52300 Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 080730953–91263–02] 

RIN 0648–AX04 

Endangered and Threatened Wildlife 

and Plants: Final Rulemaking To 

Designate Critical Habitat for the 

Threatened Southern Distinct 

Population Segment of North American 

Green Sturgeon 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), designate 

critical habitat for the threatened 

Southern distinct population segment of 

North American green sturgeon 

(Southern DPS of green sturgeon) 

pursuant to section 4 of the Endangered 

Species Act (ESA). Specific areas 

proposed for designation include: 

Coastal U.S. marine waters within 60 

fathoms (fm) depth from Monterey Bay, 

California (including Monterey Bay), 

north to Cape Flattery, Washington, 

including the Strait of Juan de Fuca, 

Washington, to its United States 

boundary; the Sacramento River, lower 

Feather River, and lower Yuba River in 

California; the Sacramento-San Joaquin 

Delta and Suisun, San Pablo, and San 

Francisco bays in California; the lower 

Columbia River estuary; and certain 

coastal bays and estuaries in California 

(Humboldt Bay), Oregon (Coos Bay, 

Winchester Bay, Yaquina Bay, and 

Nehalem Bay), and Washington 

(Willapa Bay and Grays Harbor). This 

rule designates approximately 515 

kilometer (km) (320 miles (mi)) of 

freshwater river habitat, 2,323 km2 (897 

mi2) of estuarine habitat, 29,581 km2

(11,421 mi2) of marine habitat, 784 km 

(487 mi) of habitat in the SacramentoSan Joaquin Delta, and 350 km2 (135 

mi2) of habitat within the Yolo and 

Sutter bypasses (Sacramento River, CA) 

as critical habitat for the Southern DPS 

of green sturgeon. 

This rule excludes the following areas 

from designation because the economic 

benefits of exclusion outweigh the 

benefits of inclusion and exclusion will 

not result in the extinction of the 

species: Coastal U.S. marine waters 

within 60 fm depth from the California/ 

Mexico border north to Monterey Bay, 

CA, and from the Alaska/Canada border 

northwest to the Bering Strait; the lower 

Columbia River from river kilometer 

(RKM) 74 to the Bonneville Dam; and 

certain coastal bays and estuaries in 

California (Elkhorn Slough, Tomales 

Bay, Noyo Harbor, and the estuaries to 

the head of the tide in the Eel and 

Klamath/Trinity rivers), Oregon 

(Tillamook Bay and the estuaries to the 

head of the tide in the Rogue, Siuslaw, 

and Alsea rivers), and Washington 

(Puget Sound). Particular areas are also 

excluded based on impacts on national 

security and impacts on Indian lands. 

The areas excluded from the designation 

comprise approximately 0.2 km (0.1 mi) 

of freshwater habitat, 2,945 km2 (1,137 

mi2) of estuarine habitat and 1,034,935 

km2 (399,590 mi2) of marine habitat. 

This final rule responds to and 

incorporates public comments received 

on the proposed rule and supporting 

documents, as well as peer reviewer 

comments received on the draft 

biological report and draft ESA section 

4(b)(2) report. 

DATES: This rule will take effect on 

November 9, 2009. 

ADDRESSES: Reference materials 

regarding this determination can be 

obtained via the Internet at: http:// 

www.nmfs.noaa.gov or by submitting a 

request to the Assistant Regional 

Administrator, Protected Resources 

Division, Southwest Region, NMFS, 501 

West Ocean Blvd., Suite 4200, Long 

Beach, CA 90802–4213. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Neuman, NMFS, Southwest 

Region (562) 980–4115; Steve Stone, 

NMFS, Northwest Region (503) 231– 

2317; or Lisa Manning, NMFS, Office of 

Protected Resources (301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

Under the ESA, we are responsible for 

determining whether certain species, 

subspecies, or distinct population 

segments (DPS) are threatened or 

endangered, and designating critical 

habitat for them (16 U.S.C. 1533). On 

April 7, 2006, we determined that the 

Southern DPS of green sturgeon is likely 

to become endangered in the foreseeable 

future throughout all or a significant 

portion of its range and listed the 

species as threatened under the ESA (71 

FR 17757). A proposed critical habitat 

rule for the Southern DPS was 

published in the Federal Register on 

September 8, 2008 (73 FR 52084), with 

a technical correction and notification 

of a public workshop published on 

October 7, 2008 (73 FR 58527). Pursuant 

to a court-ordered settlement agreement, 

NMFS agreed to make a final critical 

habitat designation for the Southern 

DPS by June 30, 2009. However, an 

extension was requested and granted, 

with a new deadline of October 1, 2009. 

This rule describes the final critical 

habitat designation, including responses 

to public comments and peer reviewer 

comments, a summary of changes from 

the proposed rule, and supporting 

information on green sturgeon biology, 

distribution, and habitat use, and the 

methods used to develop the final 

designation. 

We considered various alternatives to 

the critical habitat designation for the 

green sturgeon. The alternative of not 

designating critical habitat for the green 

sturgeon 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 green sturgeon. The alternative of 

designating all potential critical habitat 

areas (i.e., no areas excluded) also was 

considered and rejected because, for a 

number of areas, the economic benefits 

of exclusion outweighed the benefits of 

inclusion, 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 potential critical 

habitat areas would be $64 million to 

$578 million (discounted at 7 percent) 

or $63.9 million to $578 million 

(discounted at 3 percent). 

An alternative to designating critical 

habitat within all of the units 

considered for designation is the 

designation of critical habitat within a 

subset of these units. 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 the 

Southern DPS 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 units 

considered for designation would 

reduce the total impacts of designation. 

The determination of which units and 

how many to exclude depends on 

NMFS’ ESA 4(b)(2) analysis, which is 

conducted for each unit and described 

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in detail in the ESA 4(b)(2) analysis 

report. Under this preferred alternative, 

NMFS originally proposed to exclude 13 

out of 40 units considered. The total 

estimated economic impact associated 

with the proposed rule was $22.5 

million to $76.4 million (discounted at 

7 percent) or $22.5 million to $76.3 

million (discounted at 3 percent). In 

response to public comments and 

additional information received, this 

final rule excludes 14 units out of 41 

units considered where the economic 

benefits of exclusion outweighed the 

conservation benefits of designation. 

NMFS determined that the exclusion of 

these 14 units would not significantly 

impede the conservation of the 

Southern DPS. The total estimated 

economic impact associated with this 

final rule is $20.2 million to $74.1 

million (discounted at 7 percent) or 

$20.1 million to $74 million (discounted 

at 3 percent). NMFS selected this 

alternative because it results in a critical 

habitat designation that provides for the 

conservation of the Southern DPS while 

reducing the economic impacts on 

entities. This alternative also meets the 

requirements under the ESA and our 

joint NMFS–USFWS regulations 

concerning critical habitat. 

Green Sturgeon Natural History 

The green sturgeon (Acipenser 

medirostris) is an anadromous fish 

species that is long-lived and among the 

most marine oriented sturgeon species 

in the family Acipenseridae. Green 

sturgeon is one of two sturgeon species 

occurring on the U.S. west coast, the 

other being white sturgeon (Acipenser 

transmontanus). Green sturgeon range 

from the Bering Sea, Alaska, to 

Ensenada, Mexico, with abundance 

increasing north of Point Conception, 

CA (Moyle et al. 1995). Green sturgeon 

occupy freshwater rivers from the 

Sacramento River up through British 

Columbia (Moyle 2002), but spawning 

has been confirmed in only three rivers, 

the Rogue River in Oregon and the 

Klamath and Sacramento rivers in 

California. Based on genetic analyses 

and spawning site fidelity (Adams et al. 

2002; Israel et al. 2004), NMFS has 

determined green sturgeon are 

comprised of at least two distinct 

population segments (DPSs): (1) A 

Northern DPS consisting of populations 

originating from coastal watersheds 

northward of and including the Eel 

River (i.e., the Klamath and Rogue 

rivers) (‘‘Northern DPS’’); and (2) a 

southern DPS consisting of populations 

originating from coastal watersheds 

south of the Eel River, with the only 

known spawning population in the 

Sacramento River (‘‘Southern DPS’’). 

The Northern DPS and Southern DPS 

are distinguished based on genetic data 

and spawning locations, but their 

distribution outside of natal waters 

generally overlap with one another 

(Chadwick 1959; Miller 1972; California 

Department of Fish and Game (CDFG) 

2002; Israel et al. 2004; Moser and 

Lindley 2007; Erickson and Hightower 

2007; Lindley et al. 2008.). Both 

Northern DPS and Southern DPS green 

sturgeon occupy coastal estuaries and 

coastal marine waters from southern 

California to Alaska, including 

Humboldt Bay, the lower Columbia 

river estuary, Willapa Bay, Grays 

Harbor, and coastal waters between 

Vancouver Island, BC, and southeast 

Alaska (Israel et al. 2004; Moser and 

Lindley 2007; Lindley et al. 2008). 

Spawning frequency is not well 

known, but the best information 

suggests adult green sturgeon spawn 

every 2—4 years (pers. comm. with 

Steve Lindley, NMFS, and Mary Moser, 

NMFS, 2004, cited in 70 FR 17386, 

April 6, 2005; Erickson and Webb 2007). 

Beginning in late February, adult green 

sturgeon migrate from the ocean into 

fresh water to begin their spawning 

migrations (Moyle et al. 1995). 

Spawning occurs from March to July, 

with peak activity from mid-April to 

mid-June (Emmett et al. 1991; Poytress 

et al. 2009). Spawning in the 

Sacramento River occurs in fast, deep 

water over gravel, cobble, or boulder 

substrates (Emmett et al. 1991; Moyle et 

al. 1995; Poytress et al. 2009). Eggs and 

larvae develop in freshwater, likely near 

the spawning site (Kynard et al. 2005). 

Development of early life stages is 

affected by water flow and temperature 

(optimal temperatures from 11 to 17–18 

°C; Cech et al. 2000, cited in COSEWIC 

2004; Van Eenennaam et al. 2005). 

Juvenile green sturgeon rear and feed in 

fresh and estuarine waters from 1 to 4 

years prior to dispersing into marine 

waters as subadults (Nakamoto et al. 

1995). 

Adults are defined as sexually mature 

fish, subadults as sexually immature 

fish that have entered into coastal 

marine waters (usually at 3 years of age), 

and juveniles as fish that have not yet 

made their first entry into marine 

waters. Green sturgeon spend a large 

portion of their lives in coastal marine 

waters as subadults and adults. 

Subadult male and female green 

sturgeon spend at least approximately 6 

and 10 years, respectively, at sea before 

reaching reproductive maturity and 

returning to freshwater to spawn for the 

first time (Nakamoto et al. 1995). Adult 

green sturgeon spend as many as 2–4 

years at sea between spawning events 

(pers. comm. with Steve Lindley, 

NMFS, and Mary Moser, NMFS, cited in 

70 FR 17386, April 6, 2005; Erickson 

and Webb 2007). Prior to reaching 

sexual maturity and between spawning 

years, subadults and adults occupy 

coastal estuaries adjacent to their natal 

rivers, as well as throughout the West 

coast, and coastal marine waters within 

110 meters (m) depth. Green sturgeon 

inhabit certain estuaries on the northern 

California, Oregon, and Washington 

coasts during the summer, and inhabit 

coastal marine waters along the central 

California coast and between Vancouver 

Island, British Columbia, and southeast 

Alaska over the winter (Lindley et al. 

2008). Green sturgeon likely inhabit 

these estuarine and marine waters to 

feed and to optimize growth (Moser and 

Lindley 2007). Particularly large 

aggregations of green sturgeon occur in 

the Columbia River estuary and 

Washington estuaries and include green 

sturgeon from all known spawning 

populations (Moser and Lindley 2007). 

Although adult and subadult green 

sturgeon occur in coastal marine waters 

as far north as the Bering Sea, green 

sturgeon have not been observed in 

freshwater rivers or coastal bays and 

estuaries in Alaska. 

Detailed information on the natural 

history of green sturgeon is provided in 

the proposed rule to designate critical 

habitat (73 FR 52084; September 8, 

2008) and in the final biological report 

(NMFS 2009a) prepared in support of 

this final rule. 

Summary of Comments and Responses 

We requested comments on the 

proposed rule to designate critical 

habitat for the Southern DPS of green 

sturgeon (73 FR 52084; September 8, 

2008) and on the supporting documents 

(i.e., the draft biological report, draft 

economic analysis report, and draft ESA 

section 4(b)(2) report). To facilitate 

public participation, the proposed rule 

and supporting documents were made 

available on our Southwest Region Web 

site (http://swr.nmfs.noaa.gov) and on 

the Federal eRulemaking Portal Web site 

(http://www.regulations.gov). Public 

comments were accepted via standard 

mail, fax, or through the Federal 

eRulemaking Portal. In response to 

requests from the public, the original 

60-day public comment period was 

extended an additional 45 days (73 FR 

65283; November 3, 2008), ending on 

December 22, 2008. A public workshop 

was held in Sacramento, CA, on 

October 16, 2008, and attended by 21 

participants, including researchers and 

representatives from industries and 

Federal, State, and local agencies. The 

draft biological report and draft 

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economic analysis report were also each 

reviewed by three peer reviewers. 

Thirty-nine written public comments 

were received on the proposed rule and 

supporting documents from Federal 

agencies, State agencies, local entities, 

non-governmental organizations, Tribes, 

and industry representatives. Seven 

comments generally supported the 

proposed rule, 29 comments did not 

agree with the designation of critical 

habitat in particular areas, and 3 

comments provided additional 

information but did not support or 

oppose the proposed rule. Several 

commenters requested that certain 

particular areas or specific areas be 

considered ineligible for designation 

because they do not meet the definition 

of critical habitat. Several commenters 

also requested exclusion of areas based 

on economic impacts, impacts on 

national security, or impacts on Indian 

lands. Additional data were provided to 

inform the biological and economic 

analyses, as well as comments regarding 

the methods used in these analyses. 

NMFS considered all public and peer 

reviewer comments. A summary of the 

comments by major issue categories and 

the responses thereto are presented 

here. Similar comments are combined 

where appropriate. 

Physical or Biological Features 

Essential for Conservation 

Comment 1: Several commenters felt 

that the critical habitat designation is 

not supported by the relatively sparse 

data and that the physical or biological 

habitat features or primary constituent 

elements (PCE) identified for green 

sturgeon are too general and vague, such 

that no habitat would exist without 

them. One commenter noted that the 

level of detail provided on the PCEs in 

the supplementary information section 

of the proposed rule is greater than the 

level of detail provided in the regulatory 

text section of the proposed rule. 

Response: The critical habitat 

designation was developed using the 

best available scientific data, as required 

by the ESA. We recognize that 

uncertainties exist and have noted 

where they occur in the final rule and 

supporting documents. When 

appropriate, we incorporated additional 

data provided by the public comments 

regarding the PCEs, the biological 

evaluation, and the economic analysis. 

The level of specificity of the PCEs was 

consistent with that provided in 

previous critical habitat designations 

(e.g., for West coast salmon and 

steelhead evolutionarily significant 

units (ESU) and Southern Resident 

killer whales). In addition, specific 

ranges of values for the PCEs cannot be 

provided (e.g., water flow levels, 

adequately low contaminant levels), 

because the data are not currently 

available and because these values may 

vary based on the location, time of year, 

and other factors specific to an area. The 

level of detail provided in different 

sections of the proposed rule differs 

because the regulatory text section 

typically provides a more brief 

description of the PCEs, whereas the 

supplementary information section 

typically provides a more thorough 

description. The supplementary 

information section and the supporting 

documents provide additional details to 

describe the process of the critical 

habitat designation and the biological 

and economic analyses that were 

conducted in support of the designation, 

whereas the regulatory text reports the 

final designation. 

Comment 2: One commenter 

requested clarification regarding how 

acceptably low levels of contaminants 

would be determined on a case-by-case 

basis (as it pertains to the water quality 

and sediment quality PCEs). 

Specifically, the commenter asked 

whether case-by-case meant that this 

would be determined for each 

Permittee/Project (and if so, what would 

be the basis for differentiation) or by 

contaminant (and if so, how this would 

be determined and disseminated to the 

public). 

Response: Consultations under 

section 7 of the ESA on contaminants 

may be conducted on a case-by-case 

basis for each project or by contaminant, 

depending on the scope of the 

consultation. NMFS has typically dealt 

with consultations for contaminants, 

such as pesticides, on a project-byproject basis. These consultations have 

generally resulted in recommended 

measures to avoid exposure of the listed 

species to the contaminants in question, 

for example, by spatially or temporally 

limiting the introduction of the 

contaminant into waterways occupied 

by the species. However, the 

recommended measures are site-specific 

and will vary depending on the site, the 

contaminant(s) in question, the type of 

use, the purpose of the project, and the 

species potentially affected. NMFS 

recently conducted two consultations 

on the national level with the 

Environmental Protection Agency (EPA) 

addressing the registration of pesticides 

containing carbaryl, carbofuran, and 

methomyl (NMFS 2009b) and pesticides 

containing chlorpyrifos, diazinon, and 

malathion (NMFS 2008a). In both 

consultations, NMFS issued a biological 

opinion finding that the registration of 

these pesticides would jeopardize the 

continued existence of most listed 

salmonids and adversely modify critical 

habitat. The reasonable and prudent 

alternatives provided to the EPA 

recommended labeling requirements 

that specify criteria for the use and 

application of the pesticides, including 

no-application buffer zones adjacent to 

salmonid habitat, restrictions on 

application during high wind speeds 

and when a rain storm is predicted, 

reporting of any fish mortalities within 

four days, and implementation of a 

monitoring plan for off-channel habitats. 

To the extent the alternatives minimize 

entry of pesticides into water bodies and 

result in better information, green 

sturgeon and other aquatic species will 

benefit. 

Comment 3: One commenter provided 

additional information from recent 

studies indicating that green sturgeon 

are more sensitive to methylmercury 

and selenium (two contaminants found 

in sediments) than white sturgeon 

(Kaufman et al. 2008). The commenter 

noted that the studies were unable to 

determine a ‘‘no effect’’ concentration 

for selenomethionine for green sturgeon, 

a contaminant found in bays including 

the San Francisco, San Pablo, and 

Suisun bays and the Sacramento-San 

Joaquin Delta (hereafter, the Delta). The 

commenter stated that it may be 

unlikely that many areas will qualify as 

having the sediment quality PCE as it is 

described in the proposed rule. 

Response: We appreciate the updated 

information regarding the sensitivity of 

green sturgeon to contaminants and 

have incorporated this information into 

the final rule and biological report. We 

recognize the concern expressed by the 

commenter that few, if any, areas have 

sediments free of elevated levels of 

contaminants (i.e., levels at which green 

sturgeon are not negatively affected). 

This brings up two issues. First, 

whether this affects the eligibility of the 

specific areas considered for 

designation. Because all of the proposed 

areas containing the sediment quality 

PCE also contained at least one other 

PCE, the eligibility of the specific areas 

is not affected. Related to this is the 

question of whether a PCE can be 

considered to exist within an area if it 

has been altered and degraded by past, 

current, or ongoing activities. The ESA’s 

definition of critical habitat focuses on 

PCEs that may require special 

management considerations or 

protection. Thus, the ESA recognizes 

that the PCEs may exist at varying levels 

of quality and allows for the 

consideration of PCEs that have been or 

may be altered or degraded. Second, this 

brings up the question of how this PCE 

will be addressed in consultations 

under section 7 of the ESA. The 

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specifics of each consultation would 

vary depending on each project, but 

would likely focus on measures to 

control the introduction of selenium 

into the environment. The Sacramento 

River basin is naturally very low in 

selenium and little selenium enters the 

watercourses from the surrounding 

watershed. Conversely, the San Joaquin 

River basin, due to the geology of the 

west side of the valley and the human 

agricultural practices conducted in this 

region, create conditions of elevated 

selenium in the waters of the basin 

draining the west side and running 

through the valley floor towards the 

Delta. It should also be recognized that 

selenium is a micronutrient which is 

necessary for life, though toxic at levels 

above trace amounts. Continued 

monitoring of selenium levels in 

sediments and research on the 

sensitivity of green sturgeon to this and 

other contaminants would be supported. 

Geographical Area Occupied by the 

Species 

Comment 4: One commenter stated 

that the range of the Southern DPS 

needs to be clarified as previous 

publications in the Federal Register do 

not clearly define the range. Another 

commenter stated that the final decision 

to list the Southern DPS as threatened 

under the ESA only applied the listing 

to the population in California and that, 

although Southern DPS green sturgeon 

move into the Northern DPS’ range 

outside California, the protections under 

the listing do not apply to Southern DPS 

fish once they enter the Northern DPS’ 

range. The commenter felt that NMFS 

should not designate Oregon and 

Washington rivers and marine waters as 

critical habitat if the species is not listed 

in these areas. 

Response: We acknowledge that in the 

final listing rule and the corresponding 

regulatory language at 50 CFR 

223.102(a)(23), it is stated, ‘‘Where 

listed: USA, CA. The southern DPS 

includes all spawning populations of 

green sturgeon south of the Eel River 

(exclusive), principally including the 

Sacramento River green sturgeon 

spawning population.’’ This statement 

limits the listing to the Southern DPS of 

green sturgeon, but does not limit the 

geographic range to which the listing 

applies. A Southern DPS green sturgeon 

is defined to originate from spawning 

populations south of the Eel River (i.e., 

from the Sacramento River). Each 

individual Southern DPS fish carries the 

listing, and the protections afforded to 

it under the ESA, wherever it goes. In 

other words, a Southern DPS green 

sturgeon is listed as threatened and 

protected under the ESA no matter 

where that individual is found. Thus, 

Southern DPS green sturgeon are listed 

throughout their range, including waters 

north of California within the range of 

the Northern DPS. 

NMFS recognizes that previous 

publications in the Federal Register 

have defined the range of Southern DPS 

green sturgeon with varying levels of 

specificity and that this may have 

resulted in confusion. The range of the 

Southern DPS is more clearly defined in 

the proposed critical habitat rule and in 

the draft biological report (NMFS 

2008b). We restate this definition here 

to further clarify the definition and 

range of the Southern DPS of green 

sturgeon. The proposed critical habitat 

rule (73 FR 52084, September 8, 2008) 

and the draft biological report (NMFS 

2008b) define the Southern DPS as 

consisting of populations originating 

from coastal watersheds south of the Eel 

River, with the only confirmed 

spawning population in the Sacramento 

River. The Northern DPS consists of 

populations originating from coastal 

watersheds northward of and including 

the Eel River, with the only confirmed 

spawning populations in the Klamath 

and Rogue rivers. Thus, the Northern 

DPS and the Southern DPS of green 

sturgeon are defined based on their 

natal streams. However, the ranges of 

the Northern DPS and Southern DPS are 

defined by the distribution of each DPS 

including and beyond their natal waters. 

Based on genetic information and 

telemetry data from tagged Southern 

DPS green sturgeon, the occupied 

geographic range of the Southern DPS 

extends from Monterey Bay, CA, to 

Graves Harbor, AK. Within this 

geographic range, the presence of 

Southern DPS green sturgeon has been 

confirmed in the following areas: 

Sacramento River, CA; lower Feather 

River, CA; lower Yuba River, CA; the 

Sacramento-San Joaquin Delta, CA; 

Suisun Bay, CA; San Pablo Bay, CA; San 

Francisco Bay, CA; Monterey Bay, CA; 

Humboldt Bay, CA; Coos Bay, OR; 

Winchester Bay, OR; Yaquina Bay, OR; 

the lower Columbia River and estuary; 

Willapa Bay, WA; Grays Harbor, WA; 

the Strait of Juan de Fuca, WA; Puget 

Sound, WA; and Graves Harbor, AK (see 

final biological report (NMFS 2009a) for 

references for each area). Northern DPS 

and Southern DPS green sturgeon cooccur across much of their occupied 

ranges, are not morphologically 

distinguishable, and, based on the best 

available data at this time, do not appear 

to differ in temporal or spatial 

distribution within areas where their 

ranges overlap. Thus, within areas 

where the Southern DPS has been 

confirmed, protections for the Southern 

DPS would apply to all green sturgeon 

based on similarity of appearance. The 

critical habitat designation recognizes 

not only the importance of natal 

habitats, but of habitats throughout their 

range for the conservation of Southern 

DPS green sturgeon. 

Comment 5: One commenter stated 

that the genetic analysis does not 

provide sufficient information to 

determine the presence or absence of 

Southern DPS green sturgeon in the 

bays and estuaries on the Oregon coast. 

Response: To determine the presence 

of Southern DPS green sturgeon in an 

area, a critical habitat review team 

(CHRT), comprised of 9 Federal 

biologists from various agencies, 

primarily relied on the best available 

information from tagging studies. 

Monitoring of tagged Southern DPS 

green sturgeon has confirmed their use 

of several coastal bays and estuaries 

from Monterey Bay, California, north to 

Puget Sound, Washington (Moser and 

Lindley 2007; Lindley et al. 2008; pers. 

comm. with Steve Lindley, NMFS, and 

Mary Moser, NMFS, February 24–25, 

2008). Therefore, presence has already 

generally been established based on the 

tagging data. The available genetic data 

supports the tagging data by assigning or 

confirming the DPS of individuals (e.g., 

assigning individuals caught in nonnatal waters to the Northern DPS or 

Southern DPS) and has also been useful 

in estimating what proportion of green 

sturgeon observed in non-natal estuaries 

belong to the Southern DPS. In addition, 

the genetic data would provide 

supplemental presence information 

once the data set is large enough to 

ensure detection of Southern DPS fish, 

particularly if the estuary or bay has a 

low frequency of use. 

Comment 6: One commenter 

requested that additional telemetry data 

regarding green sturgeon use of coastal 

marine waters at Siletz Reef and Seal 

Rock Reef off the coast of Oregon be 

incorporated into the final biological 

report and considered in the final 

critical habitat designation. The 

commenter also requested that 

additional information be included to 

support the designation of coastal 

marine waters from 0 to 20 m depth and 

from 90 to 110 m depth. 

Response: NMFS is currently 

analyzing the data on green sturgeon 

detections off the Oregon coast. 

Preliminary results indicate that green 

sturgeon use deeper depths (between 40 

to 80 m) more than shallower depths, 

but reasons for this observation are not 

known. Detection data for shallower 

depths may be affected by noise. 

However, because these data represent 

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only two areas along the Oregon coast, 

it may not be appropriate to extrapolate 

these observations to other areas along 

the West coast. Other available data 

indicate that green sturgeon occur 

throughout all depths from 0 to 110 m 

depth. Some green sturgeon have been 

caught deeper than 110 m depth, but the 

majority occur in waters shallower than 

110 m depth (Erickson and Hightower 

2007). 

Specific Areas 

Comment 7: Two commenters felt that 

the areas proposed for designation as 

critical habitat were too broad. One 

commenter stated that NMFS failed to 

show that the areas are essential for 

conservation of the Southern DPS. 

Another commenter suggested that the 

areas be refined based on the spatial and 

temporal presence of the PCEs. For 

example, the commenter stated that 

riverine areas designated as critical 

habitat for spawning purposes should be 

designated only if actually used for 

spawning and only during the time of 

year that spawning occurs, because 

areas spatially or temporally outside of 

this would not contain the PCEs for 

spawning. The commenter stated that 

such refinement would help ensure that 

the designation is not applied in an 

overly restrictive manner to activities 

that occur in areas where no green 

sturgeon spawn and that this reasoning 

can be applied to other PCEs and habitat 

uses. 

Response: The joint NMFS/U.S. Fish 

and Wildlife Service (USFWS) 

regulations regarding the designation of 

critical habitat focus on the primary 

biological or physical constituent 

elements (PCEs) that are essential to the 

conservation of the species. The ESA 

states that an area qualifies as critical 

habitat if it is occupied and has one or 

more PCE(s) that may require special 

management considerations or 

protection. Specific areas are eligible for 

designation if they meet these criteria. 

Neither the ESA definition of critical 

habitat nor the joint NMFS/USFWS 

regulations require that critical habitat 

be designated only within the most 

important core habitats of the species. 

In addition, the ESA focuses on the 

spatial presence of the PCEs, but does 

not mention the temporal presence of 

the PCEs. The level of refinement 

described by the commenter is typically 

considered during the consultation 

process under section 7 of the ESA, not 

during the critical habitat designation 

process. Consistent with ESA section 7 

consultation practices, spatial and 

temporal considerations are commonly 

assessed during the impact analysis of 

the proposed action. While temporal 

considerations generally look at impacts 

to individual fish (i.e., avoidance of 

exposure as inferred by work windows), 

actions can, and often do, affect the 

habitat that fish use or occupy after the 

action is completed. The commenter’s 

example of spawning areas does not 

address what potential impacts the 

‘‘action’’ may have on the quality of the 

spawning area after the action is 

completed. Actions that temporally 

avoid areas of use (i.e., spawning 

activities on the spawning grounds) 

during the implementation of the action 

may still impact the use of the area after 

the action is completed. For example, 

installing bridge piers upstream of a 

spawning area still impacts the 

spawning area after-the-fact through 

road runoff entering the river channel 

from the bridge, traffic vibrations being 

transmitted through the column into the 

substrate of the river channel during 

‘‘normal use,’’ and sedimentation from 

roadway runoff and altered riparian 

habitat. Furthermore, actions that do not 

occur exactly in the same place as the 

area of concern may nonetheless still 

affect the area of concern. For example, 

wastewater discharge upstream of a 

spawning area can generate an effluent 

plume that travels downstream to 

spawning areas, and reservoir releases 

occurring upstream may affect water 

flow, velocity, and temperature in the 

area of concern. Thus, details such as 

the specific activities being conducted, 

the location, and the spatial and 

temporal scale are considered in order 

to determine the potential effects of the 

activity on critical habitat and, 

ultimately, whether the activity is likely 

to destroy or adversely modify critical 

habitat. Then a determination is made of 

what, if any, additional actions or 

modifications to the proposed action 

will need to be implemented to provide 

protection to the species and their 

designated critical habitat. The section 7 

consultation process allows NMFS to 

address the action’s impacts on a caseby-case basis and incorporate the 

appropriate level of analysis as needed. 

A categorical exemption would not 

allow this level of review to occur and 

in fact would diminish the ability to 

consistently and accurately assess 

action impacts and adjust actions to fit 

the current status of the species and the 

condition of the critical habitat used by 

the species. 

Comment 8: One commenter 

suggested that the shoreward boundary 

for coastal marine habitats should 

extend to the line of mean lower low 

water (MLLW) instead of extreme high 

tide, and that the seaward boundary of 

110 m depth should be rounded to the 

60 fm contour line. 

Response: The CHRT, a team of 

Federal biologists who conducted the 

biological analysis, considered and 

agreed with the recommendations. The 

area between the MLLW line and the 

extreme high tide line along the coast is 

small and likely not occupied by green 

sturgeon. Whereas studies indicate that 

intertidal zones within estuaries and 

protected bays are important habitat for 

green sturgeon, green sturgeon likely do 

not occupy shallow intertidal areas or 

high energy surf zones along the open 

coast. The CHRT compared the MLLW 

line along the coast with the extreme 

high tide line and found that the area 

that would be excluded by defining the 

shoreward boundary using the MLLW 

line would be small and would not 

contain any areas identified to be 

important for green sturgeon. Thus, the 

CHRT agreed to extend the coastal 

marine areas to the area inundated by 

mean lower low water, rather than to 

the extreme high tide. The CHRT also 

agreed to round the 110 m depth 

contour line to the 60 fm contour line, 

because the 60-fm contour is already 

described in Federal regulations for the 

West Coast groundfish bottom trawl 

fishery and is approximately equal to 

110 m (60 fm = 109.7 m). 

Comment 9: Several comments were 

received regarding the proposed 

designation of the lower Columbia River 

estuary. The commenters felt that the 

geographic definition of the estuary 

used was too broad and that the 

boundary for the estuary in the lower 

Columbia River should be defined by 

the maximum extent of saltwater 

intrusion, which was defined by one 

commenter to occur at RKM 64 and 

another commenter to occur at RKM 74. 

The commenters recommended that the 

Willamette River and the lower 

Columbia River from RKM 64 or RKM 

74 to Bonneville Dam should be 

excluded from the designation. One 

commenter asserted that there are no 

data indicating that green sturgeon 

captured above Columbia RKM 64 are 

part of the Southern DPS, and that 

because recent green sturgeon tagging 

data indicate that Northern DPS green 

sturgeon occupy more interior habitats 

in the Columbia River estuary than 

Southern DPS green sturgeon, a smaller 

critical habitat area for the Columbia 

River estuary is justified. 

Response: In the proposed rule, the 

specific area in the lower Columbia 

River estuary was defined as the area 

from the river mouth to the Bonneville 

Dam (RKM 146). The CHRT considered 

the comments received and agreed that 

this specific area should be divided into 

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two specific areas as follows: (1) The 

lower Columbia River estuary from the 

river mouth to RKM 74; and (2) the 

lower Columbia River from RKM 74 to 

the Bonneville Dam (RKM 146). This 

division was based on differences in 

environmental parameters and green 

sturgeon use and presence between the 

lower estuary (river mouth to RKM 74) 

and the lower river (RKM 74 to 

Bonneville Dam). River kilometer 74 

marks the approximate location of the 

maximum extent of saltwater intrusion 

into the lower Columbia River and has 

been used in other reports as the 

location to divide the lower estuary and 

tidal freshwater (Johnson et al. 2003). 

Commercial gillnet harvest data for 

green sturgeon from 1981–2004 

(Washington Department of Fish and 

Wildlife (WDFW) 2007, ESA informal 

consultation) indicate the greatest 

numbers of green sturgeon catch in zone 

1 (RKM 1–32; 29,124 green sturgeon 

harvested) and zone 2 (RKM 32–84; 

8,082 green sturgeon harvested). Green 

sturgeon catch declines sharply 

upstream of RKM 84, with a total of 290 

green sturgeon caught in zones 3–5 

(RKM 84–227) from 1981–2004. 

Observations by WDFW and Oregon 

Department of Fish and Wildlife 

(ODFW) also indicate concentrations of 

green sturgeon in the lower estuary with 

fewer numbers moving upstream. 

Unpublished telemetry data support 

these observations, showing greater 

numbers of detections of both Southern 

DPS and Northern DPS green sturgeon 

in the lower portion of the estuary 

compared to the upper portion (pers. 

comm. with Mary Moser, NMFS, 

February 25, 2009). However, because 

the most upstream monitor location is at 

RKM 74, the telemetry data provide data 

on the distribution of tagged Southern 

DPS and Northern DPS fish within the 

lower estuary but do not provide data 

on the movement and distribution of 

tagged green sturgeon upstream of RKM 

74. Tagged Southern DPS green sturgeon 

have been detected at the monitor at 

RKM 74 and are able to access the lower 

Columbia River upstream of RKM 74, 

though data are not available to 

determine the number of Southern DPS 

green sturgeon moving upstream of 

RKM 74 or the relative levels of 

Southern DPS and Northern DPS fish in 

this area. Based on information 

provided in the public comments 

indicating that green sturgeon have not 

been observed in the lower Willamette 

River, the CHRT agreed that the 

Willamette River should not be 

included in the areas considered for 

designation. Thus, the specific area 

delineated in the lower Columbia River 

from RKM 74 to the Bonneville Dam 

does not now include the Willamette 

River. The CHRT’s evaluation of the two 

specific areas resulted in a conservation 

value rating of High for the lower 

Columbia River estuary from the river 

mouth to RKM 74 and a conservation 

value rating of Low for the lower 

Columbia River from RKM 74 to RKM 

146 (see response to Comment 14 and 

the section titled ‘‘Methods for 

Assessment of Specific Areas’’ for an 

explanation of how the conservation 

value ratings were determined). The 

final biological report (NMFS 2009a) 

provides additional information about 

the CHRT’s evaluation of each specific 

area. 

Comment 10: One commenter 

recommended that South San Francisco 

Bay be considered a separate area from 

Central San Francisco Bay and that 

South San Francisco Bay should be 

excluded from the designation because 

use of the area by green sturgeon is 

moderate and it is not needed for any 

life history stage that is not supported 

by the northern reach of the Bay. 

Response: The CHRT acknowledged 

that Central San Francisco Bay and 

South San Francisco Bay can be 

distinguished by different 

environmental and oceanographic 

features. However, these differences 

likely do not affect green sturgeon use 

of the areas. The best available catch 

data for the San Francisco Bay indicate 

that comparably low numbers of green 

sturgeon have been caught in both 

Central and South San Francisco Bay. In 

2006, a local sport fishing group 

reported 2 green sturgeon caught in 

Central San Francisco Bay, 3 caught in 

South-Central San Francisco Bay, and 4 

caught in South San Francisco Bay 

(pers. comm. with Pete Davidson, 

Coastside Fishing Club, May 31, 2006). 

The total green sturgeon catch in the 

sport fishery for 2006 is not known, 

because sturgeon report cards were not 

required in California until March 2007 

(Gleason 2007). Low numbers of green 

sturgeon were caught in CDFG’s otter 

trawl (1980 to 2004) and midwater trawl 

(1980 to 2001) surveys in the bays and 

the Delta (Delta: n = 19; Suisun Bay/ 

Carquinez Strait: n = 27; San Pablo Bay: 

n = 9; Central San Francisco Bay: n = 

8; South San Francisco Bay: n = 2) (Jahn 

2006). It is important to note that the 

surveys and sampling gear were not 

designed to target green sturgeon, and 

thus the data may not be truly 

representative of the relative levels of 

green sturgeon use among the bays and 

the Delta. For example, given that all 

green sturgeon must migrate through 

Central San Francisco Bay in their 

migrations to and from the ocean, much 

larger numbers of green sturgeon catch 

would be expected in this area. In 

addition, the catch data do not provide 

information about the distribution of 

juvenile green sturgeon throughout the 

bays and the Delta. Based on the best 

available information, juvenile green 

sturgeon are believed to distribute 

widely throughout the bays and Delta 

for feeding and rearing and are present 

in all months of the year (Ganssle 1966, 

CDFG 2002, Bay Delta and Tributaries 

Project 2005). Thus, the CHRT 

determined that the best available 

information does not support dividing 

the specific area in San Francisco Bay 

into Central San Francisco Bay and 

South San Francisco Bay, and 

reconfirmed that this specific area has a 

High conservation value for the 

Southern DPS (see response to 

Comment 14 and the section titled 

‘‘Methods for Assessment of Specific 

Areas’’ for an explanation of how the 

conservation value ratings were 

determined). Based on the CHRT’s 

assessment of San Francisco Bay, NMFS 

determined that this area should be 

included in the final critical habitat 

designation. Studies focused on green 

sturgeon, particularly on the juvenile 

life stages, would help address the data 

gaps and inform ESA section 7 

consultations resulting from this critical 

habitat designation as well as future 

revisions to the designation. 

Comment 11: One commenter 

recommended consideration of Nehalem 

Bay, Oregon, as a specific area and 

designation of critical habitat in 

Tillamook Bay, Oregon. Sport fish catch 

from 1986 to 2007 indicate that 279 

green sturgeon were taken in the fishery 

in Tillamook Bay (corrected catch data 

provided via pers. comm. with Mary 

Hanson, ODFW, July 16, 2009). The 

habitat in Tillamook Bay is comparable 

to other Oregon Bays and estuaries, and 

genetic analyses have not excluded the 

presence of southern DPS green 

sturgeon. Nehalem Bay was not 

considered in the designation and had 

a sport fish catch record of 254 green 

sturgeon from 1986 to 2007 (corrected 

catch data provided via pers. comm. 

with Mary Hanson, ODFW, July 16, 

2009). Another commenter stated that a 

tagged Southern DPS green sturgeon 

was detected in Yaquina Bay, Oregon, in 

May 2006 and recommended that the 

biological report be revised to state that 

the presence of the Southern DPS in this 

area is confirmed. 

