[Federal Register Volume 74, Number 195 (Friday, October 9, 2009)]
[Rules and Regulations]
[Pages 52300-52351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24067]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 226



Endangered and Threatened Wildlife and Plants: Final Rulemaking To 
Designate Critical Habitat for the Threatened Southern Distinct 
Population Segment of North American Green Sturgeon; Final Rule

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

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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.

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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 km\2\ (897 mi\2\) of estuarine habitat, 29,581 km\2\ 
(11,421 mi\2\) of marine habitat, 784 km (487 mi) of habitat in the 
Sacramento-San Joaquin Delta, and 350 km\2\ (135 mi\2\) 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 km\2\ (1,137 mi\2\) of estuarine habitat and 1,034,935 
km\2\ (399,590 mi\2\) 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

[[Page 52301]]

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 [deg]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-by-project 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 co-occur 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 non-natal 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

[[Page 52304]]

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 case-by-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

[[Page 52305]]

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

[[Page 52306]]

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 re-evaluation 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 salmon-
based 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 year-round 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

[[Page 52307]]

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

[[Page 52308]]

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

[[Page 52309]]

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

[[Page 52310]]

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

[[Page 52311]]

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, project-specific 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

[[Page 52312]]

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

[[Page 52313]]

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 NPDES-permitted 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 watershed-
based 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

[[Page 52314]]

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

[[Page 52315]]

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.

[[Page 52316]]

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, in-water 
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.

[[Page 52317]]

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

[[Page 52318]]

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

[[Page 52319]]

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 one-half 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)

[[Page 52320]]

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-to-Surface 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,

[[Page 52321]]

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

[[Page 52322]]

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

[[Page 52323]]

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 non-spawning 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 [deg]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 m\3\/s (average daily water flow during spawning months: 
198-306 m\3\/s) (Brown 2007). Post-spawning downstream migrations are 
triggered by increased flows, ranging from 174-417 m\3\/s in the late 
summer (Vogel 2005) and greater than 100 m\3\/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 [deg]C 
(optimal range = 14-16 [deg]C) in spawning reaches for egg incubation 
(March-August) (Van Eenennaam et al. 2005); temperatures below 20 
[deg]C for larval development (Werner et al. 2007); and temperatures 
below 24 [deg]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 
O<INF>2</INF> hr<SUP>-</SUP>\1\ kg<SUP>-</SUP>\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).

[[Page 52324]]

    (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 
con-specifics 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 
[deg]C. At temperatures above 24 [deg]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 
0<INF>2</INF>/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 O<INF>2</INF> hr<SUP>-</SUP>\1\ kg<SUP>-</SUP>\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

[[Page 52325]]

timely passage of Southern DPS fish within marine and between estuarine 
and 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 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 
O<INF>2</INF>/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,

[[Page 52326]]

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

[[Page 52327]]

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 bottom-trawl 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 long-distance 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

[[Page 52328]]

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 non-point 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 Sacramento-San 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 = in-water 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


[[Page 52329]]


 Table 1--Summary of Occupied Specific Areas Within Freshwater Rivers, the Bypasses, the Sacramento-San 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 = in-water 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]
----------------------------------------------------------------------------------------------------------------
                                            Area  (sq
              Specific area                    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            414  Fd, P, Sq, Wq...............  CON, DAM, DR, LNG, POLL,
 74).                                                                                 SHIP
Lower Columbia River (RKM 74 to                   207  Fd, P, Sq, Wq...............  CON, DAM, DR, POLL, SHIP
 Bonneville Dam).
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,         3,868  Fd, P, Wq...................  BOT, CON, DESAL, DR, EP,
 CA.                                                                                  LNG, POLL, PP
San Francisco Bay, CA, to Humboldt Bay,         5,385  Fd, P, Wq...................  BOT, DR, EP, LNG, POLL, PP
 CA.
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.              6,789  Fd, P, Wq...................  BOT, DR, EP, LNG, POLL
 estuary.
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           974,505  Fd, P, Wq...................  BOT, DR, EP, LNG, POLL,
 Yakutat Bay, AK, including the Bering                                                SHIP
 Sea to the Bering Strait.
----------------------------------------------------------------------------------------------------------------

