52084 Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 080730953–81003–01] 

RIN 0648–AX04 

Endangered and Threatened Wildlife 

and Plants: Proposed Rulemaking To 

Designate Critical Habitat for the 

Threatened Southern Distinct 

Population Segment of North American 

Green Sturgeon 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), propose to 

designate critical habitat for the 

threatened Southern distinct population 

segment of North American green 

sturgeon (Southern DPS of green 

sturgeon) pursuant to section 4 of the 

Endangered Species Act (ESA). Specific 

areas proposed for designation include: 

coastal U.S. marine waters within 110 

meters (m) depth from Monterey Bay, 

California (including Monterey Bay), 

north to Cape Flattery, Washington, 

including the Strait of Juan de Fuca, 

Washington, to its United States 

boundary; the Sacramento River, lower 

Feather River, and lower Yuba River in 

California; the Sacramento-San Joaquin 

Delta and Suisun, San Pablo, and San 

Francisco bays in California; the lower 

Columbia River estuary; and certain 

coastal bays and estuaries in California 

(Humboldt Bay), Oregon (Coos Bay, 

Winchester Bay, and Yaquina Bay), and 

Washington (Willapa Bay and Grays 

Harbor). The areas proposed for 

designation comprise approximately 

325 miles (524 km) of freshwater river 

habitat, 1,058 square miles (2,739 sq 

km) of estuarine habitat, 11,927 square 

miles (30,890 sq km) of marine habitat, 

and 136 square miles (352 sq km) of 

habitat within the Yolo and Sutter 

bypasses (Sacramento River, CA). 

We propose to exclude the following 

areas from designation because the 

benefits of exclusion outweigh the 

benefits of inclusion and exclusion will 

not result in the extinction of the 

species: coastal U.S. marine waters 

within 110 m depth from the California/ 

Mexico border north to Monterey Bay, 

CA, and from the Alaska/Canada border 

northwest to the Bering Strait; and 

certain coastal bays and estuaries in 

California (Tomales Bay, Elkhorn 

Slough, Noyo Harbor, and the estuaries 

to the head of the tide in the Eel and 

Klamath/Trinity rivers), Oregon 

(Tillamook Bay and the estuaries to the 

head of the tide in the Rogue, Siuslaw, 

and Alsea rivers), and Washington 

(Puget Sound). The areas excluded from 

the proposed designation comprise 

approximately 1,057 square miles (2,738 

sq km) of estuarine habitat and 396,917 

square miles (1,028,015 sq km) of 

marine habitat. 

We acknowledge that there may be 

costs incurred by those planning to 

undertake activities in certain areas, in 

particular Coo Bay, OR, or other areas 

along the lower Columbia River estuary, 

as a result of this proposed critical 

habitat designation for the Southern 

DPS of green sturgeon that were not 

captured in our draft economic report. 

These activities include, but are not 

limited to, liquefied natural gas (LNG) 

projects, hydropower activities, and 

alternative energy projects. We solicit 

comment on what these additional costs 

might be and will consider any 

additional information received in 

developing our final determination to 

designate or exclude areas from critical 

habitat for the Southern DPS of green 

sturgeon. 

DATES: Comments on this proposed rule 

to designate critical habitat must be 

received by no later than 5 p.m. Pacific 

Standard Time on November 7, 2008. A 

public hearing will be held promptly if 

any person so requests by October 23, 

2008. Notice of the date, location, and 

time of any such hearing will be 

published in the Federal Register not 

less than 15 days before the hearing is 

held. 

ADDRESSES: You may submit comments 

on the proposed rule, identified by RIN 

0648–AX04, by any one of the following 

methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 1–562–980–4027, Attention: 

Melissa Neuman. 

• Mail: Submit written information to 

Chief, Protected Resources Division, 

Southwest Region, National Marine 

Fisheries Service, 650 Capitol Mall, 

Sacramento, CA 95814–4706. 

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 (please 

enter N/A in the required fields if you 

wish to remain anonymous). 

Attachments to electronic comments 

will be accepted in Microsoft Word, 

Excel, WordPerfect, or Adobe PDF file 

formats only. 

Reference materials regarding this 

determination can be obtained via the 

Internet at: http://www.nmfs.noaa.gov or 

by submitting a request to the Assistant 

Regional Administrator, Protected 

Resources Division, Southwest Region, 

NMFS, 501 West Ocean Blvd., Suite 

4200, Long Beach, CA 90802–4213. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Neuman, NMFS, Southwest 

Region (562) 980–4115 or Lisa Manning, 

NMFS, Office of Protected Resources 

(301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

We determined that the Southern DPS 

of green sturgeon is likely to become 

endangered in the foreseeable future 

throughout all or a significant portion of 

its range and listed the species as 

threatened under the Endangered 

Species Act (ESA) on April 7, 2006 (71 

FR 17757). 

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

to designate critical habitat for 

threatened and endangered species ‘‘on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, 

impact on national security, and any 

other relevant impact, of specifying any 

particular area as critical habitat.’’ This 

section grants the Secretary [of 

Commerce] discretion to exclude any 

area from critical habitat if he 

determines ‘‘the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat.’’ The Secretary may not 

exclude an area if it ‘‘will result in the 

extinction of the species.’’ 

The ESA defines critical habitat under 

Section 3(5)(A) as: 

‘‘(i) the specific areas within the 

geographical area occupied by the species, at 

the time it is listed * * *, on which are 

found those physical or biological features (I) 

essential to the conservation of the species 

and (II) which may require special 

management considerations or protection; 

and 

(ii) specific areas outside the geographical 

area occupied by the species at the time it is 

listed * * * upon a determination by the 

Secretary that such areas are essential for the 

conservation of the species.’’ 

Once critical habitat is designated, 

section 7 of the ESA requires Federal 


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agencies to ensure they do not fund, 

authorize, or carry out any actions that 

will destroy or adversely modify that 

habitat. This requirement is in addition 

to the ESA section 7 requirement that 

Federal agencies ensure their actions do 

not jeopardize the continued existence 

of listed species. 

When the final rule to list the 

Southern DPS of green sturgeon was 

published on April 7, 2006, we solicited 

from the public information that would 

inform the decision-making process for 

designating critical habitat for the 

species. Specifically, we requested 

information regarding: (1) Green 

sturgeon spawning habitat within the 

range of the Southern DPS that was 

present in the past, but may have been 

lost over time; (2) biological or other 

relevant data concerning any threats to 

the Southern DPS of green sturgeon; (3) 

quantitative evaluations describing the 

quality and extent of freshwater and 

marine habitats (occupied currently or 

occupied in the past, but no longer 

occupied) for juvenile and adult green 

sturgeon as well as information on areas 

that may qualify as critical habitat in 

California for the Southern DPS; (4) 

activities that could be affected by an 

ESA critical habitat designation; and (5) 

the economic costs and benefits of 

additional requirements of management 

measures likely to result from the 

designation. No substantive additional 

comments, beyond those that had been 

received during prior solicitations for 

information, were received. 

The timeline for completing the 

proposed critical habitat designation 

described in this Federal Register 

document was established pursuant to a 

settlement agreement. On April 17, 

2007, the Center for Biological Diversity 

(CBD) filed a 60-day notice of intent to 

sue the Secretary of Commerce and 

NMFS for failing to designate critical 

habitat and establish protective 

regulations for the Southern DPS of 

green sturgeon, as required by the ESA. 

Pursuant to the settlement agreement 

reached between the parties, we agreed 

to make a determination on a proposed 

critical habitat designation for the 

Southern DPS of green sturgeon by 

April 30, 2008, and a final designation 

by April 30, 2009, which were later 

extended to September 2, 2008 and June 

30, 2009, respectively. 

In developing this proposed rule, we 

evaluated the best available information 

regarding green sturgeon distribution 

and habitat requirements, as well as 

threats to the species. In the Final Rule 

to list the Southern DPS as threatened 

under the ESA (71 FR 17757; April 7, 

2006), we identified seven extinction 

risk factors, including: (1) Concentration 

of spawning into one spawning river, 

increasing the risk of catastrophic 

extinction; (2) loss of spawning habitat 

in the upper Sacramento and Feather 

rivers due to migration barriers; (3) a 

general lack of population data, but 

suspected small population size; (4) 

entrainment by water project operations; 

(5) potentially limiting or lethal water 

temperatures; (6) commercial and 

recreational fisheries harvest; and (7) 

toxins and exotic species. This 

document describes the proposed 

critical habitat designation, including 

supporting information on green 

sturgeon biology, distribution, and 

habitat use, and the methods used to 

develop the proposed designation. 

Green Sturgeon Natural History 

In the following sections, we describe 

the natural history of green sturgeon as 

it relates to the habitat needs of this 

species. The green sturgeon is an 

anadromous fish species that is longlived and the most marine oriented 

sturgeon species in the family 

Acipenseridae. The North American 

form of green sturgeon (Acipenser 

medirostris; hereafter, ‘‘green sturgeon’’) 

is related to the Asian form (A. mikadoi, 

also called Sakhalin sturgeon), but is 

most likely a different species 

(Artyukhin et al., 2007). Green sturgeon 

is one of two sturgeon species occurring 

on the U.S. west coast, the other being 

white sturgeon (Acipenser 

transmontanus). Adults can reach up to 

270 cm in total length (TL) and 175 kg 

in weight (Moyle, 2002); however, 

adults greater than 2 m TL and 90 kg in 

weight are not common (Skinner, 1972). 

Females are larger and older 

(approximately 162 cm TL and 16–20 

years of age) than males (approximately 

152 cm TL and 14–16 years of age) upon 

reaching reproductive maturity (Van 

Eenennaam et al., 2006). Maximum ages 

most likely range from 60 to 70 years or 

older (Emmett et al., 1991). Until 

recently, few studies have focused on 

green sturgeon due to its low abundance 

and low commercial value compared to 

white sturgeon. 

Green sturgeon range from the Bering 

Sea, Alaska, to Ensen ̃ ada, Mexico. A few 

green sturgeon have been observed off 

the southern California coast, including 

fish less than 100 cm TL (Fitch and 

Lavenberg, 1971, cited in Moyle et al., 

1995; Fitch and Schultz, 1978, cited in 

Moyle et al., 1995). Green sturgeon 

abundance increases north of Point 

Conception, CA (Moyle et al., 1995). 

Green sturgeon occupy freshwater rivers 

from the Sacramento River up through 

British Columbia (Moyle, 2002), but 

spawning has been confirmed in only 

three rivers, the Rogue River in Oregon 

and the Klamath and Sacramento rivers 

in California. Based on genetic analyses 

and spawning site fidelity (Adams et al., 

2002; Israel et al., 2004), NMFS has 

determined green sturgeon are 

comprised of at least two distinct 

population segments (DPSs): (1) A 

Northern DPS consisting of populations 

originating from coastal watersheds 

northward of and including the Eel 

River (i.e., the Klamath and Rogue 

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

southern DPS consisting of populations 

originating from coastal watersheds 

south of the Eel River, with the only 

known spawning population in the 

Sacramento River (‘‘Southern DPS’’). 

The Northern DPS and Southern DPS 

are distinguished based on genetic data 

and spawning locations, but their 

distributions outside of natal waters 

generally overlap with one another 

(Chadwick, 1959; Miller, 1972; CDFG, 

2002; Israel et al., 2004; Moser and 

Lindley, 2007; Erickson and Hightower, 

2007; Lindley et al., 2008.). Both 

Northern DPS and Southern DPS green 

sturgeon occupy coastal estuaries and 

coastal marine waters from southern 

California to Alaska, including 

Humboldt Bay, the lower Columbia 

river estuary, Willapa Bay, Grays 

Harbor, and coastal waters between 

Vancouver Island, BC, and southeast 

Alaska (Israel et al., 2004; Moser and 

Lindley, 2007; Lindley et al., 2008). 

Thus, green sturgeon observed in coastal 

bays, estuaries, and coastal marine 

waters outside of natal rivers may 

belong to either DPS. However, the 

Northern DPS of green sturgeon is not 

classified as a listed species under the 

ESA. Tagging or genetics data are 

needed to determine to which DPS an 

individual fish belongs. The distribution 

of green sturgeon, and specifically of the 

Southern DPS, is described in detail 

under the section titled ‘‘Geographical 

Areas Occupied by the Species and 

Specific Areas within the Geographical 

Areas Occupied.’’

Spawning 

Spawning frequency is not well 

known, but the best information 

suggests adult green sturgeon spawn 

every 2–4 years (Lindley and Moser, 

NMFS, 2004, pers. comm., cited in 70 

FR 17386, April 6, 2005; Erickson and 

Webb, 2007). Beginning in late 

February, adult green sturgeon migrate 

from the ocean into fresh water to begin 

their spawning migrations (Moyle et al., 

1995). Spawning occurs from March to 

July, with peak activity from mid-April 

to mid-June (Emmett et al., 1991). 

Spawning populations in North 

America have been confirmed in the 

Rogue (Erickson et al., 2002; Farr and 


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Kern, 2005), Klamath, and Sacramento 

Rivers (Moyle et al., 1992; CDFG, 2002). 

Klamath and Rogue River populations 

appear to spawn within 100 miles (161 

km) of the ocean, whereas spawning on 

the mainstem Sacramento River has 

been documented over 240 miles (391 

km) upstream, both downstream and 

upstream of Red Bluff Diversion Dam 

(RBDD) (Brown, 2007). Spawning most 

likely occurs in fast, deep water (> 3 m 

deep) over substrates ranging from clean 

sand to bedrock, with preferences for 

cobble substrates (Emmett et al., 1991; 

Moyle et al., 1995). Green sturgeon 

females produce 59,000 to 242,000 eggs, 

with fecundity increasing with fish 

length and age (Van Eenennaam et al., 

2006). Green sturgeon eggs are the 

largest of any sturgeon species, ranging 

from 4.04 to 4.66 mm in diameter, and 

have a thin chorionic layer (Van 

Eenennaam et al., 2001; Van Eenennaam 

et al., 2006). Eggs are broadcast 

spawned and likely adhere to substrates 

or settle into crevices of river bedrock or 

under gravel (Deng, 2000; Van 

Eenennaam et al., 2001; Deng et al., 

2002). Van Eenennaam et al. (2001) 

reported that green sturgeon eggs have 

weak adhesiveness, but have since 

retracted that statement, noting instead 

that green sturgeon eggs are quite 

adhesive within a few minutes after 

release from the female (Van 

Eenennaam, UC Davis, 2008, pers. 

comm.). Optimum flow and temperature 

requirements for spawning and 

incubation are unclear, but spawning 

success in most sturgeons is related to 

these factors (Detlaff et al., 1993). 

Average monthly water flow during the 

spawning season (March–July) ranged 

from 209–1,252 m3/s in the Sacramento 

River over a 10-year period from 1996–

2006 (http://waterdata.usgs.gov) and 

from 31–260 m3/s in the Rogue River 

over a 4-year period from 2001–2004 

(Erickson and Webb, 2007). Spawning 

may be triggered by small increases in 

water flow (Schaffter, 1997; Brown, 

2007). Adult sturgeon occur in the 

Sacramento River when temperatures 

are between 8–14 °C (Moyle, 2002). In 

laboratory studies, the optimal thermal 

range for green sturgeon development 

was from 11 to 17–18 °C, and 

temperatures ≥ 23 °C were lethal to 

embryos (Van Eenennaam et al., 2005). 

Development of Early Life Stages 

Green sturgeon embryos have poor 

swimming ability and exhibit a strong 

drive to remain in contact with 

structure, preferring cover and dark 

habitats to open bottom and illuminated 

habitats in laboratory experiments 

(Kynard et al., 2005). In these 

experiments, early embryos made no 

effort to swim, suggesting embryos 

remain in spawning areas to develop 

(Kynard et al., 2005). Newly emerged 

green sturgeon larvae in the laboratory 

hatched 144–216 hours, or 6–9 days, 

after fertilization (incubation 

temperatures ranged from 15–15.7 °C) 

and ranged from 12.6–15 mm in length 

(Van Eenennaam et al., 2001; Deng et 

al., 2002). Unlike other acipenserids, 

newly hatched larvae did not swim up 

toward the water surface within the first 

5 days post hatch (dph), but remained 

in clumps near the bottom. By 5–6 dph, 

larvae exhibited nocturnal behavior, 

remaining clumped near the bottom 

during the day and actively swimming 

at night (Van Eenennaam et al., 2001; 

Deng et al., 2002). Upon onset of feeding 

at 10 dph (23.0–25.2 mm length) (Deng 

et al., 2002), larvae are believed to 

initiate downstream migration from 

spawning areas, staying close to the 

bottom and periodically interrupting 

downstream movement with upstream 

foraging bouts (Kynard et al., 2005). 

Little is known about larval rearing 

habitat and requirements. Temperatures 

of 15 °C are believed to be optimal for 

larval growth, whereas temperatures 

below 11 °C or above 19 °C may be 

detrimental for growth (Cech et al., 

2000, cited in COSEWIC, 2004). 

Substrate may also affect growth and 

foraging behavior. Larvae reared on flatsurfaced substrates (slate-rock and glass) 

had higher specific growth rates than 

larvae reared on cobble or sand, most 

likely due to lower foraging 

effectiveness and greater activity levels 

in cobble and sand substrates (Nguyen 

and Crocker, 2007). Larvae complete 

metamorphosis to the juvenile stage at 

45 dph, when fish range from 62.5 to 

94.4 mm in length (Deng et al., 2002). 

Juveniles continue to grow rapidly, 

reaching 300 mm in length in one year 

and over 600 mm within 2–3 years 

(based on Klamath River fish; Nakamoto 

et al., 1995). Laboratory experiments 

indicate juveniles may occupy fresh to 

brackish water at any age, but are able 

to completely transition to salt water at 

around 1.5 years in age (about 533 dph; 

mean TL of 75.2 plus or minus 0.7 cm) 

(Allen and Cech, 2007). Early juveniles 

at 100 and 170 dph tolerated prolonged 

exposure to saltwater, but experienced 

decreased growth and activity levels 

and, in some cases, mortality for 

individuals at 100 dph (Allen and Cech, 

2007). These results were consistent 

with the Nakamoto et al. (1995) study 

indicating that juveniles rear in fresh 

and estuarine waters before dispersing 

into salt water at about 1 to 4 years in 

age (about 300 to 750 mm in length). 

Early juveniles also exhibit nocturnal 

behavior in all activities and initiate 

directed downstream movement in the 

fall, most likely to migrate to wintering 

habitats (Kynard et al., 2005). Juvenile 

green sturgeon prefer temperatures of 

15–16 °C with an upper limit of 19 °C, 

beyond which swimming performance 

may decrease and cellular stress may 

occur (Mayfield and Cech, 2004; Allen 

et al., 2006). Laboratory measurements 

of oxygen consumption by juveniles 

ranged from 61.78 plus or minus 4.65 

mg O2 hr¥1 kg¥1 to 76.06 plus or minus 

7.63 mg O2 hr¥1 kg¥1, with a trend of 

increasing oxygen consumption with 

increasing body mass (Allen and Cech, 

2006). Studies on juvenile feeding in 

San Pablo Bay, Suisun Bay, and the 

Sacramento-San Joaquin Delta identified 

prey items of shrimp (Neomysis 

awatchensis, Crangon franciscorum), 

amphipods (Corophium spp., Photis 

californica), isopods (Synidotea 

laticauda), clams (Macoma spp.), 

annelid worms, and unidentified crabs 

and fishes (Ganssle, 1966; Radtke, 

1966). 

