[Federal Register Volume 73, Number 173 (Friday, September 5, 2008)]
[Proposed Rules]
[Pages 51747-51781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20603]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 0808061060-81062-01]
RIN 0648-AW77


Endangered and Threatened Species; Proposed Critical Habitat for 
the Gulf of Maine Distinct Population Segment of Atlantic Salmon

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to 
designate critical habitat for the Gulf of Maine Distinct Population 
Segment (GOM DPS) of Atlantic salmon (Salmo salar). We previously 
determined that naturally spawned and several hatchery populations of 
Atlantic salmon which constituted the GOM DPS warrant listing as 
endangered under the Endangered Species Act of 1973, as amended (ESA). 
We are required to designate critical habitat for the GOM DPS as a 
result of this listing. We propose to designate as critical habitat 45 
specific areas occupied by Atlantic salmon at the time of listing that 
comprise approximately 203,781 km of perennial river, stream, and 
estuary habitat and 868 square km of lake habitat within the range of 
the GOM DPS and on which are found those physical and biological 
features essential to the conservation of the species. The entire 
occupied range of the GOM DPS in which critical habitat is being 
proposed is within the State of Maine. We propose to exclude 
approximately 1,463 km of river, stream, and estuary habitat and 115 
square km of lake habitat from critical habitat pursuant to section 
4(b)(2) of the ESA.

DATES: Comments on this proposal must be received by November 4, 2008. 
Two public hearings on the proposed rule will be held in conjunction 
with the Atlantic salmon proposed listing rule (See the notice, 
Proposed Endangered Status for the Gulf of Maine Distinct Population 
Segment of Atlantic Salmon, published in the Proposed Rules section of 
the September 3, 2008, issue of the Federal Register) and we will alert 
the public of the locations and dates of those hearings in a subsequent 
Federal Register notice.

ADDRESSES: You may submit comments, identified by RIN 0648-AW77, by any 
of the following methods:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
    <bullet> Mail: Assistant Regional Administrator, Protected 
Resources Division, NMFS, Northeast Regional Office, Protected 
Resources Division, One Blackburn Drive, Gloucester, MA 01930.
    <bullet> Facsimile (fax) to: 207-866-7342, Attention: Dan Kircheis.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All personal identifying information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (enter N/A in the required fields, if you wish to 
remain anonymous). Attachments to electronic comments will be accepted 
in Microsoft Word, Excel, Word Perfect, or Adobe PDF file formats only.
    The proposed rule, list of references and supporting documents, 
including

[[Page 51748]]

the Biological Valuation, Economic Analysis, IRFA Analysis, and 4(b)(2) 
Report, are also available electronically at the NMFS Web site http://www.nero.noaa.gov/prot_res/altsalmon/ altsalmon/.

FOR FURTHER INFORMATION CONTACT: Dan Kircheis, NMFS, at 207-866-7320, 
<a href="/cdn-cgi/l/email-protection#3b5f5a551550524958535e52487b55545a5a155c544d"><span class="__cf_email__" data-cfemail="4d292c236326243f2e2528243e0d23222c2c632a223b">[email protected]</span></a>; Mary Colligan, NMFS, at 978-281-9116; or Marta 
Nammack, 301-713-1401.

SUPPLEMENTARY INFORMATION: 

Background

    NMFS and the U.S. Fish and Wildlife Service (USFWS; collectively 
``the Services'') issued a final rule listing the GOM DPS of Atlantic 
salmon as endangered on November 17, 2000 (65 FR 69459). The GOM DPS 
was defined in the 2000 rule as all naturally reproducing wild 
populations and those river-specific hatchery populations of Atlantic 
salmon, having historical river-specific characteristics found north of 
and including tributaries of the lower Kennebec River to, but not 
including, the mouth of the St. Croix River at the U.S.-Canada border 
and the Penobscot River above the site of the former Bangor Dam.
    In September of 2006, a new Status Review for Atlantic salmon in 
the United States (Status Review report) was made available to the 
public (http://www.nmfs.noaa.gov/pr/pdfs/statusreviews/atlanticsalmon.pdf). The 2006 Status Review report identified the GOM 
DPS of Atlantic salmon as being comprised of all anadromous Atlantic 
salmon whose freshwater range occurs in the watersheds of the 
Androscoggin River northward along the Maine coast to the Dennys River, 
including all associated conservation hatchery populations used to 
supplement natural populations; currently, such populations are 
maintained at Green Lake and Craig Brook National Fish Hatcheries. The 
most substantial difference between the 2000 GOM DPS and the GOM DPS 
described in the 2006 Status Review report is the inclusion of the 
Androscoggin, Kennebec, and Penobscot River basins. Subsequent to the 
2006 Status Review report, the Services proposed to list Atlantic 
salmon in the GOM DPS as endangered (See the notice, Proposed 
Endangered Status for the Gulf of Maine Distinct Population Segment of 
Atlantic Salmon, published in the Proposed Rules section of the 
September 3, 2008, issue of the Federal Register).
    This proposed rule would designate critical habitat for the GOM DPS 
pursuant to section 4(b)(2) of the ESA. Critical habitat is defined by 
section 3 of the ESA as ``(i) the specific areas within the 
geographical area occupied by the species, at the time it is listed * * 
* on which are found those physical and biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protections; and (ii) specific 
areas outside the geographical area occupied by the species at the time 
it is listed * * * upon a determination by the Secretary that such 
areas are essential for the conservation of the species.'' Section 3 of 
the ESA (16 U.S.C. 15332) defines the terms ``conserve,'' 
``conserving,'' and ``conservation'' as ``to use, and the use of, all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to this chapter are no longer necessary.''
    Section 4(b)(2) of the ESA (16 U.S.C. 1533) requires that, before 
designating critical habitat, we consider the economic impacts, impacts 
on national security, and other relevant impacts of specifying any 
particular area as critical habitat. Further, the Secretary may exclude 
any area from critical habitat upon a determination that the benefits 
of exclusion outweigh the benefits of inclusion, unless excluding an 
area from critical habitat will result in the extinction of the species 
concerned.
    Once critical habitat for Atlantic salmon in the GOM DPS is 
designated, section 7(a)(2) of the ESA (16 U.S.C. 1536) requires that 
each Federal agency in consultation with and with the assistance of 
NMFS, ensure that any action it authorizes, funds, or carries out is 
not likely to result in the destruction or adverse modification of 
critical habitat.
    This proposed rule summarizes the information gathered and the 
analyses conducted in support of the proposed designation, and 
announces our proposal to designate critical habitat for Atlantic 
salmon in the GOM DPS proposed for listing under ESA.

Atlantic Salmon Life History

    Atlantic salmon have a complex life history that includes 
territorial rearing in rivers to extensive feeding migrations on the 
high seas. During their life cycle, Atlantic salmon go through several 
distinct phases that are identified by specific changes in behavior, 
physiology, morphology, and habitat requirements.
    Adult Atlantic salmon return to rivers from the sea and migrate to 
their natal stream to spawn. Adults ascend the rivers of New England 
beginning in the spring. The ascent of adult salmon continues into the 
fall. Although spawning does not occur until late fall, the majority of 
Atlantic salmon in Maine enter freshwater between May and mid-July 
(Meister, 1958; Baum, 1997). Early migration is an adaptive trait that 
ensures adults have sufficient time to effectively reach spawning areas 
despite the occurrence of temporarily unfavorable conditions that occur 
naturally (Bjornn and Reiser, 1991). Salmon that return in early spring 
spend nearly 5 months in the river before spawning; often seeking cool 
water refuge (e.g., deep pools, springs, and mouths of smaller 
tributaries) during the summer months.
    In the fall, female Atlantic salmon select sites for spawning. 
Spawning sites are positioned within flowing water, particularly where 
upwelling of groundwater occurs to allow for percolation of water 
through the gravel (Danie et al., 1984). These sites are most often 
positioned at the head of a riffle (Beland et al., 1982b), the tail of 
a pool, or the upstream edge of a gravel bar where water depth is 
decreasing, water velocity is increasing (McLaughlin and Knight, 1987; 
White, 1942), and hydraulic head allows for permeation of water through 
the redd (a gravel depression where eggs are deposited). Female salmon 
use their caudal fin to scour or dig redds. The digging behavior also 
serves to clean the substrate of fine sediments that can embed the 
cobble/gravel substrate needed for spawning and reduce egg survival 
(Gibson, 1993). As the female deposits eggs in the redd, one or more 
males fertilize the eggs (Jordan and Beland, 1981). The female then 
continues digging upstream of the last deposition site, burying the 
fertilized eggs with clean gravel. A single female may create several 
redds before depositing all of her eggs. Female anadromous Atlantic 
salmon produce a total of 1,500 to 1,800 eggs per kilogram of body 
weight, yielding an average of 7,500 eggs per 2 sea-winter (SW) female 
(an adult female that has spent two winters at sea before returning to 
spawn) (Baum and Meister, 1971). After spawning, Atlantic salmon may 
either return to sea immediately or remain in freshwater until the 
following spring before returning to the sea (Fay et al., 2006). From 
1967 to 2003, approximately 3 percent of the wild and naturally reared 
adults that returned to rivers where adult returns are monitored--
mainly the Penobscot River--were repeat spawners (USASAC, 2004).
    Embryos develop in the redd for a period of 175 to 195 days, 
hatching in late March or April (Danie et al., 1983). Newly hatched 
salmon, referred to as

[[Page 51749]]

larval fry, alevin, or sac fry, remain in the redd for approximately 6 
weeks after hatching and are nourished by their yolk sac (Gustafson-
Greenwood and Moring, 1991). Survival from the egg to fry stage in 
Maine is estimated to range from 15 to 35 percent (Jordan and Beland, 
1981). Survival rates of eggs and larvae are a function of stream 
gradient, overwinter temperatures, interstitial flow, predation, 
disease, and competition (Bley and Moring, 1988). Once larval fry 
emerge from the gravel and begin active feeding they are referred to as 
fry. The majority of fry (> 95 percent) emerge from redds at night 
(Gustafson-Marjanen and Dowse, 1983).
    When fry reach approximately 4 cm in length, the young salmon are 
termed parr (Danie et al., 1984). Parr have eight to eleven pigmented 
vertical bands on their sides that are believed to serve as camouflage 
(Baum, 1997). A territorial behavior, first apparent during the fry 
stage, grows more pronounced during the parr stage as the parr actively 
defend territories (Allen, 1940; Kalleberg, 1958; Danie et al., 1984). 
Most parr remain in the river for 2 to 3 years before undergoing 
smoltification, the process in which parr go through physiological 
changes in order to transition from a freshwater environment to a 
saltwater marine environment. Some male parr may not go through 
smoltification and will become sexually mature and participate in 
spawning with sea-run adult females. These males are referred to as 
``precocious parr.''
    First year parr are often characterized as being small parr or 0+ 
parr (4 to 7 cm long), whereas second and third year parr are 
characterized as large parr (greater than 7 cm long) (Haines, 1992). 
Parr growth is a function of water temperature (Elliott, 1991), parr 
density (Randall, 1982), photoperiod (Lundqvist, 1980), interaction 
with other fish, birds, and mammals (Bjornn and Resier, 1991), and food 
supply (Swansburg et al., 2002). Parr movement may be quite limited in 
the winter (Cunjak, 1988; Heggenes, 1990); however, movement in the 
winter does occur (Hiscock et al., 2002) and is often necessary, as ice 
formation reduces total habitat availability (Whalen et al., 1999a). 
Parr have been documented using riverine, lake, and estuarine habitats; 
incorporating opportunistic and active feeding strategies; defending 
territories from competitors including other parr; and working together 
in small schools to actively pursue prey (Gibson, 1993; Marschall et 
al., 1998; Pepper, 1976; Pepper et al., 1984; Hutchings, 1986; Erkinaro 
et al., 1998; Halvorsen and Svenning, 2000; Hutchings, 1986; O'Connell 
and Ash, 1993; Erkinaro et al., 1998; Dempson et al., 1996; Halvorsen 
and Svenning, 2000; Klemetsen et al., 2003).
    In a parr's second or third spring (age 1 or age 2, respectively), 
when it has grown to 12.5 to 15 cm in length, a series of 
physiological, morphological, and behavioral changes occur (Schaffer 
and Elson, 1975). This process, called ``smoltification,'' prepares the 
parr for migration to the ocean and life in salt water. In Maine, the 
vast majority of naturally reared parr remain in freshwater for 2 years 
(90 percent or more) with the balance remaining for either 1 or 3 years 
(USASAC, 2005). In order for parr to undergo smoltification, they must 
reach a critical size of 10 cm total length at the end of the previous 
growing season (Hoar, 1988). During the smoltification process, parr 
markings fade and the body becomes streamlined and silvery with a 
pronounced fork in the tail. Naturally reared smolts in Maine range in 
size from 13 to 17 cm, and most smolts enter the sea during May to 
begin their first ocean migration (USASAC, 2004). During this 
migration, smolts must contend with changes in salinity, water 
temperature, pH, dissolved oxygen, pollution levels, and predator 
assemblages. The physiological changes that occur during smoltification 
prepare the fish for the dramatic change in osmoregulatory needs that 
come with the transition from a fresh to a salt water habitat (Ruggles, 
1980; Bley, 1987; McCormick and Saunders, 1987; McCormick et al., 
1998). Smolts' transition into seawater is usually gradual as they pass 
through a zone of fresh and saltwater mixing that typically occurs in a 
river's estuary. Given that smolts undergo smoltification while they 
are still in the river, they are pre-adapted to make a direct entry 
into seawater with minimal acclimation (McCormick et al., 1998). This 
pre-adaptation to seawater is necessary under some circumstances where 
there is very little transition zone between freshwater and the marine 
environment.
    The spring migration of post-smolts out of the coastal environment 
is generally rapid, within several tidal cycles, and follows a direct 
route (Hyvarinen et al., 2006; Lacroix and McCurdy, 1996; Lacroix et 
al., 2004, 2005). Post-smolts generally travel out of coastal systems 
on the ebb tide, and may be delayed by flood tides (Hyvarinen et al., 
2006; Lacroix and McCurdy, 1996; Lacroix et al., 2004, 2005); although 
Lacroix and McCurdy (1996) found that post-smolts exhibit active, 
directed swimming in areas with strong tidal currents. Studies in the 
Bay of Fundy and Passamaquoddy Bay suggest that post-smolts aggregate 
together and move near the coast in ``common corridors'' and that post-
smolt movement is closely related to surface currents in the bay 
(Hyvarinen et al., 2006; Lacroix and McCurdy, 1996; Lacroix et al., 
2004). European post-smolts tend to use the open ocean for a nursery 
zone, while North American post-smolts appear to have a more near-shore 
distribution (Friedland et al., 2003). Post-smolt distribution may 
reflect water temperatures (Reddin and Shearer, 1987) and/or the major 
surface-current vectors (Lacroix and Knox, 2005). Post-smolts live 
mainly on the surface of the water column and form shoals, possibly of 
fish from the same river (Shelton et al., 1997).
    During the late summer/autumn of the first year, North American 
post-smolts are concentrated in the Labrador Sea and off of the west 
coast of Greenland, with the highest concentrations between 56 [deg]N. 
and 58 [deg]N. (Reddin, 1985; Reddin and Short, 1991; Reddin and 
Friedland, 1993). The salmon located off Greenland are composed of both 
1SW fish and fish that have spent multiple years at sea (multi-sea 
winter fish, or MSW) immature salmon from both North American and 
European stocks (Reddin, 1988; Reddin et al., 1988). The first winter 
at sea regulates annual recruitment, and the distribution of winter 
habitat in the Labrador Sea and Denmark Strait may be critical for 
North American populations (Friedland et al., 1993). In the spring, 
North American post-smolts are generally located in the Gulf of St. 
Lawrence, off the coast of Newfoundland, and on the east coast of the 
Grand Banks (Reddin, 1985; Dutil and Coutu, 1988; Ritter, 1989; Reddin 
and Friedland, 1993; and Friedland et al., 1999).
    Some salmon may remain at sea for another year or more before 
maturing. After their second winter at sea, the salmon over-winter in 
the area of the Grand Banks before returning to their natal rivers to 
spawn (Reddin and Shearer, 1987). Reddin and Friedland (1993) found 
non-maturing adults located along the coasts of Newfoundland, Labrador, 
and Greenland, and in the Labrador and Irminger Sea in the later 
summer/autumn.

Critical Habitat

Methods and Criteria Used To Identify Proposed Critical Habitat

    Critical habitat is defined by section 3 of the ESA (and 50 CFR 
424.02(d)) as ``(i) the specific areas within the geographic area 
occupied by the species, at the time it is listed in accordance

[[Page 51750]]

with the provisions of [section 4 of this Act], 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 in 
accordance with the provisions of [section 4 of this Act], upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species.'' The Department of the Interior and the 
Department of Commerce provide further regulatory guidance under 50 CFR 
424.12(b), stating that the Secretaries shall ``focus on the principal 
biological or physical constituent elements within the defined area 
that are essential to the conservation of the species * * * Primary 
constituent elements may include, but are not limited to, the 
following: roost sites, nesting grounds, spawning sites, feeding sites, 
seasonal wetland or dry land, water quality or quantity, host species 
or plant pollinator[s], geological formation, vegetation type, tide, 
and specific soil types.''

