[Federal Register Volume 76, Number 3 (Wednesday, January 5, 2011)]
[Proposed Rules]
[Pages 515-536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-33314]


=======================================================================
-----------------------------------------------------------------------

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:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
    <bullet> Fax: 503-230-5441, Attn: Marc Romano.
    <bullet> 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

[[Page 516]]

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

[[Page 517]]

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 [deg]C (39 to 45 [deg]F) in the Cowlitz River 
(Smith and Saalfeld, 1955), and at a mean temperature of 3.1 [deg]C 
(37.6 [deg]F) in the Kemano and Wahoo Rivers, peak eulachon runs occur 
at noticeably colder temperatures (between 0 and 2 [deg]C [32 and 36 
[deg]F]) in the Nass River. The Nass River run is also earlier than the 
eulachon run that occurs in the Fraser River, which typically has 
warmer temperatures than the Nass River (Langer et al., 1977).

Prey

    Eulachon 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

[[Page 518]]

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 
[deg]C and 10 [deg]C (39 [deg]F and 50 [deg]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 [deg]C 
to 2 [deg]C [32 [deg]F to 36 [deg]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

[[Page 519]]

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-/
post-spawn 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 km\2\ 
(497 mi\2\) 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 km\2\ (285 mi\2\), 
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

[[Page 520]]

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 km\2\ (9,690 mi\2\) 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 km\2\ (4,220 mi\2\) 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 mid-March 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 km\2\ (23 
mi\2\) 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 km\2\ (508 mi\2\). 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).

[[Page 521]]

    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 km\2\ 
(124 mi\2\) (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 km\2\ (163 
mi\2\) 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 km\2\ (2,480 mi\2\) 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 km\2\ (205 
mi\2\) 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

[[Page 522]]

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 km\2\ (731 mi\2\) 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 km\2\ (460 mi\2\) 
(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 km\2\ (321 mi\2\) of the Olympic 
Peninsula. A majority of the drainage (83 percent) is within Olympic 
National Park (Elwha-Dungeness 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 (egg-extruding) 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.

[[Page 523]]

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) 
in-water 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 re-suspension 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 re-suspension 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 habitat-

[[Page 524]]

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]
----------------------------------------------------------------------------------------------------------------
                                             River        Physical or biological
            Specific area              kilometers/miles          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).

[[Page 525]]

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 km\2\ [23 mi\2\]). 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.

[[Page 526]]

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 co-occurring 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

[[Page 527]]

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 Federally-recognized 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 non- Federal landowners (e.g., HCPs) 
enhance species conservation by extending species' protections beyond 
those available through section 7 consultations. We have encouraged 
non-Federal landowners to enter into conservation agreements, based on 
a view that we can achieve greater species' conservation on non-Federal 
land through such 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.

[[Page 528]]

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 
coast-wide 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 near-stream 
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

[[Page 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.

[[Page 530]]

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

[[Page 531]]

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 pre-dissemination 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

[[Page 532]]

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 non-Federal 
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.

[[Page 533]]

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 case-by-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:

[[Page 534]]

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 Sec.  226.222, to read as follows:


Sec.  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[deg]57'37'' N./124[deg]7'36'' W.) upstream to the confluence with 
the North Fork Mad River (40[deg]52'30'' N./123[deg]59'26'' W.).
    (2) Redwood Creek, California. From the mouth of Redwood Creek 
(41[deg]17'33'' N./124[deg]5'30'' W.) upstream to the confluence with 
Prairie Creek (41[deg]17'59'' N./124[deg]3'00'' W.).
    (3) Umpqua River, Oregon. From the mouth of the Umpqua River 
(43[deg]40'8'' N./124[deg]12'36'' W.) upstream to the confluence with 
Mill Creek (43[deg]39'20'' N./123[deg]52'34'' W.).
    (4) Tenmile Creek, Oregon. From the mouth of Tenmile Creek 
(44[deg]13'34'' N./124[deg]6'45'' W.) upstream to the Highway 101 
bridge crossing (44[deg]13'27'' N./124[deg] 6'35'' W.).
    (5) Sandy River, Oregon. From the confluence with the Columbia 
River upstream to the confluence with Gordon Creek (45[deg]29'45'' N./
122[deg]16'41'' W.).
    (6) Columbia River, Oregon and Washington. From the mouth of the 
Columbia River (46[deg]15'9'' N./124[deg]4'32'' W.) upstream to 
Bonneville Dam (45[deg]38'40'' N./121[deg]56'27'' W.).
    (7) Grays River, Washington. From the confluence with the Columbia 
River upstream to Covered Bridge Road (46[deg]21'17'' N./
123[deg]34'52'' W.).
    (8) Elochoman River, Washington. From the confluence with the 
Columbia River to Washington State Highway 4 bridge crossing 
(46[deg]13'44'' N./123[deg]23'39'' W.).
    (9) Cowlitz River, Washington. From the confluence with the 
Columbia River upstream to the Cowlitz Salmon Hatchery barrier dam 
(46[deg]30'45'' N./122[deg]37'60'' W.).
    (10) Kalama River, Washington. From the confluence with the 
Columbia River upstream to the bridge at Modrow Road (46[deg]2'50'' N./
122[deg]50'15'' W.).
    (11) Lewis River, Washington. From the confluence with the Columbia 
River upstream to Merwin Dam (45[deg]57'24'' N./122[deg]33'21'' W.).
    (12) Elwha River, Washington. From the mouth of the Elwha River 
(48[deg]8'52'' N./123[deg]34'5'' W.) upstream to Elwha Dam 
(48[deg]5'42'' N./123[deg]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

[[Page 535]]

[GRAPHIC] [TIFF OMITTED] TP05JA11.002


[[Page 536]]


[GRAPHIC] [TIFF OMITTED] TP05JA11.003

[FR Doc. 2010-33314 Filed 1-4-11; 8:45 am]
BILLING CODE 3510-22-C