Adults and Subadults 

To distinguish among different life 

stages, we used the following 

definitions. Adults are sexually mature 

fish, subadults are sexually immature 

fish that have entered into coastal 

marine waters (usually at 3 years of age), 

and juveniles are fish that have not yet 

made their first entry into marine 

waters. Green sturgeon spend a large 

portion of their lives in coastal marine 

waters as subadults and adults between 

spawning episodes. Subadult male and 

female green sturgeon spend at least 

approximately 6 and 10 years, 

respectively, at sea before reaching 

reproductive maturity and returning to 

freshwater to spawn for the first time 

(Nakamoto et al., 1995). Adult green 

sturgeon spend as many as 2–4 years at 

sea between spawning events (Lindley 

and Moser, NMFS, pers. comm., cited in 

70 FR 17386, April 6, 2005; Erickson 

and Webb, 2007). The average length at 

maturity for green sturgeon is estimated 

to be 152 cm TL (14–16 years) for males 

and 162 cm TL (16–20 years) for females 

in the Klamath River (Van Eenennaam 

et al., 2006), and 145 cm TL for males 

and 166 cm TL for females in the Rogue 

River (Erickson and Webb, 2007). The 

maximum size of subadults is 

approximately 167 cm TL (Erickson and 

Webb, 2007). 

Adults typically begin their upstream 

spawning migration in the spring and 

either migrate downstream after 

spawning, or reside within the river 

over the summer. In the Klamath River, 

tagged adults exhibited four movement 

patterns: (1) Upstream spawning 

migration; (2) spring outmigration to the 


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ocean; (3) summer holding (June to 

November) in deep pools with eddy 

currents (for those that do not exhibit 

post-spawning spring outmigration); 

and (4) outmigration after summer 

holding (Benson et al., 2007). Use of 

summer holding sites has also been 

observed in the Rogue River (Erickson et 

al., 2002) and in the Sacramento River 

(R. Corwin, U.S. Bureau of Reclamation 

(USBR), 2008, pers. comm.). Deep 

holding pools greater than 5 m in depth 

are believed to be important for 

spawning as well as for summer holding 

(R. Corwin, USBR, and B. Poytress, 

USFWS, 2008, pers. comm). Winter 

outmigration from the Klamath and 

Rogue rivers was initiated when 

temperatures dropped to 10–12 °C or 

below 10 °C, and when discharge 

increased to greater than 100 m3/s 

(Erickson et al., 2002; Benson et al., 

2007). In the Sacramento River, tagged 

adult green sturgeon were present 

through November and December, 

before moving downstream with 

increased winter flows (M. Thomas, UC 

Davis, and R. Corwin, USBR, 2008, pers. 

comm.). Subadults may also migrate 

upstream into the natal rivers, but for 

unknown purposes. Adults and 

subadults also occupy the San 

Francisco, San Pablo, and Suisun bays 

and the Sacramento-San Joaquin Delta 

adjacent to the Sacramento River in the 

summer months (although some 

individuals that remain in the river 

until late fall/early winter migrate 

through the bays and Delta during their 

winter outmigration), during which time 

they are likely feeding and optimizing 

growth (Kelly et al., 2007; Moser and 

Lindley, 2007). 

Outside of their natal waters, adult 

and subadult green sturgeon inhabit 

coastal marine habitats from the Bering 

Sea to southern California, primarily 

occupying waters within 110 meters (m) 

depth (Erickson and Hightower, 2007). 

Tagged subadults and adults have been 

documented to make sustained coastal 

migrations of up to 100 km per day (S. 

Lindley and M. Moser, NMFS, pers. 

comm., cited in BRT, 2005), but may 

also reside in aggregation/feeding areas 

in coastal marine waters for several days 

at a time (S. Lindley and M. Moser, 

NMFS, 2008, pers. comm.). There is 

evidence that green sturgeon inhabit 

certain estuaries on the northern 

California, Oregon, and Washington 

coasts during the summer, and inhabit 

coastal marine waters along the central 

California coast and between Vancouver 

Island, British Columbia, and southeast 

Alaska over the winter (Lindley et al., 

2008). Green sturgeon likely inhabit 

these estuarine and marine waters to 

feed and to optimize growth (Moser and 

Lindley, 2007). Particularly large 

aggregations of green sturgeon occur in 

the Columbia River estuary and 

Washington estuaries and include green 

sturgeon from all known spawning 

populations (Moser and Lindley, 2007). 

Although adult and subadult green 

sturgeon occur in coastal marine waters 

as far north as the Bering Sea, green 

sturgeon have not been observed in 

freshwater rivers or coastal bays and 

estuaries in Alaska. 

Within bays and estuaries, adults and 

subadults inhabit a wide range of 

environmental conditions. Adults and 

subadults in Willapa Bay and the San 

Francisco Bay Estuary occurred over the 

entire temperature and salinity range 

(11.9–21.9 °C; 8.8–32.1 ppt), 

experienced large fluctuations in 

temperature and salinity (up to 2 °C h¥1

and 1 practical salinity unit (PSU) h¥1), 

and occupied a wide range of dissolved 

oxygen levels from 6.54 to 8.98 mg O2/ 

l (Kelly et al., 2007; Moser and Lindley, 

2007). Tagged adults and subadults in 

the San Francisco Bay Estuary occupied 

shallow depths during directional 

movements but stayed close to the 

bottom during non-directional 

movements, presumably because they 

were foraging (Kelly et al., 2007). 

Similar to freshwater rivers, winter 

outmigration from Willapa Bay was 

initiated when water temperatures 

dropped below 10 °C (Moser and 

Lindley, 2007). 

Adult and subadult green sturgeon in 

the Columbia River estuary, Willapa 

Bay, and Grays Harbor feed on 

crangonid shrimp, burrowing 

thalassinidean shrimp (primarily the 

burrowing ghost shrimp (Neotrypaea 

californiensis), but possibly other 

related species), amphipods, clams, 

juvenile Dungeness crab (Cancer 

magister), anchovies, sand lances 

(Ammodytes hexapterus), lingcod 

(Ophiodon elongatus), and other 

unidentified fishes (P. Foley, 

unpublished data cited in Moyle et al., 

1995; C. Tracy, minutes to USFWS 

meeting, cited in Moyle et al., 1995; O. 

Langness, WDFW, pers. comm., cited in 

Moser and Lindley, 2007; Dumbauld et 

al., 2008). Burrowing ghost shrimp 

made up about 50 percent of the 

stomach contents of green sturgeon 

sampled in 2003 (Dumbauld et al., 

2008). Subadults and adults feeding in 

bays and estuaries may be exposed to 

contaminants that may affect their 

growth and reproduction. Studies on 

white sturgeon in estuaries indicate that 

the bioaccumulation of pesticides and 

other contaminants adversely affects 

growth and reproductive development 

and may result in decreased 

reproductive success (Fairey et al., 

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

2001b; Kruse and Scarnecchia, 2002; 

Feist et al., 2005; Greenfield et al., 

2005). Green sturgeon are believed to 

experience similar risks from 

contaminants (70 FR 17386, April 6, 

2005). 

Methods and Criteria Used to Identify 

Critical Habitat 

In the following sections, we describe 

the relevant definitions and 

requirements in the ESA and our 

implementing regulations and the key 

methods and criteria used to prepare 

this proposed critical habitat 

designation. In accordance with section 

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

implementing regulations (50 CFR 

424.12(a)), this proposed rule is based 

on the best scientific information 

available concerning the Southern DPS’s 

present and historical range, habitat, 

and biology, as well as threats to its 

habitat. In preparing this rule, we 

reviewed and summarized current 

information on the green sturgeon, 

including recent biological surveys and 

reports, peer-reviewed literature, NMFS 

status reviews for green sturgeon (Moyle 

et al., 1992; Adams et al., 2002; BRT, 

2005), and the proposed and final listing 

rules for the green sturgeon (70 FR 

17386, April 6, 2005; 71 FR 17757, April 

7, 2006). 

To assist with the evaluation of 

critical habitat, we convened a critical 

habitat review team (CHRT) of nine 

Federal biologists from NMFS, the U.S. 

Fish and Wildlife Service (USFWS), and 

the USBR with experience in green 

sturgeon biology, consultations, and 

management, or experience in the 

critical habitat designation process. The 

CHRT used the best available scientific 

and commercial data and their best 

professional judgment to: (1) Verify the 

geographical area occupied by the 

Southern DPS at the time of listing; (2) 

identify the physical and biological 

features essential to the conservation of 

the species; (3) identify specific areas 

within the occupied area containing 

those essential physical and biological 

features; (4) verify whether the essential 

features within each specific area may 

need special management 

considerations or protection and 

identify activities that may affect these 

essential features; (5) evaluate the 

conservation value of each specific area; 

and (6) determine if any unoccupied 

areas are essential to the conservation of 

the Southern DPS. The CHRT’s 

evaluation and conclusions are 

described in detail in the following 

sections. 


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Physical or Biological Features 

Essential for Conservation 

Joint NMFS–USFWS regulations, at 

50 CFR 424.12(b), state that in 

determining what areas are critical 

habitat, the agencies ‘‘shall consider 

those physical and biological features 

that are essential to the conservation of 

a given species and that may require 

special management considerations or 

protection.’’ Features to consider may 

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

Space for individual and population 

growth, and for normal behavior; (2) 

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

nutritional or physiological 

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

Sites for breeding, reproduction, rearing 

of offspring, germination, or seed 

dispersal; and generally; (5) Habitats 

that are protected from disturbance or 

are representative of the historic 

geographical and ecological 

distributions of a species.’’ The 

regulations also require the agencies to 

‘‘focus on the principal biological or 

physical constituent elements’’

(hereafter referred to as ‘‘Primary 

Constituent Elements’’ or PCEs) within 

the specific areas considered for 

designation that are essential to 

conservation of the species, which ‘‘may 

include, but are not limited to, the 

following: * * * spawning sites, 

feeding sites, seasonal wetland or 

dryland, water quality or quantity, 

* * * geological formation, vegetation 

type, tide, and specific soil types.’’

The CHRT recognized that the 

different systems occupied by green 

sturgeon at specific stages of their life 

cycle serve distinct purposes and thus 

may contain different PCEs. Based on 

the best available scientific information, 

the CHRT identified PCEs for freshwater 

riverine systems, estuarine areas, and 

nearshore marine waters. 

The specific PCEs essential for the 

conservation of the Southern DPS in 

freshwater riverine systems include: 

(1) Food resources. Abundant prey 

items for larval, juvenile, subadult, and 

adult life stages. Although the CHRT 

lacked specific data on food resources 

for green sturgeon within freshwater 

riverine systems, juvenile green 

sturgeon most likely feed on fly larvae 

(based on nutritional studies on the 

closely-related white sturgeon) (J. 

Stuart, NMFS, 2008, pers. comm.). Food 

resources are important for juvenile 

foraging, growth, and development 

during their downstream migration to 

the Delta and bays. In addition, subadult 

and adult green sturgeon may forage 

during their downstream post-spawning 

migration, while holding within deep 

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

rivers. Subadult and adult green 

sturgeon in freshwater rivers most likely 

feed on benthic prey species similar to 

those fed on in bays and estuaries, 

including shrimp, clams, and benthic 

fishes (Moyle et al., 1995; Erickson et 

al., 2002; Moser and Lindley, 2007; 

Dumbauld et al., 2008). 

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

structural features of substrates). 

Substrates suitable for egg deposition 

and development (e.g., bedrock sills and 

shelves, cobble and gravel, or hard clean 

sand, with interstices or irregular 

surfaces to ‘‘collect’’ eggs and provide 

protection from predators, and free of 

excessive silt and debris that could 

smother eggs during incubation), larval 

development (e.g., substrates with 

interstices or voids providing refuge 

from predators and from high flow 

conditions), and subadults and adults 

(e.g., substrates for holding and 

spawning). For example, spawning is 

believed to occur over substrates 

ranging from clean sand to bedrock, 

with preferences for cobble (Emmett et 

al., 1991; Moyle et al., 1995). Eggs likely 

adhere to substrates, or settle into 

crevices between substrates (Deng, 2000; 

Van Eenennaam et al., 2001; Deng et al., 

2002). Both embryos and larvae 

exhibited a strong affinity for benthic 

structure during laboratory studies (Van 

Eenennaam et al., 2001; Deng et al., 

2002; Kynard et al., 2005), and may seek 

refuge within crevices, but use flatsurfaced substrates for foraging (Nguyen 

and Crocker, 2007). For more details, 

see the sections on ‘‘Spawning’’ and 

‘‘Development of early life stages’’. 

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

magnitude, frequency, duration, 

seasonality, and rate-of-change of fresh 

water discharge over time) necessary for 

normal behavior, growth, and survival 

of all life stages. Such a flow regime 

should include stable and sufficient 

water flow rates in spawning and 

rearing reaches to maintain water 

temperatures within the optimal range 

for egg, larval, and juvenile survival and 

development (11–19 °C) (Cech et al., 

2000, cited in COSEWIC, 2004; Mayfield 

and Cech, 2004; Van Eenennaam et al., 

2005; Allen et al., 2006). Sufficient flow 

is needed to reduce the incidence of 

fungal infestations of the eggs (Deng et 

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

addition, sufficient flow is needed to 

flush silt and debris from cobble, gravel, 

and other substrate surfaces to prevent 

crevices from being filled in (and 

potentially suffocating the eggs; Deng et 

al., 2002) and to maintain surfaces for 

feeding (Nguyen and Crocker, 2007). 

Successful migration of adult green 

sturgeon to and from spawning grounds 

is also dependent on sufficient water 

flow. As stated in the subsection titled 

‘‘Spawning’’, spawning success is most 

certainly associated with water flow and 

water temperature. Spawning in the 

Sacramento River is believed to be 

triggered by increases in water flow to 

about 400 m3/s (average daily water 

flow during spawning months: 198–306 

m3/s) (Brown, 2007). Post-spawning 

downstream migrations are triggered by 

increased flows, ranging from 174–417 

m3/s in the late summer (Vogel, 2005) 

and greater than 100 m3/s in the winter 

(Erickson et al., 2002; Benson et al., 

2007; M. Thomas and R. Corwin, USBR, 

2008, pers. comm.). 

(4) Water quality. Water quality, 

including temperature, salinity, oxygen 

content, and other chemical 

characteristics, necessary for normal 

behavior, growth, and viability of all life 

stages (see sections on ‘‘Development of 

early life stages’’ and ‘‘Adults and 

subadults’’). Suitable water 

temperatures would include: Stable 

water temperatures within spawning 

reaches (wide fluctuations could 

increase egg mortality or deformities in 

developing embryos); temperatures 

within 11–17 °C (optimal range = 14–16 

°C) in spawning reaches for egg 

incubation (March–August) (Van 

Eenennaam et al., 2005); temperatures 

below 20 °C for larval development 

(Werner et al., 2007); and temperatures 

below 24 °C for juveniles (Mayfield and 

Cech, 2004; Allen et al., 2006a). Suitable 

salinity levels range from fresh water 

(< 3 parts per thousand (ppt)) for larvae 

and early juveniles (about 100 dph) to 

brackish water (10 ppt) for juveniles 

prior to their transition to salt water. 

Prolonged exposure to higher salinities 

may result in decreased growth and 

activity levels and even mortality (Allen 

and Cech, 2007). Adequate levels of 

dissolved oxygen are needed to support 

oxygen consumption by fish in their 

early life stages (ranging from 61.78 to 

76.06 mg O2 hr¥1 kg¥1 for juveniles) 

(Allen and Cech, 2007). Suitable water 

quality would also include water 

containing acceptably low levels of 

contaminants (i.e., pesticides, 

organochlorines, elevated levels of 

heavy metals, etc.; acceptably low levels 

would be determined by NMFS on a 

case-by-case basis) that may disrupt 

normal development of embryonic, 

larval, and juvenile stages of green 

sturgeon. Water with acceptably low 

levels of such contaminants would 

protect green sturgeon from adverse 

impacts on growth, reproductive 

development, and reproductive success 

(e.g., reduced egg size and abnormal 

gonadal development) likely to result 


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from exposure to contaminants (Fairey 

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

et al., 2001b; Kruse and Scarnecchia, 

2002; Feist et al., 2005; Greenfield et al., 

2005). 

(5) Migratory corridor. A migratory 

pathway necessary for the safe and 

timely passage of Southern DPS fish 

within riverine habitats and between 

riverine and estuarine habitats (e.g., an 

unobstructed river or dammed river that 

still allows for safe and timely passage). 

We define safe and timely passage to 

mean that human-induced 

impediments, either physical, chemical 

or biological, do not alter the migratory 

behavior of the fish such that its 

survival or the overall viability of the 

species is compromised (e.g., an 

impediment that compromises the 

ability of fish to reach their spawning 

habitat in time to encounter conspecifics and reproduce). Unimpeded 

migratory corridors are necessary for 

adult green sturgeon to migrate to and 

from spawning habitats, and for larval 

and juvenile green sturgeon to migrate 

downstream from spawning/rearing 

habitats within freshwater rivers to 

rearing habitats within the estuaries. 

(6) Water depth. Deep (≥ 5 m) holding 

pools for both upstream and 

downstream holding of adult or 

subadult fish, with adequate water 

quality and flow to maintain the 

physiological needs of the holding adult 

or subadult fish (see section titled 

Adults and Subadults). Deep pools of 

≥ 5 m depth with high associated 

turbulence and upwelling are critical for 

adult green sturgeon spawning and for 

summer holding within the Sacramento 

River (R. Corwin, USBR, and B. 

Poytress, USFWS, 2008, pers. comm.). 

Adult green sturgeon in the Klamath 

and Rogue rivers also occupy deep 

holding pools for extended periods of 

time, presumably for feeding, energy 

conservation, and/or refuge from high 

water temperatures (Erickson et al., 

2002; Benson et al., 2007). 

(7) Sediment quality. Sediment 

quality (i.e., chemical characteristics) 

necessary for normal behavior, growth, 

and viability of all life stages. This 

includes sediments free of elevated 

levels of contaminants (e.g., selenium, 

polyaromatic hydrocarbons (PAHs), and 

organochlorine pesticides) that may 

adversely affect green sturgeon. Based 

on studies of white sturgeon, 

bioaccumulation of contaminants from 

feeding on benthic species may 

adversely affect the growth, 

reproductive development, and 

reproductive success of green sturgeon 

(see section titled Adult and Subadults). 

The specific PCEs essential for the 

conservation of the Southern DPS in 

estuarine areas include: 

(1) Food resources. Abundant prey 

items within estuarine habitats and 

substrates for juvenile, subadult, and 

adult life stages. As described 

previously (see Green Sturgeon Natural 

History), prey species for juvenile, 

subadult, and adult green sturgeon 

within bays and estuaries primarily 

consist of benthic invertebrates and 

fishes, including crangonid shrimp, 

burrowing thalassinidean shrimp 

(particularly the burrowing ghost 

shrimp), amphipods, isopods, clams, 

annelid worms, crabs, sand lances, and 

anchovies. These prey species are 

critical for the rearing, foraging, growth, 

and development of juvenile, subadult, 

and adult green sturgeon within the 

bays and estuaries. 

(2) Water flow. Within bays and 

estuaries adjacent to the Sacramento 

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

Delta and the Suisun, San Pablo, and 

San Francisco bays), sufficient flow into 

the bay and estuary to allow adults to 

successfully orient to the incoming flow 

and migrate upstream to spawning 

grounds. Sufficient flows are needed to 

attract adult green sturgeon to the 

Sacramento River to initiate the 

upstream spawning migration 

(Kohlhorst et al., 1991, cited in CDFG, 

2002; J. Stuart, NMFS, 2008, pers. 

comm.). 

(3) Water quality. Water quality, 

including temperature, salinity, oxygen 

content, and other chemical 

characteristics, necessary for normal 

behavior, growth, and viability of all life 

stages. Suitable water temperatures for 

juvenile green sturgeon should be below 

24 °C. At temperatures above 24 °C, 

juvenile green sturgeon exhibit 

decreased swimming performance 

(Mayfield and Cech, 2004) and 

increased cellular stress (Allen et al., 

2006). Suitable salinities range from 

brackish water (10 ppt) to salt water (33 

ppt). Juveniles transitioning from 

brackish to salt water can tolerate 

prolonged exposure to salt water 

salinities, but may exhibit decreased 

growth and activity levels (Allen and 

Cech, 2007), whereas subadults and 

adults tolerate a wide range of salinities 

(Kelly et al., 2007). Subadult and adult 

green sturgeon occupy a wide range of 

dissolved oxygen levels, but may need 

a minimum dissolved oxygen level of at 

least 6.54 mg O2/l (Kelly et al., 2007; 

Moser and Lindley, 2007). As described 

above, adequate levels of dissolved 

oxygen are also required to support 

oxygen consumption by juveniles 

(ranging from 61.78 to 76.06 mg O2 hr¥1

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

water quality also includes water with 

acceptably low levels of contaminants 

(e.g., pesticides, organochlorines, 

elevated levels of heavy metals; 

acceptable low levels as determined by 

NMFS on a case-by-case basis) that may 

disrupt the normal development of 

juvenile life stages, or the growth, 

survival, or reproduction of subadult or 

adult stages. 

