Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Proposed Rules 515 

proposal. A fact sheet on the proposal 

was also mailed to the community. 

Determination That the Site Meets the 

Criteria for Deletion in the NCP 

The NCP [40 CFR 300.425(e)] states 

that a site may be deleted from the NPL 

when no further response action is 

appropriate. EPA, in consultation with 

the State of New Mexico, has 

determined that all appropriate 

response actions under CERCLA for the 

northern 62-acre parcel of the AT&SF 

Albuquerque Superfund Site, other than 

operation, maintenance, and five-year 

reviews, have been implemented, and 

no further response action by the PRP is 

appropriate. 

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

waste, Hazardous substances, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 

9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 

1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 

3 CFR, 1987 Comp., p. 193. 

Dated: December 17, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

[FR Doc. 2010–33109 Filed 1–4–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 101027536–0540–02] 

RIN 0648–BA38 

Endangered and Threatened Species, 

Designation of Critical Habitat for 

Southern Distinct Population Segment 

of Eulachon 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comment. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), propose to 

designate critical habitat for the 

southern Distinct Population Segment 

(DPS) of Pacific eulachon (Thaleichthys 

pacificus), which was recently listed as 

threatened under the Endangered 

Species Act (ESA). We have proposed 

12 specific areas for designation as 

critical habitat within the states of 

California, Oregon, and Washington. 

The proposed areas are a combination of 

freshwater creeks and rivers and their 

associated estuaries which comprise 

approximately 470 km (292 mi) of 

habitat. Three particular areas are 

proposed for exclusion after evaluating 

the impacts and benefits associated with 

tribal land ownership and management 

by Indian tribes, but no areas are 

proposed for exclusion based on 

economic impacts. 

We are soliciting comments from the 

public on all aspects of the proposal, 

including information on the economic, 

national security, and other relevant 

impacts of the proposed designation, as 

well as the benefits to the southern DPS 

of eulachon from designation. We will 

consider additional information 

received prior to making a final 

designation. 

DATES: Comments on this proposed rule 

must be received by close of business on 

March 7, 2011. A public meeting has 

been scheduled for January 26, 2011 

from 3:30–5:30 p.m. and 6–8 p.m. at the 

Doubletree Hotel, 1000 NE Multnomah 

Street, Portland, OR 97232. Requests for 

additional public hearings should be 

made in writing by February 22, 2011. 

ADDRESSES: You may submit comments 

on the proposed rule, identified by RIN 

0648–BA38, by any one of the following 

methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 503–230–5441, Attn: Marc 

Romano. 

• Mail: Chief, Protected Resources 

Division, Northwest Region, National 

Marine Fisheries Service, 1201 Lloyd 

Blvd, Suite 1201, Portland, OR 97232. 

Instructions: Comments will be 

posted for public viewing after the 

comment period has closed. All 

comments received are a part of the 

public record and will generally be 

posted to http://www.regulations.gov 

without change. NMFS may elect not to 

post comments that contain obscene or 

threatening content. All Personal 

Identifying Information (for example, 

name, address, etc.) voluntarily 

submitted by the commenter may be 

publicly accessible. Do not submit 

Confidential Business Information or 

otherwise sensitive or protected 

information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. The 

proposed rule, list of references and 

supporting documents (including the 

Draft Eulachon Biological Report (NMFS 

2010b); the Draft Eulachon Economic 

Analysis (NMFS 2010c); and, the Draft 

Eulachon Section 4(b)(2) Report (NMFS, 

2010d)) are also available electronically 

at http://www.nwr.noaa.gov/. 

FOR FURTHER INFORMATION CONTACT: 

Marc Romano, NMFS, Northwest 

Region, Protected Resources Division, at 

the address above or at 503–231–2200, 

or Jim Simondet, NMFS, Southwest 

Region, Protected Resources Division, 

Arcata, CA 707–825–5171, or Dwayne 

Meadows, NMFS, Office of Protected 

Resources, Silver Spring, MD 301–713– 

1401. 

SUPPLEMENTARY INFORMATION: 

Background 

On March 18, 2010, we listed the 

southern DPS of Pacific eulachon as 

threatened under the ESA (75 FR 

13012). During the public comment 

period on the proposed rule to list the 

southern DPS of eulachon, we requested 

and received some information on the 

quality and extent of eulachon 

freshwater and estuarine habitat (73 FR 

13185; March 12, 2008). However, at the 

time of listing, we concluded that 

critical habitat was not determinable 

because sufficient information was not 

available to: (1) Determine the 

geographical area occupied by the 

species; (2) identify the physical and 

biological features essential to 

conservation; and (3) assess the impacts 

of a designation. During promulgation of 

the final rule to list eulachon, we were 

working to compile the best available 

information necessary to consider a 

critical habitat designation. We have 

now researched, reviewed and 

summarized this best available 

information on eulachon, including 

recent biological surveys and reports, 

peer-reviewed literature, the NMFS 

status report for eulachon (NMFS 

2010a), the proposed rule to list 

eulachon (74 FR 10857; March 13, 

2009), and the final listing 

determination for eulachon (75 FR 

13012; March 18, 2010) and had 

discussions with and considered 

recommendations by State, Federal, and 

tribal biologists familiar with eulachon. 

We used this information to identify the 

geographical area occupied, specific 

areas that may qualify as critical habitat 

for the southern DPS, as well as 

potential impacts associated with the 

designation and proposed exclusions. 

We considered various alternatives to 

the critical habitat designation for 


srobinson on DSKHWCL6B1PROD with PROPOSALS
516 Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Proposed Rules 

southern DPS eulachon. The alternative 

of not designating critical habitat for 

southern DPS eulachon would impose 

no economic, national security, or other 

relevant impacts, but would not provide 

any conservation benefit to the species. 

This alternative was considered and 

rejected because such an approach does 

not meet the legal requirements of the 

ESA and would not provide for the 

conservation of southern DPS eulachon. 

The alternative of designating all of the 

areas considered for designation (i.e., no 

areas excluded) was also considered and 

rejected because, for three areas, the 

benefits of exclusion outweighed the 

benefits of designation, and NMFS did 

not determine that exclusion of these 

areas would significantly impede 

conservation of the species or result in 

extinction of the species. The total 

estimated annualized economic impact 

associated with the designation of all of 

the areas considered would be $500,000 

(discounted at 7 percent) or $520,000 

(discounted at 3 percent). 

An alternative to designating critical 

habitat within all of the areas 

considered for designation is the 

designation of critical habitat within a 

subset of these areas. Under section 

4(b)(2) of the ESA, NMFS must consider 

the economic impacts, impacts to 

national security, and other relevant 

impacts of designating any particular 

area as critical habitat. NMFS has the 

discretion to exclude an area from 

designation as critical habitat if the 

benefits of exclusion (i.e., the impacts 

that would be avoided if an area were 

excluded from the designation) 

outweigh the benefits of designation 

(i.e., the conservation benefits to 

southern DPS eulachon if an area were 

designated), so long as exclusion of the 

area will not result in extinction of the 

species. Exclusion under section 4(b)(2) 

of the ESA of one or more of the areas 

considered for designation would 

reduce the total impacts of designation. 

The determination of which units to 

exclude depends on NMFS’ ESA section 

4(b)(2) analysis, which is conducted for 

each area and described in detail in the 

draft ESA 4(b)(2) report (NMFS, 2010b). 

Under the preferred alternative we 

propose to exclude three of the 14 areas 

considered (we propose to exclude two 

of the areas completely and part of the 

third area). The total estimated 

economic impact associated with this 

preferred alternative is $460,500 

(discounted at 7 percent) or $479,000 

(discounted at 3 percent). We 

determined that the exclusion of these 

areas would not significantly impede 

the conservation of southern DPS 

eulachon nor result in extinction of the 

species. We selected this as the 

preferred alternative because it results 

in a critical habitat designation that 

provides for the conservation of 

southern DPS eulachon while reducing 

other relevant impacts. This alternative 

also meets the requirements under the 

ESA and our joint NMFS-U.S. Fish and 

Wildlife Service (USFWS) regulations 

concerning critical habitat. 

Section 3 of the ESA defines critical 

habitat as ‘‘(i) the specific areas within 

the geographical area occupied by the 

species, at the time it is listed * * *, on 

which are found those physical or 

biological features (I) essential to the 

conservation of the species and (II) 

which may require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed * * *, upon a determination 

by the Secretary that such areas are 

essential for the conservation of the 

species.’’ Section 3 of the ESA (16 U.S.C. 

1532(3)) also defines the terms 

‘‘conserve,’’ ‘‘conserving,’’ and 

‘‘conservation’’ to mean: ‘‘to use, and the 

use of, all methods and procedures 

which are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to this 

chapter are no longer necessary.’’ 

Critical habitat cannot be designated in 

areas outside of U.S. jurisdiction (50 

CFR 424.12h). Section 4 of the ESA 

requires that, before designating critical 

habitat, we consider economic impacts, 

impacts on national security, and other 

relevant impacts of specifying any 

particular area as critical habitat. The 

Secretary of Commerce (Secretary) may 

exclude any area from critical habitat if 

he determines that the benefits of 

exclusion outweigh the benefits of 

designation, unless excluding an area 

from critical habitat will result in the 

extinction of the species concerned. 

Once critical habitat is designated, 

section 7(a)(2) of the ESA requires that 

each Federal agency, in consultation 

with NMFS and with our assistance, 

ensure that any action it authorizes, 

funds, or carries out is not likely to 

result in the destruction or adverse 

modification of critical habitat. This 

requirement is additional to the section 

7 requirement that Federal agencies 

ensure their actions do not jeopardize 

the continued existence of listed 

species. 

Eulachon Natural History 

Eulachon are an anadromous fish, 

meaning adults migrate from the ocean 

to spawn in freshwater creeks and rivers 

where their offspring hatch and migrate 

back to the ocean to forage until 

maturity. Although they spend 95 to 98 

percent of their lives at sea (Hay and 

McCarter 2000), little is known 

concerning the saltwater existence of 

eulachon. The species is endemic to the 

northeastern Pacific Ocean, ranging 

from northern California to the 

southeastern Bering Sea in Bristol Bay, 

Alaska (McAllister, 1963; Scott and 

Crossman, 1973; Willson et al., 2006). 

This distribution coincides closely with 

the distribution of the coastal temperate 

rain forest ecosystem on the west coast 

of North America (with the exception of 

populations spawning west of Cook 

Inlet, Alaska). 

In the portion of the species’ range 

that lies south of the U.S.-Canada 

border, most eulachon production 

originates in the Columbia River basin. 

Within the Columbia River basin, the 

major and most consistent spawning 

runs return to the mainstem of the 

Columbia River and the Cowlitz River. 

Spawning also occurs in other 

tributaries to the Columbia River, 

including the Grays, Elochoman, 

Kalama, Lewis, and Sandy Rivers 

(WDFW and ODFW, 2001). Historically, 

the only other large river basins in the 

contiguous United States where large, 

consistent spawning runs of eulachon 

have been documented are the Klamath 

River in northern California and the 

Umpqua River in Oregon. Eulachon 

have been found in numerous coastal 

rivers in northern California (including 

the Mad River and Redwood Creek), 

Oregon (including Tenmile Creek south 

of Yachats, OR) and Washington 

(including the Quinault and Elwha 

Rivers) (Emmett et al., 1991; Willson et 

al., 2006). 

Major eulachon production areas in 

Canada are the Fraser and Nass rivers 

(Willson et al., 2006). Numerous other 

river systems in central British 

Columbia and Alaska have consistent 

yearly runs of eulachon and historically 

supported significant levels of harvest 

(Willson et al., 2006; NMFS, 2010a). 

Many sources note that runs 

occasionally occur in other rivers and 

streams, although these tend to be 

sporadic, appearing in some years but 

not others, and appearing only rarely in 

some river systems (Hay and McCarter, 

2000; Willson et al., 2006). 

Early Life History and Maturation 

Eulachon eggs can vary considerably 

in size but typically are approximately 

1 mm (0.04 in) in diameter and average 

about 43 mg (0.002 oz) in weight (Hay 

and McCarter, 2000). Eggs are enclosed 

in a double membrane; after fertilization 

in the water, the outer membrane breaks 

and turns inside out, creating a sticky 

stalk which acts to anchor the eggs to 


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the substrate (Hart and McHugh, 1944; 

Hay and McCarter, 2000). Eulachon eggs 

hatch in 20 to 40 days with incubation 

time dependent on water temperature 

(Howell, 2001). Shortly after hatching, 

the larvae are carried downstream and 

dispersed by estuarine, tidal, and ocean 

currents. Larval eulachon may be 

retained in low salinity, surface waters 

of estuaries for several weeks or longer 

(Hay and McCarter, 2000) before 

entering the ocean. Similar to salmon, 

juvenile eulachon are thought to imprint 

on the chemical signature of their natal 

river basin. However, because juvenile 

eulachon spend less time in freshwater 

environments than do juvenile salmon, 

researchers believe that this short 

freshwater residence time may cause 

returning eulachon to stray between 

spawning sites at higher rates than 

salmon (Hay and McCarter, 2000). 

Once juvenile eulachon enter the 

ocean, they move from shallow 

nearshore areas to deeper areas over the 

continental shelf. Larvae and young 

juveniles become widely distributed in 

coastal waters, where they are typically 

found near the ocean bottom in waters 

20 to 150 m deep (66 to 292 ft) (Hay and 

McCarter, 2000) and sometimes as deep 

as 182 m (597 ft) (Barraclough, 1964). 

There is currently little information 

available about eulachon movements in 

nearshore marine areas and the open 

ocean. However, eulachon occur as 

bycatch in the ocean shrimp (Pandalus 

jordani) fishery (Hay et al., 1999; Olsen 

et al., 2000; NWFSC, 2008; Hannah and 

Jones, 2009), which seems to indicate 

that the distribution of these organisms 

may overlap in the ocean. 

Spawning Behavior 

Eulachon typically spend several 

years in salt water before returning to 

fresh water to spawn from late winter 

through early summer. Eulachon are 

semelparous, meaning that they spawn 

once and then die. Spawning grounds 

are typically in the lower reaches of 

larger rivers fed by snowmelt (Hay and 

McCarter, 2000). Willson et al. (2006) 

concluded that the age distribution of 

eulachon in a spawning run varies 

considerably, but typically consists of 

fish that are 2 to 5 years old. Eulachon 

eggs commonly adhere to sand (Langer 

et al., 1977) or pea-sized gravel (Smith 

and Saalfeld, 1955), though eggs have 

been found on silt, gravel to cobble 

sized rock, and organic detritus (Smith 

and Saalfeld 1955, Langer et al., 1977, 

Lewis et al., 2002). Eggs found in areas 

of silt or organic debris reportedly suffer 

much higher mortality than those found 

in sand or gravel (Langer et al., 1977). 

In many rivers, spawning is limited to 

the part of the river that is influenced 

by tides (Lewis et al., 2002), but some 

exceptions exist. In the Berners Bay 

system of Alaska, the greatest 

abundance of eulachon are observed in 

tidally-influenced reaches, but some 

fish ascend well beyond the tidal 

influence (Willson et al., 2006). In the 

Kemano River, Canada, water velocity 

greater than 0.4 meters/second begins to 

limit the upstream movements of 

eulachon (Lewis et al., 2002). 

Entry into the spawning rivers 

appears to be related to water 

temperature and the occurrence of high 

tides (Ricker et al., 1954; Smith and 

Saalfeld, 1955; Spangler, 2002). 

Spawning generally occurs in January, 

February, and March in the Columbia 

River, the Klamath River, and the 

coastal rivers of Washington and 

Oregon, and April and May in the Fraser 

River (NMFS, 2010a). Eulachon runs in 

central and northern British Columbia 

typically occur in late February and 

March or late March and early April. 

Attempts to characterize eulachon run 

timing are complicated by marked 

annual variation in timing. Willson et 

al. (2006) give several examples of 

spawning run timing varying by a 

month or more in rivers in British 

Columbia and Alaska. Climate change, 

especially in regards to ocean 

conditions, is considered a significant 

threat to eulachon and their habitats and 

may also be a factor in run timing 

(NMFS, 2010a). Most eulachon rivers 

are fed by extensive snowmelt or glacial 

runoff, so elevated temperatures and 

changes in snow pack and the timing 

and intensity of stream flows will likely 

impact eulachon run timing. There are 

already indications, perhaps in response 

to warming conditions and/or altered 

stream flow timing, that adult eulachon 

are returning earlier in the season to 

several rivers within the range of the 

southern DPS (Moody, 2008). 