Identifying the Geographical Area Occupied by the Species and Specific 
Areas Within the Geographical Area

    To designate critical habitat for Atlantic salmon, as defined under 
Section 3(5)(A) of the ESA, we must identify specific areas within the 
geographical area occupied by the species at the time it is listed.
    The geographic range occupied by the GOM DPS of Atlantic salmon 
includes freshwater habitat ranging from the Androscoggin River 
watershed in the south to the Dennys River watershed in the north (Fay 
et al., 2006), as well as the adjacent estuaries and bays through which 
smolts and adults migrate.
    The geographic range occupied by the species extends out to the 
waters off Canada and Greenland, where post-smolts complete their 
marine migration. However, critical habitat may not be designated 
within foreign countries or in other areas outside of the jurisdiction 
of the United States (50 CFR 424.12(h)). Therefore, for the purposes of 
critical habitat designation, the geographic area occupied by the 
species will be restricted to areas within the jurisdiction of the 
United States. This does not diminish the importance of habitat outside 
of the jurisdiction of the United States for the GOM DPS. In fact, a 
very significant factor limiting recovery for the species is marine 
survival. Marine migration routes and feeding habitat off Canada and 
Greenland are critical to the survival and recovery of Atlantic salmon, 
but the regulations prohibit designation of these areas as critical 
habitat.
    Because Atlantic salmon are anadromous, spending a portion of life 
in freshwater and the remaining portion in the marine environment, it 
is conceivable that some freshwater habitat may be vacant for up to 3 
years under circumstances where populations are extremely low. While 
there may be no documented spawning in these areas for that period of 
time, they would still be considered occupied because salmon at sea 
would return to these areas to spawn.
    Current stock management and assessment efforts also need to be 
considered in deciding which areas are occupied. In addition to the 
stocking program managed by USFWS and the Maine Department of Marine 
Resources (MDMR), there are small-scale stocking efforts carried out by 
non profit organizations. Furthermore, in addition to stocking 
programs, straying from natural populations can result in the 
occupation of habitat.
    Hydrologic Unit Code (HUC) 10 (Level 5 watersheds) described by 
Seaber et al. (1994) are proposed as the appropriate ``specific areas'' 
within the geographic area occupied by Atlantic salmon to be examined 
for the presence of physical or biological features and for the 
potential need for special management considerations or protections for 
these features.
    The HUC system was developed by the United States Geological Survey 
(USGS) Office of Water Data Coordination in conjunction with the Water 
Resources Council (Seaber et al., 1994) and provides (1) a nationally 
accessible, coherent system of water-use data exchange; (2) a means of 
grouping hydrographical data; and (3) a standardized, scientifically 
grounded reference system (Laitta et al., 2004). The HUC system 
currently includes six nationally consistent, hierarchical levels of 
divisions, with HUC 2 (Level 1) ``Regions'' being the largest (avg. 
459,878 sq. km.), and HUC 12 (Level 6) ``sub-watersheds'' being the 
smallest (avg. 41-163 sq. km.).
    The HUC 10 (Level 5) watersheds were used to identify ``specific 
areas'' because this scale accommodates the local adaptation and homing 
tendencies of Atlantic salmon, and provides a framework in which we can 
reasonably aggregate occupied river, stream, lake, and estuary habitats 
that contain the physical and biological features essential to the 
conservation of the species. Furthermore, many Atlantic salmon 
populations within the GOM DPS are currently managed at the HUC 10 
watershed scale. Therefore, we have a better understanding of the 
population status and the biology of salmon at the HUC 10 level, 
whereas less is known at the smaller HUC 12 sub-watershed scale.
    Specific areas delineated at the HUC 10 watershed level correspond 
well to the biology and life history characteristics of Atlantic 
salmon. Atlantic salmon, like many other anadromous salmonids, exhibit 
strong homing tendencies (Stabell, 1984). Strong homing tendencies 
enhance a given individual's chance of spawning with individuals having 
similar life history characteristics (Dittman and Quinn, 1996) that 
lead to the evolution and maintenance of local adaptations, and may 
also enhance their progeny's ability to exploit a given set of 
resources (Gharrett and Smoker, 1993). Local adaptations allow local 
populations to survive and reproduce at higher rates than exogenous 
populations (Reisenbichler, 1988; Tallman and Healey, 1994). Strong 
homing tendencies have been observed in many Atlantic salmon 
populations. Stabell (1984) reported that fewer than 3 of every 100 
salmon in North America and Europe stray from their natal river. In 
Maine, Baum and Spencer (1990) reported that 98 percent of hatchery-
reared smolts returned to the watershed where they were stocked. Given 
the strong homing tendencies and life history characteristics of 
Atlantic salmon (Riddell and Leggett, 1981), we believe that the HUC 10 
watershed level accommodates these local adaptations and the biological 
needs of the species and, therefore, is the most appropriate unit of 
habitat to delineate ``specific areas'' for consideration as part of 
the critical habitat designation process.
    Within the United States, the freshwater geographic range that the 
GOM DPS of Atlantic salmon occupy includes perennial river, lake, 
stream and estuary habitat connected to the marine environment ranging 
from the Androscoggin River watershed to the Dennys River watershed. 
Within this range, HUC 10 watersheds were considered occupied if they 
contained either of the primary constituent elements (PCEs) (e.g., 
sites for spawning and rearing or sites for migration, described in 
more detail below) along with the features necessary to support 
spawning, rearing and/or migration. Additionally, the HUC 10 watershed 
must meet either of the following criteria:
    (a) Naturally spawned and reared Atlantic salmon have been 
documented in the HUC 10 watershed or the watershed is believed to be 
occupied

[[Page 51751]]

based on the biological valuation of HUC 10 watershed (See Biological 
Valuation of Atlantic Salmon Habitat in the Gulf of Maine Distinct 
Population Segment (2008)) and best professional judgment of state and 
Federal biologists;
    (b) The area is currently managed by the MDMR and the USFWS through 
an active stocking program in an effort to enhance or restore Atlantic 
salmon populations, or the area has been stocked within the last 6 
years through other stocking programs, including those efforts by the 
``Fish Friends'' program, where juvenile salmon could reasonably be 
expected to migrate to the marine environment and return to that area 
as an adult and spawn.
    Within the range of the GOM DPS, 105 HUC 10 watersheds were 
examined for occupancy based on the above criteria. Based on our 
analysis, we considered 48 of these HUC 10 watersheds within the 
geographic range to be occupied. Estuaries and bays within the occupied 
HUC 10s in the GOM DPS are also included in the geographic range 
occupied by the species.
    Occupied areas also extend outside the estuary and bays of the GOM 
DPS as adults return from the marine environment to spawn and smolts 
migrate towards Greenland for feeding. We are not able at this time to 
identify the specific features characteristic of marine migration and 
feeding habitat within U.S. jurisdictional waters essential to the 
conservation of Atlantic salmon and are, therefore, unable to identify 
the specific areas where such features exist. Therefore, specific areas 
of marine habitat were not proposed as critical habitat.

Physical and Biological Features in Freshwater and Estuary Specific 
Areas Essential to the Conservation of the Species

    We identify the physical and biological features essential for the 
conservation of Atlantic salmon that are found within the specific 
occupied areas identified in the previous section. To determine which 
features are essential to the conservation of the GOM DPS of Atlantic 
salmon, we first define what conservation means for this species. 
Conservation is defined in the ESA as using all methods and procedures 
which are necessary to bring any endangered or threatened species to 
the point at which the measures provided by the ESA are no longer 
necessary. Conservation, therefore, describes those activities and 
efforts undertaken to achieve recovery. For the GOM DPS, we have 
determined that the successful return of adult salmon to spawning 
habitat, spawning, egg incubation and hatching, juvenile survival 
during the rearing time in freshwater, and smolt migration out of the 
rivers to the ocean are all essential to the conservation of Atlantic 
salmon. Therefore, we identify features essential to successful 
completion of these life cycle activities. Although successful marine 
migration is also essential to the conservation of the species, we are 
not able to identify the essential features of marine migration and 
feeding habitat at this time. Therefore, as noted above, marine habitat 
areas are not proposed for designation as critical habitat.
    Within the occupied range of the Gulf of Maine DPS, Atlantic salmon 
PCEs include sites for spawning and incubation, sites for juvenile 
rearing, and sites for migration. The physical and biological features 
of the PCEs that allow these sites to be used successfully for 
spawning, incubation, rearing and migration are the features of habitat 
within the GOM DPS that are essential to the conservation of the 
species. A detailed review of the physical and biological features 
required by Atlantic salmon is provided in Kircheis and Liebich (2007). 
As stated above, Atlantic salmon also use marine sites for growth and 
migration; however, we did not identify critical habitat within the 
marine environment because the specific physical and biological 
features of marine habitat that are essential for the conservation of 
the GOM DPS (and the specific areas on which these features might be 
found) cannot be identified. Unlike Pacific salmonids, some of which 
use nearshore marine environments for juvenile feeding and growth, 
Atlantic salmon migrate through the nearshore marine areas quickly 
during the month of May and early June. Though we have some limited 
knowledge of the physical and biological features that the species uses 
in the marine environment, we have very little information on the 
specifics of these physical and biological features and how they may 
require special management considerations or protection. Therefore, we 
cannot accurately identify the specific areas where these features 
exist or what types of management considerations or protections may be 
necessary to protect these physical and biological features during the 
migration period.
    Detailed habitat surveys have been conducted in some areas within 
the range of the GOM DPS of Atlantic salmon, providing clear estimates 
of and distinctions between those sites most suited for spawning and 
incubation and those sites most used for juvenile rearing. These 
surveys are most complete for seven coastal watersheds: Dennys, East 
Machias, Machias, Pleasant, Narraguagus, Ducktrap, and Sheepscot 
watersheds; and portions of the Penobscot Basin, including portions of 
the East Branch Penobscot, portions of the Piscataquis and 
Mattawamkeag, Kenduskeag Stream, Marsh Stream and Cove Brook; and 
portions of the Kennebec Basin, including a portion of the lower 
mainstem around the site of the old Edwards Dam and portions of the 
Sandy River. Throughout most of the range of the GOM DPS, however, this 
level of survey has not been conducted, and, therefore, this level of 
detail is not available. Therefore, to determine habitat quantity for 
each HUC 10 we relied on a GIS-based habitat prediction model (See 
appendix C of the Biological Valuation of Atlantic Salmon Habitat 
within the Gulf of Maine Distinct Population Segment (2008)). The model 
was developed using data from existing habitat surveys conducted in the 
Machias, Sheepscot, Dennys, Sandy, Piscataquis, Mattawamkeag, and 
Souadabscook Rivers. A combination of reach slope derived from contour 
and digital elevation model (DEM) datasets, cumulative drainage area, 
and physiographic province were used to predict the total amount of 
rearing habitat within a reach. These features help to reveal stream 
segments with gradients that would likely represent areas of riffles or 
fast moving water, habitat most frequently used for spawning and 
rearing of Atlantic salmon. The variables included in the model 
accurately predict the presence of rearing habitat approximately 73 
percent of the time. We relied on the model to generate the habitat 
quantity present within each HUC 10 to provide consistent data across 
the entire DPS and on existing habitat surveys to validate the output 
of the model.
    Although we have found the model to be nearly 75 percent accurate 
in predicting the presence of sites for spawning and rearing within 
specific areas, and we have an abundance of institutional knowledge on 
the physical and biological features that distinguish sites for 
spawning and sites for rearing, the model cannot be used to distinguish 
between sites for spawning and sites for rearing across the entire 
geographic range. This is because: (1) Sites used for spawning are also 
used for rearing; and (2) the model is unable to identify substrate 
features most frequently used for spawning activity, but rather uses 
landscape features to identify where stream gradient conducive to both 
spawning and rearing activity exists. As such, we have chosen to group 
sites for

[[Page 51752]]

spawning and sites for rearing into one PCE. Therefore, sites for 
spawning and sites for rearing are discussed together throughout this 
analysis as sites for spawning and rearing.
    In the section below, we identify the essential physical and 
biological features of spawning and rearing sites and migration sites 
found in the occupied areas described in the previous section.
(A). Physical and Biological Features of the Spawning and Rearing PCE
    1. Deep, oxygenated pools and cover (e.g., boulders, woody debris, 
vegetation, etc.), near freshwater spawning sites, necessary to support 
adult migrants during the summer while they await spawning in the fall. 
Adult salmon can arrive at spawning grounds several months in advance 
of spawning activity. Adults that arrive early require holding areas in 
freshwater and estuarine areas that provide shade, protection from 
predators, and protection from other environmental variables such as 
high flows, high temperatures, and sedimentation. Early migration is an 
adaptive trait that ensures adults sufficient time to reach spawning 
areas despite the occurrence of temporarily unfavorable conditions that 
occur naturally (Bjornn and Reiser, 1991). Salmon that return in early 
spring spend nearly 5 months in the river before spawning, often 
seeking cool water refuge (e.g., deep pools, springs, and mouths of 
smaller tributaries) during the summer months. Large boulders or rocks, 
overhanging trees, logs, woody debris, submerged vegetation and 
undercut banks provide shade, reduce velocities needed for resting, and 
offer protection from predators (Giger, 1973). These features are 
essential to the conservation of the species to help ensure the 
survival and successful spawning of adult salmon.
    2. Freshwater spawning sites that contain clean, permeable gravel 
and cobble substrate with oxygenated water and cool water temperatures 
to support spawning activity, egg incubation, and larval development. 
Spawning activity in the Gulf of Maine DPS of Atlantic salmon typically 
occurs between mid-October and mid-November (Baum, 1997) and is 
believed to be triggered by a combination of water temperature and 
photoperiod (Bjornn and Reiser, 1991). Water quantity and quality, as 
well as substrate type, are important for successful Atlantic salmon 
spawning. Water quantity can determine habitat availability, and water 
quality may influence spawning success. Substrate often determines 
where spawning occurs, and cover can influence survival rates of both 
adults and newly hatched salmon.
    Preferred spawning habitat contains gravel substrate with adequate 
water circulation to keep buried eggs well oxygenated (Peterson, 1978). 
Eggs in a redd are entirely dependent upon sub-surface movement of 
water to provide adequate oxygen for survival and growth (Decola, 
1970). Water velocity and permeability of substrate allow for adequate 
transport of well-oxygenated water for egg respiration (Wickett, 1954) 
and removal of metabolic waste that may accumulate in the redd during 
egg development (Decola, 1970; Jordan and Beland, 1981). Substrate 
permeability as deep as the egg pit throughout the incubation period is 
important because eggs are typically deposited at the bottom of the egg 
pit.
    Dissolved oxygen (DO) content is important for proper embryonic 
development and hatching. Embryos can survive when DO concentrations 
are below saturation levels, but their development is often subnormal 
due to delayed growth and maturation, performance, or delayed hatching 
(Doudoroff and Warren, 1965). In addition, embryos consume more oxygen 
(i.e., the metabolism of the embryo increases) when temperature 
increases (Decola, 1970). An increase in water temperature, however, 
decreases the amount of oxygen that the water can hold. During the 
embryonic stage when tissue and organs are developing and the demand 
for oxygen is quite high, embryos can only tolerate a narrow range of 
temperatures.
    These sites are essential for the conservation of the species 
because without them embryo development would not be successful.
    3. Freshwater spawning and rearing sites with clean, permeable 
gravel and cobble substrate with oxygenated water and cool water 
temperatures to support emergence, territorial development and feeding 
activities of Atlantic salmon fry. The period of emergence and the 
establishment of feeding territories is a critical period in the salmon 
life cycle since at this time mortality can be very high. When fry 
leave the redd, they emerge through the interstitial spaces in the 
gravel to reach the surface. When the interstitial spaces become 
embedded with fine organic material or fine sand, emergence can be 
significantly impeded or prevented. Newly emerged fry prefer shallow, 
low velocity, riffle habitat with a clean gravel substrate. Territories 
are quickly established by seeking out areas of low velocities that 
occur in eddies in front of or behind larger particles that are 
embedded in areas of higher velocities to maximize drift of prey 
sources (Armstrong et al., 2002). Once a territory has been 
established, fry use a sit-and-wait strategy, feeding opportunistically 
on invertebrate drift. This strategy enables the fish to minimize 
energy expenditure while maximizing energy intake (Bachman, 1984).
    These sites are essential for the conservation of the species 
because without them fry emergence would not be successful.
    4. Freshwater rearing sites with space to accommodate growth and 
survival of Atlantic salmon parr. When fry reach approximately 4 cm in 
length, the young salmon are termed parr (Danie et al., 1984). The 
habitat in Maine rivers currently supports on average between five and 
ten large parr (age one or older) per 100 square meters of habitat, or 
one habitat unit (Elson, 1975; Baum, 1997). The amount of space 
available for juvenile salmon occupancy is a function of biotic and 
abiotic habitat features, including stream morphology, substrate, 
gradient, and cover; the availability and abundance of food; and the 
makeup of predators and competitors (Bjornn and Reiser, 1991). Further 
limiting the amount of space available to parr is their strong 
territorial instinct. Parr actively defend territories against other 
fish, including other parr, to maximize their opportunity to capture 
prey items. The size of the territory that a parr will defend is a 
function of the size and density of parr, food availability, the size 
and roughness of the substrate, and current velocity (Kalleberg, 1958; 
Grant et al., 1998). The amount of space needed by an individual 
increases with age and size (Bjornn and Reiser, 1991). Cover, including 
undercut banks, overhanging trees and vegetation, diverse substrates 
and depths, and some types of aquatic vegetation, can make habitat 
suitable for occupancy (Bjornn and Reiser, 1991). Cover can provide a 
buffer against extreme temperatures; protection from predators; 
increased food abundance; and protection from environmental variables 
such as high flow events and sedimentation.
    These features are essential to the conservation of the species 
because without them, juvenile salmon would have limited areas for 
foraging and protection from predators.
    5. Freshwater rearing sites with a combination of river, stream, 
and lake habitats that accommodate parr's ability to occupy many niches 
and maximize parr production. Parr prefer, but are not limited to, 
riffle habitat associated with diverse rough gravel substrate. The 
preference for these habitats by parr that use river and stream 
habitats supports a sit-and-wait feeding strategy intended to

[[Page 51753]]

minimize energy expenditure while maximizing growth. Overall, large 
Atlantic salmon parr using river and stream habitats select for diverse 
substrates that predominately consist of boulder and cobble (Symons and 
Heland, 1978; Heggenes, 1990; Heggenes et al., 1999).
    Parr can also move great distances into or out of tributaries and 
mainstems to seek out habitat that is more conducive to growth and 
survival (McCormick et al., 1998). This occurs most frequently as parr 
grow and they move from their natal spawning grounds to areas that have 
much rougher substrate, providing more suitable over-wintering habitat 
and more food organisms (McCormick et al., 1998). In the fall, large 
parr that are likely to become smolts the following spring have been 
documented leaving summer rearing areas in some headwater tributaries 
and migrating downstream, though not necessarily entering the estuary 
or marine environment (McCormick et al., 1998).
    Though parr are typically stream dwellers, they also use pools 
within rivers and streams, dead-waters (sections of river or stream 
with very little to no gradient), and lakes within a river system as a 
secondary nursery area after emergence (Cunjak, 1996; Morantz et al., 
1987; Erkinaro et al., 1998). It is known that parr will use pool 
habitats during periods of low water, most likely as refuge from high 
temperatures (McCormick et al., 1998) and during the winter months to 
minimize energy expenditure and avoid areas that are prone to freezing 
or de-watering (Rimmer et al., 1984). Salmon parr may also spend weeks 
or months in the estuary during the summer (Cunjak et al., 1989, 1990; 
Power and Shooner, 1966).
    These areas are essential to the conservation of the species to 
ensure survival and species persistence when particular habitats become 
less suitable or unsuitable for survival during periods of extreme 
conditions such as extreme high temperatures, extreme low temperatures, 
and droughts.
    6. Freshwater rearing sites with cool, oxygenated water to support 
growth and survival of Atlantic salmon parr. Atlantic salmon are cold 
water fish and have a thermal tolerance zone where activity and growth 
is optimal (Decola, 1970). Small parr and large parr have similar 
temperature tolerances (Elliott, 1991). Water temperature influences 
growth, survival, and behavior of juvenile Atlantic salmon. Juvenile 
salmon can be exposed to very warm temperatures (> 20 [deg]C) in the 
summer and near-freezing temperatures in the winter, and have evolved 
with a series of physiological and behavioral strategies that enable 
them to adapt to the wide range of thermal conditions that they may 
encounter. Parr's optimal temperature for feeding and growth ranges 
from 15 to 19 [deg]C (Decola, 1970). When water temperatures surpass 19 
[deg]C, feeding and behavioral activities are directed towards 
maintenance and survival. During the winter when temperatures approach 
freezing, parr reduce energy expenditures by spending less time 
defending territories, feeding less, and moving into slower velocity 
microhabitats (Cunjak, 1996).
    Oxygen consumption by parr is a function of temperature. As 
temperature increases, the demand for oxygen increases (Decola, 1970). 
Parr require highly oxygenated waters to support their active feeding 
strategy. Though salmon parr can tolerate oxygen levels below 6mg/l, 
both swimming activity and growth rates are restricted.
    These features are essential to the conservation of the species 
because high and low water temperatures and low oxygen concentrations 
can result in the cessation of feeding activities necessary for 
juvenile growth and survival and can result in direct mortality.
    7. Freshwater rearing sites with diverse food resources to support 
growth and survival of Atlantic salmon parr. Atlantic salmon require 
sufficient energy to meet their basic metabolic needs for growth and 
reproduction (Spence et al., 1996). Parr largely depend on invertebrate 
drift for foraging, and actively defend territories to assure adequate 
food resources needed for growth. Parr feed on larvae of mayflies, 
stoneflies, chironomids, caddisflies, blackflies, aquatic annelids, and 
mollusks, as well as numerous terrestrial invertebrates that fall into 
the river (Scott and Crossman, 1973; Nislow et al., 1999). As parr 
grow, they will occasionally eat small fishes, such as alewives, dace, 
or minnows (Baum, 1997).
    Atlantic salmon attain energy from food sources that originate from 
both allochthonous (outside the stream) and autochthonous (within the 
stream) sources. What food is available to parr and how food is 
obtained is a function of a river's hydrology, geomorphology, biology, 
water quality, and connectivity (Annear et al., 2004). The riparian 
zone is a fundamental component to both watershed and ecosystem 
function, as it provides critical physical and biological linkages 
between terrestrial and aquatic environments (Gregory et al., 1991). 
Flooding of the riparian zone is an important mechanism needed to 
support the lateral transport of nutrients from the floodplain back to 
the river (Annear et al., 2004). Lateral transport of nutrients and 
organic matter from the riparian zone to the river supports the growth 
of plant, plankton, and invertebrate communities. Stream invertebrates 
are the principal linkage between the primary producers and higher 
trophic levels, including salmon parr.
    These features are essential to the conservation of the species, as 
parr require these food items for growth and survival.
(B). Physical and Biological Features of the Migration PCE
    1. Freshwater and estuary migratory sites free from physical and 
biological barriers that delay or prevent access of adult salmon 
seeking spawning grounds needed to support recovered populations. Adult 
Atlantic salmon returning to their natal rivers or streams require 
migration sites free from barriers that obstruct or delay passage to 
reach their spawning grounds at the proper time for effective spawning 
(Bjornn and Reiser, 1991). Physical and biological barriers within 
migration sites can prevent adult salmon from effectively spawning 
either by preventing access to spawning habitat or impairing a fish's 
ability to spawn effectively by delaying migration or impairing the 
health of the fish. Migration sites free from physical and biological 
barriers are essential to the conservation of the species because 
without them, adult Atlantic salmon would not be able to access 
spawning grounds needed for egg deposition and embryo development.
    2. Freshwater and estuary migration sites with pool, lake, and 
instream habitat that provide cool, oxygenated water and cover items 
(e.g., boulders, woody debris, and vegetation) to serve as temporary 
holding and resting areas during upstream migration of adult salmon. 
Atlantic salmon may travel as far as 965 km upstream to spawn (New 
England Fisheries Management Council, 1998). During migration, adult 
salmon require holding and resting areas that provide the necessary 
cover, temperature, flow, and water quality conditions needed to 
survive. Holding areas can include areas in rivers and streams, lakes, 
ponds, and even the ocean (Bjornn and Reiser, 1991). Holding areas are 
necessary below temporary seasonal migration barriers such as those 
created by flow, temperature, turbidity, and temporary obstructions 
such as debris jams and beaver dams, and adjacent to spawning areas. 
Adult salmon can become fatigued when ascending high velocity riffles 
or falls and require resting areas