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--

[[Page 52330]]

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

[[Page 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 ``co-
extensive'' 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 ``co-extensive'' 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

[[Page 52332]]

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

[[Page 52333]]

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 ``Ultra-low,''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

[[Page 52334]]

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 
Ultra-Low 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

[[Page 52335]]

 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, in-water construction, and point and 
non-point 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

[[Page 52336]]

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 ``stepping-
stone'' 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

[[Page 52337]]

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
----------------------------------------------------------------------------------------------------------------
                                                                        Specific    DOD site
         DOD sites & agency             Overlapping specific area &     area size    overlap        Exclude?
                                            conservation value          (km \2\)    (km \2\)
----------------------------------------------------------------------------------------------------------------
(1) Mare Island US Army Reserve      San Pablo Bay, CA (High)........       331.0        0.05  Yes.
 (Army).
(2) Camp Rilea (Army)..............  Coastal marine area from             6,796.9        20.3  No.
                                      Winchester Bay, OR, to Columbia
                                      R, estuary (High).
(3) Admiralty Inlet Naval            Strait of Juan de Fuca, WA           1,348.6       134.7  Yes.
 Restricted Area (Navy).              (High).
(4) Strait of Juan de Fuca &         Strait of Juan de Fuca, WA           1,348.6         4.9  Yes.
 Whidbey Island Naval Restricted      (High).
 Area (Navy).
(5) Strait of Juan de Fuca Naval     Strait of Juan de Fuca, WA           1,348.6        16.8  Yes.
 Air-to-Surface Weapon Range          (High).
 Restricted Area (Navy).
(6) Navy 3 Operating Area (Navy)...  Strait of Juan de Fuca, WA           1,348.6       162.5  Yes.
                                      (High).
(7) Surf zone portion of Quinault    Coastal marine area from Grays       4,923.5         N/A  No.
 Underwater Tracking Range (QUTR).    Harbor, WA, to U.S.-WA/Canada
                                      border (High).
----------------------------------------------------------------------------------------------------------------


[[Page 52338]]

    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 mi\2\ 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

[[Page 52339]]

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 ecosystem-wide 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.

[[Page 52340]]



 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
----------------------------------------------------------------------------------------------------------------
                                                                                     Estimated km  of excluded
                Tribe * *                    Specific area & conservation value              shoreline
----------------------------------------------------------------------------------------------------------------
Cachil DeHe Band of Wintun Indians of the  Sacramento River, CA (High)...........  0.2
 Colusa Indian Community, CA.
Cher-Ae Heights Trinidad Rancheria.......  Coastal marine area from Humboldt Bay,  0.6
                                            CA, to Coos Bay, OR (High).
Confederated Tribes of the Coos, Lower     (a) Coos Bay, OR (Medium) and.........  1.1 (total),
 Umpqua, and Siuslaw, OR.                  (b) coastal marine area from Humboldt   (a) 0.3,
                                            Bay, CA, to Coos Bay, OR (High).       (b) 0.8
Coquille Indian Tribe....................  Coos Bay, OR (Medium).................  2.6
Hoh Tribe................................  Coastal marine area from Grays Harbor,  2.6
                                            WA, to Cape Flattery (High).
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)   40.4 (total),
                                            and (b) coastal marine area from       (a) 19.2,
                                            Grays Harbor, WA, to Cape Flattery     (b) 21.2
                                            (High).
Quileute Tribe...........................  Coastal marine area from Grays Harbor,  3.9
                                            WA, to Cape Flattery (specifically,
                                            Quillayute River) (High).
Quinault Tribe...........................  Coastal marine area from Grays Harbor,  40.6
                                            WA, to Cape Flattery (High).
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,  1.4
                                            CA, to Coos Bay, OR (High).
----------------------------------------------------------------------------------------------------------------
* * 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 km\2\ (897 mi\2\) of estuarine habitat in 
California, Oregon, and Washington, and 29,581 km\2\ (11,421 mi\2\) 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 km\2\ (135 mi\2\) 
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 high-water 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,

[[Page 52341]]

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

[[Page 52342]]

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

[[Page 52343]]

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.