Response: Based on the additional 

green sturgeon catch and telemetry data 

provided by the commenters, the CHRT 

added Nehalem Bay as a new specific 

area to be considered and re-evaluated 

Tillamook Bay and Yaquina Bay. The 

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CHRT assigned Nehalem Bay a Medium 

conservation value rating based on the 

large number of green sturgeon captured 

from 1986 to 2007 and its location 

between Tillamook Bay and the 

Columbia River. The CHRT also 

assigned Tillamook Bay a Medium 

conservation value rating (compared to 

its previous Low conservation value 

rating), based on the large number of 

green sturgeon captured in this bay from 

1986 to 2007 and information indicating 

that Tillamook Bay contains suitable 

depths for green sturgeon. The CHRT 

assigned Yaquina Bay a Low 

conservation value rating, which was 

the same rating given previously. The 

CHRT then considered whether 

Southern DPS presence has been 

confirmed within the areas. If Southern 

DPS green sturgeon presence is likely, 

but not yet confirmed, the conservation 

value rating was reduced by one level. 

Because Southern DPS green sturgeon 

have not yet been confirmed in Nehalem 

Bay and Tillamook Bay, the 

conservation value ratings were reduced 

to Low. Because Southern DPS green 

sturgeon have been confirmed in 

Yaquina Bay, the conservation value 

rating stayed at Low and was not 

reduced to Ultra-Low. These ratings 

were then used as the final conservation 

value ratings for the areas. The final 

biological report provides more 

information about the CHRT’s 

evaluation of Nehalem Bay and reevaluation of Tillamook Bay and 

Yaquina Bay. Ultimately only Tillamook 

Bay was excluded because the benefits 

of exclusion outweigh the benefits of 

designation. 

Comment 12: Two commenters felt 

that the Umpqua River may warrant 

designation because green sturgeon 

occur in this river, and it was identified 

as a potential spawning river in the 

2005 status review. 

Response: The CHRT evaluated 

Winchester Bay, the estuary at the 

mouth of the Umpqua River, as a 

specific area eligible for designation as 

critical habitat. The Southern DPS 

consists of green sturgeon originating 

from coastal watersheds south of the Eel 

River, CA (currently, the only confirmed 

spawning river is the Sacramento River, 

CA). The Northern DPS consists of green 

sturgeon originating from coastal 

watersheds north of and including the 

Eel River, CA (confirmed spawning 

rivers are the Klamath River, CA, and 

Rogue River, OR). As described in the 

proposed rule and biological report, 

NMFS defined the Southern DPS’ 

occupied range to include coastal bays 

and estuaries upstream to the head of 

the tide in areas north of and including 

the Eel River. In waters north of and 

including the Eel River, green sturgeon 

occurring upstream of the head of the 

tide are presumed to belong to the 

Northern DPS because it is unlikely that 

Southern DPS green sturgeon would 

venture further into non-natal streams 

beyond the head of tide. Thus, green 

sturgeon observed in the Umpqua River 

upstream of the head of tide are 

presumed to be Northern DPS fish. 

Genetic analyses have confirmed the 

presence of Southern DPS green 

sturgeon in Winchester Bay and 

Umpqua River, but the tissue samples 

were collected downstream of the head 

of tide on the Umpqua River (between 

RKM 6.4 and 19.3). Thus, the available 

genetic data also do not provide 

information on the presence of Southern 

DPS green sturgeon in the Umpqua 

River upstream of the head of tide (pers. 

comm. with Josh Israel, University of 

California, Davis (UC Davis), July 10, 

2009). The Umpqua River was therefore 

not identified as an area occupied by the 

Southern DPS. 

Comment 13: One commenter felt that 

Chinook salmon should be used as a 

surrogate species in place of white 

sturgeon, because green sturgeon do not 

have populations that are isolated from 

the sea. The commenter presented a 

Chinook salmon-based conceptual 

model for the life history of green 

sturgeon in San Francisco Bay, which 

indicated that, like Chinook, juvenile 

green sturgeon most likely migrate from 

the San Francisco Bay as soon as 

possible to coastal marine waters where 

food is abundant for feeding and 

growth. 

Response: The CHRT considered the 

Chinook salmon-based conceptual 

model. The CHRT noted that, while 

green sturgeon may share some 

similarities with Chinook salmon with 

regard to habitat use and needs, the best 

available data indicate there are several 

important differences between the life 

history and distribution of green 

sturgeon and Chinook salmon that limit 

the application of the Chinook salmonbased conceptual model to green 

sturgeon. Unlike Chinook salmon, green 

sturgeon will transit through the San 

Francisco Bay and Delta complex 

several times during their lifetime. 

Laboratory studies indicate that 

Chinook salmon juveniles may occupy 

fresh to brackish waters at any age, but 

do not completely transition to salt 

water until about 1.5 years of age. 

Studies in the Klamath River show that 

juvenile green sturgeon rear in fresh and 

estuarine waters for 1 to 4 years before 

dispersing into salt water, at lengths of 

about 300 to 750 mm. Although there 

have been few studies on juvenile green 

sturgeon distribution throughout the 

San Francisco Bay, the available data 

indicate that juvenile green sturgeon 

also rear in the area’s bays and estuaries 

for 1 to 4 years before migrating out to 

coastal marine waters as subadults. 

Residence times in the Delta appear to 

be variable, based on the temporal 

frequency of juvenile fish recovered at 

the fish salvage facilities of the Central 

Valley Project and State Water Project 

and the data collected from both the 

2007 and 2008 sturgeon report cards 

from CDFG (Gleason 2008). Green 

sturgeon can be found in any month of 

the year, and apparently multiple year 

classes are present in the Delta based on 

the size distribution of catches, although 

for green sturgeon few fish were actually 

measured (sizes ranged from 12 inches 

to 68 inches, 19 fish measured out of 

240 reported caught; Gleason 2008). 

Based on the 2008 report cards, adult 

green sturgeon were caught by sport 

fishermen in every season of the year in 

the Delta and in the Sacramento River 

(from Rio Vista to Chipps Island and 

from Red Bluff to Colusa). This yearround presence of adult and juvenile 

green sturgeon in the Central Valley 

differs from the typical Chinook salmon 

life history as described by the 

commenter’s conceptual model, in 

which juveniles rear in freshwater prior 

to migrating to the San Francisco Bay 

estuary, through which they move 

rapidly to get to marine waters, where 

conditions are better for feeding and 

growth. In addition, subadult and adult 

green sturgeon migrate throughout the 

West coast from southern California to 

Alaska, and are known to occupy 

oversummering habitats in coastal bays 

and estuaries from northern California 

to Washington (including Humboldt 

Bay, Coos Bay, Winchester Bay, the 

lower Columbia River estuary, Willapa 

Bay, and Grays Harbor) for weeks to 

months to feed during multiple 

summers over the course of their lives. 

In contrast, Chinook salmon generally 

use estuaries only at the beginning and 

end of their ocean residence (Quinn 

2005). Unlike green sturgeon, they 

spend their summers in the ocean and 

do not rely nearly as heavily on 

estuarine habitats over their lifespans. 

Biological Evaluation of Conservation 

Value 

Comment 14: One commenter stated 

that the qualitative approach used by 

the CHRT to assess the biological 

conservation benefits of designation was 

not adequate because the approach did 

not provide an objective estimate of the 

relative conservation benefit of 

including a specific area or a clear 

standard to compare with the estimated 

economic impacts. The commenter 

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noted that the approach did not contain 

an estimate of the species’ current 

population level, the increase in 

survival or abundance expected from 

the designation of critical habitat, or an 

estimate of the economic or monetary 

value of the conservation benefits. 

Response: The ESA requires that a 

critical habitat designation be based on 

the best available scientific data. Data 

are not available regarding the current 

absolute population abundance of the 

Southern DPS or green sturgeon in 

general. Data are also not available to 

estimate the monetary value of the 

conservation benefits of designation and 

thereby make a direct comparison to the 

economic impacts of designation. In the 

absence of these data, a qualitative 

conservation value rating approach was 

developed to evaluate the conservation 

benefits of designation. The approach 

incorporated the best available data and 

allowed for consideration of the best 

professional judgment of the CHRT. The 

conservation value ratings (High, 

Medium, Low, Ultra-low) provided a 

relative measure of the benefits of 

designation for each specific area, at a 

level appropriate for the level of data 

available. This approach has been used 

in critical habitat designations for 

salmonids and has been recognized as 

an appropriate alternative where data 

are not available to monetize the 

benefits of designation. 

Comment 15: One commenter 

recommended that further evaluation of 

whether green sturgeon use particular 

coastal estuaries and their habitat value 

be conducted prior to designation of 

these areas as critical habitat. The 

commenter focused on the coastal 

estuaries considered for designation in 

Oregon, stating that the proposed rule 

did not provide information regarding 

the use or extent of use by green 

sturgeon in these areas or the habitat 

value of these areas to green sturgeon. 

Specifically, the commenter stated that: 

(1) The genetic analyses do not provide 

sufficient information to determine the 

presence of Southern DPS green 

sturgeon in Winchester Bay and more 

sampling is needed; (2) it is not clear 

whether tissue samples collected for 

genetic analyses were taken from green 

sturgeon in Winchester Bay or in the 

Umpqua River and the results regarding 

the proportion of Southern DPS green 

sturgeon in the area may be affected by 

sample size; (3) it is not clear why the 

Rogue River was excluded, but Coos Bay 

was not; and (4) reasons for the 

designation of Yaquina Bay and the 

exclusion of Tillamook Bay and the 

Siuslaw River estuary are not clear. 

Response: We agree that additional 

studies are needed to address 

information gaps regarding the extent of 

use of coastal estuaries by Northern DPS 

and Southern DPS green sturgeon and to 

better understand the habitat function 

and value of these areas for the species. 

However, the ESA requires that NMFS 

use the best available scientific and 

commercial data to designate critical 

habitat within specific statutory 

timelines. Thus, in the face of 

uncertainty and varying levels of 

information available for different areas, 

NMFS relied on the best available 

information and used its best 

professional judgment where data were 

lacking or uncertainty was great. 

To evaluate specific areas considered 

for designation as critical habitat, the 

CHRT considered both the use of each 

area by green sturgeon and the value of 

the habitat to green sturgeon. 

Specifically, the CHRT evaluated the 

presence and condition of the PCEs, the 

habitat functions provided, and the life 

stages of green sturgeon confirmed or 

most likely to occur there. To confirm 

the presence of the PCEs, the CHRT 

used the presence of green sturgeon, 

along with the best available habitat 

data. To evaluate the relative habitat 

value of each area, the CHRT considered 

the abundance of green sturgeon along 

with the best available data on the life 

stages and uses supported, the 

consistency of use, and the temporal 

and spatial distribution of green 

sturgeon within an area. To determine 

the extent to which Southern DPS green 

sturgeon used an area, and the relative 

value of each area to the Southern DPS, 

the CHRT used the best available 

tagging and genetic data. The CHRT’s 

analyses and the data used are 

summarized in this final rule and 

described in greater detail in the final 

biological report (NMFS 2009a). In the 

following paragraph, we summarize the 

relevant information in response to the 

comments on specific coastal estuaries 

in Oregon. 

First, the presence of Southern DPS 

green sturgeon within coastal estuaries 

in Oregon was primarily confirmed by 

telemetry data and supported by genetic 

data, where available. For Winchester 

Bay, genetic tissue samples were 

collected between RKM 6.4 and 19.3, 

which is downstream of the head of tide 

in Umpqua River (head of tide = RKM 

40) and within the boundaries of the 

specific area delineated for the bay 

(pers. comm. with Josh Israel, UC Davis, 

July 10, 2009; pers. comm. with Pete 

Baki, ODFW, July 17, 2009). It is 

possible that the sample size affected 

the analysis of the proportion of 

Southern DPS green sturgeon in the bay, 

but that does not negate the use of these 

data to confirm the presence of 

Southern DPS fish in this area. The 

CHRT assigned Winchester Bay a 

Medium conservation value rating based 

on high use of the area by green 

sturgeon and the presence of suitable 

habitat features (see final biological 

report, NMFS 2009a). 

Second, certain coastal estuaries in 

Oregon were excluded from the 

designation because the economic 

benefits of exclusion outweighed the 

conservation benefits of designation. 

Coastal estuaries in Oregon are 

primarily occupied by green sturgeon 

during the summer and contain PCEs 

(including prey resources, water quality, 

and migratory corridors) that support 

feeding and aggregation of subadult and 

adult green sturgeon. During the public 

comment period, additional data were 

provided by the ODFW regarding green 

sturgeon sport catch records in coastal 

Oregon estuaries. These data were used 

to update the data reported in the draft 

biological report (NMFS 2008b). The 

data were considered by the CHRT and 

incorporated into the final rule and 

biological report (see response to 

Comment 11). The data indicate that 

from 1986 to 2007, the largest numbers 

of green sturgeon were caught in 

Winchester Bay (n = 1,889), Tillamook 

Bay (n = 279), and Nehalem Bay (n = 

254), followed by Coos Bay and Yaquina 

Bay (n = 201) (ODFW 2009a, b). 

Southern DPS green sturgeon tagged in 

the Sacramento River and San Pablo Bay 

have been detected in Coos Bay, 

Winchester Bay, and Yaquina Bay (pers. 

comm. with Steve Lindley, NMFS, and 

Mary Moser, NMFS, February 24–25, 

2008; pers. comm. with Dan Erickson, 

ODFW, September 3, 2008). The CHRT 

initially assigned a Medium 

conservation value to Winchester Bay, 

Coos Bay, Tillamook Bay, and Nehalem 

Bay, based on data indicating consistent 

use by and relatively large numbers of 

green sturgeon in these estuaries. 

However, the conservation value for 

Tillamook Bay and Nehalem Bay was 

reduced by one level to Low, because 

there was no evidence to confirm that 

any green sturgeon in those areas belong 

to the Southern DPS. Although 

Southern DPS presence has been 

confirmed in Yaquina Bay, the CHRT 

assigned the area a Low conservation 

value (NMFS 2009a). Finally, the 

estuaries at the mouths of the Siuslaw 

and Alsea rivers were assigned a Low 

conservation value based on relatively 

low numbers of green sturgeon recorded 

in the sport catch data (sport catch = 50 

green sturgeon in Siuslaw estuary and 

30 green sturgeon in Alsea estuary from 

1986 to 2007; ODFW 2009a, b). The 

conservation value was reduced to an 

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Ultra-low because we lack data to 

confirm the presence of Southern DPS 

green sturgeon in these estuaries. 

Under section 4(b)(2) of the ESA, 

NMFS has the discretion to exclude an 

area from the designation if the benefits 

of exclusion outweigh the benefits of 

designation. Tillamook Bay, Siuslaw 

River estuary, Alsea River estuary, Coos 

Bay, and the Rogue River estuary were 

all determined to be potentially eligible 

for exclusion under ESA section 4(b)(2) 

based on economic impacts. All of 

these, except for Coos Bay, were 

excluded based on NMFS’ 

determination that the economic 

benefits of exclusion outweighed the 

conservation benefits of designation. 

Although data demonstrate that the 

Rogue River estuary is consistently used 

by large numbers of green sturgeon, the 

area was assigned an Ultra-Low 

conservation value because the best 

available data indicate that the green 

sturgeon observed there belong to the 

Northern DPS. Thus, the designation of 

critical habitat in the Rogue River 

estuary would not likely benefit the 

conservation of the Southern DPS. Coos 

Bay was not excluded, because the data 

indicate consistent use by relatively 

large numbers of green sturgeon that 

include Southern DPS fish. The CHRT 

determined that protection of Coos Bay 

as critical habitat is important for the 

conservation of green sturgeon, and 

exclusion of Coos Bay would 

significantly impede conservation. 

Based on the CHRT’s recommendation, 

NMFS determined that the economic 

benefits of exclusion do not outweigh 

the conservation benefits of designation 

for Coos Bay and included Coos Bay in 

the final critical habitat designation. We 

recognize that the level of data available 

varies across areas and may affect the 

evaluation of these areas. We encourage 

additional studies of green sturgeon 

distribution in, and use of, coastal 

estuaries to inform NMFS’ consultations 

under section 7 of the ESA, recovery 

planning and implementation, and 

future revisions to the critical habitat 

designation for the Southern DPS. 

Comment 16: One commenter noted 

that many of the coastal marine and 

estuarine areas proposed for designation 

as critical habitat are already altered 

habitats, wanting NMFS to recognize 

that routine, regular maintenance 

activities (including maintenance 

dredging of navigation channels) are 

conducted within these areas by the 

U.S. Army Corps of Engineers to 

support ongoing multi-purpose projects. 

Response: NMFS acknowledges that 

many of the coastal marine and 

estuarine areas proposed for designation 

as critical habitat contain habitats that 

have been altered by past and ongoing 

activities. These past and ongoing 

activities have likely affected the PCEs 

within each area, but have not degraded 

the PCEs such that they no longer exist 

within the areas. The continued 

presence and use by green sturgeon of 

each area indicate that the PCEs exist 

and still provide habitat functions to 

support the species. In addition, the 

presence of regular routine maintenance 

indicates that the PCEs within the 

coastal marine and estuarine areas may 

require special management 

considerations or protection. 

Comment 17: One commenter noted 

that the proposed rule incorrectly stated 

that green sturgeon present in estuaries 

of the Eel, Klamath/Trinity, and Rogue 

rivers are believed to belong to the 

Northern DPS, based on the fact that 

these are spawning rivers for the 

Northern DPS (73 FR page 52091, 

bottom of third column). The 

commenter requested clarification that 

green sturgeon spawning has not been 

confirmed in the Eel River. 

Response: We acknowledge this error 

in the proposed rule. The final rule 

corrects this error and states that green 

sturgeon present in estuaries of the 

Klamath/Trinity and Rogue rivers are 

presumed to belong to the Northern DPS 

because these are spawning rivers for 

the Northern DPS and no tagged 

Southern DPS green sturgeon have ever 

been detected in the estuaries. Green 

sturgeon in the Eel River estuary are 

presumed to belong to the Northern DPS 

based on the definition of the Northern 

DPS (which includes the Eel River). In 

2008, a hydroacoustic array was 

installed in the Eel River estuary and 

detected one tagged Northern DPS green 

sturgeon. More data from tagging and 

genetics studies are needed to confirm 

whether or not Southern DPS green 

sturgeon occupy the Eel River estuary. 

Comment 18: Commenters requested 

additional information to be presented 

in the biological report, including: A 

table citing the references used to 

determine the presence of green 

sturgeon in each specific area; the 

results from the CHRT’s three 

approaches for evaluating the 

conservation value of the species areas; 

and additional telemetry data and 

references provided by reviewers and 

commenters. Two commenters also 

noted an error in Table 5 of the draft 

biological report regarding the tally of 

conservation value rating votes for 

Grays Harbor, WA. 

Response: The final biological report 

incorporates the changes requested and 

the additional information provided by 

the peer reviewers and public 

comments. First, a table listing each 

specific area, the life stages of green 

sturgeon that are present, and the 

relevant references was added to the 

report. Second, the CHRT had used 

three different approaches for assigning 

conservation values to the specific 

areas, but only the results of the final 

method were reported in the draft 

biological report. The final biological 

report provides the results for all three 

approaches for comparison. Third, 

additional telemetry data and 

information regarding green sturgeon 

spawning in the Sacramento River were 

incorporated into the report and 

considered by the CHRT. Finally, 

corrections were made to the 

conservation value rating tally for Grays 

Harbor in Table 7 of the final biological 

report (formerly Table 5 in the draft 

biological report). Specifically, the draft 

biological report incorrectly reported 6 

votes for Medium and 2 votes for Low 

conservation values. The correct tally 

was 6 votes for High and 2 votes for 

Medium conservation values. 

Special Management Considerations 

Comment 19: One commenter stated 

that most of the 13 types of activities 

that potentially require special 

management are already regulated 

under existing environmental 

regulations that address effects on the 

PCEs. The commenter requested 

additional information to describe the 

cause/effect relationship between the 

PCEs and each of the 13 types of 

activities that potentially require special 

management. 

Response: This comment raises the 

concern of whether the specific areas 

considered for designation as critical 

habitat are eligible for designation. To 

be eligible for designation, the specific 

area must meet the definition of critical 

habitat. That is, the specific area must 

contain at least one PCE that may 

require special management 

considerations or protection. The focus 

of this comment is on whether the 

‘‘special management considerations or 

protection’’ criterion is satisfied. Special 

management considerations or 

protection mean ‘‘any methods or 

procedures useful in protecting physical 

and biological features of the 

environment for the conservation of 

listed species’’ (50 CFR 424.02). In 

determining whether a specific area met 

the definition of critical habitat, the 

CHRT was asked to identify whether 

any PCE could be found in the specific 

area, whether there were any actions 

(either ongoing or anticipated) occurring 

in the area that may threaten the PCE(s), 

and whether there would be any 

methods or procedures useful in 

protecting the PCE(s). The CHRT based 

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their assessment on their knowledge of 

the areas and the PCEs and their 

experience conducting section 7 

consultations or field research on green 

sturgeon in the areas. The CHRT was 

not asked to identify existing 

protections within each area, nor was 

the CHRT asked to evaluate whether 

existing protections were adequate. The 

existence of environmental regulations 

does not negate the fact that the PCEs 

within an area may require special 

management considerations or 

protection. Thus, the existence of 

environmental regulations that already 

regulate the activities of concern was 

not a factor to be considered by the 

CHRT in determining the eligibility of 

an area for consideration as critical 

habitat. Instead, the consideration of 

existing environmental regulations and 

other protections that address the PCEs 

is a question to be considered in the 

ESA 4(b)(2) analysis when weighing the 

benefits of exclusion against the benefits 

of designation. The final biological 

report was revised to include a more 

detailed description of the 13 types of 

activities that may require special 

management and how these types of 

activities may affect the PCEs. 

Comment 20: One commenter 

recommended that gravel augmentation 

should not be under the ‘‘in-water 

construction or alteration’’ category, but 

should be included in the ‘‘habitat 

restoration’’ category because there will 

be potential habitat benefits from gravel 

augmentation. Otherwise, the 

commenter noted that a large number of 

restoration activities should also be 

included in the ‘‘in-water construction 

or alteration’’ category. The commenter 

requested that in-water construction or 

alteration activities and habitat 

restoration activities be more clearly 

defined. 

Response: We revised the final rule 

and supporting documents to more 

clearly define in-water construction or 

alteration activities and habitat 

restoration activities. In-water 

construction or alteration activities 

include activities that involve the 

construction or maintenance of some 

physical in-water structure (e.g., 

breakwaters, docks, piers, pilings, 

bulkheads, boat ramps, utility lines) or 

the alteration of physical in-water 

habitat features (e.g., channel 

modification/diking, sand and gravel 

mining), including activities occurring 

outside of the water but that may affect 

in-water habitat (such as road building 

and maintenance, forestry, grazing, and 

urbanization that may lead to increased 

erosion and sedimentation). Habitat 

restoration activities are activities 

conducted for the primary purpose of 

restoring natural aquatic or riparian 

habitat conditions or processes. We 

agree that gravel augmentation can be 

included as a habitat restoration activity 

and have included it in this category in 

addition to the in-water construction or 

alteration activity category. We note, 

however, that gravel augmentation and 

other habitat restoration activities may 

have either positive or negative effects 

on critical habitat for green sturgeon, 

depending on the type of activity, 

location, time of year, scale, and other 

factors. For example, gravel 

augmentation could possibly fill in deep 

pools (greater than 5 meters in depth) 

used by green sturgeon for holding and 

spawning. These activities would be 

subject to requirements under section 7 

of the ESA to address potential effects 

on critical habitat. 

Comment 21: Two commenters were 

concerned about the effect that invasive 

submerged aquatic vegetation may have 

on the physical or biological features 

essential for conservation in shallow 

water habitats and felt that this should 

be considered in the designation. One 

commenter also requested that the 

CHRT consider activities that may result 

in a large increase of erosion, including 

logging, gravel mining, and the use of 

recreational off-road vehicles near 

riparian areas, and their effects on 

present or future spawning streams. 

Response: The CHRT identified the 

introduction and spread of non-native 

species as a potential threat to the PCEs 

that may result in the need for special 

management considerations or 

protection. We recognize that invasive 

submerged aquatic vegetation, such as 

the Egeria densa mentioned by one 

commenter, may affect shallow waters 

by trapping sediments, forming thick 

mats that obstruct passage, and 

crowding out native vegetation. 

Activities that result in increased 

erosion were also considered by the 

CHRT under the ‘‘in-water construction 

or alterations’’ category. The final rule 

clarifies that activities that occur 

outside of designated critical habitat, 

including those conducted upstream, 

upland, or adjacent to designated 

critical habitat areas, can destroy or 

adversely modify critical habitat and 

would also be subject to requirements 

under section 7 of the ESA with regard 

to critical habitat. Therefore, the 

commenters’ concerns have been 

addressed. 

Comment 22: Several commenters 

provided information on additional 

activities that should be considered 

which occur within the specific areas 

and that may threaten the PCEs. 

Response: We considered the 

information provided on additional 

activities and incorporated the 

information into the final rule and 

supporting documents. The changes 

include: (1) Feather River—added 

habitat restoration activities; (2) Yolo 

Bypass—added dams (Lisbon Weir and 

Fremont Weir), water diversions, 

pollution, and habitat restoration; (3) 

Sutter Bypass—added dams (weirs 

located in the toe drain), water 

diversions, pollution, habitat 

restoration, and in-water construction or 

alteration activities; (4) Sacramento-San 

Joaquin Delta—added dams (locks, 

weirs, and temporary barriers) and 

commercial shipping; (5) lower 

Columbia River estuary (from RKM 0 to 

74)—the two LNG projects identified by 

the commenters were already 

considered in the proposed rule, 

however, based on public comments 

received, we divided the lower 

Columbia River and estuary into two 

specific areas (the lower Columbia River 

estuary from RKM 0 to 74 and the lower 

Columbia River from RKM 74 to 146; 

see response to comment 15) and the 

LNG projects were assigned to the lower 

Columbia River estuary specific area; 

and (6) coastal marine waters off 

Oregon—added 5 proposed wave energy 

projects. 

Potential Effects of the Critical Habitat 

Designation on Activities 

Comment 23: One commenter 

requested that further clarification be 

given whether a Federal nexus exists for 

the commercial crab and pink shrimp 

State-managed fisheries that may trigger 

section 7 requirements. The commenter 

noted that consultation may also be 

required for bottom trawl fisheries 

conducted in coastal marine waters off 

Oregon. 

Response: Based on the information 

provided by the commenters and the 

current management regime at this time, 

NMFS does not believe that a Federal 

nexus exists for the commercial crab 

and pink shrimp State-managed fishery 

off Oregon. However, the fishery may be 

subject to the ESA section 4(d) rule for 

the Southern DPS of green sturgeon 

(proposed May 21, 2009, 74 FR 23822) 

if take of green sturgeon occurs in this 

fishery. NMFS is working with the 

Pacific Fishery Management Council 

(PFMC) to prepare for a consultation 

under section 7 of the ESA on the 

groundfish bottom trawl fishery 

conducted off California, Oregon, and 

Washington. The consultation would 

address impacts on green sturgeon 

critical habitat within coastal marine 

waters. 

Comment 24: Several commenters 

requested additional information on 

what changes might be recommended 

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for the California State Water Project 

(SWP) and the Central Valley Project 

(CVP) operations and how these areas 

may require special management. 

Response: The effects of the combined 

CVP and SWP operations on the 

Southern DPS were analyzed by NMFS 

in the recently issued Biological and 

Conference Opinion (2009 OCAP BO). 

The most conspicuous change to CVP 

operations is the operations of Red Bluff 

Diversion Dam (RBDD). Following the 

issuance of the 2009 OCAP BO, gates 

will remain open from September 1st 

through June 14th until May of 2012. By 

May 14th, 2012, the Red Bluff 

alternative intake pumps are anticipated 

to be operational. This will allow the 

Tehama-Colusa Canal Authority (TCCA) 

to divert sufficient water through 

screened pumps to meet its obligations 

without relying on the operations of the 

RBDD to back up water to supply its 

current gravity fed diversion. The 

operation of the screened pumps will 

allow for the decommissioning and 

eventual removal of the RBDD. During 

the interim period (2009 to 2012), 

screened pumps will be installed 

adjacent to the current location of the 

RBDD to divert sufficient volumes of 

water to meet TCCA needs through June 

14th of each year. After June 14th, the 

RBDD gates will be lowered to back up 

river water and supply the gravity fed 

diversions. When the gates are 

operational, a minimum of 18 inches of 

clearance will be maintained beneath 

the radial gate to allow for downstream 

passage of adult green sturgeon. In 

addition, the TCCA and the Bureau of 

Reclamation will fund studies over the 

next 3 years specifically focused on 

green sturgeon to determine population 

size, movements of fish within the 

system, and habitat preferences and 

usage within the Central Valley. Within 

the Delta, reoperation of the Delta Cross 

Channel gates will result in closing the 

gates earlier to prevent emigrating fish 

from entering the Delta interior. 

Although primarily designed for 

salmonid protection, the closing of the 

gates may have some utility in 

protecting adult and juvenile green 

sturgeon emigrating during the same 

time period (better conditions in the 

Sacramento River migratory corridor 

versus less hospitable conditions within 

the Mokelumne River corridor). 

Likewise, export curtailments designed 

to benefit emigrating salmonids are 

expected to benefit juvenile green 

sturgeon and reduce their entrainment 

by the pumps during the periods of 

export reduction. Modifications to the 

fish salvage facilities to enhance the 

efficiency of the overall salvage will 

benefit green sturgeon. Increases in 

sampling rate/duration at the fish 

salvage facilities will better quantify the 

effects of the export actions on green 

sturgeon. The section 7 consultation on 

the Federal Energy Regulatory 

Commission (FERC) relicensing of 

Oroville Dam is assessing the river 

temperature profile downstream of the 

Thermalito Afterbay outlet to ascertain 

whether additional spawning habitat 

can be gained through modifications of 

facilities, and/or operations of dam 

releases, or reconfiguration of the 

Thermalito Afterbay itself. 

Economic Analysis 

Comment 25: One commenter felt that 

NMFS cannot adequately estimate the 

incremental economic effects of the 

critical habitat designation, because 

NMFS has not yet issued an ESA 4(d) 

rule for the Southern DPS. 

Response: The economic analysis 

(Industrial Economics Inc. (Indecon) 

2009) complies with the ESA’s mandate 

to use the best available information, 

and NMFS believes it provides a 

sufficient assessment of the baseline and 

incremental economic impacts of 

designating critical habitat for green 

sturgeon. The baseline for the 

incremental impacts analysis includes 

the estimated costs attributed to the 

listing of the species and the protections 

under section 7 of the ESA requiring 

Federal agencies to ensure their actions 

do not jeopardize ESA-listed species. 

The baseline also includes protections 

already provided to green sturgeon 

critical habitat under existing 

protections for other listed species, such 

as West Coast salmon and steelhead, 

delta smelt, and marine mammal 

species. The incremental analysis of 

impacts looks at what is required to 

avoid adverse modification of green 

sturgeon critical habitat, above and 

beyond what is already required to 

avoid jeopardy of listed species and 

adverse modification of existing critical 

habitat, and to comply with other 

existing Federal, State, and local 

protections. 

To assess the baseline and 

incremental impacts, the best available 

information was used from the short 

consultation history for green sturgeon, 

as well as information from surrogate 

species (e.g., salmonids) whose 

distribution and life history traits 

overlap with the green sturgeon’s, 

because the protective measures that 

have been established for these species 

are similar to what NMFS would 

anticipate for green sturgeon. 

Uncertainties related to assessing 

incremental impacts exist, but this is 

partly due to the project-specific nature 

of the ESA section 7 consultations that 

NMFS conducts with other Federal 

agencies. To address this uncertainty, a 

conservative approach was taken to 

ensure that the analysis adequately 

represents the potential impacts and 

incremental costs associated with the 

critical habitat designation. Therefore, 

promulgation of take prohibitions under 

an ESA 4(d) rule is not necessary to 

assess the baseline and incremental 

impacts of the critical habitat 

designation. 

Comment 26: Several commenters 

disagreed with the draft economic 

analysis’ method for assessing 

incremental impacts. One commenter 

also noted the draft economic analysis 

did not adequately define the baseline 

used in the analysis. Specifically, 

commenters suggested that the baseline 

should not include protections for green 

sturgeon offered by conservation 

measures undertaken for Pacific salmon. 

One commenter noted that the 

economic analysis should consider both 

incremental and baseline impacts. In 

particular, the commenter suggested 

that baseline impacts should be 

considered because if one of the listed 

salmonids were delisted, the 

designation of critical habitat for green 

sturgeon could become the primary 

reason certain conservation measures 

are undertaken. Another commenter 

stated that NMFS’ consideration of all 

potential project modifications that may 

be required under section 7 of the ESA, 

regardless of whether those changes 

may also be required under the jeopardy 

provision, appears to be contrary to the 

reasoning of the Cape Hatteras Access 

Preservation Alliance v. U.S. 

Department of Interior (344 F. Supp. 2d 

108 (D.D.C., 2004)) (Cape Hatteras) 

court decision that the effects of listing 

and the jeopardy provision should not 

be considered as part of the impacts of 

a designation in the ESA 4(b)(2) analysis 

for a critical habitat designation. 

Response: As outlined in Section 1.3 

of the final economic analysis report 

(Indecon 2009), the analysis does not 

attribute all potential project 

modifications required under section 7 

to the critical habitat designation. 

Rather, it takes an incremental 

approach, comparing the state of the 

world with and without the designation 

of critical habitat for green sturgeon. 

The ‘‘without critical habitat’’ scenario 

represents the baseline for the analysis, 

considering habitat protections already 

afforded green sturgeon under its 

Federal listing or under other Federal, 

State, and local regulations, including 

protections afforded green sturgeon 

resulting from protections for other 

listed species, such as West Coast 

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salmon and steelhead, delta smelt, and 

marine mammal species. The ‘‘with 

critical habitat’’ scenario attempts to 

describe the incremental impacts 

associated specifically with green 

sturgeon critical habitat designation. 

The courts in several cases have held 

that an incremental analysis is proper 

(see for example: Cape Hatteras; Center 

for Biological Diversity v. United States 

Bureau of Land Management, 422 F. 

Supp. 2d. 1115 (N.D. Calif. 2006); and 

Arizona Cattle Growers v. Kempthorne, 

534 F. Supp. 2d 1013 (D. Ariz. 2008)). 

Section 1.4 of the final economic 

analysis report clarifies how the 

economic analysis defines its baseline, 

or ‘‘without critical habitat’’ scenario. 

As described in Section 1.4.5 of the final 

economic analysis report, projectspecific conservation efforts that benefit 

green sturgeon are frequently 

undertaken due to the joint presence of 

multiple anadromous fish species and 

habitats and may therefore be 

implemented regardless of the presence 

of green sturgeon critical habitat. This 

complicates the identification of 

changes in behavior associated 

specifically with the green sturgeon 

critical habitat. This analysis employs 

best professional judgment in 

calculating the probability that green 

sturgeon conservation needs are a 

primary driver of the implementation of 

a joint conservation effort. Thus, this 

analysis estimates the likelihood that 

consideration of green sturgeon critical 

habitat will weigh heavily in the 

implementation of a conservation effort 

undertaken due to the presence of 

multiple species and habitats. This 

probability is dependent upon a number 

of factors, including the details of the 

project and conservation effort in 

question and the number of sensitive 

species present. By excluding impacts 

for which green sturgeon critical habitat 

is not a key reason for a conservation 

effort implementation, this analysis 

focuses the quantification of impacts on 

those associated specifically with green 

sturgeon habitat conservation. Because 

the probability that any given 

conservation effort is being driven by 

green sturgeon conservation as opposed 

to other species is subject to significant 

uncertainty, the final economic analysis 

report presents a sensitivity analysis for 

these assumptions. Appendix E of the 

final economic analysis describes 

alternative results assuming the extreme 

case that green sturgeon is always a 

primary driver of the conservation 

efforts (e.g., that 100 percent of the time 

fish screens are installed, it is primarily 

due to green sturgeon conservation 

needs). 

Comment 27: Several commenters 

noted that it would be helpful if the 

draft economic analysis provided 

additional, detailed explanations of the 

methodology for calculating impacts for 

specific activities, including dam 

projects. 

Response: Section 1.4 of the final 

economic analysis report provides a 

revised discussion of how the various 

cost estimates are developed and 

aggregated to develop total annualized 

impacts per unit. Every section for a 

specific economic activity contains 

exhibits on these three data points: (1) 

Number of affected projects by unit; (2) 

expected annualized costs of 

conservation efforts for anadromous fish 

species per project; and (3) the 

probability that green sturgeon drives 

the impact for that activity in that unit 

(for units where listed salmon and 

steelhead habitat overlap occurs). The 

analysis multiplies the number of 

affected projects in each unit by the 

annualized costs per project and the 

probability score for each unit to arrive 

at projected impacts. For example, costs 

of fish screens at water diversions are 

developed by estimating average costs of 

fish screens ($80,000 to $130,000), 

annualizing over 20 years, and 

multiplying by the number of water 

diversions in affected units. For units 

where listed salmon and steelhead 

species are present, the costs are again 

multiplied by the probability that green 

sturgeon will be the driver of passage 

costs. Specific costs of fish passage 

projects in critical habitat areas 

provided by public commenters have 

been incorporated into the analysis of 

impacts on dam projects. 

Comment 28: One commenter noted 

that the designation of critical habitat 

may result in economic activities not 

being carried out (e.g., dredging, project, 

in-water construction, development 

project) or otherwise lead to time 

delays. The draft economic analysis 

should address losses in consumer 

surplus resulting from these potential 

delays. 

Response: As discussed in Section 

1.3.2 of the final economic analysis 

report, the analysis does consider time 

delay impacts associated with the 

section 7 consultation process and/or 

compliance with other laws triggered by 

designation where applicable. For 

example, estimated impacts to dredging 

projects include impacts associated with 

possible work window constraints (see 

Exhibit 2–4). 

Comment 29: One commenter stated 

that the draft economic analysis 

employed a ‘‘cost-effectiveness’’ 

analysis to analyze impacts; however, 

the draft economic analysis did not 

provide sufficient data to determine 

which areas would provide the greatest 

biological benefit for each dollar of 

associated impact. 

Response: As discussed in Section 

1.2.1 of the final economic analysis 

report, we used an alternative form of 

cost-effectiveness analysis for this 

rulemaking. This alternative form 

develops an ordinal measure of the 

benefits of critical habitat designation. 

Although it is difficult to monetize or 

quantify benefits of critical habitat 

designation, it is possible to 

differentiate among habitat areas based 

on their estimated relative value to the 

conservation of the species. For 

example, habitat areas can be rated as 

having a high, medium, or low 

biological value. The output, a 

qualitative ordinal ranking, may better 

reflect the state of the science for the 

geographic scale considered here than a 

quantified output and can be done with 

available information. The final ESA 

section 4(b)(2) report (NMFS 2009c) 

discusses the specific weighing process 

that we performed for this rule. 

Comment 30: One commenter stated 

that the cumulative economic impact of 

baseline protections was not included in 

the economic analysis. 

Response: The economic analysis 

estimates costs associated with 

conducting an ESA section 7 

consultation to ensure Federal agency 

actions are not likely to destroy or 

adversely modify critical habitat. We 

did not have information available to 

determine the cumulative economic 

impacts of baseline protections, nor did 

the commenter provide us data that 

would allow us to make such a 

determination. 

Comment 31: One commenter stated 

that although little impact is expected 

on the part of the Bureau of Land 

Management, additional review is 

needed to ensure that the economic 

analysis accurately reflects increased 

administrative costs associated with 

section 7 consultation for other Federal 

agencies. 

