A.B.A., 2003. Assessment of the environmental properties and effects of pesticide 6562 transformation products. Cranfield University, Center for EcoChemistry, Bedfordshire, United Kingdom. 6563 Slaney, T.L., Hyatt, K.D., Northcote, T.G., Fielden, R.J., 1996. Status of anadromous salmon and trout in British 6564 Columbia and Yukon. Fisheries 21, 20-35. 6565 Smith, E., Baker, J. , 2008. Pacific Island Ecosystem Co mplex chapter, Climate Impacts on U.S. Living Marine 6566 Resources: National Marine Fisheries Service Concerns, Activities and Needs. U.S. Dept. Commerce, NOAA Tech. 6567 Memo. NMFS-F/SPO-89, 118 p. 6568 Smith, W.E., Saalfeld, R.W., 1955. Studies on Columbia River smelt Thaleichthys pacificus (Richardson). 6569 Washington Department of Fisheries, Fisheries Research Paper 1, 3-26. 6570 Sogard, S.M., Williams, T.H., Fish, H., 2009. Seasonal Patterns of Abundance, Growth, and Site Fidelity of Juvenile 6571182 Steelhead in a Small Coastal California Stream. Trans. Am. Fish. Soc. 138, 549-563. 6572 Speckman, S.G., Piatt., J.F., 2000. Historic and current use of Lower Cook Inlet, Alaska, by belugas, Delphinapterus 6573 leucas. Marine Fisheries Review 62, 22-26. 6574 Squiers, T.S., 2003. Completion report Kennebec River shortnose sturgeon population study (1997-2001). National 6575 Marine Fisheries Service. 6576 Staubitz, W.W., Bortleson, G., Semans , S., Tesoriero, A., Black, R., 1997. Water-Quality Assessment of the Puget 6577 Sound Basin, Washington, Environmental Setting and Its Implications for Water Quality and Aquatic Biota. USGS 6578 Water-Resources Investigations Report, 1997, 86. 6579 Stearns, S.C., 1977. The evolution of life history traits: a critique of the theory and a review of the data. Annual 6580 Review of Ecology and Systematics 8, 145-171. 6581 Stearns, S.C., 1992. The evolution of life histories. Oxford University Press, New York, New York. 6582 Stephen, C., Research, U.S.E.P.A.O.o., Development, 1985. Guidelines for deriving numerical national water 6583 quality criteria for the protection of aquatic organisms a nd their uses. United States Environmental Protection 6584 Agency, Office of Research and Development. 6585 Stewart, I.T., Cayan, D.R., Dettinger, M.D., Changes toward earlier streamflow timing across western North 6586 America. 6587 Stewart, I.T., Cayan, D.R., Dettinger, M.D., 2004. Change s in snowmelt runoff timing in western North America 6588 under abusiness as usual'climate change scenario. Climatic Change 62, 217-232. 6589 Sturdevant, M.V., Willette, T.M., Jewett, S., Deberec, E., 1999. Diet composition, diet overlap, and size of 14 6590 species of forage fish collected monthly in PWS, Alaska, 1994-1995. In: Sturdevant, M.V. (Ed.), pp. 12-36. 6591 Tierney, K.B., Sampson, J.L., Ross, P.S., Sekela, M.A., Kennedy, C.J., 2008. Salmon olfaction is impaired by an 6592 environmentally realistic pesticide mixture. Environmental Science & Technology 42, 4996-5001. 6593 Tiffan, K.F., Kock, T.J., Haskell, C.A., Connor, W.P., Steinhorst, R.K., 2009. Water velocity, turbulence, and 6594 migration rate of subyearling fall Chinook salmon in the free-flowing and impounded Snake River. Transactions of 6595 the American Fisheries Society 138, 373-384. 