Water temperature at the time of 

spawning varies across the distribution 

of the species. Although spawning 

generally occurs at temperatures from 4 

to 7 °C (39 to 45 °F) in the Cowlitz River 

(Smith and Saalfeld, 1955), and at a 

mean temperature of 3.1 °C (37.6 °F) in 

the Kemano and Wahoo Rivers, peak 

eulachon runs occur at noticeably 

colder temperatures (between 0 and 2 °C 

[32 and 36 °F]) in the Nass River. The 

Nass River run is also earlier than the 

eulachon run that occurs in the Fraser 

River, which typically has warmer 

temperatures than the Nass River 

(Langer et al., 1977). 

Prey 

Eulachon adults feed on zooplankton, 

chiefly eating crustaceans such as 

copepods and euphausiids, including 

Thysanoessa spp. (Hay and McCarter, 

2000; WDFW and ODFW, 2001), 

unidentified malacostracans (Sturdevant 

1999), and cumaceans (Smith and 

Saalfeld, 1955). Eulachon larvae and 

juveniles eat a variety of prey items, 

including phytoplankton, copepods, 

copepod eggs, mysids, barnacle larvae, 

and worm larvae (WDFW and ODFW 

2001). Adults and juveniles commonly 

forage at moderate depths (20–150 m 

[66–292 ft]) in nearshore marine waters 

(Hay and McCarter 2000). Eulachon 

adults do not feed during spawning 

(McHugh 1939, Hart and McHugh 1944). 

Methods and Criteria Used To Identify 

Critical Habitat 

In the following sections, we describe 

the relevant definitions and 

requirements in the ESA and our 

implementing regulations and the key 

methods and criteria used to prepare 

this proposed critical habitat 

designation. In accordance with section 

4(b)(2) of the ESA and our 

implementing regulations (50 CFR 

424.12), this proposed rule is based on 

the best scientific information available 

concerning the southern DPS’s present 

and historical range, habitat, and 

biology, as well as threats to its habitat. 

In preparing this rule, we reviewed and 

summarized current information on 

eulachon, including recent biological 

surveys and reports, peer-reviewed 

literature, NMFS status reviews for 

southern DPS eulachon (NMFS 2010), 

the proposed rule to list eulachon (74 

FR 10857; March 13, 2009), and the 

final listing determination for eulachon 

(75 FR 13012; March 18, 2010). All of 

the information gathered to create this 

proposed rule has been collated and 

analyzed in three supporting 

documents: The Draft Eulachon 

Biological Report (NMFS 2010b); the 

Draft Eulachon Economic Analysis 

(NMFS 2010c); and, the Draft Eulachon 

Section 4(b)(2) Report (NMFS 2010d). 

We used this information to identify 

specific areas that may qualify as critical 

habitat for the southern DPS. We 

followed a five-step process in order to 

identify these specific areas: (1) 

Determine the geographical area 

occupied by the species, (2) identify 

physical or biological habitat features 

essential to the conservation of the 

species, (3) delineate specific areas 

within the geographical area occupied 

by the species on which are found the 

physical or biological features, (4) 

determine whether the features in a 

specific area may require special 

management considerations or 

protections, and (5) determine whether 

any unoccupied areas are essential for 

conservation. Our evaluation and 


srobinson on DSKHWCL6B1PROD with PROPOSALS
518 Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Proposed Rules 

conclusions are described in detail in 

the following sections. 

Geographical Area Occupied by the 

Species 

We relied on the best available data 

from commercial and recreational 

harvest, published literature, field 

observations (including river sampling 

with a variety of net types and research 

trawls), opportunistic sightings, and 

anecdotal information to determine the 

geographical area occupied by the 

southern DPS of eulachon at the time it 

was listed. The southern DPS ranges 

from the Skeena River in British 

Columbia, Canada, to the Mad River in 

California (NMFS 2010a). We cannot 

designate areas outside U.S. jurisdiction 

as critical habitat (see above). Thus, the 

geographical area under consideration 

for this designation is limited to areas 

under the jurisdiction of the United 

States, south of the international border 

with Canada, to the Mad River in 

California. At the time of listing, we had 

information indicating that the 

geographical area occupied consists of 

at least 42 river systems between the 

international border and the Mad River 

(NMFS, 2010b). Although eulachon 

presence has been documented in these 

systems, most river systems have 

limited or irregular sampling for 

eulachon and many other river systems 

within the range of the DPS have never 

been sampled. In addition, given the 

highly migratory nature of eulachon and 

the lack of published records, we do not 

know how far offshore southern DPS 

eulachon are distributed and thus how 

far offshore the geographical area 

occupied by the species extends. 

Physical or Biological Features 

Essential for Conservation 

Joint NMFS-U.S. Fish and Wildlife 

Service (USFWS) regulations at 50 CFR 

424.12(b) state that in determining what 

areas are critical habitat, the agencies 

‘‘shall consider those physical and 

biological features that are essential to 

the conservation of a given species and 

that may require special management 

considerations or protection’’. These 

include, but are not limited to: ‘‘(1) 

Space for individual and population 

growth, and for normal behavior; (2) 

Food, water, air, light, minerals, or other 

nutritional or physiological 

requirements; (3) Cover or shelter; (4) 

Sites for breeding, reproduction, rearing 

of offspring, germination, or seed 

dispersal; and generally: (5) Habitats 

that are protected from disturbance or 

are representative of the historic 

geographical and ecological 

distributions of a species.’’ 

Based on the best available scientific 

information, we developed a list of 

physical and biological features 

essential to the conservation of 

eulachon and relevant to determining 

whether occupied areas are consistent 

with the above regulations and the ESA 

section (3)(5)(A) definition of ‘‘critical 

habitat.’’ The physical or biological 

features essential to the conservation of 

the southern DPS fall into three major 

categories reflecting key life history 

phases of eulachon: 

(1) Freshwater spawning and 

incubation sites with water flow, quality 

and temperature conditions and 

substrate supporting spawning and 

incubation. These features are essential 

to conservation because without them 

the species cannot successfully spawn 

and produce offspring. 

(2) Freshwater and estuarine 

migration corridors free of obstruction 

and with water flow, quality and 

temperature conditions supporting 

larval and adult mobility, and with 

abundant prey items supporting larval 

feeding after the yolk sac is depleted. 

These features are essential to 

conservation because they allow adult 

fish to swim upstream to reach 

spawning areas and they allow larval 

fish to proceed downstream and reach 

the ocean. 

(3) Nearshore and offshore marine 

foraging habitat with water quality and 

available prey, supporting juveniles and 

adult survival. Juveniles eat 

phytoplankton, copepod eggs, copepods 

and other small zooplanktons (including 

euphausiids; Barraclough, 1964), and 

adults eat euphausiids and copepods 

(Hart, 1973). These features are essential 

to conservation because they allow 

juvenile fish to survive, grow, and reach 

maturity, and they allow adult fish to 

survive and return to freshwater systems 

to spawn. 

The components of the freshwater 

spawning and incubation essential 

features include: 

Flow: A flow regime (i.e., the 

magnitude, frequency, duration, 

seasonality, and rate-of-change of 

freshwater discharge over time) that 

supports spawning, and survival of all 

life stages. Most spawning rivers 

experience a spring freshet 

characteristic of rivers draining large 

snow packs or glaciers (Hay and 

McCarter, 2000). In general, eulachon 

spawn at lower water levels before 

spring freshets (Lewis et al., 2002). In 

the Kemano River, Canada, water 

velocity greater than 0.4 m/s (1.3 ft/s) 

begins to limit upstream movements 

(Lewis et al., 2002). Sufficient flow may 

also be needed to flush silt and debris 

from spawning substrate surfaces to 

prevent suffocation of developing eggs. 

Water Quality: Water quality suitable 

for spawning and viability of all 

eulachon life stages. Sublethal 

concentrations of contaminants affect 

the survival of aquatic species by 

increasing stress, predisposing 

organisms to disease, delaying 

development, and disrupting 

physiological processes, including 

reproduction. Adult eulachon can take 

up and store pollutants from their 

spawning rivers, despite the fact that 

they do not feed in fresh water and 

remain there only a few weeks (Rogers 

et al., 1990; WDFW and ODFW, 2001). 

Eulachon have also been shown to avoid 

polluted waters when possible (Smith 

and Saalfeld 1955). 

Water Temperature: Suitable water 

temperatures, within natural ranges, in 

eulachon spawning reaches. Water 

temperature between 4 °C and 10 °C (39 

°F and 50 °F) in the Columbia River is 

preferred for spawning (WDFW and 

ODFW, 2001) although temperatures 

during spawning can be much colder in 

northern rivers (e.g., 0 °C to 2 °C [32 °F 

to 36 °F] in the Nass River; Willson et 

al., 2006). High water temperatures can 

lead to adult mortality and spawning 

failure (Blahm and McConnell, 1971). 

Substrate: Spawning substrates for 

eulachon egg deposition and 

development. Spawning substrates 

typically consist of silt, sand, gravel, 

cobble, or detritus (NMFS 2010a). 

However, pea sized gravel (Smith and 

Saalfeld, 1955) and coarse sand (Langer 

et al., 1977) are the most commonly 

used. Water depth for spawning can 

range from 8 cm (3 in) to at least 7.6 m 

(25 ft) (Willson et al., 2006). 

The components of the freshwater and 

estuarine migration corridor essential 

feature include: 

Migratory Corridor: Safe and 

unobstructed migratory pathways for 

eulachon adults to pass from the ocean 

through estuarine areas to riverine 

habitats in order to spawn, and for 

larval eulachon to access rearing 

habitats within the estuaries and 

juvenile and adults to access habitats in 

the ocean. Lower reaches of larger river 

systems (e.g., the Columbia River) are 

used as migration routes to upriver or 

tributary spawning areas. Out-migrating 

larval eulachon are distributed 

throughout the water column in some 

rivers (e.g., the Fraser River) but are 

more abundant in mid-water and bottom 

portions of the water column in others 

(e.g., the Columbia River; Howell et al., 

2001). 

Flow: A flow regime (i.e., the 

magnitude, frequency, duration, 

seasonality, and rate-of-change of 


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freshwater discharge over time) that 

supports spawning migration of adults 

and outmigration of larval eulachon 

from spawning sites. Most eulachon 

spawning rivers experience a spring 

freshet (Hay and McCarter, 2000) that 

may influence the timing of spawning 

adult migration. In general, eulachon 

spawn at low water levels before spring 

freshets (Lewis et al., 2002). In the 

Kemano River water velocity greater 

than 0.4 m/s (1.3 ft/s) begins to limit 

upstream movements (Lewis et al., 

2002). 

Water Quality: Water quality suitable 

for survival and migration of spawning 

adults and larval eulachon. Adult 

eulachon can take up and store 

pollutants from their spawning rivers, 

despite the fact that they do not feed in 

fresh water and remain there only a few 

weeks (Rogers et al., 1990; WDFW and 

ODFW, 2001). Eulachon avoid polluted 

waters when possible (Smith and 

Saalfeld, 1955). 

Water Temperature: Water 

temperature suitable for survival and 

migration. Eulachon run timing may be 

influenced by water temperature 

(Willson et al., 2006), and high water 

temperatures can increase adult 

mortality (Blahm and McConnell, 1971). 

Given the range of temperatures in 

which eulachon spawn, Langer et al. 

(1977) suggested that the contrast 

between ocean and river temperatures 

might be more critical than absolute 

river or ocean temperatures. 

Food: Prey resources to support larval 

eulachon survival. Eulachon larvae need 

abundant prey items (especially 

copepod larvae; Hart, 1973) when they 

begin exogenous feeding after the yolk 

sac is depleted. Eulachon yolk sac can 

be depleted between 6 and 21 days after 

hatching (Howell, 2001), and larvae may 

be retained in low salinity, surface 

waters of the natal estuary for several 

weeks or longer (Hay and McCarter, 

2000), making this an important 

component in migratory corridor 

habitat. 

The components of the nearshore and 

offshore marine foraging essential 

feature include: 

Food: Prey items, in a concentration 

that supports foraging leading to 

adequate growth and reproductive 

development for juveniles and adults in 

the marine environment. Juveniles eat 

phytoplankton, copepod eggs, copepods 

and other small zooplankton (including 

euphausiids; Barraclough, 1964), and 

adults eat euphausiids and copepods 

(Hart, 1973). 

Water Quality: Water quality suitable 

for adequate growth and reproductive 

development. The water quality 

requirements for eulachon in marine 

habitats are largely unknown, but they 

would likely include adequate dissolved 

oxygen levels, adequate temperature, 

and lack of contaminants (such as 

pesticides, organochlorines, elevated 

levels of heavy metals) that may disrupt 

behavior, growth, and viability of 

eulachon and their prey. 

Specific Areas Within the Geographical 

Area Occupied by the Species 

After determining the geographical 

area occupied by the southern DPS of 

eulachon, and the physical and 

biological features essential to their 

conservation, we next identified the 

specific areas within the geographical 

area occupied by the species that 

contain the essential features. All of the 

essential physical and biological 

features we identified within the 

freshwater and estuarine environment 

are within specific areas associated with 

spawning, or with migrations related to 

spawning events. In order to delineate 

specific areas where the spawning sites 

and migration corridors occur, we relied 

on evidence of eulachon spawning and 

migration. To ensure that our selection 

of the specific areas was based on the 

best available information we developed 

two criteria to identify areas where 

spawning, and spawning migration, 

occurs. These criteria are sites that 

contain: (1) Larval fish or pre-/postspawn adults that have been positively 

identified and documented; or (2) 

commercial or recreational catches that 

have been documented over multiple 

years. Within the geographic area 

occupied by the southern DPS, there are 

42 creeks and rivers with documented 

presence of eulachon (NMFS, 2010a). Of 

these, we identified 14 that meet at least 

one of the criteria for spawning. 

We next considered the distribution 

of the essential features within these 

creeks or rivers. We again used evidence 

of eulachon spawning and spawning 

migration to delineate the extent of the 

specific areas where the spawning sites 

and spawning migration corridors are 

found. We relied on data from 

published literature, field observations 

(including river sampling with a variety 

of net types), opportunistic sightings, 

commercial and recreational harvest, 

and anecdotal information. Given the 

extremely limited sampling done for 

this species, we chose to rely on the 

most recent information available to us 

to determine which areas were eligible 

for designation. For some creeks and 

rivers, opportunistic sightings are the 

only information that is available to 

identify the distribution of the essential 

features, and in these cases we relied on 

the best professional judgment of agency 

and tribal biologists familiar with the 

area to identify the extent of the 

essential features. 

The 14 specific freshwater and 

estuarine areas which contain one or 

more of the essential physical or 

biological features are described below 

and summarized in Table 1, which 

appears at the end of the Special 

Management Considerations section. 

The draft biological report (available via 

the internet and by contacting NMFS; 

see ADDRESSES) provides more detailed 

information on each specific area, 

including a description of the essential 

physical and biological features, special 

management considerations or 

protection that may be needed, and the 

presence and distribution of southern 

DPS eulachon. 

(1) Mad River, CA: The Mad River is 

located in northwestern California. It 

flows for 150 km (95 mi) in a roughly 

northwest direction through Trinity and 

Humboldt Counties, draining a 1,290 

km2 (497 mi2) basin into the Pacific 

Ocean near McKinleyville, California. 

The river’s headwaters are in the Coast 

Range mountains near South Kelsey 

Ridge. 

Eulachon consistently spawned in 

large numbers in the Mad River as 

recently as the 1960s and 1970s (Moyle 

et al., 1995; Moyle, 2002; NMFS, 2010a). 

However, in recent years eulachon 

numbers have declined, and they are 

now considered rare (Sweetnam et al., 

2001). Based on observations by the 

California Department of Fish and Game 

(CDFG), spawning occurs as far 

upstream as the confluence with the 

North Fork of the Mad River (CDFG, 

2009). The river below this point 

contains overlapping spawning and 

incubation sites and migration corridor 

features. 