Response: The final economic 

analysis report now includes an 

overview in section 1.3.2 of the 

estimated future annual administrative 

costs associated with section 7 

consultations for green sturgeon. Based 

on the consultation history for 

completed consultations that included 

green sturgeon to date (2006–2009), the 

economic analysis forecasts an average 

future annual rate of section 7 

consultation for green sturgeon of 12 

formal consultations, 67 informal 

consultations, and eight technical 

assistance efforts. The additional, 

incremental administrative effort 

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associated with these consultations is 

estimated to be approximately $251,000 

per year, including efforts by the 

Service, Action agencies, and third 

parties. 

Comment 32: Several commenters 

stated that the economic analysis failed 

to consider community level impacts. 

Response: We acknowledge that 

modifications to economic activities 

within one unit may affect economic 

activities in other units. The analysis 

also acknowledges that potential 

impacts could result in regional 

economic effects, for example in fishing 

communities, should the level of bottom 

trawl fishing catch be curtailed as a 

result of this designation. However, the 

regional economic effects of the critical 

habitat designation are unknown 

because many uncertainties exist. For 

example, potential reductions in fishing 

effort in critical habitat areas may or 

may not lead to reductions in profits, 

depending on the availability and 

quality of alternative sites. Therefore, 

the economic analysis report describes 

the potential regional economic effects 

and the uncertainties associated with 

their analysis, but does not quantify 

these effects. 

Comment 33: One commenter thought 

that the draft economic analysis failed 

to consider energy impacts resulting 

from potential changes in management 

at the Red Bluff Diversion Dam and 

other water diversions. Specifically, the 

commenter was concerned the farmers 

may need to seek out replacement water 

supplies that may require additional 

energy consumption. The commenter 

also was concerned that permanent crop 

loss in some areas could lead to losses 

of carbon dioxide conversion and result 

in widespread changes in energy 

consumption over a wide geographic 

area. 

Response: Appendix D of the final 

economic analysis report now presents 

an energy impacts analysis. This energy 

impacts analysis assesses whether the 

green sturgeon critical habitat 

designation would result in one of nine 

outcomes that may constitute ‘‘a 

significant adverse effect’’ as outlined 

by the Office of Management and 

Budget in their guidance on 

implementing Executive Order 13211. 

These include: (1) Reductions in crude 

oil supply in excess of 10,000 barrels 

per day; (2) reductions in fuel 

production in excess of 4,000 barrels per 

day; (3) reductions in coal production in 

excess of 5 million tons per year; (4) 

reductions in natural gas production in 

excess of 25 million Mcf per year; (5) 

reductions in electricity production in 

excess of 1 billion kilowatt-hours per 

year or in excess of 500 megawatts of 

installed capacity; (6) increases in 

energy use required by the regulatory 

action that exceed the thresholds above; 

(7) increases in the cost of energy 

production in excess of one percent; (8) 

increase in the cost of energy 

distribution in excess of one percent; or 

(9) other similarly adverse outcomes. Of 

these, the most relevant criteria to green 

sturgeon critical habitat are potential 

changes in natural gas and electricity 

production, as well as changes in the 

cost of energy production. Possible 

energy impacts may occur as the result 

of requested project modifications to 

hydropower dams, alternative energy 

hydrokinetic projects, and LNG 

facilities. The potential impacts of 

permanent crop loss on carbon dioxide 

levels in the atmosphere and the 

potential changes in climate and energy 

consumption in affected regions are 

unclear at this time due to many 

uncertainties. For example, it is 

uncertain what the effects of crop loss 

are on atmospheric carbon dioxide 

levels and subsequently on climate and 

on energy consumption by consumers. 

Further complicating matters is the 

uncertainty regarding how these 

relationships may be affected by other 

impacts on atmospheric carbon dioxide 

levels from activities related to or 

outside of this critical habitat 

designation. Therefore, these impacts 

cannot be analyzed at this time. 

Comment 34: One commenter asked 

how the lost revenue figures estimated 

in the small business analysis related to 

the estimated impacts calculated in the 

rest of the economic report. In addition, 

the commenter specifically requested 

that the small business analysis provide 

information about the potential revenue 

losses for farmers as a share of their total 

revenues. 

Response: The estimated lost 

revenues per small business included in 

the Final Regulatory Flexibility Analysis 

(Indecon 2009) are calculated by taking 

the mid-range scenario impacts 

presented in Chapters 3 through 5 of the 

final economic analysis report, and then 

dividing by the estimated number of 

small entities by activity by unit, as 

presented in Exhibit C–3. Average net 

operational dollar gain per farm 

(ignoring government payments) in the 

study area ($147,000, average for 

affected communities) are now included 

in the analysis for context. 

Comment 35: One commenter stated 

that impacts to the Yaquina River unit 

were underestimated because there are 

on-going dredging and in-water 

construction projects in that area. 

Response: The final economic 

analysis report considers dredging and 

in-water construction projects as 

potential threats to green sturgeon in the 

Yaquina River unit. However, the 404 

permit data from the U.S. Army Corps 

of Engineers used to estimate the level 

of dredging and in-water construction 

activity taking place in the Yaquina 

River Unit do not indicate current 

projects in that area. 

Comment 36: One commenter noted 

that the critical habitat designation 

could result in a significant, additional 

regulatory burden for the Port of 

Portland for in-water work activities 

(e.g., dredging, wharf construction, and 

routine dock repairs). 

Response: The economic analysis 

considers potential impacts to the Port’s 

in-water work activities. The Port of 

Portland appears to fall within Unit 24b, 

the Lower Columbia River. For this unit, 

the final economic analysis report 

forecasts total annualized impacts of 

between $106,000 and $413,000 for 

dredging projects and $151,000 to 

$1,230,000 for in-water construction in 

this unit. A discussion of potentially 

affected commercial shipping resources 

is included in Section 4 of the final 

economic analysis report, and includes 

the Port of Portland. 

Comment 37: Several commenters 

thought that the draft economic analysis 

failed to consider impacts to shoreline 

development. Specifically, the 

commenters argued that the proposed 

rule identified development and upland 

activities as economic activities that 

may adversely modify critical habitat 

and therefore may need to be altered. 

Therefore, the commenters believed that 

shoreline development should be 

addressed in the economic analysis. 

Response: Typically the development 

issue of most concern is the potential for 

critical habitat to inhibit the 

development potential of affected land 

parcels, thereby constraining (or 

reducing) the land available for future 

development. In areas that are highly 

developed, or where developable land is 

scarce (for non-critical habitat related 

reasons), the reduction in available land 

due to critical habitat can impose 

significant economic impacts. However, 

the designation of critical habitat for the 

green sturgeon is not expected to result 

in these types of direct impacts on 

residential development for multiple 

reasons. 

First, unlike terrestrial species, habitat 

for the green sturgeon is not itself part 

of the supply of developable land. For 

this reason, protection of the aquatic 

habitat need not take the form of 

supplanting development if the impacts 

of the development can be mitigated. 

Given the minimal consultation history 

for green sturgeon, a review of the 

information available for west coast 

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salmon and steelhead can provide 

further insight on this issue. For salmon 

and steelhead, NOAA fisheries 

personnel indicated that consultations 

regarding development projects are rare. 

Review of the salmon consultation 

history further supports this assessment, 

but more importantly, development 

consultations only addressed specific 

development activities with a Federal 

nexus, such as stormwater outfall 

structures (i.e., consultations did not 

address the entire residential project, 

nor were any mitigation or land 

offsetting required). Based on this 

information, residential development 

for salmon and steelhead were not 

expected to have direct impact on the 

supply of land or housing for residential 

development. However, potential 

impacts on National Pollutant Discharge 

Elimination System (NPDES) permitted 

facilities were included. 

Following this same approach, the 

final economic analysis report similarly 

does not anticipate any direct impacts to 

residential development in the form of 

reduced developable land. Rather, 

impacts to development activities are 

limited to the additional costs that 

would result from NPDES-related 

activities where a Federal nexus exists. 

The estimated number of NPDESpermitted facilities and the costs 

associated with these facilities as a 

result of the rulemaking are provided in 

Section 2.3 of the final economic 

analysis report. Potential threats from 

industrial or municipal runoff do not 

have a clear Federal connection; 

therefore, they are assumed to be dealt 

with primarily outside of the section 7 

consultation realm. 

Comment 38: Several commenters 

stated that the economic analysis did 

not consider impacts to specific projects 

involving dams and water diversions. 

One commenter stated that the draft 

economic analysis failed to discuss 

implications of the designation on the 

operations of the State Water Project 

and Central Valley Project. Another 

commenter inquired as to why specific 

discussion of Red Bluff Diversion Dam 

was not included in the draft economic 

analysis, and provided information on 

costs of constructing the Red Bluff 

Pumping Plant. In particular, the 

commenter noted that RBDD has 

undertaken a $165 million screened 

pumping plant as part of a Fish passage 

Improvement Project in the hope of 

minimizing impacts resulting from 

critical habitat designation. Another 

commenter provided information on 

potential costs of fish passage and dam 

removal at Daguerre Point Dam. 

Response: Because of the large 

geographic area covered by proposed 

green sturgeon critical habitat and the 

large number of dams and water 

diversions located within the study 

area, Section 2.5 of the final economic 

analysis report broadly assumes that all 

dams do not currently have, but will 

require fish passage, and that all water 

diversions in affected watersheds do not 

currently have, but will require fish 

screens. For projects that already have 

fish passage facilities or fish screens, the 

analysis may overstate potential 

impacts. Because the analysis relies on 

average ranges of costs of these 

requirements, this approach may 

understate potential impacts for some 

individual projects. As a result, where 

public commenters provided specific 

cost estimates associated with potential 

fish passage issues in green sturgeon 

critical habitat areas, these have been 

incorporated into the final economic 

analysis report. Due to the regional 

importance the State Water Project and 

Central Valley Project, the final 

economic analysis report incorporates a 

more detailed discussion of these 

projects than was included in the draft 

economic analysis (also see response to 

Comment 24). Particularly relevant to 

the green sturgeon critical habitat area 

are the Red Bluff Diversion Dam and 

Daguerre Point Dam, which are now 

discussed in more detail. 

Comment 39: One commenter stated 

that costs on the Upper and Lower 

Sacramento River units appear to be 

inordinately low. Specifically, the 

commenter noted that incremental 

impacts from possible special 

management measures and protections 

involving releases from dams or limiting 

diversions have potential to greatly 

magnify the economic impacts of the 

proposed rule and were not accurately 

captured in the economic analysis or 

proposed rule. The commenter also 

stated that agricultural operations are 

greatly affected by the operations of the 

Red Bluff Diversion Dam, which may 

not have been taken into account in the 

analysis. 

Response: The amount of water 

within particular areas that may be 

diverted from activities such as 

irrigation, flood control, municipal 

water supply, and hydropower, for the 

purposes of green sturgeon is uncertain. 

As a result, a comprehensive 

prospective analysis of the impacts of 

potential water diversion from these 

activities would be highly speculative. 

In addition, the interrelated nature of 

dam and diversion projects, and 

hydrology, across river systems makes it 

impossible to attribute flow-related 

impacts from potential green sturgeon 

conservation measures to specific units. 

We acknowledge this limitation in the 

economic analysis. The final economic 

analysis, however, includes an 

expanded discussion of the potential 

impacts of changes in flow regimes on 

hydropower production and prices and 

water diversions on irrigation based on 

historical examples. 

Comment 40: One commenter stated 

that the number of affected water 

diversions on the Upper Sacramento 

River may be underestimated because 

the designation may result in impacts to 

every single farm turnout in each of 17 

water agencies. 

Response: The final economic 

analysis report applies a watershedbased approach to determine the dams 

and water diversions potentially 

affected by this rule in riverine and 

estuarine areas. That is, all water 

diversions that fall within watersheds 

that contain proposed critical habitat for 

green sturgeon are assumed to require 

fish screens. The analysis does not 

expect that diversions outside of these 

watersheds will require fish screens on 

behalf of green sturgeon. In California, 

the final economic analysis report uses 

available GIS data from CalFish (A 

California Cooperative Anadromous 

Fish and Habitat Data Program; http:// 

www.calfish.org) to estimate an 

aggregate number of potentially affected 

dams and water diversions by unit (see 

Exhibits 2–15 and 2–16). To the extent 

that the GIS data used does not reflect 

the locations of all water diversions, 

impacts could be understated for 

particular diversions. 

Comment 41: One commenter noted 

that a recent ESA section 7 consultation 

for salmonids expanded pesticide buffer 

zones beyond the buffers used in the 

economic analysis. Specifically, the 

consultation widens the pesticide buffer 

to 1,000 feet for aerial applications and 

500 feet for ground applications. The 

commenter noted that in the draft 

economic analysis, the buffer zone on 

which agricultural impacts were based 

was 300 feet for aerial application and 

60 feet for ground application. The 

commenter stated that, consequently, 

the estimated impacts of green sturgeon 

critical habitat on agriculture were 

likely underestimated in the draft 

economic analysis. The commenter 

requested NMFS to clarify that no buffer 

is or will be required for green sturgeon 

regarding agricultural impacts, or 

alternatively, to revise the economic 

analysis consistent with the recent 

biological opinion. 

Response: Section 2.4.3 of the final 

economic analysis report discusses the 

history of the Washington Toxics 

litigation (Washington Toxics Coalition 

et al. v. EPA, No. 04–35138), and the 

two recent consultations on salmon and 

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steelhead species with regard to specific 

pesticides and their use. Listed salmon 

and steelhead species are found in all 

units where agricultural pesticide 

application is a threat to green sturgeon 

habitat. There is evidence that 

triphenyltin, a common agricultural 

fungicide, has caused skeletal and/or 

morphological deformities in Chinese 

sturgeon (Hu et al. 2009). Also, 

laboratory studies conducted by 

researchers at UC Davis have shown that 

certain toxins cause deformities in 

white sturgeon and green sturgeon 

(Kruse and Scarnecchia 2002; Feist et al. 

2005). At this time we do not have 

information on the effects of the use of 

agricultural chemicals on green sturgeon 

in the wild. However, given the similar 

responses of sturgeon (multiple species) 

to contaminants as compared to rainbow 

trout (representing salmonids), the 

application of buffer zones to protect 

salmonids from the application of 

pesticides and herbicides would be 

appropriate. Therefore, wherever and 

whenever protective buffer zones are 

applied for salmonid protection through 

the section 7 consultation process, green 

sturgeon would also benefit from the 

buffer zone guidelines. 

The final economic analysis report 

assumes that the court-ordered 

injunction restricting pesticide use 

represents the dominant outcome of 

section 7 consultations for this activity, 

and that although the injunction is 

specifically for listed salmonid species, 

green sturgeon requirements could 

result in spray buffer increases of 20 

percent, either through wider buffers or 

additional river segments requiring 

buffers. 

The final economic analysis report 

also assumes that the agricultural net 

revenue generated by land within 

specified distances in critical habitat 

areas will be completely lost. That is, 

the analysis assumes that no changes in 

behavior are undertaken to mitigate the 

impact of pesticide restrictions. For 

example, this analysis assumes that no 

adjustments in cropping or pesticide 

practices are possible that would allow 

continued crop production without 

these pesticides. This assumption may 

lead to overestimated impacts of 

restricting pesticide use. 

It should be noted that buffer 

distances have not yet been determined 

for many pesticides, and it may be that 

the salmon and steelhead injunction 

and subsequent consultation 

requirements will prove to be 

adequately protective of green sturgeon. 

As such, green sturgeon critical habitat 

would not be expected to add costs to 

those already expected to occur without 

the current rulemaking. Since the 

particular sensitivities of green sturgeon 

are not well understood, this analysis 

assumes that green sturgeon may require 

additional protections over and above 

those required for salmon species. To 

the extent that no additional 

requirements for green sturgeon are 

imposed over and above those put in 

place for salmonids, impacts of green 

sturgeon critical habitat could be 

overstated. To the extent that much 

wider buffers are identified than were 

included in the injunction, overall 

impacts to agriculture in green sturgeon 

critical habitat areas could be 

underestimated. 

Comment 42: One commenter 

requested that the impacts to fisheries 

using other bottom tending gear be 

considered. The commenter stated that 

the economic analysis underestimated 

the economic impact of the proposed 

rule because it did not consider 

potential impacts on the shrimp fishery, 

gear types other than bottom trawl, or 

community level impacts. 

Response: NMFS specifically 

identified the use of bottom trawl gear 

as a potential threat to green sturgeon 

and its habitat (see 73 FR 52093–52094), 

and other gears have not been identified 

as a threat. The best available 

information indicates that other bottom 

tending gear (e.g., pot traps, long line) 

does not adversely affect benthic 

habitats, whereas the use of bottom 

trawl gear has a much more apparent 

effect on benthic habitats. Therefore, the 

economic analysis does not quantify 

economic impacts to fishing activities 

with other gear types. This analysis 

assumes that State-managed fisheries, 

such as the commercial crab fishery and 

pink shrimp fishery will not be affected 

by this rule. Information provided by 

the commenter, including the estimate 

that between two and 11 percent of 

shrimp tows may occur within the 

critical habitat area, have been included 

in the final economic analysis report. 

Comment 43: One commenter noted 

that with regard to bottom trawl fishing 

impacts, the draft economic analysis 

could have produced more precise and 

geographically specific estimates for 

Washington Coast units. In particular, 

the commenter stated that catch 

attributed to Unit 37 should be 

attributed to Unit 36. Another 

commenter stated that the estimates of 

bottom trawl revenues seemed low for 

the area from Humboldt Bay to Cape 

Flattery, and provides alternative 

estimates based on log book data. In 

addition, the commenter noted that the 

broad scope of the economic analysis 

obscures the fact that impacts associated 

with critical habitat likely would fall 

disproportionately on particular vessels 

and coastal communities rather than 

evenly through a unit. 

Response: The draft economic 

analysis used a series of assumptions to 

estimate the level of bottom trawl 

fishing effort occurring within proposed 

boundaries. The final economic analysis 

report revises this methodology, 

utilizing data provided by the 

Washington Department of Fish and 

Wildlife. As part of this effort, bottom 

trawl fishing estimates have been 

reallocated from Unit 37 to Unit 36, and 

landings data have been better tailored 

to appropriate units in California, 

Oregon and Washington. In addition, 

the economic analysis now discusses 

the potential for uneven distribution of 

green sturgeon impacts across fishing 

vessels and communities. 

Comment 44: One comment provided 

additional information on the location 

of proposed tidal- and wave-energy 

projects. The comment specifically 

described five wave energy projects in 

Oregon waters. 

Response: All of the projects 

described by the commenter are 

included in the final economic analysis 

report, as presented in Exhibit 3–3. 

Comment 45: One commenter noted 

that the economic analysis failed to 

consider proposed wave and wind 

energy projects in Grays Harbor and 

other areas in Washington. 

Response: The final economic 

analysis report does consider and 

project potential costs associated with 

wave and wind energy projects in the 

State of Washington. Specifically, 

Exhibit 3–3 of the final economic 

analysis report identifies one project 

(Grays Harbor Ocean Energy and Coastal 

Protection) in Grays Harbor and nine 

additional projects in Willapa Bay and 

Puget Sound. 

Comment 46: One comment identified 

three LNG terminals approved or 

proposed in Oregon: the Jordan Cove 

LNG project (proposed) located in Coos 

Bay and the Bradford Landing LNG 

project (approved) and Oregon LNG 

project (proposed) located in the lower 

Columbia River estuary. The commenter 

stated that proposed dredging activities 

associated with these projects will 

impact green sturgeon feeding habitat. 

The commenter also noted other 

potential impacts associated with these 

projects from effects on water quality 

and quantity, an influx of invasive 

species, or entrainment of fish at water 

intake structures. 

Response: The three LNG terminals 

identified by the commenter were 

already included and analyzed in the 

economic analysis for Coos Bay and the 

lower Columbia River estuary. The 

information regarding the potential 

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impacts of LNG projects on green 

sturgeon critical habitat are 

incorporated into this final rule and 

supporting documents. 

Comment 47: According to one 

commenter, the draft economic analysis 

mischaracterized impacts to aquaculture 

operations in Willapa Bay and Grays 

Harbor. Specifically, the commenter 

noted that operations in these areas 

have not adopted the conservation 

measures outlined in the draft economic 

analysis, and that the adoption of these 

measures is economically infeasible. 

The commenter also noted that the draft 

economic analysis failed to consider the 

economic contribution of these 

operations to the regional economy. 

Response: Section 4.2.4 of the final 

economic analysis report incorporates 

the comments provided, including a 

more detailed discussion of aquaculture 

practices in Washington and the 

economic significance of the 

aquaculture industry to Grays Harbor 

and Pacific counties. In addition, the 

final economic analysis report discusses 

the high level of uncertainty regarding 

potential conservation measures for 

aquaculture. The final economic 

analysis report now includes a 

discussion of the outcome of a recent 

consultation on aquaculture in Willapa 

Bay and Grays Harbor, which concluded 

that no reasonable and prudent 

measures were necessary for either 

salmonid or green sturgeon under the 

ESA. As such, it may be that no impacts 

to aquaculture are likely in these units 

related to green sturgeon critical habitat. 

ESA Section 4(b)(2) Analysis— 

Exclusion of Areas 

Comment 48: Several commenters 

requested an explanation of how the 

monetary thresholds used to determine 

the eligibility of an area for exclusion 

were derived. 

Response: The economic impact level 

at which the economic benefits of 

exclusion outweigh the conservation 

benefits of designation is a matter of 

discretion. The ESA provides NMFS 

with the discretion to consider making 

exclusions if the benefits of exclusion 

outweigh the benefits of designation, 

unless exclusion will result in 

extinction of the species. The ESA gives 

NMFS broad discretion in what weight 

to give benefits. The benefits of 

exclusion (economic impacts) are 

estimated in monetary values, whereas 

the benefits of designation (conservation 

value of the areas) are expressed in 

qualitative conservation values. Because 

we could not directly compare the 

benefits of exclusion and benefits of 

designation, we applied a set of decision 

rules based on selected dollar 

thresholds representing the levels at 

which the potential economic impact 

associated with a specific area may 

outweigh the conservation benefits of 

designating that area. These thresholds 

varied depending on the conservation 

value of the area, where areas with a 

higher conservation value rating had a 

higher threshold dollar value. To 

determine these threshold values, we 

examined the range in economic 

impacts across all areas within a 

conservation value rating category, 

determined where the breakpoint 

occurred between relatively low 

economic impacts and relatively high 

economic impacts, and selected a value 

within the range of that breakpoint 

where the economic impacts may 

outweigh the conservation benefits for 

that area. 

Our consideration of economic 

impacts under section 4(b)(2) of the ESA 

consisted of two parts. First, we applied 

the threshold dollar values to identify 

areas that may be eligible for exclusion 

based on economic impacts. We then 

presented the areas to the CHRT and 

asked the CHRT to further characterize 

the conservation benefit of designation 

for these areas by determining whether 

exclusion of the identified areas would 

significantly impede conservation of the 

Southern DPS. If the CHRT determined 

that exclusion of an area would 

significantly impede conservation of the 

Southern DPS, we used this information 

to analyze the conservation benefit of 

designation, leading to the final 

conservation value of the area being 

increased by one level. 

Comment 49: One commenter stated 

that the economic thresholds 

established for the ESA section 4(b)(2) 

process only trigger consideration or 

eligibility of an area for potential 

exclusion. The commenter requested 

that an upper threshold be established 

above which the economic impact 

becomes disproportionate to the relative 

conservation benefit of designation and 

exclusion is definite. The commenter 

focused on the lower Feather River, 

stating that the economic costs are well 

above the $100,000 threshold. 

Response: Section 4(b)(2) of the ESA 

requires that NMFS consider the 

economic impacts, impacts on national 

security, and other relevant impacts of 

designating any particular area as 

critical habitat. The ESA also provides 

NMFS with the discretion to exclude 

areas if the benefits of exclusion 

outweigh the benefits of designation, 

but does not require that exclusions be 

made. To weigh the economic benefits 

of exclusion against the benefits of 

designation, NMFS established 

monetary thresholds above which an 

area was potentially eligible for 

exclusion. These thresholds represent 

the level at which the economic impact 

may outweigh the relative conservation 

benefit of designation. NMFS did not 

define an upper threshold at which 

exclusion is required, however, because 

within a conservation value rating 

category there is variation, with some 

areas being of higher conservation value 

to the Southern DPS than others. In the 

case of the lower Feather River, the 

estimated economic impacts exceeded 

the dollar threshold value, signaling that 

the economic benefits of exclusion may 

outweigh the conservation benefits of 

exclusion for this area and that it may 

be eligible for exclusion. However, the 

CHRT determined that exclusion of the 

lower Feather River would significantly 

impede conservation of the Southern 

DPS, adding more weight to the 

conservation benefit of designation for 

this area, and leading to NMFS’ 

determination that the economic 

benefits of exclusion do not outweigh 

the conservation benefits of designation. 

Thus, the lower Feather River was 

proposed for designation. 

Comment 50: One commenter 

disagreed with the decision rule for 

areas with a High conservation value, 

that no economic impact could 

outweigh the benefit of designation for 

these specific areas (i.e., specific areas 

with a High conservation value are not 

eligible for exclusion). The commenter 

stated that this decision rule is arbitrary 

and unreasonable. 

Response: Section 4(b)(2) of the ESA 

provides NMFS the discretion to 

exclude any area from critical habitat if 

the benefits of exclusion (based on 

economic, national security, or other 

relevant impacts) outweigh the benefits 

of designation, unless exclusion of the 

area will result in extinction of the 

species. The ESA does not describe how 

this weighing process is to be 

conducted. Because data were not 

available to quantify or monetize the 

benefits of designation, we used the 

CHRT’s conservation value ratings to 

represent the relative benefits of 

designation for each specific area. Areas 

with a High conservation value rating 

were identified by the CHRT as areas 

with a relatively high likelihood of 

promoting the conservation of the 

Southern DPS compared to the other 

areas. Based on the purposes of the ESA, 

which include providing a program for 

the conservation of threatened and 

endangered species, and the policy of 

Congress that all Federal agencies shall 

seek to conserve threatened and 

endangered species, NMFS exercised its 

broad discretion to designate all of the 

areas with a High conservation value. 

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This decision rule was also applied in 

the ESA 4(b)(2) analysis to support the 

2005 critical habitat designations for 

listed West coast salmon and steelhead 

ESUs. 

Comment 51: Two commenters 

requested the exclusion of Federal 

navigation channels and dredged 

material placement sites within 

Humboldt Bay, San Francisco Bay, 

Suisun Bay, San Pablo Bay, the Delta, 

and the Sacramento River and 

tributaries. The commenters asserted 

that the benefits of navigation traffic 

outweigh the conservation benefits of 

designation because these areas are 

dredged annually, are often deeper than 

green sturgeon depth preferences for all 

life stages, lack the PCEs, and make up 

a small proportion of the total area 

proposed for designation in estuaries 

and freshwater rivers. 

Response: We appreciate the data 

provided by the commenter regarding 

dredging and disposal operations in the 

Central Valley, California, and in 

Humboldt Bay. We recognize that 

routine maintenance dredging and 

disposal operations are conducted to 

maintain the Federal navigation 

channels and that these activities have 

already altered the habitat within these 

channels and associated disposal sites. 

The CHRT considered the information 

provided, but determined that the areas 

requested for exclusion do contain PCEs 

that may require special management 

considerations or protection and 

provide valuable habitat for the 

Southern DPS. The Sacramento River 

supports all life stages and is the only 

confirmed spawning river for the 

Southern DPS. The Delta and the San 

Francisco, Suisun, and San Pablo bays 

support feeding, rearing, and migration 

by juvenile, subadult, and adult 

Southern DPS green sturgeon. Subadult 

and adult Southern DPS green sturgeon 

occupy Humboldt Bay for long periods 

of time, presumably for feeding during 

summer months. The best available data 

indicate that subadult and adult green 

sturgeon occur widely throughout these 

areas, based on detections of tagged 

green sturgeon through the estuaries and 

the Sacramento River. In addition, 

juvenile green sturgeon are believed to 

occur throughout the Delta and the San 

Francisco, Suisun, and San Pablo bays 

throughout all months of the year. The 

PCEs to support Southern DPS green 

sturgeon within these areas are affected 

by activities such as dredging and 

disposal (as described in the comments), 

dams and water diversions, in-water 

construction or alteration activities, and 

other activities as described in the final 

rule and supporting documents. 

It is important to note that designation 

of critical habitat within these areas 

does not preclude dredging and disposal 

operations, but requires that Federal 

activities, or those requiring a Federal 

permit or funding and that may affect 

critical habitat, be evaluated under 

section 7 of the ESA to ensure that they 

do not destroy or adversely modify the 

habitat. The protective measures that 

may be required to address effects of 

dredging and disposal activities on 

critical habitat will depend on the 

specifics of the activity (e.g., scale, 

location, time of year, etc.). NMFS will 

continue to work with the affected 

entities to determine the effects of the 

activities on critical habitat and to 

develop protective measures to address 

those effects. 

Comment 52: One commenter stated 

that Central San Francisco Bay and 

Suisun Bay do not meet the definition 

of critical habitat because these specific 

areas are not essential for conservation 

of the Southern DPS and do not require 

special management considerations or 

protection. The commenter focused on 

sand mining activities, stating that sand 

mining operations result in localized, 

temporary disturbances that do not pose 

a serious threat to the PCEs and will not 

adversely affect migration and foraging. 

Also, the commenter stated that sand 

mining is heavily regulated and occurs 

in limited specific designated lease 

areas, only a portion of which is 

actually mined. 

Response: The ESA defines critical 

habitat as specific areas within the 

geographical area occupied that contain 

physical or biological features essential 

to the conservation of the species and 

which may require special management 

considerations or protection. The CHRT 

considered the comments and verified 

that both Central San Francisco Bay and 

Suisun Bay meet the definition of 

critical habitat. Central San Francisco 

Bay and Suisun Bay were both rated as 

High conservation value areas that 

support feeding and migration for 

juvenile, subadult, and adult Southern 

DPS green sturgeon. Both areas contain 

at least one PCE that may require special 

management considerations or 

protection. We appreciate the 

information provided regarding the 

effects of sand mining on critical habitat 

and will consider such information in 

future consultations under section 7 of 

the ESA regarding sand mining 

operations. Final determinations will be 

made on a case-by-case basis during the 

section 7 consultation process. 

However, sand mining is only one of 

several activities identified that may 

affect the PCEs. Thus, even if sand 

mining does not adversely affect critical 

habitat, other activities occur within the 

areas that may affect the PCEs, 

including but not limited to: dredging 

and disposal of dredged material, inwater construction or alteration 

activities, and pollution. Finally, the 

fact that activities may already be 

regulated does not negate the need for 

special management considerations or 

protection. In determining whether a 

PCE may require special management 

considerations or protection, the CHRT 

focused on whether or not any activities 

may threaten the PCE. 

Comment 53: One commenter 

requested the exclusion of nearshore 

regions where industrial activities occur 

within the San Francisco Bay, because 

these areas are not essential to the 

conservation of green sturgeon. 

Response: The CHRT considered the 

comments but determined that the best 

available scientific data do not support 

the exclusion of these nearshore regions. 

San Francisco Bay supports feeding, 

rearing, and migration for juvenile, 

subadult, and adult Southern DPS green 

sturgeon. Green sturgeon occupy a 

diversity of depths throughout their 

different life stages, including shallow 

nearshore areas. Recent telemetry data 

and literature references indicate green 

sturgeon distribute widely throughout 

the bay and use extensive mudflats and 

sand flats for feeding. Based on the 

available data, it is reasonable to believe 

that green sturgeon use nearshore 

regions within San Francisco Bay. 

NMFS encourages research to better 

understand the use of these areas by 

different life stages of green sturgeon. 

Comment 54: A commenter suggested 

that the Port of Stockton be excluded 

because it consists of deep water and 

developed shoreline and does not have 

the sediment quality that green sturgeon 

require. 

Response: The CHRT considered this 

request to exclude the Port of Stockton 

from critical habitat, but ultimately 

decided that sufficient data to support 

exclusion are not available at this time. 

The best available data indicate that the 

Port of Stockton provides PCEs to 

support the rearing, feeding, and 

migration of juvenile, subadult, and 

adult Southern DPS green sturgeon. The 

PCEs may be affected by activities 

conducted within the area, but still 

continue to support the presence and 

use of this area by Southern DPS green 

sturgeon. Adult and subadult Southern 

DPS green sturgeon have been observed 

in the eastern Delta, including in the 

area adjacent to the Port of Stockton. 

Tagged green sturgeon have been 

detected at all three hydroacoustic 

monitors in the Deep Water Channel 

adjacent to the Port of Stockton. 

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Hydroacoustic monitors have not yet 

been installed in the Port of Stockton, 

however, and specific data on use of 

this area are lacking. In addition, 

juvenile green sturgeon rearing and 

feeding habitats are believed to occur 

throughout the Delta, but data are 

lacking on juvenile green sturgeon 

distribution in the Delta. At this time, 

the CHRT believes that juvenile green 

sturgeon are distributed widely 

throughout the Delta, and are, therefore, 

presumed to be in the Port of Stockton 

area. Studies focused on juvenile green 

sturgeon distribution in the Delta and 

San Francisco, San Pablo, and Suisun 

bays would help to address these data 

gaps and inform future revisions to the 

critical habitat designation. 

Comment 55: One commenter 

requested that the area of the 

Sacramento River immediately 

upstream and downstream of RBDD be 

excluded from the critical habitat 

designation, because data for this area 

are not sufficient to support designation 

of critical habitat. The commenter was 

unclear whether RBDD is included as an 

existing structure as part of critical 

habitat or not. If it is, the commenter 

asserted that operation of the dam has 

no specific relationship to the numbers, 

range, or viability of green sturgeon. The 

commenter also stated that no analysis 

was done on the impacts that will result 

from restrictions on water diversions at 

RBDD. 

Response: The CHRT identified the 

lower and upper Sacramento River, 

including the area immediately 

upstream and downstream of RBDD, as 

areas of High conservation value, 

recognizing that the areas support all 

life stages of Southern DPS green 

sturgeon and provide PCEs (including 

food resources, depth, migratory 

corridor, substrates, water quality, and 

water flow) to support migration, 

feeding, spawning, and rearing. The 

presence and operation of the RBDD has 

several effects on the Southern DPS. For 

example, the RBDD can hinder or block 

upstream and downstream migration 

when the gates are down, or cause 

injury or mortality if the gate opening is 

too small. In 2007, 10 green sturgeon 

were found injured and dead at or just 

downstream of RBDD, purportedly 

injured while trying to move under the 

gates. In addition, the RBDD may alter 

water quality and spawning habitats by 

altering the flow regime. Spawning by 

adult Southern DPS green sturgeon has 

been confirmed to occur both upstream 

and downstream of the RBDD, although 

conditions directly below the RBDD 

may not be favorable for spawning 

success due to high sedimentation 

levels (Poytress et al. 2009). Thus, the 

area immediately upstream and 

downstream of RBDD is of high 

conservation value to the Southern DPS 

and would benefit from protections 

under a critical habitat designation. The 

Sacramento River would be designated 

as critical habitat, but the RBDD itself 

would not be designated as critical 

habitat. The effects of operations at 

RBDD on critical habitat would be 

subject to consultation under section 7 

of the ESA to address effects on critical 

habitat in the Sacramento River. As 

described in the response to comments 

38 and 39, the potential impacts on 

RBDD are discussed in more detail in 

the final economic analysis report. 

Comment 56: One commenter agreed 

with the CHRT that exclusion of the 

lower Feather River would significantly 

impede conservation of the Southern 

DPS, but two commenters disagreed and 

stated that the lower Feather River 

should be excluded from the 

designation because: (1) The estimated 

economic impacts substantially 

exceeded the $100,000 threshold for 

exclusion; (2) the area is not a 

confirmed spawning river and habitat 

improvements needed to make this area 

of High conservation value are not 

financially and logistically feasible; (3) 

designating the lower Feather River as a 

second spawning river for the Southern 

DPS is not warranted because the 

population is already protected from 

catastrophic risk by a naturally 

occurring second population in marine 

waters; and (4) the jeopardy provision 

under section 7 of the ESA provides 

adequate protection for the species. One 

commenter was unclear whether the 

biological analysis was based on current 

conditions or future conditions in the 

area. One commenter stated that there is 

little evidence to suggest green sturgeon 

occupy the lower Feather River above 

RKM 95, and another commenter stated 

that Fish Barrier Dam is the uppermost 

barrier, not Oroville Dam. 

Response: The CHRT’s evaluation of 

the lower Feather River was based on 

current conditions within the area as 

well as the potential future conditions if 

efforts to improve habitat conditions 

and passage are conducted. The best 

available data from surveys and 

anecdotal observations of green sturgeon 

indicate that green sturgeon consistently 

occupy and use the lower Feather River. 

Although spawning has not yet been 

confirmed, the CHRT believes the lower 

Feather River is the area most likely to 

serve as a second spawning river for the 

Southern DPS. The CHRT recognized 

that only part of the population returns 

to the Sacramento River to spawn each 

year, providing some protection should 

a catastrophic event occur. However, a 

second spawning river would provide 

not only additional protection from a 

catastrophic event but also additional 

spawning habitat should spawning 

habitats be inaccessible or subject to 

disturbance in the Sacramento River. 

Current and ongoing habitat monitoring 

and improvement activities are being 

conducted within the lower Feather 

River that may benefit the Southern 

DPS. NMFS encourages continued 

efforts to restore habitat and improve 

fish passage within the lower Feather 

River. The CHRT considered all of this 

information in making their 

determination that exclusion of this area 

would significantly impede 

conservation of the Southern DPS. This 

led NMFS to determine that, although 

the economic impacts for this area 

exceeded the $100,000 threshold, the 

economic benefit of exclusion did not 

outweigh the conservation benefit of 

designation. Thus, the lower Feather 

River was proposed for designation. 

The CHRT considered the public 

comments received but, based on the 

information as described above, 

maintained its determination that 

exclusion of the Feather River would 

significantly impede conservation of the 

Southern DPS. NMFS also maintains its 

determination that the benefits of 

exclusion do not outweigh the benefits 

of designation for this area. However, 

the CHRT agreed that the upstream 

boundary for the lower Feather River 

should be changed from the Oroville 

Dam to the Fish Barrier Dam (RKM 109), 

because the Fish Barrier Dam represents 

the current upstream extent of green 

sturgeon passage. Green sturgeon have 

been observed at the Thermalito Outlet 

and in riffles between Thermalito Outlet 

and the Fish Barrier Dam (pers. comm. 

with Alicia Seesholtz, California 

Department of Water Resources 

(CDWR), March 10, 2009), confirming 

that green sturgeon do occur upstream 

of RKM 95, up to the Fish Barrier Dam 

(RKM 109). Thus, the specific area in 

the Lower Feather River was redefined 

as the area from the river mouth at the 

confluence with the Sacramento River, 

upstream to the Fish Barrier Dam. 

Comment 57: Two commenters 

suggested that the lower Yuba River 

downstream of Daguerre Dam should 

not be designated as critical habitat, 

because data do not support that the 

lower Yuba River was historically a 

spawning river for green sturgeon as no 

green sturgeon juveniles, larvae, or eggs 

have been observed in the lower Yuba 

River to date and because adult and 

subadult green sturgeon occur 

infrequently in this area. The 

commenters cited numerous surveys 

that have been conducted since the 

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1970s with only one sighting of an adult 

green sturgeon in 2006. In addition, the 

commenters noted that flow regimes for 

green sturgeon may differ from those 

established under the Yuba Accord to 

protect salmonids and their habitat, 

which may result in conflicts in 

management and potentially high 

economic costs. 