(4) Migratory corridor. A migratory 

pathway necessary for the safe and 

timely passage of Southern DPS fish 

within estuarine habitats and between 

estuarine and riverine or marine 

habitats. We define safe and timely 

passage to mean that human-induced 

impediments, either physical, chemical 

or biological, do not alter the migratory 

behavior of the fish such that its 

survival or the overall viability of the 

species is compromised (e.g., an 

impediment that compromises the 

ability of fish to reach thermal refugia 

by the time they enter a particular life 

stage). Within the bays and estuaries 

adjacent to the Sacramento River, 

unimpeded passage is needed for 

juvenile green sturgeon to migrate from 

the river to the bays and estuaries and 

eventually out into the ocean. Passage 

within the bays and the Delta is also 

critical for adults and subadults for 

feeding and summer holding, as well as 

to access the Sacramento River for their 

upstream spawning migrations and to 

make their outmigration back into the 

ocean. Within bays and estuaries 

outside of the Delta and the Suisun, San 

Pablo, and San Francisco bays, 

unimpeded passage is necessary for 

adult and subadult green sturgeon to 

access feeding areas, holding areas, and 

thermal refugia, and to ensure passage 

back out into the ocean. 

(5) Water depth. A diversity of depths 

necessary for shelter, foraging, and 

migration of juvenile, subadult, and 

adult life stages. Subadult and adult 

green sturgeon occupy a diversity of 

depths within bays and estuaries for 

feeding and migration. Tagged adults 

and subadults within the San Francisco 

Bay estuary primarily occupied waters 

over shallow depths of less than 10 m, 

either swimming near the surface or 

foraging along the bottom (Kelly et al., 

2007). In a study of juvenile green 

sturgeon in the Delta, relatively large 

numbers of juveniles were captured 

primarily in shallow waters from 1–3 

meters deep, indicating juveniles may 

require even shallower depths for 

rearing and foraging (Radtke, 1966). 

Thus, a diversity of depths is important 

to support different life stages and 

habitat uses for green sturgeon within 

estuarine areas. 


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(6) Sediment quality. Sediment 

quality (i.e., chemical characteristics) 

necessary for normal behavior, growth, 

and viability of all life stages. This 

includes sediments free of elevated 

levels of contaminants (e.g., selenium, 

PAHs, and organochlorine pesticides) 

that can cause adverse effects on all life 

stages of green sturgeon (see description 

of ‘‘Sediment quality’’ for riverine 

habitats above). 

The specific PCEs essential for the 

conservation of the Southern DPS in 

coastal marine areas include: 

(1) Migratory corridor. A migratory 

pathway necessary for the safe and 

timely passage of Southern DPS fish 

within marine and between estuarine 

and marine habitats. We define safe and 

timely passage to mean that humaninduced impediments, either physical, 

chemical or biological, do not alter the 

migratory behavior of the fish such that 

its survival or the overall viability of the 

species is compromised (e.g., an 

impediment that compromises the 

ability of fish to reach abundant prey 

resources during the summer months in 

Northwest Pacific estuaries). Subadult 

and adult green sturgeon spend the 

majority of their time in marine and 

estuarine waters outside of their natal 

rivers. Unimpeded passage within 

coastal marine waters is critical for 

subadult and adult green sturgeon to 

access oversummering habitats within 

coastal bays and estuaries and 

overwintering habitat within coastal 

waters between Vancouver Island, BC, 

and southeast Alaska. Access to and 

unimpeded movement within these 

areas is also necessary for green 

sturgeon to forage for prey and make 

lengthy migrations necessary to reach 

other foraging areas (Lindley et al., 

2008). Passage is also necessary for 

subadults and adults to migrate back to 

San Francisco Bay and to the 

Sacramento River for spawning. 

(2) Water quality. Coastal marine 

waters with adequate dissolved oxygen 

levels and acceptably low levels of 

contaminants (e.g., pesticides, 

organochlorines, heavy metals that may 

disrupt the normal behavior, growth, 

and viability of subadult and adult 

green sturgeon). Based on studies of 

tagged subadult and adult green 

sturgeon in the San Francisco Bay 

estuary, CA, and Willapa Bay, WA, 

subadults and adults may need a 

minimum dissolved oxygen level of at 

least 6.54 mg O2/l (Kelly et al., 2007; 

Moser and Lindley, 2007). As described 

above, exposure to and bioaccumulation 

of contaminants may adversely affect 

the growth, reproductive development, 

and reproductive success of subadult 

and adult green sturgeon. Thus, waters 

with acceptably low levels of such 

contaminants (as determined by NMFS 

on a case-by-case basis) are required for 

the normal development of green 

sturgeon for optimal survival and 

spawning success. 

(3) Food resources. Abundant prey 

items for subadults and adults, which 

may include benthic invertebrates and 

fishes. Green sturgeon spend more than 

half their lives in coastal marine and 

estuarine waters, spending from 3–20 

years at a time out at sea. Abundant 

food resources are important to support 

subadults and adults over long-distance 

migrations, and may be one of the 

factors attracting green sturgeon to 

habitats far to the north (off the coast of 

Vancouver Island and Alaska) and to the 

south (Monterey Bay, CA, and off the 

coast of southern California) of their 

natal habitat. Although the CHRT lacked 

direct evidence, prey species likely 

include benthic invertebrates and fishes 

similar to those fed upon by green 

sturgeon in bays and estuaries (e.g., 

shrimp, clams, crabs, anchovies, sand 

lances) (see section on ‘‘Adults and 

subadults’’). 

Geographical Area Occupied by the 

Species and Specific Areas Within the 

Geographical Area Occupied 

One of the first steps in the critical 

habitat designation process is to define 

the geographical area occupied by the 

species at the time of listing. The CHRT 

relied on data from tagging and tracking 

studies, genetic analyses, field 

observations, records of fisheries take 

and incidental take (e.g., in water 

diversion activities), and opportunistic 

sightings to provide information on the 

current range and distribution of green 

sturgeon and of the Southern DPS. The 

range of green sturgeon extends from the 

Bering Sea, Alaska, to Ensen ̃ ada, 

Mexico. Within this range, Southern 

DPS fish are confirmed to occur from 

Graves Harbor, Alaska, to Monterey Bay, 

California (Lindley et al., 2008; S. 

Lindley and M. Moser, NMFS, 2008, 

unpublished data), based on telemetry 

data and genetic analyses. Green 

sturgeon have been observed northwest 

of Graves Harbor, AK, and south of 

Monterey Bay, CA, but have not been 

identified as belonging to either the 

Northern or Southern DPS. The CHRT 

concluded that there are no barriers or 

habitat conditions preventing Southern 

DPS fish detected in Monterey Bay, CA, 

or off Graves Harbor, AK, from moving 

further south or further north, and that 

the green sturgeon observed in these 

areas could belong to either the 

Northern DPS or the Southern DPS. 

Based on this reasoning, the 

geographical area occupied by the 

Southern DPS was defined as the entire 

range occupied by green sturgeon (i.e., 

from the Bering Sea, AK, to Ensen ̃ ada, 

Mexico), encompassing all areas where 

the presence of Southern DPS fish has 

been confirmed, as well as areas where 

the presence of Southern DPS fish is 

likely (based on the presence of 

confirmed Northern DPS fish or green 

sturgeon of unknown DPS). 

Areas outside of the United States 

cannot be designated as critical habitat 

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

geographical area under consideration 

for this designation is limited to areas 

from the Bering Sea, AK, to the 

California/Mexico border, excluding 

Canadian waters. For freshwater rivers, 

the CHRT concluded that green sturgeon 

of each DPS are likely to occur 

throughout their natal river systems, 

but, within non-natal river systems, are 

likely to be limited to the estuaries and 

would not occur upstream of the head 

of the tide. For the purposes of our 

evaluation of critical habitat, we defined 

all green sturgeon observed upstream of 

the head of the tide in freshwater rivers 

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

Sacramento River and its tributaries) as 

belonging to the Southern DPS, and all 

green sturgeon observed upstream of the 

head of the tide in freshwater rivers 

north of and including the Eel River as 

belonging to the Northern DPS. Thus, 

for freshwater rivers north of and 

including the Eel River, the areas 

upstream of the head of the tide were 

not considered part of the geographical 

area occupied by the Southern DPS. 

The CHRT then identified ‘‘specific 

areas’’ within the geographical area 

occupied. To be eligible for designation 

as critical habitat under the ESA, each 

specific area must contain at least one 

PCE that may require special 

management considerations or 

protection. For each specific occupied 

area, the CHRT noted whether the 

presence of Southern DPS green 

sturgeon is confirmed or likely (based 

on the presence of Northern DPS fish or 

green sturgeon of unknown DPS) and 

verified that each area contained one or 

more PCE(s) that may require special 

management considerations or 

protection. The following paragraphs 

provide a brief description of the 

presence and distribution of Southern 

DPS green sturgeon within each area 

and summarize the CHRT’s methods for 

delineating the specific areas. 

Freshwater Rivers, Bypasses, and the 

Delta 

Green sturgeon occupy several 

freshwater river systems from the 

Sacramento River, CA, north to British 

Columbia, Canada (Moyle, 2002). As 


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described in the previous section, 

Southern DPS green sturgeon occur 

throughout their natal river systems 

(i.e., the Sacramento River, lower 

Feather River, and lower Yuba River), 

but are believed to be restricted to the 

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

north of and including the Eel River). 

The CHRT defined the specific areas in 

the Sacramento, Feather, and Yuba 

rivers in California to include riverine 

habitat from the river mouth upstream 

to and including the furthest known site 

of historic and/or current sighting or 

capture of green sturgeon, as long as the 

site is still accessible. The specific areas 

were extended upstream to a 

geographically identifiable point. The 

riverine specific areas include areas that 

offer at least periodic passage of 

Southern DPS fish to upstream sites and 

include sufficient habitat necessary for 

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

egg incubation, larval rearing, juvenile 

feeding, passage throughout the river, 

and/or passage into and out of estuarine 

or marine habitat). 

The CHRT delineated specific areas 

where Southern DPS green sturgeon 

occur, including: the Sacramento River, 

the Yolo and Sutter bypasses, the lower 

Feather River, and the lower Yuba 

River. The CHRT also delineated a 

specific area in the Sacramento-San 

Joaquin Delta. The mainstem 

Sacramento River is the only area where 

spawning by Southern DPS green 

sturgeon has been confirmed and where 

all life stages of the Southern DPS are 

supported. Beginning in March and 

through early summer, adult green 

sturgeon migrate as far upstream as the 

Keswick Dam (rkm 486) to spawn 

(Brown, 2007). Spawning has been 

confirmed by the collection of larvae 

and juveniles at the RBDD and the 

Glenn-Colusa Irrigation District (GCID) 

(CDFG, 2002; Brown, 2007) and by the 

collection of green sturgeon eggs 

downstream of the RBDD (Brown, 2007; 

B. Poytress, USFWS, 2008, pers. 

comm.). The Sacramento River provides 

important spawning, holding, and 

migratory habitat for adults and 

important rearing, feeding, and 

migratory habitat for larvae and 

juveniles. The Yolo and Sutter bypasses 

adjacent to the lower Sacramento River 

also serve as important migratory 

corridors for Southern DPS adults, 

subadults, and juveniles on their 

upstream or downstream migration and 

provide a high macroinvertebrate forage 

base that may support green sturgeon 

feeding. Southern DPS adults occupy 

the lower Feather River up to Oroville 

Dam (rkm 116) and the lower Yuba 

River up to Daguerre Dam (rkm 19). 

Based on observations of Southern DPS 

adults occurring right up to the dams 

and of spawning behavior by adults on 

the Feather River, spawning may have 

occurred historically in the lower 

Feather River and, to a lesser extent, in 

the lower Yuba River. However, no 

green sturgeon eggs, larvae, or juveniles 

have ever been collected within these 

rivers. Further downstream, the 

Sacramento-San Joaquin Delta provides 

important rearing, feeding, and 

migratory habitat for juveniles, which 

occur throughout the Delta in all 

months of the year. Subadults and 

adults also occur throughout the Delta 

to feed, grow, and prepare for their 

outmigration to the ocean. The draft 

biological report provides more detailed 

information on each specific area, 

including a description of the PCEs 

present, special management 

considerations or protection that may be 

needed, and the presence and 

distribution of Southern DPS green 

sturgeon. The draft biological report is 

available upon request (see ADDRESSES), 

via our Web site at http:// 

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

eRulemaking Web site at http:// 

www.regulations.gov. For additional 

discussion of the special management 

considerations or protection that may be 

needed for the PCEs, please see also the 

description of ‘‘Special management 

considerations or protection’’ below. 

Bays and Estuaries 

Southern DPS green sturgeon occupy 

coastal bays and estuaries from 

Monterey Bay, CA, to Puget Sound, WA. 

In the Central Valley, CA, juvenile, 

subadult, and adult life stages occur 

throughout the Suisun, San Pablo, and 

San Francisco bays. These bays support 

the rearing, feeding, and growth of 

juveniles prior to their first entry into 

marine waters. The bays also serve as 

important feeding, rearing, and 

migratory habitat for subadult and adult 

Southern DPS green sturgeon. 

Outside of their natal system, 

subadult and adult Southern DPS fish 

occupy coastal bays and estuaries in 

California, Oregon, and Washington, 

including estuarine waters at the 

mouths of non- natal rivers. Subadult 

and adult Southern DPS green sturgeon 

have been confirmed to occupy the 

following coastal bays and estuaries: 

Monterey Bay, CA; Humboldt Bay, CA; 

Coos Bay, OR; Winchester Bay, OR; the 

lower Columbia River estuary; Willapa 

Bay, WA; Grays Harbor, WA; and Puget 

Sound, WA (Chadwick, 1959; Miller, 

1972; Lindley et al., 2008; Pinnix, 2008; 

S. Lindley and M. Moser, NMFS, 2008, 

unpublished data). The presence of 

Southern DPS green sturgeon is likely 

(based on limited records of confirmed 

Northern DPS fish or green sturgeon of 

unknown DPS), but not confirmed 

within the following coastal bays and 

estuaries: Elkhorn Slough, CA; Tomales 

Bay, CA; Noyo Harbor, CA; Eel River 

estuary, CA; Klamath/Trinity River 

estuary, CA; Rogue River estuary, OR; 

Siuslaw River estuary, OR; Alsea River 

estuary, OR; Yaquina Bay, OR; and 

Tillamook Bay, OR (Emmett et al., 1991; 

Moyle et al., 1992; Adams et al., 2002; 

Erickson et al., 2002; Yoklavich et al., 

2002; Farr and Kern, 2005). 

Subadult and adult green sturgeon are 

believed to occupy coastal bays and 

estuaries outside of their natal waters 

for feeding, optimization of growth, and 

thermal refugia (Moser and Lindley, 

2007; Lindley et al., 2008). Occupied 

coastal bays and estuaries north of San 

Francisco Bay, CA, contain 

oversummering habitats for subadults 

and adults, whereas coastal bays and 

estuaries south of San Francisco Bay, 

CA, are believed to contain 

overwintering habitats (Lindley et al., 

2008). The largest concentrations of 

green sturgeon, including Southern DPS 

fish, occur within the lower Columbia 

River estuary, Willapa Bay, and Grays 

Harbor (Emmett et al., 1991; Adams et 

al., 2002; WDFW and ODFW, 2002; 

Israel and May, 2006; Moser and 

Lindley, 2007; Lindley et al., 2008). 

Large numbers of green sturgeon also 

occur within Winchester Bay, Coos Bay, 

and Humboldt Bay (Moyle et al., 1992; 

Rien et al., 2000; Farr et al., 2001; 

Adams et al., 2002; Farr and Rien, 2002, 

2003; Farr and Kern, 2004, 2005; Israel 

and May, 2006; Lindley et al., 2008; 

Pinnix, 2008). Smaller numbers of green 

sturgeon occur in Tomales Bay, CA 

(Moyle et al., 1992), Yaquina Bay 

(Emmett et al., 1991; Rien et al., 2000; 

Farr et al., 2001; Farr and Rien, 2002, 

2003; Farr and Kern, 2004, 2005), and 

Puget Sound, WA (S. Lindley and M. 

Moser, NMFS, 2008, unpublished data). 

Based on limited available data, green 

sturgeon presence is believed to be rare 

in the following bays and estuaries: 

Elkhorn Slough, CA; Noyo Harbor, CA; 

Siuslaw River estuary, OR; Alsea River 

estuary, OR; and Tillamook Bay, OR 

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

Rien et al., 2000; Farr et al., 2001; Farr 

and Rien, 2002; Yoklavich et al., 2002; 

Farr and Rien, 2003; Farr and Kern, 

2004, 2005). Green sturgeon are present 

in the estuaries of the Eel River, 

Klamath/Trinity rivers, and Rogue 

River, but are believed to most likely 

belong to the Northern DPS. This is 

based on the fact that the Eel, Klamath/ 

Trinity, and Rogue rivers are spawning 

rivers for the Northern DPS and that, to 


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date, no tagged Southern DPS subadults 

or adults have been detected in the 

estuaries of the three rivers, although 

Southern DPS fish have been observed 

in coastal marine waters just outside the 

mouth of the Klamath River (S. Lindley, 

NMFS, 2008, pers. comm.). 

The CHRT included all coastal bays 

and estuaries for which there was 

evidence to confirm the presence of 

green sturgeon, noting where there were 

confirmed Southern DPS fish, 

confirmed Northern DPS fish, or 

confirmed green sturgeon of unknown 

DPS. As stated in the previous section, 

based on our definitions for the 

Northern DPS and Southern DPS, any 

green sturgeon observed upstream of the 

head of the tide in freshwater rivers 

north of and including the Eel River 

were assigned to the Northern DPS. 

Thus, areas upstream of the head of the 

tide on these rivers were not included 

as part of the occupied specific areas for 

the Southern DPS. Each specific area 

was defined to extend from the mouth 

of the bay or estuary upstream to the 

head of the tide. The boundary at the 

mouth of each bay or estuary was 

defined by the COLREGS demarcation 

line. COLREGS demarcation lines 

delineate ‘‘those waters upon which 

mariners shall comply with the 

International Regulations for Preventing 

Collisions at Sea, 1972 (72 COLREGS) 

and those waters upon which mariners 

shall comply with the Inland Navigation 

Rules’’ (33 CFR 80.01). Waters inside of 

the 72 COLREGS lines are Inland Rules 

waters and waters outside of the 72 

COLREGS lines are COLREGS waters. 

The draft biological report provides 

additional information for each specific 

area. For a copy of the report, see 

ADDRESSES, our Web site at http:// 

swr.nmfs.noaa.gov, or the Federal 

eRulemaking Web site at http:// 

www.regulations.gov. For additional 

discussion of the special management 

considerations or protection that may be 

needed for the PCEs, please see also the 

description of ‘‘Special management 

considerations or protection’’ below. 

Coastal Marine Waters 

Subadult and adult green sturgeon 

spend most of their time in coastal 

marine and estuarine waters. The best 

available data indicate coastal marine 

waters are important for seasonal 

migrations from southern California to 

Alaska to reach distant foraging and 

aggregation areas. Green sturgeon occur 

primarily within the 110 m depth 

bathymetry (Erickson and Hightower, 

2007). Green sturgeon tagged in the 

Rogue River and tracked in marine 

waters typically occupied the water 

column at 40–70 m depth, but made 

rapid vertical ascents to or near the 

surface, for reasons yet unknown 

(Erickson and Hightower, 2007). Green 

sturgeon use of waters < 110 m depth 

was confirmed by coastal Oregon and 

Washington bottom-trawl fisheries 

records indicating that most reported 

locations of green sturgeon occurred 

inside of the 110-m depth contour from 

1993–2000, despite the fact that most of 

the fishing effort occurred in water 

deeper than 110 m (Erickson and 

Hightower, 2007). 