[[Page 51754]]

within and around high velocity waters where they can recover until 
they are able to continue their migration. Holding areas near spawning 
areas are necessary when upstream migration is not delayed and adults 
reach spawning areas before they are ready to spawn.
    These features are essential to the conservation of the species 
because without them, adult Atlantic salmon would be subject to 
fatigue, predation, and mortality from exposure to unfavorable 
conditions, significantly reducing spawning success.
    3. Freshwater and estuary migration sites with abundant, diverse 
native fish communities to serve as a protective buffer against 
predation. Adult Atlantic salmon and Atlantic salmon smolts interact 
with other diadromous species indirectly. Adult and smolt migration 
through the estuary often coincides with the presence of alewives 
(Alosa spp.), American shad (Alosa sapidissima), blueback herring 
(Alosa aestivalis), and striped bass (Morone saxatilis). The abundance 
of diadromous species present during adult migration may serve as an 
alternative prey source for seals, porpoises and otters (Saunders et 
al., 2006). As an example, pre-spawned adults enter rivers and begin 
their upstream spawning migration at approximately the same time as 
early migrating adult salmon (Fay et al., 2006). Historically, shad 
runs were considerably larger than salmon runs (Atkins and Foster, 
1869; Stevenson, 1898). Thus, native predators of medium to large size 
fish in the estuarine and lower river zones could have preyed on these 
1.5 to 2.5 kg size fish readily (Fay et al., 2006; Saunders et al., 
2006). In the absence or reduced abundance of these diadromous fish 
communities, it would be expected that Atlantic salmon will likely 
become increasingly targeted as forage by large predators (Saunders et 
al., 2006).
    As Atlantic salmon smolts pass through the estuary during migration 
from their freshwater rearing sites to the marine environment, they 
experience high levels of predation. Predation rates through the 
estuary often result in up to 50 percent mortality during this 
transition period between freshwater to the marine environment 
(Larsson, 1985). There is, however, large annual variation in estuarine 
mortality, which is believed to be dependent upon the abundance and 
availability of other prey items including alewives, blueback herring, 
and American shad, as well as the spatial and temporal distribution and 
abundance of predators (Anthony, 1994).
    The presence and absence of co-evolutionary diadromous species such 
as alewives, blueback herring, and American shad likely play an 
important role in mitigating the magnitude of predation on smolts from 
predators such as striped bass, double-crested cormorants 
(Phalacrocorax auritus), and ospreys (Pandion haliaetus). The migration 
time of pre-spawned adult alewives overlaps in time and space with the 
migration of Atlantic salmon smolts (Saunders et al., 2006). Given that 
when alewife populations are robust, alewife numbers not only likely 
greatly exceed densities of Atlantic salmon smolts, making them more 
available to predators, but the caloric content per individual alewife 
is greater than that of an Atlantic salmon smolt (Schulze, 1996), 
likely making the alewife a more desirable prey species (Saunders et 
al., 2006).
    These features are essential to the conservation of the species 
because without highly prolific abundant alternate prey species such as 
alewives and shad, the less prolific Atlantic salmon will likely become 
a preferred prey species.
    4. Freshwater and estuary migration sites free from physical and 
biological barriers that delay or prevent emigration of smolts to the 
marine environment. Atlantic salmon smolts require an open migration 
corridor from their juvenile rearing habitat to the marine environment. 
Seaward migration of smolts is initiated by increases in river flow and 
temperature in the early spring (McCleave, 1978; Thorpe and Morgan, 
1978). Migration through the estuary is believed to be the most 
challenging period for smolts (Lacroix and McCurdy, 1996). Although it 
is difficult to generalize migration trends because of the variety of 
estuaries, Atlantic salmon post-smolts tend to move quickly through the 
estuary and enter the ocean within a few days or less (Lacroix et al., 
2004; Hyvarinen et al., 2006; McCleave, 1978). In the upper estuary, 
where river flow is strong, Atlantic salmon smolts use passive drift to 
travel (Moore et al., 1995; Fried et al., 1978; LaBar et al., 1978). In 
the lower estuary smolts display active swimming, although their 
movement is influenced by currents and tides (Lacroix and McCurdy 1996; 
Moore et al., 1995; Holm et al., 1982; Fried et al., 1978). In 
addition, although some individuals seem to utilize a period of 
saltwater acclimation, some fish have no apparent period of acclimation 
(Lacroix et al., 2004). Stefansson et al., (2003) found that post-
smolts adapt to seawater without any long-term physiological 
impairment. Several studies also suggest that there is a ``survival 
window'' which is open for several weeks in the spring, and gradually 
closes through the summer, during which time salmon can migrate more 
successfully (Larsson, 1977; Hansen and Jonsson, 1989; Hansen and 
Quinn, 1998).
    These features are essential to the conservation of the species 
because a delay in migration of smolts can result in the loss of the 
smolts' ability to osmoregulate in the marine environment which is 
necessary for smolt survival.
    5. Freshwater and estuary migration sites with sufficiently cool 
water temperatures and water flows that coincide with diurnal cues to 
stimulate smolt migration. The process of smoltification is triggered 
in response to environmental cues. Photoperiod and temperature have the 
greatest influence on regulating the smolting process. Increase in day 
length is necessary for smolting to occur (Duston and Saunders, 1990). 
McCormick et al. (1999) noted that in spite of wide temperature 
variations among rivers throughout New England, almost all smolt 
migrations begin around the first of May and are nearly complete by the 
first week in June. However, the time that it takes for the 
smoltification process to be completed appears to be closely related to 
water temperature. When water temperatures increase, the smolting 
process is advanced, evident by increases in Na+, K+-ATPase activity--
the rate of exchange of sodium (Na+) and potassium (K+) ions across the 
gill membrane or the regulation of salts that allow smolts to survive 
in the marine environment (Johnston and Saunders, 1981; McCormick et 
al., 1998; McCormick et al., 2002). In addition to playing a role in 
regulating the smoltification process, high temperatures also are 
responsible for the cessation of Na+, K+-ATPase activity of smolts 
limiting their ability to excrete excess salts when they enter the 
marine environment. McCormick et al., (1999) found significant 
decreases in Na+, K+-ATPase activity in smolts at the end of the 
migration period, but also found that smolts in warmer rivers had 
reductions in Na+, K+-ATPase activity earlier then smolts found in 
colder rivers. Hence any delay of migration has the potential to reduce 
survival of out-migrating smolts because as water temperatures rise 
over the spring migration period, smolts experience a reduction in Na+, 
K+-ATPase reducing their ability to regulate salts as they enter the 
marine environment. Though flow does not appear to play a role in the 
smoltification process, flow does appear to play an important role in 
stimulating a migration response (Whalen et al., 1999b).

[[Page 51755]]

    These features are essential to the conservation of the species 
because elevated water temperatures that occur in advance of a smolts 
diurnal cues to migrate can result in a decreased migration window in 
which smolts are capable of transitioning into the marine environment. 
A decrease in the migration window has the potential to reduce survival 
of smolts especially for fish with greater migration distances.
    6. Freshwater migration sites with water chemistry needed to 
support sea water adaptation of smolts. The effects of acidity on 
Atlantic salmon have been well documented. The effects of acidity cause 
ionoregulatory failure in Atlantic salmon smolts while in freshwater 
(Rosseland and Skogheim, 1984; Farmer et al., 1989; Staurnes et al., 
1996; Staurnes et al., 1993). This inhibition of gill Na+, K+-ATPase 
activity can cause the loss of plasma ions and may result in reduced 
seawater tolerance (Rosseland and Skogheim, 1984; Farmer et al., 1989; 
Staurnes et al., 1996; Staurnes et al., 1993) and increased 
cardiovascular disturbances (Milligan and Wood 1982; Brodeur et al., 
1999). Parr undergoing parr/smolt transformation become more sensitive 
to acidic water, hence water chemistry that is not normally regarded as 
toxic to other salmonids may be toxic to smolts (Staurnes et al., 1993, 
1995). This is true even in rivers that are not chronically acidic and 
not normally considered as being in danger of acidification (Staurnes 
et al., 1993, 1995). Atlantic salmon smolts are most vulnerable to low 
pH in combination with elevated levels of monomeric labile species of 
aluminum (aluminum capable of being absorbed across the gill membrane) 
and low calcium (Rosseland and Skogheim, 1984; Rosseland et al., 1990; 
Kroglund and Staurnes, 1999).
    These features are essential to the conservation of the species 
because Atlantic salmon smolts exposed to acidic waters can lose sea 
water tolerance, which can result in direct mortality or indirect 
mortality from altered behavior and fitness.

Special Management Considerations or Protections

    Specific areas within the geographic area occupied by a species may 
be designated as critical habitat only if they contain physical or 
biological features essential to the conservation of the species that 
``may require special management considerations or protection.'' It is 
the features and not the specific areas that are the focus of the ``may 
require'' provision. Use of the disjunctive ``or'' also suggests the 
need to give distinct meaning to the terms ``special management 
considerations'' and ``protection''. ``Protection'' suggests actions to 
address a negative impact. ``Management'' seems broader than 
protection, and could include active manipulation of the feature or 
aspects of the environment. The ESA regulations at 50 CFR 424.02(j) 
further define special management considerations as ``any methods or 
procedures useful in protecting physical and biological features of the 
environment for the conservation of listed species''. The term ``may'' 
was the focus of two Federal district courts that ruled that features 
can meet this provision because of either a present requirement for 
special management considerations or protection or possible future 
requirements (see Center for Biol. Diversity v. Norton, 240 F. Supp. 2d 
1090 (D. Ariz. 2003); Cape Hatteras Access Preservation Alliance v. 
DOI, 344 F. Supp. 108 (D.D.C. 2004)). The Arizona district court ruled 
that the provision cannot be interpreted to mean that features already 
covered by an existing management plan must be determined to require 
additional special management, because the term additional is not in 
the statute. Rather, the court ruled that the existence of management 
plans may be evidence that the features in fact require special 
management (Center for Biol. Diversity v. Norton, 1096-1100).
    The primary impacts of critical habitat designation result from the 
consultation requirements of ESA section 7(a)(2). Federal agencies must 
consult with NMFS to ensure that their actions are not likely to result 
in the destruction or adverse modification of critical habitat (or 
jeopardize the species' continued existence). These impacts are 
attributed only to the designation (i.e., are incremental impacts of 
the designation) if Federal agencies modify their proposed actions to 
ensure they are not likely to destroy or adversely modify the critical 
habitat beyond any modifications they would make because of listing and 
the requirement to avoid jeopardy. Incremental impacts of designation 
include state and local protections that may be triggered as a result 
of designation, and education of the public about to the importance of 
an area for species conservation. When a modification is required due 
to impacts both to the species and critical habitat, the impact of the 
designation is considered to be co-extensive with ESA listing of the 
species.
    The draft ESA 4(b)(2) (NMFS, 2008) Report and Economic Analysis 
(IEc, 2008a) describe the impacts in detail. These reports identify and 
describe potential future Federal activities that would trigger section 
7 consultation requirements because they may affect the essential 
physical and biological features.
    We identified a number of activities and associated threats that 
may affect the PCEs and associated physical and biological features 
essential to the conservation of Atlantic salmon within the occupied 
range of the GOM DPS. These activities, which include agriculture, 
forestry, changing land-use and development, hatcheries and stocking, 
roads and road crossings, mining, dams, dredging, and aquaculture have 
the potential to reduce the quality and quantity of the PCEs and their 
associated physical and biological features. There are other threats to 
Atlantic salmon habitat including acidification of surface waters. 
However, we are not able to clearly separate out the specific 
activities responsible for acidification, and therefore are unable to 
specifically identify a federal nexus.
    Specific activities that may affect the PCEs and associated 
physical and biological features are evaluated below based on whether 
the spawning and rearing PCE and/or the migration PCE may require 
special management considerations or protection. Specific areas where 
these activities occur are represented in a table following the 
evaluation of activities. Further evaluation of the activities listed 
below is presented in detail in section 5 of Kircheis and Liebich 
(2007).
(a). Agriculture
    Agricultural practices influence all specific areas proposed for 
designation and negatively impact PCE sites for spawning and rearing 
and migration. Physical disturbances caused by livestock and equipment 
associated with agricultural practices can directly impact the habitat 
of aquatic species (USEPA, 2003). Traditional agricultural practices 
require repeated mechanical mixing, aeration, and application of 
fertilizers and pesticides to soils. These activities alter physical 
soil characteristics and microorganisms. Tilling aerates the upper 
soil, but causes compaction of finely textured soils below the surface, 
which alters water infiltration. Use of heavy farm equipment and 
construction of roads also compact soils, decrease water infiltration, 
and increase surface runoff (Spence et al., 1996). Agricultural grazing 
and clearing of riparian vegetation can expose soils and increase soil 
erosion and sediment inputs into rivers.

[[Page 51756]]

    Agricultural practices may also reduce habitat complexity and 
channel stability through physical stream alterations such as: 
Channelization, bank armoring, and removal of large woody debris (LWD) 
and riparian vegetation (Spence et al., 1996). These effects often 
result in streams with higher width to depth ratios which exhibit more 
rapid temperature fluctuations and may also be subject to increased 
embeddedness as a function of decreased water velocity affecting 
habitat use in sites for spawning, juvenile rearing, and migration (Fay 
et al., 2006).
    Clearing of land for agricultural practices such as livestock 
grazing and crop cultivation typically loosens and smoothes land 
surfaces, increasing soil mobility and vulnerability to surface 
erosion, thereby increasing sedimentation rates in affected streams 
(Waters, 1995; Spence et al., 1996). Increased sedimentation can have 
significant effects on Atlantic salmon habitat by embedding substrates 
and increasing turbidity in spawning and rearing sites. Increased 
turbidity can reduce light penetration and result in a reduction of 
aquatic plant communities used for cover and foraging in juvenile 
rearing sites. Sedimentation from agricultural practices can also 
increase the inputs of nutrients such as phosphorus and ammonia as well 
as contaminants such as pesticides and herbicides throughout a 
watershed. An increase in nutrients can lead to eutrophication and 
potential oxygen depletion in surface waters. Exposure of contaminated 
sediments to anaerobic environments (lacking oxygen) often results in 
the release of organically bound chemicals (EPA, 2003), possibly 
creating a toxic environment for biotic communities downstream of these 
agricultural areas.
    Agricultural practices can affect stream hydrology through removal 
of vegetative cover, soil compaction, and irrigation. Removal of 
vegetation and soil compaction can increase runoff which can increase 
the frequency and intensity of flooding (Hornbeck et al., 1970). 
Increases in frequency and intensity of flood events can increase 
erosion, increase sedimentation and scour affecting sites for spawning 
and rearing. Direct water withdrawals and ground-water withdrawals for 
crop irrigation can directly impact Atlantic salmon habitat by 
depleting stream-flow (MASTF, 1997; Dudley and Stewart 2006; Fay et 
al., 2006). Currently, the cumulative effects of individual irrigation 
impacts on Maine rivers is poorly understood; however, it is known that 
adequate water supply and quality are essential to all life stages of 
Atlantic salmon and life history behaviors including adult migration, 
spawning, fry emergence, and smolt emigration (Fay et al., 2006).
    Fertilizer runoff can increase nutrient loading in aquatic systems, 
thereby stimulating the growth of aquatic algae. If nutrient loading 
due to fertilizer run-off is significant, resulting algal blooms may 
have numerous detrimental impacts on multiple processes occurring 
within the affected aquatic ecosystem. Surface algal blooms that block 
sunlight can kill submerged aquatic vegetation important for juvenile 
rearing. Loss of submerged vegetation can lead to a loss of habitat for 
invertebrates and juveniles fishes and the decomposition of dead algae 
consumes large quantities of oxygen, an impact which, at times, can 
result in significant oxygen depletion (NMFS and FWS, 2005). A 
reduction in submerged aquatic vegetation and dissolved oxygen (DO) can 
cause both direct and indirect harm to salmon by affecting not only the 
physiological function of salmon (e.g., oxygen deprivation) but by 
impacting prey species and other necessary ecological functions sites 
for rearing. We conclude that the spawning and rearing and migration 
PCEs in each HUC 10 are and will likely continue to be negatively 
affected by agricultural practices well into the future, and, 
therefore, may require special management or protections which may 
include increasing the riparian buffer between agriculture lands and 
aquatic ecosystems that contain salmon habitat to prevent erosion and 
the runoff or leaching of contaminants and nutrients.
(b). Forestry
    Forestry practices influence all specific areas proposed for 
designation and negatively impact PCE sites for spawning and rearing 
and migration. Timber harvest can significantly affect hydrologic 
processes. In general, timber removal increases the amount of water 
that infiltrates the soil and reaches the stream by reducing water 
losses from evapotranspiration (Spence et al., 1996). Soil compaction 
can decrease infiltration and increase runoff, and roads created for 
logging can divert and alter water flow. Logging can also influence 
snow distribution on the ground, and consequently alter the melting 
rates of the snowpack (Chamberlin et al., 1991). Through a combination 
of these effects, logging can change annual water yield and the 
magnitude and timing of peak and low flows (Spence et al., 1996). 
Alteration of hydrologic regimes may impact sites for spawning, 
migration and rearing.
    The increased erosion and runoff caused by forestry practices and 
road building can increase sedimentation affecting sites for spawning 
and rearing and may impact migration. Compared to other forestry 
activities, roads are the greatest contributor of sediment on a per 
area basis (Furniss et al., 1991). Contribution of sediments by roads 
most frequently occurs from mass failure of road beds (Furniss et al., 
1991). Other forestry practices generally cause surface erosion, 
creating chronic sediment inputs. The combined effect of chronic and 
mass erosion can cause elevated sediment levels even when a small 
percentage of a watershed is developed by roads (Montgomery and 
Buffington, 1993), which can embed cobble and gravel substrates used 
for spawning and juvenile rearing.
    The most direct effect of logging on stream temperature is the 
reduction in shade provided by riparian vegetation. Alterations in 
water temperature can affect egg development and alter foraging 
behaviors of juvenile salmon in both spawning and rearing sites. 
Removal of riparian vegetation also affects evaporation, convection and 
advection of water by altering wind speed and the temperature of 
surrounding land areas (Beschta et al., 1987, 1995). In general, 
greater effects on stream temperatures are more apparent in smaller 
streams; however, the magnitude of these effects is dependent on stream 
size and channel morphology in relation to the quantity of riparian 
vegetation harvested (Beschta et al., 1995). Removal of riparian 
vegetation can also lead to increased maximum temperatures and 
increased daily fluctuations in stream temperatures (Beschta et al., 
1987, 1995).
    Timber harvest and preparation of soil for forestry practices can 
decrease LWD as well as increase erosion. Removal of LWD and increased 
erosion can have many harmful effects in sites for rearing, spawning 
and migration by reducing channel complexity, reducing in-stream cover 
and riffle/pool frequency, decreasing sediment retention and channel 
stability and reducing availability of microhabitats (Spence et al., 
1996). Loss of riparian vegetation can also reduce the presence of 
overhanging banks that are frequently used for cover by salmon (Spence 
et al., 1996). We conclude that the spawning, rearing and migration 
PCEs in each specific area are and will likely continue to be 
negatively affected by forestry practices, and, therefore, may require 
special management considerations or protections which may include the 
use of best management