Response: We recognize that 

spawning has not been confirmed in the 

lower Yuba River downstream of 

Daguerre Dam and have revised the final 

rule accordingly. However, the CHRT 

determined that the lower Yuba River 

likely provides spawning habitat for 

Southern DPS green sturgeon. Although 

only one confirmed green sturgeon has 

been observed in the lower Yuba River, 

this does not indicate green sturgeon do 

not use the area more frequently. 

Surveys have been conducted in this 

area, but have not targeted green 

sturgeon. Observations of green sturgeon 

are difficult even during surveys 

targeting green sturgeon. For example, 

green sturgeon surveys in the lower 

Feather River conducted in 2000—2004 

did not observe any green sturgeon, 

despite anecdotal observations of green 

sturgeon during the time surveys were 

conducted (CDWR 2005). More 

information is needed to determine the 

optimal flow regime for green sturgeon 

in the lower Yuba River and how this 

compares with flows established for 

salmonids. Consultation under section 7 

of the ESA would take into account the 

needs of both the Southern DPS and the 

listed salmonid species. 

Comment 58: Two commenters 

suggested that in the Columbia River, 

Grays Harbor, and Willapa Bay, critical 

habitat should be confined to certain 

portions of the estuaries because 

sturgeon are not evenly dispersed 

throughout these waters. The 

commenters requested that shellfish 

aquaculture areas be excluded from 

critical habitat, because green sturgeon 

do not use shellfish beds but instead 

occupy areas of high burrowing shrimp 

density outside of shellfish farming 

areas. In addition, the commenters 

asserted that carbaryl does not affect 

burrowing shrimp populations outside 

of treated areas and thus does not 

adversely affect green sturgeon prey 

resources. The commenters cited a 

recent study (Dumbauld et al. 2008) that 

suggests burrowing shrimp populations 

are abundant throughout the estuaries 

and are not likely to be a limiting factor 

for green sturgeon. The commenters also 

noted that carbaryl will be phased out 

by 2012 and replaced by more benign 

chemical, biological, or mechanical 

methods of eradication. 

Response: The CHRT considered the 

comments but determined that the best 

available data do not support confining 

the critical habitat designation to certain 

portions of the lower Columbia River 

estuary, Grays Harbor, and Willapa Bay. 

Telemetry data show that tagged green 

sturgeon disperse widely throughout 

these estuaries, most likely for foraging. 

In addition, anecdotal accounts have 

noted observations of sturgeon in 

intertidal aquaculture beds in the past, 

likely when populations of sturgeon 

were more abundant in these estuaries, 

and have suggested that predation by 

sturgeon and other predators may help 

control burrowing shrimp populations 

in these beds (Dumbauld et al. 2008). 

Designation of critical habitat would 

require shellfish aquaculture activities 

that are funded, permitted, or carried 

out by Federal agencies to comply with 

section 7 of the ESA. During the 

consultation, factors such as the 

location and size of the project and the 

entity’s initial evaluation of the effects 

of the project on critical habitat would 

be considered in determining whether 

the project adversely affects critical 

habitat. Information such as that 

provided by the commenters regarding 

the effects of carbaryl on green sturgeon 

prey resources would also be taken into 

account in the consultation. 

Comment 59: One commenter 

suggested that the inner half of the Strait 

of Juan de Fuca and the area around the 

San Juan Islands should be excluded 

from the designation because these are 

areas of low use by green sturgeon. 

Response: The CHRT considered the 

comment but determined that the best 

available scientific data support 

inclusion of the Strait of Juan de Fuca. 

Tagged Southern DPS green sturgeon are 

known to use the inner half of the Strait 

of Juan de Fuca, because they have been 

detected at receivers in the Strait of Juan 

de Fuca as well as in Puget Sound and 

Rosario Strait. The low numbers of 

detections may be due to relatively few 

tagged green sturgeon and relatively few 

receiver arrays located in the area. In 

addition, the receiver arrays were 

installed and operated to monitor other 

species and may not be programmed or 

positioned for optimal monitoring of 

green sturgeon. 

Comment 60: One commenter stated 

that critical habitat should not be 

designated in coastal marine waters 

because there is insufficient data to 

show that bottom trawl fisheries affect 

green sturgeon migration or prey 

resources within coastal marine waters. 

The commenter noted that bottom 

trawling is not allowed in State waters 

off California and Washington and 

trawling off Oregon occurs deeper than 

40 fm, leaving ample area for green 

sturgeon feeding and movement. The 

commenter suggested that coastal 

marine waters off southeast Alaska 

should be considered for designation 

because, although bottom trawling does 

not occur there, other bottom tending 

gear is used. The commenter stated that 

if critical habitat is to be designated in 

coastal marine waters, then other 

bottom tending gear should be 

considered and coastal marine waters 

off southeast Alaska should be 

designated. 

Response: The CHRT considered all 

coastal marine waters within 110 m 

depth from the California-Mexico border 

to the Bering Sea, Alaska. The coastal 

marine areas off southeast Alaska were 

excluded based on economic impacts, 

not because bottom trawling fisheries do 

not occur in the area. Bottom trawling 

was only one of several activities 

identified that may affect the PCEs 

within the coastal marine areas. Other 

activities include hydrokinetic projects, 

disposal of dredged material, and 

pollution from activities such as 

commercial shipping. Thus, even if 

bottom trawl fisheries did not adversely 

affect the PCEs, there are other activities 

affecting the PCEs within the coastal 

marine areas. The CHRT focused on 

bottom trawl gear because bycatch of 

green sturgeon occurs in bottom trawl 

fisheries and this gear was identified by 

NMFS biologists as being the most 

likely to affect bottom habitat used by 

green sturgeon, compared with other 

bottom tending gear. However, all 

activities that may affect critical habitat 

would be subject to section 7 of the ESA 

even if not specifically mentioned in the 

final rule. Whether bottom trawl or 

other gear types adversely affect critical 

habitat would be determined through 

the ESA section 7 consultation process 

and would depend on factors such as 

the location, scale, and frequency of 

potential disturbances. 

Comment 61: One commenter agreed 

that exclusion of Coos Bay from the 

designation would significantly impede 

conservation of the Southern DPS, 

whereas one commenter disagreed, 

stating that the inclusion of Coos Bay is 

not supported by the available data that 

indicate low numbers of green sturgeon 

and no evidence of use by Southern DPS 

fish. 

Response: Coos Bay was identified as 

an area that may be eligible for 

exclusion based on economic impacts, 

but was proposed for designation and is 

included in this final designation based 

on a determination that exclusion of this 

area would significantly impede 

conservation of the Southern DPS and, 

therefore, the economic benefits of 

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exclusion do not outweigh the 

conservation benefits of designation. 

The CHRT considered the comments 

and maintained its determination that 

exclusion of Coos Bay would 

significantly impede conservation of the 

Southern DPS based on the best 

available information showing that Coos 

Bay is one of two large estuaries on the 

Oregon coast where relatively large 

numbers of green sturgeon are 

consistently observed (ODFW 2009a, b) 

and Southern DPS are confirmed to 

occur (Lindley and Moser, unpublished 

data, cited in the Memo to the Record 

from C. Grimes, October 23, 2006; pers. 

comm. with Dan Erickson, ODFW, 

September 3, 2008). In addition, there is 

uncertainty regarding the economic 

impact estimates for Coos Bay. As 

described in the ESA 4(b)(2) report, a 

large proportion of the estimated 

economic costs (ranging from $73,000 to 

$16 million) for Coos Bay was 

associated with impacts to a proposed 

LNG project in the bay. The high 

economic cost estimate of $16 million 

includes the estimated costs to re-site an 

LNG project due to this rule. The upper 

bound of the economic cost range is 

unlikely because: (1) It is highly 

uncertain whether the LNG project will 

be constructed; and (2) the high 

economic cost was associated with 

having to relocate the project, which is 

unlikely to occur. The low economic 

cost estimate of $73,000 was based on 

the assumption that additional measures 

would not be required for LNG projects 

for the protection of green sturgeon 

critical habitat, or that any required 

measures would result in minimal costs 

(i.e., the economic impact for LNG 

projects is $0). We recognize, however, 

that an estimated economic impact of $0 

for potential economic impacts to LNG 

projects is highly unlikely. Therefore, 

the actual economic impact on LNG 

projects is likely to be within this range 

(greater than $0, but much lower than 

$16 million), but we currently lack 

sufficient information to estimate this 

cost. Based on the information regarding 

the conservation value of Coos Bay to 

the Southern DPS and uncertainty 

regarding the estimated economic 

impacts, NMFS determined that the 

economic benefits of exclusion do not 

outweigh the conservation benefits of 

designation and Coos Bay is included in 

the final critical habitat designation. 

Comment 62: One commenter 

requested an explanation for the 

exclusion of some waterways in the 

Sacramento-San Joaquin Delta, CA, from 

the proposed designation. 

Response: The specific area 

designated as critical habitat in the 

Delta includes all tidally influenced 

areas up to the mean higher high water 

line within the legal boundaries of the 

Delta as defined in California Water 

Code Section 12220, except for two 

modifications. The CHRT defined the 

boundary between the Delta and Suisun 

Bay by a line extending from the mouth 

of Spoonbill Creek across the channel to 

the city of Pittsburg, CA, resulting in 

Chipps Island being fully contained 

within the Suisun Bay specific area. In 

addition, the following slough areas are 

excluded from the Delta specific area: 

Five Mile Slough, Seven Mile Slough, 

Snodgrass Slough (at Lambert Road), 

Tom Paine Slough, and Trapper Slough. 

These areas were identified and 

excluded by the CHRT as areas that all 

have manmade barriers isolating them 

from the rest of the Delta and where 

green sturgeon do not occur. Structures 

such as gated culverts, tidal gates, and 

siphons control the flow of water into 

the channels of these sloughs, which 

then primarily serve as ‘‘reservoirs’’ for 

irrigation water delivered to 

surrounding farm fields. 

Comment 63: One commenter agreed 

with NMFS’ proposal to exclude the 

waters off Alaska from the critical 

habitat designation, stating that 

Southern DPS green sturgeon rarely 

occur off the coast of southeast Alaska 

and that green sturgeon observed off 

Alaska most likely belong to the 

Northern DPS. 

Response: There have been few 

observations of green sturgeon, 

particularly Southern DPS green 

sturgeon, in coastal marine waters off 

Alaska compared to coastal marine and 

estuarine waters in Washington, Oregon, 

and California. NMFS would like to 

clarify, however, that green sturgeon 

observed off Alaska could belong to 

either the Northern DPS or the Southern 

DPS. Since 1990, a total of 8 green 

sturgeon have been observed in the 

groundfish bottom trawl fishery 

conducted around the Aleutian Islands 

and in the Bering Sea (pers. comm. with 

Vanessa Tuttle, NMFS, November 20, 

2006; pers. comm. with Jennifer 

Ferdinand, NMFS, November 24, 2006). 

Tissue samples were collected from 2 

individuals captured in 2006, but 

genetic analyses to determine to which 

DPS the individuals belong were 

inconclusive (pers. comm. with Josh 

Israel, UC Davis). Two tagged Southern 

DPS green sturgeon were detected at the 

monitor in Graves Harbor, AK (currently 

the only monitor located on the Alaska 

coast; Lindley et al. 2008; pers. comm. 

with Steve Lindley, NMFS, September 

12, 2007), showing that Southern DPS 

green sturgeon do migrate as far north 

as southeast Alaska. Given that there are 

no physical or environmental barriers 

present, it is possible that these fish 

migrate further north to the Aleutian 

Islands and the Bering Sea. Expansion 

of the monitoring array and collection of 

more tissue samples for genetic analyses 

are needed to better characterize the 

presence and distribution of Northern 

DPS and Southern DPS green sturgeon 

in coastal marine waters off Alaska. 

Impacts on National Security 

Comment 64: The Department of 

Defense (DOD) requested the exclusion 

of coastal marine waters in Oregon 

adjacent to the military training facility, 

Camp Rilea, due to national security 

concerns. The area requested for 

exclusion included an area from onehalf mile north to one-half mile south of 

Camp Rilea to a distance of two miles 

offshore of Camp Rilea. This area 

encompasses the surface danger zone for 

weapons training ranges on Camp Rilea, 

but is not part of the Camp Rilea facility. 

Response: We corresponded with 

representatives from Camp Rilea to 

discuss the activities occurring within 

the coastal marine waters adjacent to 

Camp Rilea and the potential impacts of 

the critical habitat designation on 

national security within this area. The 

activities identified to occur within this 

area included shooting range training 

exercises and amphibious landings. No 

in-water construction activities or 

activities affecting water quality were 

identified. The representatives for Camp 

Rilea agreed that the activities occurring 

within the area requested for exclusion 

would not likely affect critical habitat 

for the Southern DPS and that the 

critical habitat designation would not 

likely affect national security within the 

area. Thus, the benefits to national 

security of excluding this area were low. 

In addition, the area is located within a 

specific area with High conservation 

value that provides an important 

connectivity corridor for green sturgeon 

and is located just south of the lower 

Columbia River estuary, another specific 

area with High conservation value, and 

there are other Federal activities 

occurring in the area (e.g., a submarine 

cable installation project) that may 

affect critical habitat. Thus, we 

determined that the benefits to national 

security of excluding this area did not 

outweigh the conservation benefits of 

designating the area. A more detailed 

analysis is provided in the final ESA 

section 4(b)(2) report (NMFS 2009c). 

Comment 65: The DOD requested that 

the following areas off the coast of 

Washington be excluded from the 

critical habitat designation: (1) Strait of 

Juan de Fuca and Whidbey Island Naval 

Restricted Areas adjacent to the 

runways at the Naval Air Station (NAS) 

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Whidbey Island; (2) Strait of Juan de 

Fuca Naval Air-to-Surface Weapon 

Range Restricted Area; (3) Admiralty 

Inlet Naval Restricted Area; (4) Navy 3 

Operating Area in the Strait of Juan de 

Fuca; (5) Navy 7/Admiralty Bay Naval 

Restricted Area 6701 in Puget Sound; 

and (6) the surf zone portion of the 

Quinault Underwater Tracking Range 

(QUTR) within the Pacific Northwest 

Operating Area. 

Response: NMFS considered the 

DOD’s request and the information 

provided by representatives from the 

Navy regarding the activities occurring 

within each of the areas requested for 

exclusion and the potential impacts on 

national security. NMFS determined 

that the benefits to national security of 

excluding the following areas outweigh 

the conservation benefits of designating 

the areas: Strait of Juan de Fuca and 

Whidbey Island Naval Restricted Area; 

Strait of Juan de Fuca Naval Air-toSurface Weapon Range Restricted Area; 

Admiralty Inlet Naval Restricted Area; 

and Navy 3 Operating area (NMFS 

2009c). We determined that the benefits 

of designation are low for these areas, 

because there are relatively few 

detections of green sturgeon in the area 

and the consultation history indicates 

that there are currently no other Federal 

activities occurring within these areas 

that may affect critical habitat. In 

addition, the size of the areas are small 

relative to the Strait of Juan de Fuca and 

the total critical habitat designation, and 

the Navy’s presence provides some 

protection for green sturgeon habitat, 

either through regulatory control of 

public access or the nature of the Navy’s 

activities that limit the kinds of other 

Federal activities that would occur in 

the areas. We also determined that the 

potential impacts on national security 

are low for these areas, because the 

Navy’s current activities have a low 

likelihood of affecting critical habitat. 

However, we recognize that the range of 

activities that may be carried out in 

these areas are often critical to national 

security and that a critical habitat 

designation in these areas could delay 

or halt these activities in the future. 

Based on this information, we 

determined that the benefits of 

exclusion outweigh the benefits of 

designation and exclude the areas from 

the final designation. We note, however, 

that consultation under section 7 of the 

ESA would still be required to address 

activities that may cause jeopardy to or 

take of Southern DPS green sturgeon. 

The Navy 7/Admiralty Bay Naval 

Restricted Area 6701 occurs in Puget 

Sound (an area that is excluded from the 

final critical habitat designation) and 

does not overlap with the specific area 

delineated in the Strait of Juan de Fuca 

(see ‘‘Corrections from proposed rule’’). 

Therefore, the Navy 7/Admiralty Bay 

Naval Restricted Area 6701 does not 

overlap with the critical habitat 

designation for the Southern DPS. In 

addition, at this time NMFS cannot 

determine whether the surf zone portion 

of the QUTR warrants exclusion from 

the critical habitat designation because 

the surf zone area has not yet been 

defined by the Navy. The surf zone 

portion of the QUTR is part of a 

proposed extension of the QUTR range 

that has not yet been finalized. The 

Navy informed NMFS that one of three 

alternative sites for the surf zone portion 

will be selected following completion of 

analyses under the National 

Environmental Policy Act (NEPA), 

estimated to be completed by the end of 

the year 2009. Until the area has been 

defined, NMFS cannot evaluate the 

impacts on national security and 

determine if those impacts outweigh the 

benefits of designating the area as 

critical habitat, because the location and 

size of the areas could change. Thus, the 

area will not be excluded from the 

critical habitat designation at this time. 

Once the location of the surf zone 

portion of the QUTR has been selected, 

the Navy may request that NMFS revise 

the critical habitat designation to 

exclude the area from critical habitat 

based on impacts on national security. 

A more detailed analysis for each of the 

areas requested for exclusion by the 

Navy is provided in the final ESA 

section 4(b)(2) report (NMFS 2009c). 

Comment 66: The DOD commented 

that the area within the boundaries of 

the Mare Island US Army Reserve 

Center (USAR) near Vallejo, California, 

should not be eligible for consideration 

as critical habitat, because an integrated 

natural resources management plan 

(INRMP) is currently in place that 

provides the same, if not better, 

protection for listed species in waters 

adjacent to the Mare Island USAR 

Center. In addition, the DOD requested 

that the Mare Island USAR Center be 

excluded from designation based on 

impacts on national security. 

Response: NMFS corresponded with 

representatives from the Mare Island 

USAR Center to discuss the INRMP and 

the potential impacts on national 

security. The Mare Island USAR Center 

is located in Mare Island Strait, where 

the Napa River flows into San Pablo 

Bay, California. The Mare Island USAR 

Center facilities include the waters 

between and around Piers 22 and 23, 

which overlap with the habitat areas 

considered for designation as critical 

habitat. NMFS’ primary concerns were 

that: (1) The INRMP discusses the status 

and occurrence of green sturgeon in the 

area, but does not include protective 

measures specifically for green sturgeon; 

and (2) in-bay disposal of dredged 

material from dredging activities 

between and around the piers may affect 

proposed green sturgeon critical habitat. 

Based on the information provided by 

the DOD, NMFS determined that the 

benefits to national security of 

excluding waters within the boundaries 

of the Mare Island USAR Center facility 

between and around Piers 22 and 23 

outweigh the conservation benefit of 

designating the area (NMFS 2009c). One 

of the major national security concerns 

is that limitations on pier maintenance 

activities or on dredging activities 

between and around the piers could 

hinder the ability of vessels to move in 

and out of the piers for missions. Thus, 

the Mare Island USAR Center is 

excluded from the critical habitat 

designation for the Southern DPS. 

However, NMFS determined that the 

INRMP does not provide adequate 

protection for the threatened Southern 

DPS (i.e., the INRMP does not provide 

a benefit to the species, as required by 

ESA section 4(a)(3)(B)(i)) and 

recommended revisions to the INRMP to 

adequately address the Southern DPS, 

including: (1) Providing updated data 

on tagged green sturgeon detections 

from monitors placed at Piers 22 and 23; 

and (2) providing conservation 

measures to address the effects of 

activities on green sturgeon. In addition, 

NMFS requests that, upon publication 

of this final rule, the INRMP be updated 

to incorporate information about the 

designation of critical habitat for the 

Southern DPS in waters adjacent to the 

Mare Island USAR Center in San Pablo 

Bay. Although the Mare Island USAR 

Center is excluded from the critical 

habitat designation, consultation under 

section 7 of the ESA would be required 

to address activities that may cause 

jeopardy to or take of Southern DPS 

green sturgeon, and to address activities 

that may affect designated critical 

habitat (for example, consultation 

would be required for the disposal of 

dredged material within designated 

critical habitat areas). 

Comment 67: The DOD commented 

that the Military Ocean Terminal 

Concord (MOTCO) facility in Suisun 

Bay should not be eligible for 

consideration as critical habitat, because 

an existing INRMP for the facility 

already includes fishery measures that 

benefit green sturgeon. In addition, the 

DOD requested that the area be 

excluded from designation based on 

impacts on national security. The 

MOTCO operates within the property of 

the former Naval Weapons Station, 

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Detachment Concord, California, which 

was transferred from the U.S. Navy to 

the U.S. Army in fiscal year 2009. The 

U.S. Army is continuing operations at 

the MOTCO facilities in accordance 

with the INRMP prepared for the Naval 

Weapons Station Concord, as well as a 

Memorandum of Understanding (MOU) 

with the USFWS relating to the 

designation of a wetland preserve on the 

Naval Weapons Station Concord. 

Response: NMFS corresponded with a 

representative from MOTCO to discuss 

the MOTCO facilities and the INRMP. 

Upon further review of the MOTCO 

facility maps and the information 

provided by the MOTCO representative, 

NMFS determined that the MOTCO 

facilities are adjacent to, but do not 

overlap with, the habitat areas 

considered for designation as critical 

habitat for the Southern DPS in Suisun 

Bay, California. The MOTCO 

representative agreed with the 

determination that there is no overlap 

between the MOTCO facilities and the 

areas considered for designation as 

critical habitat in Suisun Bay. Thus, the 

MOTCO facilities are not included in 

the critical habitat designation for 

Southern DPS green sturgeon. However, 

NMFS clarified that consultation under 

section 7 of the ESA would still be 

required to address jeopardy to or take 

of Southern DPS green sturgeon, or to 

address effects on designated critical 

habitat areas. NMFS also requested to be 

involved in reviewing the INRMP for 

the MOTCO facilities to ensure that 

green sturgeon are adequately 

addressed. 

Impacts on Indian Lands 

Comment 68: Several Tribes in 

Oregon and Washington requested the 

exclusion of Indian lands from the 

critical habitat designation. Some of the 

Tribes also requested the exclusion of 

the Tribes’ usual and accustomed 

fishing areas due to concerns regarding 

the potential effects of the critical 

habitat designation on Tribal fisheries. 

The Tribes provided information 

regarding Tribal activities that may be 

affected by the critical habitat 

designation and maps showing the 

location of Indian lands and usual and 

accustomed fishing areas that may 

overlap with the areas considered for 

designation as critical habitat. 

Response: NMFS corresponded with 

several Tribes in Washington and 

Oregon to discuss and better understand 

their concerns regarding the critical 

habitat designation. Based on the 

information received from the Tribes, 

NMFS determined that the areas of 

overlap between Indian lands and the 

areas considered for designation is 

small. In contrast, the benefits of 

excluding Indian lands from the 

designation are high and include: 

maintenance of NMFS’ co-management 

and trust relationship with the Tribes 

and continued respect for Tribal 

sovereignty and self-governance, 

particularly with regard to the 

management of natural resources on 

Indian lands. Thus, NMFS determined 

that the benefits of exclusion outweigh 

the benefits of designation for Indian 

lands and that Indian lands are eligible 

for exclusion. This final rule excludes 

from the critical habitat designation 

Indian lands (as defined under the 

Secretarial Order titled ‘‘American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act’’) of the 

following Tribes: the Hoh, Jamestown 

S’Klallam, Lower Elwha, Makah, 

Quileute, Quinault, and Shoalwater Bay 

Tribes in Washington; the Confederated 

Tribes of Coos, Lower Umpqua, and 

Siuslaw Indians and the Coquille Tribe 

in Oregon; and the Cachil DeHe Band of 

Wintun Indians of the Colusa Indian 

Community, Cher-Ae Heights Trinidad 

Rancheria, Wiyot Tribe, and Yurok 

Tribe in California. This exclusion 

applies only to current Indian lands and 

would not apply to additional Indian 

lands acquired by the Tribes in the 

future. The Tribes would need to 

request that NMFS revise the critical 

habitat designation for the Southern 

DPS to exclude any Indian lands 

acquired after the publication of this 

final rule. The final ESA section 4(b)(2) 

report (NMFS 2009c) documents NMFS’ 

correspondence with the Tribes and 

NMFS’ determination regarding the 

exclusion of Indian lands. 

Three Tribes in Washington also 

requested the exclusion of usual and 

accustomed fishing areas from the 

critical habitat designation. The Tribes 

were primarily concerned with the 

potential impact of the critical habitat 

designation on Tribal fisheries in coastal 

estuaries and coastal marine waters. 

Based on the information provided by 

the Tribes, NMFS would expect the 

critical habitat designation to have 

minimal effects on Tribal fisheries. 

Tribal fisheries may cause take of 

Southern DPS green sturgeon and thus 

are more likely to be affected by take 

prohibitions as established in the 

proposed ESA 4(d) Rule for green 

sturgeon (74 FR 23822; May 21, 2009) 

than by the proposed critical habitat 

designation. In addition, usual and 

accustomed fishing areas are not 

necessarily coextensive with areas 

defined as ‘‘Indian lands’’ in various 

Federal policies, orders, and 

memoranda. Thus, we conclude that 

exclusion of usual and accustomed 

fishing areas outside those identified as 

Indian lands is not warranted. Tribal 

activities conducted outside of 

identified Indian lands and that have a 

Federal nexus (such as participation or 

funding by the Bureau of Indian 

Affairs), including those conducted 

within usual and accustomed fishing 

areas, would be subject to requirements 

under section 7 of the ESA to ensure no 

destruction or adverse modification of 

critical habitat. 

Unoccupied Areas 

Comment 69: Several commenters 

agreed with NMFS’ decision not to 

designate unoccupied areas at this time, 

whereas two commenters disagreed 

with this decision. Several commenters 

urged NMFS not to designate critical 

habitat in unoccupied areas, stating that 

there is insufficient information to 

determine that any of the currently 

unoccupied areas identified are 

essential for conservation, catastrophic 

risk can be addressed by focusing on 

habitat improvements in currently 

occupied areas, and designation of 

unoccupied areas would result in high 

economic impacts. Commenters stated 

that the restoration of passage or habitat 

for green sturgeon in currently 

inaccessible or unsuitable habitats can 

be more appropriately addressed in the 

recovery planning process. Two 

commenters asserted that recovery 

would be impossible without 

establishing additional spawning 

populations for the Southern DPS with 

at least one inhabiting a separate basin 

from the Sacramento River. One 

commenter recommended that the 

removal or alteration of the Daguerre 

Dam on the Yuba River should be 

regarded as critical, to allow passage 

and access to potential spawning 

habitats in the Yuba River. 

Response: Although the CHRT 

identified seven unoccupied areas that 

may be essential for conservation, they 

did not have data to support a 

determination that any of the 

unoccupied areas are essential for 

conservation of the Southern DPS. Of 

greatest importance was the lack of data 

on the historical use of these areas by 

green sturgeon. The CHRT did not have 

any evidence to confirm that green 

sturgeon historically occupied any of 

the seven unoccupied areas identified. 

In addition, green sturgeon do not 

appear to occupy the lower American 

River or the San Joaquin River 

presently, even though both systems are 

accessible to green sturgeon (i.e., there 

is no physical barrier blocking upstream 

migration). The public comments did 

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52322 Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 

not provide additional information on 

historical green sturgeon presence and 

use of these unoccupied areas. Thus, the 

CHRT maintained their determination 

that the unoccupied areas may be 

essential but that data are not available 

to determine that any of the unoccupied 

areas are essential for the conservation 

of the Southern DPS. The CHRT and 

NMFS recommend that future research 

be conducted to monitor these areas for 

green sturgeon presence and to better 

understand the current habitat 

conditions. 

National Environmental Policy Act of 

1969 (NEPA) 

Comment 70: Two commenters stated 

that NMFS failed to comply with NEPA 

and that the absence of the NEPA 

review causes important impacts to 

remain unidentified, unrecognized, or 

ignored. 

Response: We believe that in Douglas 

County v. Babbitt, 48 F. 3d 1495 (9th 

Cir. 1995), cert. denied, 116 S.Ct. 698 

(1996), the Ninth Circuit Court of 

Appeals correctly interpreted the 

relationship between NEPA and the 

designation of critical habitat under the 

ESA. The Court rejected the suggestion 

that irreconcilable statutory conflict or 

duplicative statutory procedures are the 

only exceptions to application of NEPA 

to Federal actions. The Court held that 

the legislative history of the ESA 

demonstrated that Congress intended to 

displace NEPA procedures with 

carefully crafted procedures specific to 

the designation of critical habitat. 

Further, the Douglas County Court held 

that the critical habitat mandate of the 

ESA conflicts with NEPA in that, 

although the Secretary may exclude 

areas from critical habitat if such 

exclusion would be more beneficial 

than harmful, the Secretary has no 

discretion to exclude areas from 

designation if such exclusion would 

result in extinction. The Court noted 

that the ESA also conflicts with NEPA’s 

demand for an impact analysis, in that 

the ESA dictates that the Secretary 

‘‘shall’’ designate critical habitat for 

listed species based upon an evaluation 

of economic and other ‘‘relevant’’ 

impacts, which the Court interpreted as 

narrower than NEPA’s directive. 

Finally, the Court, based upon a review 

of precedent from several circuits 

including the Fifth Circuit, held that an 

environmental impact statement is not 

required for actions that do not change 

the physical environment. The impacts 

of the critical habitat designation on 

activities occurring within the critical 

habitat areas were evaluated and 

considered in the economic analysis 

(Indecon 2009) and ESA section 4(b)(2) 

analysis (NMFS 2009c). 

Correction From Proposed Rule 

We made modifications to the 

boundaries for the Strait of Juan de Fuca 

to more accurately reflect the major 

basins associated with Puget Sound 

(Batelle Marine Sciences Laboratory et 

al. 2001). The boundary between the 

Strait of Juan de Fuca and Puget Sound 

should be defined by a line between 

Partridge Point on Whidbey Island and 

Point Wilson at Port Townsend. This 

final rule makes this correction in the 

regulatory text. 

Critical Habitat Identification and 

Designation 

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

designation of critical habitat for 

threatened and endangered species ‘‘on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, 

impact on national security, and any 

other relevant impact, of specifying any 

particular area as critical habitat.’’ This 

section grants the Secretary [of 

Commerce] discretion to exclude any 

area from critical habitat if he 

determines ‘‘the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat.’’ The Secretary may not 

exclude an area if it ‘‘will result in the 

extinction of the species.’’ 

The ESA defines critical habitat under 

Section 3(5)(A) as: 

(i) [T]he 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. 

The ESA defines conservation under 

section 3(3) to mean ‘‘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 Act are no longer 

necessary.’’ 

Once critical habitat is designated, 

section 7 of the ESA requires Federal 

agencies to ensure they do not fund, 

authorize, or carry out any actions that 

will destroy or adversely modify that 

habitat. This requirement is in addition 

to the ESA section 7 requirement that 

Federal agencies ensure their actions do 

not jeopardize the continued existence 

of listed species. 

In the following sections, we describe 

our methods for evaluating the areas 

considered for designation as critical 

habitat, our final determinations, and 

the final critical habitat designation. 

This description incorporates the 

changes described above in response to 

the public comments and peer reviewer 

comments. 

Methods and Criteria Used To Identify 

Critical Habitat 

In accordance with section 4(b)(2) of 

the ESA and our implementing 

regulations (50 CFR 424.12(a)), this rule 

is based on the best scientific 

information available concerning the 

Southern DPS’ 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 the green 

sturgeon, including recent biological 

surveys and reports, peer-reviewed 

literature, NMFS status reviews for 

green sturgeon (Moyle et al. 1992; 

Adams et al. 2002; Biological Review 

Team (BRT) 2005), and the proposed 

and final listing rules for the green 

sturgeon (70 FR 17386, April 6, 2005; 71 

FR 17757, April 7, 2006). 

To assist with the evaluation of 

critical habitat, we convened the CHRT, 

comprised of nine Federal biologists 

from NMFS, the USFWS, and the U.S. 

Bureau of Reclamation (USBR) with 

experience in green sturgeon biology, 

consultations, and management, or 

experience in the critical habitat 

designation process. The CHRT used the 

best available scientific and commercial 

data and their best professional 

judgment to: (1) Verify the geographical 

area occupied by the Southern DPS at 

the time of listing; (2) identify the 

physical and biological features 

essential to the conservation of the 

species; (3) identify specific areas 

within the occupied area containing 

those essential physical and biological 

features; (4) verify whether the essential 

features within each specific area may 

need special management 

considerations or protection and 

identify activities that may affect these 

essential features; (5) evaluate the 

conservation value of each specific area; 

and (6) determine if any unoccupied 

areas are essential to the conservation of 

the Southern DPS. The CHRT’s 

evaluation and conclusions are 

described in detail in the following 

sections, as well as in the final 

biological report (NMFS 2009a). 

Physical or Biological Features 

Essential for Conservation 

Joint NMFS–USFWS regulations, at 

50 CFR 424.12(b), state that in 

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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.’’ Features to consider may 

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.’’ The 

regulations also require the agencies to 

‘‘focus on the principal biological or 

physical constituent elements’’ 

(hereafter referred to as ‘‘Primary 

Constituent Elements’’ or PCEs) within 

the specific areas considered for 

designation that are essential to 

conservation of the species, which ‘‘may 

include, but are not limited to, the 

following: * * * spawning sites, 

feeding sites, seasonal wetland or 

dryland, water quality or quantity, 

* * * geological formation, vegetation 

type, tide, and specific soil types.’’ 

The CHRT recognized that the 

different systems occupied by green 

sturgeon at specific stages of their life 

cycle serve distinct purposes and thus 

may contain different PCEs. Based on 

the best available scientific information, 

the CHRT identified PCEs for freshwater 

riverine systems, estuarine areas, and 

nearshore marine waters. 

The specific PCEs essential for the 

conservation of the Southern DPS in 

freshwater riverine systems include: 

(1) Food resources. Abundant prey 

items for larval, juvenile, subadult, and 

adult life stages. Although the CHRT 

lacked specific data on food resources 

for green sturgeon within freshwater 

riverine systems, juvenile green 

sturgeon most likely feed on fly larvae, 

amphipods, and bivalves, based on 

nutritional studies on the closely-related 

white sturgeon (Schreiber 1962; Radtke 

1966; pers. comm. with Jeff Stuart, 

NMFS, January 14, 2008, and August 13, 

2009). Food resources are important for 

juvenile foraging, growth, and 

development during their downstream 

migration to the Delta and bays. In 

addition, subadult and adult green 

sturgeon may forage during their 

downstream post-spawning migration, 

while holding within deep pools 

(Erickson et al. 2002), or on nonspawning migrations within freshwater 

rivers. Subadult and adult green 

sturgeon in freshwater rivers most likely 

feed on benthic prey species similar to 

those fed on in bays and estuaries, 

including shrimp, clams, and benthic 

fishes (Moyle et al. 1995; Erickson et al. 

2002; Moser and Lindley 2007; 

Dumbauld et al. 2008). 

(2) Substrate type or size (i.e., 

structural features of substrates). 

Substrates suitable for egg deposition 

and development (e.g., bedrock sills and 

shelves, cobble and gravel, or hard clean 

sand, with interstices or irregular 

surfaces to ‘‘collect’’ eggs and provide 

protection from predators, and free of 

excessive silt and debris that could 

smother eggs during incubation), larval 

development (e.g., substrates with 

interstices or voids providing refuge 

from predators and from high flow 

conditions), and subadults and adults 

(e.g., substrates for holding and 

spawning). For example, spawning is 

believed to occur over substrates 

ranging from clean sand to bedrock 

(Emmett et al. 1991; Moyle et al. 1995), 

with preferences for gravel, cobble, and 

boulder (Poytress et al. 2009; pers. 

comm. with Dan Erickson, ODFW, 

September 3, 2008). Eggs likely adhere 

to substrates, or settle into crevices 

between substrates (Deng 2000; Van 

Eenennaam et al. 2001; Deng et al. 

2002). Both embryos and larvae 

exhibited a strong affinity for benthic 

structure during laboratory studies (Van 

Eenennaam et al. 2001; Deng et al. 2002; 

Kynard et al. 2005), and may seek refuge 

within crevices, but use flat-surfaced 

substrates for foraging (Nguyen and 

Crocker 2007). 

(3) Water flow. A flow regime (i.e., the 

magnitude, frequency, duration, 

seasonality, and rate-of-change of fresh 

water discharge over time) necessary for 

normal behavior, growth, and survival 

of all life stages. Such a flow regime 

should include stable and sufficient 

water flow rates in spawning and 

rearing reaches to maintain water 

temperatures within the optimal range 

for egg, larval, and juvenile survival and 

development (11–19 °C) (Cech et al. 

2000, cited in COSEWIC 2004; Mayfield 

and Cech 2004; Van Eenennaam et al. 

2005; Allen et al. 2006). Sufficient flow 

is needed to reduce the incidence of 

fungal infestations of the eggs (Deng et 

al. 2002; Parsley et al. 2002). In 

addition, sufficient flow is needed to 

flush silt and debris from cobble, gravel, 

and other substrate surfaces to prevent 

crevices from being filled in (and 

potentially suffocating the eggs; Deng et 

al. 2002) and to maintain surfaces for 

feeding (Nguyen and Crocker 2007). 

Successful migration of adult green 

sturgeon to and from spawning grounds 

is also dependent on sufficient water 

flow. Spawning success is associated 

with water flow and water temperature. 

Spawning in the Sacramento River is 

believed to be triggered by increases in 

water flow to about 400 m3/s (average 

daily water flow during spawning 

months: 198–306 m3/s) (Brown 2007). 

Post-spawning downstream migrations 

are triggered by increased flows, ranging 

from 174–417 m3/s in the late summer 

(Vogel 2005) and greater than 100 m3/ 

s in the winter (Erickson et al. 2002; 

Benson et al. 2007; pers. comm. with 

Richard Corwin, USBR, June 5, 2008). 

(4) Water quality. Water quality, 

including temperature, salinity, oxygen 

content, and other chemical 

characteristics, necessary for normal 

behavior, growth, and viability of all life 

stages. Suitable water temperatures 

would include: relatively stable water 

temperatures within spawning reaches 

(wide fluctuations could increase egg 

mortality or deformities in developing 

embryos); temperatures within 11–17 °C 

(optimal range = 14–16 °C) in spawning 

reaches for egg incubation (March– 

August) (Van Eenennaam et al. 2005); 

temperatures below 20 °C for larval 

development (Werner et al. 2007); and 

temperatures below 24 °C for juveniles 

(Mayfield and Cech 2004; Allen et al. 

2006a). Suitable salinity levels range 

from fresh water (<3 parts per thousand 

(ppt)) for larvae and early juveniles 

(about 100 dph) to brackish water (10 

ppt) for juveniles prior to their 

transition to salt water. Exposure to 

higher salinities may affect the 

temperature tolerances of juvenile green 

sturgeon (Sardella et al. 2008) and 

prolonged exposure to higher salinities 

may result in decreased growth and 

activity levels and even mortality (Allen 

and Cech 2007). Adequate levels of 

dissolved oxygen are needed to support 

oxygen consumption by fish in their 

early life stages (ranging from 61.78 to 

76.06 mg O2 hr¥1 kg¥1 for juveniles) 

(Allen and Cech 2007). Suitable water 

quality would also include water 

containing acceptably low levels of 

contaminants (e.g., pesticides, 

polyaromatic hydrocarbons (PAHs), 

elevated levels of heavy metals) that 

may disrupt normal development of 

embryonic, larval, and juvenile stages of 

green sturgeon. Water with acceptably 

low levels of such contaminants would 

protect green sturgeon from adverse 

impacts on growth, reproductive 

development, and reproductive success 

(e.g., reduced egg size and abnormal 

gonadal development) likely to result 

from exposure to contaminants (Fairey 

et al. 1997; Foster et al. 2001a; Foster et 

al. 2001b; Kruse and Scarnecchia 2002; 

Feist et al. 2005; Greenfield et al. 2005). 