[[Page 52344]]

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 non-Federal 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 case-by-
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

[[Page 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.

0
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

0
1. The authority citation of part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533.

0
2. Add Sec.  226.219, to read as follows:


Sec.  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[deg]38'12'' N./121[deg]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[deg]23'10'' N./124[deg]43'32'' W.), 
Tatoosh Island (48[deg]23'30'' N./124[deg]44'12'' W.), and Bonilla 
Point, British Columbia (48[deg]35'30'' N./124[deg]43'00'' W.); in 
Jefferson and Island counties north and west of a line connecting Point 
Wilson (48[deg]08'38'' N./122[deg]45'07'' W.) and Partridge Point 
(48[deg]13'29'' N./122[deg]46'11'' W.); and in San Juan and Skagit 
counties south of lines connecting the U.S.-Canada border 
(48[deg]27'27'' N./123[deg]09'46'' W.) and Pile Point (48[deg]28'56'' 
N./123[deg]05'33'' W.), Cattle Point (48[deg]27'1'' N./122[deg]57'39'' 
W.) and Davis Point (48[deg]27'21'' N./122[deg]56'03'' W.), and Fidalgo 
Head (48[deg]29'34'' N./122[deg]42'07'' W.) and Lopez Island 
(48[deg]28'43'' N./122[deg]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[deg]9'10'' N./122[deg]12'9'' W.) upstream to Keswick Dam 
(40[deg]36'39'' N./122[deg]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[deg]35'47'' N./121[deg]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[deg]31'13'' 
N./121[deg]32'51'' W.).
    (iii) Lower Yuba River, California. From the confluence with the 
mainstem Feather River upstream to Daguerre Dam (39[deg]12'32'' N./
121[deg]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[deg]49'47'' N./121[deg]33'25'' W.); Delta-Mendota Canal (upstream 
from 37[deg]48'58'' N./121[deg]33'30'' W.); Fivemile Slough (all 
reaches upstream from its confluence with Fourteenmile Slough at 
38[deg]00'50'' N./121[deg]22'09'' W.); Indian Slough and Werner Cuts 
(all reaches between the entrance to Discovery Bay at 37[deg]55'8'' N./
121[deg]35'12'' W. and the junction of Werner Cut and Rock Slough at 
37[deg]58'14'' N./121[deg]35'41'' W.); Italian Slough (all reaches 
upstream from 37[deg]51'39'' N./121[deg]34'53'' W.); Rock Slough (all 
reaches upstream from the junction with the Old River at 37[deg]58'22'' 
N./121[deg]34'40'' W.); Sand Mound Slough (all reaches upstream from 
37[deg]58'37'' N./121[deg]37'19'' W.); Sacramento Deep Water Ship 
Channel (upstream from the confluence with Cache Slough at 
38[deg]14'13'' N./121[deg]40'23'' W.); Sevenmile Slough (all reaches 
between Threemile Slough at 38[deg]06'55'' N./121[deg]40'55'' W. and 
Jackson Slough at 38[deg]06'59'' N./121[deg]37'44'' W.); Snodgrass 
Slough (all reaches upstream from Lambert Road at 38[deg]18'33'' N./
121[deg]30'46'' W.); Tom Paine Slough (all reaches upstream from its 
confluence with Middle River at 37[deg]47'25'' N./121[deg]25'08'' W.); 
Trapper Slough (all reaches upstream from 37[deg]53'36'' N./
121[deg]29'15'' W.); Unnamed oxbow loop (upstream from the confluence 
with the San Joaquin River at 37[deg]43'9'' N./121[deg]16'36'' W.); 
Unnamed oxbow loop (upstream from the