[[Page 51757]]

practices that reduce erosion, support contributions of LWD, and limit 
thermal impacts.
(c). Changing Land-Use and Development
    Changing land-use and development affects all specific areas 
proposed for designation and negatively impact PCE sites for spawning, 
rearing and migration. Changing land-use patterns include a shift from 
forestry and agriculture to construction of housing, commercial 
shopping and business centers, and industrial facilities. Increased 
development and population growth can cause declines in water and 
habitat quality caused by increases in erosion, reduction of riparian 
vegetation, increases in sediment deposition, homogenizing of habitat 
features, and an overall reduction in water quality resulting from 
point and non-point source pollution.
    Development can affect sites for spawning, rearing and migration by 
reducing soil infiltration rates and increasing erosion. Construction 
of impervious surfaces can indirectly influence habitat by increasing 
surface water runoff while concurrently reducing groundwater recharge. 
Surface runoff from developed areas can increase erosion rates, carry 
pollutants from developed areas, and increase flooding (Morse and Kahl, 
2003), whereas a reduction in groundwater recharge can lead to reduced 
summer baseflows, potentially reducing available aquatic habitat (Morse 
and Kahl, 2003).
    Development practices can redirect, channelize, and/or armor stream 
banks to accommodate and protect the development. Certain development 
practices can clear riparian areas, decreasing shade and altering 
thermal regimes and nutrient inputs. These practices can also remove 
vegetation that would otherwise intercept rainfall and therefore reduce 
runoff. As more water is carried downstream during rain events or when 
stream channels are altered, streambed widening or scouring may 
increase. Streambed widening or scouring can directly reduce the 
quality and quantity of habitat available to Atlantic salmon. As a 
result, development can lead to alterations in physical habitat within 
sites for spawning, rearing and migration. We conclude that the 
spawning, rearing and migration PCEs in each HUC 10 are and will likely 
continue to be negatively affected by contaminants into the future, 
and, therefore, may require special management considerations or 
protections which may include improvements in the handling of waste 
water discharge to limit inputs of contaminants and assuring sufficient 
riparian buffers between development sites and aquatic ecosystems that 
support salmon habitats.
(d). Hatcheries and Stocking
    Hatcheries and stocking occur in all specific areas proposed for 
designation and can negatively affect PCE sites for spawning and 
rearing. Use of hatcheries may be essential for rebuilding Atlantic 
salmon populations; however, without proper adherence to genetic, 
evolutionary, and ecological principles, the use of hatcheries could 
have adverse consequences for naturally reproducing fish that may 
undermine other rehabilitation efforts. Stocking of juvenile Atlantic 
salmon that are river specific, non-river specific, or a combination of 
both, is taking place in many rivers within the range of the GOM DPS. 
Captive-reared adult brood stock are also being stocked back into their 
natal rivers in small numbers in most rivers within this range (NRC, 
2004). Smallmouth bass (Micropterus dolomieui) and chain pickerel (Esox 
niger), important non-native predators of juvenile salmon, have also 
been introduced throughout a large portion of the range of the GOM DPS 
(Fay et al., 2006). These species, along with a host of other native 
and non-native fish, may compete for food and space with Atlantic 
salmon in freshwater, affecting sites for juvenile rearing and 
spawning. We conclude that the spawning and rearing PCEs in each 
specific area are and will likely continue to be negatively affected by 
hatcheries and stocking, and, therefore, may require special management 
considerations or protections. Management considerations or protections 
may include efforts that employ genetic and stock management of 
Atlantic salmon such that stocked fish do not present a genetic or 
competitive risk to natural populations, and stocking of other species 
that do not introduce threats of predation, competition, genetics or 
disease.
(e). Roads and Road Crossings and Other In-Stream Activities
    Roads and road crossings occur in all specific areas proposed for 
designation and negatively affect sites for spawning and rearing, and 
sites for migration. Roads, which are typically built in association 
with logging, agriculture, and development, are often negatively 
correlated with the ecological health of an area (Trombulak and 
Frissell, 2000). Road networks modify the hydrologic and sediment 
transport regimes of watersheds by accelerating erosion and sediment 
loading, altering channel morphology and accelerating runoff (Furniss 
et al., 1991), all of which can affect sites for spawning and rearing. 
The construction of roads near streams can prevent natural channel 
adjustments, and urban roads may increase runoff of pollutants (Spence 
et al., 1996).
    The use of culverts and bridges can impair habitat connectivity, 
limiting accessibility of habitat to juvenile and adult salmon, as well 
as other fish and aquatic organisms (Furniss et al., 1991). Culverts, 
if not properly installed or maintained, can fragment a watershed and 
make reaches inaccessible to migratory fish while simultaneously 
preventing upstream movement of resident fish and invertebrates. 
Conditions induced by culverts that block fish passage include high 
water velocities through the culvert over extended distances without 
adequate resting areas; water depth within the culvert that is too 
shallow for fish to swim; and culverts that are perched or hanging and 
exclude fish from entering the culvert (Furniss et al., 1991). Bridges, 
while preferred to culverts (Furniss et al., 1991), may also induce 
negative ecological impacts. Poorly designed bridges, like culverts, 
can alter sediment transport, natural alluvial adjustments, and 
downstream transport of organic material, particularly large woody 
debris. This alteration can affect sites for spawning, rearing and 
migration.
    Other in-stream activities, such as alternative energy projects, 
may also affect the PCEs. Because the two projects analyzed by NMFS 
(only one of which has received a preliminary permit from FERC) are in 
the early planning stages, NMFS has yet to make specific 
recommendations regarding the protection of Atlantic salmon habitat. 
Until specific plans for the projects are made available, the potential 
impact on the critical habitat for Atlantic salmon will remain 
uncertain, as will any modifications that might be requested to 
mitigate adverse impacts. We seek comment on the potential impact of 
critical habitat on these activities, and also whether additional 
alternative energy projects should be considered in our analysis.
    We conclude that the migration PCE and the spawning and rearing PCE 
in each specific area are and will likely continue to be negatively 
affected by roads and road crossings into the future, and, therefore, 
may require special management considerations or protection that may 
include applying best management practices that reduce sedimentation 
and pollution, and allow

[[Page 51758]]

for unobstructed passage of juvenile and adult Atlantic salmon at road 
crossings.
(f). Mining
    Sand, gravel, cement, and some varieties of stone (e.g., slate and 
granite) and clay are mined extensively throughout Maine and this 
activity can negatively affect PCE sites, predominately those for 
spawning and rearing. Mining is known to occur within 36 specific areas 
proposed for designation. Mining of these materials in Maine occurs to 
the extent that Maine is largely self-sufficient with respect to these 
commodities (Lepage et al., 1991). Sand and gravel mining can occur in 
the form of gravel pits and in some cases can involve dredging of 
streambeds. Sand and gravel mining in or adjacent to streams can affect 
sites for spawning and rearing by increasing fine and coarse particle 
deposition and elevating turbidity from suspended sediments (Waters, 
1995).
    We conclude that the spawning and rearing PCE is and will likely 
continue to be affected by sand and gravel mining into the future, and, 
therefore, may require special management or protections through 
increased riparian buffers that protect streams from sedimentation. 
Direct mining of gravel from streambeds does not currently occur in any 
of the specific areas, though such mining has been proposed in the past 
and may be proposed in the future. Therefore, spawning and rearing 
sites affected by streambed mining may require special management or 
protections, which may include relocation of streambed mining 
operations.
    Maine's crystalline rocks are potential hosts to an array of metals 
including copper, zinc, lead, nickel, molybdenum, tin, tungsten, 
cobalt, beryllium, uranium, manganese, iron, gold and silver (Lepage et 
al., 1991) and mining of these metals can negatively affect sites for 
spawning and rearing and sites for migration. Many metals occur 
naturally in rivers and streams and in trace concentrations are 
considered essential for proper physiological development of fish 
(Nelson et al., 1991). The process of mining for metals can introduce 
toxic metals into streams as acid stimulation mobilizes metal ions from 
metalliferous minerals (Nelson et al., 1991) and therefore may alter 
water chemistry in sites for spawning, rearing and migration. The most 
frequent metals that are released into streams and may be toxic to 
salmon depending on their concentration include arsenic, cadmium, 
chromium, cobalt, copper, iron, lead, manganese, mercury, nickel, and 
zinc (Nelson et al., 1991). Dissolved copper is known to affect a 
variety of biological endpoints in fish (e.g., survival, growth, 
behavior, osmoregulation, sensory system, and others (reviewed in 
Eisler, 1998)). Laboratory exposure of 2.4 micrograms/L dissolved 
copper in water with hardness 20 mg/L resulted in avoidance behavior by 
juvenile Atlantic salmon and 20 micrograms/L dissolved copper in water 
with a hardness of 20 mg/L resulted in interrupted spawning migrations 
in the wild (Sprague et al., 1965). A combined effect of copper-zinc 
may result in a complete block of migration at 0.8 toxic units (Sprague 
et al., 1965). Currently metal mining does not occur within any of the 
specific areas, though recent mining exploration within the state 
suggests that metal mining may occur in the future. We conclude that 
spawning, rearing and migration PCEs in each specific area may, in the 
future, be negatively affected by metals mining and, therefore, may 
require special management considerations or protections, possibly 
through implementation of best management practices (BMPs) that protect 
rivers and streams from pollutants.
    There are only two active, though limited, peat mining operations 
in Maine, both of which are located in Washington County (USGS, 2006) 
in the Narraguagus River HUC 10 (HUC code 105000209). Although there is 
currently no direct evidence that peat mining in other countries (i.e., 
Ireland, Norway) has affected Atlantic salmon, studies have shown that 
peat mining can affect water quality, wetlands, aquatic resources and 
sediment load (MASTF, 1997). One potential effect of peat mining on 
Atlantic salmon habitat is from runoff that may have historically 
exacerbated depressed pH in DPS rivers (NMFS and FWS, 1999). Low pH 
levels are known to impair smolt migrations as they transfer from the 
freshwater environment to the marine environment (Staurnes et al., 
1995; Brodeur et al., 2001). We conclude that peat mining may 
negatively affect PCE sites in the Narraguagus River HUC 10, 
particularly for migration, as depressed pH levels are known to 
adversely affect migration smolts, and, therefore, may require special 
management considerations or protections through measures that protect 
rivers and streams from acid discharge of waste water or runoff.
(g). Dams
    Dams occur in 40 specific areas proposed for critical habitat 
designation and negatively affect sites for spawning and rearing and 
sites for migration PCEs. Dams obstruct migration of Atlantic salmon 
which can delay or preclude adult salmon access to spawning sites and 
smolts from access to the marine environment. Dams also preclude or 
diminish access of co-evolved diadromous fish communities that likely 
serve as buffers from predators of migrating salmon (Saunders et al., 
2006). They can also degrade spawning and rearing sites through 
alterations of natural hydrologic, geomorphic and thermal regimes 
(American Rivers et al., 1999; Heinz Center, 2002; NRC, 2004; Fay et 
al., 2006). Dams are also the most significant contributing factor to 
the loss of salmon habitat connectivity within the range of the DPS 
(Fay et al., 2006) and have been identified as the greatest impediment 
to self-sustaining Atlantic salmon populations in Maine (NRC, 2004).
    As discussed in the economic analysis prepared in support of this 
designation, we recognize that impacts to hydropower operations may 
occur as a result of this designation. We solicit information on these 
impacts to inform our final designation.
    We conclude that the migration, spawning and rearing PCEs are and 
will likely continue to be negatively affected by dams into the future, 
and, therefore, may require special management considerations or 
protection through dam removal or improved fish passage devices.
(h). Dredging
    Dredging frequently occurs within bays and estuaries along the 
coast of Maine and can negatively affect the migration PCEs. Dredging 
may occur within 25 specific areas proposed for designation in the GOM 
DPS and is often a temporary activity depending on the size and 
duration of the dredging project. Dredging is the practice of removing 
sediment from an aquatic system and commonly occurs in freshwater, 
estuarine, and marine environments. Nightingale and Simenstad (2001a) 
place dredging practices into one of two categories: the creation of 
new projects and waterway deepening, or maintenance dredging for the 
purpose of preserving already existing channels. Nightingale and 
Simenstad (2001a) list some examples of why dredging might be used and 
include activities such as maintaining water depths, creating or 
expanding marinas, mining gravel or sand for shoreline armoring, 
opening channels for passage of flood flows, retrieving cement mixture 
ingredients, and removing contaminated sediments.
    Dredging can cause a range of negative impacts to water quality in 
the

[[Page 51759]]

affected area, particularly in sites for migration where dredging is 
most likely to occur. Of greatest concern is the associated temporary 
increase in the water's turbidity (the measure of suspended solids in 
the water column). Increased turbidity can have adverse effects upon 
the impacted area's fish community that include a range of impacts from 
difficulty absorbing oxygen from the water, altered feeding behavior, 
and changes in predator-prey relationships (Nightingale and Simenstad, 
2001a). In addition, increased turbidity causes reductions in the 
light's ability to penetrate the water column. Light penetration plays 
a central role in the level of productivity of aquatic environments, 
predator-prey relationships, schooling behavior, and fish migration 
(Nightingale and Simenstad, 2001a).
    Juvenile salmonids migrating through and residing in estuaries are 
naturally capable of coping with high levels of turbidity; however, 
suspended solids introduced via dredging can produce material that is 
of the right size and shape to adversely affect the young salmon by 
inhibiting their ability to diffuse oxygen through their gills 
(Nightingale and Simenstad, 2001a). According to Nightingale and 
Simenstad (2001b), suspended solids in concentrations of >= 4,000 mg/L 
have been shown to cause erosion to the terminal ends of fish gills. In 
addition to impacting juvenile salmon, suspended solids at levels of 20 
mg/L and 10 mg/L have been shown to result in avoidance behaviors from 
rainbow smelt, and Atlantic herring, respectively (Wildish and Power, 
1985). We conclude that the migration PCE is and will likely continue 
to be negatively affected by dredging into the future, and, therefore, 
may require special management considerations or protections which may 
include time of year restrictions and employment of sediment control 
measures.
(i). Aquaculture
    Aquaculture occurs in four specific areas proposed for designation 
within the range of the GOM DPS and can negatively affect PCE sites for 
spawning and rearing, and migration. The influence of aquaculture on 
Atlantic salmon is most frequently related to the interactions between 
wild fish and fish that have escaped from aquaculture facilities. Most 
escapes of farm salmon occur in the marine environment and involve 
smolts, post-smolts and adults. Escaped farmed salmon generally migrate 
up the nearest rivers. Large escapes of aquaculture fish have occurred 
in Maine and Canada and escaped farm salmon are known to return to 
Maine rivers. Escapes have been caused by storms, cage failure, anchor 
failure, human error, vandalism, and predator attacks (e.g., seals; 
NMFS/FWS, 2005). Although there is little direct information about the 
effects of net-pen salmon aquaculture on wild Maine salmon (NRC, 2004), 
potentially harmful interactions between wild and farmed salmon can be 
divided into ecological and genetic interactions. Ecological 
interactions can occur in sites for migration, resulting in alterations 
in disease transmission and changes to competition and predation 
pressures, whereas genetic interactions occur in spawning sites, which 
can modify the timing of important life history events and thereby 
alter selection pressures and fitness. These interactions are not 
mutually exclusive, and the effects of each may compound and influence 
the effects of the other. We conclude that the spawning and rearing PCE 
and the migration PCE in each affected HUC 10 is, and will likely 
continue to be, negatively affected by aquaculture into the future, 
and, therefore, may require special management considerations or 
protections which may include better containment of aquaculture fish to 
prevent escapement and enhanced disease and parasite control 
procedures.

 Table 1--Specific Areas Within the Geographic Area Occupied by a Species and the Associated Special Management
                               Considerations or Protections That May Be Required
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
HUC code               Watershed name..  .......                Special management considerations*
----------------------------------------------------------------------------------------------------------------
105000205............  Machias River...  A        F       C/L     H/S     R       ......  Da      Dr
105000204............  East Machias      A        F       C/L     H/S     R       M       Da      Dr
                        River.
105000208............  Pleasant River..  A        F       C/L     H/S     R       M       Da      Dr
105000201............  Dennys River....  A        F       C/L     H/S     R       M       Da      Dr
105000207............  Chandler River..  A        F       C/L     H/S     R       M       Da      Dr
105000209............  Narraguagus       A        F       C/L     H/S     R       M       Da      Dr
                        River.
105000213............  Union River Bay.  A        F       C/L     H/S     R       M       Da      Dr Q
105000203............  Grand Manan       A        F       C/L     H/S     R       M       Da      Dr Q
                        Channel.
105000206............  Roque Bluffs      A        F       C/L     H/S     R       M       Da      Dr
                        Coastal.
105000210............  Tunk Stream.....  A        F       C/L     H/S     R       ......  Da      Dr
105000212............  Graham Lake.....  A        F       C/L     H/S     R       M       Da
102000202............  Grand Lake        A        F       C/L     H/S     R       ......  Da
                        Matagamon.
102000203............  East Branch       A        F       C/L     H/S     R
                        Penobscot River.
102000204............  Seboeis River...  A        F       C/L     H/S     R       ......  Da
102000205............  East Branch       A        F       C/L     H/S     R       ......  Da
                        Penobscot River.
102000301............  West Branch       A        F       C/L     H/S     R       M       Da
                        Mattawamkeag
                        River.
102000302............  East Branch       A        F       C/L     H/S     R       M
                        Mattawamkeag
                        River.
102000303............  Mattawamkeag      A        F       C/L     H/S     R       M
                        River.
102000305............  Mattawamkeag      A        F       C/L     H/S     R       M
                        River.
102000306............  Molunkus Stream.  A        F       C/L     H/S     R
102000307............  Mattawamkeag      A        F       C/L     H/S     R       M       Da
                        River.
102000401............  Piscataquis       A        F       C/L     H/S     R       ......  Da
                        River.
102000402............  Piscataquis       A        F       C/L     H/S     R       M       Da
                        River.
102000404............  Pleasant River..  A        F       C/L     H/S     R       ......  Da
102000405............  Seboeis Stream..  A        F       C/L     H/S     R       ......  Da
102000406............  Piscataquis       A        F       C/L     H/S     R       M       Da
                        River.
102000501............  Penobscot River   A        F       C/L     H/S     ......  M       Da
                        at Mattawamkeag.
102000502............  Penobscot River   A        F       C/L     H/S     R       M       Da
                        at West Enfield.
102000503............  Passadumkeag      A        F       C/L     H/S     R       M       Da
                        River.
102000505............  Sunkhaze Stream.  A        F       C/L     H/S     R
102000506............  Penobscot River   A        F       C/L     H/S     R       M
                        at Orson Island.