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(5) Migratory corridor. A migratory 

pathway necessary for the safe and 

timely passage of Southern DPS fish 

within riverine habitats and between 

riverine and estuarine habitats (e.g., an 

unobstructed river or dammed river that 

still allows for safe and timely passage). 

We define safe and timely passage to 

mean that human-induced 

impediments, either physical, chemical 

or biological, do not alter the migratory 

behavior of the fish such that its 

survival or the overall viability of the 

species is compromised (e.g., an 

impediment that compromises the 

ability of fish to reach their spawning 

habitat in time to encounter conspecifics and reproduce). Unimpeded 

migratory corridors are necessary for 

adult green sturgeon to migrate to and 

from spawning habitats, and for larval 

and juvenile green sturgeon to migrate 

downstream from spawning/rearing 

habitats within freshwater rivers to 

rearing habitats within the estuaries. 

(6) Water depth. Deep (≥5 m) holding 

pools for both upstream and 

downstream holding of adult or 

subadult fish, with adequate water 

quality and flow to maintain the 

physiological needs of the holding adult 

or subadult fish. Deep pools of ≥5 m 

depth with high associated turbulence 

and upwelling are critical for adult 

green sturgeon spawning and for 

summer holding within the Sacramento 

River (Poytress et al. 2009). Adult green 

sturgeon in the Klamath and Rogue 

rivers also occupy deep holding pools 

for extended periods of time, 

presumably for feeding, energy 

conservation, and/or refuge from high 

water temperatures (Erickson et al. 

2002; Benson et al. 2007). 

(7) Sediment quality. Sediment 

quality (i.e., chemical characteristics) 

necessary for normal behavior, growth, 

and viability of all life stages. This 

includes sediments free of elevated 

levels of contaminants (e.g., selenium, 

PAHs, and pesticides) that may 

adversely affect green sturgeon. Based 

on studies of white sturgeon, 

bioaccumulation of contaminants from 

feeding on benthic species may 

adversely affect the growth, 

reproductive development, and 

reproductive success of green sturgeon. 

The specific PCEs essential for the 

conservation of the Southern DPS in 

estuarine areas include: 

(1) Food resources. Abundant prey 

items within estuarine habitats and 

substrates for juvenile, subadult, and 

adult life stages. Prey species for 

juvenile, subadult, and adult green 

sturgeon within bays and estuaries 

primarily consist of benthic 

invertebrates and fishes, including 

crangonid shrimp, burrowing 

thalassinidean shrimp (particularly the 

burrowing ghost shrimp), amphipods, 

isopods, clams, annelid worms, crabs, 

sand lances, and anchovies. These prey 

species are critical for the rearing, 

foraging, growth, and development of 

juvenile, subadult, and adult green 

sturgeon within the bays and estuaries. 

(2) Water flow. Within bays and 

estuaries adjacent to the Sacramento 

River (i.e., the Sacramento-San Joaquin 

Delta and the Suisun, San Pablo, and 

San Francisco bays), sufficient flow into 

the bay and estuary to allow adults to 

successfully orient to the incoming flow 

and migrate upstream to spawning 

grounds. Sufficient flows are needed to 

attract adult green sturgeon to the 

Sacramento River to initiate the 

upstream spawning migration 

(Kohlhorst et al. 1991, cited in CDFG 

2002; pers. comm. with Jeff Stuart, 

NMFS, February 24–25, 2008). 

(3) Water quality. Water quality, 

including temperature, salinity, oxygen 

content, and other chemical 

characteristics, necessary for normal 

behavior, growth, and viability of all life 

stages. Suitable water temperatures for 

juvenile green sturgeon should be below 

24 °C. At temperatures above 24 °C, 

juvenile green sturgeon exhibit 

decreased swimming performance 

(Mayfield and Cech 2004) and increased 

cellular stress (Allen et al. 2006). 

Suitable salinities range from brackish 

water (10 ppt) to salt water (33 ppt). 

Juveniles transitioning from brackish to 

salt water can tolerate prolonged 

exposure to salt water salinities, but 

may exhibit decreased growth and 

activity levels and a restricted 

temperature tolerance range (Allen and 

Cech 2007; Sardella et al. 2008), 

whereas subadults and adults tolerate a 

wide range of salinities (Kelly et al. 

2007). Subadult and adult green 

sturgeon occupy a wide range of 

dissolved oxygen levels, but may need 

a minimum dissolved oxygen level of at 

least 6.54 mg 02/l (Kelly et al. 2007; 

Moser and Lindley 2007). As described 

above, adequate levels of dissolved 

oxygen are also required to support 

oxygen consumption by juveniles 

(ranging from 61.78 to 76.06 mg O2 hr¥1

kg¥1) (Allen and Cech 2007). Suitable 

water quality also includes water with 

acceptably low levels of contaminants 

(e.g., pesticides, PAHs, elevated levels 

of heavy metals) that may disrupt the 

normal development of juvenile life 

stages, or the growth, survival, or 

reproduction of subadult or adult stages. 

(4) Migratory corridor. A migratory 

pathway necessary for the safe and 

timely passage of Southern DPS fish 

within estuarine habitats and between 

estuarine and riverine or marine 

habitats. We define safe and timely 

passage to mean that human-induced 

impediments, either physical, chemical, 

or biological, do not alter the migratory 

behavior of the fish such that its 

survival or the overall viability of the 

species is compromised (e.g., an 

impediment that compromises the 

ability of fish to reach thermal refugia 

by the time they enter a particular life 

stage). Within the bays and estuaries 

adjacent to the Sacramento River, 

unimpeded passage is needed for 

juvenile green sturgeon to migrate from 

the river to the bays and estuaries and 

eventually out into the ocean. Passage 

within the bays and the Delta is also 

critical for adults and subadults for 

feeding and summer holding, as well as 

to access the Sacramento River for their 

upstream spawning migrations and to 

make their outmigration back into the 

ocean. Within bays and estuaries 

outside of the Delta and the Suisun, San 

Pablo, and San Francisco bays, 

unimpeded passage is necessary for 

adult and subadult green sturgeon to 

access feeding areas, holding areas, and 

thermal refugia, and to ensure passage 

back out into the ocean. 

(5) Water depth. A diversity of depths 

necessary for shelter, foraging, and 

migration of juvenile, subadult, and 

adult life stages. Subadult and adult 

green sturgeon occupy a diversity of 

depths within bays and estuaries for 

feeding and migration. Tagged adults 

and subadults within the San Francisco 

Bay estuary primarily occupied waters 

over shallow depths of less than 10 m, 

either swimming near the surface or 

foraging along the bottom (Kelly et al. 

2007). In a study of juvenile green 

sturgeon in the Delta, relatively large 

numbers of juveniles were captured 

primarily in shallow waters from 1–3 

meters deep, indicating juveniles may 

require even shallower depths for 

rearing and foraging (Radtke 1966). 

Thus, a diversity of depths is important 

to support different life stages and 

habitat uses for green sturgeon within 

estuarine areas. 

(6) Sediment quality. Sediment 

quality (i.e., chemical characteristics) 

necessary for normal behavior, growth, 

and viability of all life stages. This 

includes sediments free of elevated 

levels of contaminants (e.g., selenium, 

PAHs, and pesticides) that can cause 

adverse effects on all life stages of green 

sturgeon (see description of ‘‘Sediment 

quality’’ for riverine habitats above). 

The specific PCEs essential for the 

conservation of the Southern DPS in 

coastal marine areas include: 

(1) Migratory corridor. A migratory 

pathway necessary for the safe and 

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timely passage of Southern DPS fish 

within marine and between estuarine 

and marine habitats. We define safe and 

timely passage to mean that humaninduced impediments, either physical, 

chemical, or biological, do not alter the 

migratory behavior of the fish such that 

its survival or the overall viability of the 

species is compromised (e.g., an 

impediment that compromises the 

ability of fish to reach abundant prey 

resources during the summer months in 

Washington and Oregon estuaries). 

Subadult and adult green sturgeon 

spend the majority of their lives in 

marine and estuarine waters outside of 

their natal rivers. Unimpeded passage 

within coastal marine waters is critical 

for subadult and adult Southern DPS 

green sturgeon to access oversummering 

habitats within coastal bays and 

estuaries and overwintering habitats 

within coastal waters between 

Vancouver Island, BC, and southeast 

Alaska (Lindley et al. 2008), as well as 

to return to its natal waters in the 

Sacramento River to spawn. 

(2) Water quality. Coastal marine 

waters with adequate dissolved oxygen 

levels and acceptably low levels of 

contaminants (e.g., pesticides, PAHs, 

heavy metals that may disrupt the 

normal behavior, growth, and viability 

of subadult and adult green sturgeon). 

Based on studies of tagged subadult and 

adult green sturgeon in the San 

Francisco Bay estuary, CA, and Willapa 

Bay, WA, subadults and adults may 

need a minimum dissolved oxygen level 

of at least 6.54 mg O2/l (Kelly et al. 

2007; Moser and Lindley 2007). As 

described above, exposure to and 

bioaccumulation of contaminants may 

adversely affect the growth, 

reproductive development, and 

reproductive success of subadult and 

adult green sturgeon. Thus, waters with 

acceptably low levels of such 

contaminants are required for the 

normal development of green sturgeon 

for optimal survival and spawning 

success. 

(3) Food resources. Abundant prey 

items for subadults and adults, which 

may include benthic invertebrates and 

fish. Green sturgeon spend more than 

half their lives in coastal marine and 

estuarine waters, spending from 3–20 

years at a time out at sea. Abundant 

food resources are important to support 

subadults and adults over long-distance 

migrations, and may be one of the 

factors attracting green sturgeon to 

habitats far to the north (off the coasts 

of Vancouver Island and Alaska) and to 

the south (Monterey Bay, CA, and off 

the coast of southern California) of their 

natal habitat. Although the CHRT lacked 

direct evidence, prey species likely 

include benthic invertebrates and fish 

similar to those fed upon by green 

sturgeon in bays and estuaries (e.g., 

shrimp, clams, crabs, anchovies, sand 

lances). 

Geographical Area Occupied by the 

Species and Specific Areas Within the 

Geographical Area Occupied 

One of the first steps in the critical 

habitat designation process is to define 

the geographical area occupied by the 

species at the time of listing. The CHRT 

relied on data from tagging and tracking 

studies, genetic analyses, field 

observations, records of fisheries take 

and incidental take (e.g., in water 

diversion activities), and opportunistic 

sightings to provide information on the 

current range and distribution of green 

sturgeon and of the Southern DPS. The 

range of green sturgeon extends from the 

Bering Sea, Alaska, to Ensenada, 

Mexico. Within this range, Southern 

DPS fish are confirmed to occur from 

Graves Harbor, Alaska, to Monterey Bay, 

California (Lindley et al. 2008; pers. 

comm. with Steve Lindley, NMFS, and 

Mary Moser, NMFS, February 24–25, 

2008), based on telemetry data and 

genetic analyses. Green sturgeon have 

been observed northwest of Graves 

Harbor, AK, and south of Monterey Bay, 

CA, but have not been identified as 

belonging to either the Northern or 

Southern DPS. The CHRT concluded 

that there are no barriers or habitat 

conditions preventing Southern DPS 

fish detected in Monterey Bay, CA, or 

off Graves Harbor, AK, from moving 

further south or further north, and that 

the green sturgeon observed in these 

areas could belong to either the 

Northern DPS or the Southern DPS. 

Based on this reasoning, the 

geographical area occupied by the 

Southern DPS was defined as the entire 

range occupied by green sturgeon (i.e., 

from the Bering Sea, AK, to Ensenada, 

Mexico), encompassing all areas where 

the presence of Southern DPS fish has 

been confirmed, as well as areas where 

the presence of Southern DPS fish is 

likely (based on the presence of 

confirmed Northern DPS fish or green 

sturgeon of unknown DPS). 

Areas outside of the United States 

cannot be designated as critical habitat 

(50 CFR 424.12(h)). Thus, the occupied 

geographical area under consideration 

for this designation is limited to areas 

from the Bering Sea, AK, to the 

California/Mexico border, excluding 

Canadian waters. For freshwater rivers, 

the CHRT concluded that green sturgeon 

of each DPS are likely to occur 

throughout their natal river systems, 

but, within non-natal river systems, are 

likely to be limited to the estuaries and 

would not occur upstream of the head 

of the tide. For the purposes of our 

evaluation of critical habitat, we defined 

all green sturgeon observed upstream of 

the head of the tide in freshwater rivers 

south of the Eel River (i.e., the 

Sacramento River and its tributaries) as 

belonging to the Southern DPS, and all 

green sturgeon observed upstream of the 

head of the tide in freshwater rivers 

north of and including the Eel River as 

belonging to the Northern DPS. Thus, 

for freshwater rivers north of and 

including the Eel River, the areas 

upstream of the head of the tide were 

not considered part of the geographical 

area occupied by the Southern DPS. 

The CHRT then identified ‘‘specific 

areas’’ within the geographical area 

occupied. To be eligible for designation 

as critical habitat under the ESA, each 

specific area must contain at least one 

PCE that may require special 

management considerations or 

protection. For each specific occupied 

area, the CHRT noted whether the 

presence of Southern DPS green 

sturgeon is confirmed or likely (based 

on the presence of Northern DPS fish or 

green sturgeon of unknown DPS) and 

verified that each area contained one or 

more PCE(s) that may require special 

management considerations or 

protection. The following paragraphs 

provide a brief description of the 

presence and distribution of Southern 

DPS green sturgeon within each area 

and summarize the CHRT’s methods for 

delineating the specific areas. 

Freshwater Rivers, Bypasses, and the 

Delta 

Green sturgeon occupy several 

freshwater river systems from the 

Sacramento River, CA, north to British 

Columbia, Canada (Moyle 2002). As 

described in the previous section, 

Southern DPS green sturgeon occur 

throughout their natal river systems 

(i.e., the Sacramento River, lower 

Feather River, and lower Yuba River), 

but are believed to be restricted to the 

estuaries in non-natal river systems (i.e., 

north of and including the Eel River). 

The CHRT defined the specific areas in 

the Sacramento, Feather, and Yuba 

rivers in California to include riverine 

habitat from the river mouth upstream 

to and including the furthest known site 

of historic and/or current sighting or 

capture of green sturgeon, as long as the 

site is still accessible. The specific areas 

were extended upstream to a 

geographically identifiable point. The 

riverine specific areas include areas that 

offer at least periodic passage of 

Southern DPS fish to upstream sites and 

include sufficient habitat necessary for 

each riverine life stage (e.g., spawning, 

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egg incubation, larval rearing, juvenile 

feeding, passage throughout the river, 

and/or passage into and out of estuarine 

or marine habitat). 

The CHRT delineated specific areas 

where Southern DPS green sturgeon 

occur, including: the Sacramento River, 

the Yolo and Sutter bypasses, the lower 

Feather River, and the lower Yuba 

River. The CHRT also delineated a 

specific area in the Sacramento-San 

Joaquin Delta. The mainstem 

Sacramento River is the only area where 

spawning by Southern DPS green 

sturgeon has been confirmed and where 

all life stages of the Southern DPS are 

supported. Beginning in March and 

through early summer, adult green 

sturgeon migrate as far upstream as the 

Keswick Dam (RKM 486) to spawn 

(Brown 2007; Heublein et al. 2008; 

Poytress et al. 2009). Spawning has been 

confirmed by the collection of larvae 

and juveniles at the RBDD and the 

Glenn-Colusa Irrigation District (GCID) 

(CDFG 2002; Brown 2007) and by the 

collection of green sturgeon eggs 

upstream and downstream of the RBDD 

(Brown 2007; Poytress et al. 2009). The 

Sacramento River provides important 

spawning, holding, and migratory 

habitat for adults and important rearing, 

feeding, and migratory habitat for larvae 

and juveniles. The Yolo and Sutter 

bypasses adjacent to the lower 

Sacramento River also serve as 

important migratory corridors for 

Southern DPS adults, subadults, and 

juveniles on their upstream or 

downstream migration and provide a 

high macroinvertebrate forage base that 

may support green sturgeon feeding. 

Southern DPS adults occupy the lower 

Feather River up to Fish Barrier Dam 

(RKM 109) and the lower Yuba River up 

to Daguerre Dam (RKM 19). Based on 

observations of Southern DPS adults 

occurring right up to the dams and of 

spawning behavior by adults on the 

Feather River, spawning may have 

occurred historically in the lower 

Feather River and, to a lesser extent, in 

the lower Yuba River. However, no 

green sturgeon eggs, larvae, or juveniles 

have ever been collected within these 

rivers. Further downstream, the Delta 

provides important rearing, feeding, and 

migratory habitat for juveniles, which 

occur throughout the Delta in all 

months of the year. Subadults and 

adults also occur throughout the Delta 

to feed, grow, and prepare for their 

outmigration to the ocean. The final 

biological report (NMFS 2009a) 

provides more detailed information on 

each specific area, including a 

description of the PCEs present, special 

management considerations or 

protection that may be needed, and the 

presence and distribution of Southern 

DPS green sturgeon. The final biological 

report is available upon request (see 

ADDRESSES), via our Web site at http:// 

swr.nmfs.noaa.gov, or via the Federal 

eRulemaking Web site at http:// 

www.regulations.gov. For additional 

discussion of the special management 

considerations or protection that may be 

needed for the PCEs, please see also the 

description of ‘‘Special management 

considerations or protection’’ below. 

Bays and Estuaries 

Southern DPS green sturgeon occupy 

coastal bays and estuaries from 

Monterey Bay, CA, to Puget Sound, WA. 

In the Central Valley, CA, juvenile, 

subadult, and adult life stages occur 

throughout the Suisun, San Pablo, and 

San Francisco bays. These bays support 

the rearing, feeding, and growth of 

juveniles prior to their first entry into 

marine waters. The bays also serve as 

important feeding, rearing, and 

migratory habitat for subadult and adult 

Southern DPS green sturgeon. 

Outside of their natal system, 

subadult and adult Southern DPS fish 

occupy coastal bays and estuaries in 

California, Oregon, and Washington, 

including estuarine waters at the 

mouths of non-natal rivers. Subadult 

and adult Southern DPS green sturgeon 

have been confirmed to occupy the 

following coastal bays and estuaries: 

Monterey Bay and Humboldt Bay in 

California; Coos Bay, Winchester Bay, 

and Yaquina Bay in Oregon; the lower 

Columbia River estuary; and Willapa 

Bay, Grays Harbor, and Puget Sound in 

Washington (Chadwick 1959; Miller 

1972; Lindley et al. 2008; Pinnix 2008; 

pers. comm. with Steve Lindley, NMFS, 

and Mary Moser, NMFS, February 

24–25, 2008; pers. comm. with Dan 

Erickson, ODFW, September 3, 2008). 

The presence of Southern DPS green 

sturgeon is likely (based on limited 

records of confirmed Northern DPS fish 

or green sturgeon of unknown DPS), but 

not confirmed within the following 

coastal bays and estuaries: Elkhorn 

Slough, Tomales Bay, Noyo Harbor, Eel 

River estuary, and Klamath/Trinity 

River estuary in California; and the 

Rogue River estuary, Siuslaw River 

estuary, Alsea River estuary, Tillamook 

Bay, and Nehalem Bay in Oregon 

(Emmett et al. 1991; Moyle et al. 1992; 

Adams et al. 2002; Erickson et al. 2002; 

Yoklavich et al. 2002; Farr and Kern 

2005; ODFW 2009a, b). 

Subadult and adult green sturgeon are 

believed to occupy coastal bays and 

estuaries outside of their natal waters 

for feeding and optimization of growth 

(Moser and Lindley 2007; Lindley et al. 

2008). Occupied coastal bays and 

estuaries north of San Francisco Bay, 

CA, contain oversummering habitats for 

subadults and adults, whereas coastal 

bays and estuaries south of San 

Francisco Bay, CA, are believed to 

contain overwintering habitats (Lindley 

et al. 2008). The largest concentrations 

of green sturgeon, including Southern 

DPS fish, occur within the lower 

Columbia River estuary, Willapa Bay, 

and Grays Harbor (Emmett et al. 1991; 

Adams et al. 2002; WDFW and ODFW 

2002; Israel and May 2006; Moser and 

Lindley 2007; Lindley et al. 2008). Large 

numbers of green sturgeon also occur 

within Winchester Bay, Tillamook Bay, 

Coos Bay, Yaquina Bay, and Humboldt 

Bay (Moyle et al. 1992; Rien et al. 2000; 

Farr et al. 2001; Adams et al. 2002; Farr 

and Rien 2002, 2003; Farr and Kern 

2004, 2005; Israel and May 2006; 

Lindley et al. 2008; Pinnix 2008; ODFW 

2009a, b). Smaller numbers of green 

sturgeon occur in Tomales Bay in 

California (Moyle et al. 1992); the 

Siuslaw River estuary and Alsea River 

estuary in Oregon (ODFW 2009a, b); the 

lower Columbia River from RKM 74 to 

the Bonneville Dam (WDFW 2008); and 

Puget Sound in Washington (pers. 

comm. with Mary Moser, NMFS, March 

11, 2008). Based on limited available 

data, green sturgeon presence is 

believed to be rare in Elkhorn Slough 

and Noyo Harbor in California (Emmett 

et al. 1991; Moyle et al. 1992; Yoklavich 

et al. 2002). Green sturgeon are present 

in the estuaries of the Eel River, 

Klamath/Trinity rivers, and Rogue 

River, but are believed to most likely 

belong to the Northern DPS. This is 

based on the fact that the Klamath/ 

Trinity and Rogue rivers are spawning 

rivers for the Northern DPS and that the 

Northern DPS is defined to be inclusive 

of green sturgeon originating in coastal 

watersheds north of and including the 

Eel River. To date, no tagged Southern 

DPS subadults or adults have been 

detected in the estuaries of the three 

rivers, although Southern DPS fish have 

been observed in coastal marine waters 

just outside the mouth of the Klamath 

River (pers. comm. with Steve Lindley, 

NMFS, March 5, 2008). 

The CHRT included all coastal bays 

and estuaries for which there was 

evidence to confirm the presence of 

green sturgeon, noting where there were 

confirmed Southern DPS fish, 

confirmed Northern DPS fish, or 

confirmed green sturgeon of unknown 

DPS. As stated in the previous section, 

based on our definitions for the 

Northern DPS and Southern DPS, any 

green sturgeon observed upstream of the 

head of the tide in freshwater rivers 

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north of and including the Eel River 

were assigned to the Northern DPS. 

Thus, areas upstream of the head of the 

tide on these rivers were not included 

as part of the occupied specific areas for 

the Southern DPS. Each specific area 

was defined to extend from the mouth 

of the bay or estuary upstream to the 

head of the tide. The boundary at the 

mouth of each bay or estuary was 

defined by the COLREGS demarcation 

line. COLREGS demarcation lines 

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). Waters inside of 

the 72 COLREGS lines are Inland Rules 

waters and waters outside of the 72 

COLREGS lines are COLREGS waters. 

The final biological report (NMFS 

2009a) provides additional information 

for each specific area. For a copy of the 

report, see ADDRESSES, our Web site at 

http://swr.nmfs.noaa.gov, or the Federal 

eRulemaking Web site at http:// 

www.regulations.gov. For additional 

discussion of the special management 

considerations or protection that may be 

needed for the PCEs, see the description 

of ‘‘Special management considerations 

or protection’’ below. 

Coastal Marine Waters 

Subadult and adult green sturgeon 

spend most of their lives in coastal 

marine and estuarine waters. The best 

available data indicate coastal marine 

waters are important for seasonal 

migrations from southern California to 

Alaska to reach distant foraging and 

aggregation areas. Green sturgeon occur 

primarily within the 110 m (60 fm) 

depth bathymetry (Erickson and 

Hightower 2007). Green sturgeon tagged 

in the Rogue River and tracked in 

marine waters typically occupied the 

water column at 40–70 m depth, but 

made rapid vertical ascents to or near 

the surface, for reasons yet unknown 

(Erickson and Hightower 2007). Green 

sturgeon use of waters shallower than 

110 m (60 fm) depth was confirmed by 

coastal Oregon and Washington bottomtrawl fisheries records indicating that 

most reported locations of green 

sturgeon occurred inside of the 110 m 

depth contour from 1993–2000, despite 

the fact that most of the fishing effort 

occurred in water deeper than 110 m 

(Erickson and Hightower 2007). 

Based on tagging studies of both 

Southern and Northern DPS fish, green 

sturgeon spend a large part of their time 

in coastal marine waters migrating 

between coastal bays and estuaries, 

including sustained long-distance 

migrations of up to 100 km per day 

(pers. comm. with Steve Lindley, 

NMFS, and Mary Moser, NMFS, cited in 

BRT 2005). These seasonal longdistance migrations are most likely 

driven by food resources. Some tagged 

individuals were observed swimming at 

slower speeds and spending several 

days within certain areas, suggesting 

that the individuals were feeding (pers. 

comm. with Steve Lindley, NMFS, and 

Mary Moser, NMFS, February 24–25, 

2008). 

Within the geographical area 

occupied (from the California/Mexico 

border to the Bering Sea, Alaska), the 

CHRT divided the coastal marine waters 

into 12 specific areas between those 

estuaries or bays that had been 

confirmed to be occupied by the 

Southern DPS. The presence of green 

sturgeon and Southern DPS fish within 

each area was based on data from 

tagging and tracking studies, records of 

fisheries captures, and NOAA Observer 

Program records. Tagged Southern DPS 

subadults and adults have been detected 

in coastal marine waters from Monterey 

Bay, CA, to Graves Harbor, AK, 

including the Strait of Juan de Fuca 

(Lindley et al. 2008). Green sturgeon 

bycatch data from NOAA’s West Coast 

Groundfish Observer Program (WCGOP) 

support the telemetry results, showing 

green sturgeon occur from Monterey 

Bay, CA, to Cape Flattery, WA, with the 

greatest catch per unit effort in coastal 

waters from Monterey Bay to Humboldt 

Bay, CA (pers. comm. with Jon Cusick, 

NMFS, August 7, 2008). Because green 

sturgeon were only observed in the 

bottom trawl fishery, there were no data 

on green sturgeon bycatch off southeast 

Alaska, where bottom trawl fishing is 

prohibited. Green sturgeon have, 

however, been captured in bottom trawl 

fisheries along the coast off British 

Columbia. Although critical habitat 

cannot be designated within Canadian 

waters, it is important to note that 

several tagged Southern DPS green 

sturgeon have been detected off Brooks 

Peninsula on the northern tip of 

Vancouver Island, BC (Lindley et al. 

2008). Patterns of telemetry data suggest 

that Southern DPS fish use 

oversummering grounds in coastal bays 

and estuaries along northern California, 

Oregon, and Washington and 

overwintering grounds off central 

California and between Vancouver 

Island, BC, and southeast Alaska 

(Lindley et al. 2008). 

Based on the tagging data and the 

information described above regarding 

green sturgeon use of coastal bays and 

estuaries in California, Oregon, and 

Washington, the CHRT identified the 

coastal marine waters from Monterey 

Bay, CA, to Vancouver Island, BC, as the 

primary migratory/connectivity corridor 

for subadult and adult Southern DPS 

green sturgeon to migrate to and from 

oversummering habitats and 

overwintering habitats. Coastal marine 

waters off southeast Alaska were not 

considered part of the primary 

migratory/connectivity corridor for 

green sturgeon, but were recognized as 

an important area at the northern extent 

of the overwintering range, based on the 

detection of two tagged Southern DPS 

fish off Graves Harbor, AK, (pers. comm. 

with Steve Lindley, NMFS, September 

12, 2007) and green sturgeon bycatch 

data along the northern coast of British 

Columbia (Lindley et al. 2008). For 

marine waters off northwest Alaska, 

data on green sturgeon occurrence 

include the capture of two green 

sturgeon of unknown DPS in bottom 

trawl groundfish fisheries off Kodiak 

Island, AK, and in the Bering Sea off 

Unimak Island, AK, in 2006 (pers. 

comm. with Duane Stevenson, NMFS, 

September 8, 2006). For the area south 

of Monterey Bay, a few green sturgeon 

of unknown DPS have been captured off 

Huntington Beach and Newport (Roedel 

1941), Point Vicente (Norris 1957), 

Santa Barbara, and San Pedro (pers. 

comm. with Rand Rasmussen, NMFS, 

July 18, 2006). More detailed 

information on the specific areas within 

coastal marine waters can be found in 

the final biological report (NMFS 

2009a), available at our Web site at 

http://swr.nmfs.noaa.gov, at the Federal 

eRulemaking Web site at http:// 

www.regulations.gov, or upon request 

(see ADDRESSES). For additional 

discussion of the special management 

considerations or protection that may be 

needed for the PCEs, please see the 

description of ‘‘Special management 

considerations or protection’’ below. 

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.’’ Based on discussions 

with the CHRT and consideration of the 

draft economic report, a number of 

activities were identified that may 

threaten the PCEs such that special 

management considerations or 

protection may be required. Major 

categories of habitat-related activities 

include: (1) Dams; (2) water diversions; 

(3) dredging and disposal of dredged 

material; (4) in-water construction or 

alterations, including channel 

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modifications/diking, sand and gravel 

mining, gravel augmentation, road 

building and maintenance, forestry, 

grazing, agriculture, urbanization, and 

other activities; (5) NPDES permit 

activities and activities generating nonpoint source pollution; (6) power plants; 

(7) commercial shipping; (8) 

aquaculture; (9) desalination plants; (10) 

proposed alternative energy projects; 

(11) liquefied natural gas (LNG) projects; 

(12) bottom trawling; and (13) habitat 

restoration. These activities may have 

an effect on one or more PCE(s) 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 stream/ 

estuarine/marine benthic biota and prey 

resources. The CHRT identified the 

activities occurring within each specific 

area that may necessitate special 

management considerations or 

protection for the PCEs and these are 

described briefly in the following 

paragraphs. These activities are 

documented more fully in the final 

biological report and final economic 

analysis report. 

Table 1 lists the specific areas and the 

river miles or area (square miles) 

covered, the PCEs present, and the 

activities that may affect the PCEs for 

each specific area and necessitate the 

need for special management 

considerations or protection. Several 

activities may affect the PCEs within the 

freshwater rivers, bypasses, and the 

Sacramento-San Joaquin Delta (the 

Delta). Within the rivers, dams and 

diversions pose threats to habitat 

features essential for the Southern DPS 

by obstructing migration, altering water 

flows and temperature, and modifying 

substrate composition within the rivers. 

Pollution from agricultural runoff and 

water returns, as well as from other 

point and non-point sources, adversely 

affects water quality within the rivers, 

bypasses and the Delta. Water 

management practices in the bypasses 

may pose a threat to Southern DPS fish 

residing within or migrating through the 

bypasses. For example, low water levels 

may obstruct passage through the 

bypasses, resulting in stranded fish. 

Within the Delta, activities such as 

dredging, pile driving, water diversion, 

and the discharge of pollutants from 

point and non-point sources can 

adversely affect water quality and prey 

resources, as well as alter the 

composition and distribution of bottom 

substrates within the Delta. 

Several activities were also identified 

that may threaten the PCEs in coastal 

bays and estuaries and may necessitate 

the need for special management 

considerations or protection (Table 1). 

The application of pesticides may 

adversely affect prey resources and 

water quality within the bays and 

estuaries. For example, in Willapa Bay 

and Grays Harbor, the use of carbaryl in 

association with aquaculture operations 

reduces the abundance and availability 

of burrowing ghost shrimp, an 

important prey species for green 

sturgeon (Moser and Lindley 2007; 

Dumbauld et al. 2008). In the San 

Francisco, San Pablo, and Suisun bays, 

several pesticides have been detected at 

levels exceeding national benchmarks 

for the protection of aquatic life 

(Domagalski et al. 2000). These 

pesticides pose a water quality issue 

and may affect the abundance and 

health of prey items as well as the 

growth and reproductive health of 

Southern DPS green sturgeon through 

bioaccumulation. Other activities of 

concern include those that may disturb 

bottom substrates, adversely affect prey 

resources, or degrade water quality 

through re-suspension of contaminated 

sediments. 

Several activities were identified that 

may affect the PCEs within coastal 

marine areas such that the PCEs would 

require special management 

consideration or protection (Table 1). 

The fact that green sturgeon were only 

captured in the bottom trawl fishery 

(pers. comm. with Jon Cusick, NMFS, 

August 7, 2008) provides evidence that 

green sturgeon are associated with the 

benthos and thus exposed to activities 

that disturb the bottom. Of particular 

concern are activities that affect prey 

resources. Prey resources likely include 

species similar to those fed on by green 

sturgeon in bays and estuaries (e.g., 

burrowing ghost shrimp, mud shrimp, 

crangonid shrimp, amphipods, isopods, 

Dungeness crab), and can be affected by: 

commercial shipping and activities 

generating point source pollution 

(subject to NPDES requirements) and 

non-point source pollution that can 

discharge contaminants and result in 

bioaccumulation of contaminants in 

green sturgeon; disposal of dredged 

materials that can bury prey resources; 

and bottom trawl fisheries that can 

disturb the bottom (but may result in 

beneficial or adverse effects on prey 

resources for green sturgeon). In 

addition, petroleum spills from 

commercial shipping activities and 

proposed alternative energy 

hydrokinetic projects may affect water 

quality or hinder the migration of green 

sturgeon along the coast and may 

necessitate special management of the 

PCEs. 

TABLE 1—SUMMARY OF OCCUPIED SPECIFIC AREAS WITHIN FRESHWATER RIVERS, THE BYPASSES, THE SACRAMENTOSAN JOAQUIN DELTA, COASTAL BAYS AND ESTUARIES, AND COASTAL MARINE AREAS (WITHIN 60 FM DEPTH) 

[The river kilometers or surface area covered, the PCEs present, and activities that may affect the PCEs and necessitate the need for special 

management considerations or protection within each area are listed. PCEs: Wd = depth, Fd = food, Fl = water flow, P = passage, S = substrates, Sq = sediment quality, Wq = water quality. Activities: AG = agriculture, AQ = aquaculture, BOT = bottom trawl fishing, CON = inwater construction or alterations, DAM = dams, DESAL = desalination plants, DIV = water diversions, DR = dredging and deposition of 

dredged material, EP = alternative energy hydrokinetic projects, LNG = LNG projects, POLL = point and non-point source pollution, PP = 

power plants, REST = restoration, SHIP = commercial shipping] 

Specific area River km PCEs present Activities 

Freshwater Rivers 

Upper Sacramento River, CA .................... 95 Wd, Fd, Fl, P, S, Sq, Wq .......................... CON, DAM, DIV, POLL, REST 

Lower Sacramento River, CA .................... 294 Wd, Fd, Fl, P, S, Sq, Wq .......................... AG, CON, DAM, DIV, DR, POLL, REST 

Lower Feather River, CA ........................... 109 Wd, Fl, P, Wq ............................................ AG, CON, DAM, DIV, POLL, REST 

Lower Yuba River, CA ............................... 18 Wd, Fl, P, Wq ............................................ AG, CON, DAM, DIV, POLL, REST 

Sacramento-San Joaquin Delta, CA .......... 784 Wd, Fd, Fl, P, S, Sq, Wq .......................... CON, DAM, DIV, DR, POLL, PP, REST, 

SHIP 

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Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 52329 

TABLE 1—SUMMARY OF OCCUPIED SPECIFIC AREAS WITHIN FRESHWATER RIVERS, THE BYPASSES, THE SACRAMENTOSAN JOAQUIN DELTA, COASTAL BAYS AND ESTUARIES, AND COASTAL MARINE AREAS (WITHIN 60 FM DEPTH)—(Continued) 

[The river kilometers or surface area covered, the PCEs present, and activities that may affect the PCEs and necessitate the need for special 

management considerations or protection within each area are listed. PCEs: Wd = depth, Fd = food, Fl = water flow, P = passage, S = substrates, Sq = sediment quality, Wq = water quality. Activities: AG = agriculture, AQ = aquaculture, BOT = bottom trawl fishing, CON = inwater construction or alterations, DAM = dams, DESAL = desalination plants, DIV = water diversions, DR = dredging and deposition of 

dredged material, EP = alternative energy hydrokinetic projects, LNG = LNG projects, POLL = point and non-point source pollution, PP = 

power plants, REST = restoration, SHIP = commercial shipping] 

Specific area Area 

(sq km) PCEs present Activities 

Bypasses and the Delta 

Yolo Bypass, CA ........................................ 289 Fd, P, Sq, Wq ........................................... AG, DAM, DIV, POLL, REST 

Sutter Bypass, CA ..................................... 61 Fd, P, Sq, Wq ........................................... AG, CON, DAM, DIV, POLL, REST 

Coastal Bays and Estuaries 

Elkhorn Slough, CA ................................... 3 Fd, Sq, P, Wq ........................................... CON, DR, POLL, PP 

Suisun Bay, CA .......................................... 131 Wd, Fd, Fl, P, Sq, Wq ............................... CON, DR, POLL, PP, REST, SHIP 

San Pablo Bay, CA .................................... 329 Wd, Fd, P, Sq, Wq .................................... CON, DR, POLL, PP, REST, SHIP 

San Francisco Bay, CA ............................. 700 Wd, Fd, P, Sq, Wq .................................... CON, DR, EP, POLL, PP, REST, SHIP 

Tomales Bay, CA ....................................... 30 Fd, P, Sq, Wq ........................................... AG, AQ, CON, DIV, POLL, REST 

Noyo Harbor, CA ....................................... 0.1 Fd, P, Sq, Wq ........................................... CON, DR, POLL

Eel R. estuary, CA ..................................... 22 Fd, P, Sq, Wq ........................................... CON, POLL 

Humboldt Bay, CA ..................................... 68 Fd, P, Sq, Wq ........................................... AG, AQ, CON, DR, POLL, SHIP 

Klamath/Trinity R. estuary, CA .................. 6 Fd, P, Sq, Wq ........................................... CON, POLL 

Rogue R. estuary, OR ............................... 1 Fd, P, Sq, Wq ........................................... CON, POLL 

Coos Bay, OR ............................................ 48 Fd, P, Sq, Wq ........................................... CON, DR, LNG, POLL, SHIP 

Winchester Bay, OR .................................. 22 Fd, P, Sq, Wq ........................................... CON, POLL 

Siuslaw R. estuary, OR ............................. 1 Fd, P, Sq, Wq ........................................... CON, POLL 

Alsea R. estuary, OR ................................. 2 Fd, P, Sq, Wq ........................................... CON, DIV, POLL 

Yaquina Bay, OR ....................................... 12 Fd, P, Sq, Wq ........................................... CON, DR, POLL 

Tillamook Bay, OR ..................................... 37 Fd, P, Sq, Wq ........................................... CON, DR, POLL 

Nehalem Bay, OR ...................................... 8 Fd, P, Sq, Wq ........................................... CON, DR, POLL 

Lower Columbia river estuary (RKM 0 to 

74).

414 Fd, P, Sq, Wq ........................................... CON, DAM, DR, LNG, POLL, SHIP 

Lower Columbia River (RKM 74 to Bonneville Dam).207 Fd, P, Sq, Wq ........................................... CON, DAM, DR, POLL, SHIP 

Willapa Bay, WA ........................................ 347 Fd, P, Sq, Wq ........................................... AQ, CON, DR, EP, POLL 

Grays Harbor, WA ..................................... 245 Fd, P, Sq, Wq ........................................... AQ, CON, DR, POLL, SHIP 

Puget Sound, WA ...................................... 2,636 Fd, P, Sq, Wq ........................................... AQ, CON, DR, EP, POLL, SHIP 

Coastal Marine Waters Within 60 fm Depth 

CA/Mexico border to Monterey Bay, CA ... 6,534 Fd, P, Wq .................................................. AQ, BOT, CON, DESAL, DR, EP, LNG, 

POLL, PP 

Monterey Bay, CA, to San Francisco Bay, 

CA.