6596 Tutschulte, T.C., 1976. The co mparative ecology of three sympatric abalone s. Doctoral dissertation. University of 6597 California, San Diego. 6598 Van Eenennaam, J.P., Linares, J., Doroshov, S.I., Hillemeier, D.C., Willson, T.E., Nova, A.A., 2006. Reproductive 6599 conditions of the Klamath River green sturge on. Trans. Am. Fish. Soc. 135, 151-163. 6600 Varanasi, U., E., Casillas, M. R., Arkoosh, T., Hom, D.A., Misitano, D. W., Brown, S.-L., Chan, T.K.C., McCain, 6601 B.B., Stein, J.E., 1993. Contaminant exposure and asso ciated biological effects in juvenile Chinook salmon 6602 (Oncorhynchus tshawytscha) from urban and nonurban estuaries of Puget Sound. NOAA Technical Memorandum 6603 NMFS-NWFSC-8. Seattle, Washington. 6604 Walker, L.A., Cornell, L., Dahl, K.D., Czekala, N.M., Da rgen, C.M., Joseph, B., Hsueh, A.J.W., Lasley*., B.L., 6605 1988. Urinary concentrations of ovarian steroid hormone metabolites and bioactive follicle-stimulating hormone in 6606 killer whales (Orcinus orca) during ovarian cycles and pregnancy. Biology of Reproduction 39, 1013-1020. 6607 Waples, R.S., Aebersold, P.B., Winans, G.A., 1997. Popu lation genetic structure and life history variability in 6608 Oncorhynchus nerka from the Snake River basin. Report to Bonneville Power Administration, Contract No. 6609 1993BP05326, Project No. 199306800. BPA Report DOE/BP-05326-1. 6610 Waples, R.S., Johnson, O.W., R.P. Jones, Jr., 1991. Status review for Snake River sockeye salmon. U.S. Department 6611 of Commerce, NOAA Technical Memorandum NMFS F/NWC-195. 6612 Ward, E., Holmes, E., Balcomb, K., 2009a. Quantifying the effects of prey abundance on killer whale reproduction. 6613 Journal of Applied Ecology 46, 632-640. 6614 Ward, E.J., Parsons, K., Holmes, E.E. , III, K.C.B., Ford., J.K.B., 2009b. Th e role of menopause and reproductive 6615 senescence in a long-lived social mammal. Frontiers in Zoology 6. 6616183 Ware, S., Frost, C., Doerr, P.D., 1993. Southern mixed hardwood forest: the former longleaf pine forest. 6617 Biodiversity of the southeastern United States: Lowland terrestrial communities, 447-493. 6618 WDF, 1993. Washington Department of Fisheries 1992 Washington State salmon and steelhead stock inventory 6619 (SASSI). Washington Department of Fisheries, Washington Department of Wildlife, Western Washington Treaty 6620 Indian Tribes, Olympia, Washington. 6621 WDFW, ODFW, 2001. Washington and Oregon eulachon management plan. Washington Department of Fish and 6622 Wildlife and Oregon Department of Fish and Wildlife. 6623 Webb, M.A., Feist, H.G.W., Fitzpatrick, M.S., Foster, E.P., Schreck, C.B., Plumlee, M., Wong, C., Gundersen, D.T., 6624 2006. Mercury concentrations in gonad, liver, and muscle of white sturgeon Acipenser transmontanus in the Lower 6625 Columbia River. Archives of Environmental Contamination and Toxicology 50, 443–451. 6626 Wedemeyer, G.A., Saunders, R.L., Clarke, W.C., 1980. E nvironmental factors affecting smoltification and early 6627 marine survival of anadromous salmonids. Mar.Fish.Rev., 1–14. 