[[Page 52346]]

confluence with the San Joaquin River at 37[deg]46'9'' N./
121[deg]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[deg]12'42'' N./122[deg]36'6'' W.); Alameda Creek 
(37[deg]36'47'' N./122[deg]4'18'' W.); Arroyo Corte Madera del Presidio 
(37[deg]53'43'' N./122[deg]31'48'' W.); Black John Slough 
(38[deg]8'12'' N./122[deg]33'42'' W.); Black John Slough (38[deg]7'59'' 
N./122[deg]32'54'' W.); Carneros Creek (38[deg]13'52'' N./
122[deg]18'49'' W.); Colma Creek (37[deg]39'6'' N./122[deg]25'9'' W.); 
Coyote Creek (37[deg]52'45'' N./122[deg]31'31'' W.); Coyote Creek 
(37[deg]27'17'' N./121[deg]55'36'' W.); Coyote Creek, unnamed waterway 
(37[deg]27'56'' N./121[deg]55'40'' W.); Coyote Creek, unnamed waterway 
(37[deg]26'23'' N./121[deg]57'29'' W.); Coyote Creek, unnamed waterway 
(37[deg]27'15'' N./121[deg]56'12'' W.); Coyote Hills Slough 
(37[deg]34'26'' N./122[deg]3'36'' W.); Deverton Creek (38[deg]13'38'' 
N./121[deg]53'47'' W.); Gallinas Creek (38[deg]0'50'' N./
122[deg]32'24'' W.); Gallinas Creek, South Fork (38[deg]0'4'' N./
122[deg]32'9'' W.); Green Valley Creek (38[deg]12'49'' N./
122[deg]7'51'' W.); Hastings Slough (38[deg]1'30'' N./122[deg]3'35'' 
W.); Huichica Creek, unnamed tributary (38[deg]12'36'' N./
122[deg]21'35'' W.); Mt Eden Creek (37[deg]37'6'' N./122[deg]7'23'' 
W.); Mud Slough, unnamed waterway (37[deg]29'48'' N./121[deg]57'14'' 
W.); Mud Slough, unnamed waterway (37[deg]28'43'' N./121[deg]57'3'' 
W.); Newark Slough (37[deg]31'36'' N./122[deg]3'24'' W.); Newark 
Slough, unnamed waterway (37[deg]31'51'' N./122[deg]4'7'' W.); Novato 
Creek (38[deg]5'50'' N./122[deg]33'52'' W.); Petaluma River 
(38[deg]14'53'' N./122[deg]38'17'' W.); Petaluma River, unnamed 
tributary (38[deg]12'58'' N./122[deg]34'23'' W.); Railroad Slough 
(38[deg]13'30'' N./122[deg]26'28'' W.); Richardson Bay, unnamed 
tributary (37[deg]54'2'' N./122[deg]31'36'' W.); San Antonio Creek, 
unnamed tributary (38[deg]9'45'' N./122[deg]34'1'' W.); San Clemente 
Creek (37[deg]55'12'' N./122[deg]30'25'' W.); San Francisco Bay 
shoreline (37[deg]40'44'' N./122[deg]10'18'' W.); San Francisquito 
Creek (37[deg]27'10'' N./122[deg]7'40'' W.); San Pablo Bay shoreline 
(38[deg]2'44'' N./122[deg]15'44'' W.); San Pablo Creek (37[deg]58'6'' 
N./122[deg]22'42'' W.); San Rafael Creek (37[deg]58'5'' N./
122[deg]31'35'' W.); Seal Slough (37[deg]34'9'' N./122[deg]17'30'' W.); 
Suisun Marsh (38[deg]2'28'' N./121[deg]57'55'' W.); Suisun Marsh 
(38[deg]2'50'' N./121[deg]58'39'' W.); Suisun Marsh (38[deg]2'42'' N./
121[deg]56'16'' W.); Suisun Marsh (38[deg]2'30'' N./121[deg]55'18'' 