3,868 Fd, P, Wq .................................................. BOT, CON, DESAL, DR, EP, LNG, POLL, 

PP 

San Francisco Bay, CA, to Humboldt Bay, 

CA.

5,385 Fd, P, Wq .................................................. BOT, DR, EP, LNG, POLL, PP 

Humboldt Bay, CA, to Coos Bay, OR ....... 4,865 Fd, P, Wq .................................................. BOT, DR, EP, LNG, POLL, PP 

Coos Bay, OR, to Winchester Bay, OR .... 463 Fd, P, Wq .................................................. BOT, DR, EP, LNG 

Winchester Bay, OR, to Columbia R. estuary.6,789 Fd, P, Wq .................................................. BOT, DR, EP, LNG, POLL 

Columbia R. estuary to Willapa Bay, WA .. 1,167 Fd, P, Wq .................................................. BOT, DR, EP, LNG 

Willapa Bay, WA, to Grays Harbor, WA .... 1,087 Fd, P, Wq .................................................. BOT, DR, EP, LNG 

Grays Harbor, WA, to WA/Canada border 4,924 Fd, P, Wq .................................................. BOT, DR, EP, LNG, POLL 

Strait of Juan de Fuca, WA ....................... 1,352 Fd, P, Wq .................................................. BOT, DR, EP, LNG, POLL 

Canada/AK border to Yakutat Bay, AK ..... 53,577 Fd, P, Wq .................................................. DR, EP, LNG, POLL, SHIP 

Coastal Alaskan waters northwest of Yakutat Bay, AK, including the Bering Sea 

to the Bering Strait.

974,505 Fd, P, Wq .................................................. BOT, DR, EP, LNG, POLL, SHIP 

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.’’ 

The CHRT considered that a critical 

habitat designation limited to presently 

occupied areas may not be sufficient for 

conservation, because such a 

designation would not address one of 

the major threats to the population 

identified by the Status Review Team— 

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52330 Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 

the concentration of spawning into one 

spawning river (i.e., the Sacramento 

River), and, as a consequence, the risk 

of extirpation due to a catastrophic 

event. 

In the proposed rule, we described 

seven unoccupied areas identified by 

the CHRT in the Central Valley, 

California that may provide additional 

spawning habitat for the Southern DPS 

of green sturgeon. These seven areas 

include areas behind dams that are 

currently inaccessible to green sturgeon 

and areas below dams that are not 

currently occupied by green sturgeon. 

The areas include: (1) Reaches upstream 

of Oroville Dam on the Feather River; 

(2) reaches upstream of Daguerre Dam 

on the Yuba River; (3) areas on the Pit 

River upstream of Keswick and Shasta 

dams; (4) areas on the McCloud River 

upstream of Keswick and Shasta dams; 

(5) areas on the upper Sacramento River 

upstream of Keswick and Shasta dams; 

(6) reaches on the American River; and 

(7) reaches on the San Joaquin River. We 

did not propose to designate any of 

these unoccupied areas, however, 

because we lacked sufficient data to 

determine whether any of these areas 

actually are essential for conservation of 

the Southern DPS. Instead, we solicited 

additional information from the public 

to inform the CHRT’s evaluation of 

these areas, particularly regarding: 

(1) The historical use of the currently 

unoccupied areas by green sturgeon; 

and (2) the likelihood that habitat 

conditions within these unoccupied 

areas will be restored to levels that 

would support green sturgeon presence 

and spawning (e.g., restoration of fish 

passage and sufficient water flows and 

water temperatures). 

As described above in the Responses 

to Comments section, several comments 

were received supporting or opposing 

the designation of unoccupied areas, but 

no substantive information was 

provided to support designation of these 

areas. The CHRT maintained its 

determination that these seven 

unoccupied areas may be essential, but 

there is insufficient data at this time to 

determine whether any of these areas 

actually are essential to the 

conservation of the Southern DPS. This 

final rule does not designate any 

unoccupied areas as critical habitat for 

the Southern DPS. NMFS encourages 

additional study of green sturgeon use 

of these areas and actions that would 

protect, conserve, and/or enhance 

habitat conditions for the Southern DPS 

(e.g., habitat restoration, removal of 

dams, and establishment of fish passage) 

within these areas. Additional 

information would inform our 

consideration of these areas for future 

revisions to the critical habitat 

designation as well as future recovery 

planning for the Southern DPS. 

Military Lands 

Under the Sikes Act of 1997 (Sikes 

Act) (16 U.S.C. 670a), ‘‘each military 

installation that includes land and water 

suitable for the conservation and 

management of natural resources’’ is 

required to develop and implement an 

integrated natural resources 

management plan (INRMP). An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found there. Each INRMP includes: An 

assessment of the ecological needs on 

the military installation, including the 

need to provide for the conservation of 

listed species; a statement of goals and 

priorities; a detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and a monitoring and adaptive 

management plan. Each INRMP must, to 

the extent appropriate and applicable, 

provide for fish and wildlife 

management, fish and wildlife habitat 

enhancement or modification, wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife and enforcement of 

applicable natural resource laws. 

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.’’ 

During the development of the 

proposed rule, we contacted the DOD 

and requested information on all 

INRMPs for DOD facilities that overlap 

with the specific areas considered for 

designation as critical habitat and that 

might provide benefits to green 

sturgeon. The INRMPs for one facility in 

California (Camp San Luis Obispo) and 

for nine facilities in Puget Sound, WA, 

were provided to us. Of these, the 

following six facilities with INRMPs 

were determined to overlap with the 

specific areas under consideration for 

critical habitat designation (all located 

in Puget Sound, WA): (1) Bremerton 

Naval Hospital; (2) Naval Air Station, 

Everett; (3) Naval Magazine Indian 

Island; (4) Naval Fuel Depot, 

Manchester; (5) Naval Undersea Warfare 

Center, Keyport; and (6) Naval Air 

Station, Whidbey Island. We reviewed 

the INRMPs for measures that would 

benefit green sturgeon. The INRMPs for 

four of the facilities (Bremerton Naval 

Hospital, NAS Everett, Naval Fuel Depot 

(Manchester), and Naval Magazine 

(Indian Island)) contain measures for 

listed salmon and bull trout that provide 

benefits for green sturgeon. The INRMPs 

for the two remaining facilities (NAS 

Whidbey Island and NUWC Keyport) do 

not contain specific requirements for 

listed salmon or bull trout, but also 

include measures that benefit fish 

species, including green sturgeon. 

Examples of the types of benefits 

include measures to control erosion, 

protect riparian zones and wetlands, 

minimize stormwater and construction 

impacts, and reduce contaminants. 

Based on these benefits provided for 

green sturgeon under the INRMPs, we 

determined that the areas within these 

six DOD facilities in Puget Sound, WA, 

were not eligible for designation as 

critical habitat. 

During the public comment period, 

the DOD provided the INRMPs for two 

additional facilities that may overlap 

with the areas considered for 

designation as critical habitat: (1) Mare 

Island U.S. Army Reserve Center in 

Mare Strait, San Pablo Bay, CA; and (2) 

Military Ocean Terminal Concord 

(MOTCO), located in Suisun Bay, CA. 

Upon review of the INRMPs for each 

facility and correspondence with DOD 

contacts, we determined that: (1) The 

INRMP for the Mare Island U.S. Army 

Reserve Center did not provide adequate 

protection for the Southern DPS of green 

sturgeon; and (2) the MOTCO facilities 

do not overlap with the specific area 

considered for designation as critical 

habitat in Suisun Bay. Thus, neither 

facility was considered ineligible for 

designation under section 4(a)(3)(B)(i) of 

the ESA (however, see ‘‘Exclusions 

based on impacts on national security’’ 

below). 

Application of ESA Section 4(b)(2) 

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

Secretary to consider the economic, 

national security, and any other relevant 

impacts of designating any particular 

area as critical habitat. Any particular 

area may be excluded from critical 

habitat if the Secretary determines that 

the benefits of excluding the area 

outweigh the benefits of designating the 

area. The Secretary may not exclude a 

particular area from designation if 

exclusion will result in the extinction of 

the species. Because the authority to 

exclude is discretionary, exclusion is 

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Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 52331 

not required for any areas. In this final 

designation, the Secretary has applied 

his statutory discretion to exclude 14 

occupied specific areas, 5 DOD areas, 

and Indian lands from the critical 

habitat designation where the benefits of 

exclusion outweigh the benefits of 

designation. 

The first step in conducting the ESA 

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

‘‘particular areas’’ to be analyzed. 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 identified in the previous sections 

pursuant to section 3(5)(A) of the ESA 

(e.g., the upper Sacramento River, the 

lower Sacramento River, the Delta, etc.). 

Delineating the ‘‘particular areas’’ as the 

same units as the ‘‘specific areas’’ 

allowed us to most effectively consider 

the conservation value of the different 

areas when balancing conservation 

benefits of designation against economic 

benefits of exclusion. Delineating 

particular areas based on impacts on 

national security or other relevant 

impacts (e.g., impacts on Indian lands) 

was based on land ownership or control 

(e.g., land controlled by the DOD within 

which national security impacts may 

exist, or Indian lands). No other relevant 

impacts were identified during the 

public comment period. 

The next step in the ESA section 

4(b)(2) analysis involves identification 

of the impacts of designation (i.e., the 

benefits of designation and the benefits 

of exclusion). We then weigh the 

benefits of designation against the 

benefits of exclusion to identify areas 

where the benefits of exclusion 

outweigh the benefits of designation. 

These steps and the resulting list of 

areas excluded from designation are 

described in detail in the sections 

below. 

Impacts of Designation 

The primary impact of a critical 

habitat designation stems from the 

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

ESA that Federal agencies insure 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 

also ensure their actions are not likely 

to jeopardize the species’ continued 

existence. One incremental impact of 

designation is the extent to which 

Federal agencies modify their actions to 

insure their actions are not likely to 

adversely modify the critical habitat of 

the species, beyond any modifications 

they would make because of the listing 

and the jeopardy requirement. When a 

modification would be required due to 

impacts to both the species and critical 

habitat, the impact of the designation 

may be co-extensive with the ESA 

listing of the species. Additional 

impacts of designation include State 

and local protections that may be 

triggered as a result of the designation 

and the benefits from educating the 

public about the importance of each 

area for species conservation. The 

benefits of designation were evaluated 

by considering the conservation value of 

each occupied specific area to the 

Southern DPS. In the ‘‘Benefits of 

Designation’’ section below, we discuss 

how the conservation values of the 

specific areas were assessed. 

In determining the impacts of 

designation, we focused on the 

incremental change in Federal agency 

actions as a result of the critical habitat 

designation and the adverse 

modification prohibition, beyond the 

changes predicted to occur as a result of 

listing and the jeopardy provision. In 

recent critical habitat designations for 

salmon and steelhead and for Southern 

Resident killer whales, the ‘‘coextensive’’ impact of designation was 

considered 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)) (NMCA). The ‘‘coextensive’’ impact of designation 

considers the predicted change in the 

Federal agency action resulting from the 

critical habitat designation and the 

adverse modification prohibition 

(whereby the action’s effect on the PCEs 

and the value of the habitat is analyzed), 

even if the same change would result 

from application of the listing and the 

jeopardy provision (whereby the 

action’s effect on the species itself and 

individual members of the species is 

analyzed). Shortly after the NMCA 

decision, however, the Court of Appeals 

for the Fifth Circuit (Sierra Club v. U.S. 

Fish and Wildlife Service, 243 F.3d 434 

(5th Cir. 2001) (Sierra Club) and the 

Court of Appeals for the Ninth Circuit 

(Gifford Pinchot Task Force v. FWS, 378 

F.3d 1059 (9th Cir. 2004)) (Gifford 

Pinchot) invalidated our regulatory 

definition of ‘‘adverse modification’’ of 

critical habitat. Following that decision, 

a District Court in Washington, DC 

issued a decision involving the 

USFWS’s critical habitat designation for 

the piping plover (Cape Hatteras Access 

Preservation Alliance v. Norton, 344 F. 

Supp. 2d 1080 (D.D.C. 2004)) (Cape 

Hatteras). In that decision, the Court 

reasoned that the impact of a regulation 

should be based on a comparison of the 

world with and without the action, and 

that the effects of listing and the 

jeopardy provision should not be 

considered as part of the impacts of a 

designation in the ESA 4(b)(2) analysis 

for a critical habitat designation. 

Consistent with the Cape Hatteras 

decision, we estimated and analyzed the 

incremental impacts of designation, 

beyond the impacts that would result 

from the listing and jeopardy provision. 

Uncertainties exist with regard to future 

management actions associated with 

green sturgeon critical habitat, because 

of the short consultation history for 

green sturgeon and overlap with 

protections provided under the listing. 

Due to these uncertainties, it was 

difficult to exclude potential impacts 

that may already occur under the 

baseline (i.e., protections already 

afforded green sturgeon under its listing 

or under other Federal, State, and local 

regulations, such as protections for 

other listed species). Thus, the analysis 

included some impacts that would have 

occurred under the baseline regardless 

of the critical habitat rule. As such, the 

impacts are more correctly characterized 

as green sturgeon conservation impacts 

as opposed to exclusively incremental 

impacts of the critical habitat 

designation. That is, the impacts 

analyzed are those associated with the 

conservation of green sturgeon critical 

habitat, some of which may overlap 

with impacts resulting from the baseline 

protections. Our methods for estimating 

the impacts of designation for economic 

impacts, impacts on national security, 

and impacts on Indian lands are 

summarized in the sections below titled 

‘‘Determining the Benefits of Excluding 

Particular Areas.’’ 

Because section 4(b)(2) requires a 

balancing of competing considerations, 

we must uniformly consider impacts 

and benefits. We recognize that 

excluding an area from designation will 

not likely avoid all of the impacts 

because the jeopardy provision under 

section 7 still applies. Similarly, much 

of the section 7 benefit would still apply 

as well. 

A final economic analysis report 

(Indecon 2009) describes in more detail 

the types of activities that may be 

affected by the designation, the 

potential range of changes we might 

seek in those actions, and the estimated 

economic impacts that might result from 

such changes. A final biological report 

(NMFS 2009a) describes in detail the 

CHRT’s evaluation of the conservation 

value of each specific area and reports 

the final conservation value ratings. The 

final ESA section 4(b)(2) report (NMFS 

2009c) describes the analysis of all 

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52332 Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 

impacts and the weighing of the benefits 

of designation against the benefits of 

exclusion for each area. All of these 

reports are available on the NMFS 

Southwest Region Web site at http:// 

swr.nmfs.noaa.gov/, on the Federal 

E–Rulemaking Web site at http:// 

www.regulations.gov, or upon request 

(see ADDRESSES). 

Benefits of Designation 

The primary benefit of designation is 

the protection afforded under section 7 

of the ESA, requiring all Federal 

agencies to insure their actions are not 

likely to destroy or adversely modify 

designated critical habitat. This is 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 provide education and 

outreach benefits by informing the 

public about areas and features 

important to species conservation. By 

delineating areas of high conservation 

value, the designation may help focus 

and contribute to conservation efforts 

for green sturgeon and their habitats. 

These benefits are not directly 

comparable to the costs of designation 

for purposes of conducting the ESA 

section 4(b)(2) analysis described below. 

Ideally, the benefits should be 

monetized. With sufficient information, 

it may be possible to monetize the 

benefits of a critical habitat 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 that would support 

such an analysis for green sturgeon (e.g., 

estimates of the monetary value 

associated with conserving the PCEs 

within areas designated as critical 

habitat, or with education and outreach 

benefits). As an alternative approach, 

we used the CHRT’s conservation value 

ratings to represent the qualitative 

conservation benefits of designation for 

each of the particular areas identified as 

critical habitat for the Southern DPS 

(see the section titled Methods for 

Assessment of Specific Areas). These 

conservation value ratings represent the 

estimated incremental benefit of 

designating critical habitat for the 

species. In evaluating the conservation 

value of each specific area, the CHRT 

focused on the habitat features and 

functions provided by each area and the 

importance of protecting the habitat for 

the overall conservation of the species. 

The final biological report (NMFS 

2009a) sets forth detailed information 

on the qualitative conservation benefits 

of the specific areas proposed for 

designation, which is summarized 

briefly in the following paragraphs. 

Methods for Assessment of Specific 

Areas 

After identifying the PCEs, the 

geographical area occupied, and the 

specific areas, the CHRT scored and 

rated the relative conservation value of 

each occupied specific area. The 

conservation value ratings provided an 

assessment of the relative importance of 

each specific area to the conservation of 

the Southern DPS. Areas rated as 

‘‘High’’ were deemed to have a high 

likelihood of promoting the 

conservation of the Southern DPS. Areas 

rated as ‘‘Medium’’ or ‘‘Low’’ were 

deemed to have a moderate or low 

likelihood of promoting the 

conservation of the Southern DPS, 

respectively. The CHRT considered 

several factors in assigning the 

conservation value ratings, including 

the PCEs present, the condition of the 

PCEs, the life stages and habitat 

functions supported, and the historical, 

present, and potential future use of the 

area by green sturgeon. These factors 

were scored by the CHRT and summed 

to generate a total score for each specific 

area, which was considered in the 

CHRT’s evaluation and assignment of 

the final conservation value ratings. 

The CHRT also considered the 

importance of connectivity among 

habitats in order for green sturgeon to 

access upstream spawning sites in the 

Sacramento River and oversummering 

and overwintering habitats in coastal 

bays and estuaries. In addition to 

providing high-value habitat, the San 

Francisco, San Pablo, and Suisun bays 

and the Delta contain high-value 

connectivity corridors for green 

sturgeon migration to and from 

upstream spawning grounds in the 

Sacramento River. Specific areas in 

coastal marine waters may provide low 

to medium value habitat for green 

sturgeon based on the PCEs present, but 

contain high-value connectivity 

corridors for green sturgeon migrating 

out of the San Francisco Bay system to 

bays and estuaries in California, Oregon, 

Washington, and Canada. The CHRT 

recognized that even within an area of 

Low to Medium conservation value, the 

presence of a connectivity corridor that 

provides passage to high value areas 

would warrant increasing the overall 

conservation value of the area to a High. 

To account for this, a separate 

conservation value rating was assigned 

to areas containing a connectivity 

corridor, equal to the rating of the 

highest-rated area for which it served as 

a connectivity corridor. 

Members of the CHRT were then 

asked to re-examine the conservation 

value ratings for the specific areas 

where the presence of Southern DPS 

green sturgeon is likely (based on the 

presence of Northern DPS fish or green 

sturgeon of unknown origin), but not 

confirmed. These areas include the 

coastal marine waters within 60 fm 

depth from the California/Mexico 

border to Monterey Bay, CA, and from 

Yakutat Bay, AK, to the Bering Strait 

(including the Bering Sea), as well as 

the following coastal bays and estuaries: 

Elkhorn Slough, Tomales Bay, Noyo 

Harbor, the Eel River estuary, and the 

Klamath/Trinity River estuary in 

California; and the Rogue River estuary, 

Siuslaw River estuary, Alsea River 

estuary, Tillamook Bay, and Nehalem 

Bay in Oregon. Although these areas are 

considered occupied for the reasons 

provided above, the CHRT recognized 

that a lack of documented evidence for 

Southern DPS presence (perhaps 

because of the lack of monitoring or 

sampling effort within these areas) is 

indicative of a high degree of 

uncertainty as to the extent to which 

Southern DPS fish use these areas. In 

most of these areas, there are also few 

observations of green sturgeon both 

historically and presently. The CHRT 

scored all of these areas, except for 

Tomales Bay, Tillamook Bay, and 

Nehalem Bay, much lower than other 

areas, reflecting the CHRT’s assessment 

that these areas contribute relatively 

little to the conservation of the species. 

For the bays and estuaries, this was 

based on the limited area and depth to 

support green sturgeon migration and 

feeding, as well as the low use by green 

sturgeon. Tomales Bay was given a 

higher score and rated as ‘‘Medium,’’ 

because it is a large, deep embayment 

providing good habitat for feeding by 

green sturgeon and is likely the first 

major bay to be encountered by 

subadults making their first migration 

into marine waters. Tillamook Bay and 

Nehalem Bay were both rated as 

‘‘Medium’’ based on relatively high 

green sturgeon catch data for these areas 

(ODFW 2009a, b) and information 

indicating good habitat conditions for 

green sturgeon. Green sturgeon are more 

commonly observed in the Eel River 

estuary, Klamath/Trinity River estuary, 

and Rogue River estuary, but are 

presumed to primarily belong to the 

Northern DPS. Again, there is great 

uncertainty as to the extent of use of 

these estuaries by Southern DPS fish. 

The coastal marine waters south of 

Monterey Bay, CA, and northwest of 

Yakutat Bay, AK, are outside of the 

connectivity corridor identified by the 

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CHRT and also lack confirmed Southern 

DPS presence. Although the CHRT did 

not include the area in southeast Alaska 

up to Yakutat Bay, AK, as part of the 

primary migratory corridor, this area 

was rated as ‘‘Medium’’ because it 

represents the northern extent of the 

area containing important overwintering 

grounds for Southern DPS green 

sturgeon (Lindley et al. 2008). Based on 

this information, the CHRT agreed that 

the conservation value ratings should be 

reduced by one rating for these specific 

areas where the presence of the 

Southern DPS is likely, but not 

confirmed. This necessitated the 

creation of a fourth conservation value 

rating (‘‘Ultra-low’’). Those specific 

areas that initially received a ‘‘Low’’ 

rating were assigned a final 

conservation value rating of ‘‘Ultralow,’’and those that initially received a 

‘‘Medium’’ rating were assigned a final 

conservation value rating of ‘‘Low.’’ 

None of the specific areas where the 

presence of Southern DPS fish was 

likely but not confirmed had received a 

rating of ‘‘High.’’ Yaquina Bay, OR, was 

one of the areas rated as ‘‘Ultra-Low’’ in 

the proposed rule, but additional 

information was provided confirming 

the presence of Southern DPS green 

sturgeon in Yaquina Bay (pers. comm. 

with Dan Erickson, ODFW, September 

3, 2008), and the conservation value 

rating for this area remained a ‘‘Low’’. 

The final conservation ratings and the 

justifications for each specific area are 

summarized in the final biological 

report (NMFS 2009a; available via our 

Web site at http://swr.nmfs.noaa.gov, 

via the Federal eRulemaking Web site at 

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

request—see ADDRESSES). The CHRT 

recognized that even within a rating 

category, variation exists. For example, 

freshwater riverine areas rated as 

‘‘High’’ may be of greater conservation 

value to the species than coastal marine 

areas with the same rating. This 

variation was captured in the comments 

provided by the CHRT members for 

each specific area. The final biological 

report describes in detail the evaluation 

process used by the CHRT to assess the 

specific areas, as well as the biological 

information supporting the CHRT’s 

assessment. 

Determining the Benefits of Excluding 

Particular Areas: Economic Impacts 

To determine the benefits of 

excluding particular areas from 

designation, we first considered the 

Federal activities that may be subject to 

an ESA section 7 consultation and the 

range of potential changes that may be 

required for each of these activities 

under the adverse modification 

provision, regardless of whether those 

changes may also be required under the 

jeopardy provision. These consultation 

and project modification costs represent 

the economic benefits of excluding each 

particular area (that is, the economic 

costs that would be avoided if an area 

were excluded from the designation). 

The CHRT identified and examined 

the types of Federal activities that occur 

within each of the specific areas and 

that may affect Southern DPS green 

sturgeon and the critical habitat (also 

see the section on ‘‘Special Management 

Considerations or Protection’’). Because 

the Southern DPS was recently listed 

under the ESA in 2006, we lack an 

extensive consultation history. Thus, 

the CHRT relied on NMFS’ experience 

in conducting ESA section 7 

consultations and their best professional 

judgment to identify the types of 

Federal activities that might trigger a 

section 7 consultation. The best 

available information was used to 

predict the number of these types of 

activities within the areas considered 

for designation as critical habitat. 

However, we recognize that some of 

these activities, in particular alternative 

energy hydrokinetic projects, are 

relatively new and anticipated to 

increase in number in the future. 

Additional information was received 

regarding proposed LNG and alternative 

energy hydrokinetic projects within the 

specific areas considered for designation 

as critical habitat and was included in 

the final economic analysis report. In 

the face of remaining uncertainties, 

however, a conservative approach was 

taken in the economic analysis by 

assuming that all of the proposed 

projects would be completed. Thus, the 

number of activities and their estimated 

costs are likely overestimated, because 

we do not expect all of the proposed 

projects to be completed. 

Next, the range of modifications we 

might seek in these activities to avoid 

destroying or adversely modifying 

critical habitat of the Southern DPS was 

considered. Because of the limited 

consultation history, we relied on 

information from consultations 

conducted for salmon and steelhead, 

comments received during green 

sturgeon public scoping workshops 

conducted for the development of 

protective regulations, and information 

from green sturgeon and section 7 

biologists to determine the types of 

activities and potential range of 

changes. We recognize that differences 

exist between the biology of Southern 

DPS green sturgeon and listed 

salmonids, but that there is also overlap 

in the types of habitat they use, their life 

history strategies and their behavior. As 

discussed in the final economic analysis 

report (Indecon 2009), the occupied 

geographical range and the specific 

areas considered for designation as 

critical habitat for the Southern DPS 

largely overlaps with the distribution 

and designated critical habitat of listed 

salmonids. Every consultation of the 

approximately 49 completed formal 

consultations addressing impacts on 

green sturgeon in California, Oregon, 

and Washington through May 2009 also 

address impacts to one or more listed 

salmon or steelhead species. In several 

consultations, the recommended 

conservation measures to address effects 

on green sturgeon and listed salmonids 

were the same or similar. It is important 

to note, however, that differences do 

exist between green sturgeon and 

salmonids that may require different 

conservation measures. For example, 

juvenile green sturgeon occupy the 

Delta and the San Francisco, San Pablo, 

and Suisun bays in California 

throughout all months of the year, for as 

long as one to three years before they 

disperse into marine waters. In contrast, 

the presence of juvenile salmon or 

steelhead in the Delta and bays is 

limited to certain months of the year. In 

addition, the feeding behavior and 

spawning requirements of green 

sturgeon subadults and adults may 

differ from that of listed salmonids. For 

example, subadult and adult green 

sturgeon make extensive use of summer 

feeding habitats in coastal estuaries in 

California, Oregon, and Washington. 

During their spawning migrations, adult 

green sturgeon likely have different 

water flow, temperature, and passage 

requirements compared to listed 

salmonids. We recognized these 

differences, but, given the limited 

amount of direct information regarding 

the types of modifications we might 

seek to avoid adverse modification of 

Southern DPS critical habitat, we also 

recognized that the information 

available for analog species (i.e., listed 

salmonids) was the best information 

available to guide our decision-making. 

As demonstrated by our recent 

consultation history, the conservation 

measures implemented for green 

sturgeon in the early stages of its listing 

history are likely to be the same or 

similar to those implemented for listed 

salmonids. Additional information on 

differences in the habitat needs, life 

history strategies, and behavior of these 

species may allow us to refine our 

analysis. 

A number of uncertainties exist in 

this stage of the analysis. First, we 

recognize there is uncertainty regarding 

the potential effects of activities on 

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green sturgeon and the potential 

conservation measures that may be 

required, particularly for relatively new 

activities like LNG projects and 

alternative energy hydrokinetic projects. 

Second, as is the case for all of the 

categories of activities identified, the 

project-specific nature of ESA section 7 

consultations creates another level of 

uncertainty that likely results in over- or 

under-estimation of the economic 

impacts. Finally, we attempted to focus 

on the incremental benefits of the 

critical habitat designation beyond the 

benefits already afforded to the 

Southern DPS under its listing and 

under other Federal, State, and local 

regulations. To do this, we tried to 

provide information on whether each 

impact is more closely associated with 

adverse modification or with jeopardy. 

It is difficult, however, to isolate 

conservation efforts resulting solely 

from critical habitat. Thus, as described 

above, the estimated economic impacts 

are more correctly characterized as 

green sturgeon conservation impacts 

rather than exclusively incremental 

impacts of the designation. In other 

words, the impacts analyzed are those 

associated with the conservation of 

green sturgeon critical habitat, some of 

which may overlap with impacts 

resulting from the baseline protections. 

We were able to monetize estimates of 

the economic impacts resulting from a 

critical habitat designation; however, 

because of the limited consultation 

history for green sturgeon and 

uncertainty about specific management 

actions likely to be required under a 

consultation, there was a great degree of 

uncertainty in the cost estimates for 

some specific areas. Several factors were 

considered in developing the estimated 

economic impacts, including the level 

of economic activity within each area, 

the level of baseline protection afforded 

to green sturgeon by existing regulations 

for each economic activity within each 

area, and the estimated economic 

impact (in dollars) associated with each 

activity type. The baseline included the 

protections afforded to green sturgeon 

by the listing and jeopardy provision, as 

well as protections provided for salmon 

and steelhead and their critical habitat 

including existing laws, regulations, and 

initiatives. Estimates of the economic 

costs were based on project 

modifications that might be required 

during consultation to avoid the 

destruction or adverse modification of 

critical habitat (see final economic 

analysis report for additional details). 

To focus on the incremental impacts of 

the critical habitat designation, the 

economic cost estimates were 

multiplied by a probability score 

(assigned for each specific area and 

economic activity type), representing 

the probability that green sturgeon 

critical habitat is a primary driver for 

the conservation effort. The final 

economic analysis report (Indecon 2009) 

provides detailed information on the 

economic impacts of designating 

particular areas as critical habitat, as 

well as consultation costs anticipated as 

a result of this proposed designation. 

Exclusions Based on Economic Impacts 

A final ESA section 4(b)(2) report 

(NMFS 2009c) describes in detail our 

approach to weighing the benefit of 

designation against the economic 

benefit of exclusion. The results of our 

analysis contained in this report are 

summarized below. 

The benefits associated with species 

conservation are not directly 

comparable to the economic benefit that 

would result if an area were excluded 

from designation. We had sufficient 

information to monetize the economic 

benefits of excluding an area, but were 

not able to monetize the conservation 

benefits of designating an area. Thus, for 

each area we compared the qualitative 

final conservation value against the 

monetary economic impact estimate to 

determine if the cost estimate exceeded 

a threshold dollar amount. To make this 

comparison, we selected dollar 

thresholds for each conservation value 

rating above which the potential 

economic impact associated with a 

specific area appeared to outweigh the 

potential conservation benefits of 

designating that area. We determined 

these dollar thresholds by first 

examining the range in economic 

impacts across all specific areas within 

a conservation value rating category and 

then determining where the breakpoint 

occurred between relatively low 

economic impacts and relative high 

economic impacts. We then selected a 

dollar value within the range of that 

breakpoint as the threshold at which the 

economic impacts may outweigh the 

benefits of designation for the area. 

Using this method, we developed and 

applied four decision rules to identify 

areas eligible for exclusion: (1) All areas 

with a conservation value rating of 

‘‘High’’ were not eligible for exclusion, 

because we determined that the 

estimated economic benefits of 

exclusion for these areas would not 

outweigh the conservation benefits of 

designation, based on the threatened 

status of the Southern DPS of green 

sturgeon and the likelihood that 

exclusion of areas with a High 

conservation value would significantly 

impede conservation of the species; (2) 

areas with a conservation value rating of 

‘‘Medium’’ were potentially eligible for 

exclusion if the estimated economic 

impact exceeded $100,000; (3) areas 

with a conservation value rating of 

‘‘Low’’ were potentially eligible for 

exclusion if the estimated economic 

impact exceeded $10,000; and (4) areas 

with a conservation value rating of 

‘‘Ultra-low’’ were potentially eligible for 

exclusion if the estimated economic 

impact exceeded $0 (see final ESA 

section 4(b)(2) Report for additional 

details). These dollar thresholds do not 

represent an objective judgment that 

Medium-value areas are worth no more 

than $100,000, Low-value areas are 

worth no more than $10,000, or UltraLow value areas are worth $0. The ESA 

emphasizes that the decision to exclude 

is discretionary. Thus, the economic 

impact level at which the economic 

benefits of exclusion outweigh the 

conservation benefits of designation is a 

matter of discretion and depends on the 

policy context. For critical habitat, the 

ESA provides NMFS the discretion to 

consider exclusions where the benefits 

of exclusion outweigh the benefits of 

designation, as long as exclusion does 

not result in extinction of the species. In 

this policy context, we selected dollar 

thresholds representing the levels at 

which the economic impact associated 

with a specific area may outweigh the 

conservation benefits of designating that 

area. These dollar thresholds and 

decision rules provided a relatively 

simple process to identify, in a limited 

amount of time, specific areas 

warranting consideration for exclusion. 

Based on this analysis, we identified 

18 occupied areas as eligible for 

exclusion, including Medium, Low, and 

Ultra-Low conservation value areas. The 

Medium conservation value areas 

eligible for exclusion included: the Yolo 

Bypass, lower Feather River, and lower 

Yuba River in California; Coos Bay in 

Oregon; Puget Sound in Washington; 

and coastal marine waters within 60 fm 

depth from the U.S.-Alaska/Canada 

border to Yakutat Bay, AK. The Low 

conservation value areas eligible for 

exclusion included: Tomales Bay in 

California; Tillamook Bay in Oregon; 

and the lower Columbia River (from 

RKM 74 to the Bonneville Dam at RKM 

146). The Ultra-Low conservation value 

areas eligible for exclusion included: 

Elkhorn Slough, Noyo Harbor, Eel River 

estuary, and Klamath/Trinity River 

estuary in California; the Rogue River 

estuary, Siuslaw River estuary, and 

Alsea River estuary in Oregon; and 

coastal marine waters within 60 fm 

depth from the CA-Mexico border to 

Monterey Bay, CA, and northwest 

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Yakutat Bay, AK, to the Bering Strait 

(including the Bering Sea). All of these 

areas were eligible for exclusion in the 

proposed rule, except for the Yolo 

Bypass, lower Yuba River, and the lower 

Columbia River. 

We then presented these 18 areas to 

the CHRT for their review. To further 

characterize the conservation benefit of 

designation for each area, we asked the 

CHRT to determine whether excluding 

any of the areas eligible for exclusion 

would significantly impede 

conservation of the Southern DPS. The 

CHRT considered this question in the 

context of all of the areas eligible for 

exclusion, as well as the information 

they had developed in determining the 

conservation value ratings. If the CHRT 

determined that exclusion of an area 

would significantly impede 

conservation of the Southern DPS, the 

conservation benefits of designation 

were increased one level in the 

weighing process. 

The CHRT determined, and we 

concur, for the reasons described by the 

CHRT, that exclusion of the following 

12 specific areas eligible for exclusion 

would not significantly impede 

conservation or result in extinction of 

the species: Elkhorn Slough, Tomales 

Bay, Noyo Harbor, Eel River estuary, 

and Klamath/Trinity River estuary in 

California; the Rogue River estuary, 

Siuslaw River estuary, Alsea River 

estuary, and Tillamook Bay in Oregon; 

the lower Columbia River (from RKM 74 

to the Bonneville Dam); and coastal 

marine waters within 60 fm depth from 

the U.S.-California/Mexico border to 

Monterey Bay, CA, and northwest of 

Yakutat Bay, AK, to the Bering Strait 

(including the Bering Sea). The CHRT 

based their determination on the fact 

that each of these 12 specific areas was 

assigned a Low or Ultra-low final 

conservation value and Southern DPS 

green sturgeon have not been 

documented to use these areas 

extensively. The CHRT recognized that 

the apparent low use by Southern DPS 

green sturgeon of these bays and 

estuaries listed above may be because: 

(1) Most are small systems compared to 

other bays and estuaries that are used 

extensively and consequently received 

higher conservation ratings; and (2) 

Southern DPS fish do not appear to use 

Northern DPS spawning systems 

extensively. In addition, few green 

sturgeon (of unknown DPS) have been 

observed in the coastal marine waters 

within 60 fm depth from the U.S.- 

California/Mexico border to Monterey 

Bay, CA, and northwest of Yakutat Bay, 

AK, to the Bering Strait (including the 

Bering Sea). For these reasons, the 

CHRT concluded that excluding the 

bays, estuaries, and coastal marine areas 

mentioned above from the designation 

would not significantly impede 

conservation of the Southern DPS nor 

result in extinction of the species. Thus, 

these 12 areas are excluded from the 

critical habitat designation for the 

Southern DPS. We recognize that the 

lack of documented evidence for 

Southern DPS presence in these areas 

may be because these areas are not 

adequately monitored for green 

sturgeon. We encourage directed 

surveys to be conducted in these areas 

to gather more information on green 

sturgeon presence and use. For example, 

the lower Columbia River (from RKM 74 

to Bonneville Dam) may have been a 

historically important area for green 

sturgeon prior to the hydrographical 

changes that have occurred in the river 

and has the potential for being an 

important area in certain water years. 

Monitoring of green sturgeon upstream 

of RKM 74 would provide valuable 

information for future consideration of 

this area. 

The CHRT re-evaluated the six areas 

of Medium conservation value that were 

eligible for exclusion (Yolo Bypass, 

lower Yuba River, lower Feather River, 

Coos Bay, Puget Sound, and coastal 

marine waters within 60 fm depth from 

the U.S.-Alaska/Canada border to 

Yakutat Bay, AK) to determine whether 

excluding these areas would 

significantly impede conservation of the 

Southern DPS. 

The CHRT maintained their 

determination that exclusion of Puget 

Sound would not significantly impede 

conservation of the Southern DPS or 

result in extinction of the species. 

Observations of green sturgeon in Puget 

Sound are much less common compared 

to the other estuaries in Washington. 

Although two confirmed Southern DPS 

fish were detected there in 2006, the 

extent to which Southern DPS green 

sturgeon use Puget Sound remains 

uncertain. Puget Sound has a long 

history of commercial and recreational 

fishing and fishery-independent 

monitoring of other species that use 

habitats similar to those of green 

sturgeon, but very few green sturgeon 

have been observed there. In addition, 

Puget Sound does not appear to be part 

of the coastal migratory corridor that 

Southern DPS fish use to reach 

overwintering grounds north of 

Vancouver Island (pers. comm. with 

Steve Lindley, NMFS, and Mary Moser, 

NMFS, February 24–25, 2008), thus 

corroborating the assertion that 

Southern DPS do not use Puget Sound 

extensively. The economic cost of 

designating this area was well above the 

$100,000 threshold because of the large 

number of activities affecting sediment 

and water quality (i.e., dredging, inwater construction, and point and nonpoint sources of pollution) that might 

require special management if critical 

habitat were to be designated. Thus, this 

final rule excludes Puget Sound from 

the critical habitat designation for the 

Southern DPS, because the benefits of 

designation are outweighed by the 

economic benefits of exclusion. The 

exclusion of this area will not result in 

the extinction of the species. 

The CHRT was unable to conclude 

that exclusion of the coastal marine 

waters within 60 fm depth from the 

Alaska/Canada border to Yakutat Bay, 

AK, would significantly impede 

conservation. The proposed rule had 

sought public comments regarding: (1) 

The presence of green sturgeon in 

coastal waters off southeast Alaska; (2) 

the spatial distribution of the PCEs in 

southeast Alaska; (3) activities occurring 

in the area that may affect the PCEs; (4) 

the types of changes that might be 

proposed for these activities to avoid 

impacts to the PCEs; and (5) estimated 

costs associated with making these 

changes. However, few comments were 

received regarding this area. In the 

proposed rule, some CHRT members 

noted that exclusion of this area from 

the designation might impede 

conservation of the Southern DPS, 

because this area is at the northern 

extent of the overwintering range and 

may provide important overwintering 

habitat for the species. The CHRT cited 

the detection of two tagged Southern 

DPS green sturgeon at the array in 

Graves Harbor, AK, despite the short 

monitoring period for this array (data 

are available only from 2005 to 2006) 

and the fact that the system is not 

positioned or programmed specifically 

for detecting green sturgeon. However, 

given that this is a relatively low 

number of Southern DPS detections 

compared to other areas and the level of 

uncertainty concerning activities 

occurring in southeast Alaska that may 

affect critical habitat (i.e., proposed 

alternative energy projects and 

commercial shipping activities, both of 

which are associated with a high degree 

of uncertainty), the CHRT agreed that it 

is uncertain whether exclusion of this 

area would significantly impede 

conservation of the Southern DPS. 

