[Federal Register Volume 75, Number 187 (Tuesday, September 28, 2010)]
[Proposed Rules]
[Pages 59900-59931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24215]



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Part V





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 226



Endangered and Threatened Wildlife and Plants: Proposed Rulemaking To 
Designate Critical Habitat for Black Abalone; Proposed Rule

Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / 
Proposed Rules

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 100127045-0120-01]
RIN 0648-AY62


Endangered and Threatened Wildlife and Plants: Proposed 
Rulemaking To Designate Critical Habitat for Black Abalone

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

ACTION: Proposed rule; request for comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to 
designate approximately 390 square kilometers of critical habitat for 
the endangered black abalone, pursuant to section 4 of the Endangered 
Species Act (ESA). Specific areas proposed for designation include 
rocky habitats from the mean higher high water (MHHW) line to a depth 
of 6 meters (m) within the following areas on the California coast: Del 
Mar Landing Ecological Reserve to Point Bonita; from the southern point 
at the mouth of San Francisco Bay to Natural Bridges State Beach; from 
Pacific Grove to Cayucos; from Monta[ntilde]a de Oro State Park to just 
south of Government Point; Palos Verdes Peninsula from the Palos 
Verdes/Torrance border to Los Angeles Harbor; the Farallon Islands; 
A[ntilde]o Nuevo Island; San Miguel Island; Santa Rosa Island; Santa 
Cruz Island; Anacapa Island; San Nicolas Island; Santa Barbara Island; 
Catalina Island; and San Clemente Island. We propose to exclude the 
following area from designation because the economic benefits of 
exclusion outweigh the benefits of inclusion, and exclusion will not 
result in the extinction of the species: rocky habitats within the MHHW 
line to a depth of 6 m from Corona Del Mar State Beach to Dana Point, 
California.

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 29, 2010. A public hearing will be held promptly if any person 
so requests by November 12, 2010. 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-AY62, by any one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
    <bullet> Fax: 1-562-980-4027, Attention: Melissa Neuman.
    <bullet> Mail: Submit written information to Chief, Protected 
Resources Division, Southwest Region, National Marine Fisheries 
Service, 501 West Ocean Blvd, Suite 4200, Long Beach, CA 90802-4213.
    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 PDF file formats 
only.
    Reference materials and supporting documents regarding this 
proposed designation can be obtained via the Internet at: http://swr.nmfs.noaa.gov/, the Federal eRulemaking Portal at: http://www.regulations.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 Marta Nammack, NMFS, Office of Protected Resources 
(301) 713-1401.

SUPPLEMENTARY INFORMATION: 

Background

    On January 14, 2009, we determined that the black abalone (Haliotis 
cracherodii) is in danger of extinction throughout all or a significant 
portion of its range and listed the species as endangered under the ESA 
(74 FR 1937). Under the ESA, we are responsible for designating 
critical habitat for all endangered and threatened species (16 U.S.C. 
1533). This rule describes the proposed critical habitat designation, 
including supporting information on black abalone biology, 
distribution, and habitat use, and the methods used to develop the 
proposed designation.
    We considered various alternatives to the critical habitat 
designation for black abalone. The alternative of not designating 
critical habitat for black abalone would impose no economic, national 
security, or other relevant impacts, but would not provide any 
conservation benefit to the species. This alternative was considered 
and rejected because such an approach does not meet the legal 
requirements of the ESA and would not provide for the conservation of 
black abalone. The alternative of designating all of the areas 
considered for designation (i.e., no areas excluded) was also 
considered and rejected because, for one area, the economic benefits of 
exclusion outweighed the benefits of designation, and NMFS did not 
determine that exclusion of this area would significantly impede 
conservation of the species or result in extinction of the species. The 
total estimated annualized economic impact associated with the 
designation of all of the areas considered would be $595,900 to 
$158,967,500 (discounted at 7 percent) or $562,600 to $144,410,200 
(discounted at 3 percent).
    An alternative to designating critical habitat within all of the 
areas considered for designation is the designation of critical habitat 
within a subset of these areas. Under section 4(b)(2) of the ESA, NMFS 
must consider the economic impacts, impacts to national security, and 
other relevant impacts of designating any particular area as critical 
habitat. NMFS has the discretion to exclude an area from designation as 
critical habitat if the benefits of exclusion (i.e., the impacts that 
would be avoided if an area were excluded from the designation) 
outweigh the benefits of designation (i.e., the conservation benefits 
to black abalone if an area were designated), so long as exclusion of 
the area will not result in extinction of the species. Exclusion under 
section 4(b)(2) of the ESA of one or more of the areas considered for 
designation would reduce the total impacts of designation. The 
determination of which units to exclude depends on NMFS' ESA section 
4(b)(2) analysis, which is conducted for each area and described in 
detail in the draft ESA 4(b)(2) report (NMFS, 2010b). Under the 
preferred alternative we propose to exclude one of the 20 areas 
considered. The total estimated economic impact associated with this 
preferred alternative is $582,500 to $155,851,400 (discounted at 7 
percent) or $551,800 to $141,300,500 (discounted at 3 percent). We 
determined that the exclusion of this one area would not significantly 
impede the conservation of

[[Page 59901]]

black abalone nor result in extinction of the species. We selected this 
as the preferred alternative because it results in a critical habitat 
designation that provides for the conservation of black abalone while 
reducing the economic impacts. This alternative also meets the 
requirements under the ESA and our joint NMFS-U.S. Fish and Wildlife 
Service (USFWS) regulations concerning critical habitat.

Black Abalone Natural History

General Description
    Black abalone (Haliotis cracherodii, Leach, 1814) are shallow-
living marine gastropods with smooth, circular, and black to slate blue 
colored shells that have five to nine open respiratory pores sitting 
flush with the shell's surface. Typically, the shell's interior is 
white (Haaker et al., 1986), with a poorly defined or no muscle scar 
(Howorth, 1978). Adults attain a maximum shell length of approximately 
20 cm (throughout this notice we use the maximum diameter of the 
elliptical shell as the index for individual body size). The muscular 
foot of the black abalone allows the animal to clamp tightly to rocky 
surfaces without being dislodged by wave action. Locomotion is 
accomplished by an undulating motion of the foot. A column of shell 
muscle attaches the body to the shell. The mantle and black epipodium, 
a sensory structure and extension of the foot which bears lobed 
tentacles of the same color (Cox, 1960), circle the foot and extend 
beyond the shell of a healthy black abalone. The internal organs are 
arranged around the foot and under the shell.

Historical and Current Distribution

    Black abalone historically occurred from Crescent City, California, 
USA, to southern Baja California, Mexico (Geiger, 2004), but today the 
species' constricted range occurs from Point Arena, California, USA, to 
Bahia Tortugas, Mexico, and it is rare north of San Francisco, 
California, USA (Morris et al., 1980), and south of Punta Eugenia, 
Mexico (P. Raimondi, pers. comm.).

Population Structure

    Recent studies have evaluated population structure in black abalone 
(Hamm and Burton, 2000; Chambers et al., 2006; Gruenthal and Burton, 
2008) using various methods. These studies indicate: (1) Minimal gene 
flow among populations; (2) black abalone populations are composed 
predominantly of closely related individuals produced by local spawning 
events; (3) gene flow among island populations is relatively greater 
than between island and mainland populations; and (4) the overall 
connectivity among black abalone populations is low and likely reflects 
limited larval dispersal and a low degree of exchange among 
populations.

Habitat

    Black abalone generally inhabit coastal and offshore island 
intertidal habitats on exposed rocky shores where bedrock provides 
deep, protective crevice shelter (Leighton, 2005). These complex 
surfaces with cracks and crevices in upper and middle intertidal zones 
may be crucial recruitment habitat and appear to be important for adult 
survival as well (Leighton, 1959; Leighton and Boolootian, 1963; 
Douros, 1985, 1987; Miller and Lawrenz-Miller, 1993; VanBlaricom et 
al., 1993; Haaker et al., 1995). Black abalone range vertically from 
the high intertidal zone to a depth of 6 m, with most animals found in 
middle and lower intertidal zones. In highly exposed locations downwind 
of large offshore kelp beds, the majority of abalone may be found in 
the high intertidal where drift kelp fragments, a principal food for 
black abalone, tend to be concentrated by breaking surf.

Movement

    Planktonic larval abalone movement is determined primarily by 
patterns of water movement in nearshore habitats near spawning sites. 
Larvae may be able to influence movement to some degree by adjusting 
their vertical position in the water column, but to our knowledge, the 
ability of black abalone larvae to move in this way has not been 
documented. Movement behavior of postmetamorphic juvenile black abalone 
is likewise unknown. Leighton (1959) and Leighton and Boolootian (1963) 
indicate that black abalone larvae may settle and metamorphose in the 
upper intertidal zone, using crevices and depressions (including those 
formed by abrasive action of other intertidal mollusks) as habitat. 
Leighton and Boolootian (1963) suggest that young black abalone move 
lower in the intertidal zone as they begin to grow, occupying the 
undersides of large boulders. To our knowledge there is no published 
information on direct observations of movement behavior of the smallest 
(<20 mm) juvenile black abalone in the field. Qualitative (Leighton, 
2005; VanBlaricom, unpublished observations) and quantitative (Bergen, 
1971; Blecha et al., 1992; VanBlaricom and Ashworth, in preparation; 
Richards, unpublished observations) studies of movement in black 
abalone suggest that smaller abalone (<65 mm) move more frequently than 
larger abalone, movement is more frequent during night hours compared 
to daylight hours, and larger abalone may remain in the same location 
for many years.

Diet

    Larvae are lecithotrophic (i.e., receive nourishment via an egg 
yolk) and apparently do not actively feed during their planktonic life 
stage. From the time of post-larval metamorphosis to a size of about 20 
mm, black abalone are highly cryptic, occurring primarily on the 
undersides of large boulders or in deep narrow crevices in solid rocky 
substrata. In such locations the primary food sources are thought to be 
microbial and possibly diatom films (Leighton, 1959; Leighton and 
Boolootian, 1963; Bergen, 1971) and crustose coralline algae. At 
roughly 20 mm black abalone move to more open locations, albeit still 
relatively cryptic, gaining access to both attached macrophytes and to 
pieces of drift plants cast into the intertidal zone by waves and 
currents. As black abalone continue to grow, the most commonly observed 
feeding method is entrapment of drift plant fragments. Webber and Giese 
(1969), Bergen (1971), Hines and Pearse (1982), and Douros (1987) have 
confirmed the importance of large kelps in the diet of juvenile and 
adult black abalone. The primary food species are said to be giant kelp 
(Macrocystis pyrifera) and feather boa kelp (Egregia menziesii) in 
southern California (i.e., south of Point Conception) habitats, and 
bull kelp (Nereocystis leutkeana) in central and northern California 
habitats.

Reproduction

    Black abalone reach reproductive maturity between 3 and 7 years 
(Smith et al., 2003), have separate sexes, and are ``broadcast'' 
spawners. Gametes from both parents are shed into the sea, and 
fertilization is entirely external. Resulting larvae are minute and 
defenseless, receive no parental care or protection of any kind, and 
are subject to a broad array of physical and biological sources of 
mortality. Species with a broadcast-spawning reproductive strategy are 
subject to strong selection for maximum fecundity of both sexes. Only 
through production of large numbers of gametes can broadcast spawners 
overcome high mortality of gametes and larvae and survive across 
generations. It is not uncommon for broadcast-spawning marine species, 
a group including many taxa of fish and invertebrates, to produce 
millions of eggs or sperm per individual per year.

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Broadcast spawners are also subject to other kinds of selection for 
certain traits associated with reproduction, including spatial and 
temporal synchrony in spawning and mechanisms that increase 
probabilities for union of spawned gametes.

Spawning Density

    As intertidal organisms on exposed rocky shores, black abalone 
typically release gametes into environments of extreme turbulence. As a 
consequence, eggs and sperm must be released from adults in relatively 
close spatial and temporal proximity in order to have any chance of 
union and fertilization before rapid dispersal and loss of opportunity. 
A central problem for conservation of black abalone is the dramatic 
reduction in densities over the past quarter century in almost the 
entire geographic range of the species. Reductions in density are so 
extreme and widespread that considerable attention is now focused on 
assessment of critical density thresholds for successful reproduction, 
recruitment, and population sustainability. Critical density 
thresholds, below which recruitment failure occurs, exist across a 
broad taxonomic range of marine, broadcast-spawning invertebrates 
(e.g., sea urchins, sea cucumbers, hard clams, scallops, giant clams, 
and geoduck clams). Neuman et al. (in press) reviewed recruitment 
patterns in three long-term data sets for black abalone in California, 
and in each case, recruitment failed when declining population 
densities fell below 0.34 m<SUP>-2</SUP>. Densities in most black 
abalone populations in Southern California have fallen below the 
densities noted. Recent evidence suggests that disease-induced 
increases in the mortality rate of black abalone continue to move 
northward along the mainland coast of California (e.g., Raimondi et 
al., 2002; Miner et al., 2006). Thus, the number and geographic scope 
of populations with densities falling below sustainable levels is 
expected to increase.

Larval Dispersal, Settlement, and Recruitment

    Most abalone larvae drift in the water for a period of about 3-10 
days before settlement and metamorphosis (e.g., McShane, 1992). During 
that short period of time, abalone have limited capacity for dispersal 
over distances beyond a few kilometers. Indirect methods for assessing 
larval dispersal in abalone support the conclusion that black abalone 
exhibit limited larval dispersal (Tegner and Butler, 1985; Prince et 
al., 1988; Hamm and Burton, 2000; Chambers et al., 2005; Chambers et 
al., 2006; Gruenthal, 2007).
    A sequence of studies and discoveries suggests that availability of 
crustose coralline algae in appropriate intertidal habitats may be an 
important settlement cue for larval black abalone, and that the 
presence of adult black abalone may facilitate larval settlement and 
metamorphosis because the activities and presence of the abalone 
promote the maintenance of substantial substratum cover by crustose 
coralline algae (Morse et al., 1979; Morse and Morse, 1984; Douros, 
1985; Trapido- Rosenthal and Morse, 1986; Morse, 1990; Morse, 1992; 
Miner et al., 2006). Although crustose coralline algae are ubiquitous 
in rocky benthic habitats along the west coast of North America, a 
mechanistic understanding of processes that sustain these algal 
populations has not been established, to our knowledge.

Growth and Longevity

    Available data on black abalone growth suggest that young animals 
reach maximum shell diameters of about 2 cm in their first year, then 
grow at rates of 1-2 cm per year for the next several years. Growth 
begins to slow at lengths of about 10 cm, corresponding to an age range 
of 4-8 years. Beyond this point, growth is less predictable, shell 
erosion may become a significant factor, and size distributions for 
older animals may vary according to local conditions. Growth and 
erosion of shells may come into equilibrium in older black abalone, 
such that growth can be viewed as facultatively determinant. Maximum 
recorded shell length for black abalone was listed at 213 mm by Wagner 
and Abbott (1990). Ault (1985) reported a maximum shell length of black 
abalone at 215 mm. Leighton (2005) indicated a shell length of 216 mm 
reported by Owen (unpublished observation). Maximum longevity of black 
abalone is thought to be 20-30 years.

Mortality

    The most important source of black abalone mortality is the disease 
known as withering syndrome (hereafter WS). Disease transmission and 
manifestation is intensified when local sea surface temperatures 
increase by as little as 2.5 [deg]C above ambient sea surface 
temperatures and remain elevated over a prolonged period of time (i.e., 
a few months or more) (Friedman et al., 1997; Raimondi et al., 2002; 
Harley and Rogers-Bennett, 2004; Vilchis et al., 2005). WS is caused by 
a Rickettsiales-like prokaryotic pathogen of unknown origin that 
invades digestive epithelial cells and disrupts absorption of digested 
materials from the gut lumen into the tissues (Gardner et al., 1995). 
Progressive signs of the disease include pedal atrophy, diminished 
responsiveness to tactile stimuli, discoloration of the epipodium, and 
a loss of ability to maintain adhesion to rocky substratum (Raimondi et 
al., 2002). While population-scale mortality rates due to WS may vary 
in space and time from near zero to high proportions of local 
populations, the available evidence suggests that the highest disease-
induced mortality events have followed periods of elevated sea surface 
temperature (e.g., Raimondi et al., 2002). Laboratory studies have 
demonstrated that elevated water temperature, while not a direct cause 
of WS, accelerates the mortality of black abalone carrying the pathogen 
that causes the disease (Friedman et al., 1997). A recent study 
examined the effects of elevated sea surface temperature on abalone at 
the individual level, and suggested that warming ocean temperatures are 
likely to have negative consequences on those species associated with 
cooler water temperatures and/or particularly susceptible to WS 
(Vilchis et al., 2005). Although there is no explicitly documented 
causal link between the persistence of WS and long-term climate change, 
patterns observed over the past 3 decades suggest that progression of 
ocean warming associated with large-scale climate change may facilitate 
further and more prolonged vulnerability of black abalone to the 
effects of WS. The preponderance of evidence indicates that WS 
continues to damage the size and sustainability of black abalone 
populations on a large scale, with little plausible basis for any 
predictions of reversal except in localized, spatially isolated cases.
    Factors such as poaching, reduced genetic diversity, ocean 
acidification, non-anthropogenic predation (e.g., by octopuses, 
lobsters, sea stars, fishes, sea otters, and shorebirds) and 
competition (e.g., with sea urchins), food limitation, environmental 
pollutants and toxins, and substrate destruction may all impose 
mortality on black abalone at varying rates, but predicting the 
relative impacts of each of these factors on the long-term viability of 
black abalone is difficult without further study. In addition to the 
aforementioned present-day sources of mortality, commercial and 
recreational fisheries operating in California until 1993 likely 
contributed to the species' decline. For more information on historic 
and present-day factors leading to the decline of black abalone 
populations, please see the NMFS status review for black abalone

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(VanBlaricom et al., 2009), and the proposed and final listing rules 
for black abalone (71 FR 1986, January 11, 2008; 74 FR 1937, January 
14, 2009).