W.); Suisun Marsh, Grizzly Bay shoreline (38[deg]5'53'' N./
122[deg]0'35'' W.); Suisun Marsh, Grizzly Bay shoreline (38[deg]6'49'' 
N./121[deg]58'54'' W.); Suisun Marsh, Grizzly Bay shoreline 
(38[deg]8'19'' N./121[deg]59'31'' W.); Suisun Marsh, Grizzly Bay 
shoreline (38[deg]8'6'' N./121[deg]59'33'' W.); Tolay Creek 
(38[deg]9'42'' N./122[deg]26'49'' W.); Tolay Creek (38[deg]9'6'' N./
122[deg]26'49'' W.); Walnut Creek (38[deg]0'16'' N./122[deg]3'41'' W.); 
Wildcat Creek (37[deg]57'26'' N./122[deg]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[deg]43'45'' N./124[deg]11'15'' W.); Elk River (40[deg]45'9'' 
N./124[deg]10'57'' W.); Elk River (40[deg]45'7'' N./124[deg]10'58'' 
W.); Eureka Slough (40[deg]48'14'' N./124[deg]7'15'' W.); Eureka Slough 
(40[deg]48'18'' N./124[deg]8'29'' W.); Eureka Slough (40[deg]48'14'' 
N./124[deg]8'22'' W.); Eureka Slough (40[deg]48'9'' N./124[deg]8'14'' 
W.); Freshwater Creek (40[deg]46'43'' N./124[deg]4'48'' W.); Freshwater 
Slough (40[deg]47'18'' N./124[deg]6'54'' W.); Freshwater Slough 
(40[deg]47'10'' N./124[deg]6'15'' W.); Freshwater Slough (40[deg]48'3'' 
N./124[deg]6'53'' W.); Gannon Slough (40[deg]50'48'' N./124[deg]4'54'' 
W.); Gannon Slough (40[deg]50'37'' N./124[deg]4'53'' W.); Jacoby Creek 
(40[deg]50'22'' N./124[deg]4'16'' W.); Jacoby Creek (40[deg]50'25'' N./
124[deg]4'56'' W.); Liscom Slough (40[deg]52'35'' N./124[deg]8'14'' 
W.); Mad River Slough (40[deg]53'14'' N./124[deg]8'9'' W.); Mad River 
Slough (40[deg]53'59'' N./124[deg]8'1'' W.); Mad River Slough 
(40[deg]54'1'' N./124[deg]8'9'' W.); McDaniel Slough (40[deg]51'54'' 
N./124[deg]8'52'' W.); McDaniel Slough (40[deg]51'39'' N./124[deg]6'2'' 
W.); Rocky Gulch/Washington Gulch (40[deg]49'52'' N./124[deg]4'58'' 
W.); Salmon Creek (40[deg]41'12'' N./124[deg]13'10'' W.); Unnamed 
tributary (40[deg]42'36'' N./124[deg]15'45'' W.); White Slough 
(40[deg]41'56'' N./124[deg]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[deg]16'31'' N./124[deg]9'26'' W.); Catching Creek (43[deg]16'31'' 
N./124[deg]9'11'' W.); Coalbank Slough (43[deg]21'10'' N./
124[deg]13'17'' W.); Coos River, South Fork (43[deg]22'32'' N./
123[deg]59'34'' W.); Cox Canyon Creek (43[deg]16'13'' N./
124[deg]18'52'' W.); Daniels Creek (43[deg]21'10'' N./124[deg]5'29'' 
W.); Davis Creek (43[deg]17'29'' N./124[deg]14'30'' W.); Day Creek 
(43[deg]18'59'' N./124[deg]18'24'' W.); Delmar Creek (43[deg]15'24'' 
N./124[deg]13'52'' W.); Deton Creek (43[deg]24'15'' N./124[deg]3'53'' 
W.); Elliot Creek (43[deg]17'45'' N./124[deg]17'45'' W.); Goat Creek 
(43[deg]15'42'' N./124[deg]12'58'' W.); Haynes Inlet (43[deg]27'56'' 