Based on the CHRT’s conclusion, we 

determined that the economic benefits 

of exclusion outweigh the conservation 

benefits of designation for this area. 

Thus, this area is excluded from the 

critical habitat designation. 

The CHRT unanimously agreed that 

exclusion of the lower Feather River or 

lower Yuba River would significantly 

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impede conservation of the Southern 

DPS. The CHRT identified the lower 

Feather River as an important area for 

the conservation of the Southern DPS, 

because it has been consistently 

occupied by the species and most likely 

contains spawning habitat for the 

Southern DPS, potentially providing a 

spawning river for the Southern DPS in 

addition to the Sacramento River. The 

CHRT also considered the lower Yuba 

River an important area for green 

sturgeon that may contain spawning 

habitats. The CHRT had assigned both 

the lower Feather River and the lower 

Yuba River a Medium conservation 

value, but noted that future 

improvements to habitat conditions 

(e.g., improved passage, restoration of 

water flow) would raise the 

conservation value to a High. Thus, the 

CHRT agreed that conservation of the 

species could not be achieved without 

the inclusion of the lower Feather River 

and lower Yuba River in the critical 

habitat designation, based on the 

importance of the lower Feather River 

and lower Yuba River as potential 

spawning rivers for the Southern DPS, 

their proximity to the Sacramento River, 

and the potential increased value of 

these two areas given certain 

characteristics of the habitat, the PCEs, 

and future habitat improvements. Based 

on the CHRT’s conclusion, we increased 

the final conservation value for these 

two areas from Medium to High. In 

addition, the CHRT noted uncertainties 

in the economic impact estimates for 

these two areas. The economic cost 

estimates for these two areas had 

increased substantially from the draft 

economic analysis (lower Yuba River: 

from $53,000 to $600,000–$610,000; 

lower Feather River: from $770,000 to 

$2 million), making the economic costs 

well above the dollar threshold of 

$100,000. However, this increase is 

primarily attributed to two revisions to 

the economic analysis. First, economic 

costs associated with agricultural 

pesticide application increased 

substantially. The draft economic 

analysis had estimated the costs for 

applying a 60 ft buffer to agricultural 

pesticide application projects. Based on 

public comments received, the buffer 

was revised to a 1,000 ft buffer 

(consistent with recommendations in 

recent consultations for listed 

salmonids), resulting in large increases 

in economic costs. However, green 

sturgeon co-occur with listed salmonids 

species in all waterways where this 

1,000 ft buffer would be applied. Thus, 

the 1,000 ft buffer would be applied for 

listed salmonids regardless of whether 

green sturgeon critical habitat exists in 

the area or not. Based on this reasoning, 

the incremental economic impacts 

estimated for agricultural pesticide 

application due to green sturgeon 

critical habitat is more likely closer to 

zero, rather than the $1.5 million 

estimated for the lower Feather River 

and the $228,000 estimated for the 

lower Yuba River. Second, for the lower 

Yuba River, the economic cost estimate 

for installing fish passage facilities at 

Daguerre Point Dam increased from 

$21,000 to $351,000. This was based on 

a public comment estimating that 

current passage plans at the dam for 

salmonids will cost $17.5 million to 

implement. The revised economic cost 

estimate of $351,000 for providing green 

sturgeon passage at Daguerre Point Dam 

was calculated by attributing 20 percent 

of the expected costs for salmonid 

passage plans to green sturgeon critical 

habitat (annualized over 20 years). It is 

uncertain whether this may be an 

overestimate or underestimate of costs. 

Thus, based on the importance of the 

lower Feather River and lower Yuba 

River to the conservation of the 

Southern DPS and the uncertainty with 

regard to the estimated economic costs, 

we determined that the benefits of 

excluding the lower Feather River and 

lower Yuba River do not outweigh the 

benefits of designating these particular 

areas and they should not be excluded 

based on economic impacts. The lower 

Feather River and lower Yuba River are 

included in the final designation. 

The CHRT also agreed that exclusion 

of the Yolo Bypass would significantly 

impede conservation of the Southern 

DPS. The Yolo Bypass was assigned a 

Medium conservation value because it 

provides a migratory corridor to and 

from spawning habitats in the 

Sacramento River during high flow 

years. The area may be particularly 

important for juvenile Southern DPS 

green sturgeon that can use this shallow, 

productive, and protected off-channel 

area for rearing and feeding. The Yolo 

Bypass currently contains good habitat 

for supporting the Southern DPS, and 

the potential for the quality of this 

habitat to improve is likely if efforts to 

improve passage, reduce stranding risks, 

and improve water quality are made. 

Based on this information, the CHRT 

concluded that exclusion of this area 

would significantly impede 

conservation of the Southern DPS, and 

the final conservation value for the Yolo 

Bypass was increased from Medium to 

High. In addition, the CHRT noted that 

the economic impact estimate may be 

greatly overestimated for this area. The 

estimated economic impacts for the 

Yolo Bypass increased from the 

proposed rule to final rule stage, due to 

a large increase in the costs to address 

agricultural pesticide application. 

Increasing the buffer zone from 60 ft to 

1000 ft resulted in an increase in the 

economic impacts for this area from 

$29,000 to $449,000, making this area 

eligible for exclusion. However, similar 

to the lower Yuba River and lower 

Feather River, green sturgeon co-occur 

with listed salmonids in this area and 

the 1000 ft buffer zone for agricultural 

pesticide application would likely be 

applied with or without the existence of 

green sturgeon critical habitat in the 

area. Thus, the incremental impact of 

green sturgeon critical habitat is more 

likely to be closer to zero rather than 

$449,000. Based on the importance of 

the Yolo Bypass to the Southern DPS 

and the likelihood that the economic 

impacts are overestimated, we 

determined that the benefits of 

excluding the Yolo Bypass particular 

area do not outweigh the benefits of 

designating the area and it therefore 

should not be excluded. Thus, the Yolo 

Bypass is included in the final critical 

habitat designation. 

Finally, the CHRT reconfirmed its 

determination that exclusion of Coos 

Bay would significantly impede the 

conservation of the species. The CHRT 

identified Coos Bay as an important area 

for the Southern DPS because it is the 

largest and deepest estuary along the 

Oregon coast presently occupied by 

green sturgeon (including confirmed 

Southern DPS green sturgeon), has a 

large mixing zone, provides a protected 

area for green sturgeon aggregation and 

feeding, and is an important ‘‘steppingstone’’ estuary between San Francisco 

Bay and the lower Columbia River 

estuary. Based on the CHRT’s 

conclusion, the final conservation value 

for Coos Bay was increased from 

Medium to High. In addition, there is a 

great degree of uncertainty regarding the 

economic costs associated with a 

designation in this area. We had 

identified Coos Bay as potentially 

eligible for exclusion because the 

estimated economic impacts (ranging 

from $73,000 to $16 million) exceeded 

the threshold value over which an area 

was considered eligible for exclusion 

($100,000 for areas with a Medium 

conservation value; this decision rule 

was applied prior to increasing the 

conservation value from Medium to 

High). The wide range in estimated 

costs was primarily due to the 

uncertainty regarding economic costs 

associated with a proposed LNG project 

within Coos Bay. This uncertainty was 

driven largely by the limited 

understanding of how LNG projects 

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would affect the PCEs and uncertainty 

regarding how LNG activities might be 

altered to avoid adverse modification of 

green sturgeon critical habitat. The low 

cost estimate of $73,000 assumes that 

this rule would not require any 

additional measures for LNG projects or 

that any additional measures would 

result in minimal costs (i.e., the 

economic costs to LNG projects is $0). 

The high cost estimate of $16 million is 

based on the potential requirement to 

relocate the LNG project due to green 

sturgeon critical habitat in the area. 

However, NMFS has never required 

relocation as a result of an ESA section 

7 consultation on an LNG facility, and 

it is unlikely that proposed 

modifications to the project in Coos Bay 

would include relocation. Because we 

consider both the low cost estimate and 

the high cost estimate to be highly 

unlikely, as stated above, we believe the 

economic impact to LNG projects would 

likely be greater than $0, but much 

lower than $16 million, but do not have 

sufficient information at this time to 

estimate those costs. Therefore, we 

concluded that the economic impacts 

associated with Coos Bay are likely to be 

greater than $73,000 but much lower 

than $16 million. Based on the 

importance of Coos Bay to the 

conservation of the Southern DPS and 

the uncertainty regarding the estimated 

economic impacts, we determine that 

the benefits of excluding Coos Bay do 

not outweigh the benefits of designating 

this particular area and it therefore 

should not be excluded. Thus, Coos Bay 

is included in the final critical habitat 

designation. 

In summary, this final rule will 

exclude the following 14 specific areas 

from the critical habitat designation for 

Southern DPS green sturgeon: Elkhorn 

Slough, Tomales Bay, Noyo Harbor, the 

Eel River estuary, and the Klamath/ 

Trinity River estuary in California; the 

Rogue River estuary, Siuslaw River 

estuary, Alsea River estuary, and 

Tillamook Bay in Oregon; the lower 

Columbia River (from RKM 74 to 

Bonneville Dam); Puget Sound in 

Washington; and coastal marine waters 

within 60 fm depth from the U.S.- 

California/Mexico border to Monterey 

Bay, CA, from the U.S.-Alaska/Canada 

border to Yakutat Bay, AK, and from 

Yakutat Bay northwest to the Bering 

Strait (including the Bering Sea). Based 

on the best scientific and commercial 

data available, we have determined that 

the exclusion of these 14 areas from the 

designation would not result in the 

extinction of the species. 

Determining the Benefits of Excluding 

Particular Areas: Impacts on National 

Security 

At the time of the proposed rule, we 

had not yet received any information 

from the DOD regarding impacts on 

national security within the specific 

areas considered for designation as 

critical habitat. During the public 

comment period and the development 

of the final rule, the DOD identified 

several areas that may warrant exclusion 

based on national security impacts and 

corresponded with us to evaluate these 

areas (Table 2). As in the analysis of 

economic impacts, we weighed the 

benefits of exclusion (i.e., the impacts 

on national security that would be 

avoided) with the conservation benefits 

of designation. 

The primary benefit of exclusion is 

that the DOD agency would not be 

required to consult with NMFS under 

section 7 of the ESA regarding DOD 

actions that may affect critical habitat, 

and thus potential delays or costs 

associated with conservation measures 

for critical habitat would be avoided. To 

assess the benefits of exclusion, we 

evaluated the intensity of use of the 

particular area by the DOD, the 

likelihood that DOD actions in the 

particular area would affect critical 

habitat and trigger an ESA section 7 

consultation, and the potential 

conservation measures that may be 

required and that may result in delays 

or costs that affect national security. We 

also considered the level of protection 

provided to critical habitat by existing 

DOD safeguards, such as regulations to 

control public access and use of the area 

and other means by which the DOD may 

influence other Federal actions in the 

particular area. 

The primary benefit of designation is 

the protection afforded green sturgeon 

under the ESA section 7 critical habitat 

provision. To evaluate the benefit of 

designation for each particular area, we 

considered the final conservation value 

of the specific area within which the 

particular area was contained, the best 

available information on green sturgeon 

presence in and use of the particular 

area, the size of the particular area 

compared to the specific area and the 

total critical habitat area, and the 

likelihood that other Federal actions 

occur in the area that may affect critical 

habitat and trigger a consultation. 

Unlike in the economic analysis, 

neither the benefits of exclusion for 

impacts on national security nor the 

benefits of designation could be 

quantified. Instead, we used the best 

available information to evaluate and 

assign each of the factors considered 

under the benefits of exclusion and the 

benefits of designation with a High or 

Low rating and compared these 

qualitative ratings. A particular area was 

eligible for exclusion if the benefits of 

exclusion outweighed the benefits of 

designation. 

TABLE 2—SUMMARY OF ASSESSMENT OF PARTICULAR AREAS REQUESTED FOR EXCLUSION BY THE DOD BASED ON IMPACTS ON NATIONAL SECURITY. LISTED FOR EACH PARTICULAR AREA IS: THE SPECIFIC AREA THAT THE PARTICULAR

AREA OCCURS IN AND ITS CONSERVATION VALUE; THE SIZE OF THE SPECIFIC AREA; THE SIZE OF THE PARTICULAR

AREA; AND WHETHER EXCLUSION BASED ON NATIONAL SECURITY IMPACTS IS WARRANTED

DOD sites & agency Overlapping specific area & conservation value 

Specific 

area size 

(km 2) 

DOD site 

overlap 

(km 2) 

Exclude? 

(1) Mare Island US Army Reserve (Army) ...... San Pablo Bay, CA (High) ................................................. 331.0 0.05 Yes. 

(2) Camp Rilea (Army) ..................................... Coastal marine area from Winchester Bay, OR, to Columbia R, estuary (High).6,796.9 20.3 No. 

(3) Admiralty Inlet Naval Restricted Area 

(Navy).

Strait of Juan de Fuca, WA (High) ..................................... 1,348.6 134.7 Yes. 

(4) Strait of Juan de Fuca & Whidbey Island 

Naval Restricted Area (Navy).

Strait of Juan de Fuca, WA (High) ..................................... 1,348.6 4.9 Yes. 

(5) Strait of Juan de Fuca Naval Air-to-Surface Weapon Range Restricted Area (Navy).Strait of Juan de Fuca, WA (High) ..................................... 1,348.6 16.8 Yes. 

(6) Navy 3 Operating Area (Navy) ................... Strait of Juan de Fuca, WA (High) ..................................... 1,348.6 162.5 Yes. 

(7) Surf zone portion of Quinault Underwater 

Tracking Range (QUTR).

Coastal marine area from Grays Harbor, WA, to U.S.-WA/ 

Canada border (High).

4,923.5 N/A No. 

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The DOD also identified the following 

three particular areas for exclusion 

based on impacts on national security, 

but these areas were not included in the 

ESA section 4(b)(2) analysis. First, the 

Army requested the exclusion of the 

Military Ocean Terminal Concord 

(MOTCO) facilities in Suisun Bay, CA. 

The MOTCO facilities are covered by an 

existing INRMP. This area was not 

analyzed because it was determined that 

the MOTCO facilities do not overlap 

with the specific area considered for 

designation as critical habitat in Suisun 

Bay. Second, the Navy requested the 

exclusion of the Navy 7/Admiralty Bay 

Naval Restricted Area 6701 in Puget 

Sound, WA. This area was not analyzed 

because it overlaps with the specific 

area in Puget Sound, WA, which will be 

excluded in the final designation. 

Finally, the Navy requested the 

exclusion of one of the proposed surf 

zone sites of the Pacific Northwest 

Operating Area Quinault Underwater 

Tracking Range (in the coastal marine 

area from Grays Harbor, WA, to the 

U.S.-WA/Canada border). This area was 

not analyzed, however, because the 

Navy has not yet made a final selection 

on the surf zone site location and the 

particular area has yet to be defined. 

Exclusions Based on Impacts on 

National Security 

The final ESA section 4(b)(2) report 

(NMFS 2009c) provides a detailed 

description of our analysis of the 

impacts on national security and our 

approach to weighing the benefits of 

designation against the benefits of 

exclusion. The results of our analysis 

are summarized in Table 2 and in the 

following paragraphs. 

(1) Mare Island U.S. Army Reserve 

(USAR) Center in San Pablo Bay, CA: 

The area of overlap between the USAR 

facilities and the specific area in San 

Pablo Bay consists of the area between 

two piers and is very small (0.02 mi2 or 

0.02% of the San Pablo Bay specific 

area). The main activity of concern is 

the in-bay disposal of the dredged 

sediments from dredging activities 

between the piers. We determined that 

the INRMP does not provide adequate 

protection for the Southern DPS because 

it does not address concerns regarding 

in-bay disposal of dredged material. 

However, we determined that the 

benefits of excluding this area outweigh 

the benefits of designating it for two 

reasons. First, restrictions on dredging 

operations between the piers pose a 

national security risk (i.e., build-up of 

sediment such that vessels cannot move 

in and out of the piers). The dredging 

activities are not a major concern to 

green sturgeon because the dredged area 

is small, the frequency of dredging is 

low (about once every 3 years), and the 

Army is already using the recommended 

dredge type. Second, we are primarily 

concerned about the use of in-bay 

disposal sites, which are located outside 

of the USAR area and would not be 

affected by this exclusion. We 

determine that the benefits of excluding 

the Mare Island USAR facilities 

outweigh the benefits of designation and 

that exclusion of this area would not 

significantly impede conservation for 

the previously described reasons (small 

area, infrequent dredging, and current 

use of recommended dredge type), and 

that exclusion of this area would not 

result in extinction of the species. 

Therefore, the area is excluded from the 

critical habitat designation. 

(2) Coastal marine waters adjacent to 

Camp Rilea, OR: The Army requested 

the exclusion of coastal marine waters 

adjacent to Camp Rilea (Clatsop County, 

OR), delineated as an area one-half mile 

north to one-half mile south of Camp 

Rilea, to a distance of two miles offshore 

of Camp Rilea. The primary activities of 

concern identified by the Army that 

might affect critical habitat are 

amphibious landings operations and the 

rare occurrence of stray bullets entering 

the water within this particular area. We 

determined that neither amphibious 

landings nor a stray bullet entering the 

water would be likely to affect the 

critical habitat features identified for 

coastal marine areas (i.e., prey 

resources, water quality, migratory 

corridors). Thus, based on the 

information provided by the Army, we 

determined there is a low likelihood 

that the Army’s activities within the 

area would affect critical habitat and 

trigger an ESA section 7 consultation 

and, consequently, the benefit of 

exclusion for this area is low. In 

contrast, the benefits of designation are 

likely high for this area because it 

occurs within a High conservation value 

specific area just south of the lower 

Columbia River estuary and our 

consultation history indicates that there 

are other Federal activities occurring in 

this area that may affect critical habitat 

and trigger a consultation under section 

7 of the ESA. For these reasons, we 

determined that the benefits of 

exclusion do not outweigh the benefits 

of designation for this area and that the 

area will be included in the critical 

habitat designation. 

(3) Three naval restricted areas and 

one operating area located in the Strait 

of Juan de Fuca, WA: The Navy 

requested the exclusion of 3 naval 

restricted areas and one operating area 

(Navy 3 OPAREA) in the eastern portion 

of the Strait of Juan de Fuca. We 

corresponded with the Navy extensively 

throughout the analysis of national 

security impacts, to better define the 

impacts on national security and the 

Navy’s control of the particular areas 

requested for exclusion. 

We determined that the benefits of 

designation for these areas is low. 

Although the Strait of Juan de Fuca 

received a High conservation value, this 

was based on the existence of a 

connectivity corridor within this area. 

From observations of tagged green 

sturgeon, it appears that the eastern 

portion of the Strait of Juan de Fuca is 

used at a lower frequency than the 

western portion of the Strait. In 

addition, the areas are small compared 

to the critical habitat areas being 

designated, our consultation history 

indicates that there are currently no 

other Federal activities occurring within 

these particular areas that may affect 

critical habitat, and the Navy’s limits on 

public access in restricted areas and 

presence in operating areas (which are 

likely to deter certain activities from the 

area) provide some protection for green 

sturgeon and its habitat in the areas. 

Based on the information provided by 

the Navy, we also determined that the 

benefits to national security of 

excluding these areas is low, because 

the Navy’s current activities within the 

areas have a low likelihood of affecting 

critical habitat and triggering a section 

7 consultation. However, we recognize 

that the range of activities that may be 

carried out in these areas are often 

critical to national security and that a 

critical habitat designation in these 

areas could delay or halt these activities 

in the future. Therefore, we determined 

that the benefits of exclusion outweigh 

the benefits of designation for the three 

naval restricted areas and the Navy 3 

Operation Area within the Strait of Juan 

de Fuca. We also determined that 

exclusion of these areas would not 

significantly impede conservation or 

result in extinction of the species. Thus, 

the 4 areas requested for exclusion by 

the Navy in the Strait of Juan de Fuca 

are excluded from the final designation. 

Determining the Benefits of Excluding 

Particular Areas: Impacts on Indian 

Lands 

The only other relevant impacts 

identified for the ESA section 4(b)(2) 

analysis were impacts on Indian lands. 

In the proposed rule, we solicited 

comments regarding lands owned by the 

following Federally-recognized Tribes 

(73 FR 18553, April 4, 2008) that may 

be in close proximity to areas 

considered for designation as critical 

habitat for Southern DPS green 

sturgeon: the Hoh, Jamestown 

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S’Klallam, Lower Elwha, Makah, 

Quileute, Quinault, and Shoalwater Bay 

Tribes in Washington; the Confederated 

Tribes of Coos Lower Umpqua and 

Siuslaw Indians and the Coquille Tribe 

in Oregon; and the Cachil DeHe Band of 

Wintun Indians of the Colusa Indian 

Community, Wiyot Tribe, and Yurok 

Tribe in California. We later also 

identified lands owned by the Trinidad 

Rancheria that may overlap with the 

critical habitat areas in California. We 

corresponded with these Tribes during 

the public comment period and 

development of the final rule to confirm 

where their lands occur and may 

overlap with the areas considered for 

designation as critical habitat and to 

understand the Tribal activities and 

concerns within those areas. We then 

analyzed and determined whether the 

benefits of exclusion outweigh the 

benefits of designation for these 

identified Indian lands under ESA 

section 4(b)(2). Because we were unable 

to quantify the benefits, we instead 

compared qualitative ratings of the 

benefits of exclusion and benefits of 

designation. 

The primary benefit of designation is 

the protection provided under section 7 

of the ESA, requiring every Federal 

agency to ensure that any action it 

authorizes, funds, or carries out is not 

likely to result in the destruction or 

adverse modification of the designated 

critical habitat. To assess the benefit of 

designation, we considered the final 

conservation value of the specific area 

within which the overlap with Indian 

lands occur (i.e., the greater the 

conservation value of an area, the 

greater the benefit of protection under 

section 7 of the ESA), the Federal 

actions likely to occur within the area 

that may affect critical habitat, and the 

size of the area of overlap. The 

conservation values of the specific areas 

included High and Medium (none of the 

areas had Low or Ultra-Low 

conservation value). Federal actions 

occurring in the areas that may trigger 

a section 7 consultation include 

transportation projects, alternative 

energy hydrokinetic projects, in-water 

construction or alterations, NPDES 

activities, and dredging. However, the 

area of overlap between Indian lands 

and the areas considered for designation 

as critical habitat is very small and we 

anticipate there would be very few 

Federal actions undergoing a section 7 

consultation in these areas. Thus, we 

determine that the benefit of designation 

for these Indian lands is relatively low. 

To determine the benefits of 

exclusion, we evaluated the Tribal 

activities conducted within the areas 

and the Federal government’s policies 

regarding Indian lands and relationships 

with the Tribes. Indian lands are those 

defined in the Secretarial Order 

‘‘American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities, 

and the Endangered Species Act’’ (June 

5, 1997), including: (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. Activities within Indian lands 

include many activities that may affect 

critical habitat, including fisheries 

activities, in-water construction or 

alterations, energy projects, and habitat 

restoration. The benefits of exclusion 

would include avoiding the need to 

consult with NMFS under section 7 of 

the ESA for activities that may affect 

critical habitat, as well as the benefits 

identified in recent critical habitat 

designations for Pacific salmon and 

steelhead (70 FR 52630; September 2, 

2005), specifically: (1) The furtherance 

of established national policies, our 

Federal trust obligations and our 

deference to the Tribes in management 

of natural resources on their lands; (2) 

the maintenance of effective long-term 

working relationships to promote 

species conservation on an ecosystemwide basis; (3) the allowance for 

continued meaningful collaboration and 

cooperation in scientific work to learn 

more about the conservation needs of 

the species on an ecosystem-wide basis; 

and (4) continued respect for Tribal 

sovereignty over management of natural 

resources on Indian lands through 

established Tribal natural resource 

programs. Thus, we determine that the 

benefit of exclusion for Indian lands is 

relatively high. 

Exclusions Based on Impacts on Indian 

Lands 

The final ESA section 4(b)(2) analysis 

report provides a detailed description of 

our approach and analysis of impacts on 

Indian lands. Based on the analysis of 

the benefits of designation and 

exclusion described above and in the 

report, we determined that the benefits 

of excluding the identified Indian lands 

outweigh the benefits of designating 

those lands. Exclusion of Indian lands 

benefits the Federal government’s policy 

of promoting respect for Tribal 

sovereignty and self-governance. In 

addition, critical habitat on Indian lands 

represents such a small proportion of 

total critical habitat. Because the 

percentage of critical habitat on Indian 

lands is minimal, we determined that 

exclusion would not significantly 

impede conservation or result in 

extinction of the Southern DPS. Table 3 

lists the Tribes whose lands are 

excluded from the critical habitat 

designation and the estimated area of 

overlap that is excluded. 

We also received comments from 

Tribes in Washington requesting the 

exclusion of usual and accustomed 

fishing areas from the critical habitat 

designation. The Tribes were primarily 

concerned about the potential impact of 

the critical habitat designation on Tribal 

fisheries within usual and accustomed 

fishing areas located in coastal estuaries 

and coastal marine waters. Based on the 

information provided by the Tribes, we 

would expect the critical habitat 

designation to have minimal effects on 

Tribal fisheries. Tribal fisheries may 

cause take of Southern DPS green 

sturgeon and thus are more likely to be 

affected by take prohibitions as 

established in the proposed ESA 4(d) 

Rule for green sturgeon (74 FR 23822; 

May 21, 2009) than by the critical 

habitat designation. In addition, and as 

described below, usual and accustomed 

fishing areas are not necessarily 

coextensive with areas defined as 

‘‘Indian lands’’ in various Federal 

policies, orders, and memoranda. Thus, 

we conclude that exclusion of usual and 

accustomed fishing areas outside those 

identified as Indian lands is not 

warranted, because the benefits of 

exclusion do not outweigh the benefits 

of designation for these areas. 

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TABLE 3—SUMMARY OF THE TRIBES WITH LANDS OVERLAPPING WITH THE CRITICAL HABITAT DESIGNATION, THE SPECIFIC AREA WHERE THE OVERLAP OCCURS AND ITS ASSOCIATED CONSERVATION VALUE RATING, AND THE ESTIMATED AREA OF OVERLAP BETWEEN INDIAN LANDS AND THE SPECIFIC AREA

Tribe * * Specific area & conservation value 

Estimated 

km 

of excluded 

shoreline 

Cachil DeHe Band of Wintun Indians of the Colusa Indian Community, CA.Sacramento River, CA (High) ................................................................. 0.2 

Cher-Ae Heights Trinidad Rancheria ............................... Coastal marine area from Humboldt Bay, CA, to Coos Bay, OR (High) 0.6 

Confederated Tribes of the Coos, Lower Umpqua, and 

Siuslaw, OR.

(a) Coos Bay, OR (Medium) and ...........................................................

(b) coastal marine area from Humboldt Bay, CA, to Coos Bay, OR 

(High).

1.1 (total), 

(a) 0.3, 

(b) 0.8 

Coquille Indian Tribe ........................................................ Coos Bay, OR (Medium) ........................................................................ 2.6 

Hoh Tribe .......................................................................... Coastal marine area from Grays Harbor, WA, to Cape Flattery (High) 2.6 

Jamestown S’Klallam Tribe .............................................. Strait of Juan de Fuca, WA (High) ......................................................... <0.1 

Lower Elwha Tribe ............................................................ Strait of Juan de Fuca, WA (High) ......................................................... 1.8 

Makah Tribe ...................................................................... (a) Strait of Juan de Fuca, WA (High) and (b) coastal marine area 

from Grays Harbor, WA, to Cape Flattery (High).

40.4 (total), 

(a) 19.2, 

(b) 21.2 

Quileute Tribe ................................................................... Coastal marine area from Grays Harbor, WA, to Cape Flattery (specifically, Quillayute River) (High).3.9 

Quinault Tribe ................................................................... Coastal marine area from Grays Harbor, WA, to Cape Flattery (High) 40.6 

Shoalwater Bay Tribe ....................................................... Willapa Bay, WA (High) .......................................................................... 3.1 

Wiyot Tribe ....................................................................... Humboldt Bay, CA (Medium) .................................................................. 1.8 

Yurok Tribe ....................................................................... Coastal marine area from Humboldt Bay, CA, to Coos Bay, OR (High) 1.4 

* * We also corresponded with the Lummi Tribe and Swinomish Tribe in Washington, but determined that their Indian lands do not overlap with 

the specific areas considered for designation as critical habitat. 

Critical Habitat Designation 

This final rule will designate 

approximately 515 km (320 mi) of 

riverine habitat and 2,323 km2 (897 mi2) 

of estuarine habitat in California, 

Oregon, and Washington, and 29,581 

km2 (11,421 mi2) of coastal marine 

habitat off California, Oregon, and 

Washington within the geographical 

area presently occupied by the Southern 

DPS of green sturgeon. We are also 

designating approximately 784 km (487 

mi) of habitat in the Sacramento-San 

Joaquin Delta, and 350 km2 (135 mi2) of 

habitat within the Yolo and Sutter 

bypasses, adjacent to the Sacramento 

River, California. These critical habitat 

areas contain physical or biological 

features essential to the conservation of 

the species that may require special 

management considerations or 

protection. This final rule will exclude 

from the designation: (1) 14 specific 

areas based on economic impacts; (2) 

the Mare Island USAR Center in San 

Pablo Bay, three naval restricted areas in 

the Strait of Juan de Fuca, and one Navy 

operating area in the Strait of Juan de 

Fuca based on impacts on national 

security; and (3) Indian lands owned by 

12 Federal-recognized Tribes that 

overlap with the critical habitat 

designation, based on impacts on Indian 

lands. We conclude that the exclusion 

of these areas will not result in the 

extinction of the Southern DPS. 

Although we have identified 7 presently 

unoccupied areas that may, at a later 

time, be determined as essential to 

conservation, we are not designating 

any unoccupied areas at this time, 

because we do not have sufficient 

information showing that any of the 

unoccupied areas are essential to the 

conservation of the species. 

Lateral Extent of Critical Habitat 

For freshwater riverine habitats, we 

described the lateral extent of critical 

habitat units as the width of the stream 

channel defined by the ordinary highwater line, as defined by the U.S. Army 

Corps of Engineers (ACOE) 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 defined 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). For bays and 

estuarine areas, we defined the lateral 

extent by the mean higher high water 

(MHHW) line. For coastal marine 

habitats, the lateral extent to the west is 

defined by the 60 fm depth bathymetry 

contour relative to the line of MLLW 

and shoreward to the area that is 

inundated by MLLW, or to the 

COLREGS demarcation lines delineating 

the boundary between estuarine and 

marine habitats. The textual 

descriptions of critical habitat in 50 CFR 

226.215 (under ‘‘Critical habitat for the 

Southern Distinct Population Segment 

of North American Green Sturgeon 

(Acipenser medirostris)’’) are the 

definitive source for determining the 

critical habitat boundaries. The 

overview maps provided in 50 CFR 

226.215 (under ‘‘Critical habitat for the 

Southern Distinct Population Segment 

of North American Green Sturgeon 

(Acipenser medirostris)’’) are provided 

for general guidance purposes only and 

not as a definitive source for 

determining critical habitat boundaries. 

As discussed in previous critical 

habitat designations, 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 streams, bays, or estuaries 

can destroy or adversely modify the 

essential physical and biological 

features within these areas. In addition, 

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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. 

Similarly, human activities that occur 

outside of designated coastal marine 

areas inundated by extreme high tide 

can 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 

ESA Section 7 Consultation 

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

Federal agencies, including NMFS, 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. 

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, NMFS 

evaluates the agency action to determine 

whether the action may adversely affect 

listed species or critical habitat and 

issues its findings in a biological 

opinion. If NMFS concludes in the 

biological opinion that the agency 

action would likely result in the 

destruction or adverse modification of 

critical habitat, NMFS would also 

recommend any reasonable and prudent 

alternatives to the action. Reasonable 

and prudent alternatives are defined in 

50 CFR 402.02 as 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 consultation or 

conference with NMFS on actions for 

which formal consultation has been 

completed, if those actions may affect 

designated 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 section 

10(a)(1)(B) permit from NMFS) or some 

other Federal action, including funding 

(e.g., Federal Highway Administration 

(FHA) or Federal Emergency 

Management Agency (FEMA) funding). 

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 Likely To Be Affected 

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

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 critical 

habitat for the Southern DPS 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), ACOE, 

USBR, Natural Resource Conservation 

Service (NRCS), National Park Service 

(NPS), Bureau of Indian Affairs (BIA), 

the FERC, and the Nuclear Regulatory 

Commission (NRC)) and related or 

similar Federally-regulated projects and 

activities on Federal lands, including 

hydropower sites and proposed 

alternative energy hydrokinetic projects 

licensed by the FERC; nuclear power 

sites licensed by the NRC; dams built or 

operated by the ACOE or USBR; 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 dredge and fill, mining, diking, 

and bank stabilization activities 

authorized or conducted by the COE, 

habitat modifications authorized by the 

FEMA, and approval of water quality 

standards and pesticide labeling and use 

restrictions administered by the 

Environmental Protection Agency 

(EPA). 

Private entities may also be affected 

by this final critical habitat designation 

if a Federal permit is required, 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. 

Changes to the actions to minimize or 

avoid destruction or adverse 

modification of designated critical 

habitat may result in changes to some 

activities, such as the operations of 

dams and dredging activities. 

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). 

Peer Review 

On July 1, 1994, a joint USFWS/ 

NMFS policy for peer review was issued 

stating that the Services would solicit 

independent peer review to ensure the 

best biological and commercial data is 

used in the development of rulemaking 

actions and draft recovery plans under 

the ESA (59 FR 34270). On December 

16, 2004, the Office of Management and 

Budget (OMB) issued its Final 

Information Quality Bulletin for Peer 

Review (Bulletin). The Bulletin was 

published in the Federal Register on 

January 14, 2005 (70 FR 2664), and went 

into effect on June 16, 2005. The 

primary purpose of the Bulletin is to 

improve the quality and credibility of 

scientific information disseminated by 

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52342 Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 

the Federal government by requiring 

peer review of ‘‘influential scientific 

information’’ and highly influential 

scientific information’’ prior to public 

dissemination. Influential scientific 

information is defined as ‘‘information 

the agency reasonably can determine 

will have or does have a clear and 

substantial impact on important public 

policies or private sector decisions.’’ 

The Bulletin provides agencies broad 

discretion in determining the 

appropriate process and level of peer 

review. Stricter standards were 

established for the peer review of 

‘‘highly influential scientific 

assessments’’, defined as information 

whose ‘‘dissemination could have a 

potential impact of more than $500 

million in any one year on either the 

public or private sector or that the 

dissemination is novel, controversial, or 

precedent-setting, or has significant 

interagency interest.’’ The draft 

biological report and draft economic 

analysis report supporting this final rule 

to designate critical habitat for the 

Southern DPS of green sturgeon are 

considered influential scientific 

information and subject to peer review. 

These two reports were each distributed 

to three independent peer reviewers for 

review. The final biological report and 

final economic analysis report 

incorporate the comments and 

additional information provided by the 

peer reviewers. The peer reviewer 

comments were compiled into a peer 

review report, which is available on the 

Southwest Region Web site at http:// 

swr.nmfs.noaa.gov, on the Federal 

eRulemaking Web site at http:// 

www.regulations.gov, or upon request 

(see ADDRESSES). 

Required Determinations 

Regulatory Planning and Review (E.O. 

12866) 

This final rule has been determined to 

be significant for purposes of E.O. 

12866. A final economic analysis report 

and ESA section 4(b)(2) report have 

been prepared to support the exclusion 

process under section 4(b)(2) of the ESA 

and our consideration of alternatives to 

this rulemaking as required under E.O. 

12866. The final economic analysis 

report and final ESA section 4(b)(2) 

report are available on the Southwest 

Region Web site at http:// 

swr.nmfs.noaa.gov, on the Federal 

eRulemaking Web site at http:// 

www.regulations.gov, or upon request 

(see ADDRESSES). 

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 a final 

regulatory flexibility analysis (FRFA), 

which is part of the final economic 

analysis report. This document is 

available upon request (see ADDRESSES), 

via our Web site at http:// 

swr.nmfs.noaa.gov, or via the Federal 

eRulemaking Web site at http:// 

www.regulations.gov. The results of the 

FRFA 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 green sturgeon, 

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 

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 

activities: dredging, in-water 

construction or alterations, NPDES 

activities and other activities resulting 

in non-point pollution, agriculture, dam 

operations, water diversion operations, 

bottom trawl fisheries, and power plant 

operations. The impacts on small 

entities were not assessed for LNG 

projects, desalination plants, tidal and 

wave energy projects, and restoration 

projects because there is great 

uncertainty regarding impacts to these 

activities, the activities are unlikely to 

be conducted by small entities, or the 

impacts to small businesses are 

expected to be minor. 

Small entities were defined by the 

Small Business Administration size 

standards for each activity type. The 

majority (>70 percent) of entities 

affected within each specific area would 

be considered a small entity. A total of 

10,398 small businesses involved in the 

activities listed above would most likely 

be affected by the final critical habitat 

designation. The estimated economic 

impacts on small entities vary 

depending on the activity type and 

location. The largest total estimated 

annualized impacts borne by small 

entities were for bottom trawl fisheries 

and the operation of dams and water 

diversions. 

In accordance with the requirements 

of the RFA (as amended by SBREFA, 

1996) this analysis considered various 

alternatives to the critical habitat 

designation for the green sturgeon. The 

alternative of not designating critical 

habitat for the green sturgeon 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 the 

Southern DPS. The alternative of 

designating all potential critical habitat 

areas (i.e., no areas excluded) was also 

considered and rejected because NMFS 

has the discretionary authority to 

exclude areas under the ESA and, for 

several areas, the economic benefits of 

exclusion outweighed the benefits of 

inclusion. The total annualized impacts 

borne by small entities under this 

alternative were $60.1 million to $210 

million (discounted at 7 percent) or $60 

million to $210 million (discounted at 3 

percent). 

An alternative to designating critical 

habitat within all 41 units is the 

designation of critical habitat within a 

subset of these units. This approach 

would help to reduce the number of 

small entities potentially affected. 

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 the 

Southern DPS if an area were 

designated), as 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 41 

units considered for designation would 

reduce the potential effects on small 

entities. The extent to which the 

economic impact to small entities 

would be reduced depends on how 

many, and which, units would be 

excluded. The determination of which 

units and how many to exclude depends 

on NMFS’ ESA 4(b)(2) analysis, which 

is conducted for each unit and 

described in detail in the final ESA 

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section 4(b)(2) analysis report (NMFS 

2009c). The total estimated annualized 

impacts borne by small entities under 

this alternative were $17.9 million to 

$24.5 million (discounted at 7 percent) 

or $17.9 million to $24.4 million 

(discounted at 3 percent). It is estimated 

that the exclusions in this final rule will 

result in a reduction in total annualized 

impacts on small entities of between 

$42.2 million to $185.5 million (for 

estimates discounted at 7 percent) or 

between $42.1 million to $185.6 million 

(for estimates discounted at 3 percent). 

NMFS selected this alternative because 

it results in a critical habitat designation 

that provides for the conservation of the 

Southern DPS, reduces impacts on small 

entities, and meets the requirements 

under the ESA and our joint NMFS– 

USFWS regulations for designating 

critical habitat. 