Methods and Criteria Used To Identify Critical Habitat

    In accordance with section 4(b)(2) of the ESA and our implementing 
regulations (50 CFR 424.12(a)), this proposed rule is based on the best 
scientific information available concerning the present and historical 
range, habitat, biology, and threats to habitat for black abalone. In 
preparing this rule, we reviewed and summarized current information on 
black abalone, including recent biological surveys and reports, peer-
reviewed literature, the NMFS status review for black abalone 
(VanBlaricom et al., 2009), and the proposed and final listing rules 
for black abalone (71 FR 1986, January 11, 2008; 74 FR 1937, January 
14, 2009). To assist with the evaluation of critical habitat, we 
convened a black abalone critical habitat review team (CHRT), comprised 
of seven Federal biologists from NMFS, the National Park Service (NPS), 
US Geological Survey (USGS), Minerals Management Service (hereafter 
MMS; MMS has been renamed the Bureau of Ocean Energy Management, 
Regulation, and Enforcement, or BOEMRE, as of June 18, 2010), and the 
Monterey Bay National Marine Sanctuary with experience in abalone 
research, monitoring and management. The CHRT used the best available 
scientific and commercial data and their best professional judgment to: 
(1) Verify the geographical area occupied by black abalone 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 
black abalone. The CHRT's evaluation and conclusions are described in 
detail in the following sections, as well as in the draft biological 
report (NMFS, 2010c).

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.''
    Based on the best available scientific information, the CHRT 
identified the following PCEs essential for the conservation of black 
abalone:
    (1) Rocky substrate. Suitable rocky substrate includes rocky 
benches formed from consolidated rock of various geological origins 
(e.g., igneous, metamorphic, and sedimentary) that contain channels 
with macro- and micro-crevices or large boulders (greater than or equal 
to 1 m in diameter) and occur from mean higher high water (MHHW) to a 
depth of 6 m. All types of relief (high, medium and low; 0.5 to greater 
than 2 m vertical relief; Wentworth, 1922) support black abalone and 
complex configurations of rock surfaces likely afford protection from 
predators, direct impacts of breaking waves, wave-born projectiles, and 
excessive solar heating during daytime low tides. Most black abalone 
occupy the middle and lower intertidal zones. In highly exposed 
locations downwind of large offshore kelp beds, the majority of abalone 
may be found in the high intertidal where drift kelp fragments tend to 
be concentrated by breaking surf. Leighton (1959) found evidence for 
ontogenetic shifts in depth distribution among juvenile abalone on the 
Palos Verdes Peninsula. Juvenile black abalone (10-30 mm) were found at 
mid-intertidal depths on undersides of rock providing clear beneath-
rock open space while juveniles in the 5-10 mm size range were found at 
higher intertidal zones in narrow crevices and in depressions abraded 
into rock surfaces by the intertidal chiton, Nutallina californica 
(Reeve, 1847). Black abalone observed at greater depths (3-6 m) 
typically were mature adults. California contains approximately 848.5 
miles (1365.5 km) of consolidated rocky coastline and 599.3 miles 
(964.5 km) or 70 percent of it falls within the areas considered in 
this proposed critical habitat designation.
    (2) Food resources. Abundant food resources including bacterial and 
diatom films, crustose coralline algae, and a source of detrital 
macroalgae, are required for growth and survival of all stages of black 
abalone. From post-larval metamorphosis to a size of about 20 mm, black 
abalone consume microbial and possibly diatom films (Leighton, 1959; 
Leighton and Boolootian, 1963; Bergen, 1971) and crustose coralline 
algae. At roughly 20 mm black abalone begin feeding on both attached 
macrophytes and pieces of drift plants cast into the intertidal zone by 
waves and currents. The primary macroalgae consumed by juvenile and 
adult black abalone are giant kelp (Macrocystis pyrifera) and feather 
boa kelp (Egregia menziesii) in southern California (i.e., south of 
Point Conception) habitats, and bull kelp (Nereocystis leutkeana) in 
central and northern California habitats (i.e., north of Santa Cruz). 
Southern sea palm (Eisenia arborea), elk kelp (Pelagophycus porra), 
stalked kelp (Pterygophora californica), and other brown kelps 
(Laminaria sp.) may also be consumed by black abalone.
    (3) Juvenile settlement habitat. Rocky intertidal habitat 
containing crustose coralline algae and crevices or cryptic biogenic 
structures (e.g., urchins, mussels, chiton holes, conspecifics, 
anemones) is important for successful larval recruitment and juvenile 
growth and survival of black abalone less than approximately 25 mm 
shell length. The presence of adult abalone may facilitate larval 
settlement and metamorphosis, because adults may: (1) Promote the 
maintenance of substantial substratum cover by crustose coralline algae 
by grazing other algal species that could compete with crustose 
coralline algae; and/or (2) outcompete encrusting sessile invertebrates 
(e.g., tube worms and tube snails) for space on rocky substrates 
thereby promoting the growth of crustose coralline algae and settlement 
of larvae; and/or (3) emit chemical cues necessary to induce larval 
settlement (Miner et al., 2006; Toonen and Pawlick, 1994). Increasing 
partial pressure of CO<INF>2</INF> may decrease calcification rates of 
coralline algae,

[[Page 59904]]

thereby reducing their abundance and ultimately affecting the survival 
of newly settled black abalone (Feely et al., 2004; Hall-Spencer et 
al., 2008). Laboratory experiments have shown that the presence of 
pesticides (e.g., dichlorodiphenyltrichloroethane (DDT), 2,4-
dichlorophenoxyacetic acid (2,4-D), methoxychlor, dieldrin) interfered 
with larval settlement of abalone because the chemical cues emitted by 
coralline algae and its associated diatom films which trigger abalone 
settlement are blocked (Morse et al., 1979), and the pesticide 
oxadiazon was found to severely reduce algal growth (Silver and Riley, 
2001). We are not aware of additional information regarding processes 
that mediate crustose coralline algae abundance and solicit the public 
for more information on this topic.
    (4) Suitable water quality. Suitable water quality includes 
temperature, salinity, pH, and other chemical characteristics necessary 
for normal settlement, growth, behavior, and viability of black 
abalone. The biogeographical water temperature range of black abalone 
is from 12 to 25 [deg]C, but they are most abundant in areas where the 
water temperature ranges from 18 to 22 [deg]C (Hines et al., 1980). 
There is increased mortality due to WS during periods following 
elevated sea surface temperature (Raimondi et al., 2002). The CHRT did 
not consider the presence of the bacteria that causes WS when 
evaluating the condition of this PCE because it is thought to be 
present throughout a large portion of the species' current range 
(greater than 60 percent), including all coastal specific areas south 
of Monterey County, CA and the Farallon Islands (J. Moore, pers. 
comm.). Instead the CHRT relied on sea surface temperature information 
to evaluate water quality in terms of disease virulence, recognizing 
that elevated sea surface temperatures are correlated with increased 
rates of WS transmission and manifestation in abalone. Elevated levels 
of contaminants (e.g., copper, oil, polycyclic aromatic hydrocarbon 
(PAH) endocrine disrupters, persistent organic compounds (POC)) can 
cause mortality of black abalone. In 1975, toxic levels of copper in 
the cooling water effluent of a nuclear power plant near Diablo Canyon, 
California, were associated with abalone mortalities in a nearshore 
cove that received significant effluent flows (Shepherd and Breen, 
1992; Martin et al., 1977). As mentioned above for the Juvenile 
settlement habitat PCE, laboratory experiments have shown that the 
presence of some pesticides interfere with larval settlement of abalone 
(Morse et al., 1979) and severely reduce algal growth (Silver and 
Riley, 2001). We are not aware of other studies that have established 
direct and indirect links between currently used pesticides and effects 
on black abalone habitat quality and solicit the public for more 
information on this topic. The suitable salinity range for black 
abalone is from 30 to 35 parts per thousand (ppt), and the suitable pH 
range is 7.5-8.5. Ocean pH values that are outside of the normal range 
for seawater (i.e., pH less than 7.5 or greater than 8.5; http://www.marinebio.net/marinescience/02ocean/swcomposition.htm) may cause 
reduced growth and survivorship in abalone as has been observed in 
other marine gastropods (Shirayama and Thornton, 2005). Specifically, 
with increasing uptake of atmospheric CO<INF>2</INF> by the ocean, the 
pH of seawater becomes more acidic, which may decrease calcification 
rates in marine organisms and result in negative impacts to black 
abalone in at least two ways: (1) Disrupting an abalone's ability to 
maintain and grow its protective shell; and/or (2) reducing abundance 
of coralline algae (and associated diatom films and bacteria), a 
calcifying organism that may mediate settlement through chemical cues 
and support and provide food sources for newly settled abalone (Feely 
et al., 2004; Hall-Spencer et al., 2008).
    (5) Suitable nearshore circulation patterns. Suitable circulation 
patterns are those that retain eggs, sperm, fertilized eggs and ready-
to-settle larvae enough so that successful fertilization and settlement 
to suitable habitat can take place. Nearshore circulation patterns are 
controlled by a variety of factors including wind speed and direction, 
current speed and direction, tidal fluctuation, geomorphology of the 
coastline, and bathymetry of subtidal habitats adjacent to the 
coastline. Anthropogenic activities may also have the capacity to 
influence nearshore circulation patterns (e.g., intake pipes, sand 
replenishment, dredging, in water construction, etc.). These factors, 
in combination with the early life history dynamics of black abalone, 
may influence retention or dispersal rates of eggs, sperm, fertilized 
eggs and ready-to-settle larvae (Siegel et al., 2008). Given that black 
abalone gamete and larval durations are relatively short, larvae have 
little control over their position in the water column, and ready-to-
settle larvae require shallow, intertidal habitat for settlement. 
Forces that disperse larvae offshore (i.e., by distances on the order 
of greater than tens of kilometers) may decrease the likelihood that 
abalone larvae will successfully settle to suitable habitats. However, 
retention of larvae inshore due to bottom friction and minimal 
advective flows near kelp beds (the ``sticky water'' phenomenon; 
Wolanski and Spagnol, 2000; Zeidberg and Hamner, 2002) may increase the 
likelihood that larvae will successfully settle to suitable habitats.

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 and to identify specific areas, within this geographically 
occupied area, that contain at least one PCE that may require special 
management considerations or protection. In the January 2009 final ESA 
listing rule, the range of black abalone was defined to extend from 
Crescent City (Del Norte County, California) to Cape San Lucas, Baja 
California, Mexico, including all offshore islands. The northern and 
southern extent of the range was determined based on museum specimens 
collected more than 10 years prior to the listing of the species 
(Geiger, 2004). Because this range was based on dated records, and 
because we cannot designate critical habitat in areas outside of the 
United States (see 50 CFR 424.12(h)), the CHRT reconsidered the scope 
of the current (i.e., at the time of the final ESA listing) occupied 
range of black abalone. The CHRT examined data from ongoing monitoring 
studies along the California coast (Neuman et al., in press) and 
literature references to determine that, within the United States, the 
geographical area currently occupied by black abalone extends from the 
Del Mar Landing Ecological Reserve in Sonoma County, California, to 
Dana Point, Orange County, California, on the mainland and includes the 
Farallon Islands, A[ntilde]o Nuevo Island, and all of the California 
Channel Islands. The CHRT noted that there are pockets of unoccupied 
habitat within this broader area of occupation (NMFS, 2010c). Within 
this geographically occupied area, black abalone typically inhabit 
coastal and offshore island rocky intertidal habitats from MHHW to 
depths of 6 m (Leighton, 2005). The CHRT then identified ``specific 
areas'' within the geographical area occupied by the species that may 
be eligible for critical habitat designation under the ESA. For an 
occupied specific area to be eligible for designation it must contain 
at least one PCE that may require special management considerations or

[[Page 59905]]

protection. For each occupied specific area, the CHRT reviewed the 
available data regarding black abalone presence and verified that each 
area contained one or more PCE(s) that may require special management 
considerations or protection. The CHRT determined that for all specific 
areas, unless otherwise noted, MHHW delineates the landward boundary, 
and the 6 m bathymetric contour delineates the seaward boundary. The 
CHRT also agreed to consider naturally occurring geomorphological 
formations and size (i.e., area) to delineate the northern and southern 
boundaries of the specific areas. The CHRT intentionally aimed to 
delineate specific areas of similar sizes in order to minimize biases 
in the economic cost estimates for the specific areas.
    The CHRT scored and rated the relative conservation value of each 
occupied specific area. Areas rated as ``High'' were deemed to have a 
high likelihood of promoting the conservation of the species. Areas 
rated as ``Medium'' or ``Low'' were deemed to have a moderate or low 
likelihood of promoting the conservation of the species, respectively. 
The CHRT considered several factors in assigning the conservation value 
ratings, including the PCEs present, the condition of the PCEs, and the 
historical, present, and potential future use of the area by black 
abalone. 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 
draft biological report (NMFS, 2010c; available via our Web site at 
http://swr.nmfs.noaa.gov, via the Federal eRulemaking Web site at 
http://www.regulations.gov, or upon request--see ADDRESSES) describes 
in detail the methods used by the CHRT in their assessment of the 
specific areas and provides the biological information supporting the 
CHRT's assessment as well as the final conservation value ratings and 
justifications. The following paragraphs provide a brief description of 
the presence and distribution of black abalone within each area, 
additional detail regarding the CHRT's methods for delineating the 
specific areas, and the justification for assigning conservation 
scores. The following paragraphs also provide a brief description of 
the activities within each area that may threaten the quality of the 
PCEs, which are discussed in more detail in the Special Management 
Considerations or Protection section below and the draft economic 
report (NMFS, 2010a). Activities that exacerbate global climate change 
(most notably fossil fuel combustion, which contributes to an increase 
in atmospheric CO<INF>2</INF> levels and subsequent sea level rise, sea 
surface temperature elevation, and ocean acidification) were identified 
as a concern for all of the specific areas. The Black Abalone Proposed 
Critical Habitat Designation maps below, as well as the draft 
biological report (NMFS, 2010c), show the location of each specific 
area considered for designation.
    Specific Area 1. Specific Area 1 includes the rocky intertidal 
habitat from the Del Mar Landing Ecological Reserve to Bodega Head in 
Sonoma County, California. Bodega Head is a small peninsula that 
creates a natural barrier between it and the coastline that lies to the 
east and south. In addition, the geological origin of Bodega Head 
differs from that of the coastline to the east and south of it. For 
these reasons, this location was chosen to delineate the southern 
boundary of Specific Area 1. Based on the limited historical data 
available for this area (Geiger 2003, State Water Resources Control 
Board 1979, J. Sones pers. comm.), black abalone were encountered 
occasionally in some locations. Black abalone have been present in this 
area in low numbers since the Partnership for Interdisciplinary Studies 
of Coastal Oceans (PISCO) began its long-term intertidal sampling 
program in the early 2000s. Black abalone are currently considered to 
be rare (i.e., difficult to find with some search effort and rarely 
seen at sampling sites; J. Sones pers. comm.), and the CHRT expressed 
uncertainty regarding the area's ability to support early life stages 
of black abalone because historical and current data are lacking. 
However, the presence of good to excellent quality rocky substrate 
(e.g., 87 percent of rocky substrate available is consolidated), food 
resources, and water quality (Water Quality Control Board, 1979) and 
fair to good settlement habitat led the CHRT to conclude that the area 
could support a larger black abalone population comprised of multiple 
size classes. There are several activities occurring within this area 
that may threaten the quality of the PCEs including waste-water 
discharge, agricultural pesticide application and irrigation, 
construction and operation of tidal and wave energy projects, and 
activities that exacerbate global climate change (e.g., fossil fuel 
combustion). This area is at the limit of the species' northern range, 
which may explain the rarity of black abalone here, but it is also one 
of the few areas along the California coast that has not yet been 
affected by WS. The CHRT was of the opinion that the area could support 
higher densities and multiple size classes of black abalone in the 
future if habitat changes (e.g., sea surface temperature rise) render 
it more suitable for promoting population growth. Thus, the CHRT scored 
the conservation value of this area as ``High.''
    Specific Area 2. Specific Area 2 includes rocky intertidal habitat 
from Bodega Head in Sonoma County, California, to Point Bonita in Marin 
County, California. Point Bonita was chosen to delineate the southern 
boundary of this specific area because it sits at the southern point of 
the Marin Headlands, the final promontory encountered as one moves 
south along the coast before reaching the entrance to San Francisco 
Bay. Historical presence of black abalone within this area is limited, 
but in locations where black abalone were observed, they were 
considered rare (Light, 1941; Chan, 1980; S. Allen, pers. comm.). Since 
the mid-2000s, Point Reyes National Seashore and Golden Gate National 
Recreation Area staff have observed black abalone at several locations, 
but their qualitative abundance is considered to be rare (see 
definition of rare above). This area contains good to excellent quality 
consolidated rocky substrate (e.g., 71 percent of rocky substrate 
available is consolidated), food resources, and water quality, and fair 
to good settlement habitat, but as with Specific Area 1 above, the area 
is at the limit of the species' northern range, which may explain its 
rarity. There are several activities occurring within this area that 
may threaten the quality of the PCEs, including: sand replenishment, 
waste-water discharge, coastal development, non-native species 
introduction and management, activities that exacerbate global climate 
change, and agricultural pesticide application and irrigation. This 
area is at the limit of the species' northern range, which may explain 
the rarity of black abalone here, but it is also one of the few areas 
along the California coast that has not yet been affected by WS. The 
CHRT was of the opinion that the area could support higher densities 
and multiple size classes of black abalone in the future if habitat 
changes (e.g., sea surface temperature rise) render it more suitable 
for promoting population growth. Thus, the CHRT scored the conservation 
value of this area as ``High.''
    Specific Area 3. Specific Area 3 includes the rocky intertidal 
habitat surrounding the Farallon Islands, San Francisco County, 
California. This area is a group of islands and rocks found in