N./124[deg]11'22'' W.); Hayward Creek (43[deg]19'7'' N./124[deg]19'59'' 
W.); Joe Ney Slough (43[deg]20'12'' N./124[deg]17'39'' W.); John B 
Creek (43[deg]16'59'' N./124[deg]18'27'' W.); Kentuck Slough 
(43[deg]25'19'' N./124[deg]11'19'' W.); Larson Slough (43[deg]27'43'' 
N./124[deg]11'38'' W.); Lillian Creek (43[deg]21'41'' N./124[deg]8'41'' 
W.); Mart Davis Creek (43[deg]22'58'' N./124[deg]5'38'' W.); Matson 
Creek (43[deg]18'27'' N./124[deg]8'16'' W.); Millicoma River, East Fork 
(43[deg]25'50'' N./124[deg]1'2'' W.); Millicoma River, West Fork 
(43[deg]25'48'' N./124[deg]2'50'' W.); Noble Creek (43[deg]15'16'' N./
124[deg]12'54'' W.); North Slough (43[deg]29'26'' N./124[deg]13'14'' 
W.); Pony Creek (43[deg]24'6'' N./124[deg]13'55'' W.); Seelander Creek 
(43[deg]17'15'' N./124[deg]8'41'' W.); Shinglehouse Slough 
(43[deg]19'4'' N./124[deg]13'14'' W.); Stock Slough (43[deg]19'58'' N./
124[deg]8'22'' W.); Talbot Creek (43[deg]17'1'' N./124[deg]17'49'' W.); 
Theodore Johnson Creek (43[deg]16'16'' N./124[deg]19'22'' W.); Unnamed 
Creek (43[deg]17'24'' N./124[deg]17'56'' W.); Unnamed Creek 
(43[deg]18'27'' N./124[deg]7'55'' W.); Unnamed Creek (43[deg]21'12'' 
N./124[deg]9'17'' W.); Vogel Creek (43[deg]22'10'' N./124[deg]8'49'' 
W.); Wasson Creek (43[deg]16'3'' N./124[deg]19'23'' W.); Willanch 
Slough (43[deg]24'5'' N./124[deg]11'27'' W.); Wilson Creek 
(43[deg]16'51'' N./124[deg]9'2'' W.); Winchester Creek (43[deg]15'49'' 
N./124[deg]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[deg]44'46'' N./124[deg]1'39'' W.); 
Butler Creek (43[deg]42'50'' N./124[deg]3'0'' W.); Eslick Creek 
(43[deg]47'46'' N./123[deg]58'40'' W.); Frantz Creek (43[deg]44'50'' 
N./124[deg]5'25'' W.); Hudson Slough (43[deg]44'56'' N./124[deg]4'43'' 
W.); Joyce Creek (43[deg]45'32'' N./124[deg]1'49'' W.); Noel Creek 
(43[deg]46'21'' N./124[deg]0'6'' W.); Oar Creek (43[deg]40'26'' N./
124[deg]3'41'' W.); Otter Creek (43[deg]43'28'' N./124[deg]0'4'' W.); 
Providence Creek (43[deg]43'13'' N./124[deg]7'44'' W.); Scholfield 
Creek (43[deg]40'36'' N./124[deg]5'38'' W.); Silver Creek 
(43[deg]40'37'' N./124[deg]9'21'' W.); Smith River (43[deg]47'48'' N./
123[deg]53'3'' W.); Smith River, North Fork (43[deg]48'17'' N./
123[deg]55'59'' W.); Umpqua River (43[deg]40'3'' N./123[deg]48'32'' 
W.); Unnamed Creek (43[deg]40'6'' N./124[deg]10'44'' W.); Unnamed Creek 
(43[deg]40'14'' N./124[deg]9'26'' W.); Winchester Creek (43[deg]40'20'' 
N./124[deg]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[deg]35'33'' N./123[deg]55'42'' W.); Big Elk Creek 
(44[deg]35'23'' N./123[deg]50'43'' W.); Boone Slough