Based on tagging studies of both 

Southern and Northern DPS fish, green 

sturgeon spend a large part of their time 

in coastal marine waters migrating 

between coastal bays and estuaries, 

including sustained long-distance 

migrations of up to 100 km per day (S. 

Lindley and M. Moser, NMFS, pers. 

comm. cited in BRT, 2005). These 

seasonal long-distance migrations are 

most likely driven by food resources. 

Some tagged individuals were observed 

swimming at slower speeds and 

spending several days within certain 

areas, suggesting that the individuals 

were feeding (S. Lindley and M. Moser, 

NMFS, 2008, pers. comm.). 

Within the geographical area 

occupied (from the California/Mexico 

border to the Bering Sea, Alaska), the 

CHRT divided the coastal marine waters 

into 12 specific areas between estuaries 

or bays confirmed to be occupied by the 

Southern DPS. The presence of green 

sturgeon and Southern DPS fish within 

each area was based on data from 

tagging and tracking studies, records of 

fisheries captures, and NOAA Observer 

Program records. Tagged Southern DPS 

subadults and adults have been detected 

in coastal marine waters from Monterey 

Bay, CA, to Graves Harbor, AK, 

including the Strait of Juan de Fuca 

(Lindley et al., 2008). Green sturgeon 

bycatch data from NOAA’s West Coast 

Groundfish Observer Program (WCGOP) 

support the telemetry results, showing 

green sturgeon occur from Monterey 

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

greatest catch per unit effort in coastal 

waters from Monterey Bay to Humboldt 

Bay, CA (WCGOP, 2008, unpublished 

data). Because green sturgeon were only 

observed in the bottom trawl fishery, 

there was no data on green sturgeon 

bycatch off southeast Alaska, where 

bottom trawl fishing is prohibited. 

Green sturgeon have, however, been 

captured in bottom trawl fisheries along 

the coast off British Columbia. Although 

critical habitat cannot be designated 

within Canadian waters, it is important 

to note that several tagged Southern DPS 

green sturgeon have been detected off 

Brooks Peninsula on the northern tip of 

Vancouver Island, BC (Lindley et al., 

2008.). Patterns of telemetry data 

suggest that Southern DPS fish use 

oversummering grounds in coastal bays 

and estuaries along northern California, 

Oregon, and Washington and 

overwintering grounds between 

Vancouver Island, BC, and southeast 

Alaska (Lindley et al., 2008). 

Based on the tagging data and the 

information described above regarding 

green sturgeon use of coastal bays and 

estuaries in California, Oregon, and 

Washington, the CHRT identified the 

coastal marine waters from Monterey 

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

primary migratory/connectivity corridor 

for subadult and adult Southern DPS 

green sturgeon to migrate to and from 

oversummering habitats and 

overwintering habitats. Coastal marine 

waters off southeast Alaska were not 

considered part of the primary 

migratory/connectivity corridor for 

green sturgeon, but were recognized as 

an important area at the northern extent 

of the overwintering range, based on the 

detection of two tagged Southern DPS 

fish off Graves Harbor, AK, (S. Lindley, 

NMFS, and J. Israel, UC Davis, 2007, 

pers. comm.) and green sturgeon 

bycatch data along the northern coast of 

British Columbia (Lindley et al., 2008). 

For areas northwest of southeast Alaska 

and south of Monterey Bay, CA, data on 

green sturgeon occurrence include the 

2006 capture of two green sturgeon of 

unknown DPS in bottom trawl 

groundfish fisheries off Kodiak Island, 

AK, and in the Bering Sea off Unimak 

Island, AK (J. Ferdinand and D. 

Stevenson, NMFS, 2006, pers. comm.). 

In coastal marine waters south of 

Monterey Bay, a few green sturgeon of 

unknown DPS have been captured off 

Huntington Beach and Newport (Roedel, 

1941), Point Vicente (Norris, 1957), 

Santa Barbara, and San Pedro (R. 

Rasmussen, NMFS, 2006, pers. comm.). 

More detailed information on the 

specific areas within coastal marine 

waters can be found in the draft 

biological report, available at our Web 

site at 

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

eRulemaking Web site at http:// 

www.regulations.gov, or upon request 

(see ADDRESSES). For additional 

discussion of the special management 

considerations or protection that may be 

needed for the PCEs, please see also the 

description of ‘‘Special management 

considerations or protection’’ below. 

Special Management Considerations or 

Protection 

Joint NMFS and USFWS regulations 

at 50 CFR 424.02(j) define ‘‘special 

management considerations or 

protection’’ to mean ‘‘any methods or 


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procedures useful in protecting physical 

and biological features of the 

environment for the conservation of 

listed species.’’ Based on discussions 

with the CHRT and consideration of the 

draft economic report, a number of 

activities were identified that may 

threaten the PCEs such that special 

management considerations or 

protection may be required. Major 

categories of habitat-related activities 

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

(3) dredging and disposal of dredged 

material; (4) in-water construction or 

alterations, including channel 

modifications/diking, sand and gravel 

mining, gravel augmentation, road 

building and maintenance, forestry, 

grazing, agriculture, urbanization, and 

other activities; (5) National Pollutant 

Discharge Elimination System (NPDES) 

permit activities and activities 

generating non-point source pollution; 

(6) power plants; (7) commercial 

shipping; (8) aquaculture; (9) 

desalination plants; (10) proposed 

alternative energy projects; (11) 

liquefied natural gas (LNG) projects; (12) 

bottom trawling; and (13) habitat 

restoration. These activities may have 

an effect on one or more PCE(s) via their 

alteration of one or more of the 

following: Stream hydrology, water 

level and flow, water temperature, 

dissolved oxygen, erosion and sediment 

input/transport, physical habitat 

structure, vegetation, soils, nutrients 

and chemicals, fish passage, and stream/ 

estuarine/marine benthic biota and prey 

resources. The CHRT identified the 

activities occurring within each specific 

area that may necessitate special 

management considerations or 

protection for the PCEs and these are 

described briefly in the following 

paragraphs. These activities are 

documented more fully in the draft 

biological report. 

Table 1 lists the specific areas and the 

river miles or area (square miles) 

covered, the PCEs present, and the 

activities that may affect the PCEs for 

each specific area and necessitate the 

need for special management 

considerations or protection. Several 

activities may affect the PCEs within the 

freshwater rivers, bypasses, and the 

Delta. Within the rivers, dams and 

diversions pose threats to habitat 

features essential for the Southern DPS 

by obstructing migration, alterating 

water flows and temperature, and 

modifying substrate composition within 

the rivers. Pollution from agricultural 

runoff and water returns, as well as from 

other point and non-point sources, 

adversely affects water quality within 

the rivers, bypasses and the Delta. Water 

management practices in the bypasses 

may pose a threat to Southern DPS fish 

residing within or migrating through the 

bypasses. For example, low water levels 

may obstruct passage through the 

bypasses, resulting in stranded fish. 

Within the Delta, activities such as 

dredging, pile driving, water diversion, 

and the discharge of pollutants from 

point and non-point sources can 

adversely affect water quality as well as 

alter the composition and distribution of 

bottom substrates within the Delta. 

Activities were also identified that 

may threaten the PCEs in coastal bays 

and estuaries and may necessitate the 

need for special management 

considerations or protection (Table 1). 

The application of pesticides may 

adversely affect prey resources and 

water quality within the bays and 

estuaries. In Willapa Bay and Grays 

Harbor, WA, the use of carbaryl in 

association with aquaculture operations 

reduces the abundance and availability 

of burrowing ghost shrimp, an 

important prey species for green 

sturgeon (Moser and Lindley, 2007; 

Dumbauld et al., 2008). In the San 

Francisco, San Pablo, and Suisun bays, 

several pesticides have been detected at 

levels exceeding national benchmarks 

for the protection of aquatic life 

(Domagalski et al., 2000). These 

pesticides pose a water quality issue 

and may affect the abundance and 

health of prey items as well as the 

growth and reproductive health of 

Southern DPS green sturgeon through 

bioaccumulation. Other activities of 

concern include those that may disturb 

bottom substrates, adversely affect prey 

resources, or degrade water quality 

through resuspension of contaminated 

sediments (e.g., dredging operations, inwater construction). 

In addition, several activities were 

identified that may affect the PCEs 

within coastal marine areas such that 

the PCEs would require special 

management consideration or protection 

(Table 1). The fact that green sturgeon 

were only captured in the bottom trawl 

fishery (based on the WCGOP bycatch 

data) provides evidence that green 

sturgeon are associated with the benthos 

and thus exposed to activities that 

disturb the bottom. Of particular 

concern are activities that affect prey 

resources. Prey resources likely include 

species similar to those fed on by green 

sturgeon in bays and estuaries (e.g., 

burrowing ghost shrimp, mud shrimp, 

crangonid shrimp, amphipods, isopods, 

Dungeness crab), and these prey 

resources are known to occur within the 

marine specific areas. Activities that can 

affect these prey resources include: 

Commercial shipping and activities 

generating point source pollution 

(subject to National Pollutant Discharge 

Elimination System requirements) and 

non-point source pollution that can 

discharge contaminants and result in 

bioaccumulation of contaminants in 

green sturgeon; disposal of dredged 

materials that can bury prey resources; 

and bottom trawl fisheries that can 

disturb the bottom (but may result in 

beneficial or adverse effects on prey 

resources for green sturgeon). In 

addition, petroleum spills from 

commercial shipping activities and 

proposed tidal and wave energy projects 

may affect water quality or hinder the 

migration of green sturgeon along the 

coast and may necessitate special 

management of the PCEs. 

Table 1. Summary of occupied 

specific areas within freshwater rivers, 

the bypasses, the Sacramento-San 

Joaquin Delta, coastal bays and 

estuaries, and coastal marine areas 

(within 110 m depth). The river miles or 

surface area covered, the PCEs present, 

and activities that may affect the PCEs 

and necessitate the need for special 

management considerations or 

protection within each area are listed. 

PCEs: Wd = depth, Fd = food, Fl = water 

flow, P = passage, S = substrates, Sq = 

sediment quality, Wq = water quality. 

Activities: AG = agriculture, AQ = 

aquaculture, BOT = bottom trawl 

fishing, CON = in-water construction or 

alterations, DAM = dams, DESAL = 

desalination plants, DIV = water 

diversions, DR = dredging and 

deposition of dredged material, EP = 

tidal/wave energy projects, LNG = LNG 

projects, POLL = point and non-point 

source pollution, PP = power plants, 

REST = restoration, SHIP = commercial 

shipping. 

Specific area River miles PCEs present Activities 

Freshwater rivers 

Upper Sacramento River, CA .................. 58.9 Wd, Fd, Fl, P, S, Sq, Wq ........................ CON, DAM, DIV, POLL. 

Lower Sacramento River, CA .................. 182.4 Wd, Fd, Fl, P, S, Sq, Wq ........................ AG, CON, DAM, DIV, DR, POLL. 

Lower Feather River, CA ......................... 72.7 Wd, Fl, P, Wq .......................................... AG, CON, DAM, DIV, POLL. 


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Specific area River miles PCEs present Activities 

Lower Yuba River, CA ............................. 11.5 Wd, Fl, P, Wq .......................................... AG, DAM, DIV, POLL. 

Specific area Area 

(sq miles) PCEs present Activities 

Bypasses and the Delta 

Yolo Bypass, CA ..................................... 112.3 Fd, P, Sq, Wq .......................................... AG. 

Sutter Bypass, CA ................................... 23.5 Fd, P, Sq, Wq .......................................... AG. 

Sacramento-San Joaquin Delta, CA ....... 438.9 Wd, Fd, Fl, P, S, Sq, Wq ........................ CON, DIV, DR, POLL, PP, REST. 

Coastal Bays and Estuaries 

Elkhorn Slough, CA ................................. 1.0 Fd, Sq, P, Wq .......................................... DR, PP. 

Suisun Bay, CA ....................................... 50.8 Wd, Fd, Fl, P, Sq, Wq ............................. CON, DR, REST. 

San Pablo Bay, CA ................................. 127.7 Wd, Fd, P, Sq, Wq .................................. CON, DR, POLL, PP, REST. 

San Francisco Bay, CA ........................... 269.9 Wd, Fd, P, Sq, Wq .................................. CON, DR, EP, POLL, PP, REST. 

Tomales Bay, CA .................................... 11.5 Fd, P, Sq, Wq .......................................... DIV, POLL, REST.

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

Eel R. Estuary, CA .................................. 8.5 Fd, P, Sq, Wq .......................................... CON, POLL. 

Humboldt Bay, CA ................................... 26.6 Fd, P, Sq, Wq .......................................... AQ, POLL. 

Klamath/Trinity R. Estuary, CA ............... 2.5 Fd, P, Sq, Wq .......................................... CON. 

Rogue R. Estuary, OR ............................ 0.6 Fd, P, Sq, Wq .......................................... CON, POLL. 

Coos Bay, OR ......................................... 17.7 Fd, P, Sq, Wq .......................................... CON, LNG, POLL. 

Winchester Bay, OR ................................ 10.8 Fd, P, Sq, Wq .......................................... CON, POLL. 

Siuslaw R. Estuary, OR ........................... 0.4 Fd, P, Sq, Wq .......................................... CON, POLL. 

Alsea R. Estuary, OR .............................. 0.8 Fd, P, Sq, Wq .......................................... CON, DIV, POLL. 

Yaquina Bay, OR ..................................... 6.3 Fd, P, Sq, Wq .......................................... POLL. 

Tillamook Bay, OR .................................. 14.2 Fd, P, Sq, Wq .......................................... CON, POLL. 

Columbia R. Estuary, OR and WA .......... 236.9 Fd, P, Sq, Wq .......................................... CON, DAM, DR, LNG, POLL. 

Willapa Bay, WA ...................................... 134.3 Fd, P, Sq, Wq .......................................... AQ, CON, EP, POLL. 

Grays Harbor, WA ................................... 91.8 Fd, P, Sq, Wq .......................................... AQ, POLL, SHIP. 

Puget Sound, WA .................................... 1,017.8 Fd, P, Sq, Wq .......................................... CON, DR, EP, POLL, SHIP. 

Coastal Marine Waters within 110 meters depth 

CA/Mexico Border to Monterey Bay, CA 2,522.8 Fd, P, Wq ................................................ BOT, CON, DESAL, DR, EP, LNG, 

POLL, PP. 

Monterey Bay, CA, to San Francisco 

Bay, CA.

1,495.9 Fd, P, Wq ................................................ BOT, DESAL, POLL, PP. 

San Francisco Bay, CA, to Humboldt 

Bay, CA.

2,066.7 Fd, P, Wq ................................................ BOT, EP, POLL. 

Humboldt Bay, CA, to Coos Bay, OR ..... 1,911.6 Fd, P, Wq ................................................ BOT, DR, EP, POLL. 

Coos Bay, OR, to Winchester Bay, OR .. 186.5 Fd, P, Wq ................................................ BOT, EP. 

Winchester Bay, OR, to Columbia R. Estuary.2,686.3 Fd, P, Wq ................................................ BOT, EP, POLL. 

Columbia R. Estuary to Willapa Bay, WA 477.1 Fd, P, Wq ................................................ BOT. 

Willapa Bay, WA, to Grays Harbor, WA 403.0 Fd, P, Wq ................................................ BOT. 

Grays Harbor, WA, to WA/Canada Border.1,900.9 Fd, P, Wq ................................................ BOT, EP, POLL. 

Strait of Juan De Fuca, WA .................... 798.8 Fd, P, Wq ................................................ BOT, DR, POLL. 

Canada/AK Border to Yakutat Bay, AK .. 19,567.9 Fd, P, Wq ................................................ EP, POLL, SHIP. 

Coastal Alaskan Waters Northwest of 

Yakutat Bay, AK, including the Bering 

Sea to the Bering Strait.

374,826.4 Fd, P, Wq ................................................ BOT, EP, LNG, SHIP. 

Unoccupied Areas 

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

authorizes the designation of ‘‘specific 

areas outside the geographical area 

occupied at the time [the species] is 

listed’’ if these areas are essential for the 

conservation of the species. Regulations 

at 50 CFR 424.12(e) emphasize that the 

agency ‘‘shall designate as critical 

habitat areas outside the geographical 

area presently occupied by a species 

only when a designation limited to its 

present range would be inadequate to 

ensure the conservation of the species.’’

The CHRT considered that a critical 

habitat designation limited to presently 

occupied areas may not be sufficient for 

conservation, because such a 

designation would not address one of 

the major threats to the population 

identified by the Status Review Team—

the concentration of spawning into one 

spawning river (i.e., the Sacramento 

River), and, as a consequence, the risk 

of extirpation due to a catastrophic 

event. 

The CHRT identified seven 

unoccupied areas in the Central Valley, 

California that may provide additional 

spawning habitat for the Southern DPS 

of green sturgeon and considered 

whether these areas are essential for the 

conservation of the Southern DPS. 

These seven areas include areas behind 

dams that are currently inaccessible to 

green sturgeon and areas below dams 

that are not currently occupied by green 

sturgeon. The areas include: (1) Reaches 

upstream of Oroville Dam on the 

Feather River; (2) reaches upstream of 

Daguerre Dam on the Yuba River; (3) 

areas on the Pit River upstream of 

Keswick and Shasta dams; (4) areas on 

the McCloud River upstream of Keswick 


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and Shasta dams; (5) areas on the upper 

Sacramento River upstream of Keswick 

and Shasta dams; (6) reaches on the 

American River; and (7) reaches on the 

San Joaquin River. Of these seven areas, 

the CHRT identified reaches upstream 

of Daguerre Dam on the Yuba River as 

the most important for conserving the 

species because: (1) The current habitat 

conditions are likely to support 

spawning; (2) adult Southern DPS fish 

currently occupy habitat just below the 

Daguerre Dam; (3) although the Yuba 

River is part of the Sacramento River 

drainage basin, it is separated spatially 

from the current, single spawning 

population on the upper Sacramento 

River such that if a catastrophic 

mortality event were to occur in the 

upper Sacramento River, a Yuba River 

population could help safeguard the 

species from a mortality event that 

would likely have significant adverse 

species-level effects; and (4) there is a 

greater potential for removal of the 

Daguerre Dam, or restoration of fish 

passage at the dam, in the near future 

than for any of the other dams located 

within the unoccupied areas identified 

by the CHRT. The CHRT also 

considered reaches on the San Joaquin 

River, from the South Delta to the 

Goodwin Dam on the Stanislaus River, 

as important for conserving the 

Southern DPS for some of the same 

reasons mentioned above, especially 

because the San Joaquin and Stanislaus 

rivers are part of an entirely different 

drainage basin than the current single 

spawning area in the upper Sacramento 

River. However, the CHRT was less 

certain regarding the prospects for 

reestablishing a spawning population in 

this area, because current conditions on 

the mainstem San Joaquin River are 

poor and it is uncertain whether 

conditions favorable for green sturgeon 

presence and spawning could be 

restored in this area in the near future. 

The CHRT was unable to determine 

that these seven unoccupied areas 

which may be essential, actually are 

essential to the conservation of the 

Southern DPS at this time. Thus, these 

seven unoccupied areas are not 

proposed for designation as critical 

habitat. The CHRT believed it likely that 

at least one additional spawning area is 

needed to support the conservation of 

the Southern DPS, but because of 

insufficient information regarding: (1) 

The historical use of the currently 

unoccupied areas by green sturgeon; 

and (2) the likelihood that the habitats 

within these unoccupied areas will be 

restored to conditions that would 

support green sturgeon presence and 

spawning (e.g., restoring fish passage 

and sufficient water flows and water 

temperatures) they were unable to 

determine which of these unoccupied 

areas would be essential for conserving 

the species. The development of a 

recovery plan could help address the 

latter question by establishing recovery 

actions (e.g., removal of barriers on the 

Yuba River) and recovery criteria (e.g., 

establishing at least two additional 

spawning populations for the Southern 

DPS in rivers south of the Eel River) in 

order to achieve downlisting and 

eventual delisting of the Southern DPS. 