[[Page 59906]]

the Gulf of the Farallones, 27 miles (43 km) west of the entrance to 
San Francisco Bay and 20 miles (32 km) south of Point Reyes. The 
islands are a National Wildlife Refuge and are currently managed by the 
USFWS, in conjunction with the Point Reyes Bird Observatory 
Conservation Science. The waters surrounding the islands are part of 
the Gulf of the Farallones National Marine Sanctuary. Historical 
presence of black abalone in intertidal habitats surrounding the 
Farallon Islands was noted in the late 1970s (Farallones Research 
Group, 1979) and again in the early 1990s (E. Ueber, unpublished data). 
Black abalone have been observed in Specific Area 3 during limited 
surveys conducted during the past 5 years, and researchers have 
confirmed that all of the PCEs are present and of good to excellent 
quality, and adverse impacts due to anthropogenic activities on these 
isolated islands are relatively low. However, the CHRT expressed 
concern over the following activities that may affect habitat features 
important for black abalone conservation and recovery, including: 
waste-water discharge, agricultural pesticide application and 
irrigation, and activities that exacerbate global climate change. The 
CHRT scored the conservation value of this area as ``High.''
    Specific Area 4. Specific Area 4 extends from the land mass framing 
the southern entrance to San Francisco Bay to Moss Beach, San Mateo 
County, California, and includes all rocky intertidal habitat within 
this area. There is limited historical and current information 
regarding black abalone occurrence and abundance along this stretch of 
the coast. At the one site where black abalone were noted historically, 
they were considered to be rare (Light, 1941). PISCO, Point Reyes 
National Seashore and Golden Gate National Recreation Area researchers 
found ten individuals within this specific area during limited surveys 
conducted since 2007. The CHRT considered the PCEs within the area to 
be of fair to good quality. While the CHRT was uncertain about this 
area's ability to support early life stages because data are lacking, 
it was more confident that the area can support the long-term survival 
of juveniles and adults based on several lines of evidence from 
historical records (Light, 1941, J. Sones, pers. comm..; M. Wilson, 
pers. comm.). The CHRT noted that the following activities may threaten 
the quality of the PCEs within this specific area: Sand replenishment, 
waste-water discharge, coastal development, agricultural pesticide 
application and irrigation, non-native species introduction and 
management, oil and chemical spills and clean-up, and activities that 
exacerbate global climate change. The CHRT scored the conservation 
value of this area as ``Medium.''
    Specific Area 5. Specific Area 5 includes rocky intertidal habitat 
from Moss Beach to Pescadero State Beach, San Mateo County, California. 
This area was considered separately from Specific Area 4, even though 
each area alone is smaller in size compared to the majority of the 
other specific areas. The reasons for separate consideration were that: 
(1) The CHRT team viewed the PCEs in Specific Area 5 as being of lower 
quality overall than those contained within Specific Area 4; and (2) 
the level of certainty the CHRT had in evaluating the conservation 
value of Specific Area 4 was higher than that for Specific Area 5. The 
CHRT recognized that all of the PCEs were present in the area and their 
current quality ranged from poor to good. The CHRT expressed a high 
degree of uncertainty regarding the area's ability to support early 
life stages and long-term survival of juveniles and adults because the 
area has not been adequately studied. Since the species was listed in 
2009, only one survey has been conducted by Reyes National Seashore and 
Golden Gate National Recreation Area researchers. One black abalone was 
identified during this survey. Waste-water discharge, oil and chemical 
spills and clean-up, and activities that exacerbate global climate 
change may compromise the quality of the PCEs within this specific 
area. The CHRT scored the conservation value of this area as 
``Medium,'' recognizing that it lies to the north of areas that have 
experienced population declines, and thus the habitat in this area may 
still provide a refuge from the devastating effects of WS.
    Specific Area 6. Specific Area 6 includes the rocky intertidal 
habitat surrounding A[ntilde]o Nuevo Island, San Mateo County, 
California. The island lies 50 miles (74 km) south of San Francisco Bay 
and, two hundred years ago, it was connected to the mainland by a 
narrow peninsula. Today it is separated from the mainland by a channel 
that grows wider with each winter storm. A[ntilde]o Nuevo Island is 
managed by the University of California Santa Cruz's Long Marine 
Laboratory under an agreement with the California Department of Parks 
and Recreation. The A[ntilde]o Nuevo Island Reserve, including the 
island and surrounding waters, comprises approximately 25 of the 4,000 
acres (10 of 1,600 ha) of the A[ntilde]o Nuevo State Reserve, the rest 
of which is on the mainland opposite the island. Black abalone were 
common in intertidal habitats surrounding the island during surveys 
conducted from 1987-1995, with mean densities ranging from 6-8 per m\2\ 
(Tissot, 2007; VanBlaricom et al., 2009). To our knowledge, the island 
has not been surveyed for black abalone since that time. The CHRT 
verified that good to excellent quality rocky substrate, food 
resources, and water quality, and fair to good settlement habitat exist 
at A[ntilde]o Nuevo Island, but expressed uncertainty regarding whether 
the area currently supports early life stages and long-term survival of 
juveniles and adults. The impact of global climate change on the 
habitat features important to black abalone was the only concern 
identified within this specific area. The CHRT scored the conservation 
value of this area as ``High.''
    Specific Area 7. Specific Area 7 includes the rocky intertidal 
habitat from Pescadero State Beach, San Mateo County, California, to 
Natural Bridges State Beach, Santa Cruz County, California. Situated to 
the north of Monterey Bay, Natural Bridges State Beach marks the last 
stretch of rocky intertidal habitat before reaching the primarily fine-
to medium-grained sand beaches of Monterey Bay (http://www.sanctuarysimon.org/monterey/sections/beaches/b_overview_map.php). 
Historical data are limited, but the information available suggests 
that black abalone were common at a couple of sites within this 
specific area in the late 1970s and early 1980s (Water Quality Control 
Board, 1979; J. Pearse, pers. comm.) and rare at the majority of sites 
(Water Quality Control Board, 1979; J. Pearse, pers. comm.). PISCO 
began intertidal black abalone surveys in this area in 1999 and, at 
that time, qualitative abundance ranged from rare to common, depending 
on the specific site. Sampling by PISCO within the last 5 years 
indicates that black abalone are present and common at about 50 percent 
of the sites within this area, but that abundance may be declining at a 
few of these sites. At the other sites, black abalone are either 
present, but rare, or completely absent. The CHRT confirmed that all of 
the PCEs are present and of good to excellent quality here. PISCO data 
(Raimondi et al., 2002; Tissot, 2007) provide evidence that the area 
supports early life stages (i.e., small individuals (< 30mm) are 
present currently; see definition in NMFS, 2010c) and long-term 
survival of juveniles and adults (i.e., there is stable or increasing 
abundance, and multiple

[[Page 59907]]

size classes of black abalone evident in length-frequency 
distributions; see definition in NMFS, 2010c). The CHRT identified the 
following activities that may threaten the quality of habitat features 
essential to black abalone within this area: Sand replenishment, waste-
water discharge, coastal development, sidecasting (i.e., the piling of 
excavated dirt on the edge of a ditch or elsewhere in a wetland or 
other water body because of road maintenance), agricultural pesticide 
application and irrigation, oil and chemical spills and clean-up, 
construction and operation of desalination plants, vessel grounding, 
non-native species introduction and management, kelp harvesting, and 
activities that exacerbate global climate change. The CHRT scored the 
conservation value of this area as ``High.''
    Specific Area 8. Specific Area 8 includes rocky intertidal habitats 
from Pacific Grove to Prewitt Creek, Monterey County, California. 
Pacific Grove marks the first stretch of rocky intertidal habitat to 
the south of the fine-to medium-grained sand beaches of Monterey Bay 
(http://www.sanctuarysimon.org/monterey/sections/beaches/b_overview_map.php). In order to keep the size of this area comparable to other 
specific areas, Prewitt Creek was chosen to delineate its southern 
boundary. Surveys conducted prior to 2004 indicated that black abalone 
encompassing a range of sizes were present and common at all of the 
sampled sites within this area (Water Quality Control Board, 1979; 
Raimondi et al., 2002; Tissot, 2007). More recent information gathered 
within the last 5 years by PISCO indicates that black abalone 
encompassing a range of sizes remain at all sites sampled and are 
considered common at 93 percent of the sites. The CHRT confirmed that 
all of the PCEs are present and of good to excellent quality, but may 
be threatened by waste-water discharge, coastal development, 
agricultural pesticide application and irrigation, oil and chemical 
spills and clean-up, construction and operation of desalination plants, 
kelp harvesting, and activities that exacerbate global climate change. 
PISCO data (Raimondi et al., 2002; Tissot, 2007) provide evidence that 
the area supports early life stages and long-term survival of juveniles 
and adults (see NMFS, 2010c for details). The CHRT scored the 
conservation value of this area as ``High.''
    Specific Area 9. Specific Area 9 includes rocky intertidal habitats 
from Prewitt Creek, Monterey County, California to Cayucos, San Luis 
Obispo County, California. Situated on the northern edge of Estero Bay, 
Cayucos marks the last stretch of rocky intertidal habitat before 
reaching the primarily fine-to medium-grained sand beaches of Estero 
Bay. PISCO and the University of California Santa Cruz (UCSC) 
established long-term monitoring sites within this area between 1995 
and 2008. Surveys conducted prior to 2004 indicated that black abalone 
of a range of sizes were present and common at all but one of the sites 
surveyed within this area (Water Quality Control Board, 1979; Raimondi 
et al., 2002; Tissot, 2007). More recent information gathered by PISCO 
and UCSC indicates that black abalone of a range of sizes are present 
at all sites within the area and are commonly found at 57 percent of 
the sites, occasionally found with some search effort at 14 percent of 
the sites, and rarely found at 29 percent of the sites. The CHRT 
confirmed that all of the PCEs are present and of good to excellent 
quality. The area supports early life stages and long-term survival of 
juveniles and adults (see NMFS, 2010c for details). However, the CHRT 
also noted that PISCO researchers have reported recent population 
declines at 57 percent of the sites sampled within this area and in at 
least one site, the population decline has been severe. Activities that 
may threaten the habitat features important for black abalone 
conservation are: waste-water discharge, agricultural pesticide 
application and irrigation, oil and chemical spills and clean-up, 
construction and operation of desalination plants, kelp harvesting, and 
activities that exacerbate global climate change. The CHRT scored the 
conservation value of this area as ``High.''
    Specific Area 10. Specific Area 10 includes rocky intertidal 
habitats from Monta[ntilde]a de Oro State Park in San Luis Obispo 
County, California, to just south of Government Point, Santa Barbara 
County, California. Monta[ntilde]a de Oro State Park is the first 
stretch of rocky intertidal habitat encountered to the south of the 
sandy beaches of Estero Bay, thus it was chosen to delineate the 
northern boundary of this specific area. The southern boundary of this 
area, Government Point, is where the Santa Barbara Channel meets the 
Pacific Ocean, the mostly north-south trending portion of coast 
transitions to a mostly east-west trending part of the coast, and a 
natural division between Southern and Central California occurs. For 
these reasons, it was chosen as the southern boundary of this specific 
area. Historical data indicates that black abalone were present at 100 
percent of the sites sampled within this specific area and that they 
were considered to be common at a majority of the sites sampled 
(Raimondi et al., 2002; Tissot, 2007). PISCO and UCSC established long-
term monitoring sites within this area between 1992 and 2007, and, 
within the last 5 years, population declines have been noted at most 
locations within this specific area, with local extinction occurring in 
at least one sampling site. Despite declines in abundance and lack of 
evidence of recent recruitment in this specific area, the CHRT 
confirmed that the PCEs range from fair to excellent quality along this 
stretch of the California coast. The CHRT identified several activities 
that may threaten the quality of the PCEs within this specific area, 
including: in-water construction, waste-water discharge, coastal 
development, agricultural pesticide application and irrigation, 
construction and operation of power generating and desalination plants, 
mineral and petroleum exploration and extraction, non-native species 
introduction and management, kelp harvesting and activities that 
exacerbate global climate change. The CHRT scored the conservation 
value of this area as ``High.''
    Specific Area 11. Specific Area 11 includes rocky intertidal 
habitats surrounding the Palos Verdes Peninsula and extends from the 
Palos Verdes/Torrance border to Los Angeles Harbor in southwestern Los 
Angeles County, California. This small peninsula is one of only two 
areas within Santa Monica Bay that contain intertidal and subtidal 
rocky substrate suitable for supporting black abalone. The limited 
extent of rocky intertidal habitat is what defines the northern and 
southern boundaries of this specific area. Long-term intertidal 
monitoring on the Peninsula conducted by the California State 
University Long Beach (CSULB) and the Cabrillo Marine Aquarium began in 
1975, and, at that time, densities ranged from 2 to 7 per m\2\. 
Densities declined throughout the 1980s, and by the 1990s black abalone 
were locally extinct at a majority of sampling sites within the area. 
Good to high quality rocky substrate and food resources and fair to 
good settlement habitat persist within this area, which led to the 
CHRT's conclusion that this area is of ``Medium'' conservation value. 
The CHRT recognized that water quality within this area is in poor 
condition. Unlike the majority of the other areas where significant 
declines in black abalone abundance have been observed, declines in 
this area occurred prior to the onset of WS and have been attributed to 
the combined effects of significant El Ni[ntilde]o events and poor

[[Page 59908]]

water quality resulting from large-volume domestic sewage discharge by 
Los Angeles County during the 1950s and 1960s (Leighton, 1959; Cox, 
1962; Young, 1964; Miller and Lawrenz-Miller, 1993). From the mid-1970s 
to 1997, however, improved wastewater treatment processes resulted in 
an 80 percent reduction in the discharge of total suspended solids from 
the White Point outfall. That, along with kelp replanting efforts in 
the 1970s, resulted in a remarkable increase in the kelp canopy from a 
low of 5 acres (2 hectares) in 1974 to a peak of more than 1,100 acres 
(445 hectares) in 1989. More recently, erosion and sedimentation have 
threatened the kelp beds off the Palos Verdes Peninsula. Since 1980, an 
active landslide at Portuguese Bend on the Palos Verdes Peninsula has 
supplied more than seven times the suspended solids as the Whites Point 
outfall (LACSD, 1997). Currently, there is no evidence that this area 
supports recruitment, and, given the extremely low numbers of juveniles 
and adults, it is suspected that the area does not support long-term 
persistence of this population (Miller and Lawrenz-Miller, 1993; J. 
Kalman and B. Allen, pers. comm.). However, because many of the habitat 
features important to black abalone are still present and are in fair 
to excellent condition, the CHRT scored the conservation value of this 
area as ``Medium.'' The activities that may threaten the habitat 
features important to the conservation of black abalone are sand 
replenishment, waste-water management, non-native species introduction 
and management, kelp harvesting, and activities that exacerbate global 
climate change.
    Specific Area 12. Specific Area 12 includes rocky intertidal 
habitats from Corona Del Mar State Beach to Dana Point in Orange 
County, California. The limited extent of rocky intertidal habitat is 
what defines the northern and southern boundaries of this specific 
area. Historical information for this area indicates that black abalone 
were present along this stretch of coastline, and limited abundance 
information suggests densities of <1 per m\2\ (Tissot, 2007; S. Murray, 
pers. comm.) in the late 1970s and early 1980s. Thus, there is 
uncertainty regarding whether these populations were viable at that 
time. By 1986, local extinction of black abalone at one sampling 
location within this specific area was reported (Tissot, 2007). The 
University of California Fullerton began monitoring four sites within 
this area in 1996, and no black abalone have been observed at these 
locations within the last 5 years. A putative black abalone was 
observed at one additional location in January, 2010. The area contains 
rocky substrate (88 percent of rocky substrate is consolidated) and 
food resources that are in fair to good condition, but settlement 
habitat and water quality are in poor to fair condition. Abundance of 
crustose coralline algae is limited in the rocky intertidal area and 
the extirpation of abalone from the habitat has resulted in a shift in 
its biogenic structure, rendering the area less suitable for settling 
abalone larvae. Water quality may be tainted by waste-water discharge, 
agricultural pesticide application and irrigation, construction and 
operation of desalination plants, and changes in the thermal and 
chemical properties of sea water through global climate change. Food 
resources within this area may be impacted by kelp harvesting 
activities. The CHRT scored this area of ``Low'' conservation value 
primarily because the quality of the PCEs is relatively low and because 
black abalone have not been identified at regularly monitored sampling 
locations within the last five years.
    Specific Areas 13-16. Specific Areas 13-16 include the rocky 
intertidal habitat surrounding the Northern California Channel Islands: 
San Miguel, Santa Rosa, and Santa Cruz islands in Santa Barbara County, 
California, and Anacapa Island in Ventura County, California. The 
Northern Channel Islands lay just off California's southern coast in 
the Santa Barbara Channel and remain somewhat isolated from mainland 
anthropogenic impacts. In 1980, Congress designated these islands and 
approximately 100,000 acres (405 km\2\) of submerged land surrounding 
them as a national park because of their unique natural and cultural 
resources. This area was augmented by the designation of Channel 
Islands National Marine Sanctuary later that year. The sanctuary 
boundaries stretch 6 nautical miles (11 km) offshore, including their 
interconnecting channels. Channel Islands National Park (CINP) began an 
intertidal monitoring program on San Miguel, Santa Rosa, and Anacapa 
islands in the early to mid-1980s, while monitoring on Santa Cruz 
Island did not begin until 1994. Historically, black abalone were 
present and common at 76 percent of the sampling locations within these 
specific areas (Water Quality Control Board, 1979; Water Quality 
Control Board, 1982; Water Quality Control Board, 1982; B. Douros, 
pers. comm.; CINP, pers. comm.; Tissot, 2007). Severe population 
declines began in 1986 and by the 1990s declines in abundance of >99 
percent were observed at all of the CINP sampling sites. Within the 
last 5 years, abundance at most locations remains depressed; however, 
at a small number of sites abundance has increased and repeated 
recruitment events have occurred. These areas contain fair to excellent 
rocky substrate, food resources, settlement habitat and water quality, 
despite the fact that abundance has declined dramatically since the 
1980s. Because these islands are somewhat remote, there is a limited 
list of activities that may threaten the PCEs in these specific areas 
and they include: oil and chemical spills and clean-up on Santa Cruz 
Island; waste-water discharge, agricultural pesticide application and 
irrigation on Anacapa Island; and kelp harvesting and activities that 
exacerbate global warming. The CHRT recognized that, although these 
areas are currently lacking multiple size classes of black abalone, 
there is evidence of small-scale recovery at a few locations, and, 
therefore, these areas received ``High'' conservation value scores.
    Specific Areas 17-20. Specific Areas 17-20 include the rocky 
intertidal habitat surrounding the Southern California Channel Islands: 
San Nicolas Island in Ventura County, CA, Santa Barbara Island in Santa 
Barbara County, CA, and Santa Catalina and San Clemente islands in Los 
Angeles County, California. The Southern Channel Islands are part of 
the same archipelago that includes the Northern Channel Islands. San 
Nicolas and San Clemente islands have been owned and operated by the 
U.S. Navy since the early 1930s. These islands accommodate a variety of 
Navy training, testing and evaluation activities including naval 
surface fire support, air-to-ground ordnance delivery operations, 
special operations, surface weapon launch support, and radar testing. 
Santa Barbara Island and its surrounding waters out to six nautical 
miles (11km) were designated part of the CINP and the Channel Islands 
National Marine Sanctuary in 1980. Since 1972, Santa Catalina Island 
has been owned primarily by a nonprofit organization, the Catalina 
Island Conservancy, whose mission is to preserve and conserve the 
island.
    Since 1981, the U. S. Geological Survey (USGS) and the University 
of Washington (UW) have monitored multiple sites around San Nicolas 
Island. Black abalone were considered common at all of the sites up 
until approximately 1993, when mass mortalities due to WS swept through 
the island (VanBlaricom, 2009). Within the last 5 years, slight 
increases in