[[Page 52347]]

(44[deg]35'5'' N./123[deg]57'50'' W.); Depot Creek (44[deg]38'30'' N./
123[deg]56'54'' W.); Flesher Slough (44[deg]34'0'' N./123[deg]58'53'' 
W.); Johnson Slough (44[deg]34'60'' N./123[deg]59'10'' W.); King Slough 
(44[deg]35'35'' N./124[deg]1'55'' W.); McCaffery Slough (44[deg]33'56'' 
N./124[deg]1'10'' W.); Mill Creek (44[deg]35'7'' N./123[deg]53'57'' 
W.); Montgomery Creek (44[deg]35'8'' N./123[deg]56'18'' W.); Nute 
Slough (44[deg]35'19'' N./123[deg]57'30'' W.); Olalla Creek 
(44[deg]36'48'' N./123[deg]55'30'' W.); Parker Slough (44[deg]35'21'' 
N./124[deg]0'50'' W.); Poole Slough (44[deg]33'27'' N./123[deg]58'46'' 
W.); Yaquina River (44[deg]39'4'' N./123[deg]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[deg]42'52'' N./123[deg]54'12'' W.); Anderson Creek (45[deg]44'25'' 
N./123[deg]52'26'' W.); Coal Creek (45[deg]44'49'' N./123[deg]51'57'' 
W.); Foley Creek (45[deg]41'48'' N./123[deg]50'53'' W.); Gallagher 
Slough (45[deg]42'4'' N./123[deg]52'50'' W.); Messhouse Creek 
(45[deg]40'0'' N./123[deg]55'32'' W.); Nehalem River (45[deg]41'48'' 
N./123[deg]49'31'' W.); Nehalem River, North Fork (45[deg]47'11'' N./
123[deg]49'19'' W.); Unnamed Creek (45[deg]44'35'' N./123[deg]51'53'' 
W.); Unnamed Creek (45[deg]44'53'' N./123[deg]51'12'' W.); Unnamed 
Creek (45[deg]45'6'' N./123[deg]50'56'' W.); Unnamed Creek 
(45[deg]44'11'' N./123[deg]51'40'' W.); Unnamed Creek (45[deg]44'7'' 
N./123[deg]51'40'' W.); Unnamed Creek (45[deg]43'44'' N./
123[deg]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[deg]10'0'' N./123[deg]40'6'' 
W.); Big Creek (46[deg]10'33'' N./123[deg]35'30'' W.); Blind Slough/
Gnat Creek (46[deg]10'47'' N./123[deg]31'45'' W.); Chinook River 
(46[deg]18'14'' N./123[deg]58'1'' W.); Deep Creek (46[deg]19'3'' N./
123[deg]42'23'' W.); Driscol Slough (46[deg]8'35'' N./123[deg]23'44'' 
W.); Ferris Creek (46[deg]10'5'' N./123[deg]39'8'' W.); Grays River 
(46[deg]21'34'' N./123[deg]35'5'' W.); Hunt Creek (46[deg]11'46'' N./
123[deg]26'30'' W.); Jim Crow Creek (46[deg]16'19'' N./123[deg]33'26'' 
W.); John Day River (46[deg]9'13'' N./123[deg]43'16'' W.); John Day 
River (46[deg]9'10'' N./123[deg]43'27'' W.); Klaskanine River 
(46[deg]5'33'' N./123[deg]44'52'' W.); Lewis and Clark River 
(46[deg]5'52'' N./123[deg]51'4'' W.); Marys Creek (46[deg]10'12'' N./
123[deg]40'17'' W.); Seal Slough (46[deg]19'20'' N./123[deg]40'15'' 
W.); Sisson Creek (46[deg]18'25'' N./123[deg]43'46'' W.); Skamokawa 
Creek (46[deg]19'11'' N./123[deg]27'20'' W.); Skipanon River 
(46[deg]9'31'' N./123[deg]55'34'' W.); Wallacut River (46[deg]19'28'' 