NMFS encourages actions that would 

protect, conserve, and/or enhance 

habitat conditions for the Southern DPS 

(e.g., habitat restoration, removal of 

dams, and establishment of fish passage) 

within these areas. We request 

additional information from the public 

regarding these presently unoccupied 

areas and their historical, current, and 

potential use by green sturgeon. 

Additional information would inform 

our consideration of these areas for the 

final designation as well as future 

recovery planning for the Southern DPS. 

Military Lands 

Under the Sikes Act of 1997 (Sikes 

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

installation that includes land and water 

suitable for the conservation and 

management of natural resources’’ is 

required to develop and implement an 

integrated natural resources 

management plan (INRMP). An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found there. Each INRMP includes: an 

assessment of the ecological needs on 

the military installation, including the 

need to provide for the conservation of 

listed species; a statement of goals and 

priorities; a detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and a monitoring and adaptive 

management plan. Each INRMP must, to 

the extent appropriate and applicable, 

provide for fish and wildlife 

management, fish and wildlife habitat 

enhancement or modification, wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife and enforcement of 

applicable natural resource laws. 

The ESA was amended by the 

National Defense Authorization Act for 

Fiscal Year 2004 (Pub. L.108–136) to 

address the designation of military 

lands as critical habitat. ESA section 

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

not designate as critical habitat any 

lands or other geographical areas owned 

or controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

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

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’

We contacted the Department of 

Defense (DOD) and requested 

information on all INRMPs for DOD 

facilities that overlap with the specific 

areas considered for designation as 

critical habitat and that might provide 

benefits to green sturgeon. The INRMPs 

for one facility in California (Camp San 

Luis Obispo) and for nine facilities in 

Puget Sound, WA, were provided to us. 

Of these, the following six facilities with 

INRMPs were determined to overlap 

with the specific areas under 

consideration for critical habitat 

designation (all located in Puget Sound, 

WA): (1) Bremerton Naval Hospital; (2) 

Naval Air Station, Everett; (3) Naval 

Magazine Indian Island; (4) Naval Fuel 

Depot, Manchester; (5) Naval Undersea 

Warfare Center, Keyport; and (6) Naval 

Air Station, Whidbey Island. We 

reviewed the INRMPs for measures that 

would benefit green sturgeon. The 

INRMPs for four of the facilities 

(Bremerton Naval Hospital, NAS 

Everett, Naval Fuel Depot (Manchester), 

and Naval Magazine (Indian Island)) 

contain measures for listed salmon and 

bull trout that provide benefits for green 

sturgeon. The INRMPs for the two 

remaining facilities (NAS Whidbey 

Island and NUWC Keyport) do not 

contain specific requirements for listed 

salmon or bull trout, but also include 

measures that benefit fish species, 

including green sturgeon. Examples of 

the types of benefits include measures 

to control erosion, protect riparian 

zones and wetlands, minimize 

stormwater and construction impacts, 

and reduce contaminants. Based on 

these benefits provided for green 

sturgeon under the INRMPs, we 

determined that the areas within these 

six DOD facilities in Puget Sound, WA, 

were not eligible for designation as 

critical habitat. 

Application of ESA Section 4(b)(2) 

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

Secretary to consider the economic, 

national security, and any other relevant 

impacts of designating any particular 

area as critical habitat. Any particular 

area may be excluded from critical 

habitat if the Secretary determines that 

the benefits of excluding the area 

outweigh the benefits of designating the 

area. The Secretary may not exclude a 

particular area from designation if 

exclusion will result in the extinction of 

the species. Because the authority to 


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exclude is discretionary, exclusion is 

not required for any areas. In this 

proposed designation, the Secretary has 

applied his statutory discretion to 

exclude 13 occupied areas from critical 

habitat where the benefits of exclusion 

outweigh the benefits of designation. 

The first step in conducting the ESA 

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

‘‘particular areas’’ to be analyzed. Where 

we considered economic impacts and 

weighed the economic benefits of 

exclusion against the conservation 

benefits of designation, we used the 

same biologically-based ‘‘specific areas’’

we identified in the previous sections 

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

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

lower Sacramento River, the Delta, etc.). 

Delineating the ‘‘particular areas’’ as the 

same units as the ‘‘specific areas’’

allowed us to most effectively consider 

the conservation value of the different 

areas when balancing conservation 

benefits of designation against economic 

benefits of exclusion. At this time, we 

have not identified any national security 

or other relevant impacts of designation; 

therefore, we did not delineate any 

particular areas on the basis of these 

impacts. 

The next step in the ESA section 

4(b)(2) analysis involves identification 

of the impacts of designation: the 

benefits of designation and the benefits 

of exclusion, and then a more in-depth 

discussion of each. We then weigh the 

benefits of designation against the 

benefits of exclusion, identify areas 

eligible for exclusion where the benefits 

of exclusion outweigh the benefits of 

designation, and determine which areas 

are appropriate to propose for exclusion. 

These steps and the resulting list of 

areas excluded from designation are 

described in detail in the sections 

below. 

Impacts of Designation 

The primary impact of a critical 

habitat designation stems from the 

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

ESA that Federal agencies insure their 

actions are not likely to result in the 

destruction or adverse modification of 

critical habitat. Determining this impact 

is complicated by the fact that section 

7(a)(2) contains the overlapping 

requirement that Federal agencies must 

also ensure their actions are not likely 

to jeopardize the species’ continued 

existence. One incremental impact of 

designation is the extent to which 

Federal agencies modify their actions to 

insure their actions are not likely to 

adversely modify the critical habitat of 

the species, beyond any modifications 

they would make because of the listing 

and the jeopardy requirement. When a 

modification would be required due to 

impacts to both the species and critical 

habitat, the impact of the designation 

may be co-extensive with the ESA 

listing of the species. Additional 

impacts of designation include state and 

local protections that may be triggered 

as a result of the designation and the 

benefits from educating the public about 

the importance of each area for species 

conservation. The benefits of 

designation were evaluated by 

considering the conservation value of 

each occupied specific area to the 

Southern DPS. In the ‘‘Benefits of 

Designation’’ section below, we discuss 

how the conservation values of the 

specific areas were assessed. 

In determining the impacts of 

designation, we predicted the 

incremental change in Federal agency 

actions as a result of the critical habitat 

designation and the adverse 

modification prohibition, beyond the 

changes predicted to occur as a result of 

listing and the jeopardy provision. In 

recent critical habitat designations for 

salmon and steelhead and for Southern 

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

considered in accordance with a Tenth 

Circuit Court decision (New Mexico 

Cattle Growers Association v. U.S. Fish 

and Wildlife Service, 248 F.3d 1277 

(10th Cir. 2001)) (NMCA). The ‘‘coextensive’’ impact of designation 

considers the predicted change in the 

Federal agency action resulting from the 

critical habitat designation and the 

adverse modification prohibition 

(whereby the action’s effect on the PCEs 

and the value of the habitat is analyzed), 

even if the same change would result 

from application of the listing and the 

jeopardy provision (whereby the 

action’s effect on the species itself and 

individual members of the species is 

analyzed). Shortly after the NMCA 

decision, however, the Court of Appeals 

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

Fish and Wildlife Service, 243 F.3d 434 

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

Court of Appeals for the Ninth Circuit 

(Gifford Pinchot Task Force v. FWS, 378 

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

Pinchot) invalidated our regulatory 

definition of ‘‘adverse modification’’ of 

critical habitat. Following that decision, 

a District Court in Washington, D.C. 

issued a decision involving the 

USFWS’s critical habitat designation for 

the piping plover (Cape Hatteras Access 

Preservation Alliance v. Norton, 344 F. 

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

Hatteras). In that decision, the Court 

reasoned that the impact of a regulation 

should be based on a comparison of the 

world with and without the action, and 

that the effects of listing and the 

jeopardy provision should not be 

considered as part of the impacts of a 

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

for a critical habitat designation. 

Consistent with the Cape Hatteras 

decision, we estimated and analyzed the 

incremental impacts of designation, 

beyond the impacts that would result 

from the listing and jeopardy provision. 

Our methods for estimating the impacts 

of designation for economic impacts are 

summarized in the section below titled 

‘‘Determining the Benefits of Excluding 

Particular Areas.’’ Because section 

4(b)(2) requires a balancing of 

competing considerations, we have 

concluded that we must uniformly 

consider impacts and benefits. Though 

we do not propose exclusions based on 

national security impacts or other 

relevant impacts, we would also focus 

on incremental impacts in such an 

analysis. We recognize that excluding 

an area from designation will not likely 

avoid all of the impacts because the 

jeopardy provision under section 7 still 

applies. Similarly, much of the section 

7 benefit would still apply because the 

jeopardy provision still applies. 

A draft economic report describes in 

more detail the types of activities that 

may be affected by the designation, the 

potential range of changes we might 

seek in those actions, and the estimated 

economic impacts that might result from 

such changes. A draft biological report 

describes in detail the CHRT’s 

evaluation of the conservation value of 

each specific area and reports the final 

conservation value ratings. The draft 

ESA 4(b)(2) report describes the 

weighing of the benefits of designation 

against the benefits of exclusion for each 

area. We solicit comments on all of 

these reports, available on the NMFS 

Southwest Region Web site at http:// 

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

E-Rulemaking Web site at http:// 

www.regulations.gov, or upon request 

(see ADDRESSES). 

Benefits of Designation 

The primary benefit of designation is 

the protection afforded under section 7 

of the ESA, requiring all Federal 

agencies to insure their actions are not 

likely to destroy or adversely modify 

designated critical habitat. This is in 

addition to the requirement that all 

Federal agencies ensure their actions are 

not likely to jeopardize the continued 

existence of the species. In addition, the 

designation may provide education and 

outreach benefits by informing the 

public about areas and features 

important to species conservation. By 

delineating areas of high conservation 

value, the designation may help focus 


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and contribute to conservation efforts 

for green sturgeon and their habitats. 

These benefits are not directly 

comparable to the costs of designation 

for purposes of conducting the section 

4(b)(2) analysis described below. 

Ideally, the benefits should be 

monetized. With sufficient information, 

it may be possible to monetize the 

benefits of a critical habitat designation 

by first quantifying the benefits 

expected from an ESA section 7 

consultation and translating that into 

dollars. We are not aware, however, of 

any available data that would support 

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

estimates of the monetary value 

associated with conserving the PCEs 

within areas designated as critical 

habitat, or with education and outreach 

benefits). As an alternative approach, 

we used the CHRT’s conservation value 

ratings to represent the qualitative 

conservation benefits of designation for 

each of the particular areas identified as 

critical habitat for the Southern DPS 

(see the section titled Methods for 

Assessment of Specific Areas). These 

conservation value ratings represent the 

estimated incremental benefit of 

designating critical habitat for the 

species. In evaluating the conservation 

value of each specific area, the CHRT 

focused on the habitat features present 

in, habitat functions provided by each 

area, and the importance of protecting 

the habitat for the overall conservation 

of the species. The draft biological 

report sets forth detailed information on 

the qualitative conservation benefits of 

the specific areas proposed for 

designation, which is summarized 

briefly in the following paragraphs. 

Methods for Assessment of Specific 

Areas 

After identifying the PCEs, the 

geographical area occupied, and the 

specific areas, the CHRT scored and 

rated the relative conservation value of 

each occupied specific area. The 

conservation value ratings provided an 

assessment of the relative importance of 

each specific area to the conservation of 

the Southern DPS. Areas rated as 

‘‘High’’ were deemed to have a high 

likelihood of promoting the 

conservation of the Southern DPS. Areas 

rated as ‘‘Medium’’ or ‘‘Low’’ were 

deemed to have a moderate or low 

likelihood of promoting the 

conservation of the Southern DPS, 

respectively. The CHRT considered 

several factors in assigning the 

conservation value ratings, including 

the PCEs present, the condition of the 

PCEs, the life stages and habitat 

functions supported, and the historical, 

present, and potential future use of the 

area by green sturgeon. These factors 

were scored by the CHRT and summed 

to generate a total score for each specific 

area, which was considered in the 

CHRT’s evaluation and assignment of 

the final conservation value ratings. 

The CHRT also considered the 

importance of connectivity among 

habitats, recognizing that green sturgeon 

must migrate along the coast to access 

important oversummering and 

overwintering habitats in coastal bays 

and estuaries. Specific areas in coastal 

marine waters may provide low to 

medium value habitat for green sturgeon 

based on the PCEs present. However, 

such areas may contain high-value 

connectivity corridors for green 

sturgeon migrating out of the San 

Francisco Bay system to bays and 

estuaries in California, Oregon, 

Washington, and Canada, without 

which green sturgeon would not be able 

to access high-value habitats. The CHRT 

recognized that even within an area of 

Low to Medium conservation value, the 

presence of a migratory/connectivity 

corridor that provides passage to high 

value areas would warrant increasing 

the overall conservation value of the 

area to a High. To account for this, a 

separate conservation value rating was 

assigned to areas containing a 

migratory/connectivity corridor, equal 

to the rating of the highest-rated area for 

which it served as a migratory/ 

connectivity corridor. 

Members of the CHRT were then 

asked to re-examine the conservation 

value ratings for the specific areas 

where the presence of Southern DPS 

green sturgeon is likely (based on the 

presence of Northern DPS fish or green 

sturgeon of unknown origin), but not 

confirmed. These areas include the 

coastal marine waters within 110 m 

depth from the California/Mexico 

border to Monterey Bay, CA, and from 

Yakutat Bay, AK, to the Bering Strait 

(including the Bering Sea), as well as 

the following coastal bays and estuaries: 

Elkhorn Slough, CA; Tomales Bay, CA; 

Noyo Harbor, CA; Eel River estuary, CA; 

Klamath/Trinity River estuary, CA; 

Rogue River estuary, OR; Siuslaw River 

estuary, OR; Alsea River estuary, OR; 

Yaquina Bay, OR; and Tillamook Bay, 

OR. While these areas are considered 

occupied for the reasons provided 

above, the CHRT recognized that a lack 

of documented evidence for Southern 

DPS presence within these areas 

(perhaps because of the lack of 

monitoring or sampling effort within 

these areas) is indicative of a high 

degree of uncertainty as to the extent to 

which Southern DPS fish use these 

areas. The low occurrence of green 

sturgeon within these areas is also 

indicated by few observations of the 

species in these areas, both historically 

and recently. The CHRT scored all of 

these areas, except for Tomales Bay, CA, 

much lower than other areas, reflecting 

the CHRT’s assessment that these areas 

contribute relatively little to the 

conservation of the species. For the bays 

and estuaries, this was based on the 

limited area and depth to support green 

sturgeon migration and feeding, as well 

as the low use of these areas by green 

sturgeon. Tomales Bay, CA, was given a 

higher score and rated as ‘‘Medium,’’

because it is a large, deep embayment 

providing good habitat for feeding by 

green sturgeon and is likely the first 

major bay to be encountered by 

subadults making their first migration 

into marine waters. As described above 

(see ‘‘Bays and Estuaries’’), green 

sturgeon are more commonly observed 

in the Eel River estuary, Klamath/ 

Trinity River estuary, and Rogue River 

estuary, but are believed to primarily 

belong to the Northern DPS. Again, 

there is great uncertainty as to the extent 

of use of these estuaries by Southern 

DPS fish. For the coastal marine waters, 

the two areas are outside of the 

migratory/connectivity corridor 

identified by the CHRT and also lack 

confirmed Southern DPS presence. 

Although the CHRT did not include the 

area in southeast Alaska up to Yakutat 

Bay, AK, as part of the primary 

migratory corridor, this area was rated 

as ‘‘Medium’’ because it represents the 

northern extent of the area containing 

important overwintering grounds for 

Southern DPS green sturgeon (Lindley 

et al., 2008; S. Lindley and M. Moser, 

NMFS, 2008, unpublished data). Based 

on this information, the CHRT agreed 

that the conservation value ratings 

should be reduced by one rating for 

these specific areas where the presence 

of the Southern DPS is likely, but not 

confirmed. This necessitated the 

creation of a fourth conservation value 

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

areas that initially received a ‘‘Low’’

rating were assigned a final 

conservation value rating of ‘‘Ultralow,’’ whereas those areas that initially 

received a ‘‘Medium’’ rating were 

assigned a final conservation value 

rating of ‘‘Low.’’ None of the specific 

areas where the presence of Southern 

DPS fish was likely but not confirmed 

had received a rating of ‘‘High.’’

The final conservation ratings and the 

justifications for each specific area are 

summarized in the draft biological 

report (available via our Web site at 

http://swr.nmfs.noaa.gov, via the 

Federal eRulemaking Web site at 

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


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request—see ADDRESSES). The CHRT 

recognized that even within a rating 

category, variation exists. For example, 

freshwater riverine areas rated as 

‘‘High’’ may be of greater conservation 

value to the species than coastal marine 

areas with the same rating. This 

variation was captured in the comments 

provided by the CHRT members for 

each specific area. The draft biological 

report describes in detail the evaluation 

process used by the CHRT to assess the 

specific areas, as well as the biological 

information supporting the CHRT’s 

assessment. 

Determining the Benefits of Excluding 

Particular Areas 

To determine the benefits of 

excluding particular areas from 

designation, we considered the Federal 

activities that may be subject to an ESA 

section 7 consultation and the range of 

potential changes that may be required 

for each of these activities under the 

adverse modification provision, 

regardless of whether those changes 

may also be required under the jeopardy 

provision. These consultation and 

project modification costs represent the 

economic benefits of excluding each 

particular area (that is, the economic 

costs that would be avoided if an area 

were excluded from the designation). 

The CHRT identified and examined 

the types of Federal activities that occur 

within each of the specific areas and 

that may affect Southern DPS green 

sturgeon and the critical habitat (also 

see the section on ‘‘Special Management 

Considerations or Protection’’). Because 

the Southern DPS was recently listed 

under the ESA in 2006, we lack an 

extensive consultation history. Thus, 

the CHRT relied on NMFS’ experience 

in conducting ESA section 7 

consultations and their best professional 

judgment to identify the types of 

Federal activities that might trigger a 

section 7 consultation. These include: 

(1) The installation and operation of 

dams; (2) the installation and operation 

of water diversions; (3) in-water 

construction or alterations; (4) dredging 

operations and disposal of dredge 

material; (5) NPDES permit activities 

and activities generating non-point 

source pollution, such as agricultural 

runoff; (6) power plant operations; (7) 

operations of liquefied natural gas 

(LNG) projects; (8) discharges from 

desalination plants; (9) commercial 

shipping (e.g., discharges, oil spills); 

(10) aquaculture; (11) tidal or wave 

energy projects; (12) bottom trawl 

fisheries; and (13) habitat restoration. 

While we relied on the best, currently 

available information to predict the 

number of these types of activities 

within the areas considered for 

designation as critical habitat, we 

recognize that some of these activities, 

in particular tidal or wave energy 

projects, are relatively new and 

anticipated to increase in number in the 

future. Relevant information received 

during the comment period on the 

number and nature of such projects 

expected to occur within the proposed 

critical habitat will inform any final 

designation of critical habitat. In 

addition, relevant information 

concerning the potential impacts to 

activities, particularly LNG and 

hydropower activities, will also inform 

any final designation, including our 

determinations of whether to exclude 

any particular area from the designation. 

We then considered the range of 

modifications we might seek in these 

activities to avoid destroying or 

adversely modifying critical habitat of 

the Southern DPS. Because of the 

limited consultation history, we relied 

on information from consultations 

conducted for salmon and steelhead, 

comments received during green 

sturgeon public scoping workshops 

conducted for the development of 

protective regulations, and information 

from green sturgeon and section 7 

biologists to determine the types of 

activities and potential range of 

changes. While we recognize that 

differences between the biology of 

Southern DPS green sturgeon and listed 

salmonids exist, there is also overlap in 

the types of habitat they use, their life 

history strategies and their behavior. 