[[Page 51760]]


 Table 1--Specific Areas Within the Geographic Area Occupied by a Species and the Associated Special Management
                          Considerations or Protections That May Be Required--Continued
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
HUC Code               Watershed Name..                 Special Management Considerations*
----------------------------------------------------------------------------------------------------------------
102000507............  Birch Stream....  A        F       C/L     H/S     R       M
102000509............  Penobscot River   A        F       C/L     H/S     R       M       Da
                        at Veazie Dam.
102000510............  Kenduskeag        A        F       C/L     H/S     R       M       Da      Dr
                        Stream.
102000511............  Souadabscook      A        F       C/L     H/S     R       M       Da      Dr
                        Stream.
102000512............  Marsh River.....  A        F       C/L     H/S     ......  M       Da      Dr
102000513............  Penobscot River.  A        F       C/L     H/S     R       M       Da      Dr
105000218............  Belfast Bay.....  A        F       C/L     H/S     R       M       Da      Dr
105000219............  Ducktrap River..  A        F       C/L     H/S     R       ......  Da      Dr Q
105000301............  St. George River  A        F       C/L     H/S     R       M       Da      Dr
105000302............  Medomak River...  A        F       C/L     H/S     R       M       Da      Dr
105000305............  Sheepscot River.  A        F       C/L     H/S     R       M       Da      Dr
103000306............  Kennebec River    A        F       C/L     H/S     R       M       Da      Dr
                        at Waterville
                        Dam.
103000305............  Sandy River.....  A        F       C/L     H/S     R       M       Da      Dr
103000312............  Kennebec at       A        F       C/L     H/S     R       M       Da      Dr Q
                        Merrymeeting
                        Bay.
105000306............  Sheepscot Bay...  A        F       C/L     H/S     R       M       Da      Dr
105000307............  Kennebec River    A        F       C/L     H/S     R       M       Da      Dr
                        Estuary.
104000210............  Little            A        F       C/L     H/S     R       M       Da      Dr
                        Androscoggin
                        River.
----------------------------------------------------------------------------------------------------------------
* A = Agriculture; F = Forestry, C/L = Changing Land Use; H/S = Hatcheries and Stocking; R = Roads and Road
  Crossings; M = Mining; Da = Dams; Dr = Dredging; Q = Aquaculture.

``Specific Areas Outside the Geographical Area Occupied by the Species 
* * * Essential to the Conservation of the Species''

    The ESA 3(5)(A)(ii) further defines ``critical habitat'' as 
``specific areas outside the geographical area occupied by the species 
at the time it is listed in accordance with the provisions of [section 
4 of this Act], upon a determination by the Secretary that such areas 
are essential for the conservation of the species''. For the reasons 
stated above in the discussion of specific occupied areas, we 
delineated the specific areas outside the geographic area occupied by 
the species using HUC 10 (level 5) watersheds. To determine whether 
these unoccupied areas are essential for the conservation of the 
species, we: (1) Established recovery criteria to determine when the 
species no longer warrants the protections of the ESA (See Appendix A 
of Biological valuation of Atlantic salmon habitat within the range of 
the GOM DPS) and the amount of habitat needed to support the recovered 
population; and (2) determined the amount of habitat currently occupied 
by the species relative to the amount of habitat necessary to achieve 
recovery.
    To establish recovery criteria, we determined the characteristics 
of a recovered GOM DPS. We first established a geographic framework 
represented by three Salmon Habitat Recovery Units, or SHRUs, within 
the DPS (see appendix A of the Biological valuation of Atlantic Salmon 
Habitat within the range of the GOM DPS, 2008). The SHRU delineations 
were established to aid in developing criteria for recovery to ensure 
that Atlantic salmon are widely distributed across the DPS such that 
recovery of the species is not limited to one river or one geographic 
location within the GOM DPS. As explained in more detail in the 
Biological valuation of Atlantic salmon habitat within the range of the 
GOM DPS, Appendix A, we determined that all three SHRUs must fulfill 
the criteria described below for the overall species, the GOM DPS, to 
be considered recovered. The three SHRUs will provide protection from 
genetic and demographic stochasticity as well as depensatory effects 
whereby a decrease in the population can lead to reduced survival and 
production of eggs and offspring. Recovery of the GOM DPS, whereby each 
of the three SHRUs meet the criteria described below, also assures 
diversity across the geographic range such that fish from one SHRU may 
be particularly well adapted to one environment or set of conditions 
(e.g., long migration corridors, high gradient reaches, warm 
temperatures, etc.) to which fish from another SHRU may not be well 
adapted.

Criteria

    As explained further in the Biological valuation of Atlantic Salmon 
Habitat within the range of the GOM DPS, Appendix A, we determined that 
if the census population (N) of adult spawners within any of the three 
SHRUs were to fall below 500, the GOM DPS should be evaluated as 
threatened pursuant to the factors set forth in the ESA. A census 
population of 500 adult spawners within all three SHRUs also serves as 
the starting point in which to make a determination of recovery for the 
entire GOM DPS. Franklin (1980) introduced 500 as the approximate 
effective population size necessary to retain sufficient genetic 
variation and long term persistence of a population. Though there has 
been much debate in the literature regarding the application of 
assigning a general number to represent when populations are 
sufficiently large enough to maintain genetic variation (Allendorf and 
Luikart, 2007), the ``500 rule'' introduced by Franklin (1980) has not 
been superseded by any other rule and does serve as useful guidance for 
indicating when a population may be at risk of losing genetic 
variability (Allendorf and Luikart, 2007).
    We have chosen to use 500 adult spawners (1 or 2 sea-winter salmon) 
in each SHRU as the indicator of when the populations in each of the 
three SHRUs may be at risk of losing genetic variability. We used the 
census number rather than an effective population size (Ne) primarily 
because determining an effective population size for natural 
populations with highly complex life histories can be extremely 
difficult and highly variable from one year to the next (Waples and 
Yokota, 2007; Reiman and Allendorf, 2001). In Atlantic salmon 
populations, where cross-generational breeding, iteroparity, and 
precocious parr all contribute to the breeding population, computing an 
effective population size of the natural population would most likely 
generate values with substantial error surrounding the data, and 
therefore not be particularly useful in determining when the population 
is at risk of becoming endangered.

[[Page 51761]]

    Additionally, an N of 500 per SHRU provides only a starting point 
from which to establish criteria for delisting and will not necessarily 
be the actual number at which the DPS warrants delisting. Geographic 
distribution, population trends, and the results of Population 
Viability Analyses (PVAs) are other factors that will be used in 
determining extinction risks to the GOM DPS (see appendix A of 
Biological valuation of Atlantic salmon habitat within the GOM DPS 
(2008)) and the determination of when the GOM DPS warrants delisting. 
Furthermore, objective, measurable criteria as required under ESA Sec.  
4(f)(1)(B)(ii) will further establish thresholds for recovery and will 
be determined in a final recovery plan for the expanded GOM DPS. As a 
result, the actual number of fish needed to warrant a delisting 
decision will likely be greater than 500 for each SHRU based upon the 
demographics of the population leading up to the point at which a 
decision is made.
    Given a population size of 500 adult spawners in any SHRU as a 
threshold in which the GOM DPS should be evaluated for listing as a 
threatened species, we determined that a recovered GOM DPS would be one 
that is not likely to become threatened, because a recovered GOM DPS 
should not be a population that teeters on the line between a GOM DPS 
that is recovered, and a GOM DPS that is threatened.
    Therefore, for the GOM DPS to be considered recovered, each SHRU 
must have a less than 50-percent chance of the adult spawner population 
falling below 500 over the next 15 years (see Appendix A of Biological 
valuation of Atlantic salmon habitat within the GOM DPS). Additionally, 
the entire GOM DPS must reflect sustainable positive population growth 
for a period of 10 years (or two generations) to ensure that population 
trends are substantive (see Appendix A of Biological valuation of 
Atlantic Salmon Habitat within the GOM DPS, 2008). The criteria 
described above were then applied to aid in determining whether 
designating any specific unoccupied habitat areas are essential for the 
conservation of the species by estimating the amount of habitat needed 
to support a recovered GOM DPS.
    Using demographic data for the period between 1991-2006, a period 
considered to have had exceptionally low survival, we applied the 
criteria described above in conjunction with a Population Viability 
Analysis (PVA) to determine how many adults would be required in each 
SHRU to weather a similar downturn in survival while having a greater 
than 50-percent chance of remaining above 500 adults (see Appendix B of 
Biological valuation of Atlantic salmon habitat within the GOM DPS, 
2008). This analysis projected that a census population of 2,000 
spawners (1000 male and 1000 female) would be needed in each of the 
three SHRUs for the GOM DPS to weather a downturn in survival such as 
experienced over the time period from 1991-2006. Based on this 
analysis, enough habitat is needed in each of the three SHRUs to 
support the offspring of 2,000 spawners. Using an average fecundity per 
female of 7,200 eggs (Legault, 2004), and male to female ratio of 1:1, 
or 1000 females, and a target number of eggs per one unit of habitat 
(100 m\2\) of 240 (Baum, 1997) we determined that 30,000 units of 
habitat is needed across each SHRU (7,200 eggs x 1000 females/240 eggs 
= 30,000) to support the offspring of 2,000 spawners, which represents 
the quantity of habitat in each SHRU essential to the conservation of 
the species (Appendix B of Biological valuation of Atlantic Salmon 
Habitat within the GOM DPS, 2008).
    To calculate the existing quantity of habitat across the DPS both 
within the currently occupied range and outside the occupied range, we 
considered the measured quantity of habitat within each HUC 10 as well 
as the habitat's quality to generate the habitat's functional 
equivalent. The functional equivalent values are a measure of the 
quantity of habitat (expressed in units where 1 unit of habitat is 
equivalent to 100 m\2\ of habitat) within a HUC 10 based on qualitative 
factors that limit survivorship of juvenile salmon utilizing the 
habitat for spawning, rearing and migration. The functional equivalent 
also accounts for dams within or below the HUC 10 that would further 
reduce survivorship of juvenile salmon within the HUC 10 as they 
migrate towards the marine environment. In HUC 10s that are not 
believed to be limited by qualitative factors or dams, the functional 
equivalent would be identical to the measured quantity of habitat 
within the HUC 10. In HUCs where quality and dams are believed to be 
limiting, the functional equivalent would be less than the measured 
habitat within the HUC 10. The functional equivalent value is used in 
the critical habitat evaluation process to determine the quantity of 
functioning habitat within each HUC 10. It also determines the quantity 
of functioning habitat within the currently occupied range relative to 
the amount needed to support the offspring of 2000 adult spawners.
    The functional equivalent was generated by multiplying the units of 
habitat within each HUC 10 by the habitat quality score divided by 3 
(e.g. 1 = 0.33, 2 = 0.66, and 3 = 1; discussed below under application 
of ESA section 4(b)(2)). This value was then multiplied by the passage 
efficiency of FERC dams with turbines raised to the power of the number 
of dams both within and downstream of the HUC 10. Habitat quality 
scores were divided by 3 to represent their relative values in terms of 
percentages such that a ``1'' habitat quality score has a qualitative 
value roughly 33 percent of habitat that is not limiting, ``2'' habitat 
quality score is roughly 66 percent, and a ``3'' score equals 100-
percent habitat quality. We consider 0.85 to represent a coarse 
estimate of passage efficiency for FERC dams with turbines based on the 
findings of several studies (GNP, 1995; GNP, 1997; Holbrook, 2007; 
Shepard, 1991c; Spicer et al. 1995) and therefore roughly equivalent to 
a 15 percent reduction in functional equivalent. The number of dams 
present both within and downstream of the HUC 10 was used as an 
exponent to account for cumulative effects of dams. A full review of 
how habitat quantities and habitat qualities were computed is provided 
in the Biological Valuation of Atlantic Salmon Habitat within the GOM 
DPS, 2008.
    Table 2 represents the total amount of measured habitat within the 
occupied areas of each SHRU; the habitats functional equivalent for 
each SHRU; amount of habitat proposed for exclusion; the amount of 
functional habitat (represented as functional equivalent) after 
exclusion; and the amount of habitat still needed to support the 
offspring of 2,000 adult spawners within each SHRU.

[[Page 51762]]



                        Table 2--Total Habitat and Functional Habitat for Occupied Areas
                                      Among the Three SHRUs in the GOM DPS
----------------------------------------------------------------------------------------------------------------
                                                                                                    Additional
                                                                                                  habitat needed
                                                                                                  to support the
                                   Total habitat    Functional       Proposed       Functional     offspring of
              SHRU                     units        equivalent       exclusion     habitat after    2,000 adult
                                                                                    exclusions       spawners
                                                                                                   (i.e., 30,000
                                                                                                      units)
----------------------------------------------------------------------------------------------------------------
Merrymeeting Bay................         372,639          40,001               0          40,001               0
Penobscot Bay...................         323,740          66,263           3,205          63,058               0
Downeast Coastal................          61,395          29,111               0          29,111             889
----------------------------------------------------------------------------------------------------------------

    In both the Penobscot and Merrymeeting Bay SHRUs there are more 
than 30,000 units of functional habitat within the currently occupied 
area to support the offspring of adult spawners. In the Downeast SHRU, 
the amount of functional habitat available to the species is estimated 
to be 889 units short of what is needed to support 2000 adult spawners. 
Nonetheless, we determined that no areas outside the occupied 
geographical area within the Downeast SHRU are essential to the 
conservation of the species. This is because of the 61,395 total 
habitat units in Downeast Maine, the habitat is predicted to be 
functioning at the equivalent of only 29,111 units because of the 
presence of dams or because of degraded habitat features that reduce 
the habitats functional value. Through restoration efforts, including 
enhanced fish passage and habitat improvement of anthropogenically 
degraded features, a substantial portion of the approximate 32,000 
units of non-functioning habitat may be restored to a functioning 
state. The Union River, for instance, has over 12,000 units of habitat, 
though its functional potential is estimated to be equivalent to 
approximately 4,000 units of habitat. This is largely because of dams 
without fish passage that preclude Atlantic salmon access to portions 
of the Union River watershed. Dam removal or improved fish passage has 
the potential to restore a significant amount of the 8,000 units within 
the Union River declared to be non-functioning habitat.
    Throughout Maine, there has been substantial effort on behalf of 
state and Federal agencies and non-profit organizations in partnership 
with landowners and dam owners to restore habitat through a combination 
of land and riparian protection efforts, and fish passage enhancement 
projects. Project SHARE, the Downeast Salmon Federation, watershed 
councils, Trout Unlimited, and the Atlantic Salmon Federation, for 
example, have conducted a number of projects designed to protect, 
restore and enhance habitat for Atlantic salmon ranging from the 
Kennebec River in south central Maine to the Dennys River in Eastern 
Maine. Projects include (though are not limited to) dam removals along 
the Kennebec, St. George, Penobscot, and East Machias Rivers, land 
protection of riparian corridors along the Machias, Narraguagus, 
Dennys, Pleasant, East Machias, Sheescot, Ducktrap rivers and Cove 
Brook; surveying and repair of culverts that impair fish passage; and 
outreach and education efforts on the benefits of such projects. The 
Penobscot River Restoration Project is another example of cooperative 
efforts on behalf of Federal and state agencies, non-profit 
organizations and dam owners. The PRRP goal is to enhance runs of 
diadromous fish through the planned removal of two mainstem dams and 
enhanced fish passage around several other dams along the Penobscot 
River. These cooperative efforts can increase the functional potential 
of Atlantic salmon habitat by both increasing habitat availability as 
well as increasing habitat quality. Therefore, we do not believe that 
it is essential to designate critical habitat outside of the currently 
occupied range.

Activities That May Be Affected (Section 4(b)(8))

    Section 4(b)(8) of the ESA requires that we describe briefly and 
evaluate in any proposed or final regulation to designate critical 
habitat, those activities that may destroy or adversely modify such 
habitat or that may be affected by such designation. A wide variety of 
activities may affect critical habitat and, when carried out, funded, 
or authorized by a Federal agency, will require an ESA section 7 
consultation. Such activities (detailed in the economic analysis) 
include, but are not limited to agriculture, transportation, 
development and hydropower.
    We believe this proposed critical habitat designation will provide 
Federal agencies, private entities, and the public with clear 
notification of critical habitat for Atlantic salmon and the boundaries 
of such habitat. This designation will allow Federal agencies and 
others to evaluate the potential effects of their activities on 
critical habitat to determine if ESA section 7 consultation with NMFS 
is needed given the specific definition of physical and biological 
features.

Application of ESA Section 4(a)(3)(B)(1)

    The Sikes Act Improvement Act of 1997 (16 U.S.C. 670a-670f, as 
amended), enacted on November 18, 1997, required that military 
installations with significant natural resources prepare and implement 
an integrated natural resource management plan (INRMP) in cooperation 
with the USFWS and state fish and wildlife agencies, by November 18, 
2001. The purpose of the INRMP is to provide the basis for carrying out 
programs and implementing management strategies to conserve and protect 
biological resources on military lands. Because military lands are 
often protected from public access, they can include some of the 
nation's most significant tracts of natural resources. INRMPs are to 
provide for the management of natural resources, including fish, 
wildlife, and plants; allow multipurpose uses of resources; and provide 
public access where appropriate for those uses, without any net loss in 
the capability of an installation to support its military mission.
    In 2003, the National Defense Authorization Act (Pub. L. 108-136) 
amended the ESA to limit areas eligible for designation as critical 
habitat. Specifically, section 4(a)(3)(B)(i) of the ESA (16 U.S.C. 
1533(a)(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. 67a), if the Secretary 
determines in writing that such plan provides a benefit

[[Page 51763]]

to the species for which critical habitat is proposed for 
designation.''
    Within the specific areas identified as critical habitat for the 
Gulf of Maine DPS, there are three military sites, one of which has 
been decommissioned and recently transitioned to civilian ownership. 
The two active military sites within the occupied range of the DPS 
include: (1) The 3,094 acre Brunswick Naval Air Station in Brunswick, 
Maine, of which 435 acres are within Little Androscoggin HUC 10 
watershed in the Merrymeeting Bay SHRU; and (2) the Brunswick Naval Air 
Stations cold weather survival, evasion, resistance and escape school 
which occupies 12,000 acres near Rangeley, Maine and occupies 5,328 
acres of the Sandy River HUC 10 watershed in the Merrymeeting Bay SHRU. 
We have contacted the Department of Defense and requested information 
on the existence of INRMPs and the benefits any INRMPs would provide to 
Atlantic salmon. If any INRMPs covering these sites are determined, in 
writing, to provide a benefit to Atlantic salmon, we would be precluded 
from designating the Atlantic salmon habitat within these sites, which 
is comprised of 9.56 km of river and streams containing physical and 
biological features in the Sandy River HUC, and 0.81 km of river and 
streams containing physical and biological features in the Lower 
Androscoggin HUC.

Application of ESA Section 4(b)(2)

    The foregoing discussion described the specific areas within U.S. 
jurisdiction that meet the ESA definition of critical habitat because 
they contain the physical and biological features essential to the 
conservation of Atlantic salmon that may require special management 
considerations or protection. Before including areas in a designation, 
section 4(b)(2) of the ESA requires the Secretary to consider the 
economic impact, impact on national security, and any other relevant 
impacts of designation of any particular area. The Secretary has the 
discretion to exclude any area from designation if he determines that 
the benefits of exclusion (that is, avoiding some or all of the impacts 
that would result from designation) outweigh the benefits of 
designation based upon the best scientific and commercial data 
available. The Secretary may not exclude an area from designation if 
exclusion will result in the extinction of the species. Because the 
authority to exclude is discretionary, exclusion is not required for 
any particular area under any circumstances.
    The 4(b)(2) exclusion process is conducted for a ``particular 
area,'' not for the critical habitat as a whole. This analysis is 
therefore conducted at a geographic scale that divides the area under 
consideration into smaller sub-areas. The statute does not specify the 
exact geographic scale of these ``particular areas.'' For the purposes 
of the analysis of economic impacts, a ``particular area'' is 
equivalent to a ``specific area'', defined as a HUC 10 (level 5) 
standard watershed. There are 48 ``specific areas'' (HUC 10s) occupied 
by the species on which are found those physical and biological 
features essential to the conservation of the species and which may 
require special management considerations or protection.
    Where we considered impacts on Indian Tribes, we delineated 
particular areas based on land ownership. Where we consider impacts on 
national security particular areas will be delineated based on lands 
identified by the military as areas where critical habitat will have an 
impact on national security. These areas may only account for a small 
fraction of a HUC 10 watershed or, in some circumstances, may span 
across several HUC 10 watersheds. Factors that were considered in 
determining whether or not the benefits of exclusion outweighed the 
benefits of designating the particular areas as critical habitat:
    (1) The quantity of functional habitat proposed for exclusion 
relative to the quantity of habitat needed to support a recovered 
population;
    (2) The relative biological value of a particular area to the 
conservation of the species, measured by the quantity and quality of 
the physical and biological features with the particular area;
    (3) The anticipated conservation loss that would be accrued through 
not designating a particular area based upon the conservation value of 
that particular area; and
    (4) Whether exclusion of habitat within the particular area, based 
upon the best scientific and commercial data, would result in the 
extinction of the species concerned.