6628 Williams, J.E., Haak, A.L., Neville, H.M., Colyer, W.T., 2009. Potential consequences of climate change to 6629 persistence of cutthroat trout populations. North American Journal of Fisheries Management 29. 6630 Williams, R., Bain, D.E., Ford, J.K.B., Trites, A.W., 2002a . Behavioural responses of male killer whales to a 6631 ‘leapfrogging’ vessel. Journal of Cetacean Research, and Management 4, 305-310. 6632 Williams, R., Trites, A.W., Bain, D.E., 2002b. Behavioural responses of killer whales (Orcinus orca) to whale6633 watching boats: opportunistic observations and experimental approaches. Journal of Zoology 256, 255-270. 6634 Willson, M.F., Armstrong, R.H., Hermans, M.C., Koski, K., 2006. Eulachon: a review of biology and an annotated 6635 bibliography. Auke Bay Laboratory, Alaska Fisheries Science Center, Juneau, Alaska. 6636 Wing, B.L., 1977. Salmon food observations. Pages 20-27 in: Southeast Alaska troll log book program: 1976 6637 scientific report. Alaska Sea Grant Report 77-11. 6638 Wirgin, I., Grunwald, C., Carlson, E., Stabile, J., Pe terson, D.L., Waldman, J., 2005. Range-wide population 6639 structure of shortnose sturgeon Acipenser brevirostrum based on sequence analysis of the mitochondrial DNA 6640 control region. Estuaries 28, 16. 6641 Wright, S., 1999. Petition to list eulachon Thaleichthys pacifi cus as threatened or endang ered under the Endangered 6642 Species Act. 6643 Wydoski, R., Whitney, R., 1979. Inland fishes of Washington. University of Washington Press. 6644 Yang, M.S., Nelson, M.W., 1999. Food habits of the commercially important groundfishes in the Gulf of Alaska in 6645 1990, 1993, and 1996. NOAA. 6646 Ylitalo, G.M., Myers, M., St ewart, B.S., Yochem, P.K., Braun, R., Kashinsky, L., Boyd, D., Antonelis, G.A., 6647 Atkinson, S., Aguirre, A.A., Krahn, M.M., 2008. Organochlorine contaminants in endangered Hawaiian monk seals 6648 from four subpopulations in the Northwestern Ha waiian Islands. Marine Pollution Bulletin 56, 231-244. 6649 Yoshiyama, R.M., Gerstung, E.R., Fisher, F.W., Moyle, P. B., 1996. Historical and present distribution of chinook 6650 salmon in the Central Valley drainage of California. Department of Wildlife, Fish, and Conservation Biology, 6651 University of Californi a, Davis California. 6652 Zabel, R.W., Achord, S., 2004. Relating size of individuals to juvenile survival within and among closely-related 6653 populations of chinook salmon. Ecology 85, 795-806. 6654 Zabel, R.W., Williams, J.G., 2002. Selective mortality in Chinook salmon: What is the role of human disturbance? 6655 Ecological Applications 12, 173-183. 6656 Zimmerman, C.E., Edwards, G.W., Perry, K., 2009. Maternal Origin and Migratory History of Steelhead and 6657 Rainbow Trout Captured in Rivers of the Central Valley, Ca lifornia. Transactions of th e American Fisheries Society 6658 138, 280-291. 6659 Zinkl, J.G., Shea, P.J., Nakamoto, R.J., Callman, J., 1987. Br ain cholinesterase activity of rainbow trout poisoned by 6660 carbaryl. Bulletin of environmental cont amination and toxicology 38, 29-35. 6661184 6662
6663
6664185 APPENDIX A: List of Pesticides Polluta nts Authorized by the PGP 6665