N./123[deg]59'11'' W.); Wallooskee River (46[deg]7'7'' N./
123[deg]46'25'' W.); Westport Slough/Clatskanie River (46[deg]8'4'' N./
123[deg]13'31'' W.); Youngs River (46[deg]4'11'' N./123[deg]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[deg]20'5'' N./123[deg]56'8'' W.); Bone River 
(46[deg]39'29'' N./123[deg]54'2'' W.); Cedar River (46[deg]45'37'' N./
124[deg]0'3'' W.); Naselle River (46[deg]22'32'' N./123[deg]49'19'' 
W.); Middle Nemah River (46[deg]28'42'' N./123[deg]51'13'' W.); North 
Nemah River (46[deg]30'56'' N./123[deg]52'27'' W.); South Nemah River 
(46[deg]28'37'' N./123[deg]53'15'' W.); Niawiakum River (46[deg]36'39'' 
N./123[deg]53'34'' W.); North River (46[deg]48'51'' N./123[deg]50'54'' 
W.); Palix River, Middle Fork (46[deg]35'46'' N./123[deg]52'29'' W.); 
Palix River, North Fork (46[deg]36'10'' N./123[deg]52'26'' W.); Palix 
River, South Fork (46[deg]34'30'' N./123[deg]53'42'' W.); Stuart Slough 
(46[deg]41'9'' N./123[deg]52'16'' W.); Willapa River (46[deg]38'50'' 
N./123[deg]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[deg]49'23'' N./124[deg]1'23'' W.); Beaver Creek 
(46[deg]54'20'' N./123[deg]58'53'' W.); Campbell Creek (46[deg]56'9'' 
N./123[deg]53'12'' W.); Campbell Slough (47[deg]2'45'' N./
124[deg]3'40'' W.); Chapin Creek (46[deg]56'18'' N./123[deg]52'30'' 
W.); Charley Creek (46[deg]56'55'' N./123[deg]49'53'' W.); Chehalis 
River (46[deg]58'16'' N./123[deg]35'38'' W.); Chenois Creek 
(47[deg]2'36'' N./124[deg]0'54'' W.); Elk River (46[deg]50'8'' N./
123[deg]59'8'' W.); Gillis Slough (47[deg]2'34'' N./124[deg]2'29'' W.); 
Grass Creek (47[deg]1'41'' N./124[deg]0'40'' W.); Hoquiam River 
(47[deg]3'3'' N./123[deg]55'34'' W.); Hoquiam River, East Fork 
(47[deg]3'7'' N./123[deg]51'25'' W.); Humptulips River (47[deg]5'42'' 
N./124[deg]3'34'' W.); Indian Creek (46[deg]55'55'' N./123[deg]53'47'' 
W.); Jessie Slough (47[deg]3'23'' N./124[deg]3'0'' W.); Johns River 
(46[deg]52'28'' N./123[deg]57'2'' W.); Newskah Creek (46[deg]56'26'' 
N./123[deg]50'58'' W.); O'Leary Creek (46[deg]54'51'' N./
123[deg]57'24'' W.); Stafford Creek (46[deg]55'51'' N./123[deg]54'28'' 
W.); Wishkah River (47[deg]2'39'' N./123[deg]47'20'' W.); Wynoochee 
River (46[deg]58'19'' N./123[deg]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.

[[Page 52348]]

    (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-to-surface 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:
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[FR Doc. E9-24067 Filed 10-8-09; 8:45 am]
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