[[Page 59909]]

abundance have been observed at 33 percent of the sampled sites and 
moderate increases in abundance at one site. At 55 percent of the 
sampled sites, abundance remains low with densities less than 2 percent 
of their former values prior to population declines. Recent repeated 
recruitment events have occurred at a few sites as evidenced by the 
presence of small individuals (<30 mm; VanBlaricom, unpublished data). 
Thus, this specific area supports early life stages. However, the long-
term survival of juveniles and adults is questionable, given that 
relative abundance levels remain low and evidence of multiple size 
classes is still lacking at the majority of sampling sites. All of the 
PCEs are present and are of good to excellent quality, which led the 
CHRT to score this area as one of ``High'' conservation value. The CHRT 
identified the following activities that may compromise the quality of 
habitat features essential to the conservation of black abalone within 
this specific area: in-water construction, waste-water management, 
coastal development, construction and operation of desalination plants, 
kelp harvesting, and activities that exacerbate global climate change.
    CINP began limited sampling at Santa Barbara Island in 1985. At 
that time black abalone were present on the island, and their 
qualitative abundance levels ranged from rare to common. Within the 
last 5 years black abalone have disappeared from one sampling site and 
remain present, but rare, at another. The CHRT considered the rocky 
substrate and settlement habitat to be of fair to good quality, food 
resources to be of poor to fair quality, and water quality to be good 
to excellent. However, given the lack of evidence of recruitment both 
historically and currently and very low numbers of juveniles and 
adults, the CHRT scored the conservation value of this area as 
``Medium.'' The only activities that threaten the PCEs and that may 
require special management on Santa Barbara Island are those that alter 
the thermal and chemical properties of sea water through global climate 
change, most notably fossil fuel combustion.
    Surveys conducted around Catalina Island in the 1960s, 1970s, and 
1980s confirm that black abalone were present at a variety of locations 
around the island, but size distribution and abundance information are 
lacking. The PISCO University of California Los Angeles group 
established two long-term sampling sites in 1982 and 1995, and, since 
the 1990s, black abalone have not been encountered at these sites. All 
of the PCEs are present and are in fair to excellent condition. There 
is a great deal of uncertainty regarding whether the island supports 
early life stages and the long-term survival of juveniles and adults 
because data are lacking. The CHRT scored the conservation value of 
this area as ``High,'' despite uncertainty in the demographic history 
and current status of populations on Catalina, because the habitat is 
in good condition and could support black abalone populations in the 
future. Several activities may compromise the generally good habitat 
quality surrounding Catalina Island, including in-water construction, 
waste-water discharge, coastal development, oil and chemical spills and 
clean-up, construction and operation of desalination plants and tidal 
and wave energy projects, kelp harvesting and activities that 
exacerbate global climate change.
    San Clemente Island was surveyed by the California Department of 
Fish and Game from 1988-1993. As late as October 1988, black abalone 
were present and populations were robust at a number of locations, but 
by 1990, population declines due to WS were underway (CDFG, 1993). 
Densities decreased to less than 1 per m\2\ by 1993 (CDFG, 1993). The 
Department of Defense initiated a San Clemente Island-wide 
investigation to determine the current extent of remaining black 
abalone populations on the island in 2008. During 30-minute timed 
searches at 61 locations that each covered approximately 1500 m\2\ of 
potential black abalone habitat, ten black abalone (all > 100 mm) were 
identified and all but two of the animals were solitary individuals 
(Tierra Data Inc., 2008). All of the PCEs are present and are in good 
to excellent condition, despite the fact that there is no evidence of 
recruitment and the island currently does not support long-term 
survival of adults. In order to protect these high quality PCEs and 
promote the conservation of black abalone, certain activities may 
require modification, such as in-water construction, coastal 
development, kelp harvesting, and activities that exacerbate global 
climate change. Thus, the CHRT deemed this area as being of ``High'' 
conservation value.

Special Management Considerations or Protection

    Joint NMFS and USFWS regulations at 50 CFR 424.02(j) define 
``special management considerations or protection'' to mean ``any 
methods or procedures useful in protecting physical and biological 
features of the environment for the conservation of listed species.'' 
The CHRT identified several threats to black abalone PCEs and the areas 
in which those threats occur. NMFS and the CHRT then determined whether 
at least one PCE in each specific area may require special management 
considerations or protection because of a threat or threats. NMFS and 
the CHRT worked together to identify activities that could be linked to 
threats, and when possible, identified ways in which activities might 
be altered in order to protect and improve the quality of black abalone 
PCEs. These activities are described briefly in the following 
paragraphs and Table 1. These activities are documented more fully in 
the draft biological report (NMFS, 2010c) and draft economic report 
(NMFS, 2010a), which provide a description of the potential effects of 
each category of activities on the PCEs.
    The major categories of habitat-related activities include: (1) 
Coastal development (e.g., construction or expansion of stormwater 
outfalls, residential and commercial construction); (2) in-water 
construction (e.g., coastal armoring, pier construction, jetty or 
harbor construction, pile driving); (3) sand replenishment or beach 
nourishment activities; (4) dredging and disposal of dredged material; 
(5) agricultural activities (e.g., irrigation, livestock farming, 
pesticide application); (6) National Pollutant Discharge Elimination 
System (NPDES) activities and activities generating non-point source 
pollution; (7) sidecasting activities (e.g., the piling of excavated 
dirt on the edge of a ditch or elsewhere in a wetland or other water 
body because of road maintenance); (8) oil and chemical spills and 
clean-up activities; (9) mineral and petroleum exploration or 
extraction activities; (10) power generation operations involving water 
withdrawal from and discharge to marine coastal waters; (11) 
construction and operation of alternative energy hydrokinetic projects 
(tidal or wave energy projects); (12) construction and operation of 
desalination plants; (13) construction and operation of liquefied 
natural gas (LNG) projects; (14) vessel groundings; (15) non-native 
species introduction and management (from commercial shipping and 
aquaculture); (16) kelp harvesting activities; and (17) activities that 
exacerbate global climate change (e.g., fossil fuel combustion).
    The draft Biological Report (NMFS 2010a) and draft Economic 
Analysis Report (NMFS 2010b) provide a description of the potential 
effects of each category of activities and threats on the PCEs. For 
example, activities such as in-water construction, coastal development, 
dredging and disposal, sidecasting, mineral and petroleum

[[Page 59910]]

exploration and extraction, and sand replenishment may result in 
increased sedimentation, erosion, turbidity, or scouring in rocky 
intertidal habitats and may have adverse impacts on rocky substrate, 
settlement habitat, food resources, water quality, or nearshore 
circulation patterns. The construction of proposed energy and 
desalination projects along the coast would result in increased in-
water construction and coastal development. The operation of these 
energy projects and desalination projects may also increase local water 
temperatures with the discharge of heated effluent, introduce elevated 
levels of certain metals or contaminants into the water, or alter 
nearshore water circulation patterns. The discharge of contaminants 
from activities such as NPDES activities may affect water quality, food 
resources (by affecting the algal community), and settlement habitat 
(by affecting the ability of larvae to settle). Introduction of non-
native species may also affect food resources and settlement habitat if 
these species alter the natural algal communities. Shifts in water 
temperatures and sea level related to global climate change may also 
affect black abalone habitat. For example, coastal water temperatures 
may increase to levels above the optimal range for black abalone, and 
sea level rise may alter the distribution of rocky intertidal habitats 
along the California coast.

 Table 1--Summary of Activities That May Affect Black Abalone PCEs, Including: The Area(s) in Which the Activity
Is Located, the PCE(s) the Activity Could Affect and the Nature of That Threat, the ESA Section 7 Nexus for That
 Activity, and the Possible Modifications to the Activity Due to the Black Abalone Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                                                                                  Possible
           Activity             Specific areas    PCE and nature of      Section 7 nexus     modification(s) to
                                                     the threat                                 the activity
----------------------------------------------------------------------------------------------------------------
Dredging.....................  Unknown........  Rocky substrate PCE-- The U.S. Army Corps   Restrictions on the
                               We solicit the    Dredging that does    of Engineers          spatial and
                                public for       occur near rocky      (USACE) issues        temporal extent of
                                more             intertidal areas      permits pursuant to   dredging activities
                                information      may increase          Section 404 of the    and the deposition
                                (see ``Public    sedimentation into    Clean Water Act       of dredge spoil.
                                Comments         the rocky habitat.    (CWA), among          Requirements to
                                Solicited'').    A variety of          several others. The   treat (detoxify)
                                                 harmful substances,   USACE must then       dredge spoil.
                                                 including heavy       consult with NMFS
                                                 metals, oil,          under section 7 of
                                                 tributyltin (TBT),    the ESA.
                                                 polychlorinated
                                                 biphenyls (PCBs)
                                                 and pesticides, can
                                                 be absorbed into
                                                 the seabed
                                                 sediments and
                                                 contaminate them.
                                                Water quality PCE--
                                                 Dredging and
                                                 disposal processes
                                                 can release
                                                 contaminants into
                                                 the water column,
                                                 affecting water
                                                 quality, and making
                                                 them available to
                                                 be taken up by
                                                 animals and plants,
                                                 which could cause
                                                 morphological or
                                                 reproductive
                                                 disorders..
In-water construction........  10, 17, 19, and  Rocky substrate PCE-- The USACE issues      Bank stabilization
                                20.              Increased             permits pursuant to   measures and more
                                                 sedimentation, a      Section 10 of the     natural erosion
                                                 side effect of some   Rivers and Harbors    control.
                                                 in-water              Act of 1899 (RHA)
                                                 construction          among several
                                                 projects, can         others. Although in-
                                                 reduce the quality    water construction
                                                 and/or quantity of    projects are
                                                 rocky substrate.      commonly unertaken
                                                Food resources PCE--   by private or non-
                                                 The presence of in-   Federal parties, in
                                                 water structures      most cases they
                                                 may affect black      must obtain a USACE
                                                 abalone habitat by    permit. The USACE
                                                 affecting the         must then consult
                                                 distribution and      with NMFS under
                                                 abundance of algal    section 7 of the
                                                 species that          ESA.
                                                 provide food for
                                                 abalone or the
                                                 distribution and
                                                 abundance of other
                                                 intertidal
                                                 invertebrate
                                                 species..

[[Page 59911]]

 
                                                Settlement habitat
                                                 PCE--Changes in
                                                 algal communities
                                                 could affect
                                                 settlement of
                                                 larval abalone
                                                 (believed to be
                                                 influenced by the
                                                 presence of
                                                 coralline algae)..
                                                Nearshore
                                                 circulation pattern
                                                 PCE--Nearshore
                                                 circulation
                                                 patterns may affect
                                                 intertidal
                                                 communities by
                                                 providing stepping-
                                                 stones between
                                                 populations,
                                                 resulting in range
                                                 extensions for
                                                 species with
                                                 limited dispersal
                                                 distances.
                                                 Artificial
                                                 structures, like
                                                 breakwaters, may
                                                 also alter the
                                                 physical
                                                 environment by
                                                 reducing wave
                                                 action and
                                                 modifying nearshore
                                                 circulation and
                                                 sediment transport..
Sand replenishment...........  2, 4, 7, and 11  Rocky substrate PCE-- The USACE is          Monitor the water
                                                 Sand movements        responsible for       quality (turbidity)
                                                 could cover up        administering         during and after
                                                 rocky substrate       Section 404 permits   the project. Place
                                                 thereby reducing      under the CWA,        a buffer around
                                                 its quality and/or    which are required    pertinent areas
                                                 quantity.             for sand              within critical
                                                                       replenishment         habitat that sand
                                                                       activities.           replenishment
                                                                                             projects have to
                                                                                             work around. Ensure
                                                                                             any dredge
                                                                                             discharge pipelines
                                                                                             are sited to avoid
                                                                                             rocky intertidal
                                                                                             habitat. Construct
                                                                                             training dikes to
                                                                                             help retain the
                                                                                             sand at the
                                                                                             receiving location,
                                                                                             which should
                                                                                             minimize movement
                                                                                             of sand into the
                                                                                             rocky intertidal
                                                                                             areas.
NPDES-permitted activities...  1, 2, 3, 4, 5,   Food resources PCE--  Issuance of CWA       Where Federal
                                7, 8, 9, 10,     Sewage outfalls may   permits. State        permits are
                                11, 12, 16,      affect food           water quality         necessary, ensure
                                17, and 19.      resources by          standards are         discharge meets
                                                 causing light         subject to an ESA     standards other
                                                 levels to be          section 7             than existing
                                                 reduced to levels     consultation          federal standards
                                                 too low to support    between NOAA and      and regulations
                                                 Macrocystis           the EPA and NOAA      (EPA, CWA). Require
                                                 germination and       can review            measures to prevent
                                                 growth.               individual NPDES      or respond to a
                                                 Eutrophication        permit applications   catastrophic event
                                                 occurs around         for impacts on ESA-   (i.e., using best
                                                 southern California   listed species.       technology to avoid
                                                 sewage outfalls                             unnecessary
                                                 where phytoplankton                         discharges).
                                                 crops and primary
                                                 production exceed
                                                 typical levels and
                                                 approach values
                                                 characteristic of
                                                 upwelling periods.
                                                Water quality PCE--
                                                 Exposure to heavy
                                                 metals can affect
                                                 growth of marine
                                                 organisms, either
                                                 promoting or
                                                 inhibiting growth
                                                 depending on the
                                                 combination and
                                                 concentrations of
                                                 metals. There is
                                                 little information
                                                 on these effects on
                                                 black abalone,
                                                 however..

[[Page 59912]]

 
Coastal development..........  2, 4, 7, 8, 10,  Rocky substrate PCE-- The USACE permits     Stormwater pollution
                                17, 19, and 20.  Increased sediment    construction or       prevention plan;
                                                 load that may         expansion of          permanent
                                                 result from           stormwater            stormwater site
                                                 urbanization of the   outfalls, discharge   plan; and
                                                 coast and of          or fill of            stormwater best
                                                 watersheds            wetlands, flood       management practice
                                                 (increased            control projects,     operations and
                                                 transport of fine     bank stabilization,   maintenance.
                                                 sediments into the    and in-stream work.
                                                 coastal zone by
                                                 rivers or runoff)
                                                 can reduce the
                                                 quality and/or
                                                 quantity of rocky
                                                 substrate. For
                                                 example, in a study
                                                 on San Nicolas
                                                 Island, black
                                                 abalone ``dominated
                                                 areas where rock
                                                 contours provided a
                                                 refuge from sand
                                                 deposition''
                                                 (Littler et al.,
                                                 1983, cited in
                                                 Airoldi, 2003).
                                                 Overall, there has
                                                 been little study
                                                 of the effects of
                                                 increased
                                                 sedimentation on
                                                 rocky shoreline
                                                 communities
                                                 (Airoldi, 2003). In
                                                 addition,
                                                 construction of
                                                 coastal armoring is
                                                 often associated
                                                 with coastal urban
                                                 development to
                                                 protect structures
                                                 from wave action or
                                                 prevent erosion
                                                 (see ``in-water
                                                 construction'' in
                                                 Section 2.1).
                                                Food resources PCE--
                                                 Increased
                                                 sedimentation may
                                                 also affect feeding
                                                 by covering up food
                                                 resources, altering
                                                 algal communities
                                                 (including algal
                                                 communities on the
                                                 rocky reef and the
                                                 growth of kelp
                                                 forests that supply
                                                 drift algae), and
                                                 altering
                                                 invertebrate
                                                 communities
                                                 (affecting
                                                 biological
                                                 interactions).
                                                 Ephemeral and turf-
                                                 forming algae were
                                                 found to be favored
                                                 in rocky intertidal
                                                 areas that
                                                 experience
                                                 intermittent
                                                 inundation
                                                 (Airoldi, 1998,
                                                 cited in Thompson
                                                 et al., 2002)..
                                                Settlement habitat
                                                 PCE--Increased
                                                 sedimentation may
                                                 affect settlement
                                                 of larvae and
                                                 propagules by
                                                 covering up
                                                 settlement habitat
                                                 as well as
                                                 affecting the
                                                 growth of
                                                 encrusting
                                                 coralline algae
                                                 (see Steneck et
                                                 al., 1997, cited in
                                                 Airoldi, 2003),
                                                 thought to be
                                                 important for
                                                 settlement.
Sidecasting..................  7 and 8........  Rocky substrate and   National Marine       Haul away (or store
                                                 settlement habitat    Sanctuary (NMS)       locally) excess
                                                 PCEs--Increased       regulations           material from road
                                                 likelihood of         prohibit discharge    maintenance
                                                 sediment input into   of materials within   activities, rather
                                                 rocky intertidal      its boundaries, as    than sidecast;
                                                 habitats may reduce   well as outside its   place excess
                                                 its quality and       boundaries if the     material at a
                                                 quantity.             material may enter    stable site at a
                                                Food resources PCE--   the sanctuary and     safe distance from
                                                 Sidecasting may       harm sanctuary        rocky intertidal
                                                 result in possible    resources. However,   habitats; and use
                                                 reductions or         under certain         mulch or vegetation
                                                 changes to food       circumstances, a      to stabilize the
                                                 resources. See        permit may be         material.
                                                 sedimentation         obtained from the
                                                 effects as            Monterey Bay
                                                 described under       National Marine
                                                 ``Coastal             Sanctuary (MBNMS)
                                                 development'',        to allow for a
                                                 above..               prohibited activity.