(2) Redwood Creek, CA: Redwood 

Creek is located entirely in Humboldt 

County, in northwestern California. The 

basin is approximately 105 km (65 mi) 

long, and drains approximately 738 km2

(285 mi2), most of which is forested and 

mountainous terrain (Cannata et al., 

2006). 

Eulachon have been reported from 

Redwood Creek by a variety of sources 

(Young, 1984; Ridenhour and Hofstra, 

1994; Moyle et al., 1995; Larson and 

Belchik, 1998), and runs large enough to 

be noted in available local newspaper 

accounts occurred in 1963 and 1967. 

Eulachon returns to Redwood Creek 

have declined drastically in recent 

years, and they are now considered rare 

(Sweetnam et al., 2001). Although the 

species is not currently targeted in 

sampling efforts, CDFG reported that 

during the early 1970s eulachon 

regularly spawned between the ocean 

and the mouth of Prairie Creek (the first 


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major tributary on Redwood Creek; 

Moyle et al., 1995) indicating that this 

area contains the spawning and 

incubation, and migration corridor 

essential features. Spawning also 

occurred in the lower 0.5 km (0.3 mi) of 

Prairie Creek (Moyle et al., 1995), 

however eulachon have not been seen in 

Prairie Creek since the 1970s. 

The lower reach of Redwood Creek 

alternates between an open estuary and 

a closed coastal lagoon depending on 

the season. During early summer a sand 

bar typically forms across the river 

mouth creating a lagoon. Rains during 

the fall typically clear the sand bar away 

and open up the river mouth to the 

ocean (Cannata et al., 2006). 

(3) Klamath River, CA: The Klamath 

River basin drains approximately 25,100 

km2 (9,690 mi2) in southern Oregon and 

northern California, making it the 

second largest river in California (after 

the Sacramento River). Historically, the 

Klamath River has been a major 

producer of anadromous fish, and once 

was the third most productive salmon 

and steelhead fishery in the continental 

United States, prior to recent significant 

declines (Powers et al., 2005). 

Historically, large aggregations of 

eulachon consistently spawned in the 

Klamath River, and a commercial 

fishery occurred there in 1963. During 

the spawning run, fish were regularly 

caught from the mouth of the river 

upstream to Brooks Riffle, near the 

confluence with Omogar Creek (Larson 

and Belchik, 1998), indicating that this 

area contains the spawning and 

incubation, and migration corridor 

essential features. 

The only reported commercial catch 

of eulachon in Northern California 

occurred in 1963 when a combined total 

of 25 metric tons (56,000 lbs) was 

landed from the Klamath River, the Mad 

River, and Redwood Creek (Odemar, 

1964). Since 1963, the run size has 

declined to the point that only a few 

individual fish have been caught in 

recent years. According to accounts of 

Yurok Tribal elders, the last noticeable 

runs of eulachon were observed in the 

Klamath River in 1988 and 1989 by 

tribal fishers (Larson and Belchik, 1998). 

However, in January 2007, six eulachon 

were reportedly caught by tribal fishers 

on the Klamath River (Yurok Tribe, 

2008). Larson and Belchik (1998) report 

that eulachon have not been of 

commercial importance in the Klamath 

in recent years and are unstudied as to 

their current run strengths. 

Approximately 68 km (42 mi) of the 

lower Klamath River is bordered by the 

Yurok Indian Reservation. The lower 

Klamath River is listed as a National 

Wild and Scenic River from the mouth, 

upstream to just below Iron Gate Dam, 

for a total of 460 km (286 mi). Of these, 

19 km (12 mi) are designated Wild, 39 

km (24 mi) are designated Scenic, and 

402 km (250 mi) are designated 

Recreational. 

(4) Umpqua River/Winchester Bay, 

OR: The Umpqua River Basin consists of 

a 10,925 km2 (4,220 mi2) drainage area 

comprised of the main Umpqua River, 

the North Umpqua River, the South 

Umpqua River, and associated tributary 

streams (Snyder et al. 2006). The 

Umpqua River drains a varied 

landscape, from steep-sloped uplands, 

to low gradient broad floodplains. 

Upstream, the Umpqua River collects 

water from tributaries as far east as the 

Cascade Mountains. 

Historically, a large and consistent 

run of eulachon returned to the Umpqua 

River, and both recreational and 

commercial fisheries occurred. The 

Umpqua River eulachon sport fishery 

was active for many years during the 

1970s and 1980s, with the majority of 

fishing activity centered near the town 

of Scottsburg. A commercial fishery also 

harvested eulachon during that time. 

The Oregon Fish Commission (1970) 

reported that from four to five thousand 

pounds of eulachon were landed by two 

commercial fishermen in the Umpqua 

River during 31 days of drift gill net 

fishing from late December 1966 to midMarch 1967. Numbers of fish returning 

to the Umpqua seem to have declined in 

the 1980s and do not appear to have 

rebounded to previous levels. Johnson 

et al. (1986) list eulachon as occurring 

in trace amounts in their trawl and 

beach-seine samples from April 1977 to 

January 1986. Williams (2009) reported 

on the results of seine collections 

conducted during March to November 

from 1995 to 2003 in Winchester Bay 

estuary on the Lower Umpqua River, 

which confirmed the presence of 

eulachon in four of the years in which 

sampling occurred. 

Eulachon have been documented in 

the lower Umpqua River during 

spawning, from the mouth upstream to 

the confluence of Mill Creek, just below 

Scottsburg (Williams, 2009). This 

indicates that the area downstream from 

this confluence contains the spawning 

and incubation, and migration corridor 

essential features. 

(5) Tenmile Creek, OR: The Tenmile 

Creek watershed lies entirely within 

Lane County, Oregon and encompasses 

approximately 60 km2 (23 mi2) on the 

central Oregon Coast (Johnson, 1999). 

The watershed is in a unique location, 

between the Cummins Creek and Rock 

Creek wilderness areas. Together, this 

area is part of the largest remaining 

contiguous coastal temperate forest in 

the Pacific Northwest. 

Eulachon are regularly caught in 

salmonid smolt traps operated in the 

lower reaches of Tenmile Creek by the 

Oregon Department of Fish and Wildlife 

(ODFW). During previous sampling 

efforts, 80–90 percent of the eulachon 

captured in the traps were spawned out 

and several fish were found dead 

(Williams, 2009). Given the timing of 

the sampling (February to May), it is 

very likely that spawning occurs 

regularly in Tenmile Creek. It is not 

known how far adult eulachon ascend 

the creek to spawn, but the location of 

the ODFW trap (just upstream of the 

Highway 101 bridge) is the confirmed 

upstream extent of adult eulachon in 

spawning condition, and we conclude 

that the specific area containing 

spawning and incubation sites extends 

upstream at least to this point (ODFW, 

2009). 

(6) Sandy River, OR: The Sandy River 

and its tributaries drain 1,316 km2 (508 

mi2). Most of the headwaters of the 

Sandy River are within Clackamas 

County, while the lower mainstem of 

the river lies within Multnomah County. 

The Sandy River originates from glaciers 

on Mount Hood and flows for 90 km (56 

mi) to join the Columbia River near the 

City of Troutdale (Sandy River Basin 

Watershed Council, 1999). The segment 

of the Sandy River from Dodge Park to 

Dabney State Park was designated as a 

National Wild and Scenic River in 

October 1988. 

Large commercial and recreational 

fisheries have occurred in the Sandy 

River in the past. The most recent 

commercial harvest in the Sandy River 

was in 2003 and resulted in a catch of 

10,400 kg (23,000 lbs) (JCRMS 2009). 

During spawning, eulachon extent in 

the Sandy River is typically upstream to 

the confluence with Gordon Creek at 

river km 21 (river mi 13) (Anderson 

2009), indicating that this area contains 

the spawning and incubation, and 

migration corridor essential features. 

(7) Lower Columbia River, OR and 

WA: The lower Columbia River and its 

tributaries support the largest known 

spawning run of eulachon. The 

mainstem of the lower Columbia River 

provides spawning and incubation sites, 

and a large migratory corridor to 

spawning areas in the tributaries. Major 

tributaries of the Columbia River that 

have supported eulachon runs in the 

past include the Grays, Elochoman, 

Cowlitz, Kalama and Lewis Rivers in 

Washington and the Sandy River in 

Oregon (the Columbia River tributaries 

in Washington State are discussed 

below as separate specific areas). 


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Although direct estimates of adult 

spawning stock abundance in the 

Columbia River are unavailable, records 

of commercial fishery landings begin in 

1888 and continue as a nearly 

uninterrupted data set to present 

(NMFS, 2010a). A large recreational 

dipnet fishery, for which catch records 

have not been maintained, has taken 

place concurrent with the commercial 

fishery (WDFW and ODFW, 2001). 

However, the dipnet fishery takes place 

almost entirely within the tributaries. 

During spawning, adult eulachon are 

found in the lower Columbia River from 

the mouth of the river to immediately 

downstream of Bonneville Dam (WDFW 

and ODFW, 2008), indicating that the 

area contains the essential feature of 

migration corridors. Eulachon eggs have 

been collected, and spawning 

presumed, from river km 56 (river mi 

35) to river km 117 (river mi 73) 

(Romano et al., 2002) indicating that 

this area contains the spawning and 

incubation essential feature. However, 

due to the limited range of the study, 

the entire range of eulachon spawning 

in the mainstem of the Columbia River 

remains unknown (Romano et al., 2002). 

Prior to the construction of Bonneville 

Dam, eulachon ascended the Columbia 

River as far as Hood River, Oregon 

(Smith and Saalfeld, 1955). An 

extensive fish passage facility is 

installed at the dam, however eulachon 

have not been reported upstream of 

Bonneville Dam since 1953 (FCO, 1953), 

and it is uncertain whether they can 

navigate the facility. 

The Columbia River, estimated to 

have historically represented half of the 

species’ abundance, experienced a 

sudden decline in its commercial 

eulachon fishery landings in 1993–1994 

(WDFW and ODFW, 2001; JCRMS, 

2009). Commercial catch levels were 

consistently high (usually greater than 

500 metric tons [550 tons] and often 

greater than 1,000 metric tons [1,100 

tons]) for the three quarters of a century 

from about 1915 to 1992. In 1993, 

catches declined greatly to 233 metric 

tons (257 tons) and to an average of less 

than 40 metric tons (44 tons) between 

1994 and 2000. From 2001 to 2004, the 

catches increased to an average of 266 

metric tons (293 tons), before falling to 

an average of less than 5 metric tons (5.5 

tons) from 2005 to 2008. Some of this 

pattern is due to fishery restrictions put 

in place in response to the apparent 

sharp declines in the species 

abundance. Persistent low returns and 

landings of eulachon in the Columbia 

River from 1993 to 2000 prompted the 

states of Oregon and Washington to 

adopt a Joint State Eulachon 

Management Plan in 2001 that provides 

for restricted harvest management when 

parental run strength, juvenile 

production, and ocean productivity 

forecast a poor return (WDFW and 

ODFW, 2001). Despite a brief period of 

improved returns in 2001–2003, the 

returns and associated commercial 

landings have again declined to the very 

low levels observed in the mid-1990s 

(JCRMS, 2009), and since 2005, the 

fishery has operated at the most 

conservative level allowed in the Joint 

State Eulachon Management Plan 

(JCRMS, 2009). 

(8) Grays River, WA: The Grays River 

watershed is located in Pacific and 

Wahkiakum counties, in Washington 

State. The Grays River is a tributary of 

the Columbia River, which it enters near 

the town of Oneida, Washington. The 

Grays River watershed encompasses 322 

km2 (124 mi2) (May and Geist, 2007). 

From 1980 to 1989 the annual 

commercial harvest of eulachon in the 

Grays River varied from 0 to16 metric 

tons (0 to 35,000 lbs.). No commercial 

harvest has been recorded for the Grays 

River from 1990 to the present but larval 

sampling has confirmed successful 

spawning in recent years (e.g., 2009; 

JCRMS, 2009). During spawning, 

eulachon typically ascend the river as 

far as 17.3 km (10.8 miles), to the 

covered bridge near the unincorporated 

town of Grays River, WA (Anderson, 

2009), indicating that this area contains 

the spawning and incubation, and 

migration corridor essential features. 

(9) Elochoman River, WA: The 

Elochoman River is a tributary of the 

Columbia River in southwest 

Washington and it originates in the 

Willapa Hills. The watershed lies within 

Lewis, Cowlitz, and Wahkiakum 

counties and flows generally south to 

the Columbia River. The combined 

Elochoman/Skamokawa watershed area 

is approximately 422 km2 (163 mi2) 

with the Elochoman accounting for the 

majority of the area (LCFRB, 2004a). 

Eulachon spawn occasionally in the 

Elochoman River, although there is no 

history of commercial or recreational 

harvest of eulachon for the Elochoman 

River. Sampling of outmigrating larval 

eulachon by WDFW has confirmed 

spawning in the river 6 times in the last 

15 years, most recently in 2008 (JCRMS, 

2009). WDFW has documented 

spawning eulachon as far as 3.2 km (2 

mi) up the lower Elochoman River to 

the Washington State Highway 4 bridge 

crossing (Anderson, 2009), indicating 

that this area contains the spawning and 

incubation, and migration corridor 

essential features. If eulachon ascend 

the river beyond this point, the water 

intake dam at the old Beaver Creek 

Hatchery (located on the Elochoman 

River at river km 8 [river mi 5]) may be 

a barrier to any further upstream 

migration of eulachon (Wade, 2002). 

(10) Cowlitz River, WA: The Cowlitz 

River flows from its source on the west 

slope of the Cascade Mountains through 

the towns of Kelso and Longview, WA, 

and empties into the Columbia River 

about 109 km (68 mi) upstream from the 

Pacific Ocean. The Cowlitz River drains 

approximately 6,400 km2 (2,480 mi2) 

over a distance of 243 km (151 mi) 

(Dammers et al., 2002). Principal 

tributaries to the Cowlitz River include 

the Coweeman, Toutle, Tilton, and 

Cispus Rivers. 

The Cowlitz River is likely the most 

productive and important spawning 

river for eulachon within the Columbia 

River system (Wydoski and Whitney, 

2003). Spawning adults typically move 

upstream about 26 km (16 mi) to the 

town of Castle Rock, WA or beyond to 

the confluence with the Toutle River. 

Adults are regularly sighted from the 

mouth of the river to 55 km (34 mi) 

upstream (near the town of Toledo, 

WA). Eulachon are occasionally sighted 

as far as 80 km (50 mi) upstream, to the 

barrier dam at the Cowlitz Salmon 

Hatchery (WDFW and ODFW, 2008; 

Anderson, 2009), indicating that this 

area contains the spawning and 

incubation, and migration corridor 

essential features. 

The Cowlitz River currently has 3 

major hydroelectric dams and several 

small-scale hydropower and sediment 

retention structures located on 

tributaries within the Cowlitz Basin. 

Mayfield Dam is located at river km 84 

(river mi 52) and is a complete barrier 

to upstream migration of anadromous 

fishes (LCFRB, 2004b) (although the 

salmon hatchery barrier dam at river km 

80 (river mi 50) may also be a complete 

barrier to eulachon). 

(11) Kalama River, WA: The Kalama 

River basin is a 531 km2 (205 mi2) 

watershed extending from the southwest 

slopes of Mount St. Helens to the 

Columbia River (LCFRB, 2004e). The 

headwaters of the Kalama River begin in 

Skamania County, WA, but the majority 

of the 72 km (45 mi) river flows within 

Cowlitz County. At river km 16 (river mi 

10), a concrete barrier dam and fish 

ladder prevent upstream movement of 

all anadromous fishes with the 

exception of summer steelhead and 

spring Chinook salmon (LCFRB, 2004c). 

The extent of spawning within the 

Kalama River is from the confluence 

with the Columbia River to the Modrow 

Bridge (Anderson, 2009) at river km 4.5 

(river mi 2.8), indicating that this area 

contains the spawning and incubation, 

and migration corridor essential 


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features. Although the last commercial 

harvest of eulachon in the Kalama River 

occurred in 1993, sampling for larval 

eulachon has confirmed spawning in 

the Kalama River as recently as 2002 

(JCRMS, 2009). 

(12) Lewis River, WA: The Lewis River 

enters the Columbia River 104 km (87 

mi) upstream from the mouth of the 

Columbia River, a few kilometers north 

of the town of Ridgefield, Washington. 