6666
EPA States that: “[this] list of pesticides provided to you [NMFS] in the 6667 biological evaluation generated from OPP's [Office of Pesticide Programs] 6668 database is the best information we have available. 6669

6670 All Use Categories
Active Ingredient Count: 171

(**)-Trifluoro-4-nitro-m-cresol (**) = alpha,alpha,alpha-
(+-)-2-(4,5-Dihydro-4-methyl-4-(1-methylethyl)-5-oxo-1H-imida
(R)-2-(2,4-Dichlorophenoxy)propanoic acid, dimethylamine salt
1-(4,6-dimethoxypyrimidin-2-yl)-3-(2-ethylsulfonylimidazo{1,2
1,3-Dibromo-5,5-dimethylhydantoin
1-Bromo-1-(bromomethyl)-1,3-propanedicarbonitrile
1-Bromo-3-chloro-5,5-dimethylhydantoin
2-(1-Methyl-2-(4-phenoxyphenoxy)ethoxy)pyridine
2,2-Dibromo-3-nitrilopropionamide
2,4-Dinitro-N3,N3-dipropyl-6-(trifluoromethyl)-1,3-benzenedia
2,4-Dodecadienoic acid, 11-methoxy-3,7,11-trimethyl-, 1-met
2-4,D 2-Ethylhexyl (R)-2-(2,4-dichlorophenoxy)propionate
2-Ethylhexyl 2-(2,4-dichlorophenoxy)propionate
Acephate
Acetic acid, (2,4-dichlorophenoxy)-, 2-ethylhexyl ester

Acrolein
Alkyl* dimethyl benzyl ammonium chloride *(50%C14, 40%C12, 10
Alkyl* dimethyl benzyl ammonium chloride *(60%C14, 30%C16, 5%
Alkyl* dimethyl ethylbenzyl ammonium chloride *(68%C12, 32%C1
Antimycin A186 Asulam, sodium salt

Atrazine
Bacillus thuringiensis subspecies israelensis Strain BMP

Bacillus licheniformis SB3086
Bacillus sphaericus
Bacillus thuringiensis subspecies israelensis
Bacillus thuringiensis subspecies aizawai
Bacillus thuringiensis subspecies kurstaki
Bacillus thuringiensis subspecies tenebrionis
Benzenesulfonamide, 2-(2,2-difluoroethoxy)-N-(5,8-dimethoxy[1

Bifenthrin

Bromacil
Bromacil, lithium salt

Bromine chloride
Butoxyethyl 2,4-di chlorophenoxyacetate
Butoxyethyl triclopyr
Calcium hypochlorite
Carbaryl
Carfentrazone-ethyl
CAS Reg. No. 566191-87-5
CAS Reg. No. 566191-89-7
CAS Reg. No. 68038-71-1 Chlorflurenol, methyl ester

Chlorine

Chlorine dioxide
Chlorophacinone
Chlorpyrifos

Chlorsulfuron
Cis-7,8-Epoxy-2-me thyloctadecane187 Clopyralid
Clopyralid, monoethanolamine salt
Clopyralid, triethanolamine
Copper as metallic (in the form of chelates of copper citrate)
Copper carbonate, basic
Copper ethanolamine complex
Copper ethylenediamine complex
Copper sulfate pentahydrate
Copper triethanolamine complex

Cube Resins other than rotenone

Deltamethrin

Diazinon

Dicamba
Dicamba, diglycoamine salt
Dicamba, dimethylamine salt
Dicamba, sodium salt

Dichlorvos
Didecyl dimethyl ammonium chloride
Diethanolamine (2,4-d ichlorophenoxy)acetate

Difethialone

Diflubenzuron

Dimethoate
Dimethylamine (R)-2-(2-methyl-4-chlorophenoxy)propionate
Dimethylamine 2,4-dichlorophenoxyacetate
Diphacinone
Diquat dibromide

Diuron
Dodecylguanidine hydrochloride

D-Phenothrin188 Endothall, dipotassium salt
Endothall, mono(N,N-dimethylcocoamine) salt
Erioglaucine
Espesol 3A
Ethyl 2-chloro-5-[4-chloro-(5-difluoromethoxy)-1-methyl-1H-py
Etofenprox

Fluridone
Fluroxypyr 1-methylheptyl ester

Fosamine ammonium

Glufosinate-ammonium

Glutaral
Glycine, N-(phosphonomethyl)- potassium salt
Glycine, N-(phosphonomethyl)-, diammonium salt
Glyphosate
Glyphosate, ammonium salt
Glyphosate, isopropylamine salt

Hexazinone
Hydrogen peroxide
Imazapic
Imazapic-ammonium
Imazapyr Imazapyr, isopropylamine salt
Imazaquin, monoammonium salt
Imidacloprid
Isooctyl 2-(2,4-dichlorophenoxy)propionate
Isopropylamine 2,4-di chlorophenoxyacetate
Lagenidium giganteum, mycelium or oospores