E.O. 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 an 

action expected to lead to the 

promulgation of a final rule or 

regulation that is a significant regulatory 

action under E.O. 12866 and is likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

An energy impacts analysis was 

prepared under E.O. 13211 and is 

available as part of the final economic 

analysis report. The results of the 

analysis are summarized here. 

Activities associated with the supply, 

distribution, or use of energy that may 

be affected by this final critical habitat 

designation include the operation of 

hydropower dams, alternative energy 

hydrokinetic projects, and LNG projects. 

Energy impacts would result from 

requested project modifications under 

an ESA section 7 consultation. The most 

relevant impacts include potential 

changes in natural gas and electricity 

production and changes in the cost of 

energy production. 

In the final economic analysis, the 

effects of the critical habitat designation 

on 189 dams located within the critical 

habitat areas are evaluated. Of these 189 

dams, 11 dams have hydropower 

capacity. Potential project modifications 

may be required to address impacts of 

the hydropower dams on flow regimes. 

These project modifications may 

include changes in water flow through 

the turbines or seasonal changes to flow 

through turbines. These changes may 

result in reductions in electricity 

production and increases in energy 

costs. However, the changes required 

and their effects on energy production 

and costs would vary depending on the 

characteristics of the dam and the 

hydrology of the river system. Because 

the areas overlap with existing critical 

habitat designations for salmon species, 

and because the guidelines we have in 

place for dam modifications focus on 

listed salmonids, we will likely 

recommend modifications to dams that 

are similar to those we recommend for 

salmonids until additional information 

on green sturgeon indicates otherwise. 

Thus, the additional effects of the 

critical habitat designation for green 

sturgeon would likely be minimal. In 

addition, modifications required for the 

protection of critical habitat would 

likely be similar to those required under 

the jeopardy standard. 

The final economic analysis evaluated 

the effects of the critical habitat 

designation on a number of proposed 

alternative energy hydrokinetic projects 

(e.g., tidal and wave energy projects). 

Future management and required 

project modifications for green sturgeon 

critical habitat related to these projects 

are uncertain and could vary widely in 

scope from project to project. Because 

these proposed projects are still in the 

preliminary stages, the potential impact 

of possible green sturgeon conservation 

efforts on energy production and the 

associated cost of that energy for each 

project are unclear. In the most extreme 

case (i.e., the critical habitat designation 

results in all projects not being 

constructed), the reductions in 

electricity production would be 

significant (an estimated 2,000 

megawatts). However, we do not 

anticipate that conservation efforts to 

address green sturgeon critical habitat 

will result in all project construction 

from being halted. It is more likely that 

any additional cost of green sturgeon 

conservation efforts would be passed on 

to the consumer in the form of slightly 

higher energy prices. More information 

is needed, however, to more precisely 

estimate the potential energy impacts 

resulting from the application of 

conservation measures to alternative 

energy projects. It is important to note, 

however, that many other 

environmental concerns have been 

raised and must be addressed in the 

development and construction of 

alternative energy projects, including 

concerns for other marine fish species 

(McIsaac 2008, Letter from the Pacific 

Fishery Management Council to Randall 

Luthi, Minerals Management Service). It 

is likely that management measures to 

minimize or avoid habitat impacts for 

other species will be required for 

alternative energy projects. Based on the 

best available information, the project 

modifications we would require to 

protect green sturgeon critical habitat 

would likely be similar to those applied 

for the protection of other marine 

species. 

The final economic analysis also 

analyzed the potential effects of the 

critical habitat designation on proposed 

LNG projects. Because no LNG projects 

currently exist in the critical habitat 

areas, the potential impact of LNG 

facilities on green sturgeon critical 

habitat and the potential project 

modifications that may be required to 

mitigate those impacts remain 

uncertain. There are several proposed 

LNG projects in the critical habitat 

areas, with a combined natural gas 

production capacity of 7,800 million 

cubic feet per day. In the most extreme 

case, green sturgeon critical habitat 

would require that these proposed LNG 

projects be relocated to areas outside of 

the critical habitat areas. However, it is 

more likely that other less costly project 

modifications will be necessary, such as 

changes to dredging operations 

associated with the project, restoration 

of riparian habitat, or other changes 

depending on the specifics of the 

project. These project modifications 

may result in higher natural gas costs for 

consumers. Additional information is 

needed to address uncertainties 

regarding the potential impacts of the 

critical habitat designation on LNG 

projects and on energy production and 

costs associated with those projects. In 

cases where listed salmon and steelhead 

species or critical habitat designated for 

these species occurs within the areas 

where proposed LNG projects are 

located (e.g., in the Lower Columbia 

River), the best available information 

indicates that measures implemented 

for the protection of these species would 

be similar to those required to protect 

critical habitat for green sturgeon. 

Based on this energy impacts analysis, 

we recognize that many uncertainties 

exist and more information is needed to 

adequately estimate the potential 

impacts of the critical habitat 

designation on energy production and 

costs. Using the best available 

information, we have determined that 

the designation of critical habitat for 

Southern DPS green sturgeon may result 

in impacts on the supply, distribution, 

or use of energy, but that these impacts 

would not be significant because many 

of the impacts would already exist due 

to protections for other listed species. 

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52344 Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 

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 final 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 an enforceable duty on nonFederal government entities or private 

parties. The only regulatory effect of a 

critical habitat designation is that 

Federal agencies must ensure that their 

actions do not destroy or adversely 

modify critical habitat under ESA 

section 7. Non-Federal entities who 

receive funding, assistance, or permits 

from Federal agencies, or otherwise 

require approval or authorization from a 

Federal agency for an action may be 

indirectly affected by the designation of 

critical habitat. 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 prohibition against take 

of the Southern DPS both within and 

outside of the designated areas, we do 

not anticipate that this final rule will 

significantly or uniquely affect small 

governments. As such, a Small 

Government Agency Plan is not 

required. 

Takings 

Under E.O. 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 final rule does not have 

significant takings implications. A 

takings implication assessment is not 

required. The designation of critical 

habitat affects only Federal agency 

actions. This final rule would not 

increase or decrease the current 

restrictions on private property 

concerning take of Southern DPS fish, 

nor do we expect the final critical 

habitat designation to impose 

substantial additional burdens on land 

use or substantially affect property 

values. Additionally, the final 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. 

Federalism 

In accordance with E.O. 13132, we 

determined that this final 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 final critical habitat 

designation with, appropriate State 

resource agencies in California, Oregon, 

Washington, and Alaska. The final 

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 PCEs of the habitat necessary for 

the survival of the Southern DPS of 

green sturgeon are specifically 

identified. While this designation does 

not alter where and what Federally 

sponsored activities may occur, it may 

assist local governments in long-range 

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

occur). 

Civil Justice Reform 

In accordance with E.O. 12988, we 

have determined that this final rule does 

not unduly burden the judicial system 

and meets the requirements of sections 

3(a) and 3(b)(2) of the E.O. We are 

designating critical habitat in 

accordance with the provisions of the 

ESA. This final rule uses standard 

property descriptions and identifies the 

PCEs within the designated areas to 

assist the public in understanding the 

habitat needs of the Southern DPS of 

green sturgeon. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This final rule does not contain new 

or revised information collections that 

require approval by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act. This final 

rule will not impose recordkeeping or 

reporting requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act of 

1969 (NEPA) 

NMFS has determined that an 

environmental analysis as provided for 

under the NEPA of 1969 for critical 

habitat designations made pursuant to 

the ESA is not required. 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 

The longstanding and distinctive 

relationship between the Federal and 

Tribal governments is defined by 

treaties, statutes, executive orders, 

judicial decisions, and agreements, 

which differentiate Tribal governments 

from the other entities that deal with, or 

are affected by, the Federal government. 

This relationship has given rise to a 

special Federal trust responsibility 

involving the legal responsibilities and 

obligations of the United States toward 

Indian Tribes and the application of 

fiduciary standards of due care with 

respect to Indian lands, Tribal trust 

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Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 52345 

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. E.O. 13175, 

Consultation and Coordination with 

Indian Tribal Governments, outlines the 

responsibilities of the Federal 

government in matters affecting Tribal 

interests. 

There is a broad array of activities on 

Indian lands that may trigger ESA 

section 7 consultations. As described in 

the section above titled ‘‘Exclusions 

Based on Impacts on Indian Lands,’’ we 

have corresponded with potential 

affected Tribes and this final rule will 

exclude from the designation any Indian 

lands of the following Federally 

recognized Tribes (73 FR 18553, April 4, 

2008) that overlap with the critical 

habitat designation for Southern DPS 

green sturgeon: the Hoh, Jamestown 

S’Klallam, Lower Elwha, Makah, 

Quileute, Quinault, and Shoalwater Bay 

Tribes in Washington; the Confederated 

Tribes of Coos, Lower Umpqua and 

Siuslaw Indians and the Coquille Tribe 

in Oregon; and the Cachil DeHe Band of 

Wintun Indians of the Colusa Indian 

Community, Cher-Ae Heights Trinidad 

Rancheria, Wiyot Tribe, and Yurok 

Tribe in California. 

References Cited 

A complete list of all references cited 

herein is available upon request (see 

ADDRESSES section) or via our Web site 

at http://swr.nmfs.noaa.gov. 

List of Subjects in 50 CFR Part 226 

Endangered and threatened species. 

Dated: October 1, 2009. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

■ For the reasons set out in the 

preamble, this final rule amends part 

226, title 50 of the Code of Federal 

Regulations as set forth below: 

PART 226—DESIGNATED CRITICAL 

HABITAT 

■ 1. The authority citation of part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 2. Add § 226.219, to read as follows: 

§ 226.219 Critical habitat for the Southern 

Distinct Population Segment of North 

American Green Sturgeon (Acipenser 

medirostris). 

Critical habitat is designated for the 

Southern Distinct Population Segment 

of North American green sturgeon 

(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 purposes only and not as a 

definitive source for determining critical 

habitat boundaries. 

(a) Critical habitat boundaries. 

Critical habitat in freshwater riverine 

areas includes the stream channels and 

a lateral extent as defined by the 

ordinary high-water line (33 CFR 

329.11). In areas for which the ordinary 

high-water line has not been defined 

pursuant to 33 CFR 329.11, 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. 

Critical habitat in bays and estuaries 

includes tidally influenced areas as 

defined by the elevation of mean higher 

high water. The boundary between 

coastal marine areas and bays and 

estuaries are delineated by the 

COLREGS lines (33 CFR 80). Critical 

habitat in coastal marine areas is 

defined by the zone between the 60 

fathom (fm) depth bathymetry line and 

the line on shore reached by mean lower 

low water (MLLW), or to the COLREGS 

lines. 

(1) Coastal marine areas: All U.S. 

coastal marine waters out to the 60 fm 

depth bathymetry line (relative to 

MLLW) from Monterey Bay, California 

(36°38′12′′ N./121°56′13′′ W.) north and 

east to include waters in the Strait of 

Juan de Fuca, Washington. The Strait of 

Juan de Fuca includes all U.S. marine 

waters: in Clallam County east of a line 

connecting Cape Flattery (48°23′10′′ N./ 

124°43′32′′ W.), Tatoosh Island 

(48°23′30′′ N./124°44′12′′ W.), and 

Bonilla Point, British Columbia 

(48°35′30′′ N./124°43′00′′ W.); in 

Jefferson and Island counties north and 

west of a line connecting Point Wilson 

(48°08′38′′ N./122°45′07′′ W.) and 

Partridge Point (48°13′29′′ N./122°46′11′′ 

W.); and in San Juan and Skagit 

counties south of lines connecting the 

U.S.-Canada border (48°27′27′′ N./ 

123°09′46′′ W.) and Pile Point (48°28′56′′ 

N./123°05′33′′ W.), Cattle Point (48°27′1′′ 

N./122°57′39′′ W.) and Davis Point 

(48°27′21′′ N./122°56′03′′ W.), and 

Fidalgo Head (48°29′34′′ N./122°42′07′′ 

W.) and Lopez Island (48°28′43′′ N./ 

122°49′08′′ W.). 

(2) Freshwater riverine habitats: 

Critical habitat is designated to include 

the following freshwater riverine areas 

in California: 

(i) Sacramento River, California. From 

the Sacramento I-Street Bridge (40°9′10′′ 

N./122°12′9′′ W.) upstream to Keswick 

Dam (40°36′39′′ N./122°26′46′′ W.), 

including the waters encompassed by 

the Yolo Bypass and the Sutter Bypass 

areas and the lower American River 

from the confluence with the mainstem 

Sacramento River upstream to 38°35′47′′ 

N./121°28′36′′ W. (State Route 160 

bridge over the American River). 

(ii) Lower Feather River, California. 

From the confluence with the mainstem 

Sacramento River upstream to Fish 

Barrier Dam (39°31′13′′ N./121°32′51′′ 

W.). 

(iii) Lower Yuba River, California. 

From the confluence with the mainstem 

Feather River upstream to Daguerre Dam 

(39°12′32′′ N./121°35′53′′ W.). 

(3) Sacramento-San Joaquin Delta, 

California: Critical habitat is designated 

to include the Sacramento-San Joaquin 

Delta including all waterways up to the 

elevation of mean higher high water 

within the area defined in California 

Water Code Section 12220, except for 

the following excluded areas: Clifton 

Court and California Aqueduct Intake 

Channel (all reaches upstream from the 

Clifton Court Radial Gates at 37°49′47′′ 

N./121°33′25′′ W.); Delta-Mendota Canal 

(upstream from 37°48′58′′ N./121°33′30′′ 

W.); Fivemile Slough (all reaches 

upstream from its confluence with 

Fourteenmile Slough at 38°00′50′′ N./ 

121°22′09′′ W.); Indian Slough and 

Werner Cuts (all reaches between the 

entrance to Discovery Bay at 37°55′8′′ 

N./121°35′12′′ W. and the junction of 

Werner Cut and Rock Slough at 

37°58′14′′ N./121°35′41′′ W.); Italian 

Slough (all reaches upstream from 

37°51′39′′ N./121°34′53′′ W.); Rock 

Slough (all reaches upstream from the 

junction with the Old River at 37°58′22′′ 

N./121°34′40′′ W.); Sand Mound Slough 

(all reaches upstream from 37°58′37′′ N./ 

121°37′19′′ W.); Sacramento Deep Water 

Ship Channel (upstream from the 

confluence with Cache Slough at 

38°14′13′′ N./121°40′23′′ W.); Sevenmile 

Slough (all reaches between Threemile 

Slough at 38°06′55′′ N./121°40′55′′ W. 

and Jackson Slough at 38°06′59′′ N./ 

121°37′44′′ W.); Snodgrass Slough (all 

reaches upstream from Lambert Road at 

38°18′33′′ N./121°30′46′′ W.); Tom Paine 

Slough (all reaches upstream from its 

confluence with Middle River at 

37°47′25′′ N./121°25′08′′ W.); Trapper 

Slough (all reaches upstream from 

37°53′36′′ N./121°29′15′′ W.); Unnamed 

oxbow loop (upstream from the 

confluence with the San Joaquin River 

at 37°43′9′′ N./121°16′36′′ W.); Unnamed 

oxbow loop (upstream from the 

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confluence with the San Joaquin River 

at 37°46′9′′ N./121°18′6′′ W.). 

(4) Coastal bays and estuaries: Critical 

habitat is designated to include the 

following coastal bays and estuaries in 

California, Oregon, and Washington: 

(i) San Francisco Bay, San Pablo Bay, 

and Suisun Bay in California. All tidally 

influenced areas of San Francisco Bay, 

San Pablo Bay, and Suisun Bay up to 

the elevation of mean higher high water, 

including, but not limited to, areas 

upstream to the head of tide endpoint 

in: Adobe Creek (38°12′42′′ N./122°36′6′′ 

W.); Alameda Creek (37°36′47′′ N./ 

122°4′18′′ W.); Arroyo Corte Madera del 

Presidio (37°53′43′′ N./122°31′48′′ W.); 

Black John Slough (38°8′12′′ N./ 

122°33′42′′ W.); Black John Slough 

(38°7′59′′ N./122°32′54′′ W.); Carneros 

Creek (38°13′52′′ N./122°18′49′′ W.); 

Colma Creek (37°39′6′′ N./122°25′9′′ W.); 

Coyote Creek (37°52′45′′ N./122°31′31′′ 

W.); Coyote Creek (37°27′17′′ N./ 

121°55′36′′ W.); Coyote Creek, unnamed 

waterway (37°27′56′′ N./121°55′40′′ W.); 

Coyote Creek, unnamed waterway 

(37°26′23′′ N./121°57′29′′ W.); Coyote 

Creek, unnamed waterway (37°27′15′′ 

N./121°56′12′′ W.); Coyote Hills Slough 

(37°34′26′′ N./122°3′36′′ W.); Deverton 

Creek (38°13′38′′ N./121°53′47′′ W.); 

Gallinas Creek (38°0′50′′ N./122°32′24′′ 

W.); Gallinas Creek, South Fork (38°0′4′′ 

N./122°32′9′′ W.); Green Valley Creek 

(38°12′49′′ N./122°7′51′′ W.); Hastings 

Slough (38°1′30′′ N./122°3′35′′ W.); 

Huichica Creek, unnamed tributary 

(38°12′36′′ N./122°21′35′′ W.); Mt Eden 

Creek (37°37′6′′ N./122°7′23′′ W.); Mud 

Slough, unnamed waterway (37°29′48′′ 

N./121°57′14′′ W.); Mud Slough, 

unnamed waterway (37°28′43′′ N./ 

121°57′3′′ W.); Newark Slough 

(37°31′36′′ N./122°3′24′′ W.); Newark 

Slough, unnamed waterway (37°31′51′′ 

N./122°4′7′′ W.); Novato Creek (38°5′50′′ 

N./122°33′52′′ W.); Petaluma River 

(38°14′53′′ N./122°38′17′′ W.); Petaluma 

River, unnamed tributary (38°12′58′′ N./ 

122°34′23′′ W.); Railroad Slough 

(38°13′30′′ N./122°26′28′′ W.); 

Richardson Bay, unnamed tributary 

(37°54′2′′ N./122°31′36′′ W.); San 

Antonio Creek, unnamed tributary 

(38°9′45′′ N./122°34′1′′ W.); San 

Clemente Creek (37°55′12′′ N./ 

122°30′25′′ W.); San Francisco Bay 

shoreline (37°40′44′′ N./122°10′18′′ W.); 

San Francisquito Creek (37°27′10′′ N./ 

122°7′40′′ W.); San Pablo Bay shoreline 

(38°2′44′′ N./122°15′44′′ W.); San Pablo 

Creek (37°58′6′′ N./122°22′42′′ W.); San 

Rafael Creek (37°58′5′′ N./122°31′35′′ 

W.); Seal Slough (37°34′9′′ N./ 

122°17′30′′ W.); Suisun Marsh (38°2′28′′ 

N./121°57′55′′ W.); Suisun Marsh 

(38°2′50′′ N./121°58′39′′ W.); Suisun 

Marsh (38°2′42′′ N./121°56′16′′ W.); 

Suisun Marsh (38°2′30′′ N./121°55′18′′ 

W.); Suisun Marsh, Grizzly Bay 

shoreline (38°5′53′′ N./122°0′35′′ W.); 

Suisun Marsh, Grizzly Bay shoreline 

(38°6′49′′ N./121°58′54′′ W.); Suisun 

Marsh, Grizzly Bay shoreline (38°8′19′′ 

N./121°59′31′′ W.); Suisun Marsh, 

Grizzly Bay shoreline (38°8′6′′ N./ 

121°59′33′′ W.); Tolay Creek (38°9′42′′ 

N./122°26′49′′ W.); Tolay Creek (38°9′6′′ 

N./122°26′49′′ W.); Walnut Creek 

(38°0′16′′ N./122°3′41′′ W.); Wildcat 

Creek (37°57′26′′ N./122°22′45′′ W.). 

(ii) Humboldt Bay, California. All 

tidally influenced areas of Humboldt 

Bay up to the elevation of mean higher 

high water, including, but not limited 

to, areas upstream to the head of tide 

endpoint in: Elk River (40°43′45′′ N./ 

124°11′15′′ W.); Elk River (40°45′9′′ N./ 

124°10′57′′ W.); Elk River (40°45′7′′ N./ 

124°10′58′′ W.); Eureka Slough 

(40°48′14′′ N./124°7′15′′ W.); Eureka 

Slough (40°48′18′′ N./124°8′29′′ W.); 

Eureka Slough (40°48′14′′ N./124°8′22′′ 

W.); Eureka Slough (40°48′9′′ N./ 

124°8′14′′ W.); Freshwater Creek 

(40°46′43′′ N./124°4′48′′ W.); Freshwater 

Slough (40°47′18′′ N./124°6′54′′ W.); 

Freshwater Slough (40°47′10′′ N./ 

124°6′15′′ W.); Freshwater Slough 

(40°48′3′′ N./124°6′53′′ W.); Gannon 

Slough (40°50′48′′ N./124°4′54′′ W.); 

Gannon Slough (40°50′37′′ N./124°4′53′′ 

W.); Jacoby Creek (40°50′22′′ N./ 

124°4′16′′ W.); Jacoby Creek (40°50′25′′ 

N./124°4′56′′ W.); Liscom Slough 

(40°52′35′′ N./124°8′14′′ W.); Mad River 

Slough (40°53′14′′ N./124°8′9′′ W.); Mad 

River Slough (40°53′59′′ N./124°8′1′′ W.); 

Mad River Slough (40°54′1′′ N./124°8′9′′ 

W.); McDaniel Slough (40°51′54′′ N./ 

124°8′52′′ W.); McDaniel Slough 

(40°51′39′′ N./124°6′2′′ W.); Rocky 

Gulch/Washington Gulch (40°49′52′′ N./ 

124°4′58′′ W.); Salmon Creek (40°41′12′′ 

N./124°13′10′′ W.); Unnamed tributary 

(40°42′36′′ N./124°15′45′′ W.); White 

Slough (40°41′56′′ N./124°12′18′′ W.). 

(iii) Coos Bay, Oregon. All tidally 

influenced areas of Coos Bay up to the 

elevation of mean higher high water, 

including, but not limited to, areas 

upstream to the head of tide endpoint 

in: Boone Creek (43°16′31′′ N./124°9′26′′ 

W.); Catching Creek (43°16′31′′ N./ 

124°9′11′′ W.); Coalbank Slough 

(43°21′10′′ N./124°13′17′′ W.); Coos 

River, South Fork (43°22′32′′ N./ 

123°59′34′′ W.); Cox Canyon Creek 

(43°16′13′′ N./124°18′52′′ W.); Daniels 

Creek (43°21′10′′ N./124°5′29′′ W.); 

Davis Creek (43°17′29′′ N./124°14′30′′ 

W.); Day Creek (43°18′59′′ N./124°18′24′′ 

W.); Delmar Creek (43°15′24′′ N./ 

124°13′52′′ W.); Deton Creek (43°24′15′′ 

N./124°3′53′′ W.); Elliot Creek (43°17′45′′ 

N./124°17′45′′ W.); Goat Creek 

(43°15′42′′ N./124°12′58′′ W.); Haynes 

Inlet (43°27′56′′ N./124°11′22′′ W.); 

Hayward Creek (43°19′7′′ N./124°19′59′′ 

W.); Joe Ney Slough (43°20′12′′ N./ 

124°17′39′′ W.); John B Creek (43°16′59′′ 

N./124°18′27′′ W.); Kentuck Slough 

(43°25′19′′ N./124°11′19′′ W.); Larson 

Slough (43°27′43′′ N./124°11′38′′ W.); 

Lillian Creek (43°21′41′′ N./124°8′41′′ 

W.); Mart Davis Creek (43°22′58′′ N./ 

124°5′38′′ W.); Matson Creek (43°18′27′′ 

N./124°8′16′′ W.); Millicoma River, East 

Fork (43°25′50′′ N./124°1′2′′ W.); 

Millicoma River, West Fork (43°25′48′′ 

N./124°2′50′′ W.); Noble Creek 

(43°15′16′′ N./124°12′54′′ W.); North 

Slough (43°29′26′′ N./124°13′14′′ W.); 

Pony Creek (43°24′6′′ N./124°13′55′′ W.); 

Seelander Creek (43°17′15′′ N./124°8′41′′ 

W.); Shinglehouse Slough (43°19′4′′ N./ 

124°13′14′′ W.); Stock Slough (43°19′58′′ 

N./124°8′22′′ W.); Talbot Creek (43°17′1′′ 

N./124°17′49′′ W.); Theodore Johnson 

Creek (43°16′16′′ N./124°19′22′′ W.); 

Unnamed Creek (43°17′24′′ N./ 

124°17′56′′ W.); Unnamed Creek 

(43°18′27′′ N./124°7′55′′ W.); Unnamed 

Creek (43°21′12′′ N./124°9′17′′ W.); 

Vogel Creek (43°22′10′′ N./124°8′49′′ 

W.); Wasson Creek (43°16′3′′ N./ 

124°19′23′′ W.); Willanch Slough 

(43°24′5′′ N./124°11′27′′ W.); Wilson 

Creek (43°16′51′′ N./124°9′2′′ W.); 

Winchester Creek (43°15′49′′ N./ 

124°19′10′′ W.). 

(iv) Winchester Bay, Oregon. All 

tidally influenced areas of Winchester 

Bay up to the elevation of mean higher 

high water, including, but not limited 

to, areas upstream to the head of tide 

endpoint in: Brainard Creek (43°44′46′′ 

N./124°1′39′′ W.); Butler Creek 

(43°42′50′′ N./124°3′0′′ W.); Eslick Creek 

(43°47′46′′ N./123°58′40′′ W.); Frantz 

Creek (43°44′50′′ N./124°5′25′′ W.); 

Hudson Slough (43°44′56′′ N./124°4′43′′ 

W.); Joyce Creek (43°45′32′′ N./124°1′49′′ 

W.); Noel Creek (43°46′21′′ N./124°0′6′′ 

W.); Oar Creek (43°40′26′′ N./124°3′41′′ 

W.); Otter Creek (43°43′28′′ N./124°0′4′′ 

W.); Providence Creek (43°43′13′′ N./ 

124°7′44′′ W.); Scholfield Creek 

(43°40′36′′ N./124°5′38′′ W.); Silver 

Creek (43°40′37′′ N./124°9′21′′ W.); 

Smith River (43°47′48′′ N./123°53′3′′ 

W.); Smith River, North Fork (43°48′17′′ 

N./123°55′59′′ W.); Umpqua River 

(43°40′3′′ N./123°48′32′′ W.); Unnamed 

Creek (43°40′6′′ N./124°10′44′′ W.); 

Unnamed Creek (43°40′14′′ N./124°9′26′′ 

W.); Winchester Creek (43°40′20′′ N./ 

124°8′49′′ W.). 

(v) Yaquina Bay, Oregon. All tidally 

influenced areas of Yaquina Bay up to 

the elevation of mean higher high water, 

including, but not limited to, areas 

upstream to the head of tide endpoint 

in: Babcock Creek (44°35′33′′ N./ 

123°55′42′′ W.); Big Elk Creek (44°35′23′′ 

N./123°50′43′′ W.); Boone Slough 

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Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 52347 

(44°35′5′′ N./123°57′50′′ W.); Depot 

Creek (44°38′30′′ N./123°56′54′′ W.); 

Flesher Slough (44°34′0′′ N./123°58′53′′ 

W.); Johnson Slough (44°34′60′′ N./ 

123°59′10′′ W.); King Slough (44°35′35′′ 

N./124°1′55′′ W.); McCaffery Slough 

(44°33′56′′ N./124°1′10′′ W.); Mill Creek 

(44°35′7′′ N./123°53′57′′ W.); 

Montgomery Creek (44°35′8′′ N./ 

123°56′18′′ W.); Nute Slough (44°35′19′′ 

N./123°57′30′′ W.); Olalla Creek 

(44°36′48′′ N./123°55′30′′ W.); Parker 

Slough (44°35′21′′ N./124°0′50′′ W.); 

Poole Slough (44°33′27′′ N./123°58′46′′ 

W.); Yaquina River (44°39′4′′ N./ 

123°51′26′′ W.). 

(vi) Nehalem Bay, Oregon. All tidally 

influenced areas of Yaquina Bay up to 

the elevation of mean higher high water, 

including, but not limited to, areas 

upstream to the head of tide endpoint 

in: Alder Creek (45°42′52′′ N./123°54′12′′ 

W.); Anderson Creek (45°44′25′′ N./ 

123°52′26′′ W.); Coal Creek (45°44′49′′ 

N./123°51′57′′ W.); Foley Creek 

(45°41′48′′ N./123°50′53′′ W.); Gallagher 

Slough (45°42′4′′ N./123°52′50′′ W.); 

Messhouse Creek (45°40′0′′ N./ 

123°55′32′′ W.); Nehalem River 

(45°41′48′′ N./123°49′31′′ W.); Nehalem 

River, North Fork (45°47′11′′ N./ 

123°49′19′′ W.); Unnamed Creek 

(45°44′35′′ N./123°51′53′′ W.); Unnamed 

Creek (45°44′53′′ N./123°51′12′′ W.); 

Unnamed Creek (45°45′6′′ N./123°50′56′′ 

W.); Unnamed Creek (45°44′11′′ N./ 

123°51′40′′ W.); Unnamed Creek 

(45°44′7′′ N./123°51′40′′ W.); Unnamed 

Creek (45°43′44′′ N./123°52′35′′ W.). 

(vii) Lower Columbia River estuary, 

Washington and Oregon. All tidally 

influenced areas of the lower Columbia 

River estuary from the mouth upstream 

to river kilometer 74, up to the elevation 

of mean higher high water, including, 

but not limited to, areas upstream to the 

head of tide endpoint in: Bear Creek 

(46°10′0′′ N./123°40′6′′ W.); Big Creek 

(46°10′33′′ N./123°35′30′′ W.); Blind 

Slough/Gnat Creek (46°10′47′′ N./ 

123°31′45′′ W.); Chinook River 

(46°18′14′′ N./123°58′1′′ W.); Deep Creek 

(46°19′3′′ N./123°42′23′′ W.); Driscol 

Slough (46°8′35′′ N./123°23′44′′ W.); 

Ferris Creek (46°10′5′′ N./123°39′8′′ W.); 

Grays River (46°21′34′′ N./123°35′5′′ W.); 

Hunt Creek (46°11′46′′ N./123°26′30′′ 

W.); Jim Crow Creek (46°16′19′′ N./ 

123°33′26′′ W.); John Day River 

(46°9′13′′ N./123°43′16′′ W.); John Day 

River (46°9′10′′ N./123°43′27′′ W.); 

Klaskanine River (46°5′33′′ N./ 

123°44′52′′ W.); Lewis and Clark River 

(46°5′52′′ N./123°51′4′′ W.); Marys Creek 

(46°10′12′′ N./123°40′17′′ W.); Seal 

Slough (46°19′20′′ N./123°40′15′′ W.); 

Sisson Creek (46°18′25′′ N./123°43′46′′ 

W.); Skamokawa Creek (46°19′11′′ N./ 

123°27′20′′ W.); Skipanon River 

(46°9′31′′ N./123°55′34′′ W.); Wallacut 

River (46°19′28′′ N./123°59′11′′ W.); 

Wallooskee River (46°7′7′′ N./123°46′25′′ 

W.); Westport Slough/Clatskanie River 

(46°8′4′′ N./123°13′31′′ W.); Youngs 

River (46°4′11′′ N./123°47′9′′ W.). 

(viii) Willapa Bay, Washington. All 

tidally influenced areas of Willapa Bay 

up to the elevation of mean higher high 

water, including, but not limited to, 

areas upstream to the head of tide 

endpoint in: Bear River (46°20′5′′ N./ 

123°56′8′′ W.); Bone River (46°39′29′′ N./ 

123°54′2′′ W.); Cedar River (46°45′37′′ 

N./124°0′3′′ W.); Naselle River 

(46°22′32′′ N./123°49′19′′ W.); Middle 

Nemah River (46°28′42′′ N./123°51′13′′ 

W.); North Nemah River (46°30′56′′ N./ 

123°52′27′′ W.); South Nemah River 

(46°28′37′′ N./123°53′15′′ W.); 

Niawiakum River (46°36′39′′ N./ 

123°53′34′′ W.); North River (46°48′51′′ 

N./123°50′54′′ W.); Palix River, Middle 

Fork (46°35′46′′ N./123°52′29′′ W.); Palix 

River, North Fork (46°36′10′′ N./ 

123°52′26′′ W.); Palix River, South Fork 

(46°34′30′′ N./123°53′42′′ W.); Stuart 

Slough (46°41′9′′ N./123°52′16′′ W.); 

Willapa River (46°38′50′′ N./123°38′50′′ 

W.). 

(ix) Grays Harbor, Washington. All 

tidally influenced areas of Grays Harbor 

up to the elevation of mean higher high 

water, including, but not limited to, 

areas upstream to the head of tide 

endpoint in: Andrews Creek (46°49′23′′ 

N./124°1′23′′ W.); Beaver Creek 

(46°54′20′′ N./123°58′53′′ W.); Campbell 

Creek (46°56′9′′ N./123°53′12′′ W.); 

Campbell Slough (47°2′45′′ N./124°3′40′′ 

W.); Chapin Creek (46°56′18′′ N./ 

123°52′30′′ W.); Charley Creek 

(46°56′55′′ N./123°49′53′′ W.); Chehalis 

River (46°58′16′′ N./123°35′38′′ W.); 

Chenois Creek (47°2′36′′ N./124°0′54′′ 

W.); Elk River (46°50′8′′ N./123°59′8′′ 

W.); Gillis Slough (47°2′34′′ N./ 

124°2′29′′ W.); Grass Creek (47°1′41′′ N./ 

124°0′40′′ W.); Hoquiam River (47°3′3′′ 

N./123°55′34′′ W.); Hoquiam River, East 

Fork (47°3′7′′ N./123°51′25′′ W.); 

Humptulips River (47°5′42′′ N./ 

124°3′34′′ W.); Indian Creek (46°55′55′′ 

N./123°53′47′′ W.); Jessie Slough 

(47°3′23′′ N./124°3′0′′ W.); Johns River 

(46°52′28′′ N./123°57′2′′ W.); Newskah 

Creek (46°56′26′′ N./123°50′58′′ W.); 

O’Leary Creek (46°54′51′′ N./123°57′24′′ 

W.); Stafford Creek (46°55′51′′ N./ 

123°54′28′′ W.); Wishkah River (47°2′39′′ 

N./123°47′20′′ W.); Wynoochee River 

(46°58′19′′ N./123°36′57′′ W.). 

(b) Primary constituent elements. The 

primary constituent elements essential 

for the conservation of the Southern 

DPS of green sturgeon are: 

(1) For freshwater riverine systems: 

(i) Food resources. Abundant prey 

items for larval, juvenile, subadult, and 

adult life stages. 

(ii) Substrate type or size (i.e., 

structural features of substrates). 

Substrates suitable for egg deposition 

and development (e.g., bedrock sills and 

shelves, cobble and gravel, or hard clean 

sand, with interstices or irregular 

surfaces to ‘‘collect’’ eggs and provide 

protection from predators, and free of 

excessive silt and debris that could 

smother eggs during incubation), larval 

development (e.g., substrates with 

interstices or voids providing refuge 

from predators and from high flow 

conditions), and subadults and adults 

(e.g., substrates for holding and 

spawning). 

(iii) Water flow. A flow regime (i.e., 

the magnitude, frequency, duration, 

seasonality, and rate-of-change of fresh 

water discharge over time) necessary for 

normal behavior, growth, and survival 

of all life stages. 

(iv) Water quality. Water quality, 

including temperature, salinity, oxygen 

content, and other chemical 

characteristics, necessary for normal 

behavior, growth, and viability of all life 

stages. 

(v) Migratory corridor. A migratory 

pathway necessary for the safe and 

timely passage of Southern DPS fish 

within riverine habitats and between 

riverine and estuarine habitats (e.g., an 

unobstructed river or dammed river that 

still allows for safe and timely passage). 

(vi) Depth. Deep (≥5 m) holding pools 

for both upstream and downstream 

holding of adult or subadult fish, with 

adequate water quality and flow to 

maintain the physiological needs of the 

holding adult or subadult fish. 

(vii) Sediment quality. Sediment 

quality (i.e., chemical characteristics) 

necessary for normal behavior, growth, 

and viability of all life stages. 

(2) For estuarine habitats: 

(i) Food resources. Abundant prey 

items within estuarine habitats and 

substrates for juvenile, subadult, and 

adult life stages. 

(ii) Water flow. Within bays and 

estuaries adjacent to the Sacramento 

River (i.e., the Sacramento-San Joaquin 

Delta and the Suisun, San Pablo, and 

San Francisco bays), sufficient flow into 

the bay and estuary to allow adults to 

successfully orient to the incoming flow 

and migrate upstream to spawning 

grounds. 

(iii) Water quality. Water quality, 

including temperature, salinity, oxygen 

content, and other chemical 

characteristics, necessary for normal 

behavior, growth, and viability of all life 

stages. 

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52348 Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 

(iv) Migratory corridor. A migratory 

pathway necessary for the safe and 

timely passage of Southern DPS fish 

within estuarine habitats and between 

estuarine and riverine or marine 

habitats. 

(v) Depth. A diversity of depths 

necessary for shelter, foraging, and 

migration of juvenile, subadult, and 

adult life stages. 

(vi) Sediment quality. Sediment 

quality (i.e., chemical characteristics) 

necessary for normal behavior, growth, 

and viability of all life stages. 

(3) For nearshore coastal marine 

areas: 

(i) Migratory corridor. A migratory 

pathway necessary for the safe and 

timely passage of Southern DPS fish 

within marine and between estuarine 

and marine habitats. 

(ii) Water quality. Nearshore marine 

waters with adequate dissolved oxygen 

levels and acceptably low levels of 

contaminants (e.g., pesticides, 

organochlorines, elevated levels of 

heavy metals) that may disrupt the 

normal behavior, growth, and viability 

of subadult and adult green sturgeon. 

(iii) Food resources. Abundant prey 

items for subadults and adults, which 

may include benthic invertebrates and 

fishes. 

(c) Sites owned or controlled by the 

Department of Defense. Critical habitat 

does not include the following areas 

owned or controlled by the Department 

of Defense, or designated for its use, in 

the States of California, Oregon, and 

Washington: 

(1) Mare Island U.S. Army Reserve 

Center, San Pablo Bay, CA; 

(2) Strait of Juan de Fuca naval air-tosurface weapon range, restricted area, 

WA; 

(3) Strait of Juan de Fuca and 

Whidbey Island naval restricted area, 

WA; 

(4) Admiralty Inlet naval restricted 

area, Strait of Juan de Fuca, WA; and 

(5) Navy 3 operating area, Strait of 

Juan de Fuca, WA. 

(d) 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) Cachil DeHe Band of Wintun 

Indians of the Colusa Indian 

Community, California; 

(2) Cher-Ae Heights Trinidad 

Rancheria, California; 

(3) Confederated Tribes of the Coos, 

Lower Umpqua, and Siuslaw, Oregon; 

(4) Coquille Indian Tribe, Oregon; 

(5) Hoh Tribe, Washington; 

(6) Jamestown S’Klallam Tribe, 

Washington; 

(7) Lower Elwha Tribe, Washington; 

(8) Makah Tribe, Washington; 

(9) Quileute Tribe, Washington; 

(10) Quinault Tribe, Washington; 

(11) Shoalwater Bay Tribe, 

Washington; 

(12) Wiyot Tribe, California; and 

(13) Yurok Tribe, California. 

(e) Overview maps of final critical 

habitat for the Southern DPS of green 

sturgeon follow: 

BILLING CODE 3510–22–P 

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Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 52349 


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52350 Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 


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Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 52351 

[FR Doc. E9–24067 Filed 10–8–09; 8:45 am] 

BILLING CODE 3510–22–C 


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