The majority of the 1,893 km2 (731 mi2) 

watershed lies within Lewis and 

Skamania Counties (LCFRB, 2004d). 

Although generally not considered as 

large a eulachon run as the Cowlitz 

River, the Lewis River has produced 

very large runs periodically. Nearly half 

of the total commercial eulachon catch 

for the Columbia River Basin in 2002 

and 2003 came from the Lewis River. 

Larval eulachon are caught in WDFW 

sampling on the Lewis River, including 

during the past three years (2007–09) 

(JCRMS, 2009). During spawning, 

eulachon typically move upstream in 

the Lewis River about 16 km (10 mi; to 

Eagle Island), but they have been 

observed upstream to the Merwin Dam 

(31.4 km [19.5 mi] from the mouth of 

the river) (WDFW and ODFW, 2008; 

Anderson, 2009) indicating that this 

area contains the spawning and 

incubation, and migration corridor 

essential features. 

Merwin Dam is 240 feet high and was 

completed in 1931. The dam presents a 

passage barrier to all anadromous fish, 

including eulachon (LCFRB, 2004d). We 

are unable to find information to 

determine whether eulachon ascended 

the river beyond river km 31.4 (river mi 

19.5) prior to construction of the dam. 

(13) Quinault River, WA: The 

headwaters of the Quinault River 

originate in the Olympic Mountains 

within Olympic National Park. The river 

then crosses into the Quinault Indian 

Reservation where it flows into Lake 

Quinault. Downstream of the lake, the 

Quinault River remains within the 

Quinault Indian Reservation for another 

53 km (33 mi) to the Pacific Ocean. The 

total watershed area is 1,190 km2 (460 

mi2) (Smith and Caldwell, 2001). 

Although there is currently no 

monitoring for eulachon in the Quinault 

River, WDFW and ODFW (2001) 

reported that eulachon ‘‘were noted in 

large abundance in the Quinault’’ River 

in 1993. A noticeable number of 

eulachon make an appearance in the 

Quinault River, and to a lesser extent 

the Queets River, at 5 to 6 year intervals 

and were last observed in the Quinault 

River in the winter of 2004–2005 

(Quinault Indian Nation, 2008). There is 

very little information on eulachon 

spawning distribution in the Quinault 

River, but tribal fishermen targeting 

eulachon typically catch fish in the 

lower three miles of the river (Quinault 

Indian Nation, 2008). It is reasonable to 

conclude that this area contains the 

spawning and incubation, and migration 

corridor essential features. 

Although eulachon are currently only 

occasionally recorded in the Quinault 

River, during the late 19th and early 

20th century eulachon were regularly 

caught by members of the Quinault 

Indian Tribe (Willoughby, 1889; Olson, 

1936). Fish were typically taken in the 

ocean surf but often ascended the river 

for several miles (Olson, 1936). Olson 

(1936) reported that there was usually a 

large run of eulachon in the Quinault 

River every three or four years, and the 

run timing varied, usually occurring 

between January and April. The 

Washington Department of Fisheries 

annual report for 1960 (Starlund, 1960) 

listed commercial eulachon landings in 

the Quinault River in 1936, 1940, 1953, 

1958 and 1960. The commercial catches 

ranged from a low of 61 kg (135 lbs.) in 

1960, to a high of 42,449 kg (93,387 lbs.) 

in 1953. 

Nearly half of the watershed lies 

within Olympic National Park, under 

the jurisdiction of the National Park 

Service, while the Quinault Indian 

reservation comprises about one third 

(32 percent) of the watershed, including 

most of the area downstream of Lake 

Quinault (Quinault Indian Nation and 

U.S. Forest Service, 1999). The U.S. 

Forest Service manages 13 percent of 

the watershed, and private landholdings 

comprise only 4 percent of the lands in 

the watershed (Smith and Caldwell, 

2001). 

(14) Elwha River, WA: The Elwha 

River mainstem is approximately 72 km 

(45 mi) long, and it drains 831 km2 (321 

mi2) of the Olympic Peninsula. A 

majority of the drainage (83 percent) is 

within Olympic National Park (ElwhaDungeness Planning Unit, 2005). The 

historical condition of the river has been 

altered by two major hydroelectric 

developments: the Elwha Dam and the 

Glines Canyon Dam (located just 

upstream of the Elwha Dam). 

In 2005, eulachon were observed in 

the Elwha River for the first time since 

the 1970s (Shaffer et al., 2007). Since 

2005, adult eulachon have been 

captured in the Elwha River every year 

(2006–2010) (Lower Elwha Klallam 

Indian Tribe, 2010). Several of the fish 

captured in 2005 were ripe (eggextruding) females, indicating that 

eulachon likely spawn in the Elwha 

River. The Elwha Dam serves as a 

complete barrier to upstream fish 

migration, and thus it is reasonable to 

assume that the spawning and 

incubation, and migration corridor 

essential features only extend to that 

point in the Elwha River. It is not 

known if eulachon ascended the Elwha 

River beyond river km 7.9 (river mi 4.9) 

prior to the construction of the Elwha 

Dam, and it is also not known if the 

portion of the river above Elwha Dam 

will provide the physical and biological 

features essential to eulachon once the 

dam is removed. As part of a 

comprehensive restoration of the 

watershed’s ecosystem and its fisheries, 

the Elwha and Glines Canyon dams 

were acquired by the Federal 

government in 2000 and their removal 

is scheduled to begin in 2011. 

All Areas: We delineated each 

specific area as extending from the 

mouth of the river or creek (or its 

associated estuary when applicable) 

upstream to a fixed location. We 

delineated the upstream extent based on 

evidence of eulachon spawning or 

presence, or the presence of an 

impassable barrier. The boundary at the 

mouth of each specific area was defined 

by the demarcation lines which 

delineate ‘‘those waters upon which 

mariners shall comply with the 

International Regulations for Preventing 

Collisions at Sea, 1972 (72 COLREGS) 

and those waters upon which mariners 

shall comply with the Inland Navigation 

Rules’’ (33 CFR 80.01). For those specific 

areas that do not have a COLREGS line 

delineated, the boundary at the mouth 

of those specific areas was defined as a 

line drawn from the northernmost 

seaward extremity of the mouth of the 

creek or river to the southernmost 

seaward extremity of the mouth (with 

the exception of the boundary at the 

mouth of the Elwha River, which was 

defined as a line drawn from the 

easternmost seaward extremity of the 

mouth of the river to the westernmost 

seaward extremity of the mouth). 

Areas Not Considered for Designation 

at This Time 

Nearshore and offshore marine 

foraging habitat is essential for juvenile 

eulachon to survive and grow to 

adulthood, and for adults to survive and 

reproduce. At this time we have little 

information on eulachon distribution in 

marine waters and no information on 

where eulachon foraging habitat might 

occur. For these reasons, we are unable 

to identify any specific areas in marine 

waters that meet the definition of 

critical habitat under the ESA. Although 

we cannot presently identify any 

specific marine areas where foraging 

takes place, we will continue to gather 

information and will consider revising 

the designation in future rulemaking if 

new information supports doing so. 


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Special Management Considerations 

Physical or biological features meet 

the definition of critical habitat if they 

‘‘may require special management 

considerations or protection.’’ Joint 

NMFS and USFWS regulations at 50 

CFR 424.02(j) define ‘‘special 

management considerations or 

protection’’ to mean ‘‘any methods or 

procedures useful in protecting physical 

and biological features of the 

environment for the conservation of 

listed species.’’ We identified a number 

of activities that may affect the physical 

and biological features essential to the 

southern DPS of eulachon such that 

special management considerations or 

protection may be required. Major 

categories of such activities include: (1) 

Dams and water diversions; (2) dredging 

and disposal of dredged material; (3) inwater construction or alterations, 

including channel modifications/diking, 

shoreline stabilization, sand and gravel 

mining, and road building and 

maintenance; (4) pollution and runoff 

from point and non-point sources 

including industrial activities, 

urbanization, grazing, agriculture, and 

forestry operations; (5) proposed tidal, 

wind, or wave energy projects; (6) port 

and shipping terminals; and (7) habitat 

restoration projects. All of these 

activities may have an effect on one or 

more of the essential physical and 

biological features via their alteration of 

one or more of the following: stream 

hydrology; water level and flow; water 

temperature; dissolved oxygen; erosion 

and sediment input/transport; physical 

habitat structure; vegetation; soils; 

nutrients and chemicals; fish passage; 

and estuarine/marine prey resources. 

In the following paragraphs, we 

describe the potential effects of certain 

activities on essential physical or 

biological features, and we summarize 

the occurrence of these activities in the 

specific areas in Table 1 below 

(examples of activities that may require 

special management considerations for 

each of the specific areas are listed in 

the Draft Eulachon Biological Report 

(NMFS, 2010b)). This is not an 

exhaustive list of potential effects, but 

rather a description of the primary 

concerns and potential effects that we 

are aware of at this time and that should 

be considered in the analysis of these 

activities under section 7 of the ESA. 

(1) Dams and Water Diversions: 

Physical structures associated with 

dams and water diversions may impede 

or delay passage of southern DPS 

eulachon. The operation of dams and 

water diversions may also affect water 

flow, water quality parameters, substrate 

quality, and depth, and further 

compromise the ability of adult 

eulachon to reproduce successfully. 

Optimum flow and temperature 

requirements for spawning and 

incubation are unclear, but effects on 

water flow and associated effects on 

water quality (e.g., water temperature) 

and substrate composition may affect 

adult spawning activity, egg viability, 

and larval growth, development, and 

survival. Many uncertainties remain 

about how large-scale hydropower 

development (e.g., the Federal Columbia 

River Power System) affects eulachon 

habitat. 

(2) Dredging: Dredging activities, 

which include the disposal of dredged 

material, may affect depth, sediment 

quality, water quality, and prey 

resources for eulachon. Dredging and 

the in-river disposal of dredged material 

can remove, and/or alter the 

composition of, substrate materials at 

the dredge site, as well as bury them at 

the disposal site (potentially altering the 

quality of substrate for use as a 

spawning site). In addition, dredging 

operations and disposal of dredged 

materials may result in the resuspension and spread of contaminated 

sediments, which can adversely affect 

eulachon migration and spawning, as 

well as larval growth and development. 

The effects of dredging and disposal 

activities on critical habitat would 

depend on factors such as the location, 

seasonality, scale, frequency, and 

duration of these activities. 

(3) In-Water Construction or 

Alterations: This category consists of a 

broad range of activities associated with 

in-water structures or activities that 

alter habitat within rivers, estuaries, and 

coastal marine waters. The primary 

concerns are with activities that may 

affect water quality, water flow, 

sediment quality, substrate composition, 

or migratory corridors. Activities that 

may affect water quality include the 

installation of in-water structures (such 

as pilings) with protective coatings 

containing chemicals that may leach 

into the water. Activities that affect 

flow, sediment quality and substrate 

composition include those that result in 

increased erosion and sedimentation 

(such as road maintenance and 

construction, bridge construction, 

construction of levees and other flood 

control devices, construction or repair 

of breakwaters, docks, piers, pilings, 

bulkheads, and boat ramps) and those 

that directly alter substrates (such as 

sand and gravel mining or gravel 

augmentation). Activities that may affect 

migratory corridors include the 

construction of in-water structures, such 

as docks, piers, pilings, and ramps. 

(4) Pollution and Runoff: The 

discharge of pollutants and runoff from 

point and non-point sources (including 

but not limited to: Industrial discharges, 

urbanization, grazing, agriculture, road 

surfaces, road construction, and forestry 

operations) can adversely affect the 

water quality, sediment quality, and 

substrate composition of eulachon 

critical habitat. Exposure to 

contaminants may disrupt eulachon 

spawning migration patterns, and high 

concentrations may be lethal to young 

fish (Smith and Saalfeld, 1955). 

Excessive runoff may increase turbidity 

and alter the quality of spawning 

substrates. 

(5) Proposed Tidal, Wind, or Wave 

Energy Projects: Proposed tidal, wind, or 

wave energy projects generally require 

energy generating equipment and 

supporting structures to be anchored on 

the bottom. However, there are a wide 

range of designs currently being tested 

and potential impacts of individual 

projects will vary depending on the type 

of unit being deployed. Proposed 

projects may be located in coastal 

marine waters or coastal estuaries. 

Physical structures associated with 

tidal, wind, or wave energy projects may 

impede or delay passage of southern 

DPS eulachon. In addition, construction 

and maintenance of these energy 

projects may require in water 

construction or alterations, which 

would include the potential effects 

described above. 

(6) Port and Shipping Terminals: The 

operation of port and shipping terminals 

poses the risk of leaks, spills, or 

pipeline breakage and may affect water 

quality. Vessel ballast water 

management (including the introduction 

of competitors or parasites) may also 

affect water quality. In addition, 

activities associated with the 

construction, operation, and 

maintenance of port and shipping 

terminals may affect water quality, 

sediment quality, and prey resources for 

larval eulachon. For example, dredging 

operations and in-water and shoreline 

construction activities associated with 

the construction and operation of port 

and shipping terminals may result in 

increased erosion and sedimentation, 

increased turbidity, and the resuspension of contaminated sediments. 

(7) Habitat Restoration Projects: 

Habitat restoration activities are efforts 

undertaken to improve habitat, and can 

include the installation of fish passage 

structures and fish screens, in-stream 

barrier modification, bank stabilization, 

installation of instream structures, such 

as engineered log jams, substrate 

augmentation, planting of riparian 

vegetation, and many other habitatVerDate Mar<15>2010 16:45 Jan 04, 2011 Jkt 223001 PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 E:\FR\FM\05JAP1.SGM 05JAP1

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related activities. Although the primary 

purpose of these activities is to improve 

natural habitats for the benefit of native 

species, these activities nonetheless 

modify the habitat and need to be 

evaluated to ensure that they do not 

adversely affect the habitat features 

essential to eulachon. While habitat 

restoration activities would be 

encouraged as long as they promote the 

conservation of the species, project 

modifications in the form of spatial and 

temporal restrictions may be required as 

a result of this designation. 

Unoccupied Areas 

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

authorizes the designation of ‘‘specific 

areas outside the geographical area 

occupied at the time [the species] is 

listed’’ if these areas are essential for the 

conservation of the species. Regulations 

at 50 CFR 424.12(e) emphasize that the 

agency ‘‘shall designate as critical 

habitat areas outside the geographical 

area presently occupied by a species 

only when a designation limited to its 

present range would be inadequate to 

ensure the conservation of the species.’’ 

Nearly all of the documented 

historical presence and production of 

southern DPS eulachon comes from 

within the geographical area occupied 

by the southern DPS at the time of 

listing. Sightings of southern DPS 

eulachon from creeks or rivers outside 

of this area have been extremely 

infrequent, and have consisted of very 

few fish (NMFS, 2010). Therefore, we do 

not consider these areas to be essential 

to the conservation of the southern DPS 

of eulachon, and thus we are not 

considering any unoccupied areas as 

critical habitat for the DPS. 

TABLE 1—SUMMARY OF OCCUPIED SPECIFIC AREAS THAT CONTAIN THE PHYSICAL OR BIOLOGICAL FEATURES ESSENTIAL

TO THE CONSERVATION OF THE SOUTHERN DPS OF EULACHON. THE RIVER MILES CONTAINING THE ESSENTIAL

PHYSICAL AND BIOLOGICAL FEATURES PRESENT, AND ACTIVITIES THAT MAY AFFECT THE ESSENTIAL FEATURES AND

NECESSITATE THE NEED FOR SPECIAL MANAGEMENT CONSIDERATIONS OR PROTECTION WITHIN EACH AREA ARE

LISTED

[DAM = dams and water diversions; DR = dredging and disposal of dredged material; CON = in-water construction or alterations, including channel modifications/diking; POLL = pollution and runoff from point and non-point sources; ENER = tidal energy or wave energy projects; PORT 

= operation of port and shipping terminals; REST = habitat restoration projects] 

Specific area River 

kilometers/miles Physical or biological features Activities 

Mad River, CA .................................. 20.3/12.6 Migration, Spawning ........................ DAM, CON, POLL. 

Redwood Creek, CA ........................ 6.1/3.8 Migration, Spawning ........................ DAM, POLL. 