[[Page 59913]]

 
Agricultural activities        1, 2, 3, 4, 7,   Rocky substrate PCE-- Irrigation--any       For irrigated
 (including pesticide           8, 9, 10, 12,    Soil erosion from     water supplier        agriculture:
 application, irrigation, and   and 16.          intensive irrigated   providing water via   conservation crop
 livestock farming).                             agriculture or        contract with U.S.    rotation,
                                                 livestock farming     Bureau of             underground
                                                 of areas adjacent     Reclamation (USBR)    outlets, land
                                                 to the coast can      or using              smoothing,
                                                 cause increased       infrastructure        structures for
                                                 sedimentation         owned or maintained   water control,
                                                 thereby reducing      by the USBR is        subsurface drains,
                                                 the quality and       subject to section    field ditches,
                                                 quantity of rocky     7 consultation        mains or laterals,
                                                 substrate.            under ESA.            and toxic salt
                                                Food resources PCE--   Privately owned       reduction.
                                                 Herbicides are        diversions may       For pesticides
                                                 designed to kill      require a Federal     application:
                                                 plants, thus          permit from USACE     restrictions on
                                                 herbicide             under sections 401    application of some
                                                 contamination of      or 404 of the CWA.    pesticides within
                                                 water could have     Pesticide              certain distances
                                                 devastating effects   Application--Enviro   of streams.
                                                 on aquatic plants..   nmental Protection   For livestock
                                                Settlement habitat     Agency (EPA)          farming: fencing
                                                 PCE--Laboratory       consultation on the   riparian areas;
                                                 experiments showed    Federal               placing salt or
                                                 that the presence     Insecticide,          mineral supplements
                                                 of pesticides         Fungicide, and        to draw cattle away
                                                 (those examined in    Rodenticide Act       from rivers; total
                                                 the study were DDT,   (FIFRA), pesticide    rest of allotments
                                                 methoxychlor,         registration          when possible; and
                                                 dieldrin, and 2,4-    program, and NPDES    frequent
                                                 D) interfered with    permits for aquatic   monitoring.
                                                 larval settlement.    pesticides..
                                                 Presence of          Livestock farming--
                                                 pesticides had a      Bureau of Land
                                                 much lesser effect    Management (BLM)
                                                 on survival of        and the U.S. Forest
                                                 larvae..              Service (USFS)..
                                                Water quality PCE--
                                                 Pesticides alter
                                                 the chemical
                                                 properties of sea
                                                 water such that
                                                 they can interfere
                                                 with settlement
                                                 cues emitted by
                                                 coralline algae and
                                                 associated diatom
                                                 films and/or they
                                                 may inhibit growth
                                                 of marine algae
                                                 upon which black
                                                 abalone depend for
                                                 food. There is
                                                 little information
                                                 on these effects on
                                                 black abalone or
                                                 related species,
                                                 however, especially
                                                 for pesticides that
                                                 are currently in
                                                 use.

[[Page 59914]]

 
Oil & chemical spills & clean- 4, 5, 7, 8, 9,   Rocky substrate and   Review of oil spill   Restrict or minimize
 up.                            12, 15, and 19.  settlement habitat    response plan from    the use or type of
                                                 PCEs--Oil spill       United States Coast   response to oil
                                                 clean-up activities   Guard (USCG).         spills (e.g. boom,
                                                 may be as             Regulations under     dispersants, in
                                                 destructive, or       the Water Pollution   situ burning) in
                                                 more destructive,     Control Act.          areas where black
                                                 than the oil spill                          abalone habitat
                                                 itself. Oil spill                           exists. Mitigation
                                                 clean-up may                                measures include
                                                 involve application                         adoption of oil/
                                                 of toxic                                    chemical spill
                                                 dispersants and the                         clean-up protocols
                                                 use of physical                             and oil/chemical
                                                 cleaning methods                            spill prevention
                                                 such as the use of                          plans, more Clean
                                                 high pressure and/                          Seas boats as first
                                                 or high temperature                         responders to
                                                 water to flush out                          prevent oil/
                                                 oil which may                               chemical spills
                                                 decrease the                                from coming
                                                 quality of rocky                            onshore, and
                                                 substrate and                               relocation of
                                                 settlement habitat                          proposed oil/
                                                 in an area. Oil,                            chemical platforms
                                                 oil/dispersant                              further away from
                                                 mixtures, and                               black abalone
                                                 dispersants used in                         habitats.
                                                 oil spill clean-up
                                                 may adversely
                                                 affect grazing
                                                 mollusks like
                                                 abalone in rocky
                                                 intertidal areas,
                                                 although less-toxic
                                                 dispersants have
                                                 been developed in
                                                 recent years.
                                                Food resources PCE--
                                                 The use of
                                                 dispersants and
                                                 physical cleaning
                                                 methods may affect
                                                 black abalone food
                                                 resources (algal
                                                 community).
                                                 Chemical spills
                                                 could also affect
                                                 food resources, if
                                                 the chemicals kill
                                                 algae or affect
                                                 algal growth..
                                                Water quality PCE--
                                                 Effects of oil
                                                 spills vary from no
                                                 discernable
                                                 differences to
                                                 widespread
                                                 mortality of marine
                                                 invertebrates over
                                                 a large area and
                                                 reduced densities
                                                 persisting a year
                                                 after the spill..
Vessel grounding.............  8..............  Rocky substrate and   The USCG has the      Best management
                                                 settlement habitat    authority to          practices (BMP) for
                                                 PCEs--Vessel          respond to all oil    oil spill and
                                                 grounding can         and hazardous         debris clean-up to
                                                 affect the rocky      substance spills in   reduce trampling.
                                                 substrate and have    the offshore/        Education of USCG,
                                                 substantial effects   coastal zone, while   NMS biologists, and
                                                 on the environment,   the EPA has the       others involved in
                                                 ranging from minor    authority to          clean-up to raise
                                                 displacement of       respond in the        awareness of black
                                                 sediment to           inland zone.          abalone.
                                                 catastrophic damage
                                                 to reefs. Wave
                                                 activity may also
                                                 cause the vessel to
                                                 roll excessively
                                                 and do more damage
                                                 to the ocean floor.
                                                Food resources and
                                                 water quality PCEs--
                                                 The risk of
                                                 invasion by foreign
                                                 species attached to
                                                 the ship's hull
                                                 into a local
                                                 environment. The
                                                 wreck of an ocean-
                                                 going vessel can
                                                 result in large
                                                 masses of steel
                                                 distributed over
                                                 substantial areas
                                                 of seabed,
                                                 particularly in
                                                 high energy,
                                                 shallow water
                                                 environments. The
                                                 wreckage may be a
                                                 chronic source of
                                                 dissolved iron.
                                                 Elevated levels of
                                                 iron may affect
                                                 water quality and
                                                 result in an
                                                 increase of
                                                 opportunistic algae
                                                 blooms..

[[Page 59915]]

 
Construction and operation of  10.............  Water quality PCE--   The Diablo Canyon     Require cooling of
 power plants.                                   The power plants'     Nuclear Power         thermal effluent
                                                 use of coastal        Plant, located in     before release to
                                                 waters for cooling    specific area 10,     the environment
                                                 and subsequently      is licensed through   (may require use of
                                                 discharging of        the Nuclear           different
                                                 heated water back     Regulatory            technology).
                                                 into the marine       Commission.           Require treatment
                                                 environment may                             of any contaminated
                                                 raise water                                 waste materials.
                                                 temperatures and                           Modifications
                                                 introduce                                   associated with
                                                 contaminants into                           permit issued under
                                                 the water. Elevated                         NPDES (any updates
                                                 water temperatures                          from current early
                                                 have been linked to                         1990s issuance).
                                                 increased virulence                         Dry cooling systems
                                                 of the withering                            (not as feasible as
                                                 syndrome disease.                           wet cooling systems
                                                                                             due to greater
                                                                                             logistical
                                                                                             constraints and
                                                                                             total costs).
                                                                                             Modifications to
                                                                                             cooling water
                                                                                             intake flow by
                                                                                             season and
                                                                                             operational
                                                                                             conditions using
                                                                                             variable speed
                                                                                             pumps/variable
                                                                                             frequency drives
                                                                                             (benefits depend on
                                                                                             the frequency and
                                                                                             degree that flow
                                                                                             can be reduced
                                                                                             without affecting
                                                                                             operations). Use of
                                                                                             reclaimed water as
                                                                                             a source of makeup
                                                                                             water for wet
                                                                                             cooling towers or
                                                                                             as a source for
                                                                                             once-through
                                                                                             cooling water
                                                                                             systems.
Construction and operation of  4, 7, 8, 9, 10,  Water quality PCE--   A desalination        Potential
 desalination plants.           12, 17, and 19.  Discharge of hyper-   facility may          conservation
                                                 saline water          require a Section     efforts to mitigate
                                                 results in            404 permit under      desalination
                                                 increased salinity    the CWA from the      impacts may include
                                                 and fluctuating       USACE if it           the treatment of
                                                 salinity conditions   involves placing      hyper-saline
                                                 that may affect       fill in navigable     effluent to ensure
                                                 sensitive organisms   waters, and a         that salinity
                                                 near the outfall.     Section 10 permit     levels are restored
                                                 The impacts of        under the RHA if      to normal values.
                                                 brine effluent are    the proposal          The costs of
                                                 generally more        involves placing a    treating hyper-
                                                 severe in rocky       structure in a        saline effluent or
                                                 substrate than on     navigable waterway.   finding an
                                                 sandy seafloor                              alternate manner of
                                                 habitats. However,                          brine disposal can
                                                 more research is                            vary widely across
                                                 needed on the                               plants depending on
                                                 tolerance level of                          plant capacity and
                                                 black abalone for                           design.
                                                 different
                                                 salinities. Other
                                                 effects of the
                                                 discharge on water
                                                 quality include
                                                 increased
                                                 turbidity,
                                                 concentration of
                                                 organic substances
                                                 and metals
                                                 contained in the
                                                 feed waters,
                                                 concentration of
                                                 metals picked up
                                                 through contact
                                                 with the plant
                                                 components, thermal
                                                 pollution, and
                                                 decreased oxygen
                                                 levels. Entrainment
                                                 and impingement of
                                                 black abalone
                                                 larvae may also
                                                 occur from water
                                                 intake at
                                                 desalination
                                                 plants, but this is
                                                 primarily a take
                                                 issue.

[[Page 59916]]

 
Construction and operation of  1 and 19.......  Rocky substrate PCE-- Subject to the        Use of non-toxic
 tidal and wave energy                           Impacts on rocky      Federal Energy        fluids instead of
 projects.                                       substrate may         Regulatory            toxic fluids.
                                                 result from the       Commission (FERC)    When the project
                                                 installation of       permitting and        requires the use of
                                                 power lines to        licensing             power lines, use
                                                 transport power to    requirements, as      existing power
                                                 shore. These          well as               lines, instead of
                                                 projects typically    requirements under    constructing new
                                                 involve placement     Section 401 of the    ones, and avoid
                                                 of structures, such   CWA.                  rocky intertidal
                                                 as buoys, cables,                           areas.
                                                 and turbines, in
                                                 the water column.
                                                Water quality PCE--
                                                 Alternative energy
                                                 projects may result
                                                 in reduced wave
                                                 height by as much
                                                 as 5 to 13 percent,
                                                 which may benefit
                                                 abalone habitat.
                                                 Effects on wave
                                                 height would
                                                 generally only be
                                                 observed 1-2 km
                                                 away from the wave
                                                 energy device.
                                                 Another concern is
                                                 the potential for
                                                 liquids used in the
                                                 system to leak or
                                                 be accidentally
                                                 spilled, resulting
                                                 in release of toxic
                                                 fluids. Toxins may
                                                 also be released in
                                                 the use of biocides
                                                 to control the
                                                 growth of marine
                                                 organisms. The
                                                 potential effects
                                                 of coastal wave and
                                                 tidal energy
                                                 projects on black
                                                 abalone habitat are
                                                 uncertain, because
                                                 these projects are
                                                 relatively new and
                                                 the impacts are
                                                 very site-specific..
Construction and operation of  Unknown........  Rocky substrate PCE-- CWA permits under     Offshore facilities:
 liquefied natural gas (LNG)   We solicit the    Onshore LNG           section 401 (water    In the installation
 projects.                      public for       terminals,            quality               of pipelines, avoid
                                more             construction of       certificate) and/or   rocky intertidal
                                information      breakwaters,          section 404 (a        habitats or use
                                (see ``Public    jetties, or other     dredge and fill       existing pipelines.
                                Comments         shoreline             permit) and Clean     Onshore siting
                                Solicited'').    structures and the    Air Act permits       considerations:
                                                 activities            under section 502     Avoid siting LNG
                                                 associated with       may be required.      projects within or
                                                 construction (e.g.,                         adjacent to rocky
                                                 dredging) may                               intertidal
                                                 affect black                                habitats.
                                                 abalone habitat.
                                                 Offshore LNG
                                                 terminals involve
                                                 construction of
                                                 pipelines to
                                                 transport LNG
                                                 onshore and may
                                                 affect rocky
                                                 habitat. See
                                                 sedimentation
                                                 effects described
                                                 under ``dredging'',
                                                 ``in-water
                                                 construction'', and
                                                 ``coastal
                                                 development''.
                                                Food resource and
                                                 water quality PCEs--
                                                 There is an
                                                 increased potential
                                                 for oil spills and
                                                 potential effects
                                                 on water quality
                                                 from the presence
                                                 of vessels
                                                 transporting and
                                                 offloading LNG at
                                                 the terminals..

[[Page 59917]]

 
Mineral and petroleum          10.............  Rocky substrate PCE-- The Mineral           Adoption of erosion
 exploration and extraction.                     This activity may     Management Service    control measures.
                                                 result in increased   (MMS) manages the     Adoption of oil
                                                 sedimentation into    nation's offshore     spill clean-up
                                                 rocky intertidal      energy and mineral    protocols and oil
                                                 habitats. See         resources,            spill prevention
                                                 sedimentation         including oil, gas,   plans; more Clean
                                                 effects described     and alternative       Seas boats as first
                                                 under ``dredging'',   energy sources, as    responders to
                                                 ``in-water            well as sand,         prevent oil spills
                                                 construction'', and   gravel and other      from coming
                                                 ``coastal             hard minerals on      onshore; and
                                                 development''.        the outer             relocation of
                                                Food resources and     continental shelf.    proposed oil
                                                 settlement habitat                          platforms further
                                                 PCE--In a                                   away from black
                                                 laboratory study,                           abalone habitats.
                                                 water-based
                                                 drilling muds from
                                                 an active platform
                                                 were found to
                                                 negatively affect
                                                 the settlement of
                                                 red abalone larvae
                                                 on coralline algae,
                                                 but fertilization
                                                 and early
                                                 development were
                                                 not affected..
                                                Water quality PCE--
                                                 The activity may
                                                 cause an increased
                                                 risk of oil spills
                                                 or leaks and
                                                 increased
                                                 sedimentation
                                                 thereby affecting
                                                 water quality..
Non-native species             2, 4, 8, 10,     Food resources PCE--  The National          For commercial
 introduction and management.   and 11.          The release of        Invasive Species      shipping: safe (non-
                                                 wastewater, sewage,   Act of 1996 (NISA)    contaminated)
                                                 and ballast water     and the               ballast disposal;
                                                 from commercial       Nonindigenous         rinse anchors and
                                                 shipping presents a   Aquatic Nuisance      anchor chains when
                                                 risk to kelp and      Prevention and        retrieving the
                                                 other macroalgal      Control Act of 1990   anchor to remove
                                                 species because of    under the USCG.       organisms and
                                                 the potential                               sediments at their
                                                 introduction of                             place of origin;
                                                 exotic species.                             remove hull fouling
                                                Settlement habitat                           organisms from
                                                 PCE--Non-native                             hull, piping,
                                                 species may                                 propellers, sea
                                                 displace native                             chests, and other
                                                 organisms by                                submerged portions
                                                 preying on them or                          of a vessel, on a
                                                 out-competing them                          regular basis, and
                                                 for resources such                          dispose of removed
                                                 as food, space or                           substances in
                                                 both. Non-native                            accordance with
                                                 species may                                 local, state, and
                                                 introduce disease-                          federal law.
                                                 causing organisms                          For aquaculture:
                                                 and can cause                               inspect aquaculture
                                                 substantial                                 facilities to
                                                 population,                                 prevent non-native
                                                 community, and                              species transport
                                                 habitat changes.                            in packing
                                                 Other possible                              materials.
                                                 consequences of non-
                                                 native species
                                                 introductions could
                                                 be impacts on flow
                                                 patterns, sediment
                                                 and nutrient
                                                 dynamics, and
                                                 impacts on native
                                                 bioengineering
                                                 species..
Kelp harvesting..............  7-20...........  Food resources PCE--  None................  None.
                                                 Kelp is the primary
                                                 source of food for
                                                 black abalone. Kelp
                                                 is harvested for
                                                 algin, which is
                                                 used as a binder,
                                                 emulsifier, and
                                                 molding material in
                                                 a broad range of
                                                 products, and as a
                                                 food source in
                                                 abalone aquaculture
                                                 operations. The
                                                 harvest is small,
                                                 but the kelp grows
                                                 quickly, and
                                                 harvest could
                                                 generate drift
                                                 (which can
                                                 potentially be
                                                 beneficial to black
                                                 abalone). Potential
                                                 impacts related to
                                                 kelp harvesting are
                                                 unclear.

