59900 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 

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. 

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 Montan ̃ 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; An ̃ 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: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 1–562–980–4027, Attention: 

Melissa Neuman. 

• Mail: Submit written information to 

Chief, Protected Resources Division, 

Southwest Region, National Marine 

Fisheries Service, 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 

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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¥2. 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 °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 Rickettsialeslike 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 largescale 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 presentday 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 midintertidal 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 CO2 may decrease 

calcification rates of coralline algae, 

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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 

°C, but they are most abundant in areas 

where the water temperature ranges 

from 18 to 22 °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 CO2

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-tosettle 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, An ̃ 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 

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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 CO2 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 wastewater 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 

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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 An ̃ 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. An ̃ 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 An ̃ 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 

An ̃ 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 m2 (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 An ̃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 

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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 

Montan ̃ a de Oro State Park in San Luis 

Obispo County, California, to just south 

of Government Point, Santa Barbara 

County, California. Montan ̃ 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 

m2. 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 Nin ̃ o events and poor 

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water quality resulting from largevolume domestic sewage discharge by 

Los Angeles County during the 1950s 

and 1960s (Leighton, 1959; Cox, 1962; 

Young, 1964; Miller and LawrenzMiller, 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 m2 (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 

km2) 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 

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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 longterm 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 m2 by 1993 

(CDFG, 1993). The Department of 

Defense initiated a San Clemente Islandwide 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 m2 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 

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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

Activity Specific areas PCE and nature of the threat Section 7 nexus Possible modification(s) to the 

activity 

Dredging .............. Unknown ..........

We solicit the 

public for 

more information (see 

‘‘Public Comments Solicited’’).

Rocky substrate PCE—Dredging 

that does occur near rocky 

intertidal areas may increase 

sedimentation into the rocky 

habitat. A variety of harmful 

substances, including heavy 

metals, oil, tributyltin (TBT), 

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. 

The U.S. Army Corps of Engineers (USACE) issues permits 

pursuant to Section 404 of the 

Clean Water Act (CWA), 

among several others. The 

USACE must then consult with 

NMFS under section 7 of the 

ESA.

Restrictions on the spatial and 

temporal extent of dredging activities and the deposition of 

dredge spoil. Requirements to 

treat (detoxify) dredge spoil. 

In-water construction.10, 17, 19, and 

20.

Rocky substrate PCE—Increased 

sedimentation, a side effect of 

some in-water construction 

projects, can reduce the quality 

and/or quantity of rocky substrate.

Food resources PCE—The presence of in-water structures 

may affect black abalone habitat by affecting the distribution 

and abundance of algal species that provide food for abalone or the distribution and 

abundance of other intertidal 

invertebrate species. 

The USACE issues permits pursuant to Section 10 of the Rivers and Harbors Act of 1899 

(RHA) among several others. 

Although in-water construction 

projects are commonly 

unertaken by private or nonFederal parties, in most cases 

they must obtain a USACE 

permit. The USACE must then 

consult with NMFS under section 7 of the ESA.

Bank stabilization measures and 

more natural erosion control. 

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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—Continued 

Activity Specific areas PCE and nature of the threat Section 7 nexus Possible modification(s) to the 

activity 

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—Sand 

movements could cover up 

rocky substrate thereby reducing its quality and/or quantity.

The USACE is responsible for 

administering Section 404 permits under the CWA, which are 

required for sand replenishment activities.

Monitor the water quality (turbidity) during and after the 

project. Place a buffer around 

pertinent areas within critical 

habitat that sand 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, 7, 

8, 9, 10, 11, 

12, 16, 17, 

and 19.

Food resources PCE—Sewage 

outfalls may affect food resources by causing light levels 

to be reduced to levels too low 

to support Macrocystis germination and growth. Eutrophication occurs around southern 

California sewage outfalls 

where phytoplankton 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. 

Issuance of CWA permits. State 

water quality standards are 

subject to an ESA section 7 

consultation between NOAA 

and the EPA and NOAA can 

review individual NPDES permit applications for impacts on 

ESA-listed species.

Where Federal permits are necessary, ensure discharge 

meets standards other than existing federal standards and 

regulations (EPA, CWA). Require measures to prevent or 

respond to a catastrophic 

event (i.e., using best technology to avoid unnecessary 

discharges). 

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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—Continued 

Activity Specific areas PCE and nature of the threat Section 7 nexus Possible modification(s) to the 

activity 

Coastal development.2, 4, 7, 8, 10, 

17, 19, and 20.