Klamath River, CA ............................ 17.5/10.9 Migration, Spawning ........................ DAM, DR, CON, POLL. 

Umpqua River, OR ........................... 43.5/27.0 Migration, Spawning ........................ DAM, DR, POLL. 

Tenmile Creek, OR .......................... 0.8/0.5 Migration, Spawning ........................ CON, POLL. 

Sandy River, OR .............................. 20.9/13.0 Migration, Spawning ........................ DAM, CON, POLL. 

Columbia River, OR and WA ........... 235.0/146.0 Migration, Spawning ........................ DAM, DR, CON, POLL, ENER, PORT, REST. 

Grays River, WA .............................. 17.4/10.8 Migration, Spawning ........................ DAM, DR, CON, POLL. 

Elochoman River, WA ...................... 3.2/2.0 Migration, Spawning ........................ CON, POLL. 

Cowlitz River, WA ............................ 80.5/50.0 Migration, Spawning ........................ DAM, DR, CON, POLL, PORT, REST. 

Kalama River, WA ............................ 4.5/2.8 Migration, Spawning ........................ DAM, CON, POLL. 

Lewis River, WA ............................... 31.4/19.5 Migration, Spawning ........................ DAM, CON, POLL. 

Quinault River, WA ........................... 4.8/3.0 Migration, Spawning ........................ CON, POLL. 

Elwha River, WA .............................. 7.9/4.9 Migration, Spawning ........................ DAM, CON, POLL, REST. 

Military Lands 

The ESA was amended by the 

National Defense Authorization Act for 

Fiscal Year 2004 (Pub. L. 108–136) to 

address the designation of military 

lands as critical habitat. ESA section 

4(a)(3)(B)(i) states: ‘‘The Secretary shall 

not designate as critical habitat any 

lands or other geographical areas owned 

or controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

Department of Defense lands do not 

overlap with, nor are adjacent to, any 

areas proposed for designation as 

critical habitat for the southern DPS so 

there are no known potential areas that 

would be removed from designation 

under ESA Section 4(a)(3)(B)(i). 

Application of ESA Section 4(b)(2) 

The foregoing discussion describes 

the specific areas that fall within the 

ESA section 3(5) definition of critical 

habitat and are eligible for designation 

as critical habitat. Specific areas eligible 

for designation are not automatically 

designated as critical habitat. Section 

4(b)(2) of the ESA requires the Secretary 

to first consider the economic impact, 

impact on national security, and any 

other relevant impact of designation. 

The Secretary has the discretion to 

exclude an area from designation if he 

determines the benefits of exclusion 

(that is, avoiding the impact that would 

result from designation) outweigh the 

benefits of designation based upon best 

scientific and commercial data. In 

adopting this provision, Congress 

explained that, ‘‘[t]he consideration and 

weight given to any particular impact is 

completely within the Secretary’s 

discretion.’’ H.R. Rep. No. 95–1625, at 

16–17 (1978). The Secretary may not 

exclude an area from designation if 

exclusion will result in the extinction of 

the species. Because the authority to 

exclude is discretionary, exclusion is 

not required for any area. 

The first step in conducting an ESA 

section 4(b)(2) analysis is to identify the 

‘‘particular areas’’ to be analyzed. 

Section 3(5) of the ESA defines critical 

habitat as ‘‘specific areas,’’ while section 

4(b)(2) requires the agency to consider 

certain factors before designating any 

‘‘particular area.’’ Depending on the 

biology of the species, the 

characteristics of its habitat, and the 

nature of the impacts of designation, 

‘‘specific’’ areas might be different from, 

or the same as, ‘‘particular’’ areas. For 

this designation, we analyzed two types 

of ‘‘particular’’ areas. Where we 

considered economic impacts, and 

weighed the economic benefits of 

exclusion against the conservation 

benefits of designation, we used the 

same biologically based ‘‘specific’’ areas 

we had identified under section 3(5)(A). 


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Specifically, these areas were the 

occupied freshwater and estuarine areas 

that contain the physical and biological 

features essential to the conservation of 

the southern DPS of eulachon. However, 

because upslope and upstream activities 

can impact critical habitat, we chose to 

use the watershed (specifically, 

individual 5th field hydrologic units as 

designated by the U.S. Geological 

Survey) as our assessment area for 

economic impacts (see the draft 

Economic Analysis Report [NMFS 

2010c] for definition of the 5th field 

hydrologic units and more information). 

This approach allowed us to most 

effectively consider the conservation 

value of the different areas when 

balancing conservation benefits of 

designation against economic benefits of 

exclusion. Where we considered 

impacts on Indian lands, however, we 

instead used a delineation of 

‘‘particular’’ areas based on ownership or 

control of the area. Specifically, these 

particular areas consisted of occupied 

freshwater and estuarine areas that 

overlap with Indian lands. (We defined 

Indian lands in accordance with our 

past practice, as described in the Draft 

Eulachon Section 4(b)(2) Report [NMFS 

2010d].) This approach allowed us to 

consider impacts and benefits 

associated with tribal land ownership 

and management by Indian tribes. In the 

future, if we consider impacts and 

benefits of designation associated with 

lands covered by a habitat conservation 

plan (HCP), we will also use a 

delineation of ‘‘particular’’ areas based 

on ownership or control of the area. 

Benefits of Designation 

The primary benefit of designation is 

the protection afforded under the ESA 

section 7 requirement that all Federal 

agencies ensure their actions are not 

likely to destroy or adversely modify 

designated critical habitat. This type of 

benefit is sometimes referred to as an 

incremental benefit because the 

protections afforded to the species from 

critical habitat designation are in 

addition to the requirement that all 

Federal agencies ensure their actions are 

not likely to jeopardize the continued 

existence of the species. In addition, the 

designation may enhance the 

conservation of habitat by informing the 

public about areas and features 

important to species conservation. This 

may help focus and contribute to 

conservation efforts for eulachon and 

their habitats. 

With sufficient information, it may be 

possible to monetize these benefits of 

designation by first quantifying the 

benefits expected from an ESA section 

7 consultation and translating that into 

dollars. We are not aware, however, of 

any available data to monetize the 

benefits of designation (e.g., estimates of 

the monetary value of the physical and 

biological features within specific areas 

that meet the definition of critical 

habitat, or of the monetary value of 

general benefits such as education and 

outreach). In an alternative approach 

that we have commonly used in the 

past, we qualitatively assessed the 

benefit of designation for each of the 

specific areas identified as meeting the 

definition of critical habitat for the 

southern DPS. Our qualitative 

consideration began with an evaluation 

of the conservation value of each area. 

We considered a number of factors to 

determine the conservation value of an 

area, including the quantity and quality 

of physical or biological features, the 

relationship of the area to other areas 

within the DPS, and the significance to 

the DPS of the population occupying 

that area. 

To evaluate the quantity and quality 

of features of the specific areas, we 

considered existing information on the 

consistency of spawning in each area, 

the typical size of runs in the area, and 

the amount of habitat available to and 

used by eulachon in the area. We found 

that eulachon habitat and habitat use 

varies widely among the areas, and may 

vary within the same area across 

different years. It is difficult to identify 

differences between the areas that could 

be driving variation in run size and 

frequency, and variation in habitat use. 

Eulachon spawn in systems as large as 

the Columbia River (largest river in the 

Pacific Northwest), and as small as 

Tenmile Creek (a watershed of 60 km2

[23 mi2]). While some rivers 

consistently produce large spawning 

runs of eulachon (e.g., the Columbia and 

Cowlitz Rivers), spawning can be 

sporadic in others (e.g. Grays, Kalama, 

Lewis, Sandy, and Quinault Rivers). 

Still other areas, either currently or in 

the past, produce small yet consistent 

runs of eulachon (e.g., Tenmile Creek 

and Elwha River). 

Another factor we considered in 

evaluating the conservation value of the 

specific areas is the geographic 

distribution of the areas. Nearly the 

entire production of southern DPS 

eulachon in the conterminous United 

States originates in the 14 specific areas 

we have identified. These specific areas 

are widely distributed across the 

geographic extent of the DPS. Compared 

to salmon, steelhead, and other 

anadromous fishes, these relatively 

small areas historically produced a very 

large biomass of eulachon. The loss of 

any one of these areas could potentially 

leave a large gap in the spawning 

distribution of the DPS, and the loss to 

eulachon production could represent a 

significant impact on the ability of the 

southern DPS to survive and recover. 

Utilizing a diversity of stream/estuary 

sizes across a wide geographic area can 

be a useful strategy to buffer the species 

against localized environmental 

catastrophes (such as the Mount St. 

Helens eruption of May 18, 1980). For 

the above reasons, we conclude that all 

of the specific areas have a high 

conservation value. 

There are many Federal activities that 

occur within the specific areas that 

could impact the conservation value of 

these areas. Regardless of designation, 

Federal agencies are required under 

Section 7 of the ESA to ensure these 

activities are not likely to jeopardize the 

continued existence of the southern DPS 

of eulachon. If the specific areas are 

designated as critical habitat, Federal 

agencies will additionally be required to 

ensure their actions are not likely to 

adversely modify the critical habitat. We 

grouped the potential Federal activities 

that would be subject to this additional 

protection into several broad categories: 

Dams and water supply, agriculture, 

transportation, forest management, 

mining, in-water construction and 

restoration, water quality management/ 

monitoring, and other activities. (The 

Draft Economic Analysis [NMFS, 2010c] 

includes a detailed description of the 

industry sectors associated with these 

activities). 

The benefit of designating a particular 

area depends upon the likelihood of a 

section 7 consultation occurring in that 

area and the degree to which a 

consultation would yield conservation 

benefits for the species. Based on past 

consultations for other migratory fish 

species, we estimated that a total of 37.5 

actions would require section 7 

consultation annually within the 

particular areas being considered for 

eulachon critical habitat designation 

(NMFS, 2010c). The most common 

activity type subject to consultation 

would be in-stream work (estimated 

13.2 consultations annually), followed 

by forest management (estimated 6.7 

consultations annually) and 

transportation projects (estimated 6.2 

consultations annually). (A complete 

list of the estimated annual actions, 

divided by particular area, is included 

in the Draft Economic Analysis [NMFS, 

2010c]). These activities have the 

potential to adversely affect water 

quality, sediment quality, substrate 

composition, or migratory corridors for 

eulachon. Consultation would yield 

conservation benefits for the species by 

preventing or ameliorating such habitat 

effects. 


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Impacts of Designation 

Section 4(b)(2) of the ESA provides 

that the Secretary shall consider ‘‘the 

economic impact, impact to national 

security, and any other relevant impact 

of specifying any particular area as 

critical habitat.’’ The primary impact of 

a critical habitat designation stems from 

the requirement under section 7(a)(2) of 

the ESA that Federal agencies ensure 

their actions are not likely to result in 

the destruction or adverse modification 

of critical habitat. Determining this 

impact is complicated by the fact that 

section 7(a)(2) contains the overlapping 

requirement that Federal agencies must 

ensure their actions are not likely to 

jeopardize the species’ continued 

existence. The true impact of 

designation is the extent to which 

Federal agencies modify their actions to 

ensure their actions are not likely to 

destroy or adversely modify the critical 

habitat of the species, beyond any 

modifications they would make because 

of listing and the jeopardy requirement. 

Additional impacts of designation 

include state and local protections that 

may be triggered as a result of the 

designation. 

In determining the impacts of 

designation, we predicted the 

incremental change in Federal agency 

actions as a result of critical habitat 

designation and the adverse 

modification prohibition, beyond the 

changes predicted to occur as a result of 

listing and the jeopardy provision. In 

critical habitat designations for salmon 

and steelhead (70 FR 52630; September 

2, 2005) and for Southern Resident 

killer whales (71 FR 69054; November 

29, 2006), we considered the 

‘‘coextensive’’ impact of designation, in 

accordance with a Tenth Circuit Court 

decision (New Mexico Cattle Growers 

Association v. U.S. Fish and Wildlife 

Service, 248 F.3d 1277 (10th Cir. 2001)). 

More recently, however, several courts 

(including the 9th Circuit Court of 

Appeals in Arizona Cattlegrowers v. 

Salazar, 606 F.3d 1160 (9th Cir. 2010); 

Homebuilders Association of Northern 

California v. U.S. Fish and Wildlife, 616 

F.3d 983 (9th Cir. 2010)) have approved 

an approach that examines only the 

incremental impact of designation (see 

also: Cape Hatteras Access Preservation 

Alliance v. Norton, 344 F. Supp. 2d 

1080 (D.DC 2004)). In more recent 

critical habitat designations, both NMFS 

and the USFWS have considered the 

incremental impact of critical habitat 

designation (for example, NMFS’ 

designation of critical habitat for the 

Southern DPS of green sturgeon (74 FR 

52300; October 9, 2009); U.S. Fish and 

Wildlife’s designation of critical habitat 

for the Oregon chub (75 FR 11031; 

March 10, 2010)). Consistent with this 

more recent practice, we estimated the 

incremental impacts of designation, 

beyond the impacts that would result 

from the listing and jeopardy provision. 

To determine the impact of 

designation, we examined what the state 

of the world would be with and without 

the designation of critical habitat for 

eulachon. The ‘‘without critical habitat’’ 

scenario represents the baseline for the 

analysis. It includes process 

requirements and habitat protections 

already afforded eulachon under its 

Federal listing or under other Federal, 

state, and local regulations. Such 

regulations include protections afforded 

eulachon habitat from other cooccurring ESA listings and critical 

habitat designations, such as for Pacific 

salmon and steelhead (70 FR 52630; 

September 2, 2005), North American 

green sturgeon (74 FR 52300; October 9, 

2009), and bull trout (75 FR 63898; 

October 18, 2010) (see the Draft 

Economic Analysis for Eulachon 

(NMFS, 2010c) for examples of 

protections for other species that would 

benefit eulachon). The ‘‘with critical 

habitat’’ scenario describes the 

incremental impacts associated 

specifically with the designation of 

critical habitat for eulachon. The 

primary impacts of critical habitat 

designation we found were: (1) The 

additional administrative effort of 

including a eulachon critical habitat 

analysis in section 7 consultations, (2) 

the project modifications required solely 

to avoid destruction or adverse 

modification of eulachon critical 

habitat, and (3) the perception of Indian 

tribes that designation of Indian lands is 

an unwarranted intrusion into tribal 

sovereignty and self-governance. 

Economic Impacts 

To quantify the economic impact of 

designation, we employed the following 

three steps: 

(1) Define the geographic study area 

for the analysis, and identify the units 

of analysis (the ‘‘particular areas’’). In 

this case, we defined 5th field 

hydrologic units that encompass 

occupied stream reaches as the study 

area. 

(2) Identify potentially affected 

economic activities and determine how 

management costs may increase due to 

the designation of eulachon critical 

habitat, both in terms of project 

administration and project modification. 

(3) Estimate the economic impacts 

associated with these changes in 

management. 

We estimated a total annualized 

incremental administrative cost of 

approximately $500,000 for designating 

the 14 specific areas as eulachon critical 

habitat. The greatest costs are associated 

with dams and water supply, mining, 

and forest management activities (see 

NMFS, 2010c for more details). The 

Lower Mad River and Columbia River— 

Hayden Island 5th field hydrologic units 

have the largest estimated annual 

impacts ($63,500 and $33,300), due to 

mining activities and water supply 

activities, respectively (NMFS, 2010c). 

For 5th field hydrologic units other than 

the lower Mad River and Columbia 

River—Hayden Island, we estimate the 

incremental impacts of critical habitat 

designation would be less than $30,000/ 

year. 

For the second category of impacts, 

we identified three areas where critical 

habitat designation for eulachon might 

result in modifications to activities 

beyond those already resulting from the 

ESA listing of eulachon. Although we 

could not quantify the economic 

impacts, we anticipate these costs 

would be small, for the reasons 

described below. 

(1) Disposal of dredge material in the 

Lower Columbia River. Eulachon 

spawning habitat has the potential to be 

modified by the disposal of dredge 

material in the Lower Columbia River, 

particularly if material is disposed in 

shallow water. If we conclude that 

disposing of dredge material in shallow 

water could destroy or adversely modify 

critical habitat, the U.S. Army Corps of 

Engineers (USACE) or the party seeking 

disposal may need to find alternative 

disposal sites, thereby incurring 

additional project costs. Because 

disposal of dredge material in shallow 

water is already quite limited in the 

Lower Columbia River and its cost is 

already relatively high, requiring 

another disposal method may have 

minimal added costs. 