Given the limited amount of direct 

information regarding the types of 

modifications we might seek to avoid 

adverse modification of Southern DPS 

critical habitat, we relied on the best 

information available for analog species 

(i.e., the listed salmonids) to guide our 

decision making. Additional 

information on differences in the habitat 

needs, life history strategies, and 

behavior of these species may allow us 

to refine our analysis. For each potential 

impact, we tried to provide information 

on whether the impact is more closely 

associated with adverse modification or 

with jeopardy, to distinguish the 

impacts of applying the jeopardy 

provision versus the adverse 

modification provision. 

We were able to monetize estimates of 

the economic impacts resulting from a 

critical habitat designation; however, 

because of the limited consultation 

history for green sturgeon and 

uncertainty about specific management 

actions likely to be required under a 

consultation, there was a great degree of 

uncertainty in the cost estimates for 

some specific areas. Several factors were 

considered in developing the estimated 

economic impacts, including the level 

of economic activity within each area, 

the level of baseline protection afforded 

to green sturgeon by existing regulations 

for each economic activity within each 

area, and the estimated economic 

impact (in dollars) associated with each 

activity type. The baseline included the 

protections afforded to green sturgeon 

by the listing and jeopardy provision, as 

well as protections provided for salmon 

and steelhead and their critical habitat 

including existing laws, regulations, and 

initiatives. Estimates of the economic 

costs were based on project 

modifications that might be required 

during consultation to avoid the 

destruction or adverse modification of 

critical habitat (see draft Economic 

Analysis Report for additional details). 

Thus, the estimated economic impacts 

represent the incremental impact of the 

designation. The draft economic 

analysis sets forth detailed information 

on the economic impacts of designating 

particular areas as critical habitat, as 

well as consultation costs anticipated as 

a result of this proposed designation. 

Our determination of these 

incremental economic impacts was 

based on the best available information. 

We solicit comment on the incremental 

values assigned in the economic report 

and will consider any relevant 

information received, including relevant 

differences in the biology of listed 

salmonids and green sturgeon, in 

developing the economic analysis 

supporting any final designation. 

Exclusions Based on Economic Impacts 

A draft ESA 4(b)(2) report describes in 

detail our approach to weighing the 

benefit of designation against the 

economic benefit of exclusion. The 

results of our analysis contained in this 

report are summarized below. 

The benefits associated with species 

conservation are not directly 

comparable to the economic benefit, 

benefit to national security, or other 

relevant benefit that would result if an 

area were excluded from designation. 

We had sufficient information to 

monetize the economic benefits of 

excluding an area, but were not able to 

monetize the conservation benefits of 

designating an area. Thus, for each area 

we compared the qualitative 

conservation value against the monetary 

economic impact estimate to determine 

if the cost estimate exceeded a threshold 

dollar amount. Areas where the 

economic benefit of exclusion 

outweighed the benefit of designation 

were considered for exclusion from 

designation as critical habitat. 


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We identified areas eligible for 

exclusion based on four decision rules: 

(1) All areas with a conservation value 

rating of ‘‘High’’ were not eligible for 

exclusion regardless of the level of 

economic impact, because of the 

threatened status of the Southern DPS of 

green sturgeon; (2) areas with a 

conservation value rating of ‘‘Medium’’

were eligible for exclusion if the 

estimated economic impact exceeded 

$100,000; (3) areas with a conservation 

value rating of ‘‘Low’’ were eligible for 

exclusion if the estimated economic 

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

with a conservation value rating of 

‘‘Ultra-low’’ were eligible for exclusion 

if the estimated economic impact 

exceeded $0 (see draft 4(b)(2) Report for 

additional details). These dollar 

thresholds do not represent an objective 

judgment that Medium-value areas are 

worth no more than $100,000, Lowvalue areas are worth no more than 

$10,000, or Ultra-Low value areas are 

worth $0. 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 the 

economic impact associated with a 

specific area would outweigh the 

conservation benefits of designating that 

area. These dollar thresholds and 

decision rules provided a relatively 

simple process to identify, in a limited 

amount of time, specific areas 

warranting consideration for exclusion. 

Based on this analysis, we identified 

15 occupied areas as eligible for 

exclusion: (1) Elkhorn Slough, CA; (2) 

the lower Feather River, CA; (3) 

Tomales Bay, CA; (4) Noyo Harbor, CA; 

(5) Eel River estuary, CA; (6) Klamath/ 

Trinity River estuary, CA; (7) Rogue 

River estuary, OR; (8) Coos Bay, OR; (9) 

Siuslaw River estuary, OR; (10) Alsea 

River estuary, OR; (11) Tillamook Bay, 

OR; (12) Puget Sound, WA; (13) coastal 

marine waters within 110 m depth from 

the CA-Mexico border to Monterey Bay, 

CA; (14) coastal marine waters within 

110 m depth from the Alaska/Canada 

border to Yakutat Bay, AK; and (15) 

coastal marine waters within 110 m 

depth northwest of Yakutat Bay, AK, to 

the Bering Strait (including the Bering 

Sea). 

We asked the CHRT whether 

excluding any of the areas eligible for 

exclusion would significantly impede 

conservation of the Southern DPS or 

result in extinction of the species. The 

CHRT considered these questions in the 

context of all of the areas eligible for 

exclusion, as well as the information 

they had developed in determining the 

conservation value ratings. 

The CHRT determined, and we 

concur, that exclusion of the following 

11 areas eligible for exclusion would not 

significantly impede conservation or 

result in extinction of the species: (1) 

Elkhorn Slough, CA; (2) Tomales Bay, 

CA; (3) Noyo Harbor, CA; (4) Eel River 

estuary, CA; (5) Klamath/Trinity River 

estuary, CA; (6) Rogue River estuary, 

OR; (7) Siuslaw River estuary, OR; (8) 

Alsea River estuary, OR; (9) Tillamook 

Bay, OR; (10) coastal marine waters 

within 110 m depth from the California/ 

Mexico border to Monterey Bay, CA; 

and (11) coastal marine waters within 

110 m depth northwest of Yakutat Bay, 

AK, to the Bering Strait (including the 

Bering Sea). The CHRT based their 

determination on the fact that each of 

these 11 areas was assigned a Low or 

Ultra-low conservation value and 

Southern DPS fish have not been 

documented to use these areas 

extensively. The CHRT discussed the 

fact that the bays and estuaries eligible 

for exclusion listed above may not be 

used often by the Southern DPS 

because: (1) They are relatively small 

systems compared to other bays and 

estuaries that are used extensively and 

consequently received higher 

conservation ratings; and (2) Southern 

DPS fish do not appear to use Northern 

DPS spawning systems extensively. The 

CHRT discussed the fact that few green 

sturgeon (of unknown DPS) have been 

observed in coastal marine waters 

within 110 m depth from the California/ 

Mexico border to Monterey Bay, CA; 

and northwest of Yakutat Bay, AK, to 

the Bering Strait (including the Bering 

Sea). For these reasons, the CHRT 

concluded that excluding the bays, 

estuaries and coastal marine areas 

mentioned above from the designation 

would not significantly impede 

conservation of the Southern DPS nor 

result in extinction of the species. Thus, 

we propose to exclude these 11 areas 

from the critical habitat designation for 

the Southern DPS. We recognize that the 

lack of documented evidence for 

Southern DPS presence in these areas 

may be because these areas are not 

adequately monitored for green 

sturgeon. We would encourage directed 

surveys to be conducted in these areas. 

The CHRT also reevaluated the four 

areas of medium conservation value that 

were eligible for exclusion (lower 

Feather River, CA; Coos Bay, OR; Puget 

Sound, WA; and coastal marine waters 

within 110 m depth from the Alaska/ 

Canada border to Yakutat Bay, AK) to 

determine whether excluding them 

would significantly impede 

conservation of the Southern DPS or 

result in extinction of the species. The 

CHRT determined that exclusion of 

Puget Sound would not significantly 

impede conservation of the Southern 

DPS. Observations of green sturgeon in 

Puget Sound are much less common 

compared to the other estuaries in 

Washington. Although two confirmed 

Southern DPS fish were detected there 

in 2006, the extent to which Southern 

DPS green sturgeon use Puget Sound 

remains uncertain. Despite the fact that 

Puget Sound has a long history of 

commercial and recreational fishing and 

fishery-independent monitoring of other 

species that use habitats similar to those 

of green sturgeon, very few green 

sturgeon have been observed there. In 

addition, Puget Sound does not appear 

to be part of the coastal migratory 

corridor that Southern DPS fish use to 

reach overwintering grounds north of 

Vancouver Island (S. Lindley and M. 

Moser, NMFS, 2008, pers. comm.), thus 

corroborating the assertion that 

Southern DPS do not use Puget Sound 

extensively. The economic cost of 

designating this area was well above the 

$100 K threshold because of the large 

number of activities affecting sediment 

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

require special management if critical 

habitat were to be designated. Thus, we 

propose to exclude Puget Sound as 

critical habitat for the Southern DPS, 

because the benefits of designation are 

outweighed by the benefits of exclusion, 

and because the exclusion of this area 

will not result in the extinction of the 

species. 

The CHRT unanimously agreed that 

exclusion of the lower Feather River 

would significantly impede 

conservation of the Southern DPS. The 

CHRT identified the lower Feather River 

as an important area for the 

conservation of the Southern DPS, 

because it has been consistently 

occupied by the species and most likely 

contains spawning habitat for the 

Southern DPS, potentially providing a 

spawning river for the Southern DPS in 

addition to the Sacramento River. The 

CHRT had assigned the lower Feather 

River a Medium conservation value, but 


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noted that future improvements to 

habitat conditions (e.g., improved 

passage, restoration of water flow) are 

both logistically and financially feasible 

and if they were carried out, would raise 

the conservation value to a High. We 

propose to designate the lower Feather 

River as critical habitat for the Southern 

DPS to protect the high conservation 

potential of this area and reduce 

extinction risk. We solicit additional 

data and comments from the public 

regarding designation of the Lower 

Feather River, particularly information 

regarding the economic costs associated 

with activities that may be affected by 

a critical habitat designation and on the 

conservation benefits to green sturgeon 

provided by this area. 

The CHRT also determined that 

exclusion of Coos Bay would 

significantly impede the conservation of 

the species. The CHRT identified Coos 

Bay as an important area for the 

Southern DPS because it is the largest 

and deepest estuary along the Oregon 

coast presently occupied by green 

sturgeon, has a large mixing zone, 

provides a protected area for green 

sturgeon aggregation and feeding, and is 

an important ‘‘stepping-stone’’ estuary 

between San Francisco Bay and the 

lower Columbia River estuary. There is 

a great degree of uncertainty regarding 

the economic costs associated with a 

designation in this area. The estimated 

costs ranged from $19,000 to $16 

million, spanning the threshold value 

over which an area was considered 

eligible for exclusion ($100,000 for areas 

with a Medium conservation value). 

This uncertainty was driven largely by 

the possible placement of one LNG 

terminal inside the bay, a limited 

understanding of how LNG projects 

would affect the PCEs, and uncertainty 

regarding how LNG activities might be 

altered to avoid adverse modification of 

green sturgeon critical habitat. Because 

there is great uncertainty regarding the 

LNG project at this time, we considered 

the lower economic impact estimate 

($19,000) in developing this proposed 

rule. Based on this information, we 

propose to designate Coos Bay as critical 

habitat for the Southern DPS, because 

the conservation value of the area 

outweighs what we consider to be the 

more realistic economic cost of 

designation (i.e., approximately 

$19,000). At this time, we propose that 

designating critical habitat in Coos Bay 

will provide conservation value to the 

species and reduce extinction risk. 

However, we acknowledge that $19,000 

is likely a low estimate of the impact 

likely to occur as a result of this 

proposed critical habitat designation. 

During the comment period we seek 

from the public and will request from 

relevant Federal agencies additional 

data and information, in particular 

information regarding additional costs 

incurred by the LNG industry, to 

develop a more accurate assessment of 

the likely costs of this proposed 

designation in Coos Bay and other areas 

in the lower Columbia River estuary. We 

will use such information in our 

economic analysis and ESA 4(b)(2) 

weighing process such that a 

reconsideration of the proposed 

designation of Coos Bay and other areas 

along the lower Columbia River estuary 

may be warranted. Therefore, we solicit 

additional data and comments regarding 

designation of Coos Bay and other areas 

along the lower Columbia River estuary, 

particularly information regarding the 

economic costs associated with LNG 

projects that may occur as a result of a 

critical habitat designation. 

The CHRT also looked closely at the 

possible exclusion of the coastal marine 

waters within 110 m depth from the 

Alaska/Canada border to Yakutat Bay, 

AK. Some CHRT members noted that 

the exclusion of this area from the 

designation might impede conservation 

of the Southern DPS, because this area 

may be an important component of the 

overwintering range for the species. 

Although only two tagged Southern DPS 

green sturgeon have been detected in 

this area, the fact that the detection 

system in Graves Harbor, AK, is not 

designed to detect green sturgeon and 

that the data have only been collected 

from 2005–2006 suggests that Southern 

DPS use of the area may be greater than 

indicated by the available data. Other 

CHRT members stated that the relatively 

low number of Southern DPS detections 

in the area, in combination with the 

uncertainty surrounding the activities 

occurring in southeast Alaska, suggests 

that excluding this area from the 

designation would not significantly 

impede conservation or result in the 

extinction of the species. At this time, 

we propose to exclude the coastal 

marine waters within 110 m depth from 

the Alaska/Canada border to Yakutat 

Bay, AK, from the designation because 

the economic impacts outweigh the 

conservation benefit of designation in 

this area. We solicit the public for more 

information regarding: (1) The presence 

of green sturgeon in coastal waters off 

southeast Alaska; (2) the spatial 

distribution of the PCEs in southeast 

Alaska; (3) activities occurring in the 

area that may affect the PCEs; (4) the 

types of changes that might be proposed 

for these activities to avoid impacts to 

the PCEs; and (5) estimated costs 

associated with making these changes. 

In summary, we propose to exclude 

the following 13 specific areas from the 

critical habitat designation: (1) Elkhorn 

Slough, CA; (2) Tomales Bay, CA; (3) 

Noyo Harbor, CA; (4) Eel River estuary, 

CA; (5) Klamath/Trinity River estuary, 

CA; (6) Rogue River estuary, OR; (7) 

Siuslaw River estuary, OR; (8) Alsea 

River estuary, OR; (9) Tillamook Bay, 

OR; (10) Puget Sound, WA; (11) coastal 

marine waters within 110 m depth from 

the California/Mexico border to 

Monterey Bay, CA; (12) coastal marine 

waters within 110 m depth from the 

Alaska/Canada border to Yakutat Bay, 

AK; and (13) coastal marine waters 

within 110 m depth northwest of 

Yakutat Bay, AK, to the Bering Strait 

(including the Bering Sea). Based on the 

best scientific and commercial data 

available, we have determined that the 

exclusion of these 13 areas from the 

designation would not result in the 

extinction of the species. 

Exclusions Based on Impacts on 

National Security 

We have contacted the DOD regarding 

any DOD lands that may overlap with 

areas proposed for designation as 

critical habitat for the Southern DPS. At 

this time, we have not received 

information identifying impacts on 

national security that may result from 

the designation. However, we solicit 

comments from the public and from the 

DOD regarding any national security 

concerns for the areas proposed for 

designation. We are aware of DOD sites 

in the Strait of Juan de Fuca that have 

been excluded on the basis of national 

security impacts for Southern Resident 

killer whales and Puget Sound salmon, 

as well as DOD sites off the coasts of 

California and Washington that may be 

affected by a critical habitat designation. 

We request information specifically 

pertaining to whether the designation 

for such sites as critical habitat for the 

Southern DPS would result in national 

security impacts that would outweigh 

the benefits of designation. 

Other Relevant Impacts 

We did not propose exclusions based 

on other relevant impacts of 

designation, particularly impacts on 

Indian tribes. 

For this proposed critical habitat 

designation for Southern DPS green 

sturgeon, we reviewed maps indicating 

that very few if any areas under 

consideration as critical habitat actually 

overlap with Indian lands. Nearshore 

coastal areas comprise the vast majority 

of these possible overlap areas, but it is 

unclear which if any Indian lands are 


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subject to consideration for possible 

exclusion. In particular, we lack 

information regarding where Indian 

land boundaries lie in relation to 

shoreline tidal boundaries used to 

identify the lateral extent in this 

proposed rule. Our preliminary 

assessment indicates that the following 

federally-recognized tribes (73 FR 

18553, April 4, 2008) have lands that 

may be in close proximity to areas 

under consideration for designation as 

critical habitat for Southern DPS green 

sturgeon: the Hoh, Jamestown 

S’Klallam, Lower Elwha, Makah, 

Quileute, Quinault, and Shoalwater Bay 

tribes in Washington; the Confederated 

Tribes of Coos Lower Umpqua and 

Siuslaw Indians and the Coquille Tribe 

in Oregon; and the Cachil DeHe Band of 

Wintun Indians of the Colusa Indian 

Community, Wiyot Tribe, and Yurok 

Tribe in California. 

We seek comments regarding these 

areas and will continue to investigate 

whether any Indian lands overlap, and 

may warrant exclusion from, critical 

habitat for Southern DPS green 

sturgeon. Indian lands are those defined 

in the Secretarial Order ‘‘American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act’’ (June 5, 1997), 

including: (1) Lands held in trust by the 

United States for the benefit of any 

Indian tribe; (2) land held in trust by the 

United States for any Indian Tribe or 

individual subject to restrictions by the 

United States against alienation; (3) fee 

lands, either within or outside the 

reservation boundaries, owned by the 

tribal government; and (4) fee lands 

within the reservation boundaries 

owned by individual Indians. 

If such areas are identified, the 

benefits of exclusion could include 

those we identified in recent critical 

habitat designations for Pacific salmon 

and steelhead (70 FR 52630; September 

2, 2005), specifically: (1) The 

furtherance of established national 

policies, our Federal trust obligations 

and our deference to the tribes in 

management of natural resources on 

their lands; (2) the maintenance of 

effective long-term working 

relationships to promote species 

conservation on an ecosystem-wide 

basis; (3) the allowance for continued 

meaningful collaboration and 

cooperation in scientific work to learn 

more about the conservation needs of 

the species on an ecosystem-wide basis; 

and (4) continued respect for tribal 

sovereignty over management of natural 

resources on Indian lands through 

established tribal natural resource 

programs. 

We also seek information from 

affected tribes concerning other tribal 

activities that may be affected in areas 

other than tribal lands (i.e., bottom 

trawling and alternative energy projects 

in marine areas). 

Critical Habitat Designation 

We propose to designate 

approximately 325 miles (524 km) of 

riverine habitat and 1,058 square miles 

(2,739 sq km) of estuarine habitat in 

California, Oregon, and Washington, 

and 11,927 square miles (30,890 sq km) 

of coastal marine habitat off California, 

Oregon, and Washington within the 

geographical area presently occupied by 

the Southern DPS of green sturgeon. We 

also propose to designate approximately 

136 square miles (352 sq km) of habitat 

within the Yolo and Sutter bypasses, 

adjacent to the Sacramento River, 

California. The proposed critical habitat 

areas contain physical or biological 

features essential to the conservation of 

the species that may require special 

management considerations or 

protection. We propose to exclude 13 

areas from designation for which the 

benefit of exclusion outweighing the 

benefit of inclusion. We conclude that 

the exclusion of these areas will not 

result in the extinction of the Southern 

DPS. Although we have identified 7 

presently unoccupied areas that may be 

later determined to be essential to 

conservation, we are not proposing any 

unoccupied areas for designation as 

critical habitat at this time, because we 

do not have sufficient information to 

determine that any of the unoccupied 

areas are essential to the conservation of 

the species. 

Lateral Extent of Critical Habitat 

For freshwater riverine habitats, we 

described the lateral extent of critical 

habitat units as the width of the stream 

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

Corps of Engineers (COE) in 33 CFR 

329.11. The ordinary high-water line on 

non-tidal rivers is defined as ‘‘the line 

on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank; 

shelving; changes in the character of 

soil; destruction of terrestrial vegetation; 

the presence of litter and debris, or 

other appropriate means that consider 

the characteristics of the surrounding 

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

which the ordinary high-water line has 

not been defined pursuant to 33 CFR 

329.11, we defined the width of the 

stream channel by its bankfull elevation. 