[[Page 59918]]

 
Activities leading to global   1-20...........  Affects all PCEs.     Uncertain...........  Uncertain.
 climate change (e.g., fossil                    There is little
 fuel combustion).                               information on
                                                 these effects,
                                                 however. We solicit
                                                 the public for more
                                                 information (see
                                                 ``Public Comments
                                                 Solicited'').
                                                Water quality PCE--
                                                 Sea surface water
                                                 temperatures that
                                                 exceed 25[ordm]C
                                                 may increase risks
                                                 to black abalone.
                                                 Ocean pH values
                                                 that are outside of
                                                 the normal range
                                                 for seawater (i.e.,
                                                 pH less than 7.5 or
                                                 greater than 8.5)
                                                 may cause reduced
                                                 growth and
                                                 survivorship in
                                                 abalone as has been
                                                 observed in other
                                                 marine gastropods
                                                 (Shirayama and
                                                 Thornton, 2005)..
                                                Food resources and
                                                 settlement habitat
                                                 PCE-Increasing
                                                 partial pressure of
                                                 carbon dioxide may
                                                 reduce abundance of
                                                 coralline algae and
                                                 thereby affect the
                                                 survival of newly
                                                 settled black
                                                 abalone (Feely et
                                                 al., 2004; Hall-
                                                 Spencer et al.,
                                                 2008)..
----------------------------------------------------------------------------------------------------------------

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 identified potential 
unoccupied areas to consider for designation. These areas represent 
segments of the California and Oregon coast that contain rocky 
intertidal habitats that historically supported black abalone and that 
may support black abalone populations in the future. The CHRT 
identified the following unoccupied areas: (1) From Cape Arago State 
Park, Oregon, to Del Mar Landing Ecological Reserve, California; (2) 
from just south of Government Point to Point Dume State Beach, 
California; and (3) from Cardiff State Beach in Encinitas, California, 
to Cabrillo National Monument, California.
    In each of these areas, black abalone have not been observed in 
surveys in the past 5 years. In the area from Cape Arago, Oregon, to 
the Del Mar Landing Ecological Reserve, California, four museum 
specimens of black abalone were noted from two survey sites (Geiger, 
2004), one specimen was noted from another site where red abalone are 
considered common (Thompson, 1920), and no data on black abalone were 
available for the other sites. Black abalone were not observed during 
rocky intertidal surveys conducted in the 1970s and 1980s at several 
sites within this area (J. DeMartini, pers. comm.). In the area from 
just south of Government Point to Point Dume State Beach in California, 
black abalone were reported as rare at one site (Morin and Harrington, 
1979), but have never been observed at the other survey sites. In the 
area from Cardiff State Beach to Cabrillo National Monument in 
California, black abalone were noted to be historically present at a 
few sites (Zedler, 1976, 1978) and rare at one site (California State 
Water Resources Control Board, 1979).
    At this time, the CHRT concluded that the three unoccupied areas 
may be essential for conservation, but that there is currently 
insufficient data to conclude that any of the areas are essential for 
conservation. Therefore, the three presently unoccupied areas were not 
considered in further analyses. We solicit comments from the public 
regarding the historical, current, and potential condition of the 
habitat and of black abalone populations within the unoccupied areas 
identified above and the importance of these areas to conservation of 
the species.

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

[[Page 59919]]

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.'' The Navy's facilities on San Clemente Island and San 
Nicolas Island are covered by INRMPs that are currently being revised 
to address black abalone conservation. If these INRMPs are finalized 
and determined to provide benefits to black abalone, as described under 
section 4(a)(3)(B) of the ESA, then the areas would be ineligible for 
designation and a determination on whether the areas warrant exclusion 
under section 4(b)(2) of the ESA based on national security impacts 
would no longer be necessary.

Application of ESA Section 4(b)(2)

    Section 4(b)(2) of the ESA requires the Secretary to consider the 
economic, national security, and any other relevant impacts of 
designating any particular area as critical habitat. Any particular 
area may be excluded from critical habitat if the Secretary determines 
that the benefits of excluding the area outweigh the benefits of 
designating the area. The Secretary may not exclude a particular area 
from designation if exclusion will result in the extinction of the 
species. Because the authority to exclude is discretionary, exclusion 
is not required for any areas. We propose to exclude one occupied 
specific area (i.e., Corona Del Mar State Beach to Dana Point, Orange 
County, CA) from the critical habitat designation because the economic 
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., Del Mar Landing 
Ecological Reserve to Bodega Head, Bodega Head to Point Bonita, 
Farallon Islands, etc.). Delineating the ``particular areas'' as the 
same units as the ``specific areas'' allowed us to most effectively 
consider the conservation value of the different areas when balancing 
conservation benefits of designation against economic benefits of 
exclusion. Delineating particular areas based on impacts on national 
security or other relevant impact should be based on land ownership or 
control (e.g., land controlled by the Department of Defense (DOD) 
within which national security impacts may exist, or Indian lands). We 
request information on other relevant impacts that should be considered 
(see ``Public Comments Solicited''). The next step in the ESA section 
4(b)(2) analysis involves identification of the impacts of designation 
(i.e., the benefits of designation and the benefits of exclusion). We 
then weigh the benefits of designation against the benefits of 
exclusion to identify areas where the benefits of exclusion outweigh 
the benefits of designation. These steps and the resulting list of 
areas proposed for exclusion 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 
ensure their actions are not likely to result in the destruction or 
adverse modification of critical habitat. Determining this impact is 
complicated by the fact that section 7(a)(2) contains the overlapping 
requirement that Federal agencies must 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 ensure 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 is 
considered 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. Thus, the impacts of the designation include conservation 
impacts for black abalone and its habitat, economic impacts, impacts on 
national security, and other relevant impacts that may result from the 
designation and the application of ESA section 7(a)(2).
    In determining the impacts of the designation, we focused on the 
incremental change in Federal agency actions as a result of the 
critical habitat designation and the adverse modification prohibition, 
beyond the changes predicted to occur as a result of listing and the 
jeopardy provision. Following a line of recent court decisions, in 
particular, Cape Hatteras Access Preservation Alliance v. Norton, 344 
F. Supp. 2d 1080 (D.D.C. 2004)) (Cape Hatteras) we analyzed the impact 
of this proposed regulation based on a comparison of the world with and 
without the action. Consistent with the Cape Hatteras decision, we 
focus on the potential incremental impacts beyond the impacts that 
would result from the listing and jeopardy provision. In some 
instances, however, it was difficult to exclude potential impacts that 
may already occur under the baseline (i.e., protections already 
afforded black abalone under its listing or under other Federal, State, 
and local regulations). Many uncertainties exist with regard to future 
management actions that may be required due to black abalone critical 
habitat because of the short consultation history for black abalone and 
overlap with protections provided under the listing and other existing 
regulations. Thus, the analysis included some impacts that would have 
occurred under the baseline regardless of the critical habitat 
designation. As such, the consideration of impacts cannot be 
characterized as exclusively incremental impacts of the critical 
habitat designation (New Mexico Cattle Growers Association v. U.S. Fish 
and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001)) (NMCA). Instead, 
the impacts of the designation are more correctly characterized as 
black abalone impacts.
    Once we determined the impacts of the designation, we then 
determined the benefits of designation and the benefits of exclusion 
based on the impacts of the designation. The benefits of designation 
include the conservation impacts for black abalone and its habitat that 
result from the critical habitat designation and the application of ESA 
section 7(a)(2). The benefits of exclusion include the economic 
impacts, impacts on national security, and other relevant impacts 
(e.g., impacts on Indian lands) of the designation that would be 
avoided if a particular area were excluded from the critical habitat 
designation. The following sections describe how we determined the 
benefits of designation and the benefits of exclusion and how these 
benefits were weighed, as required

[[Page 59920]]

under section 4(b)(2) of the ESA, to identify particular areas that may 
be eligible for exclusion from the designation. We also summarize the 
results of this weighing process and determinations on the areas that 
may be eligible for exclusion.

Benefits of Designation

    The primary benefit of designation is the protection afforded under 
section 7 of the ESA, requiring all Federal agencies to ensure 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 the conservation of black abalone. By 
delineating areas of high conservation value, the designation may help 
focus and contribute to conservation efforts for black abalone and 
their habitats.
    The designation of critical habitat has been found to benefit the 
status and recovery of ESA-listed species. Recent reports by the USFWS 
indicated that species with critical habitat were more likely to have 
increased and less likely to have declined than species without 
critical habitat (Taylor et al. 2005). In addition, species with 
critical habitat were also more likely to have a recovery plan and to 
have these plans implemented, compared to species without critical 
habitat (Harvey et al., 2002; Lundquist et al. 2002). These benefits 
may result from the unique, species-specific protections afforded by 
critical habitat (e.g., enhanced habitat protection, increased public 
awareness and education of important habitats) that are more 
comprehensive than other existing regulations (Hagen and Hodges, 2006).
    The benefits of designation are not directly comparable to the 
benefits of exclusion for the purposes of weighing the benefits under 
conducting the ESA section 4(b)(2) analysis as described below. 
Ideally, the benefits of designation and benefits of exclusion should 
be monetized in order to directly compare and weigh them. 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 to monetize 
the benefits of designation (e.g., estimates of the monetary value of 
the PCEs within areas designated as critical habitat, or of the 
monetary value of education and outreach benefits). As an alternative 
approach, we determined the benefits of designation based on the CHRT's 
biological analysis of the specific areas. We used the CHRT's 
conservation value ratings (High, Medium, and Low) to represent the 
qualitative conservation benefits of designation for each of the 
specific areas considered for designation. In evaluating the 
conservation value of each specific area, the CHRT focused on the 
habitat features present in each area, the habitat functions provided 
by each area, and the importance of protecting the habitat for the 
overall conservation of the species. The CHRT considered a number of 
factors to determine the conservation value of each specific area, 
including: (a) The present condition of the primary constituent 
elements or PCEs; (b) the level at which the habitat supports 
recruitment of early life stages, based on the level of recruitment 
observed at survey sites within the area; and (c) the level at which 
the habitat supports long-term survival of juvenile and adult black 
abalone, based on trends in the abundance and size frequencies of black 
abalone populations observed at survey sites within the area. These 
conservation value ratings represent the estimated conservation impact 
to black abalone and its habitat if the area were designated as 
critical habitat, and thus were used to represent the benefit of 
designation. The draft Biological Report (NMFS 2010a) provides detailed 
information on the CHRT's biological analysis and evaluation of each 
specific area.

Benefits of Exclusion Based on Economic Impacts and Proposed Exclusions

    The economic benefits of exclusion are the economic impacts that 
would be avoided by excluding particular areas from the designation. To 
determine these economic impacts, we first asked the CHRT to identify 
activities within each specific area that may affect black abalone and 
its critical habitat. The 17 categories of activities identified by the 
CHRT are identified in the Special Management Considerations and 
Protections above. We then considered the range of modifications NMFS 
might seek in these activities to avoid destroying or adversely 
modifying black abalone critical habitat. Where possible, we focused on 
changes beyond those that may be required under the jeopardy provision. 
Because of the limited consultation history, we relied on information 
from other section 7 consultations and the CHRT's expertise to 
determine the types of activities and potential range of changes. 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.
    While the statute and our agency guidance directs us to identify 
activities that may affect the habitat features important to black 
abalone conservation within a specific area in order to determine its 
eligibility for designation, not all of these activities may be 
affected by the critical habitat designation (i.e., subject to a 
section 7 consultation) and sustain an economic impact. It is only 
those activities with a federal nexus that would sustain an economic 
impact as a result of the designation. Within the set of activities 
identified in the Special Management Considerations and Protections 
above, we were only able to estimate economic impacts for a subset of 
them because of: (1) The limited consultation history; (2) uncertainty 
in the types of modification that would be required; (3) uncertainty in 
the number and locations of activities based on currently available 
data; and (4) the lack of available cost data. The draft economic 
report analyzes the potential economic impacts to the following 
categories of activities: (1) Coastal development; (2) in-water 
construction; (3) sand replenishment or beach nourishment activities; 
(4) agricultural activities (e.g., irrigation); (5) NPDES activities 
and activities generating non-point source pollution; (6) sidecasting; 
(7) oil and chemical spills and clean-up activities; (8) power 
generation operations involving water withdrawal from and discharge to 
marine coastal waters; (9) construction and operation of alternative 
energy hydrokinetic projects (tidal or wave energy projects); and (10) 
construction and operation of desalination plants. The following 
activities were discussed qualitatively: Dredging and disposal of 
dredged material; agricultural pesticide application and livestock 
farming; mineral and petroleum exploration or extraction; construction 
and operation of LNG projects; vessel groundings; non-native species 
introduction and management; kelp harvesting; and activities that lead 
to global climate change. The economic impacts of the designation on 
these activities could not be quantified because a federal nexus does 
not exist (i.e., for kelp harvesting activities) or is uncertain (i.e., 
for activities that lead to global climate change), or because the 
potential

[[Page 59921]]

economic impacts are uncertain, for the reasons described above. The 
draft economic report (NMFS, 2010a) provides a more detailed 
description and analysis of the potential economic impacts to each of 
these categories of activities.
    We had sufficient information to monetize the economic benefits of 
exclusion, but were not able to monetize the conservation benefits of 
designation. Thus, to weigh the benefits of designation against the 
economic benefits of exclusion, we compared the conservation value 
ratings with economic impact ratings that were based on the mean 
annualized economic impact estimates (discounted at 7%; see draft 
economic report (NMFS 2010a) for additional details) for each specific 
area. To develop the economic impact ratings, we examined the mean 
annualized economic impacts (discounted at 7 percent) across all of the 
specific areas. We then divided the economic impacts into four economic 
impact rating categories corresponding to ``Low'' ($0 to $100,000), 
``Medium'' (greater than $100,000 to $500,000), ``High'' (greater than 
$500,000 to $10 million), and ``Very High'' (greater than $10 million) 
economic impact ratings. The four economic impact rating categories 
were determined by visually inspecting the economic impact values and 
identifying natural breakpoints in the economic impacts data where the 
estimated economic impacts experienced a large increase. We then 
compared these economic impact ratings (representing the benefits of 
exclusion) with the conservation value ratings (representing the 
benefits of designation) and applied the following decision rules to 
identify areas eligible for exclusion based on economic impacts: (1) 
Areas with a conservation value rating of ``High'' were eligible for 
exclusion if the mean annualized economic impact estimate exceeded $10 
million (i.e., the economic impact rating was ``Very High''); (2) areas 
with a conservation value rating of ``Medium'' were eligible for 
exclusion if the mean annualized economic impact estimate exceeded 
$500,000 (i.e., the economic impact rating was at least a ``High''); 
and (3) areas with a conservation value rating of ``Low'' were eligible 
for exclusion if the mean annualized economic impact estimate exceeded 
$100,000 (i.e., the economic impact rating was at least a ``Medium'').
    These dollar thresholds should not be interpreted as estimates of 
the dollar value of High, Medium, or Low conservation value areas. 
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 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 developed decision 
rules with dollar thresholds representing the levels at which we 
believe the economic benefit of exclusion associated with a specific 
area could outweigh the conservation benefits of designation. 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 economic impacts.
    Based on this analysis, two areas were identified preliminarily as 
eligible for exclusion. These areas were: (1) Specific area 10, from 
Monta[ntilde]a de Oro State Park to just south of Government Point; and 
(2) specific area 12, from Corona Del Mar State Beach to Dana Point. We 
presented the two areas to the CHRT to help us further characterize the 
benefits of designation by determining whether excluding any of these 
areas would significantly impede conservation of black abalone. If 
exclusion of an area would significantly impede conservation, then the 
benefits of exclusion would likely not outweigh the benefits of 
designation for that area. The CHRT considered this question in the 
context of all of the areas eligible for exclusion as well as the 
information they had developed in providing the conservation value 
ratings. If the CHRT determined that exclusion of an area would 
significantly impede conservation of black abalone, the conservation 
benefits of designation were increased one level in the weighing 
process. This necessitated the creation of a Very High conservation 
value rating. Areas rated as ``Very High'' were deemed to have a very 
high likelihood of promoting the conservation of the species.
    The CHRT determined, and we concur, that exclusion of specific area 
12 (from Corona Del Mar State Beach to Dana Point) would not 
significantly impede conservation of black abalone and that the 
economic benefit of exclusion for this area outweighs the conservation 
benefit of designation. The CHRT based their determinations on the best 
available data regarding the present condition of the habitat and black 
abalone populations in the area. The CHRT gave the area a ``Low'' 
conservation value, because the current habitat conditions are of lower 
quality compared to other areas along the coast. While rocky intertidal 
habitat of good quality occurs within the area, these habitats are 
patchy and may be affected by sand scour due to the presence of many 
sandy beaches. In addition, the rocky habitat within the area consists 
of narrow benches and fewer crevices compared to other areas and has 
been degraded by the establishment of sandcastle worm (Phragmatopoma 
californica) colonies. There is also little to no coralline algae to 
provide adequate larval settlement habitat. Low densities of black 
abalone were observed at a few sites in the area in the 1970s and 
1980s. However, no recruitment has been observed and black abalone have 
been absent from the area except for one black abalone found in January 
2010. For these reasons, the CHRT concluded that excluding specific 
area 12 (from Corona Del Mar State Beach to Dana Point) from the 
designation would not significantly impede the conservation of black 
abalone. The high estimated economic impact for this area was primarily 
due to impacts associated with construction and operation of a proposed 
desalination plant, which made up about 93% of the mean annualized 
economic impact estimate of $1,563,500 for this area. The estimated 
economic impacts to the desalination plant were based on the costs for 
using alternate methods of brine disposal (i.e., injection wells).
    The CHRT determined, and we concur, that exclusion of specific area 
10 (from Monta[ntilde]a de Oro State Park to just south of Government 
Point) would significantly impede conservation of black abalone. The 
CHRT gave the area a ``High'' conservation value in their biological 
evaluation. Historically, black abalone were considered common at 
several sites within the area. The populations have since suffered 
declines due to WS, but continue to persist at several sites. Although 
the habitat has changed since the decline in abalone (e.g., sea urchins 
and encrusting invertebrates have moved in to some crevice habitats), 
the habitat remains of high quality. The CHRT also emphasized the 
importance of this area in maintaining connectivity between black 
abalone populations on the north-central California coast and the 
southern California coast. Therefore, the CHRT determined, and we 
concur, that the conservation value of this area should be raised by 
one level (i.e., from High to Very High). In addition, the estimated 
economic impact for this area is likely