(2) Elwha River Dam removal. The 

Elwha and Glines Canyon dams, on the 

Elwha River, are scheduled for removal 

beginning in early 2011. Because 

protections are already in place to 

reduce the impact of the project on 

salmonid habitat, consideration of 

eulachon critical habitat is unlikely to 

result in recommendations to change 

the project, except possibly 

recommendations to make slight 

changes to the timing of the dam 

removals. If that were the case, such 

timing changes would likely have small 

associated costs. 

(3) Mayfield Dam flow regime. As 

outlined in the eulachon final listing 

determination (75 FR 13012; March 18, 

2010), dams and water diversions are 

moderate threats to eulachon in the 

Columbia River Basin. To benefit 


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salmon and steelhead species, Tacoma 

Power Company currently follows a 

flow regime for Mayfield Dam on the 

Cowlitz River. If we conclude the 

existing flow regime could destroy or 

adversely modify eulachon critical 

habitat, Tacoma Power Company may 

need to change the timing or amount of 

water releases. This could change the 

timing of energy production, with an 

associated decrease in revenue from 

energy sales. We would expect any such 

decreases to be small because the effect 

would be to change the timing of energy 

production and not the total amount of 

energy produced. 

Without conducting a complete 

analysis on a specific project, it is 

difficult to evaluate the extent to which 

NMFS might recommend changes in 

any of these activities to avoid 

destroying or adversely modifying 

critical habitat. Any changes required 

solely to avoid destroying or adversely 

modifying critical habitat would be an 

impact of designation. 

Impacts to National Security 

Department of Defense lands do not 

overlap with, nor are adjacent to, any 

areas proposed for designation as 

critical habitat for the southern DPS. 

Thus, there would be no direct impacts 

to national security if any of the specific 

areas were designated as critical habitat. 

Other Relevant Impacts—Impacts to 

Tribal Sovereignty and Self-Governance 

We identified three rivers with areas 

under consideration for critical habitat 

designation that overlap with Indian 

lands—the Elwha River and Quinault 

River in Washington, and the Klamath 

River in California. The Federallyrecognized tribes (74 FR 40218; August 

11, 2009) potentially affected are the 

Lower Elwha Tribe, the Quinault Tribe, 

the Yurok Tribe, and the Resighini 

Rancheria. In addition to the economic 

impacts described above, designating 

these tribes’ Indian lands would have an 

impact on Federal policies promoting 

tribal sovereignty and self-governance. 

The longstanding and distinctive 

relationship between the Federal and 

tribal governments is defined by 

treaties, statutes, executive orders, 

judicial decisions, and agreements, 

which differentiate tribal governments 

from the other entities that deal with, or 

are affected by, the U.S. Government. 

This relationship has given rise to a 

special Federal trust responsibility 

involving the legal responsibilities and 

obligations of the United States toward 

Indian tribes and the application of 

fiduciary standards of due care with 

respect to Indian lands, tribal trust 

resources, and the exercise of tribal 

rights. Pursuant to these authorities, 

lands have been retained by Indian 

tribes or have been set aside for tribal 

use. These lands are managed by Indian 

tribes in accordance with tribal goals 

and objectives within the framework of 

applicable treaties and laws. Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests (recently confirmed by 

Presidential Memorandum; 74 FR 

57879; November 9, 2009). In addition 

to Executive Order 13175, we have 

Department of Commerce direction, via 

Secretarial Order 3206, stating that 

Indian lands shall not be designated as 

critical habitat, nor areas where the 

‘‘tribal trust resources * * * or the 

exercise of tribal rights’’ will be 

impacted, unless such lands or areas are 

determined ‘‘essential to conserve a 

listed species.’’ In such cases we ‘‘shall 

evaluate and document the extent to 

which the conservation needs of the 

listed species can be achieved by 

designating only other lands.’’ 

Designation would also have impacts 

to NMFS’ relationship with the affected 

tribes. In the decision Center for 

Biological Diversity v. Norton, 240 F. 

Supp. 2d 1090 (D. Ariz. 2003), the court 

held that a positive working 

relationship with Indian tribes is a 

relevant impact that can be considered 

when weighing the relative benefits of a 

critical habitat designation. We 

contacted the governments of each of 

the potentially affected tribes to 

determine what impact a critical habitat 

designation on Indian lands would have 

on the working relationship between 

NMFS and the tribes. All four advised 

us that they would view critical habitat 

designation on their lands as an 

unwanted intrusion, which would have 

a negative impact on tribal sovereignty 

and self-governance and on the 

relationship between the tribe and the 

agency. This response was consistent 

with responses NMFS has received from 

Indian tribes in past designations (for 

example, the designation of critical 

habitat for 12 ESUs of West Coast 

salmon and steelhead (70 FR 52630; 

September 2, 2005)). 

Other Relevant Impacts—Impacts to 

Landowners With Contractual 

Commitments to Conservation 

Conservation agreements with nonFederal landowners (e.g., HCPs) 

enhance species conservation by 

extending species’ protections beyond 

those available through section 7 

consultations. We have encouraged nonFederal landowners to enter into 

conservation agreements, based on a 

view that we can achieve greater 

species’ conservation on non-Federal 

land through such partnerships than we 

can through coercive methods (61 FR 

63854; December 2, 1996). 

Section 10(a)(1)(B) of the ESA 

authorizes us to issue to non-Federal 

entities a permit for the incidental take 

of endangered and threatened species. 

This permit allows a non-Federal 

landowner to proceed with an activity 

that is legal in all other respects, but 

that results in the incidental taking of a 

listed species (i.e., take that is incidental 

to, and not the purpose of, the carrying 

out of an otherwise lawful activity). The 

ESA specifies that an application for an 

incidental take permit must be 

accompanied by a conservation plan, 

and specifies the content of such a plan. 

The purpose of such an HCP is to 

describe and ensure that the effects of 

the permitted action on covered species 

are adequately minimized and 

mitigated, and that the action does not 

appreciably reduce the likelihood of the 

survival and recovery of the species. 

In previous critical habitat 

designations, we have exercised 

discretion to exclude some (but not all) 

lands covered by an HCP from 

designation (e.g., for Pacific salmon (70 

FR 52630; September 2, 2005)), after 

concluding that benefits of exclusion 

outweighed the benefits of designation. 

For lands covered by an HCP, the 

benefits of designation typically arise 

from section 7 protections as well as 

enhanced public awareness. The 

benefits of exclusion generally include 

relieving regulatory burdens on existing 

conservation partners, maintaining good 

working relationships with them (thus 

enhancing implementation of existing 

HCPs), and encouraging the 

development of new partnerships. 

There are two existing HCPs that 

overlap areas proposed as critical 

habitat for the southern DPS of 

eulachon; the Green Diamond Timber 

HCP (covering the company’s operations 

in northern California, including 

portions of the Klamath River), and the 

Humboldt Bay Municipal Water District 

HCP (covering their operations in the 

Mad River, California). Neither of these 

HCPs currently address conservation of 

eulachon, and it is unclear what, if any, 

conservation benefits they might 

provide to eulachon. We will seek 

comments and information specific to 

these HCPs and determine by the time 

of the final rule if, as in some past 

designations, the benefits of excluding 

these HCP areas outweigh the 

conservation benefits of designation. 


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Balancing Benefits of Designation 

Against Benefits of Exclusion 

The following section balances the 

benefits of avoiding economic impacts 

and impacts to tribal sovereignty and 

self-governance against the incremental 

and general benefits of designation. We 

determine whether the benefits of 

exclusion outweigh the benefits of 

designation and make recommendations 

for exclusion. 

Economic Exclusions 

As described above, the economic 

benefits of excluding particular areas are 

small, for a total of about $500,000. Also 

as described above, we consider all 14 

particular areas meeting the definition 

of critical habitat to have a high 

conservation value and a high benefit of 

designation. When we listed eulachon 

as a threatened species we cited, among 

other reasons, the present or threatened 

destruction, modification, or 

curtailment of its habitat. Identified 

threats to eulachon habitat include 

climate-induced change to freshwater 

habitats; dams and water diversions 

(particularly in the Columbia and 

Klamath Rivers); and degraded water 

quality. Designating these areas as 

critical habitat will enhance our ability 

to address some of these threats through 

section 7 consultations and through 

public outreach and education. We 

conclude that the economic benefits of 

excluding each particular area do not 

outweigh the conservation benefits of 

designating each particular area as 

critical habitat, given the following 

considerations: (1) The economic 

impact of designating all areas is small; 

(2) eulachon are likely to become 

endangered in the foreseeable future; (3) 

threats to freshwater habitat were a 

primary concern leading to our decision 

to list the species as threatened; (4) 

there are a limited number of spawning 

areas available throughout the coastwide range of eulachon; and (5) 

designation will enhance the ability of 

a section 7 consultation to protect the 

habitat through the identification of 

areas of particular concern and through 

the added protection of the adverse 

modification provision. 

Indian Lands Exclusions 

The eulachon critical habitat Section 

4(b)(2) report (NMFS, 2010d) details our 

consideration of excluding Indian lands 

in this critical habitat designation. The 

discussion here summarizes that 

consideration. As described above, 

designating critical habitat on Indian 

lands would have economic impacts. It 

is difficult to quantify those impacts 

(and therefore the benefit of exclusion), 

for the Lower Elwha tribe because their 

lands do not encompass the entire area 

that is being considered for designation. 

The effects of many types of actions on 

their lands would also affect areas 

downstream that are not excluded from 

designation. Therefore, a section 7 

consultation would still need to 

consider the downstream effects on 

critical habitat. Administrative costs of 

designation would still be incurred, 

along with any costs associated with 

project modifications. The Quinault 

Tribe’s lands encompass nearly the 

entire watershed of the specific area 

identified, thus exclusion would relieve 

Federal agencies of the administrative 

costs of considering effects of actions on 

designated critical habitat. The 

boundaries of the Yurok Indian 

Reservation encompass the entire 

specific area that represents critical 

habitat on the Klamath River. However 

there is some uncertainty as to which 

particular areas within it meet the above 

definition of Indian lands. For this 

analysis we have assumed, based on 

initial discussions with the Tribe that 

the entire specific area under 

consideration qualifies as Indian land. 

We estimated a total annualized 

incremental administrative cost of 

approximately $500,000 for designating 

all 14 specific areas as eulachon critical 

habitat. The exclusion of Indian Lands 

from critical habitat designation would 

decrease the total annualized 

incremental administrative cost by 

approximately $39,500. With Indian 

Lands excluded, the total annualized 

incremental administrative cost of 

designating eulachon critical habitat 

would be approximately $460,500. 

In addition to the economic impact, 

designation would have an impact on 

Federal policies promoting tribal 

sovereignty and self-governance (e.g., 

Executive Order 13175), and on the 

relationship between NMFS and each of 

the tribes (e.g., Secretarial Order 3206) 

because of their perception that 

designation is an intrusion on tribal 

sovereignty and self-governance. The 

benefit of excluding Indian lands would 

be to avoid these impacts. 

Balanced against these benefits of 

exclusion, a benefit of designating the 

Indian lands would be to achieve the 

added protection from ESA section 7’s 

critical habitat provisions. This 

protection would apply to all Federal 

activities, which we expect would 

include dam operations and water 

supply, forest management, instream 

construction, mining, transportation 

projects, and habitat restoration. As 

described above, section 7 consultations 

for Federal actions on lands of the 

Lower Elwha Tribe may still need to 

consider designated critical habitat 

elsewhere in the watershed, thus many 

of the benefits of a section 7 

consultation could still apply even if the 

Indian lands were excluded. In contrast, 

if Indian lands on the Quinault River 

and Klamath River were excluded, 

section 7 consultations would not 

include consideration of eulachon 

critical habitat. 

Another benefit of designation would 

be to educate the public about the 

importance of these Indian lands to 

eulachon conservation. Because these 

are not public or private lands, and 

because the tribes themselves are keenly 

aware of the importance of their lands 

to eulachon conservation, we consider 

the education benefit of designating 

these Indian lands to be low. 

Quinault Indian Nation Lands. In the 

Quinault River, exclusion of Indian 

lands would result in 100 percent of the 

area being excluded. An ESA section 7 

consultation in this area would not 

consider adverse modification of critical 

habitat. In a public comment letter 

submitted in response to the designation 

of critical habitat for the bull trout, the 

Quinault Indian Nation (QIN) state that 

a Forest Management Plan (FMP), on 

which the USFWS prepared a 

programmatic biological opinion for 

bull trout, should provide adequate 

protection for the bull trout. The QIN 

intend to submit a similar comment in 

response to the designation of critical 

habitat for the eulachon (Quinault 

Indian Nation 2010). The FMP takes 

into account significant restrictions on 

in-water construction activities imposed 

by the State of Washington (USFWS 

2003; Washington State Law, Chapter 

77.55). Project modifications specific to 

the bull trout included in the biological 

opinion for the FMP include 

requirements that in-water or nearstream activities may only be conducted 

during the specific timeframes outlined 

in the FMP, construction of new roads 

is to be minimized ‘‘to the maximum 

extent practicable,’’ and construction of 

fill roads is allowable only when 

absolutely necessary. These project 

modifications would likely benefit 

eulachon habitat as well by limiting 

runoff which can adversely affect water 

quality, sediment quality, and substrate 

composition. 

Exclusion of the 4.8 km (3.0 mi) of the 

Quinault River that runs through tribal 

lands would have the benefit of 

promoting Federal policies regarding 

tribal sovereignty and self-governance 

(e.g., Executive Order 13175). It would 

also have the benefit of promoting a 

positive relationship between NMFS 

and the tribe (in accordance with 

Secretarial Order 3206), with a very 


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Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Proposed Rules 529 

small reduction in the benefits of 

designation (primarily the loss of 

section 7 consultation to consider 

adverse modification of critical habitat). 

The current FMP provides some 

protection for eulachon habitat and will 

provide a structure for future 

coordination and communication 

between the QIN, USFWS, and NMFS. 

For these reasons, we conclude that the 

benefits of exclusion outweigh the 

benefits of designation. 

Lower Elwha Tribal Lands. In the 

Lower Elwha River, exclusion of tribal 

lands would result in 1.3 km (0.8 mi) of 

the lower Elwha River being excluded, 

which represents about 16 percent of 

the total 7.9 km (4.9 mi) of habitat. As 

explained above, Federal agencies 

would still need to consult on the 

effects of their actions on the designated 

critical habitat elsewhere in the river. 

Exclusion of the 1.3 km (0.8 mi) of the 

lower Elwha River that runs through 

tribal lands would have the benefit of 

promoting Federal policies regarding 

tribal sovereignty and self-governance 

(e.g., Executive Order 13175). It would 

also have the benefit of promoting a 

positive relationship between NMFS 

and the tribe (in accordance with 

Secretarial Order 3206), with a very 

small reduction in the benefits of 

designation (primarily, the loss of 

section 7 consultation to consider 

adverse modification of critical habitat). 

For these reasons, we conclude that the 

benefits of exclusion outweigh the 

benefits of designation. 

Resighini Rancheria Land. The tribal 

lands of the Resighini Rancheria include 

approximately 0.5 km (0.3 mi) along the 

Klamath River, within the specific area 

of critical habitat for eulachon. 

Exclusion of this land would account 

for approximately 3 percent of the 

specific habitat of southern DPS 

eulachon in the Klamath River. 

Exclusion of the 0.5 km (0.3 mi) of the 

Klamath River that runs through tribal 

lands would have the benefit of 

promoting Federal policies regarding 

tribal sovereignty and self-governance. It 

would also have the benefit of 

promoting a positive relationship 

between NMFS and the tribe, with a 

very small reduction in the benefits of 

designation. For these reasons, we 

conclude that the benefits of exclusion 

outweigh the benefits of designation. 

Yurok Tribal Lands. Yurok Tribal 

Lands: The boundaries of the Yurok 

Indian Reservation encompass the 17.5 

km (10.9 mi) on the Klamath River that 

represent the specific area occupied by 

eulachon on that river. However, land 

ownership within the reservation 

boundary includes a mixture of Federal, 

State, tribal and private ownerships. 