Bankfull elevation is the level at which 

water begins to leave the channel and 

move into the floodplain (Rosgen, 1996) 

and is reached at a discharge which 

generally has a recurrence interval of 1 

to 2 years on the annual flood series 

(Leopold et al., 1992). For bays and 

estuarine areas, we defined the lateral 

extent by the mean higher high water 

(MHHW) line. For coastal marine 

habitats, the lateral extent to the west is 

defined by the 110 m depth bathymetry 

contour relative to the line of mean 

lower low water (MLLW) and shoreward 

to the area that is inundated by extreme 

high tide, or to the COLREGS 

demarcation lines delineating the 

boundary between estuarine and marine 

habitats. The textual descriptions of 

critical habitat in the section titled 

‘‘226.215 Critical habitat for the 

Southern Distinct Population Segment 

of North American Green Sturgeon 

(Acipenser medirostris)’’ are the 

definitive source for determining the 

critical habitat boundaries. The 

overview maps provided in section 

‘‘226.215 Critical habitat for the 

Southern Distinct Population Segment 

of North American Green Sturgeon 

(Acipenser medirostris)’’ are provided 

for general guidance purposes only and 

not as a definitive source for 

determining critical habitat boundaries. 

As discussed in previous critical 

habitat designations, the quality of 

aquatic and estuarine habitats within 

stream channels and bays and estuaries 

is intrinsically related to the adjacent 

riparian zones and floodplain, to 

surrounding wetlands and uplands, and 

to non-fish-bearing streams above 

occupied stream reaches. Human 

activities that occur outside of 

designated streams, bays, or estuaries 

can destroy or adversely modify the 

essential physical and biological 

features within these areas. In addition, 

human activities occurring within and 

adjacent to reaches upstream or 

downstream of designated stream 

reaches or estuaries can also destroy or 

adversely modify the essential physical 

and biological features of these areas. 

Similarly, human activities that occur 

outside of designated coastal marine 

areas inundated by extreme high tide 

can destroy or adversely modify the 

essential physical and biological 

features of these areas. This designation 

will help to ensure that Federal agencies 

are aware of these important habitat 

linkages. 

Effects of Critical Habitat Designation 

ESA Section 7 Consultation 

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

Federal agencies, including NMFS, to 

insure that any action authorized, 

funded, or carried out by the agency 


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(agency action) does not jeopardize the 

continued existence of any threatened 

or endangered species or destroy or 

adversely modify designated critical 

habitat. 

Federal agencies are also required to 

confer with NMFS regarding any actions 

likely to jeopardize a species proposed 

for listing under the ESA, or likely to 

destroy or adversely modify proposed 

critical habitat, pursuant to section 

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

discussions in which NMFS may 

recommend conservation measures to 

minimize or avoid adverse effects. The 

discussions and conservation 

recommendations are to be documented 

in a conference report provided to the 

Federal agency. If requested by the 

Federal agency, a formal conference 

report may be issued, including a 

biological opinion prepared according 

to 50 CFR 402.14. A formal conference 

report may be adopted as the biological 

opinion when the species is listed or 

critical habitat designated, if no 

significant new information or changes 

to the action alter the content of the 

opinion. 

When a species is listed or critical 

habitat is designated, Federal agencies 

must consult with NMFS on any agency 

actions to be conducted in an area 

where the species is present and that 

may affect the species or its critical 

habitat. During the consultation, NMFS 

would evaluate the agency action to 

determine whether the action may 

adversely affect listed species or critical 

habitat and issue its findings in a 

biological opinion. If NMFS concludes 

in the biological opinion that the agency 

action would likely result in the 

destruction or adverse modification of 

critical habitat, NMFS would also 

recommend any reasonable and prudent 

alternatives to the action. Reasonable 

and prudent alternatives are defined in 

50 CFR 402.02 as alternative actions 

identified during formal consultation 

that can be implemented in a manner 

consistent with the intended purpose of 

the action, that are consistent with the 

scope of the Federal agency’s legal 

authority and jurisdiction, that are 

economically and technologically 

feasible, and that would avoid the 

destruction or adverse modification of 

critical habitat. 

Regulations at 50 CFR 402.16 require 

Federal agencies that have retained 

discretionary involvement or control 

over an action, or where such 

discretionary involvement or control is 

authorized by law, to reinitiate 

consultation on previously reviewed 

actions in instances where: (1) Critical 

habitat is subsequently designated; or 

(2) new information or changes to the 

action may result in effects to critical 

habitat not previously considered in the 

biological opinion. Consequently, some 

Federal agencies may request 

reinitiation of consultation or 

conference with NMFS on actions for 

which formal consultation has been 

completed, if those actions may affect 

designated critical habitat or adversely 

modify or destroy proposed critical 

habitat. 

Activities subject to the ESA section 

7 consultation process include activities 

on Federal lands and activities on 

private or state lands requiring a permit 

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

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

other Federal action, including funding 

(e.g., Federal Highway Administration 

(FHA) or Federal Emergency 

Management Agency (FEMA) funding). 

ESA section 7 consultation would not 

be required for Federal actions that do 

not affect listed species or critical 

habitat and for actions on non-Federal 

and private lands that are not Federally 

funded, authorized, or carried out. 

Activities Likely To Be Affected 

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

proposed or final regulation to designate 

critical habitat an evaluation and brief 

description of those activities (whether 

public or private) that may adversely 

modify such habitat or that may be 

affected by such designation. A wide 

variety of activities may affect the 

proposed critical habitat and may be 

subject to the ESA section 7 

consultation process when carried out, 

funded, or authorized by a Federal 

agency. These include water and land 

management actions of Federal agencies 

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

of Land Management (BLM), Army 

Corps of Engineers (COE), U.S. Bureau 

of Reclamation (BOR), Natural Resource 

Conservation Service (NRCS), National 

Park Service (NPS), Bureau of Indian 

Affairs (BIA), the Federal Energy 

Regulatory Commission (FERC), and the 

Nuclear Regulatory Commission (NRC)) 

and related or similar Federallyregulated projects and activities Federal 

lands, including hydropower sites and 

proposed tidal/wave energy projects 

licensed by the FERC; nuclear power 

sites licensed by the NRC; dams built or 

operated by the COE or BOR; timber 

sales and other vegetation management 

activities conducted by the USFS, BLM 

and BIA; irrigation diversions 

authorized by the USFS and BLM; and 

road building and maintenance 

activities authorized by the USFS, BLM, 

NPA, and BIA. Other actions of concern 

include dredge and fill, mining, diking, 

and bank stabilization activities 

authorized or conducted by the COE, 

habitat modifications authorized by the 

FEMA, and approval of water quality 

standards and pesticide labeling and use 

restrictions administered by the 

Environmental Protection Agency 

(EPA). 

Private entities may also be affected 

by this proposed critical habitat 

designation if a Federal permit is 

required, Federal funding is received, or 

the entity is involved in or receives 

benefits from a Federal project. For 

example, private entities may have 

special use permits to convey water or 

build access roads across Federal land; 

they may require Federal permits to 

construct irrigation withdrawal 

facilities, or build or repair docks; they 

may obtain water from Federally funded 

and operated irrigation projects; or they 

may apply pesticides that are only 

available with Federal agency approval. 

These activities will need to be 

evaluated with respect to their potential 

to destroy or adversely modify critical 

habitat. Changes to the actions to 

minimize or avoid destruction or 

adverse modification of proposed 

critical habitat may result in changes to 

some activities, such as the operations 

of dams and dredging activities. 

Transportation and utilities sectors may 

need to modify the placement of 

culverts, bridges, and utility 

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

power lines) to avoid barriers to fish 

migration. Developments (e.g., marinas, 

residential, or industrial facilities) 

occurring in or near streams, estuaries, 

or marine waters designated as critical 

habitat that require Federal 

authorization or funding may need to be 

altered or built in a manner to ensure 

that critical habitat is not destroyed or 

adversely modified as a result of the 

construction or subsequent operation of 

the facility. 

Questions regarding whether specific 

activities will constitute destruction or 

adverse modification of critical habitat 

should be directed to NMFS (see 

ADDRESSES and FOR FURTHER

INFORMATION CONTACT). 

Public Comments Solicited 

To ensure the final action resulting 

from this proposal will be as accurate 

and as effective as possible, we solicit 

comments and suggestions from the 

public, other concerned governments 

and agencies, the scientific community, 

industry, or any other interested party 

concerning this proposed rule. 

Specifically, public comments are 

sought concerning: (1) Information 

describing the abundance, distribution, 

and habitat use of Southern DPS green 

sturgeon in freshwater rivers, bays, 

estuaries, and coastal marine waters; (2) 


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Information on the identification, 

location, and quality of physical or 

biological features which may be 

essential to the conservation of the 

Southern DPS; (3) Information regarding 

potential impacts of designating any 

particular area, including the types of 

Federal activities that may trigger an 

ESA section 7 consultation and the 

possible modifications that may be 

required of those activities as a result of 

section 7 consultation; (4) Information 

regarding the benefits of designating any 

particular area of the proposed critical 

habitat; (5) Information regarding the 

benefits of excluding particular areas 

from the critical habitat designation; (6) 

Current or planned activities in the 

areas proposed for designation and their 

possible impacts on proposed critical 

habitat; and (7) Any foreseeable 

economic, national security, or other 

relevant impacts resulting from the 

proposed designations. 

We encourage comments on this 

proposal. You may submit your 

comments and materials by any one of 

several methods (see ADDRESSES). The 

proposed rule, maps, references, and 

other materials relating to this proposal 

can be found on our Web site at 

http://swr.nmfs.noaa.gov. We will 

consider all comments and information 

received during the comment period for 

this proposed rule in preparing the final 

rule. 

Public Hearings 

Regulations at 50 CFR 424.16(c)(3) 

require the Secretary to promptly hold 

at least one public hearing if any person 

requests one within 45 days of 

publication of a proposed rule to 

designate critical habitat. Requests for a 

public hearing must be made in writing 

(see ADDRESSES) by October 23, 2008. If 

a public hearing is requested, a notice 

detailing the specific hearing location 

and time will be published in the 

Federal Register at least 15 days before 

the hearing is to be held. Information on 

specific hearing locations and times will 

also be posted on our Web site at 

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

hearings provide the opportunity for 

interested individuals and parties to 

give comments, exchange information 

and opinions, and engage in a 

constructive dialogue concerning this 

proposed rule. We encourage the 

public’s involvement in such ESA 

matters. 

Peer Review 

On July 1, 1994, a joint USFWS/ 

NMFS policy for peer review was issued 

stating that the Services would solicit 

independent peer review to ensure the 

best biological and commercial data is 

used in the development of rulemaking 

actions and draft recovery plans under 

the ESA (59 FR 34270). On December 

16, 2004, the Office of Management and 

Budget (OMB) issued its Final 

Information Quality Bulletin for Peer 

Review (Bulletin). The Bulletin was 

published in the Federal Register on 

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

into effect on June 16, 2005. The 

primary purpose of the Bulletin is to 

improve the quality and credibility of 

scientific information disseminated by 

the Federal government by requiring 

peer review of ‘‘influential scientific 

information’’ and highly influential 

scientific information’’ prior to public 

dissemination. Influential scientific 

information is defined as ‘‘information 

the agency reasonably can determine 

will have or does have a clear and 

substantial impact on important public 

policies or private sector decisions.’’

The Bulletin provides agencies broad 

discretion in determining the 

appropriate process and level of peer 

review. Stricter standards were 

established for the peer review of 

‘‘highly influential scientific 

assessments,’’ defined as information 

whose ‘‘dissemination could have a 

potential impact of more than $500 

million in any one year on either the 

public or private sector or that the 

dissemination is novel, controversial, or 

precedent-setting, or has significant 

interagency interest.’’ Two documents 

supporting this proposal to designate 

critical habitat for the Southern DPS of 

green sturgeon are considered 

influential scientific information and 

subject to peer review. These documents 

are the draft Biological Report and draft 

Economic Analysis. We have distributed 

the draft Biological Report and draft 

Economic Analysis for independent 

peer review and will address any 

comments received in developing the 

final drafts of the two reports. Both 

documents are available on our Web site 

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

Federal eRulemaking Web site at 

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

request (see ADDRESSES). 

Required Determinations 

Clarity of the Rule 

Section I(12) of Executive Order (E.O.) 

12866 requires each agency to write 

regulations and notices that are easy to 

understand. NMFS invites your 

comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the rule clearly stated? (2) Does the 

rule contain technical language or 

jargon that interferes with its clarity? (3) 

Does the format of the rule (grouping 

and order of sections, use of headings, 

paragraphing, etc.) aid or reduce its 

clarity? (4) Would the rule be easier to 

understand if it were divided into more 

(but shorter) sections? (5) Is the 

description of the rule in the 

SUPPLEMENTARY INFORMATION section of 

the preamble helpful in understanding 

the rule? (6) What else could NMFS do 

to make the rule easier to understand? 

You may submit comments on how we 

could make this proposed rule easier to 

understand by any one of several 

methods (see ADDRESSES). 

Regulatory Planning and Review (E.O. 

12866) 

This proposed rule has been 

determined to be significant for 

purposes of E.O. 12866. A draft 

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

report have been prepared to support 

the exclusion process under section 

4(b)(2) of the ESA. 

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

et seq.) 

Under the Regulatory Flexibility Act 

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

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency publishes a 

notice of rulemaking for any proposed 

or final rule, it must prepare and make 

available for public comment a 

regulatory flexibility analysis describing 

the effects of the rule on small entities 

(i.e., small businesses, small 

organizations, and small government 

jurisdictions). We have prepared an 

initial regulatory flexibility analysis 

(IRFA), which is part of the draft 

Economic Analysis. This document is 

available upon request (see ADDRESSES), 

via our Web site at http:// 

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

eRulemaking Web site at http:// 

www.regulations.gov. The results of the 

IRFA are summarized below. 

At the present time, little information 

exists regarding the cost structure and 

operational procedures and strategies in 

the sectors that may be directly affected 

by the potential critical habitat 

designation. In addition, given the short 

consultation history for green sturgeon, 

there is significant uncertainty regarding 

the activities that may trigger an ESA 

section 7 consultation or how those 

activities may be modified as a result of 

consultation. With these limitations in 

mind, we considered which of the 

potential economic impacts we 

analyzed might affect small entities. 

These estimates should not be 

considered exact estimates of the 

impacts of potential critical habitat to 

individual businesses. 


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The impacts to small businesses were 

assessed for the following eight 

activities: dredging, in-water 

construction or alterations, NPDES 

activities and other activities resulting 

in non-point pollution, agriculture, dam 

operations, water diversion operations, 

bottom trawl fisheries, and power plant 

operations. The impacts on small 

entities were not assessed for LNG 

projects, desalination plants, tidal and 

wave energy projects, and restoration 

projects because there is great 

uncertainty regarding impacts to these 

activities, the activities are unlikely to 

be conducted by small entities, or the 

impacts to small businesses are 

expected to be minor. 

Small entities were defined by the 

Small Business Administration size 

standards for each activity type. The 

majority (> 80 percent) of entities 

affected within each specific area would 

be considered a small entity. A total of 

11,002 small businesses involved in the 

activities listed above would most likely 

be affected by the proposed critical 

habitat designation. The estimated 

annualized costs associated with section 

7 consultations incurred per small 

entity range from $0 to $130,000, with 

the largest annualized impacts 

estimated for entities involved in 

bottom trawl fisheries ($10 to $130,000) 

and the operation of dams and water 

diversions ($0 to $89,000). The total 

estimated annualized costs of section 7 

consultation incurred by small entities 

is estimated to range from $467,600 to 

$640,661 (the range is costs is due to 

varying costs associated with bottom 

trawl fisheries). The estimated economic 

impacts on small entities vary 

depending on the activity type and 

location. 

As required by the RFA (as amended 

by the SBREFA), we considered various 

alternatives to the proposed critical 

habitat designation for the Southern 

DPS. We considered and rejected the 

alternative of not designating critical 

habitat for the Southern DPS because 

such an approach does not meet the 

legal requirements of the ESA. We also 

considered and rejected the alternative 

of proposing the designation of all 

potential critical habitat areas of the 

Southern DPS (i.e., no areas are 

excluded), because for several areas, the 

economic benefits of exclusion 

outweighed the benefits of inclusion 

and we did not determine that exclusion 

of these areas would significantly 

impede conservation of the species or 

result in extinction of the species. We 

have considered and evaluated each of 

these alternatives in the context of the 

section 4(b)(2) process of weighing 

benefits of exclusion against benefits of 

designation, and determined that the 

current proposal provides an 

appropriate balance between 

conservation needs and the associated 

economic and other relevant impacts. It 

is estimated that small entities will save 

from $165,842 to $268,882 in 

compliance costs, due to the proposed 

exclusions made in this designation. 

E.O. 13211 

On May 18, 2001, the President issued 

an Executive Order on regulations that 

significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking an 

action expected to lead to the 

promulgation of a final rule or 

regulation that is a significant regulatory 

action under E.O. 12866 and is likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

We have considered the potential 

impacts of this action on the supply, 

distribution, or use of energy (see draft 

economic analysis report). Activities 

associated with the supply, distribution, 

or use of energy that may be affected by 

the critical habitat designation include 

the operation of: (1) Dams and dam 

facilities; (2) power plants; (3) proposed 

alternative energy projects; and (4) LNG 

projects. 

All of the 189 dams analyzed in the 

economic analysis exist within the areas 

occupied by Southern DPS green 

sturgeon and may be affected by the 

potential critical habitat designation. 

The dams are located within the Central 

Valley, CA, and in the lower Columbia 

River estuary. Owners or operators of 

the dams may be required to undertake 

specific modifications to avoid 

destroying or adversely modifying the 

proposed critical habitat for green 

sturgeon. Given substantial variation in 

the potential for effects on green 

sturgeon and critical habitat, such 

modifications would be determined on 

a case-by-case basis, and costs would 

vary widely. Because the areas overlap 

with existing critical habitat 

designations for salmon species, and 

because the guidelines we have in place 

for dam modifications focus on listed 

salmonids, we will likely recommend 

modifications to dams that are similar to 

those we recommend for salmonids 

until additional information on green 

sturgeon indicates otherwise. Thus, the 

additional effects of the critical habitat 

designation for green sturgeon would 

likely be minimal. In addition, 

modifications required for the 

protection of critical habitat would 

likely be similar to those required under 

the jeopardy standard. 

Of the 58 power plants analyzed in 

the economic analysis, approximately 

56 power plants exist within the areas 

occupied by Southern DPS green 

sturgeon and may be affected by the 

potential critical habitat designation. 

The installation of new technology to 

cool thermal effluents may be required 

under an ESA section 7 consultation. 

All of the power plants except for one 

located on the California coast are 

subject to existing protections for 

salmon species. For similar reasons 

given in the previous paragraph, we 

would likely recommend modifications 

to power plants that are similar to those 

we recommend for protecting listed 

salmonid critical habitat until 

additional information indicates 

otherwise. For the one coastal power 

plant, modifications required for the 

protection of critical habitat would 

likely be similar to those required under 

the jeopardy standard. 

Of the 36 alternative energy projects 

analyzed in the economic analysis, 

approximately 18 alternative energy 

projects have pending applications or 

have received preliminary permits to 

operate within bays, estuaries, and 

coastal marine waters proposed for 

designation as critical habitat for the 

Southern DPS of green sturgeon. Given 

the necessary timeframes for project 

construction, it may be reasonable to 

assume that this set of projects will 

incur project modification costs related 

to green sturgeon critical habitat within 

the next 20 years. However, it should 

also be noted that other new permit 

applications are likely to be filed in the 

future, and that rate of application may 

be increasing. The Federal Energy 

Regulatory Commission (FERC) points 

out that while it received only one 

application between 2004 and 2005 for 

hydrokinetic (tidal- and wave-energy) 

projects, it received seven preliminary 

permit applications in both 2006 and 

2007 within the critical habitat study 

area, excluding Alaska waters. We seek 

comment on the likely number of 

projects within the timeframe of this 

analysis. Relevant information received 

will inform our final analysis. 