Assigning Biological Value

    To determine the benefits of including an area as critical habitat, 
we assigned a Final Biological Value to each HUC 10 watershed based on 
the quantity and quality of Atlantic salmon spawning and rearing 
habitat and the migratory needs of the species (see Biological 
valuation of Atlantic salmon habitat in the GOM DPS (2008)). The Final 
Biological Value indicates each areas current value to Atlantic salmon 
spawning, rearing and migration activities and is applied in the 
4(b)(2) exclusion analysis, where it is weighed against the economic, 
national security, and other relevant impacts to consider whether 
specific areas may be excluded from designation. (The final biological 
value also aided in determining those areas currently occupied by the 
species described earlier in the proposed rule under ``Identifying the 
Geographical Area Occupied by the Species and Specific Areas within the 
Geographical Area'').
    The variables used to develop the Final Biological Value include a 
combination of habitat units, habitat quantity, habitat quality, and 
the value of the HUC 10 to migration of smolts and adults.
    A habitat unit represents 100 m\2\ of spawning and rearing habitat. 
A ``habitat unit'' is used in North America and Europe to quantify 
habitat features most frequently used for spawning and juvenile rearing 
(e.g., riffles and runs). Habitat units for each HUC 10 were calculated 
using the GIS based habitat prediction model described earlier in the 
proposed rule under Physical and Biological Features in Freshwater and 
Estuary Specific Areas Essential to the Conservation of the Species.
    Habitat quantity is the estimate of habitat units generated by the 
model and was calculated separately for each HUC 10. The units of 
habitat were then binned into four categories for each of the three 
SHRUs. A HUC 10 with no habitat was assigned a score of ``0'' and was 
considered unoccupied. HUC10's with the lowest 25 percent of total 
units of habitat across the entire SHRU received a ``1'' score, the 
middle 50 percent received a ``2'' score, and the upper 25 percent 
received a ``3'' score. A ``3'' score represents the highest relative 
habitat quantity score. This method resulted in the majority of the 
habitat receiving a score of ``2'' representing an average habitat 
quantity. Habitat scores outside the middle 50 percent were considered 
to have above average habitat quantity or below average habitat 
quantity.
    Habitat quality scores were assigned to HUC 10s based on 
information and input from fisheries biologists working with the Maine 
Department of Inland Fisheries and Wildlife, the MDMR, NMFS, and 
Kleinschmidt Energy and Water Resource Consultants who possess specific 
knowledge and expertise about the geographic region. For each of the 
three SHRUs, a minimum of three biologist with knowledge of and 
expertise in the geographic area were asked to independently assign 
habitat scores,

[[Page 51764]]

using a set of scoring criteria developed by Fisheries Biologists from 
NMFS, to HUC 10s based on the presence and quality of the physical and 
biological features essential to the conservation of the species (see 
Biological valuation of Atlantic salmon habitat within the GOM DPS 
(2008)). The scoring criteria ranked qualitative features including 
temperature, biological communities, water quality, and substrate and 
cover, as being highly suitable (``3''), suitable (``2''), marginally 
suitable (``1'') or not suitable (``0'') for supporting Atlantic salmon 
spawning, rearing and migration activities. A habitat value of ``0'' 
indicates that one or more factors is limiting to the point that 
Atlantic salmon could not reasonably be expected to survive in those 
areas; a score of ``1'', ``2'' or ``3'' indicates the extent to which 
physical and biological features are limiting, with a ``1'' being most 
limiting and a ``3'' being not limiting. In HUC 10s that are and have 
always been inaccessible due to natural barriers, the entire HUC 10 was 
automatically scored as ``0'' and considered not occupied by the 
species. During the scoring process, biologists were given the option 
to consider all the HUC 12 sub-watersheds present within each HUC 10 
watershed to aid in reaching a final HUC 10 watershed score. Emphasis 
was placed on identifying whether or not the physical and biological 
features needed for Atlantic salmon spawning and rearing are present 
and of what quality the features are. The overall habitat quality score 
for each HUC 10 was typically an average determined by the compilation 
of scores and comments provided from the biologists.
    Final Habitat Values were generated for each HUC 10 by combining 
habitat quantity and habitat quality scores within each HUC 10. HUC 10s 
with zero scores for either habitat quantity or quality received a zero 
score for Final Habitat Value. Combined scores were then binned on a 
scale of one to three with the lowest 25 percent receiving a ``1'' 
score, the middle 50 percent receiving a ``2'' score, and the upper 25 
percent receiving a ``3'' score. A ``3'' score represents the highest 
relative Final Habitat Value.
    A final migration score was generated based on the final habitat 
values and the migratory requirements of adults to reach spawning areas 
and smolts to reach the marine environment. We determined the final 
migration score of a HUC 10 to be equal to the highest final habitat 
value upstream from the HUC 10 as we concluded that access to spawning 
and rearing habitat was equally as important as the spawning and 
rearing habitat itself.
    The final biological value for each HUC 10, which is the value used 
in weighing economic cost against the biological value of habitat to 
salmon, was determined by selecting the higher of the final habitat 
score and the final migration score of each HUC10. This approach 
assures the preservation of spawning and rearing habitat as well as 
migration habitat (see Biological valuation of Atlantic salmon habitat 
within the range of the GOM DPS, 2008).

Consideration of Economic Impacts, Impacts to National Security and Any 
Other Relevant Impacts

    The impact of specifying any particular area as critical habitat 
occurs primarily through section 7 of the ESA. Once critical habitat is 
designated, section 7(a)(2) requires that Federal agencies ensure any 
action they authorize, fund or carry out (this action is called the 
``Federal nexus'') is not likely to result in the destruction or 
adverse modification of critical habitat (16 U.S.C. 1536(a)(2)). 
Parties involved in section 7 consultations include NMFS or the USFWS, 
a Federal action agency, and in some cases, a private entity involved 
in the project or land use activity. The Federal action agency serves 
as the liaison with NMFS. Under Section 7(a)(2), when a Federal agency 
proposes an action that may affect a listed species or its critical 
habitat, it must initiate formal consultation with NMFS (or the USFWS, 
as applicable) or seek written concurrence from the Services that the 
action is not likely to adversely affect listed species or its 
designated critical habitat. Formal consultation is a process between 
the Services and a Federal agency designed to determine whether a 
proposed Federal action is likely to jeopardize the continued existence 
of a species or destroy or adversely modify critical habitat, an action 
prohibited by the ESA. If the action is likely to destroy or adversely 
modify critical habitat, then the Federal agency may be required to 
implement a reasonable and prudent alternative (RPA) to the proposed 
action to avoid the destruction or adverse modification of critical 
habitat. In addition, conservation benefits to the listed species would 
result when the consultation process avoids destruction or adverse 
modification of its critical habitat through inclusion of RPAs, or 
avoids lesser adverse effects to critical habitat that may not rise to 
the level of adverse modification through inclusion of harm avoidance 
measures.
    Outside of the Federal agencies' obligation to critical habitat and 
project modifications that may be required to avoid destruction or 
adverse modification, the ESA imposes no requirements or limitations on 
entities or individuals as result of a critical habitat designation.

Economic Impacts

    As discussed above, economic impacts of the critical habitat 
designation result from implementation of section 7 of the ESA. Section 
7(a)(2) requires Federal agencies to consult with NMFS to ensure their 
proposed actions are not likely to destroy or adversely modify critical 
habitat. These economic impacts may include both administrative and 
project modification costs. Economic impacts may also be associated 
with the conservation benefits of the designation.
    Economic impacts were assessed for each specific HUC 10 area 
proposed for designation, as well as for unoccupied areas within the 
range of the GOM DPS. While we are not proposing to designate 
unoccupied areas, we evaluated the economic impacts in the event that 
we determined in the biological valuation process, or determine as a 
result of public comment or subsequently available information, that 
some or all of the unoccupied areas were found to be to be essential to 
the conservation of the species. For the entire range of the GOM DPS, 
the present value of estimated economic impacts ranges from 
approximately $222 million to $259 million, with most of the economic 
impact resulting from impacts to hydropower and development (IEc, 
2008a). The estimated economic impact of designation of the occupied 
areas before economic exclusions ranges from approximately $165 million 
to $190 million. We solicit comment on the economic impacts to 
activities that may be affected as a result of this designation, 
particularly hydropower activities and alternative energy projects. 
Information received will be considered in the development of the final 
designation.
    For the designation of critical habitat for the GOM DPS, economic 
exclusions within the 48 occupied HUC 10s throughout the DPS were 
considered by weighing biological value determined in the biological 
valuation and the economic cost determined in the economic analysis. As 
described earlier, the Biological Values were assigned a score of 1, 2, 
or 3, with a ``1'' being of lowest biological value and a ``3'' being 
of highest biological value. Areas could also be assigned a biological 
value of ``0'' if the physical and biological

[[Page 51765]]

features in those areas were so degraded that they were not considered 
essential to the conservation of salmon. Areas assigned a ``0'' score 
were not included in the economic exclusion analysis. As stated above, 
we consider these areas to be unoccupied, and we determined that no 
unoccupied areas were essential to the conservation of the GOM DPS.
    To compare economic cost with biological value, we ranked the range 
often monetized categories provided in the economic analysis (IEc, 
2008a) as being high (``3''), medium (``2'') or low (``1'') economic 
impact. These categories illustrate economic costs over the range of 
the GOM DPS. The high, medium and low scores assigned to economic costs 
were then used to weigh economic cost against the corresponding 
biological value (also scored as high, medium or low) of each HUC 10. 
When developing criteria for comparing economic costs the use of a 
dollar value was chosen. A score of ``1'' (low economic costs) 
represents a cost ranging from $24,000 to $432,000; a score of ``2'' 
represents a medium economic cost ranging form $432,001 to $2,810,000; 
and a score of ``3'' represents a high economic cost ranging from 
$2,810,001 to $26,300,000. These dollar thresholds do not represent an 
objective judgment that low-value areas are worth no more than 
$432,000, medium-value areas are worth no more than $2,810,000, or high 
value areas are worth no more than $26,300,000. Under the ESA, we are 
to weigh dissimilar impacts given limited time and information. The 
statute 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 directs us to consider exclusions to avoid high economic impacts, 
but also requires that the areas designated as critical habitat are 
sufficient to support the conservation of the species and to avoid 
extinction. In this policy context, we selected dollar thresholds 
representing the levels at which we believe the economic impact 
associated with a specific area would outweigh the conservation 
benefits of designating that area.
    Given the low abundance and endangered status of Atlantic salmon, 
we exercise our discretion to consider exclusion of specific areas 
based on three decision rules: (1) specific areas with a biological 
value of medium (``2'') or high (``3'') score were not eligible for 
exclusion regardless of the level of economic impact, because of the 
endangered status of Atlantic salmon; (2) specific areas with a low 
biological value (``1'') were excluded if the economic costs were 
greater than $432,000 (economic score of ``2'' or ``3''); (3) specific 
areas were not considered for exclusion, including those areas having a 
low biological value (``1''), if the area had no dams both within it or 
below it given that these areas are not subject to the deleterious 
effects that dams have on migration of adults and smolts (GNP 1995; GNP 
1997; Holbrook 2007; Shepard 1991c; Spicer et al. 1995). 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.
    We propose to exclude three particular areas (HUC 10s) in the 
Penobscot Bay SHRU due to economic impact, out of a total of 48 
occupied HUC 10s within the range of the GOM DPS. Areas proposed for 
exclusion include 1,243 km of river, stream and estuary habitat and 97 
sq. km of lakes in all of Belfast Bay (HUC 105000218), Passadumkeag 
River (HUC 102000503), and Molunkus Stream (HUC 102000306). The 
combined economic impact of the designation in those particular areas 
was estimated to be $8,391,000 to $9,412,000 before they were 
considered for exclusion. The estimated economic impact for the 
proposed critical habitat following exclusions ranges from 
approximately $97 million to $120 million. The estimated economic 
impact of the proposed critical habitat designation for each SHRU are 
in Table 3.

 Table 3--Summary of Economic Impact for Occupied HUC 10 by SHRU in the
                                 GOM DPS
------------------------------------------------------------------------
                  SHRU                     Low estimate    High estimate
------------------------------------------------------------------------
Downeast Coastal........................      $7,473,000     $10,488,000
Penobscot Bay...........................      17,393,100      22,346,900
Merrymeeting Bay........................      72,520,000      87,310,000
                                         -------------------------------
    Total...............................      97,386,100     120,144,900
------------------------------------------------------------------------

National Security

    As stated above, within the areas identified as critical habitat 
for the GOM DPS, there are three military sites, one of which has been 
decommissioned and recently transitioned to civilian ownership. The two 
active military sites within the occupied range of the DPS include: (1) 
The 3,094 acre Brunswick Naval Air Station in Brunswick, Maine, of 
which 435 acres are within Little Androscoggin HUC 10 watershed in the 
Merrymeeting Bay SHRU; and (2) the Brunswick Naval Air Stations cold 
weather survival, evasion, resistance and escape school which occupies 
12,000 acres near Rangeley, Maine and occupies 5,328 acres of the Sandy 
River HUC 10 watershed in the Merrymeeting Bay SHRU. We have contacted 
these installations concerning the national security impacts of 
designation of these areas as critical habitat. If these areas are 
eligible for designation (i.e., not covered by INRMPs that provide a 
benefit to the GOM DPS) and any identified national security impacts 
are determined to outweigh the benefits of designation, we would 
exclude from the designation the Atlantic salmon habitat within these 
military sites, which is comprised of 9.56 km of river and streams 
containing physical and biological features in the Sandy River HUC, and 
0.81 km of river and streams containing physical and biological 
features in the Lower Androscoggin HUC.

Other Relevant Impacts: Tribal Lands

    The Penobscot Indian Nation and the Passamaquoddy Tribe own and 
conduct activities on lands within the Gulf of Maine DPS. Activities 
may include agriculture; residential, commercial, or industrial 
development; in-stream construction projects; silviculture; water 
quality monitoring; hunting and fishing; and other uses. Some of these 
activities may be affected by the designation of critical habitat for 
the Gulf of Maine DPS of Atlantic salmon.
    Secretarial Order 3206 recognizes that Tribes have governmental 
authority and the desire to protect and manage their resources in the 
manner that is most beneficial to them. Pursuant to the Secretarial 
Order, and consistent with

[[Page 51766]]

the Federal government's trust responsibilities, the Services must 
consult with the affected Indian Tribes when considering the 
designation of critical habitat in areas that may impact tribal trust 
resources, tribally-owned fee lands, or the exercise of tribal rights. 
Critical habitat in such areas, unless determined to be essential to 
conserve a species, may not be designated.
    The Indian lands specifically proposed for exclusion are those 
defined in Secretarial Order 3206 and include: (1) Lands held in trust 
by the United States for the benefit of any Indian tribe; (2) lands 
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.
    The Penobscot Indian Nation and the Passamaquoddy Tribe own and 
conduct activities on approximately 182,000 acres of land throughout 
the entire GOM DPS. Both tribes that own lands within the GOM DPS have 
actively pursued or participated in activities to further promote the 
health and continued existence of Atlantic salmon and their habitats. 
The Penobscot tribe has developed and maintained its own water quality 
standards that state ``it is the official policy of the Penobscot 
Nation that all waters of the Tribe shall be of sufficient quality to 
support the ancient and historical traditional and customary uses of 
such tribal waters by members of the Penobscot Nation.'' The Tribe is 
also currently participating in the Penobscot River Restoration Project 
that has the intended goal of restoring 11 species of diadromous fish, 
including Atlantic salmon. The Passamaquoddy Tribe has continued to 
maintain efforts to balance agricultural practices with natural 
resources. In a tract of Tribal land in Township 19, which accounts for 
approximately 12 km of the 27.8 km of rivers and streams on 
Passamaquoddy land that contain physical and biological features 
essential to salmon, the tribe has established an ordinance to govern 
its water withdrawals for these lands. This ordinance states ``it is 
important to the Tribe that its water withdrawals at T. 19 do not 
adversely affect the Atlantic salmon in any of its life stages, or its 
habitat,'' and restricts water withdrawals to avoid adverse impact on 
the Atlantic salmon.
    Within the occupied range proposed for designation, the Tribes own 
approximately 84,058 acres of land within 16 HUC 10 watersheds. NMFS 
proposes that the rivers, streams, lakes and estuaries of all 84,058 
acres of tribal land within the areas occupied by the GOM DPS also be 
excluded from critical habitat designation based on the principles of 
the Secretarial Order discussed above. Of the 84,058 acres, 26,401 
acres overlap with particular areas being proposed for exclusion based 
on economic impacts.

Determine Whether Exclusion Will Result in Extinction of the Species

    Section 4(b)2 states that particular areas shall not be excluded 
from critical habitat if the exclusion will result in extinction of the 
species. Our decision to only propose for exclusion particular areas 
based on economic impacts that had low biological value, unless dams 
were absent from the particular area, led to proposed exclusions only 
in the Penobscot SHRU. No economic exclusions were proposed in the 
Downeast or Merrymeeting Bay SHRUs. Given that exclusions based on 
economic impacts within the Penobscot SHRU were only made in areas 
considered to have little biological value to Atlantic salmon, those 
exclusions are not considered to jeopardize the species' continued 
existence because those areas do not diminish the functional equivalent 
below what is needed to support a recovered GOM DPS.
    We do not believe that exclusions of tribal lands will reduce the 
conservation value or functional equivalent of Atlantic salmon habitat 
within those particular areas given the ongoing cooperative efforts 
between the Tribes and the agencies. The combined habitat within the 
two military installations that contain critical habitat includes a 
total of 10 km of river and stream habitat out of roughly 4,394 km of 
river and stream habitat within the Merrymeeting Bay SHRU. These areas 
do not further reduce the amount of functional habitat within the 
Merrymeeting Bay SHRU below the amount needed to support the offspring 
of 2,000 adult spawners, and exclusion of these areas would therefore 
not likely result in the extinction of the species. Further evaluation 
of the impacts of excluding these military sites based on national 
security will be completed upon receipt of information requested from 
the Department of Defense.

Public Comments Solicited

    We solicit comments or suggestions from the public, other concerned 
governments and agencies, the scientific community, industry, or any 
other interested party concerning the proposed designation and 
exclusions, the biological valuation, the economic analysis, and the 
4(b)(2) report. You may submit your comments and materials concerning 
this proposal by any one of several methods (see ADDRESSES). Copies of 
the proposed rule and supporting documentation, including the 
biological valuation, economic analysis, and 4(b)(2) report, can be 
found on the NMFS Northeast Region Web site at http://www.nero.noaa.gov/prot_res/altsalmon/ altsalmon/. We will consider all comments 
pertaining to this designation received during the comment period in 
preparing the final rule.