As managers of the Klamath River 

fisheries and their resources, the Tribe 

oversees and protects fish and fish 

habitat through various land and water 

management practices, plans, and 

cooperative efforts. Tribal forest 

practices and land management are 

guided by a Forest Management Plan 

(FMP), a primary objective of which is 

to protect and enhance tribal trust 

fisheries. The Tribe has an established 

water quality control plan on the 

Reservation (Yurok Tribe, 2004) with 

standards that have been approved by 

the Environmental Protection Agency 

(EPA). In conjunction with Federal, 

state and private partners, the Yurok 

Tribe has initiated a large-scale, 

coordinated watershed restoration effort 

in the Lower Klamath sub-basin to 

protect and improve instream, 

intertidal, and floodplain habitats that 

support viable, self-sustaining 

populations of native fishes. More 

recently, the Yurok Tribe fisheries 

program has implemented a eulachon 

monitoring study to determine the 

current abundance, and distribution of 

eulachon in the Klamath River. 

We are proposing to exclude from 

designation all areas of the Klamath 

River based on an initial consideration 

of impacts on our working relationship 

with the Yurok Tribe. Although this 

decision is consistent with our previous 

critical habitat designation for Southern 

Oregon/Northern California Coasts coho 

salmon (64 FR 24049; May 5, 1999), it 

is less clear how well it reflects our 

more recent 4(b)(2) analyses used in 

2005 to designate critical habitat for 19 

salmon and steelhead DPSs (70 FR 

52630; September 2, 2005). In that more 

recent approach we focused such 

exclusions on those Indian lands 

defined in the 1997 Secretarial Order 

3206 ‘‘American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities, 

and the Endangered Species Act.’’ 

Specifically, we excluded: (1) Lands 

held in trust by the United States for the 

benefit of any Indian tribe; (2) land held 

in trust by the United States for any 

Indian Tribe or individual subject to 

restrictions by the United States against 

alienation; (3) fee lands, either within or 

outside the reservation boundaries, 

owned by the tribal government; and (4) 

fee lands within the reservation 

boundaries owned by individual 

Indians. 

During the time between this 

proposed rule and a final designation 

we will consult with the Tribe and other 

land managers in the lower Klamath 

Basin to determine how best to 

determine the benefits of designating or 

excluding particular areas within the 

Yurok Reservation boundary. As noted 

in a biological report supporting this 

designation, the eulachon habitat under 

consideration includes the lowermost 

17.5 km (10.9 miles) of the Klamath 

River. Depending on the outcome of our 

consultations and a final 4(b)(2) analysis 

(informed by tribal input and public 

comments), our final rule may designate 

some or none of these occupied areas as 

critical habitat for this species. 

Extinction Risk Due to Exclusions 

Section 4(b)(2) limits our discretion to 

exclude areas from designation if 

exclusion will result in extinction of the 

species. The overwhelming majority of 

production for the southern DPS of 

eulachon occurs in the Columbia River 

(and tributaries) and the Fraser River in 

Canada (NMFS, 2010a). While 

abundance estimates are not available 

for the three rivers (Quinault, Elwha, 

and Klamath) that overlap Indian lands, 

the runs on these rivers are believed to 

be very small (NMFS, 2010a) and likely 

contribute only a small fraction to the 

total DPS abundance. Because the 

overall percentage of critical habitat on 

Indian lands is so small (5 percent of the 

total area identified) and the likelihood 

that eulachon production on these lands 

represents a very small percent of the 

total annual production for the DPS, we 

conclude that exclusion will not result 

in extinction of the southern DPS of 

eulachon. 

Critical Habitat Designation 

We propose to designate 

approximately 470.2 km (292.1 mi) of 

riverine and estuarine habitat in 

California, Oregon, and Washington 

within the geographical area occupied 

by the southern DPS of eulachon. The 

proposed critical habitat areas contain 

one or more physical or biological 

features essential to the conservation of 

the species that may require special 

management considerations or 

protection. We propose to completely 

exclude two areas (the Quinault River 

and the Klamath River) and portions of 

one other area (Elwha River) from 

designation for which the benefit of 

exclusion outweighs the benefit of 

inclusion (NMFS, 2010c). These areas 

include less than 23.6 km (14.7 mi) of 

riverine and estuarine habitat in 

California and Washington. We 

conclude that the exclusion of these 

areas will not result in the extinction of 

the southern DPS. We have not 

identified any unoccupied areas that are 

essential to conservation, and thus we 

are not proposing any unoccupied areas 

for designation as critical habitat at this 

time. 


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Lateral Extent of Critical Habitat 

We describe the lateral extent of 

critical habitat units as the width of the 

stream channel defined by the ordinary 

high water line, as defined by the 

USACE in 33 CFR 329.11. The ordinary 

high water line on non-tidal rivers is 

defined as ‘‘the line on the shore 

established by the fluctuations of water 

and indicated by physical 

characteristics such as a clear, natural 

line impressed on the bank; shelving; 

changes in the character of soil; 

destruction of terrestrial vegetation; the 

presence of litter and debris, or other 

appropriate means that consider the 

characteristics of the surrounding areas’’ 

(33 CFR 329.11(a)(1)). In areas for which 

the ordinary high-water line has not 

been defined pursuant to 33 CFR 

329.11, we define the width of the 

stream channel by its bankfull elevation. 

Bankfull elevation is the level at which 

water begins to leave the channel and 

move into the floodplain (Rosgen, 1996) 

and is reached at a discharge which 

generally has a recurrence interval of 1 

to 2 years on the annual flood series 

(Leopold et al. 1992). 

As discussed in previous critical 

habitat designations (e.g., Pacific salmon 

and steelhead (70 FR 52630; September 

2, 2005), North American green sturgeon 

(74 FR 52300; October 9, 2009)), the 

quality of aquatic and estuarine habitats 

within stream channels and bays and 

estuaries is intrinsically related to the 

adjacent riparian zones and floodplain, 

to surrounding wetlands and uplands, 

and to non-fish-bearing streams above 

occupied stream reaches. Human 

activities that occur outside of 

designated critical habitat can destroy or 

adversely modify the essential physical 

and biological features within these 

areas. In addition, human activities 

occurring within and adjacent to 

reaches upstream or downstream of 

designated stream reaches or estuaries 

can also destroy or adversely modify the 

essential physical and biological 

features of these areas. This designation 

will help to ensure that Federal agencies 

are aware of these important habitat 

linkages. 

Effects of Critical Habitat Designation 

Section 7(a)(2) of the ESA requires 

Federal agencies to insure that any 

action authorized, funded, or carried out 

by the agency (agency action) does not 

jeopardize the continued existence of 

any threatened or endangered species or 

destroy or adversely modify designated 

critical habitat. Federal agencies are also 

required to confer with us regarding any 

actions likely to jeopardize a species 

proposed for listing under the ESA, or 

likely to destroy or adversely modify 

proposed critical habitat, pursuant to 

section 7(a)(4). A conference involves 

informal discussions in which we may 

recommend conservation measures to 

minimize or avoid adverse effects. The 

discussions and conservation 

recommendations are to be documented 

in a conference report provided to the 

Federal agency. If requested by the 

Federal agency, a formal conference 

report may be issued; including a 

biological opinion prepared according 

to 50 CFR 402.14. A formal conference 

report may be adopted as the biological 

opinion when the species is listed or 

critical habitat designated, if no 

significant new information or changes 

to the action alter the content of the 

opinion. 

When a species is listed or critical 

habitat is designated, Federal agencies 

must consult with NMFS on any agency 

actions to be conducted in an area 

where the species is present and that 

may affect the species or its critical 

habitat. During the consultation, we 

would evaluate the agency action to 

determine whether the action may 

adversely affect listed species or critical 

habitat and issue our findings in a 

biological opinion or concurrence letter. 

If we conclude in the biological opinion 

that the agency action would likely 

result in the destruction or adverse 

modification of critical habitat, we 

would also recommend any reasonable 

and prudent alternatives to the action. 

Reasonable and prudent alternatives 

(defined in 50 CFR 402.02) are 

alternative actions identified during 

formal consultation that can be 

implemented in a manner consistent 

with the intended purpose of the action, 

that are consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that would 

avoid the destruction or adverse 

modification of critical habitat. 

Regulations at 50 CFR 402.16 require 

Federal agencies that have retained 

discretionary involvement or control 

over an action, or where such 

discretionary involvement or control is 

authorized by law, to reinitiate 

consultation on previously reviewed 

actions in instances where: (1) Critical 

habitat is subsequently designated; or 

(2) new information or changes to the 

action may result in effects to critical 

habitat not previously considered in the 

biological opinion. Consequently, some 

Federal agencies may request 

reinitiation of a consultation or 

conference with us on actions for which 

formal consultation has been completed, 

if those actions may affect designated 

critical habitat or adversely modify or 

destroy proposed critical habitat. 

Activities subject to the ESA section 

7 consultation process include activities 

on Federal lands and activities on 

private or state lands requiring a permit 

from a Federal agency (e.g., a Clean 

Water Act, Section 404 dredge or fill 

permit from USACE) or some other 

Federal action, including funding (e.g., 

Federal Highway Administration 

funding for transportation projects). 

ESA section 7 consultation would not 

be required for Federal actions that do 

not affect listed species or critical 

habitat and for actions on non-Federal 

and private lands that are not Federally 

funded, authorized, or carried out. 

Activities That May Be Affected 

ESA section 4(b)(8) requires in any 

proposed or final regulation to designate 

critical habitat an evaluation and brief 

description of those activities (whether 

public or private) that may adversely 

modify such habitat or that may be 

affected by such designation. A wide 

variety of activities may affect the 

proposed critical habitat and may be 

subject to the ESA section 7 

consultation process when carried out, 

funded, or authorized by a Federal 

agency. These include water and land 

management actions of Federal agencies 

(e.g., U.S. Forest Service (USFS)), 

Bureau of Land Management (BLM), 

U.S. Army Corps of Engineers (USACE), 

U.S. Bureau of Reclamation (BOR), 

Natural Resource Conservation Service 

(NRCS), National Park Service (NPS), 

Bureau of Indian Affairs (BIA), the 

Federal Energy Regulatory Commission 

(FERC), and the Nuclear Regulatory 

Commission (NRC)) and related or 

similar Federally-regulated projects and 

activities on Federal lands, including 

hydropower sites licensed by the FERC; 

nuclear power sites licensed by the 

NRC; dams built or operated by the 

USACE or BOR; timber sales and other 

vegetation management activities 

conducted by the USFS, BLM and BIA; 

irrigation diversions authorized by the 

USFS and BLM; and road building and 

maintenance activities authorized by the 

USFS, BLM, NPS, and BIA. Other 

actions of concern include dredging and 

filling, mining, diking, and bank 

stabilization activities authorized or 

conducted by the USACE, habitat 

modifications authorized by the Federal 

Emergency Management Agency, and 

approval of water quality standards and 

pesticide labeling and use restrictions 

administered by the Environmental 

Protection Agency. 

Private entities may also be affected 

by this proposed critical habitat 

designation if a Federal permit is 


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required, if Federal funding is received, 

or the entity is involved in or receives 

benefits from a Federal project. For 

example, private entities may have 

special use permits to convey water or 

build access roads across Federal land; 

they may require Federal permits to 

construct irrigation withdrawal 

facilities, or build or repair docks; they 

may obtain water from Federally funded 

and operated irrigation projects; or they 

may apply pesticides that are only 

available with Federal agency approval. 

These activities will need to be 

evaluated with respect to their potential 

to destroy or adversely modify critical 

habitat for eulachon. Changes to some 

activities, such as the operations of 

dams and dredging activities, may be 

necessary to minimize or avoid 

destruction or adverse modification of 

proposed critical habitat. Transportation 

and utilities sectors may need to modify 

the placement of culverts, bridges, and 

utility conveyances (e.g., water, sewer, 

and power lines) to avoid barriers to fish 

migration. Developments (e.g., marinas, 

residential, or industrial facilities) 

occurring in or near streams, estuaries, 

or marine waters designated as critical 

habitat that require Federal 

authorization or funding may need to be 

altered or built in a manner to ensure 

that critical habitat is not destroyed or 

adversely modified as a result of the 

construction or subsequent operation of 

the facility. Questions regarding 

whether specific activities will 

constitute destruction or adverse 

modification of critical habitat should 

be directed to NMFS (see ADDRESSES

and FOR FURTHER INFORMATION CONTACT). 

Public Comments Solicited 

We solicit comments or suggestions 

from the public, other concerned 

governments and agencies, the scientific 

community, industry, non-governmental 

organizations, or any other interested 

party concerning the proposed 

designation and exclusions as well as 

the documents supporting this 

rulemaking. We are particularly 

interested in comments and information 

in the following areas: (1) Information 

describing the abundance, distribution, 

and habitat use of southern DPS 

eulachon, including marine areas; 

(2) Information on the identification, 

location, and the quality of physical or 

biological features which may be 

essential to the conservation of the 

species, including marine foraging sites; 

(3) Information regarding potential 

benefits of designating any particular 

area as critical habitat, including 

information on the types of Federal 

actions that may affect the area’s 

physical and biological features; 

(4) Information regarding potential 

impacts of designating any particular 

area, including the types of Federal 

actions that may trigger an ESA section 

7 consultation and the possible 

modifications that may be required of 

those activities; (5) Information 

regarding the benefits of excluding a 

particular area from critical habitat, 

including areas covered by an existing 

HCP, especially the Green Diamond 

Timber and Humboldt Bay Municipal 

Water District HCPs in northern 

California; (6) Current or planned 

activities in the areas proposed as 

critical habitat and costs of potential 

modifications to those activities due to 

critical habitat designation; and (7) Any 

foreseeable economic, national security, 

or other relevant impact resulting from 

the proposed designation. You may 

submit your comments and materials 

concerning this proposal by any one of 

several methods (see ADDRESSES). 

Copies of the proposed rule and 

supporting documentation can be found 

on the NMFS Web site http:// 

www.nwr.noaa.gov. We will consider all 

comments pertaining to this designation 

received during the comment period in 

preparing the final rule. Accordingly, 

the final decision may differ from this 

proposal. 

Public Hearings 

50 CFR 424.16(c)(3) requires the 

Secretary to promptly hold at least one 

public hearing if any person requests 

one within 45 days of publication of a 

proposed rule to designate critical 

habitat. Such hearings provide the 

opportunity for interested individuals 

and parties to give comments, exchange 

information and opinions, and engage in 

a constructive dialogue concerning this 

proposed rule. We encourage the 

public’s involvement in such ESA 

matters. A public meeting has been 

scheduled for January 26, 2011 at the 

Doubletree Hotel, 1000 NE Multnomah 

Street, Portland, OR. Requests for 

additional public hearings must be 

made in writing (see ADDRESSES) by 

February 22, 2011. 

Information Quality Act and Peer 

Review 

The data and analyses supporting this 

proposed action have undergone a predissemination review and have been 

determined to be in compliance with 

applicable information quality 

guidelines implementing the 

Information Quality Act (IQA) (Section 

515 of Pub. L. 106–554). In December 

2004, the Office of Management and 

Budget (OMB) issued a Final 

Information Quality Bulletin for Peer 

Review pursuant to the IQA. The 

Bulletin was published in the Federal 

Register on January 14, 2005 (70 FR 

2664). The Bulletin established 

minimum peer review standards, a 

transparent process for public 

disclosure of peer review planning, and 

opportunities for public participation 

with regard to certain types of 

information disseminated by the Federal 

Government. The peer review 

requirements of the OMB Bulletin apply 

to influential or highly influential 

scientific information disseminated on 

or after June 16, 2005. Two documents 

supporting this proposal to designate 

critical habitat for the southern DPS of 

eulachon are considered influential 

scientific information and subject to 

peer review. These documents are the 

draft Biological Report and draft 

Economic Analysis. We have distributed 

the draft Biological Report and draft 

Economic Analysis for independent 

peer review and will address any 

comments received in developing the 

final drafts of the two reports. Both 

documents are available on our Web site 

at http://www.nwr.noaa.gov/, on the 

Federal eRulemaking Web site at 

http://www.regulations.gov, or upon 

request (see ADDRESSES). 