[[Page 59922]]

overestimated. The very high economic impact estimate for this area was 
primarily due to costs associated with the Diablo Canyon Nuclear Power 
Plant (DCNPP), which made up about 46 percent of the low annualized 
economic impact estimate and 99 percent of the mean and high annualized 
economic impact estimate for the area (see NMFS, 2010a for details). 
These estimated costs were based on the costs required to retrofit the 
DCNPP with a closed cooling system. However, there are less costly 
actions that we could not monetize that could be taken to avoid or 
minimize effects on black abalone habitat, such as restoring habitat in 
other areas around the DCNPP and conducting biological monitoring of 
black abalone and its habitat. Thus, the economic benefits of exclusion 
were not determined to outweigh the conservation benefits of 
designation for specific area 12 for the following reasons: (a) The 
area has a Very High conservation value to black abalone and exclusion 
of this area would significantly impede conservation of the species; 
and (b) the very high economic impacts are likely overestimated. We 
solicit comments from the public regarding the estimate of economic 
impacts to the DCNPP, the effects of the DCNPP on black abalone and its 
habitat, and the potential modifications that may be required to 
address these effects (including the feasibility and estimated costs of 
such modifications; see ``Public Comments Solicited''). If information 
obtained during the public comment period suggests that the very high 
economic impact estimate for retrofitting the DCNPP is a realistic 
impact of the designation, we will re-examine our analysis regarding 
this area and consider other approaches that may allow exclusion of a 
particular area within this specific area.
    In summary, we propose to exclude specific area 12 (from Corona Del 
Mar State Beach to Dana Point) from the critical habitat designation. 
Based on the best scientific and commercial data currently available, 
we have determined that exclusion of this area will not impede the 
conservation of black abalone, nor will it result in the extinction of 
the species.

Benefits of Exclusion Based on National Security and Proposed 
Exclusions

    The national security benefits of exclusion are the impacts on 
national security that would be avoided by excluding particular areas 
from the designation. We contacted representatives of the DOD to 
request information on potential national security impacts that may 
result from the designation of particular areas as critical habitat for 
black abalone. In a letter dated May 20, 2010 (5090 Ser N40 JJR.cs/
0011), representatives of the DOD identified the following particular 
areas owned or controlled by the U.S. Navy and requested exclusion of 
these areas from the designation based on potential national security 
impacts: (1) Naval Auxiliary Landing Field (NALF) San Clemente Island; 
(2) Outlying Landing Field (OLF) San Nicolas Island; (3) Naval Support 
Detachment Monterey; (4) Naval Weapons Station Seal Beach; and (5) 
Naval Base Ventura County (Point Mugu and Port Hueneme).
    We determined that the Naval Support Detachment Monterey, Naval 
Weapons Station Seal Beach, and Naval Base Ventura County do not occur 
within the specific areas being considered for designation (NMFS, 
2010b). Thus, these areas were not included in further analyses. The 
NALF San Clemente Island and OLF San Nicolas Island do occur within the 
specific areas being considered for designation and were analyzed for 
potential exclusion under section 4(b)(2) of the ESA.
    The Navy did not provide information about the activities occurring 
within the OLF San Nicolas Island, but did provide information 
regarding activities conducted within the NALF San Clemente Island that 
may be affected by the designation of critical habitat for black 
abalone. An overview of these activities is provided in the draft ESA 
section 4(b)(2) report (NMFS, 2010b). More specific information is 
needed regarding which of the Navy activities may affect black abalone 
habitat (i.e., rocky intertidal habitat within MHHW to a depth of 6 m), 
how these activities may be affected by the critical habitat 
designation, and how these effects may result in impacts on national 
security. We request additional information from the Navy identifying 
and describing in detail the activities that may occur in or that may 
affect the areas being considered for designation (i.e., rocky habitat) 
and thus trigger consultation under section 7 of the ESA. This 
information is necessary to assess whether the areas warrant exclusion 
from the designation based on national security impacts.
    At this time, we do not propose to exclude the NALF San Clemente 
Island or OLF San Nicolas Island from the designation based on national 
security impacts but will continue to coordinate with the Navy to 
assess the potential national security impacts. Additional information 
is also solicited from the public regarding the potential national 
security impacts of this designation (see ``Public Comments 
Solicited''). After assessing any additional information provided by 
the DOD as well as by the public, a final determination will be made in 
the final critical habitat designation. The Navy's facilities on San 
Clemente Island and San Nicolas Island are covered by INRMPs that are 
currently being revised to address black abalone conservation. If these 
INRMPs are finalized and determined to provide benefits to black 
abalone, as described under section 4(a)(3)(B) of the ESA, then the 
areas would be ineligible for designation and a determination on 
whether the areas warrant exclusion under section 4(b)(2) of the ESA 
based on national security impacts would no longer be necessary. The 
response summarized above was transmitted to the Navy via a letter from 
NMFS dated July 9, 2010.

Benefits of Exclusion for Indian Lands and Proposed Exclusions

    The only other relevant impacts of the designation identified were 
potential impacts on Indian lands. The benefits of exclusion for Indian 
lands are the impacts on Indian lands that would be avoided if 
particular areas were excluded from the designation. A broad array of 
activities on Indian lands may trigger ESA section 7 consultations and 
be affected by the designation of critical habitat. 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.
    For this proposed critical habitat designation for black abalone, 
we reviewed maps indicating that none of the specific areas under 
consideration for designation as critical habitat

[[Page 59923]]

overlap with Indian lands. Therefore, no areas were considered for 
exclusion based on impacts on Indian lands. We solicit information from 
the public regarding any Indian lands that may overlap with and may 
warrant exclusion from critical habitat for black abalone (see ``Public 
Comments Solicited''). 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) and 
include: (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. 
Should any Indian lands be identified within the specific areas 
considered and proposed for designation as black abalone critical 
habitat, they will be considered for exclusion under section 4(b)(2) of 
the ESA if the tribe or tribes request exclusion (see ``Public Comments 
Solicited'').

Critical Habitat Designation

    This rule proposes to designate approximately 390 square kilometers 
of habitat in California within the geographical area presently 
occupied by black abalone. These critical habitat areas contain 
physical or biological features essential to the conservation of the 
species that may require special management considerations or 
protection. This rule proposes to exclude from the designation the area 
from Corona Del Mar State Beach to Dana Point, Orange County, CA. 
Although we have identified three presently unoccupied areas, 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

    The lateral extent of the proposed critical habitat designation 
offshore is defined by the 6 m depth bathymetry contour relative to the 
line of mean lower low water (MLLW) and shoreward to the MHHW line. The 
textual descriptions of critical habitat in the section titled 
``226.220 Critical habitat for the black abalone (Haliotis 
cracherodii)'' are the definitive source for determining the critical 
habitat boundaries. The overview maps provided in the section titled 
``226.220 Critical habitat for the black abalone (Haliotis 
cracherodii)'' 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, human activities 
that occur outside of designated critical habitat 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 the impacts that activities occurring outside of the 
proposed critical habitat area (e.g., coastal development, activities 
that exacerbate global warming, agricultural irrigation and pesticide 
application) may have on black abalone critical habitat.

Effects of Critical Habitat Designation

ESA Section 7 Consultation

    Section 7(a)(2) of the ESA requires Federal agencies, including 
NMFS, to ensure that any action authorized, funded, or carried out by 
the agency (agency action) does not jeopardize the continued existence 
of any threatened or endangered species or destroy or adversely modify 
designated critical habitat. When a species is listed or critical 
habitat is designated, Federal agencies must consult with NMFS on any 
agency actions to be conducted in an area where the species is present 
and that may affect the species or its critical habitat. During the 
consultation, NMFS evaluates the agency action to determine whether the 
action may adversely affect listed species or critical habitat and 
issues its findings in a biological opinion. If NMFS concludes in the 
biological opinion that the agency action would likely result in the 
destruction or adverse modification of critical habitat, NMFS would 
also recommend any reasonable and prudent alternatives to the action. 
Reasonable and prudent alternatives are defined in 50 CFR 402.02 as 
alternative actions identified during formal consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that would avoid the destruction or 
adverse modification of critical habitat. Regulations at 50 CFR 402.16 
require Federal agencies that have retained discretionary involvement 
or control over an action, or where such discretionary involvement or 
control is authorized by law, to reinitiate consultation on previously 
reviewed actions in instances where: (1) Critical habitat is 
subsequently designated; or (2) new information or changes to the 
action may result in effects to critical habitat not previously 
considered in the biological opinion. Consequently, some Federal 
agencies may request reinitiation of consultation or conference with 
NMFS on actions for which formal consultation has been completed, if 
those actions may affect designated critical habitat. Activities 
subject to the ESA section 7 consultation process include activities on 
Federal lands and activities on private or state lands requiring a 
permit from a Federal agency (e.g., a section 10(a)(1)(B) permit from 
NMFS) or some other Federal action, including funding (e.g., Federal 
Highway Administration (FHA) or Federal Emergency Management Agency 
(FEMA) funding). ESA section 7 consultation would not be required for 
Federal actions that do not affect listed species or critical habitat 
nor 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, to the maximum extent practicable, in 
any proposed 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 black abalone 
critical habitat and may be subject to the ESA section 7 consultation 
process when carried out, funded, or authorized by a Federal agency. 
The activities most likely to be affected by this critical habitat 
designation once finalized are: (1) Coastal development; (2) in-water 
construction; (3) sand replenishment or beach nourishment activities; 
(4) agricultural activities (e.g., irrigation); (5) NPDES activities 
and activities generating non-point source pollution; (6) sidecasting; 
(7) oil and chemical spills and clean-up activities; (8) construction 
and operation of power plants that take in and discharge water from the 
ocean; (9) construction and operation of alternative energy 
hydrokinetic projects (tidal or wave energy projects); and (10) 
construction and operation of desalination plants. Private entities may 
also be affected by this 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. These 
activities would need to be evaluated with respect to their potential 
to destroy or adversely modify critical habitat. Changes to the

[[Page 59924]]

actions to minimize or avoid destruction or adverse modification of 
designated critical habitat may result in changes to some activities. 
Please see the draft economic report (NMFS, 2010a) for more details and 
examples of changes that may need to occur in order for activities to 
minimize or avoid destruction or adverse modification of designated 
critical habitat. Questions regarding whether specific activities would 
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) The role that ocean acidification plays in reducing 
growth and survivorship of abalone as has been observed in other marine 
gastropods (Shirayama and Thornton, 2005); (2) the impact that reduced 
abundance of coralline algae resulting from increased partial pressure 
of carbon dioxide (hereafter CO<INF>2</INF>) (Feely et al., 2004; Hall-
Spencer et al., 2008) has on the survival of newly settled black 
abalone; (3) the effects that environmental pollutants have on growth, 
reproduction, and survival of black abalone at varying spatial scales, 
as has been demonstrated in a few, locally isolated cases (e.g., Diablo 
Canyon-Martin et al., 1977; Palos Verdes Peninsula-Leighton, 1959; Cox, 
1962; Young, 1964; Miller and Lawrenz-Miller, 1993); (4) the impacts 
that accidentally spilled oil from offshore drilling platforms or 
various types of commercial vessels and subsequent clean-up operations 
have on the quality of black abalone habitat; (5) information 
describing the abundance, distribution, and habitat use of black 
abalone throughout its current and historical range; (6) information on 
the identification, location, and quality of physical or biological 
features which may be essential to the conservation of black abalone; 
(7) 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; (8) information regarding the benefits of designating any 
particular area of the proposed critical habitat; (9) information 
regarding the benefits of excluding particular areas from the critical 
habitat designation; (10) current or planned activities in the areas 
proposed for designation and their possible impacts on proposed 
critical habitat; and (11) any foreseeable economic, national security, 
tribal, or other relevant impacts resulting from the proposed 
designations. With regard to Indian lands, we request that the 
following information be provided to inform our ESA section 4(b)(2) 
analysis: (1) A map and description of the Indian lands (e.g., 
location, latitude and longitude coordinates to define the boundaries, 
extent into waterways); (2) a description of tribal activities that may 
be affected within the area; (3) a description of past, ongoing, or 
future conservation measures conducted by the tribes that may protect 
black abalone habitat within the area; and (4) a point of contact.
    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, 
on the Federal eRulemaking Portal at http://www.regulations.gov, or can 
be made available upon request. 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 November 12, 2010. 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 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.'' The draft biological report and 
draft economic analysis report supporting this rule proposing to 
designate critical habitat for the black abalone are considered 
influential scientific information and subject to peer review. These 
two reports will each be distributed to three independent peer 
reviewers for review on or before the publication date of this proposed 
rule. The peer reviewer comments will be compiled into a peer review 
report to be made available to the public at the time the black abalone 
critical habitat designation is finalized.

Required Determinations

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 analysis report and ESA 
section 4(b)(2) report have been prepared to support the exclusion 
process under section 4(b)(2) of the ESA and our consideration of 
alternatives to this rulemaking as required under E.O. 12866. The draft 
economic analysis report and ESA section 4(b)(2) report are available 
on the Southwest Region Web site at http://swr.nmfs.noaa.gov, on the 
Federal eRulemaking Web site at http://www.regulations.gov, or upon 
request (see ADDRESSES).

[[Page 59925]]

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 report (NMFS, 2010a). 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.
    In summary, the IRFA did not consider all types of small businesses 
that could be affected by the black abalone critical habitat 
designation due to lack of information. Impacts to small businesses 
involved in 10 activities were considered: (1) In-water construction; 
(2) dredging; (3) NPDES-permitted facilities that discharge water into 
or adjacent to the coastal marine environment; (4) coastal urban 
development; (5) agriculture (including pesticide use, irrigation, and 
livestock farming); (6) oil and chemical spills and clean-up; (7) 
construction and operation of power plants; (8) construction and 
operation of tidal and wave energy projects; (9) construction and 
operation of liquefied natural gas (LNG) projects; and (10) mineral and 
petroleum exploration and extraction. The IRFA estimates the potential 
number of small businesses that may be affected by this rule, and the 
average annualized impact per entity for a given area and activity 
type. Specifically, based on an examination of the North American 
Industry Classification System (NAICS), this analysis classifies the 
potentially affected economic activities into industry sectors and 
provides an estimate of the number of small businesses affected in each 
sector based on the applicable NAICS codes.
    The specific areas considered for designation as critical habitat, 
and hence the action area for this rule, span from the Del Mar Landing 
Ecological Reserve to Dana Point in California, including several 
offshore islands. Although the areas of concern include marine areas 
off the coast, the small business analysis is focused on land based 
areas where most economic activities occur and which could be affected 
by the designation.
    Ideally, this analysis would directly identify the number of small 
entities that are located within the coastal areas adjacent to the 
specific areas. However, it is not possible to directly determine the 
number of firms in each industry sector within these areas because 
business activity data is maintained at the county level. Therefore, 
this analysis provides a maximum number of small businesses that could 
be affected. This number is most likely inflated since all of the 
identified small businesses are unlikely to be located in close 
proximity of the specific areas.
    After determining the number of small entities, this analysis 
estimates the impact per entity for each area and industry sector. The 
following steps were used to provide these estimates: (1) Total impact 
for every area and activity type is determined based on the results 
presented in the draft economic report (NMFS, 2010a); (2) the 
proportion of businesses that are small is calculated for every area 
for every activity type; (3) the impact to small businesses for every 
area and activity type is estimated by multiplying the total impacts 
estimated for all businesses with the proportion of businesses that are 
determined to be small; and (4) the average impact per small businesses 
is estimated by taking the ratio of the total estimated impacts to the 
total number of small businesses.
    There is a maximum of 3,671 small businesses involved in activities 
most likely to be affected by this rule. This is based on the 
assumption that all small businesses counted across areas and activity 
types are separate entities. However, it is likely that a particular 
small business may appear multiple times as being affected by 
conservation measures for multiple areas and activity types. Hence, 
total small business estimates across areas and activity types are 
likely to be overestimated. The potential annualized impacts borne by 
small entities were highest for specific area 10 (Monta[ntilde]a de Oro 
State Park to just south of Government Point) with potential costs as 
high as $75 million. This is mainly due to the impacts on the three 
facilities that are associated with power plants, which are estimated 
to be 97.5 percent of the total costs. It is important to note here 
that these costs area likely overestimated, due to the fact that the 
modification costs for power plants are based solely on the closed 
cooling system retrofit. Specific areas 3 (Farallon Islands), 4 
(southern point at the mouth of San Francisco Bay to Moss Beach), and 2 
(Bodega Head to Point Bonita) have potential annualized small business 
impacts of about $614,850, $407,050, and $325,300, respectively (NMFS, 
2010a).
    In accordance with the requirements of the RFA (as amended by 
SBREFA of 1996) this analysis considered various alternatives to the 
critical habitat designation for the black abalone. The alternative of 
not designating critical habitat for the black abalone was considered 
and rejected because such an approach does not meet the legal 
requirements of the ESA. We considered the alternative of designating 
all specific areas (i.e., no areas excluded); however, in one case, the 
benefits of excluding specific area 12 (Corona Del Mar to Dana Point) 
outweighed the benefits of including it in the designation. Thus, NMFS 
also considered the alternative of designating all specific areas, but 
excluding specific area 12. This alternative helps to reduce the number 
of small businesses potentially affected from 3,671 to 3,193; however, 
the total potential annualized economic impact to small businesses 
($76,858,250; NMFS, 2010a) remains largely unchanged because the 
estimated annualized cost borne by small entities associated with 
specific area 12 was very low ($27,200; NMFS, 2010a) and only accounts 
for 0.04 percent of the total small business impacts.