Classification

    This proposed rule has been determined to be significant for 
purposes of Executive Order (E.O.) 12866. We have integrated the 
regulatory principles of the E.O. into the development of this proposed 
rule to the extent consistent with the mandatory duty to designate 
critical habitat, as defined in the ESA.
    We have determined that this action is consistent to the maximum 
extent practicable with the enforceable policies of the approved 
coastal management program of the State of Maine. The determination has 
been submitted for review by the responsible State agency under section 
307 of the Coastal Zone Management Act (16 U.S.C. 1451 et seq.).
    An environmental analysis as provided for under the National 
Environmental Policy Act 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).
    We prepared an initial regulatory flexibility analysis (IRFA) 
pursuant to section 603 of the Regulatory Flexibility Act (RFA) (5 
U.S.C. 601, et seq.)(IEc, 2008b). This IRFA only analyzes the impacts 
to those areas where critical habitat is proposed and is available at 
the location identified in the ADDRESSES section. The IRFA is 
summarized below, as required by section 603 of the RFA. The IRFA 
describes the economic impact this proposed rule, if adopted, would 
have on small entities. A summary of the IRFA follows:
    A description of the action, why it is being considered, and the 
objectives of and legal basis for this action are contained in the 
preamble of this rule and are not repeated here.
    After reviewing the land use activities evaluated in the economic 
analysis conducted for this action, the types of small entities that 
may be impacted if this rule were adopted include those entities 
involved in hydropower, agriculture, and development activities.

[[Page 51767]]

The total number of affected small entities includes up to 12 dam 
owners and 65 farms. There are an unknown number of small entities 
involved in development projects. Because impacts are calculated on a 
per acre basis and not for specific projects, it is not possible to 
identify specific landowners. We seek public comment on this topic.
    This action does not contain any new collection-of-information, 
reporting, recordkeeping, or other compliance requirements beyond the 
potential economic impacts described below and any reporting 
requirements associated with reporting on the progress and success of 
implementing project modifications, which do not require special skills 
to satisfy. Third party applicants or permittees may also incur costs 
associated with participating in the administrative process of 
consultation along with the permitting Federal agency.
    No Federal laws or regulations duplicate or conflict with the 
proposed rule. Existing Federal laws and regulations overlap with the 
proposed rule only to the extent that they provide protection to marine 
natural resources generally. However, no existing laws or regulations 
specifically prohibit destruction or adverse modification of critical 
habitat for, and focus on the recovery of, Atlantic salmon.
    The IRFA estimates that approximately 65 small farms (average 
annual receipts of less than $750,000), or roughly nine percent of the 
farms across the DPS, may be affected by critical habitat designation 
(IEc, 2008b). The average annual revenue of these farms was estimated 
at $76,000 (USDA 2002 Census of Agriculture). The estimated average 
losses per small farm are estimated at $6,100 (IEc, 2008b).
    Impacts to development are based on impacts to landowners 
associated with constraints on development within a 30-meter buffer of 
streams within the study area. The present value of impacts to all 
development projects is estimated at $94.6 million to $127 million. 
Section 3 of the Small Business Act defines small business as any firm 
that is independently owned and operated and is not dominant in its 
field of operation. The U.S. Small Business Administration (SBA) has 
developed size standards to carry out the purposes of the Small 
Business Act, and those size standards can be found in 13 CFR 121.201. 
Size standards are expressed either in number of employees or annual 
receipts in millions of dollars depending on the specific type of 
business. Because impacts to development projects are determined on a 
per acre basis and not by the specific type of development project, we 
were unable to determine who the specific affected landowners are. In 
some cases, some portion of these landowners are likely individuals and 
not business, and therefore not relevant to the small business 
analysis, while it is also likely that some of these landowners are 
businesses, including small businesses, that may be impacted by 
constraints.
    Land developers and subdividers are one type of small business that 
may be affected by constraints stemming from the proposed critical 
habitat designation (IEc, 2008b). The available data suggests that 188 
small land developers operate in counties that overlap the 48 HUCs 
containing proposed critical habitat, accounting for 97 percent of the 
subdividers in the region (IEc, 2008b). The information available, 
however, is insufficient to estimate the impacts on these entities or 
to identify other potentially affected landowners (IEc, 2008b).
    Impacts to hydropower were estimated for small hydropower producers 
identified by the Small Business Administration as those producing less 
than four billion kilowatt-hours annually and are likely to experience 
impacts associated with the critical habitat designation. The IRFA 
analysis (IEc, 2008b) estimates 12 hydropower producers within the 48 
HUCs where critical habitat is proposed may be affected with an 
estimated costs accrued by these dam owners between $17 annually to 
$507,000 annually (IEc, 2008b).
    We considered and rejected the alternative of not designating 
critical habitat for any of the specific areas because such an action 
does not meet the legal requirements of the ESA. We also considered not 
excluding any specific areas within the occupied range for reasons of 
economic impact given the critically low abundance of the species. We 
concluded, however, that the quantity of habitat is less of a factor 
limiting the abundance of the species than are the accessibility to the 
habitat through barriers to migration and marine survival issues. 
Therefore, allowing for exclusion of some specific areas that have low 
biological value would not likely further reduce recovery efforts. We 
also considered a more straightforward comparison of economic cost and 
biological value such that any areas for which the costs of designation 
were greater than the biological value of the area to the species would 
qualify for exclusion. We chose, however, to exclude only those areas 
that have a biological value score of ``1'' (unless the area is without 
dams) because excluding all of specific areas for which the costs of 
designation were greater than the biological value of the area to the 
species would reduce the quantity of habitat below what is needed to 
achieve conservation of the species.
    Critical habitat designation may encourage landowners to develop 
Habitat Conservation Plans (HCPs). Under section 10 of the ESA, 
landowners seeking an incidental take permit must develop an HCP to 
counterbalance the potential harmful effects that an otherwise lawful 
activity may have on a species. The purpose of the habitat conservation 
planning process is to ensure that the effects of incidental take are 
adequately minimized and mitigated. Thus, HCPs are developed to ensure 
compliance with section 9 of the ESA and to meet the requirements of 
section 10 of the ESA. Neither the IRFA nor the Economic Analysis of 
Critical Habitat Designation for the Gulf of Maine Distinct Population 
Segment of Atlantic Salmon forecasts effects associated with the 
development of HCPs. We solicit comment on such impacts, particularly 
with respect to the development of HCPs by small entities.
    Pursuant to the Executive Order on Federalism, E.O. 13132, the 
Assistant Secretary for Legislative and Intergovernmental Affairs will 
provide notice of the proposed action and request comments from the 
appropriate officials in Maine where Atlantic salmon occur.
    The data and analyses supporting this proposed action have 
undergone a pre-dissemination review and have been determined to be in 
compliance with applicable information quality guidelines implementing 
the Information Quality Act (IQA) (Section 515 of Pub. L. 106-554).
    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review pursuant to the 
IQA. The Bulletin established minimum peer review standards, a 
transparent process for public disclosure of peer review planning, and 
opportunities for public participation with regard to certain types of 
information disseminated by the Federal government. The peer review 
requirements of the OMB Bulletin apply to influential or highly 
influential scientific information disseminated on or after June 16, 
2005. To satisfy our requirements under the OMB Bulletin, we obtained 
independent peer review of the scientific information that supports the 
proposal to designate critical habitat for the GOM DPS of Atlantic 
salmon and incorporated the peer review comments prior to dissemination 
of this proposed

[[Page 51768]]

rulemaking. A Draft 4(b)(2) Report (NMFS, 2008) that supports the 
proposal to designate critical habitat for the GOM DPS of Atlantic 
salmon was also peer reviewed pursuant to the requirements of the 
Bulletin and is available on our Web site (see ADDRESSES).
    This action does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.

References Cited

    A complete list of all references cited in this rule making can be 
found on our Web site at http://www.nero.noaa.gov/prot_res/altsalmon/, 
and is available upon request from the NMFS Northeast Regional Office 
in Gloucester, Massachusetts (see ADDRESSES).

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: August 29, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, we propose to amend 50 CFR 
part 226 as set forth below:

PART 226--DESIGNATED CRITICAL HABITAT

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

    Authority: 16 U.S.C. 1533.

    2. Add Sec.  226.217, to read as follows:


Sec.  226.217  Critical habitat for the Gulf of Maine Distinct 
Population Segment of Atlantic Salmon (Salmo salar).

    Critical habitat is designated to include all perennial rivers, 
streams, and estuaries and lakes connected to the marine environment 
within the range of the Gulf of Maine Distinct Population Segment of 
Atlantic Salmon (GOM DPS) except for those particular areas within the 
range which are specifically excluded. Within the GOM DPS, the primary 
constituent elements (PCEs) for Atlantic salmon include sites for 
spawning and incubation, sites for juvenile rearing, and sites for 
migration. The physical and biological features of habitat are those 
features that allow Atlantic salmon to successfully use sites for 
spawning and rearing and sites for migration. These features include 
substrate of suitable size and quality; rivers and streams of adequate 
flow, depth, water temperature and water quality; rivers, streams, 
lakes and ponds with sufficient space and diverse, abundant food 
resources to support growth and survival; waterways that allow for free 
migration of both adult and juvenile Atlantic salmon; and diverse 
habitat and native fish communities in which salmon interact with while 
feeding, migrating, spawning, and resting.
    (a) The GOM DPS is divided into three salmon habitat recovery units 
(SHRUs) within the range of the GOM DPS: These are the Downeast Coastal 
SHRU, the Penobscot Bay SHRU and the Merrymeeting Bay SHRU. Critical 
habitat is only being considered in specific areas currently occupied 
by the species. Critical habitat specific areas are identified by 
hydrological unit codes (HUC) and counties within the States of Maine. 
Hydrological units are those defined by the Department of Interior 
(DOI), U.S. Geological Survey (USGS) publication, ``Hydrologic Unit 
Maps'' Water Supply Paper (Seaber et al., 1994) and the following DOI, 
USGS 1:500,000 scale hydrologic unit map: State of Maine: these 
documents are incorporated by reference. The incorporation by reference 
was approved by the Director of the Federal Register in accordance with 
5 U.S.C. 552(a) and 1 CFR part 51. Copies of the USGS publication and 
the maps may be obtained from the USGS, Map Sales, Box 25286, Denver, 
CO 80225. Copies may be inspected at NMFS, Protected Resources 
Division, Office of Protected Resources, 1315 East-West Highway, Silver 
Spring, MD 20910, or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/Federal_register/code_of_Federal_regulations/ibr_locations.html.
    (b) Critical habitat is designated in the Maine counties and towns 
for the three SHRUs described in paragraphs (b)(1) through (b)(2) of 
this section. The textual descriptions of critical habitat for each 
SHRU are included in paragraphs (b)(3) through (b)(6) of this section, 
and these descriptions are the definitive source for determining the 
critical habitat boundaries. General location maps are provided at the 
end of each SHRU description (paragraph (b)(2) of this section) and are 
for general guidance purposes only, and not as a definitive source for 
determining critical habitat boundaries.
    (1). Maine counties and towns affected. Critical habitat is 
designated for the following SHRUs in the following counties and towns.

              (i) Counties and Towns Partially or Entirely Within Areas Containing Critical Habitat
                                          in the Downeast Coastal SHRU
----------------------------------------------------------------------------------------------------------------
                Sub-basin                            County                               Town
----------------------------------------------------------------------------------------------------------------
Coastal Washington Hancock..............   Penobscot.................   Clifton, Eddington, Grand Falls Twp,
                                                                        Greenfield Twp, Summit Twp.
                                          Hancock....................   Waltham, Bucksport, Dedham, Eastbrook,
                                                                        Ellsworth, Fletchers Landing Twp,
                                                                        Franklin, Great Pond, Hancock, Lamoine,
                                                                        Mariaville, Oqiton Twp, Orland, Osborn,
                                                                        Trenton Otis, Sullivan, Surry, T10 SD,
                                                                        T16 MD, T22 MD, T28 MD, T32 MD, T34 MD,
                                                                        T35 MD, T39 MD, T40 MD, T41 MD, T7 SD,
                                                                        T9 SD.
                                          Washington.................   Addison, Alexander, Baileyville, Baring
                                                                        Plt, Beddington, Centerville Twp,
                                                                        Charlotte, Cherryfield, Columbia,
                                                                        Columbia Falls, Cooper, Crawford,
                                                                        Cutler, Deblois, Dennysville, Devereaux
                                                                        Twp, East Machias, Edmunds Twp,
                                                                        Harrington, Jonesboro, Jonesport, Lubec,
                                                                        Machias, Machiasport, Marion Twp,
                                                                        Marshfield, Meddybemps, Milbridge, No 14
                                                                        Twp, No 21 Twp, Northfield, Princeton,
                                                                        Roque Bluffs, Sakom Twp, Steuben,
                                                                        Trescott Twp, Whiting, Whitneyville,
                                                                        Wesley T18 ED BPP, T18 MD BPP, T19 ED
                                                                        BPP, T19 MD BPP, T24 MD BPP, T25 MD BPP,
                                                                        T26 ED BPP, T27 ED BPP, T30 MD BPP, T31
                                                                        MD BPP, T36 MD BPP, T37 MD BPP, T42 MD
                                                                        BPP, T43 MD BPP.
----------------------------------------------------------------------------------------------------------------


[[Page 51769]]


          (ii) Counties and Towns Partially or Entirely Within Areas Containing Critical Habitat in the
                                               Penobscot Bay SHRU
----------------------------------------------------------------------------------------------------------------
                Sub-basin                            County                               Town
----------------------------------------------------------------------------------------------------------------
 Piscataquis............................   Penobscot.................   T4 Indian Purchase Twp, Long A Twp,
                                                                        Seboeis Plt, Mattamiscontis Twp,
                                                                        Maxfield, Lagrange, Charleston, Howland,
                                                                        T3 R9 NWP, Edinburg, Hopkins Academy
                                                                        Grant Twp, Garland.
                                          Piscataquis................   Shawtown Twp, TA R11 WELS, TA R10 WELS,
                                                                        TB R10 WELS, Greenville, T7 R9 NWP,
                                                                        Bowdoin College Grant West Twp, T4 R9
                                                                        NWP, Ebeemee Twp, Moosehead Junction
                                                                        Twp, Lake View Plt, Brownville, Milo,
                                                                        Blanchard Twp, Sebec, Dover-Foxcroft,
                                                                        Abbot, Kingsbury Plt, Parkman,
                                                                        Wellington, Frenchtown Twp, Medford,
                                                                        Sangerville, TB R11 WELS, Katahdin Iron
                                                                        Works Twp, Elliottsville Twp, Shirley,
                                                                        Guilford, Atkinson, Beaver Cove,
                                                                        Williamsburg Twp, Bowdoin College Grant
                                                                        East Twp, Barnard Twp, Monson, Orneville
                                                                        Twp.
                                          Somerset...................   Squaretown Twp, Mayfield Twp, Brighton
                                                                        Plt, East Moxie Twp, Bald Mountain Twp
                                                                        T2 R3.
 East Branch............................   Aroostook.................   Moro Plt, T7 R5 WELS.
                                          Penobscot..................   Mount Chase, East Millinocket,
                                                                        Grindstone Twp, Herseytown Twp, Medway,
                                                                        Patten, Soldiertown Twp T2 R7 WELS,
                                                                        Stacyville, T1 R6 WELS, T2 R8 WELS, T3
                                                                        R7 WELS, T3 R8 WELS, T4 R7 WELS, T4 R8
                                                                        WELS, T5 R7 WELS, T5 R8 WELS, T6 R6
                                                                        WELS, T6 R7 WELS, T6 R8 WELS, T7 R6
                                                                        WELS, T7 R7 WELS, T7 R8 WELS, T8 R6
                                                                        WELS, T8 R7 WELS, T8 R8 WELS.
                                          Piscataquis................   Mount Katahdin Twp, Nesourdnahunk Twp,
                                                                        Trout Brook Twp, T3 R10 WELS, T4 R10
                                                                        WELS, T4 R9 WELS, T5 R11 WELS, T5 R9
                                                                        WELS, T6 R10 WELS, T6 R11 WELS, T7 R10
                                                                        WELS, T7 R11 WELS, T7 R12 WELS, T7 R9
                                                                        WELS.
 Mattawamkeag...........................   Aroostook.................   Amity, Bancroft, Benedicta Twp, Crystal,
                                                                        Dudley Twp, Dyer Brook, Forkstown Twp,
                                                                        Moro Plt, North Yarmouth Academy Grant
                                                                        Twp, Oakfield, Orient, Reed Plt,
                                                                        Sherman, Silver Ridge Twp, Smyrna, Upper
                                                                        Molunkus Twp, Webbertown Twp, Weston, T1
                                                                        R5 WELS, T2 R4 WELS, T3 R3 WELS, T3 R4
                                                                        WELS, T4 R3 WELS, T7 R5 WELS, TA R2
                                                                        WELS.
                                          Penobscot..................   Carroll Plt, Drew Plt, Herseytown Plt,
                                                                        Kingman Twp, Lee, Lincoln, Mattawamkeag,
                                                                        Mount Chase, Patten, Prentiss Twp T7 R3
                                                                        NBPP, Springfield, Stacyville, Webster
                                                                        Plt, Winn, T1 R6 WELS, T4 R7 WELS, T6 R6
                                                                        WELS.
                                          Washington.................   T8 R3 NBPP, T8 R4 NBPP.
 Penobscot..............................   Aroostook.................   Benedicta TWP, Molunkus Twp, Sherman, T1
                                                                        R5 WELS.
                                          Hancock....................   Amherst, Blue Hill, Bucksport, Castine,
                                                                        Dedham, Great Pond, Oqiton Twp, Orland,
                                                                        Penobscot, Surry, Verona Island, T3 ND,
                                                                        T32 MD, T34 MD, T35 MD, T39 MD, T40 MD,
                                                                        T41 MD.
                                          Penobscot..................   Alton, Argyle Twp, Bangor, Brewer,
                                                                        Burlington, Carmel, Charleston, Chester,
                                                                        Clifton, Corinna, Corinth, Dexter,
                                                                        Dixmont, Eddington, Edinburg, Enfield,
                                                                        Etna, Exeter, Garland, Glenburn, Grand
                                                                        Falls Twp, Hampden, Hermon, Herseytown
                                                                        Twp, Holden, Howland, Hudson, Indian
                                                                        Island, Kenduskeag, Lagrange, Lakeville,
                                                                        Lee, Levant, Lincoln, Lowell,
                                                                        Mattamiscontis Twp, Mattawamkeag,
                                                                        Maxfield, Medway, Milford, Newburgh,
                                                                        Newport, Old Town, Orono, Orrington,
                                                                        Passadumkeag, Plymouth, Seboeis Plt,
                                                                        Springfield, Stacyville, Stetson, Summit
                                                                        Twp, Veazie, Winn, Woodville T1 R6 WELS,
                                                                        T2 R8 NWP, T2 R9 NWP, T3 R1 NBPP, T3 R9
                                                                        NWP, TA R7 WELS.
                                          Piscataquis................   Medford.
                                          Waldo......................   Brooks, Frankfort, Jackson, Knox,
                                                                        Monroe, Montville, Prospect, Searsport,
                                                                        Stockton Springs, Swanville, Thorndike,
                                                                        Waldo, Winterport.
 Penobscot Bay..........................   Waldo.....................   Belfast, Belmont, Brooks, Frankfort,
                                                                        Knox, Lincolnville, Monroe, Montville,
                                                                        Morrill, Northport, Searsmont,
                                                                        Searsport, Swanville, Waldo.
----------------------------------------------------------------------------------------------------------------


 (iii) Counties and Towns Partially or Entirely Within Areas Containing Critical Habitat in the Merrymeeting Bay
                                                      SHRU
----------------------------------------------------------------------------------------------------------------
                Sub-basin                            County                               Town
----------------------------------------------------------------------------------------------------------------
 Lower Androscoggin.....................   Androscoggin..............   Auburn, Durham, Greene, Leeds, Lewiston,
                                                                        Lisbon, Sabattus, Wales.
                                          Cumberland.................   Brunswick, Freeport.
                                          Kennebec...................   Litchfield, Monmouth.
                                          Sagadahoc..................   Bath, Bowdoin, Bowdoinham, Richmond,
                                                                        Topsham.
 Merrymeeting Bay.......................   Androscoggin..............   Livermore Falls.
                                          Franklin...................   Avon, Carthage, Chesterville,
                                                                        Farmington, Freeman Twp, Industry, Jay,
                                                                        Madrid Twp, Mount Abram Twp, New Sharon,
                                                                        New Vineyard, Perkins TWP, Phillips,
                                                                        Redington Twp, Salem Twp, Sandy River
                                                                        Plt, Strong, Temple, Township 6 North of
                                                                        Weld, Township E, Washington Twp, Weld,
                                                                        Wilton.
                                          Kennebec...................   Augusta, Benton, Chelsea, China,
                                                                        Clinton, Farmingdale, Fayette, Gardiner,
                                                                        Hallowell, Manchester, Oakland,
                                                                        Pittston, Randolph, Rome, Sidney,
                                                                        Vassalboro, Vienna, Waterville, West
                                                                        Gardiner, Windsor, Winslow.
                                          Lincoln....................   Alna, Dresden, Whitefield, Wiscasset.
                                          Sagadahoc..................   Bowdoinham, Perkins Twp Swan Island,
                                                                        Richmond, Woolwich.