Classification 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA) (5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency publishes a 

notice of rulemaking for any proposed 

or final rule, it must prepare and make 

available for public comment a 

regulatory flexibility analysis describing 

the effects of the rule on small entities 

(i.e., small businesses, small 

organizations, and small government 

jurisdictions). We have prepared an 

initial regulatory flexibility analysis 

(IRFA), which is part of the draft 

Economic Analysis. This document is 

available upon request (see ADDRESSES), 

via our Web site at http://nwr.noaa.gov, 

or via the Federal eRulemaking Web site 

at http://www.regulations.gov. The 

results of the IRFA are summarized 

below. 

At the present time, little information 

exists regarding the cost structure and 

operational procedures and strategies in 

the sectors that may be directly affected 

by the potential critical habitat 

designation. In addition, given the short 

consultation history for eulachon, there 

is significant uncertainty regarding the 

activities that may trigger an ESA 

section 7 consultation or how those 

activities may be modified as a result of 


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consultation. With these limitations in 

mind, we considered which of the 

potential economic impacts we 

analyzed might affect small entities. 

These estimates should not be 

considered exact estimates of the 

impacts of potential critical habitat to 

individual businesses. 

The impacts to small businesses were 

assessed for the following eight broad 

categories of activities: Dams and water 

supply, agriculture and grazing, 

transportation, forest management, 

mining, in-water construction and 

restoration, water quality management/ 

monitoring (and other activities 

resulting in non-point pollution), and 

other activities. Small entities were 

defined by the Small Business 

Administration size standards for each 

activity type. The majority 

(approximately 97 percent) of entities 

affected within each specific area would 

be considered a small entity. A total of 

540 small businesses involved in the 

activities listed above would most likely 

be affected by the proposed critical 

habitat designation. Total annualized 

impacts to small entities are 

conservatively assumed to be $459,000, 

or approximately 99.5 percent of total 

incremental impacts anticipated as a 

result of this rule. 

We estimated the annualized costs 

associated with section 7 consultations 

incurred per small business under two 

different scenarios. These scenarios are 

intended to provide a measure of the 

range of potential impacts to small 

entities given the level of uncertainty 

referred to above. Under the first 

scenario the analysis estimated the 

number of small entities located within 

areas affected by the proposed 

designation (approximately 540), and 

assumes that incremental impacts are 

distributed evenly across all entities in 

each affected industry. Under this 

scenario, a small entity may bear costs 

up to $3,550, representing between 

< 0.01 and 0.10 percent of average 

revenues (depending on the industry). 

Under the second scenario, the analysis 

assumes the costs of each anticipated 

future consultation are borne by a 

distinct small business most likely to be 

involved in a section 7 consultation 

(approximately 38 entities). Under this 

scenario, each small entity may bear 

costs of between $1,330 and $162,000, 

representing between 0.01 and 4.69 

percent of average annual revenues, 

depending on the industry. 

In accordance with the requirements 

of the RFA (as amended by SBREFA of 

1996) this analysis considered various 

alternatives to the critical habitat 

designation for the southern DPS. The 

alternative of not designating critical 

habitat for the southern DPS of eulachon 

was considered and rejected because 

such an approach does not meet the 

legal requirements of the ESA. We 

considered the alternative of designating 

all specific areas (i.e., no areas 

excluded); however, for three areas (all 

of the Quinault and Klamath Rivers and 

part of the Elwha River), the benefits of 

exclusion outweighed the benefits of 

including them in the designation. 

Thus, NMFS also considered the 

alternative of designating all specific 

areas, but excluding these areas. This 

alternative helps to reduce the number 

of small businesses potentially affected 

from 571 to 540, and the total potential 

annualized economic impact to small 

businesses would be reduced from 

$498,000 to $459,000. 

Executive Order 13211 

On May 18, 2001, the President issued 

an executive order on regulations that 

significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking any 

action that promulgates or is expected to 

lead to the promulgation of a final rule 

or regulation that (1) is a significant 

regulatory action under E.O. 12866 and 

(2) is likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. 

We have considered the potential 

impacts of this action on the supply, 

distribution, or use of energy and find 

the designation of critical habitat will 

not have impacts that exceed the 

thresholds identified above (NMFS, 

2010c). 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act, NMFS makes the 

following findings: 

(a) This proposed rule will not 

produce a Federal mandate. In general, 

a Federal mandate is a provision in 

legislation, statute or regulation that 

would impose an enforceable duty upon 

state, local, tribal governments, or the 

private sector and includes both 

‘‘Federal intergovernmental mandates’’ 

and ‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’ 

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to state, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the state, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement.) 

‘‘Federal private sector mandate’’ 

includes a regulation that ‘‘would 

impose an enforceable duty upon the 

private sector, except (i) a condition of 

Federal assistance; or (ii) a duty arising 

from participation in a voluntary 

Federal program.’’ The designation of 

critical habitat does not impose a legally 

binding duty on non- Federal 

government entities or private parties. 

Under the ESA, the only regulatory 

effect is that Federal agencies must 

ensure that their actions do not destroy 

or adversely modify critical habitat 

under section 7. While non- Federal 

entities which receive Federal funding, 

assistance, permits or otherwise require 

approval or authorization from a Federal 

agency for an action may be indirectly 

impacted by the designation of critical 

habitat, the legally binding duty to 

avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply; nor would 

critical habitat shift the costs of the large 

entitlement programs listed above to 

state governments. 

(b) Due to the existing protection 

afforded to the proposed critical habitat 

from existing critical habitat for salmon 

and steelhead (70 FR 52630; September 

2, 2005), Southern DPS of green 

sturgeon (74 FR 52300; October 9, 2009), 

and/or bull trout (70 FR 56212; 

September 26, 2005), we do not 

anticipate that this proposed rule will 

significantly or uniquely affect small 

governments. As such, a Small 

Government Agency Plan is not 

required. 


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Takings 

Under Executive Order 12630, Federal 

agencies must consider the effects of 

their actions on constitutionally 

protected private property rights and 

avoid unnecessary takings of property. 

A taking of property includes actions 

that result in physical invasion or 

occupancy of private property, and 

regulations imposed on private property 

that substantially affect its value or use. 

In accordance with E.O. 12630, this 

proposed rule does not have significant 

takings implications. A takings 

implication assessment is not required. 

The designation of critical habitat 

affects only Federal agency actions. We 

do not expect the proposed critical 

habitat designation to impose additional 

burdens on land use or affect property 

values. Additionally, the proposed 

critical habitat designation does not 

preclude the development of Habitat 

Conservation Plans and issuance of 

incidental take permits for non-Federal 

actions. Owners of areas included 

within the proposed critical habitat 

designation would continue to have the 

opportunity to use their property in 

ways consistent with the survival of 

listed southern DPS eulachon. 

Coastal Zone Management Act 

Section 307(c)(1) of the Federal 

Coastal Zone Management Act of 1972 

(16 U.S.C. 1456) requires that all Federal 

activities that affect the land or water 

use or natural resource of the coastal 

zone be consistent with approved state 

coastal zone management programs to 

the maximum extent practicable. We 

have determined that this proposed 

designation of critical habitat is 

consistent to the maximum extent 

practicable with the enforceable policies 

of approved Coastal Zone Management 

Programs of California, Oregon, and 

Washington. The determination has 

been submitted for review by the 

responsible agencies in the 

aforementioned states. 

Federalism 

In accordance with Executive Order 

13132, we determined that this 

proposed rule does not have significant 

Federalism effects and that a Federalism 

assessment is not required. In keeping 

with Department of Commerce policies, 

we request information from, and will 

coordinate development of this 

proposed critical habitat designation 

with, appropriate state resource 

agencies in California, Oregon, and 

Washington. The proposed designation 

may have some benefit to state and local 

resource agencies in that the areas 

essential to the conservation of the 

species are more clearly defined, and 

the essential features of the habitat 

necessary for the survival of the 

southern DPS of eulachon are 

specifically identified. It may also assist 

local governments in long-range 

planning (rather than waiting for caseby-case ESA section 7 consultations to 

occur). 

Civil Justice Reform 

The Department of Commerce has 

determined that this proposed rule does 

not unduly burden the judicial system 

and meets the requirements of sections 

3(a) and 3(b)(2) of Executive Order 

12988 We are proposing to designate 

critical habitat in accordance with the 

provisions of the ESA. This proposed 

rule uses standard property descriptions 

and identifies the essential features 

within the designated areas to assist the 

public in understanding the habitat 

needs of southern DPS eulachon. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This proposed rule does not contain 

new or revised information collection 

requirements for which Office of 

Management and Budget (OMB) 

approval is required under the 

Paperwork Reduction Act. This 

proposed rule will not impose 

recordkeeping or reporting requirements 

on state or local governments, 

individuals, businesses, or 

organizations. Notwithstanding any 

other provision of the law, no person is 

required to respond to, nor shall any 

person be subject to a penalty for failure 

to comply with, a collection of 

information subject to the requirements 

of the PRA, unless that collection of 

information displays a currently valid 

OMB Control Number. 

National Environmental Policy Act of 

1969 (NEPA) 

We have determined that an 

environmental analysis as provided for 

under NEPA is not required for critical 

habitat designations made pursuant to 

the ESA. See Douglas County v. Babbitt, 

48 F.3d 1495 (9th Cir. 1995), cert. 

denied, 116 S.Ct. 698 (1996). 

Government-to-Government 

Relationship With Tribes 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments, outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. If NMFS issues a regulation 

with tribal implications (defined as 

having a substantial direct effect on one 

or more Indian tribes, on the 

relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes) we must 

consult with those governments or the 

Federal Government must provide funds 

necessary to pay direct compliance costs 

incurred by tribal governments. 

Pursuant to Executive Order 13175 

and Secretarial Order 3206, we 

consulted with the affected Indian 

Tribes when considering the 

designation of critical habitat in an area 

that may impact tribal trust resources, 

tribally owned fee lands or the exercise 

of tribal rights. All of the tribes we 

consulted expressed concern about the 

intrusion into tribal sovereignty that 

critical habitat designation represents. 

The Secretarial Order defines Indian 

lands as ‘‘any lands title to which is 

either: (1) Held in trust by the United 

States for the benefit of any Indian tribe 

or (2) held by an Indian Tribe or 

individual subject to restrictions by the 

United States against alienation.’’ Our 

conversations with the tribes indicate 

that they view the designation of Indian 

lands as an unwanted intrusion into 

tribal self-governance, compromising 

the government-to-government 

relationship that is essential to 

achieving our mutual goal of conserving 

threatened and endangered salmonids. 

For the general reasons described in 

the Other Relevant Impacts—Impacts to 

Tribal Sovereignty and Self-Governance 

section above, the draft ESA 4(b)(2) 

analysis has led us to propose the 

exclusion of all Indian lands in our 

proposed designation for the southern 

DPS of eulachon. Consistent with other 

proposed exclusions, any exclusion in 

the final rule will be made only after 

consideration of all comments received. 

References Cited 

A complete list of all references cited 

in this rulemaking can be found on our 

Web site at http://www.nwr.noaa.gov/ 

and is available upon request from the 

NMFS office in Portland, Oregon (see 

ADDRESSES.) 

List of Subjects in 50 CFR Part 226 

Endangered and threatened species. 

Dated: December 29, 2010. 

Eric C. Schwaab, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

For the reasons set out in the 

preamble, we propose to amend part 

226, title 50 of the Code of Federal 

Regulations as set forth below: 


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PART 226—DESIGNATED CRITICAL 

HABITAT 

1. The authority citation of part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

2. Add § 226.222, to read as follows: 

§ 226.222 Critical habitat for the southern 

Distinct Population Segment of eulachon. 

(Thaleichthys pacificus). 

Critical habitat is designated for the 

southern Distinct Population Segment of 

eulachon (southern DPS) as described in 

this section. The textual descriptions of 

critical habitat in this section are the 

definitive source for determining the 

critical habitat boundaries. The 

overview maps are provided for general 

guidance only and not as a definitive 

source for determining critical habitat 

boundaries. In freshwater areas, critical 

habitat includes the stream channel and 

a lateral extent as defined by the 

ordinary high-water line (33 CFR 

329.11). In areas where the ordinary 

high-water line has not been defined, 

the lateral extent will be defined by the 

bankfull elevation. Bankfull elevation is 

the level at which water begins to leave 

the channel and move into the 

floodplain and is reached at a discharge 

which generally has a recurrence 

interval of 1 to 2 years on the annual 

flood series. In estuarine areas, critical 

habitat includes tidally influenced areas 

as defined by the elevation of mean 

higher high water. 

(a) Critical habitat boundaries. 

Critical habitat is designated to include 

the following areas in California, 

Oregon, and Washington: 

(1) Mad River, California. From the 

mouth of the Mad River (40°57′37′′ N./ 

124°7′36′′ W.) upstream to the 

confluence with the North Fork Mad 

River (40°52′30′′ N./123°59′26′′ W.). 

(2) Redwood Creek, California. From 

the mouth of Redwood Creek (41°17′33′′ 

N./124°5′30′′ W.) upstream to the 

confluence with Prairie Creek (41°17′59′′ 

N./124°3′00′′ W.). 

(3) Umpqua River, Oregon. From the 

mouth of the Umpqua River (43°40′8′′ 

N./124°12′36′′ W.) upstream to the 

confluence with Mill Creek (43°39′20′′ 

N./123°52′34′′ W.). 

(4) Tenmile Creek, Oregon. From the 

mouth of Tenmile Creek (44°13′34′′ N./ 

124°6′45′′ W.) upstream to the Highway 

101 bridge crossing (44°13′27′′ N./124° 

6′35′′ W.). 

(5) Sandy River, Oregon. From the 

confluence with the Columbia River 

upstream to the confluence with Gordon 

Creek (45°29′45′′ N./122°16′41′′ W.). 

(6) Columbia River, Oregon and 

Washington. From the mouth of the 

Columbia River (46°15′9′′ N./124°4′32′′ 

W.) upstream to Bonneville Dam 

(45°38′40′′ N./121°56′27′′ W.). 

(7) Grays River, Washington. From the 

confluence with the Columbia River 

upstream to Covered Bridge Road 

(46°21′17′′ N./123°34′52′′ W.). 

(8) Elochoman River, Washington. 

From the confluence with the Columbia 

River to Washington State Highway 4 

bridge crossing (46°13′44′′ N./123°23′39′′ 

W.). 

(9) Cowlitz River, Washington. From 

the confluence with the Columbia River 

upstream to the Cowlitz Salmon 

Hatchery barrier dam (46°30′45′′ N./ 

122°37′60′′ W.). 

(10) Kalama River, Washington. From 

the confluence with the Columbia River 

upstream to the bridge at Modrow Road 

(46°2′50′′ N./122°50′15′′ W.). 

(11) Lewis River, Washington. From 

the confluence with the Columbia River 

upstream to Merwin Dam (45°57′24′′ N./ 

122°33′21′′ W.). 

(12) Elwha River, Washington. From 

the mouth of the Elwha River (48°8′52′′ 

N./123°34′5′′ W.) upstream to Elwha 

Dam (48°5′42′′ N./123°33′22′′ W.). 

(b) Physical or biological features 

essential for conservation. The physical 

or biological features essential for 

conservation of southern DPS eulachon 

are: 

(1) Freshwater spawning and 

incubation sites with water flow, quality 

and temperature conditions and 

substrate supporting spawning and 

incubation. 

(2) Freshwater and estuarine 

migration corridors free of obstruction 

and with water flow, quality and 

temperature conditions supporting 

larval and adult mobility, and with 

abundant prey items supporting larval 

feeding after the yolk sac is depleted. 

(3) Nearshore and offshore marine 

foraging habitat with water quality and 

available prey, supporting juveniles and 

adult survival. 

(c) Indian lands. Critical habitat does 

not include any Indian lands of the 

following Federally-recognized Tribes 

in the States of California, Oregon, and 

Washington: 

(1) Lower Elwha Tribe, Washington; 

(2) Quinault Tribe, Washington; 

(3) Yurok Tribe, California; and 

(4) Resighini Rancheria, California. 

(d) Maps of proposed critical habitat 

for the southern DPS of eulachon 

follow: 

BILLING CODE 3510–22–P 


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[FR Doc. 2010–33314 Filed 1–4–11; 8:45 am] 

BILLING CODE 3510–22–C 


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