Malathion
MCPA, dimethylamine salt189 Mecoprop (and salts and esters)
Methanone, [3-(4,5-dihydro-3-isoxazolyl)-2-methyl-4-(methylsu
Methoprene
Methoxychlor
Methyl 2,7-dichlorohydroxyfluorene-9-carboxylate
Methyl 9-hydroxyfluorene-9-carboxylate
Metsulfuron-methyl

Mineral oil
Mineral oil - includes paraffin oil from 063503

Mono-molecular surface film

Monosodium acid methanearsonate

Naled

Niclosamide
N-Octyl bicycloheptene dicarboximide

Nonanoic acid
Oryzalin
Oxyfluorfen

Pendimethalin

Permethrin
Permethrin, mixed cis,trans
Peroxyacetic acid

Petroleum distillate
Phenol, 4-nitro-3-(trifluoromethyl)

Phenothrin
Picloram, triisopropanolamine salt
Piperonyl butoxide

POE isooctadecanol
Poly(oxyethylene(dimethyliminio)ethylene(dimethyliminio)ethyl
Polyhedral inclusion bodies of gypsy moth nucleopolyhedrosis virus190 Prallethrin

Prometon Pyrethrins

Resmethrin

Rimsulfuron

Rotenone Saccharopolyspora spinosa fermen tation product containing Spi

Saflufenacil
Sodium 2,4-dichlorophenoxyacetate

Sodium bromide

Sodium chlorate
Sodium dichloroisocyanurate dihydrate

Sodium dichloro-s-triazinetrione
Sodium hypochlorite
Sodium metaborate (NaBO2)
Sodium percarbonate
Spinosad

Sulfentrazone
Sulfometuron methyl

Sumithrin

Tartrazine

Tau-fluvalinate

Tebufenozide

Tebuthiuron
Temephos
Tetrakis(hydroxymethyl)phosphonium sulphate (THPS)

Trichlorfon

Trichloro-s-triazinetrione
Triclopyr191 Triclorfon
Triethylamine triclopyr
Triisopropanolamine 2,4-dichlorophenoxyacetate
Zinc phosphide (Zn3P2)
Zinc sulfate monohydrate

6671

6672192 APPENDIX B: Definition of Adverse Incidents in the PGP 6673

6674
From the Draft PGP Appendix A : 6675

Adverse Incident – means an unusual or unexpected incident that an Operator has observed upon inspection or of 6676 which the Operator otherwise become aware, in which : 6677
(1) There is evidence that a person or non-target orga nism has likely been exposed to a pesticide residue, and 6678
(2) The person or non-target organism suffered a toxic or adverse effect. The phrase toxic or adverse effects 6679 includes effects that occur within waters of the United States on non-target plants , fish or wildlife that are unusual or 6680 unexpected (e.g., effects are to organisms not otherwise described on the pesticide product label or otherwise not 6681 expected to be present) as a result of exposu re to a pesticide residue, and may include: 6682

 Distressed or dead juvenile and small fishes 6683

 Washed up or floating fish 6684

 Fish swimming abnormally or erratically 6685

 Fish lying lethargically at wate r surface or in shallow water 6686

 Fish that are listless or nonresponsive to disturbance 6687

 Stunting, wilting, or desiccatio n of non-target submerged or emergent aquatic plants 6688

 Other dead or visibly distressed non-target aquatic organisms (amphibians, turtles, invertebrates, etc.) 6689
The phrase, toxic or adverse effects , also includes any adverse effects to humans (e.g., skin rashes) or 6690 domesticated animals that occur either from direct cont act with or as a secondary effect from a discharge 6691 (e.g., sickness from consumption of plants or animals containing pesticides) to Wa ters of the United States 6692 that are temporally and sp atially related to exposure to a pestic ide residue (e.g., vom iting, lethargy). 6693