Because these projects are in their 

preliminary stages, it is not clear what 

effects the projects will have on habitats 

and natural resources, nor what effects 

a critical habitat designation would 

have on these projects. Concerns over 

the entrainment or impingement of 

green sturgeon in structures associated 

with alternative energy projects would 

be addressed under the jeopardy 

standard, whereas impacts on passage 

and water quality would be addressed 

under the adverse modification 

provision. Such impacts are of concern 


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for other fish species as well as for green 

sturgeon (McIsaac, 2008, Letter from the 

Pacific Fishery Management Council to 

Randall Luthi, Minerals Management 

Service). It is likely that management 

measures to minimize or avoid habitat 

impacts for other species will be 

required for alternative energy projects. 

Based on the best available information, 

the project modifications we would 

require to protect green sturgeon critical 

habitat would likely be similar to those 

applied for the protection of other 

marine species. 

Of the 12 LNG projects analyzed in 

the economic analysis, there are 4 

proposed LNG projects within the areas 

proposed for designation as critical 

habitat, one within Coos Bay and three 

within the lower Columbia River. Like 

the alternative energy projects, there is 

a high degree of uncertainty regarding 

whether these proposed projects will be 

implemented. As a result, it is unclear 

at this time what effects a critical habitat 

designation would have on these 

proposed LNG projects. In cases where 

listed salmon and steelhead species or 

critical habitat designated for these 

species occurs within the areas where 

proposed LNG projects are located (e.g., 

in the Lower Columbia River), the best 

available information indicates that 

measures implemented for the 

protection of these species would be 

similar to those required to protect 

critical habitat for green sturgeon. In 

areas where listed salmon and steelhead 

or critical habitat areas designated for 

these species are not present (e.g., in 

Coos Bay, where critical habitat has not 

been designated for salmon and 

steelhead), measures implemented to 

avoid adverse modification of green 

sturgeon habitat may result in energy 

impacts. 

Based on this preliminary analysis, 

we have initially determined that the 

designation of critical habitat for 

Southern DPS green sturgeon would not 

result in significant impacts on the 

supply, distribution, or use of energy. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act, NMFS makes the 

following findings: 

(A) This proposed rule will not 

produce a Federal mandate. In general, 

a Federal mandate is a provision in 

legislation, statute, or regulation that 

would impose an enforceable duty upon 

State, local, tribal governments, or the 

private sector and includes both 

‘‘Federal intergovernmental mandates’’

and ‘‘Federal private sector mandates.’’

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or tribal 

government’s ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement.) ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (I) a 

condition of Federal assistance; or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ The 

designation of critical habitat does not 

impose an enforceable duty on nonFederal government entities or private 

parties. The only regulatory effect of a 

critical habitat designation is that 

Federal agencies must ensure that their 

actions do not destroy or adversely 

modify critical habitat under ESA 

section 7. Non-Federal entities who 

receive funding, assistance, or permits 

from Federal agencies, or otherwise 

require approval or authorization from a 

Federal agency for an action may be 

indirectly affected by the designation of 

critical habitat. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above to state 

governments. 

(b) Due to the prohibition against take 

of the Southern DPS both within and 

outside of the designated areas, we do 

not anticipate that this proposed rule 

will significantly or uniquely affect 

small governments. As such, a Small 

Government Agency Plan is not 

required. 

Takings 

Under E.O. 12630, Federal agencies 

must consider the effects of their actions 

on constitutionally protected private 

property rights and avoid unnecessary 

takings of property. A taking of property 

includes actions that result in physical 

invasion or occupancy of private 

property, and regulations imposed on 

private property that substantially affect 

its value or use. In accordance with E.O. 

12630, this proposed rule does not have 

significant takings implications. A 

takings implication assessment is not 

required. The designation of critical 

habitat affects only Federal agency 

actions. This proposed rule would not 

increase or decrease the current 

restrictions on private property 

concerning take of Southern DPS fish, 

nor do we expect the proposed critical 

habitat designation to impose additional 

burdens on land use or affect property 

values. Additionally, the proposed 

critical habitat designation does not 

preclude the development of Habitat 

Conservation Plans and issuance of 

incidental take permits for non-Federal 

actions. Owners of areas included 

within the proposed critical habitat 

designation would continue to have the 

opportunity to use their property in 

ways consistent with the survival of 

listed Southern DPS. 

Federalism 

In accordance with E.O. 13132, we 

determined that this proposed rule does 

not have significant Federalism effects 

and that a Federalism assessment is not 

required. In keeping with Department of 

Commerce policies, we request 

information from, and will coordinate 

development of this proposed critical 

habitat designation with, appropriate 

state resource agencies in California, 

Oregon, Washington, and Alaska. The 

proposed designation may have some 

benefit to state and local resource 

agencies in that the areas essential to the 

conservation of the species are more 

clearly defined, and the PCEs of the 

habitat necessary for the survival of the 

Southern DPS of green sturgeon are 

specifically identified. While this 

designation does not alter where and 

what Federally sponsored activities may 

occur, it may assist local governments in 

long-range planning (rather than waiting 

for case-by-case ESA section 7 

consultations to occur). 

Civil Justice Reform 

In accordance with E.O. 12988, we 

have determined that this proposed rule 

does not unduly burden the judicial 

system and meets the requirements of 

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


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are proposing to designate critical 

habitat in accordance with the 

provisions of the ESA. This proposed 

rule uses standard property descriptions 

and identifies the PCEs within the 

designated areas to assist the public in 

understanding the habitat needs of the 

Southern DPS of green sturgeon. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This proposed rule does not contain 

new or revised information collections 

that require approval by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act. This 

proposed rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act of 

1969 (NEPA) 

NMFS has determined that an 

environmental analysis as provided for 

under the NEPA of 1969 for critical 

habitat designations made pursuant to 

the ESA is not required. See Douglas 

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

1995), cert. Denied, 116 S.Ct 698 (1996). 

Government-to-Government 

Relationship With Tribes 

The longstanding and distinctive 

relationship between the Federal and 

tribal governments is defined by 

treaties, statutes, executive orders, 

judicial decisions, and agreements, 

which differentiate tribal governments 

from the other entities that deal with, or 

are affected by, the Federal government. 

This relationship has given rise to a 

special Federal trust responsibility 

involving the legal responsibilities and 

obligations of the United States toward 

Indian Tribes and the application of 

fiduciary standards of due care with 

respect to Indian lands, tribal trust 

resources, and the exercise of tribal 

rights. Pursuant to these authorities 

lands have been retained by Indian 

Tribes or have been set aside for tribal 

use. These lands are managed by Indian 

Tribes in accordance with tribal goals 

and objectives within the framework of 

applicable treaties and laws. E.O. 13175, 

Consultation and Coordination with 

Indian Tribal Governments, outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. 

There is a broad array of activities on 

Indian lands that may trigger ESA 

section 7 consultations. In the case of 

Southern DPS green sturgeon, we 

reviewed maps indicating that very few 

if any areas under consideration as 

critical habitat actually overlap with 

Indian lands. Nearshore coastal areas 

comprise the vast majority of these 

possible overlap areas, but it is unclear 

which if any Indian lands are subject to 

consideration for possible exclusion. In 

particular, we lack information 

regarding where Indian land boundaries 

lie in relation to shoreline tidal 

boundaries used to identify the lateral 

extent in this proposed rule. Our 

preliminary assessment indicates that 

the following federally recognized tribes 

(73 FR 18553, April 4, 2008) have lands 

that may be in close proximity to areas 

under consideration for designation as 

critical habitat for Southern DPS green 

sturgeon: The Hoh, Jamestown 

S’Klallam, Lower Elwha, Makah, 

Quileute, Quinault, and Shoalwater Bay 

tribes in Washington; the Confederated 

Tribes of Coos Lower Umpqua and 

Siuslaw Indians and the Coquille Tribe 

in Oregon; and the Cachil DeHe Band of 

Wintun Indians of the Colusa Indian 

Community, Wiyot Tribe, and Yurok 

Tribe in California. 

We seek comments regarding these 

areas and will continue to investigate 

whether any Indian lands overlap, and 

may warrant exclusion from, critical 

habitat for Southern DPS green 

sturgeon. Indian lands are those defined 

in the Secretarial Order ‘‘American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act’’ (June 5, 1997), 

including: (1) Lands held in trust by the 

United States for the benefit of any 

Indian tribe; (2) land held in trust by the 

United States for any Indian Tribe or 

individual subject to restrictions by the 

United States against alienation; (3) fee 

lands, either within or outside the 

reservation boundaries, owned by the 

tribal government; and (4) fee lands 

within the reservation boundaries 

owned by individual Indians. 

If such areas are identified, the 

benefits of exclusion could include 

those we identified in recent critical 

habitat designations for Pacific salmon 

and steelhead (70 FR 52630; September 

2, 2005), specifically: (1) The 

furtherance of established national 

policies, our Federal trust obligations 

and our deference to the tribes in 

management of natural resources on 

their lands; (2) the maintenance of 

effective long-term working 

relationships to promote species 

conservation on an ecosystem-wide 

basis; (3) the allowance for continued 

meaningful collaboration and 

cooperation in scientific work to learn 

more about the conservation needs of 

the species on an ecosystem-wide basis; 

and (4) continued respect for tribal 

sovereignty over management of natural 

resources on Indian lands through 

established tribal natural resource 

programs. 

We also seek information from 

affected tribes concerning other tribal 

activities that may be affected in areas 

other than tribal lands (i.e., bottom 

trawling and alternative energy projects 

in marine areas). 

References Cited 

A complete list of all references cited 

herein is available upon request (see 

ADDRESSES section) or via our Web site 

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

List of Subjects in 50 CFR Part 226 

Endangered and threatened species. 

Dated: 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 part 

226, title 50 of the Code of Federal 

Regulations as set forth below: 

PART 226—DESIGNATED CRITICAL 

HABITAT 

1. The authority citation of part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

2. Add § 226.216, to read as follows: 

§ 226.216 Critical habitat for the Southern 

Distinct Population Segment of North 

American Green Sturgeon (Acipenser 

medirostris). 

Critical habitat is designated for the 

Southern Distinct Population Segment 

of North American green sturgeon 

(Southern DPS) as described in this 

section. The textual descriptions of 

critical habitat in this section are the 

definitive source for determining the 

critical habitat boundaries. The 

overview maps are provided for general 

guidance purposes only and not as a 

definitive source for determining critical 

habitat boundaries. 

(a) Critical habitat boundaries. 

Critical habitat in freshwater riverine 

areas includes the stream channels and 

a lateral extent as defined by the 

ordinary high-water line (33 CFR 

329.11). In areas for which the ordinary 

high-water line has not been defined 

pursuant to 33 CFR 329.11, the lateral 

extent will be defined by the bankfull 

elevation. Bankfull elevation is the level 

at which water begins to leave the 

channel and move into the floodplain 

and is reached at a discharge which 

generally has a recurrence interval of 1 


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to 2 years on the annual flood series. 

Critical habitat in bays and estuaries 

includes tidally influenced areas as 

defined by the elevation of mean higher 

high water. The boundary between 

nearshore coastal marine areas and bays 

and estuaries are delineated by the 

COLREGS lines (33 CFR part 80). 

Critical habitat in coastal marine areas 

is defined by the zone between the 110 

m depth bathymetry line and the line on 

shore reached by extreme high water, or 

to the COLREGS lines. 

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

coastal marine waters out to the 110 m 

depth bathymetry line (relative to 

MLLW) from Monterey Bay, California 

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

east to include waters in the Strait of 

Juan de Fuca, Washington. The Strait of 

Juan de Fuca includes all U.S. marine 

waters: In Clallam County east of a line 

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

124°43′32′′ W.), Tatoosh Island 

(48°23′30′′ N./ 124°44′12′′ W.), and 

Bonilla Point, British Columbia 

(48°35′30′′ N./ 124°43′00′′ W.); in 

Jefferson and Island counties north and 

west of a line connecting Point Wilson 

(48°08′38′′ N./ 122°45′07′′ W.) and 

Admiralty Head (48°09′18′′ N./ 

122°40′41′′ W.); and in San Juan and 

Skagit counties south of lines 

connecting the U.S.-Canada border 

(48°27′27′′ N./ 123°09′46′′ W.) and Pile 

Point (48°28′56′′ N./ 123°05′33′′ W.), 

Cattle Point (48°27′1′′ N./ 122°57′39′′ W.) 

and Davis Point (48°27′21′′ N./ 

122°56′03′′ W.), and Fidalgo Head 

(48°29′34′′ N./ 122°42′07′′ W.) and Lopez 

Island (48°28′43′′ N./ 122°49′08′′ W.). 

(2) Freshwater riverine habitats: 

Critical habitat is designated to include 

the following freshwater riverine areas 

in California: 

(i) Sacramento River, California. From 

the Sacramento I-Street Bridge upstream 

to Keswick Dam (40°36′39′′ N./ 

122°26′41′′ W.), including the waters 

encompassed by the Yolo Bypass and 

the Sutter Bypass areas. 

(ii) Lower Feather River, California. 

From the confluence with the mainstem 

Sacramento River upstream to Oroville 

Dam (39°32′35′′ N./ 121°29′27′′ W.). 

(iii) Lower Yuba River, California. 

From the confluence with the mainstem 

Feather River upstream to Daguerre Dam 

(39°12′35′′ N./ 121°26′33′′ W.). 

(3) Coastal bays and estuaries: Critical 

habitat is designated to include the 

following coastal bays and estuaries in 

California, Oregon, and Washington: 

(i) Central Valley, California. All 

tidally influenced areas of San 

Francisco Bay, San Pablo Bay, Suisun 

Bay, and the Sacramento-San Joaquin 

Delta up to the elevation of mean higher 

high water, including tributaries 

upstream to the head of tide. Designated 

areas in the Sacramento-San Joaquin 

Delta include all waterways within the 

area defined in California Water Code 

Section 12220, except for the following 

excluded slough areas: Fivemile Slough 

(all reaches upstream from its 

confluence with Fourteenmile Slough at 

38°00′50′′ N./ 121°22′09′′ W.); Sevenmile 

Slough (all reaches between Threemile 

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

and Jackson Slough at 38°06′59′′ N./ 

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

reaches upstream from Lambert Road at 

38°19′14′′ N./ 121°31′08′′ W.); Tom 

Paine Slough (all reaches upstream from 

its confluence with Middle River at 

37°47′25′′ N./ 121°25′08′′ W.); and 

Trapper Slough (all reaches upstream 

from 37°53′36′′ N./ 121°29′15′′ W.). 

(ii) Humboldt Bay, California: All 

tidally influenced areas of Humboldt 

Bay up to the elevation of mean higher 

high water, including tributaries 

upstream to the head of tide. 

(iii) Coos Bay, Oregon. All tidally 

influenced areas of Coos Bay up to the 

elevation of mean higher high water, 

including tributaries upstream to the 

head of tide. 

(iv) Winchester Bay, Oregon. All 

tidally influenced areas of Winchester 

Bay up to the elevation of mean higher 

high water, including tributaries 

upstream to the head of tide. 

(v) Yaquina Bay, Oregon. All tidally 

influenced areas of Yaquina Bay up to 

the elevation of mean higher high water, 

including tributaries upstream to the 

head of tide. 

(vi) Lower Columbia River, 

Washington and Oregon. All tidally 

influenced areas of the Columbia and 

Willamette Rivers downstream of 

Bonneville Dam and Willamette Falls 

and up to the elevation of mean higher 

high water, including tributaries 

upstream to the head of tide. 

(vii) Willapa Bay, Washington. All 

tidally influenced areas of Willapa Bay 

up to the elevation of mean higher high 

water, including tributaries upstream to 

the head of tide. 

(viii) Grays Harbor, Washington. All 

tidally influenced areas of Grays Harbor 

up to the elevation of mean higher high 

water, including tributaries upstream to 

the head of tide. 

(b) Primary constituent elements. The 

primary constituent elements essential 

for the conservation of the Southern 

DPS of green sturgeon are: 

(1) For freshwater riverine systems: 

(i) Food resources. Abundant prey 

items for larval, juvenile, subadult, and 

adult life stages. 

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

structural features of substrates). 

Substrates suitable for egg deposition 

and development (e.g., bedrock sills and 

shelves, cobble and gravel, or hard clean 

sand, with interstices or irregular 

surfaces to ‘‘collect’’ eggs and provide 

protection from predators, and free of 

excessive silt and debris that could 

smother eggs during incubation), larval 

development (e.g., substrates with 

interstices or voids providing refuge 

from predators and from high flow 

conditions), and subadults and adults 

(e.g., substrates for holding and 

spawning). 

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

the magnitude, frequency, duration, 

seasonality, and rate-of-change of fresh 

water discharge over time) necessary for 

normal behavior, growth, and survival 

of all life stages. 

(iv) Water quality. Water quality, 

including temperature, salinity, oxygen 

content, and other chemical 

characteristics, necessary for normal 

behavior, growth, and viability of all life 

stages. 

(v) Migratory corridor. A migratory 

pathway necessary for the safe and 

timely passage of Southern DPS fish 

within riverine habitats and between 

riverine and estuarine habitats (e.g., an 

unobstructed river or dammed river that 

still allows for safe and timely passage). 

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

for both upstream and downstream 

holding of adult or subadult fish, with 

adequate water quality and flow to 

maintain the physiological needs of the 

holding adult or subadult fish. 

(vii) Sediment quality. Sediment 

quality (i.e., chemical characteristics) 

necessary for normal behavior, growth, 

and viability of all life stages. 

(2) For estuarine habitats: 

(i) Food resources. Abundant prey 

items within estuarine habitats and 

substrates for juvenile, subadult, and 

adult life stages. 

(ii) Water flow. Within bays and 

estuaries adjacent to the Sacramento 

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

Delta and the Suisun, San Pablo, and 

San Francisco bays), sufficient flow into 

the bay and estuary to allow adults to 

successfully orient to the incoming flow 

and migrate upstream to spawning 

grounds. 

(iii) Water quality. Water quality, 

including temperature, salinity, oxygen 

content, and other chemical 

characteristics, necessary for normal 

behavior, growth, and viability of all life 

stages. 

(iv) Migratory corridor. A migratory 

pathway necessary for the safe and 

timely passage of Southern DPS fish 

within estuarine habitats and between 

estuarine and riverine or marine 

habitats. 


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52108 Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Proposed Rules 

(v) Depth. A diversity of depths 

necessary for shelter, foraging, and 

migration of juvenile, subadult, and 

adult life stages. 

(vi) Sediment quality. Sediment 

quality (i.e., chemical characteristics) 

necessary for normal behavior, growth, 

and viability of all life stages. 

(3) For nearshore coastal marine 

areas: 

(i) Migratory corridor. A migratory 

pathway necessary for the safe and 

timely passage of Southern DPS fish 

within marine and between estuarine 

and marine habitats. 

(ii) Water quality. Nearshore marine 

waters with adequate dissolved oxygen 

levels and acceptably low levels of 

contaminants (e.g., pesticides, 

organochlorines, elevated levels of 

heavy metals) that may disrupt the 

normal behavior, growth, and viability 

of subadult and adult green sturgeon. 

(iii) Food resources. Abundant prey 

items for subadults and adults, which 

may include benthic invertebrates and 

fishes. 

(c) Maps of proposed critical habitat 

for the Southern DPS of green sturgeon 

follow: 

BILLING CODE 3510–22–P 


pwalker on PROD1PC71 with PROPOSALS2
Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Proposed Rules 52109 


pwalker on PROD1PC71 with PROPOSALS2EP08SE08.000</GPH>
52110 Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Proposed Rules 

[FR Doc. E8–20632 Filed 9–5–08; 8:45 am] 

BILLING CODE 3510–22–C 


pwalker on PROD1PC71 with PROPOSALS2EP08SE08.001</GPH>