E.O. 13211

    On May 18, 2001, the President issued an Executive Order on 
regulations that significantly affect energy supply, distribution, and 
use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking an action expected to lead to the promulgation 
of a final rule or regulation that is a significant regulatory action 
under E.O. 12866 and is likely to have a significant adverse effect on 
the supply, distribution, or use of energy. An energy impacts analysis 
was prepared under E.O. 13211 and is available as part of the draft 
economic analysis report. The results of the analysis are summarized 
here, and more detail is provided in the NMFS draft economic report 
(NMFS, 2010a).
    The Office of Management and Budget provides guidance for 
implementing this Executive Order, outlining nine outcomes that may 
constitute ``a significant adverse effect'' when compared with the 
regulatory action under consideration: (1) Reductions in crude oil 
supply in excess of 10,000 barrels per day (bbls); (2) reductions in 
fuel production in excess of 4,000 bbls; (3) reductions in coal 
production in excess of 5 million tons per year; (4) reductions in 
natural gas production in excess of 25 million cubic feet per year; (5) 
reductions in electricity production

[[Page 59926]]

in excess of 1 billion kilowatts-hours per year or in excess of 500 
megawatts of installed capacity; (6) increases in energy use required 
by the regulatory action that exceed the thresholds above; (7) 
increases in the cost of energy production in excess of one percent; 
(8) increases in the cost of energy distribution in excess of one 
percent; or (9) other similarly adverse outcomes.
    Of these, the most relevant criteria to this analysis are potential 
changes in natural gas and electricity production, as well as changes 
in the cost of energy production. Possible energy impacts may occur as 
the result of requested project modifications to power plants, tidal 
and wave energy projects, and LNG facilities. There is currently only 
one power plant, the Diablo Canyon Nuclear Power Plant (DCNPP), located 
within an area that could be affected by black abalone critical 
habitat. Future management and required project modifications for black 
abalone critical habitat related to power plants include: cooling of 
thermal effluent before release to the environment, treatment of any 
contaminated waste materials, retrofitting to a wet cooling system, and 
modifications associated with permits issued under NPDES. These 
modifications could affect energy production; however, the potential 
impact of possible black abalone conservation efforts on the project's 
energy production and the associated cost is unknown. DCNPP has a 
production capacity of 2,200 megawatts and therefore, if about half of 
this capacity is affected by black abalone critical habitat, it would 
be higher than the 500 megawatts of installed capacity threshold. It is 
unlikely that any project modifications would have a large impact on 
the amount of electricity produced. It is more likely that any 
additional cost of black abalone conservation efforts would be passed 
on to the consumer in the form of slightly higher energy prices. 
Without information about the effect of power plants on future 
electricity prices and more specific information about how recommended 
conservation measures for black abalone would affect electricity 
production, this analysis is unable to forecast potential energy 
impacts resulting from changes to power plants.
    The number of future tidal and wave energy projects that will be 
constructed within the specific areas is unknown. Currently there are 
no actively-generating wave or tidal energy projects located within the 
study area. However, four projects have received preliminary permits 
from the Federal Energy Regulatory Commission (FERC).\1\ Future 
management and required project modifications for black abalone 
critical habitat related to tidal and wave energy projects are 
uncertain and could vary widely in scope from project to project. 
Moreover, because the proposed projects are still in the preliminary 
stages, the potential impact of possible black abalone conservation 
efforts on the project's energy production and the associated cost of 
that energy are unclear. Proposed tidal and wave energy projects within 
the study area have a combined production capacity of 21 megawatts. It 
is more likely that any additional cost of black abalone conservation 
efforts would be passed on to the consumer in the form of slightly 
higher energy prices. That said, any increase in energy prices as a 
result of black abalone conservation would have to be balanced against 
changes in energy price resulting from the development of these 
projects. That is, the construction of tidal and wave energy projects 
may result in a general reduction in energy prices in affected areas. 
Without information about the effect of the tidal and wave projects on 
future electricity prices and more specific information about 
recommended conservation measures for black abalone, this analysis is 
unable to forecast potential energy impacts resulting from changes to 
tidal and wave energy projects.
---------------------------------------------------------------------------

    \1\ FERC. Issued and Valid Hydrokinetic Projects Preliminary 
Permit. Accessed at: http://www.ferc.gov/industries/hydropower/indus-act/hydrokinetics/permits-issued.xls on April 5, 2010.
---------------------------------------------------------------------------

    Similar to tidal and wave energy projects, the number of future LNG 
projects that will be built within the specific areas is unknown. Many 
LNG projects are likely to be abandoned during the development stages 
for reasons unrelated to black abalone critical habitat. In addition, 
the potential impact of LNG facilities on black abalone habitat remains 
uncertain, as is the nature of any project modifications that might be 
requested to mitigate adverse impacts. Since there are no LNG projects 
in the development stage, the potential impact of possible black 
abalone conservation efforts on the project's energy production and the 
associated cost of that energy are unclear. Project modifications may 
include biological monitoring, spatial restrictions on project 
installation, and specific measures to prevent or respond to 
catastrophes. Out of these project modifications, spatial restrictions 
on project installation could have effects on energy production. This 
modification could increase LNG construction costs, which may result in 
higher natural gas costs. However, the construction of LNG facilities 
and associated increased energy supplies to consumers aim to generally 
result in lower energy prices than would have otherwise been expected. 
Therefore, this analysis is unable to forecast potential energy impacts 
resulting from changes to LNG projects without specific information 
about recommended black abalone conservation measures or future 
forecasts of energy prices that reflect future markets with increased 
energy supplies from LNG projects.

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 would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, 
tribal governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.'' The designation of critical habitat does 
not impose an enforceable duty on non-Federal government entities or 
private parties. The only regulatory effect of a critical habitat 
designation is that Federal agencies must ensure that their actions do 
not destroy or adversely modify critical habitat under ESA section 7. 
Non-Federal entities that receive funding, assistance, or permits from 
Federal agencies, or otherwise require approval or authorization from a

[[Page 59927]]

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 black abalone both 
within and outside of the designated areas, we do not anticipate that 
this proposed rule would 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 would 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 black abalone, nor do we expect the 
critical habitat designation to impose substantial additional burdens 
on land use or substantially affect property values. Additionally, the 
critical habitat designation would 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 endangered 
black abalone.

Federalism

    In accordance with E.O. 13132, we determined that this proposed 
rule would 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. This 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 
black abalone are specifically identified. While this designation would 
not alter where and what non-federally sponsored activities may occur, 
it may assist local governments in long-range planning.

Civil Justice Reform

    In accordance with E.O. 12988, we have determined that this 
proposed rule would not unduly burden the judicial system and meets the 
requirements of sections 3(a) and 3(b)(2) of the E.O. We are proposing 
to designate critical habitat in accordance with the provisions of the 
ESA. This proposed rule uses standard property descriptions and 
identifies the PCEs within the designated areas to assist the public in 
understanding the habitat needs of black abalone.

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 
would not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations.

National Environmental Policy Act of 1969 (NEPA)

    We have 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).

Coastal Zone Management Act of 1972 (CZMA)

    The CZMA emphasizes the primacy of state decision-making regarding 
the coastal zone. Section 307 of the CZMA (16 U.S.C. 1456), called the 
federal consistency provision, is a major incentive for states to join 
the national coastal management program and is a powerful tool that 
states use to manage coastal uses and resources and to facilitate 
cooperation and coordination with federal agencies.
    Federal consistency is the CZMA requirement where federal agency 
activities that have reasonably foreseeable effects on any land or 
water use or natural resource of the coastal zone (also referred to as 
coastal uses or resources and coastal effects) must be consistent to 
the maximum extent practicable with the enforceable policies of a 
coastal state's federally approved coastal management program. We have 
determined that this proposed critical habitat designation is 
consistent to the maximum extent practicable with the enforceable 
policies of the approved Coastal Zone Management Program of California. 
This determination will be submitted for review by the California 
Coastal Commission.

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. As described in the section 
above titled ``Exclusions Based on Impacts on Indian Lands,'' we have 
not identified any tribal lands that overlap with the proposed critical 
habitat designation for black abalone.

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: September 20, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, this proposed rule 
proposes to amend part 226, title 50 of the Code

[[Page 59928]]

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 Sec.  226.220, to read as follows:


Sec.  226.220  Critical habitat for black abalone (Haliotis 
cracherodii).

    Critical habitat is designated for black abalone 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.
    (1) Coastal Marine Areas: Each coastal marine area below is defined 
by four latitude and longitude coordinates that set the northern, 
southern, seaward and shoreward boundaries for the critical habitat 
designation for black abalone in U.S. coastal marine waters. The 
northern boundary is the straight line between the northern seaward and 
shoreward coordinates and the southern boundary is the straight line 
between the southern seaward and shoreward coordinates. The seaward 
boundary extends offshore to the 6 m depth bathymetry line (relative to 
mean lower low water) between the northern seaward and southern seaward 
coordinates and the shoreward boundary is the line that marks mean 
higher high water between the northern shoreward and southern shoreward 
coordinates. Critical habitat only includes rocky intertidal habitats 
to a depth of 6 m.
    (i) Del Mar Landing Ecological Reserve to Bodega Head, Sonoma 
County, California: northern seaward coordinates: 38[deg]44'25.04'' N, 
123[deg]30'52.067'' W; northern shoreward coordinates: 
38[deg]44'25.948'' N, 123[deg]30'19.175'' W; southern seaward 
coordinates: 38[deg]18'38.623'' N, 123[deg]4'21.549'' W; southern 
shoreward coordinates: 38[deg]18'39.478'' N, 123[deg]4'7.573'' W.
    (ii) Bodega Head, Sonoma County, California to Point Bonita, Marin 
County, California: northern seaward coordinates: 38[deg]18'38.623'' N, 
123[deg]4'21.549'' W; northern shoreward coordinates: 
38[deg]18'39.478'' N, 123[deg]4'7.573'' W; southern seaward 
coordinates: 37[deg]49'3.404'' N, 122[deg]31'56.339'' W; southern 
shoreward coordinates: 37[deg]49'3.082'' N, 122[deg]31'50.549'' W.
    (iii) South of San Francisco Bay to Moss Beach, San Mateo County, 
California: northern seaward coordinates: 37[deg]47'17.078'' N, 
122[deg]31'13.59'' W; northern shoreward coordinates: 
37[deg]47'17.524'' N, 122[deg]30'21.458'' W; southern seaward 
coordinates: 37[deg]30'11.763'' N, 122[deg]30'35.06'' W; southern 
shoreward coordinates: 37[deg]30'12.815'' N, 122[deg]30'2.083'' W.
    (iv) Moss Beach to Pescadero State Beach, San Mateo County, 
California: northern seaward coordinates: 37[deg]30'11.763'' N, 
122[deg]30'35.06'' W; northern shoreward coordinates: 
37[deg]30'12.815'' N, 122[deg]30'2.083'' W; southern seaward 
coordinates: 37[deg]16'42.635'' N, 122[deg]24'52.453'' W; southern 
shoreward coordinates: 37[deg]16'45.728'' N, 122[deg]24'32.42'' W.
    (v) Just north of Pescadero State Beach, San Mateo County, 
California to Natural Bridges State Beach, Santa Cruz County, 
California: northern seaward coordinates: 37[deg]16'42.635'' N, 
122[deg]24'52.453'' W; northern shoreward coordinates: 
37[deg]16'45.728'' N, 122[deg]24'32.42'' W; southern seaward 
coordinates: 36[deg]57'11.547'' N, 121[deg]58'36.276'' W; southern 
shoreward coordinates: 36[deg]57'15.208'' N, 121[deg]58'31.424'' W.
    (vi) Pacific Grove to Prewitt Creek, Monterey County, California: 
northern seaward coordinates: 36[deg]36'41.16'' N, 121[deg]53'30.453'' 
W; northern shoreward coordinates: 36[deg]36'41.616'' N, 
121[deg]53'47.763'' W; southern seaward coordinates: 35[deg]56'5.324'' 
N, 121[deg]28'45.131'' W; southern shoreward coordinates: 
35[deg]56'6.025'' N, 121[deg]28'34.36'' W.
    (vii) Prewitt Creek, Monterey County, California to Cayucos, San 
Luis Obispo County, California: northern seaward coordinates: 
35[deg]56'5.324'' N, 121[deg]28'45.131'' W; northern shoreward 
coordinates: 35[deg]56'6.025'' N, 121[deg]28'34.36'' W; southern 
seaward coordinates: 35[deg]26'22.887'' N, 120[deg]54'6.264'' W; 
southern shoreward coordinates: 35[deg]26'23.708'' N, 
120[deg]53'39.427'' W.
    (viii) Monta[ntilde]a de Oro State Park in San Luis Obispo County, 
California to just south of Government Point, Santa Barbara County, 
California: northern seaward coordinates: 35[deg]17'15.72'' N, 
120[deg]53'30.537'' W; northern shoreward coordinates: 
35[deg]17'15.965'' N, 120[deg]52'59.583'' W; southern seaward 
coordinates: 34[deg]27'12.95'' N, 120[deg]22'10.341'' W; southern 
shoreward coordinates: 34[deg]27'25.11'' N, 120[deg]22'3.731'' W.
    (ix) Palos Verdes Peninsula extending from the Palos Verdes/
Torrance border to Los Angeles Harbor in southwestern Los Angeles 
County, California: northern seaward coordinates: 33[deg]48'22.604'' N, 
118[deg]24'3.534'' W; northern shoreward coordinates: 
33[deg]48'22.268'' N, 118[deg]23'35.504'' W; southern seaward 
coordinates: 33[deg]42'10.303'' N, 118[deg]16'50.17'' W; southern 
shoreward coordinates: 33[deg]42'25.816'' N, 118[deg]16'41.059'' W.
    (2) Coastal Islands: The black abalone critical habitat areas 
surrounding the coastal islands listed below are defined by a seaward 
boundary that extends offshore to the 6m depth bathymetry line 
(relative to mean lower low water), and a shoreward boundary that is 
the line marking mean higher high water. Critical habitat only includes 
rocky intertidal habitats to a depth of 6 m.
    (i) Farallon Islands, San Francisco County, California.
    (ii) A[ntilde]o Nuevo Island, San Mateo County, California.
    (iii) San Miguel Island, Santa Barbara County, California.
    (iv) Santa Rosa Island, Santa Barbara County, California.
    (v) Santa Cruz Island, Santa Barbara County, California.
    (vi) Anacapa Island, Ventura County, California.
    (vii) San Nicolas Island, Ventura County, California.
    (viii) Santa Barbara Island, Santa Barbara County, California.
    (ix) Santa Catalina Island, Los Angeles County, California.
    (x) San Clemente Island, Los Angeles County, California.
    (b) Primary constituent elements. The primary constituent elements 
essential for the conservation of the black abalone are:
    (1) Rocky substrate. Suitable rocky substrate includes rocky 
benches formed from consolidated rock of various geological origins 
(e.g., igneous, metamorphic, and sedimentary) that contain channels 
with macro- and micro-crevices or large boulders (greater than or equal 
to 1 m in diameter) and occur from mean higher high water (MHHW) to a 
depth of 6 m. All types of relief (high, medium and low; 0.5 to greater 
than 2 m vertical relief) support black abalone.
    (2) Food resources. Abundant food resources including bacterial and 
diatom films, crustose coralline algae, and a source of detrital 
macroalgae, are required for growth and survival of all stages of black 
abalone. The primary macroalgae consumed by juvenile and adult black 
abalone are giant kelp (Macrocystis pyrifera) and feather boa kelp 
(Egregia menziesii) in southern California (i.e., south of Point 
Conception) habitats, and bull kelp (Nereocystis leutkeana) in central 
and

[[Page 59929]]

northern California habitats (i.e., north of Santa Cruz). Southern sea 
palm (Eisenia arborea), elk kelp (Pelagophycus porra), stalked kelp 
(Pterygophora californica), and other brown kelps (Laminaria sp.) may 
also be consumed by black abalone.
    (3) Juvenile settlement habitat. Rocky intertidal habitat 
containing crustose coralline algae and crevices or cryptic biogenic 
structures (e.g., urchins, mussels, chiton holes, conspecifics, 
anemones) is important for successful larval recruitment and juvenile 
growth and survival of black abalone less than approximately 25 mm 
shell length. Adult abalone may facilitate larval settlement and 
metamorphosis by, grazing down algal competitors and thereby promoting 
the maintenance of substantial substratum cover by crustose coralline 
algae, outcompeting encrusting sessile invertebrates (e.g., tube worms 
and tube snails) for space and thereby promoting the maintenance of 
substantial substratum cover by crustose coralline algae as well as 
creating space for settling abalone, and emitting chemical cues that 
may induce settlement of abalone larvae.
    (4) Suitable water quality. Suitable water quality includes 
temperature (i.e., tolerance range: 12 to 25 [deg]C, optimal range: 18 
to 22 [deg]C), salinity (i.e., 30 to 35 ppt), pH (i.e., 7.5 to 8.5), 
and other chemical characteristics necessary for normal settlement, 
growth, behavior, and viability of black abalone.
    (5) Suitable nearshore circulation patterns. Suitable circulation 
patterns are those that retain eggs, sperm, fertilized eggs and ready-
to-settle larvae within 100 km from shore so that successful 
fertilization and settlement to shallow intertidal habitat can take 
place.
    (c) Overview maps of black abalone critical habitat follow:
BILLING CODE 3510-22-P

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[FR Doc. 2010-24215 Filed 9-27-10; 8:45 am]
BILLING CODE 2510-22-C