[[Page 51770]]

 
                                          Somerset...................   Anson, Athens, Bingham, Brighton Plt,
                                                                        Canaan, Cornville, Fairfield, Hartland,
                                                                        Madison, Mayfield Twp, Mercer,
                                                                        Norridgewock, Pittsfield, Skowhegan,
                                                                        Smithfield, Solon, Starks.
 Coastal Drainages East of Small Point..   Cumberland................   Brunswick.
                                          Kennebec...................   Albion, Pittston, Windsor.
                                          Knox.......................   Appleton, Camdem, Cushing, Friendship,
                                                                        Hope, Rockland, Rockport, Saint George,
                                                                        South Thomaston, Thomaston, Union,
                                                                        Warren, Washington.
                                          Lincoln....................   Alna, Boothbay, Boothbay Harbor, Bremen,
                                                                        Briston, Dresden, Edgecomb, Hibberts
                                                                        Gore, Jefferson, Newcastle, Nobleboro,
                                                                        Somerville, Southport, Waldoboro,
                                                                        Westport Island, Whitefield, Wiscasset.
                                          Sagadahoc..................   Arrowsic, Bath, Bowdoinham, Georgetown,
                                                                        Phippsburg, West Bath, Woolwich.
                                          Waldo......................   Belmont, Freedom, Liberty, Lincolnville,
                                                                        Montville, Morrill, Palermo, Searsmont.
----------------------------------------------------------------------------------------------------------------

    (2). Critical habitat boundaries. Critical habitat includes the 
stream channels within the designated stream reaches, and includes a 
lateral extent as defined by the ordinary high-water line (33 CFR 
329.11). In areas where the ordinary high-water line has not been 
defined, the lateral extent will be defined by the bankfull elevation. 
Bankfull elevation is the level at which water begins to leave the 
channel and move into the floodplain and is reached at a discharge 
which generally has a recurrence interval of 1 to 2 years on an annual 
flood series. Critical habitat in estuaries is defined by the perimeter 
of the water body as displayed on standard 1:24,000 scale topographic 
maps or the elevation of extreme high water, whichever is greater.
    (i) Downeast Coastal SHRU. The Downeast Coastal SHRU encompasses 
fourteen HUC 10 watersheds covering approximately 1,847,698 acres 
within Washington and Hancock Counties in Eastern Maine that contain 
approximately 6,039 km of perennial rivers, streams, and estuary and 
approximately 365 square km of lakes connected to the marine 
environment. Within this basin 11 HUC 10s are considered to be 
currently occupied (Figure 1) and contain critical habitat (Figure 2).
BILLING CODE 3510-22-P

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    (ii) Penobscot Bay SHRU. The Penobscot Bay Salmon Habitat Recovery 
Unit (SHRU) includes the entire Penobscot Basin and extends west as far 
as, and including the Ducktrap watershed, and east as far as, and 
including the Bagaduce watershed. The Penobscot Bay SHRU drains 
54,942,705 acres containing approximately 17,443 km of perennial 
rivers, streams, and estuary and 1,115 sq. km of lakes connected to the 
marine environment and occupies sections of Aroostook, Hancock, 
Penobscot, Piscataquis, Somerset, Waldo, and Washington counties (Baum, 
1983). The Penobscot SHRU encompasses forty-six HUC 10 watersheds 
embedded within six major sub-basins; the West Branch, East Branch, 
Piscataquis, Mattawamkeag, Penobscot River and Penobscot Bay. Within 
the Penobscot SHRU, there are twenty-nine HUC 10 watersheds containing 
a combination of perennial rivers, lakes, streams and/or estuaries 
connected to the marine environment that have been identified as 
critical habitat (Figure 3 and Figure 4). The waters in the remaining 
fifteen HUC 10 watersheds are currently unoccupied habitat and 
therefore not designated as critical habitat.

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    (iii) Merrymeeting Bay SHRU. The Merrymeeting Bay SHRU extends west 
as far as, and including the Androscoggin and east as far as, and 
including the St. George watershed. The Merrymeeting Bay SHRU contains 
approximately 21,002 km of perennial rivers, streams and estuary and 
1,372 sq. km of lakes that drain a land area of 6,651,620 acres. The 
Merrymeeting Bay SHRU contains forty-five HUC 10 watersheds embedded 
within six major sub-basin which include the Upper Androscoggin, Lower 
Androscoggin, Kennebec River above Forks, Dead River, Kennebec at 
Merrymeeting Bay, and coastal drainages east of small point. Of the 
forty-five HUC 10 watersheds, nine are considered occupied and contain 
rivers, lakes, streams and estuary considered to be critical habitat 
(Figure 5 and Figure 6). The remaining thirty-six HUC 10's are not 
occupied and do not contain critical habitat.

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BILLING CODE 3510-22-C

[[Page 51779]]

    (3) Primary constituent elements. Within the GOM DPS, the primary 
constituent elements (PCEs) for the conservation of Atlantic salmon 
include sites for spawning and incubation, sites for juvenile rearing, 
and sites for migration. The physical and biological features of the 
habitat that are essential to the conservation of Atlantic salmon are 
those features that allow Atlantic salmon to successfully use sites for 
spawning and rearing and sites for migration. These features include:
    (i) Deep, oxygenated pools and cover (e.g. boulders, woody debris, 
vegetation, etc.), near freshwater spawning sites, necessary to support 
adult migrants during the summer while they await spawning in the fall;
    (ii) Freshwater spawning sites that contain clean, permeable gravel 
and cobble substrate with oxygenated water and cool water temperatures 
to support spawning activity, egg incubation and larval development;
    (iii) Freshwater spawning and rearing sites with clean gravel in 
the presence of cool, oxygenated water and diverse substrate to support 
emergence, territorial development and feeding activities of Atlantic 
salmon fry;
    (iv) Freshwater rearing sites with space to accommodate growth and 
survival of Atlantic salmon parr, and population densities needed to 
support sustainable populations;
    (v) Freshwater rearing sites with a combination of river, stream, 
and lake habitats, that accommodate parr's ability to occupy many 
niches and to maximize parr production;
    (vi) Freshwater rearing sites with cool, oxygenated water to 
support growth and survival of Atlantic salmon parr;
    (vii) Freshwater rearing sites with diverse food resources to 
support growth and survival of Atlantic salmon parr;
    (viii) Freshwater and estuary migratory sites free from physical 
and biological barriers that delay or prevent access to spawning 
grounds needed to support a recovered population;
    (ix) Freshwater and estuary migration sites with abundant, diverse 
native fish communities to serve as a protective buffer against 
predation;
    (x) Freshwater and estuary migration sites free from physical and 
biological barriers that delay or prevent emigration of smolts to the 
marine environment;
    (xi) Freshwater and estuary migration sites with sufficiently cool 
water temperatures and water flows that coincide with diurnal cues to 
stimulate smolt migration;
    (xii) Freshwater migration sites with water chemistry needed to 
support sea water adaptation of smolts; and
    (xiii) Freshwater and marine sites with diverse, abundant 
assemblages of native fish communities to enhance survivorship as 
Atlantic salmon smolts emigrating through the estuary.
    (4) Exclusion of Indian lands. Critical habitat does not include 
occupied habitat areas on Indian lands. The Indian lands specifically 
excluded from critical habitat are those defined in the Secretarial 
Order 3206, including:
    (i) Lands held in trust by the United States for the benefit of any 
Indian Tribe;
    (ii) Lands held in trust by the United States for the benefit of 
any Indian Tribe or individual subject to restrictions by the United 
States against alienation;
    (iii) Fee lands, either within or outside the reservation 
boundaries, owned by the tribal government; and
    (iv) Fee lands within the reservation boundaries owned by 
individual Indians. Within the GOM DPS, approximately 79,000 acres of 
tribal lands in the Penobscot SHRU and 5,000 acres in the Downeast 
Coastal SHRU have been identified as particular areas that contain 
sites for spawning and rearing and sites for migration and are proposed 
for exclusion from critical habitat.
    (5) Lands owned or controlled by the Department of Defense. 
Additionally, critical habitat does not include the following 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). 
Excluded from designation are:
    (i) The 435 acres of the Brunswick Naval Air Station in Brunswick, 
Maine within the Little Androscoggin HUC 10 watershed in the 
Merrymeeting Bay SHRU.
    (ii) The 5,328 acres of the Brunswick Naval Air Station's cold 
weather survival, evasion, resistance and escape school within the 
Sandy River HUC 10 watershed in the Merrymeeting Bay SHRU.
    (6). Description of critical habitat. Critical habitat is 
designated to include the areas defined in the following hydrological 
units in the three SHRUs with the exception of those particular areas 
specifically identified:

                             (i) Downeast Coastal SHRU. Critical Habitat, Exclusions and Exclusion Type by HUC 10 Watersheds
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Critical habitat           Excluded areas [type] \1\
                                                                                           -------------------------------------------------------------
                                               HUC 10 code       HUC 10 watershed name         River,                      River, stream
                                                                                             stream and    Lake (sq. km)    and estuary    Lake (sq. km)
                                                                                            estuary (km)                       (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coastal Washington Hancock sub-basin.......      0105000201  Dennys River.................         218                45  ..............  ..............
                                                 0105000203  Grand Manan Channel..........         641              15.5  ..............  ..............
                                                 0105000204  East Machias River...........         575                70          16 [T]         0.1 [T]
                                                 0105000205  Machias River................         991                58  ..............  ..............
                                                 0105000206  Roque Bluffs Coastal.........         321                 1  ..............  ..............
                                                 0105000207  Chandler River...............         154               0.1  ..............  ..............
                                                 0105000208  Pleasant River...............         325               6.5  ..............  ..............
                                                 0105000209  Narraguagus River............         573              15.5  ..............  ..............
                                                 0105000210  Tunk Stream..................         117                14  ..............  ..............
                                                 0105000212  Graham Lake..................         976               121  ..............  ..............
                                                 0105000213  Union River Bay..............         303                18  ..............  ..............
                                                 0105000211  Bois Bubert Coastal..........          --                --  ..............  ..............
                                                 0105000214  Lamoine Coastal..............          --                --  ..............  ..............
                                                 0105000215  Mt. Desert Coastal...........          --                --  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal.
-- considered unoccupied at the time of listing.


[[Page 51780]]


                              (ii) Penobscot Bay SHRU. Critical Habitat, Exclusions and Exclusion Type by HUC 10 Watersheds
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Critical habitat            Excluded areas [type] \1\
                                                                                        ----------------------------------------------------------------
                Sub-basin                    HUC 10 code       HUC 10 watershed name      River, stream                    River, stream
                                                                                           and estuary    Lake  (sq. km)    and estuary   Lake  (sq. km)
                                                                                              (km)                             (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
East Branch Penobscot sub-basin..........      0102000202  Grand Lake Matagamon........             320             25.5           6 [T]         0.5 [T]
                                               0102000203  East Branch Penobscot River              178              3             1 [T]  ..............
                                                            (2).
                                               0102000204  Seboeis River...............             418             31    ..............  ..............
                                               0102000205  East Branch Penobscot River              585              5             3 [T]  ..............
                                                            (3).
                                               0102000201  Webster Brook...............              --             --    ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
West Branch Penobscot sub-basin..........      0102000101  North Branch Penobscot River              --             --    ..............  ..............
                                               0102000102  Seeboomook Lake.............              --             --    ..............  ..............
                                               0102000103  W. Br. Penobscot R. at                    --             --    ..............  ..............
                                                            Chesuncook.
                                               0102000104  Caucomgomok Lake............              --             --    ..............  ..............
                                               0102000105  Chesuncook Lake.............              --             --    ..............  ..............
                                               0102000106  Nesowadnehunk Stream........              --             --    ..............  ..............
                                               0102000107  Nahamakanta Stream..........              --             --    ..............  ..............
                                               0102000108  Jo-Mary Lake................              --             --    ..............  ..............
                                               0102000109  West Branch Penobscot River               --             --    ..............  ..............
                                                            (3).
                                               0102000110  West Branch Penobscot River               --             --    ..............  ..............
                                                            (4).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mattawamkeag River sub-basin.............      0102000301  West Branch Mattawamkeag                 657             22    ..............  ..............
                                                            River.
                                               0102000302  East Branch Mattawamkeag                 315             12    ..............  ..............
                                                            River.
                                               0102000303  Mattawamkeag River (1)......             192              0.5  ..............  ..............
                                               0102000305  Mattawamkeag River (2)......             451              8    ..............  ..............
                                               0102000307  Mattawamkeag River (3)......             226              3    ..............  ..............
                                               0102000306  Molunkus Stream.............               0              0           438 [E]          11 [E]
                                               0102000304  Baskahegan Stream...........              --             --    ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Piscataquis River sub-basin..............      0102000401  Piscataquis River (1).......             762             15    ..............  ..............
                                               0102000402  Piscataquis River (3).......             382              6    ..............  ..............
                                               0102000404  Pleasant River..............             812             17            16 [T]  ..............
                                               0102000405  Seboeis Stream..............             308             31          12.2 [T]           5 [T]
                                               0102000406  Piscataquis River (4).......             328             30    ..............  ..............
                                               0102000403  Sebec River.................              --             --    ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Penobscot River sub-basin................      0102000501  Penobscot River (1) at                   287              4.5           5 [T]         2.5 [T]
                                                            Mattawamkeag.
                                               0102000502  Penobscot River (2) at West              474             23.5          80 [T]         5.5 [T]
                                                            Enfield.
                                               0102000503  Passadumkeag River..........               0              0           583 [E]          79 [E]
                                               0102000505  Sunkhaze Stream.............             117              0.5  ..............  ..............
                                               0102000506  Penobscot River (3) at Orson             205              0.5           6 [T]  ..............
                                                            Island.
                                               0102000507  Birch Stream................             105              1            15 [T]  ..............
                                               0102000509  Penobscot River (4) at                   225             10    ..............  ..............
                                                            Veazie Dam.
                                               0102000510  Kenduskeag Stream...........             420              1.5  ..............  ..............
                                               0102000511  Souadabscook Stream.........             341              5.5  ..............  ..............
                                               0102000512  Marsh River.................             319              3    ..............  ..............
                                               0102000513  Penobscot River (6).........             514             29    ..............  ..............
                                               0102000504  Olamon Stream...............              --             --    ..............  ..............
                                               0102000508  Pushaw Stream...............              --             --    ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Penobscot Bay sub-basin..................      0105000218  Belfast Bay.................             177              9    ..............  ..............
                                               0105000219  Ducktrap River..............              76              4    ..............  ..............
                                               0105000216  Bagaduce River..............              --             --    ..............  ..............
                                               0105000217  Stonington Coastal..........              --             --    ..............  ..............
                                               0105000220  West Penobscot Bay Coastal..              --             --    ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal--considered unoccupied at the time of listing.


[[Page 51781]]


                            (iii) Merrymeeting Bay SHRU. Critical Habitat, Exclusions, and Exclusion Type by HUC 10 Watershed
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Critical habitat            Excluded areas [type] \1\
                                                                                        ----------------------------------------------------------------
                Sub-basin                    HUC 10 code       HUC 10 watershed name      River, stream                    River, stream
                                                                                           and estuary    Lake  (sq. km)    and estuary   Lake  (sq. km)
                                                                                              (km)                             (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kennebec River above the Forks sub-basin.      0103000101  South Branch Moose River....              --             --    ..............  ..............
                                               0103000102  Moose River (2) above Attean              --             --    ..............  ..............
                                                            Pond.
                                               0103000103  Moose River (3) at Long Pond              --             --    ..............  ..............
                                               0103000104  Brassua Lake................              --             --    ..............  ..............
                                               0103000105  Moosehead Lake..............              --             --    ..............  ..............
                                               0103000106  Kennebec River (2) above The              --             --    ..............  ..............
                                                            Forks.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dead River sub-basin.....................      0103000201  North Branch Dead River.....              --             --    ..............  ..............
                                               0103000202  South Branch Dead River.....              --             --    ..............  ..............
                                               0103000203  Flagstaff Lake..............              --             --    ..............  ..............
                                               0103000204  Dead River..................              --             --    ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Merrymeeting Bay sub-basin...............      0103000305  Sandy River.................            1215             15.8          12 [M]         0.2 [M]
                                               0103000306  Kennebec River at Waterville             794             14    ..............  ..............
                                                            Dam.
                                               0103000312  Kennebec River at                        621             22    ..............  ..............
                                                            Merrymeeting Bay.
                                               0103000310  Messalonskee Stream.........              --             --    ..............  ..............
                                               0103000301  Kennebec River (4) at Wyman               --             --    ..............  ..............
                                                            Dam.
                                               0103000302  Austin Stream...............              --             --    ..............  ..............
                                               0103000303  Kennebec River (6)..........              --             --    ..............  ..............
                                               0103000304  Carrabassett River..........              --             --    ..............  ..............
                                               0103000307  Sebasticook River at                      --             --    ..............  ..............
                                                            Pittsfield.
                                               0103000308  Sebasticook River (3) at                  --             --    ..............  ..............
                                                            Burnham.
                                               0103000309  Sebasticook River (4) at                  --             --    ..............  ..............
                                                            Winslow.
                                               0103000311  Cobbosseecontee Stream......              --             --    ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Upper Androscoggin sub-basin.............      0104000101  Mooselookmeguntic Lake......              --             --    ..............  ..............
                                               0104000102  Umbagog Lake Drainage.......              --             --    ..............  ..............
                                               0104000103  Aziscohos Lake Drainage.....              --             --    ..............  ..............
                                               0104000104  Magalloway River............              --             --    ..............  ..............
                                               0104000105  Clear Stream................              --             --    ..............  ..............
                                               0104000106  Middle Androscoggin River...              --             --    ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lower Androscoggin sub-basin.............      0104000210  Little Androscoggin River...             549             10.5           1 [M]  ..............
                                               0104000201  Gorham-Shelburne Tributaries              --             --    ..............  ..............
                                               0104000202  Androscoggin River at                     --             --    ..............  ..............
                                                            Rumford Point.
                                               0104000203  Ellis River.................              --             --    ..............  ..............
                                               0104000204  Ellis River.................              --             --    ..............  ..............
                                               0104000205  Androscoggin River above                  --             --    ..............  ..............
                                                            Webb River.
                                               0104000206  Androscoggin River at Riley               --             --    ..............  ..............
                                                            Dam.
                                               0104000207  Androscoggin River at                     --             --    ..............  ..............
                                                            Nezinscot River.
                                               0104000208  Nezinscot River.............              --             --    ..............  ..............
                                               0104000209  Androscoggin R. above L.                  --             --    ..............  ..............
                                                            Andro. R.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coastal Drainages East of Small Point sub-     0105000301  St. George River............             624             32    ..............  ..............
 basin.
                                               0105000302  Medomak River...............             318              6    ..............  ..............
                                               0105000305  Sheepscot River.............             553             19    ..............  ..............
                                               0105000306  Sheepscot Bay...............             220              2    ..............  ..............
                                               0105000307  Kennebec River Estuary......             276              3.5  ..............  ..............
                                               0105000303  Johns Bay...................              --             --    ..............  ..............
                                               0105000304  Damariscotta River..........              --             --    ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal--considered unoccupied at the time of listing.


[FR Doc. E8-20603 Filed 9-2-08; 4:15 pm]
BILLING CODE 3510-22-P


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