Rocky substrate PCE—Increased 

sediment load that may result 

from urbanization of the coast 

and of watersheds (increased 

transport of fine sediments into 

the 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.

The USACE permits construction 

or expansion of stormwater 

outfalls, discharge or fill of wetlands, flood control projects, 

bank stabilization, and instream work.

Stormwater pollution prevention 

plan; permanent stormwater 

site plan; and stormwater best 

management practice operations and maintenance. 

Sidecasting .......... 7 and 8 ............. Rocky substrate and settlement 

habitat PCEs—Increased likelihood of sediment input into 

rocky intertidal habitats may 

reduce its quality and quantity.

Food resources PCE— 

Sidecasting may result in possible reductions or changes to 

food resources. See sedimentation effects as described 

under ‘‘Coastal development’’, 

above. 

National Marine Sanctuary 

(NMS) regulations prohibit discharge of materials within its 

boundaries, as well as outside 

its boundaries if the material 

may enter the sanctuary and 

harm sanctuary resources. 

However, under certain circumstances, a permit may be 

obtained from the Monterey 

Bay National Marine Sanctuary 

(MBNMS) to allow for a prohibited activity.

Haul away (or store locally) excess material from road maintenance activities, rather than 

sidecast; place excess material 

at a stable site at a safe distance from rocky intertidal 

habitats; and use mulch or 

vegetation to stabilize the material. 

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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—Continued 

Activity Specific areas PCE and nature of the threat Section 7 nexus Possible modification(s) to the 

activity 

Agricultural activities (including 

pesticide application, irrigation, and livestock farming).

1, 2, 3, 4, 7, 8, 

9, 10, 12, and 

16.

Rocky substrate PCE—Soil erosion from intensive irrigated 

agriculture or livestock farming 

of areas adjacent to the coast 

can cause increased sedimentation thereby reducing the 

quality and quantity of rocky 

substrate.

Food resources PCE—Herbicides are designed to kill 

plants, thus herbicide contamination of water could have 

devastating effects on aquatic 

plants. 

Settlement habitat PCE—Laboratory experiments showed that 

the presence of pesticides 

(those examined in the study 

were DDT, methoxychlor, 

dieldrin, and 2,4–D) interfered 

with larval settlement. Presence of pesticides had a much 

lesser effect on survival of larvae. 

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.

Irrigation—any water supplier 

providing water via contract 

with U.S. Bureau of Reclamation (USBR) or using infrastructure owned or maintained 

by the USBR is subject to section 7 consultation under ESA. 

Privately owned diversions 

may require a Federal permit 

from USACE under sections 

401 or 404 of the CWA.

Pesticide Application—Environmental Protection Agency 

(EPA) consultation on the Federal Insecticide, Fungicide, and 

Rodenticide Act (FIFRA), pesticide registration program, and 

NPDES permits for aquatic 

pesticides. 

Livestock farming—Bureau of 

Land Management (BLM) and 

the U.S. Forest Service 

(USFS). 

For irrigated agriculture: conservation crop rotation, underground outlets, land smoothing, structures for water control, subsurface drains, field 

ditches, mains or laterals, and 

toxic salt reduction. 

For pesticides application: restrictions on application of some 

pesticides within certain distances of streams. 

For livestock farming: fencing riparian areas; placing salt or 

mineral supplements to draw 

cattle away from rivers; total 

rest of allotments when possible; and frequent monitoring. 

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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—Continued 

Activity Specific areas PCE and nature of the threat Section 7 nexus Possible modification(s) to the 

activity 

Oil & chemical 

spills & cleanup.

4, 5, 7, 8, 9, 12, 

15, and 19.

Rocky substrate and settlement 

habitat PCEs—Oil spill cleanup activities may be as destructive, or more destructive, 

than the oil spill itself. Oil spill 

clean-up may involve application of toxic dispersants and 

the use of physical cleaning 

methods such as the use of 

high pressure and/or high temperature water to flush out oil 

which may decrease the quality of rocky substrate and settlement habitat in an area. Oil, 

oil/dispersant mixtures, and 

dispersants used in 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. 

Review of oil spill response plan 

from United States Coast 

Guard (USCG). Regulations 

under the Water Pollution Control Act.

Restrict or minimize the use or 

type of response to oil spills 

(e.g. boom, dispersants, in situ 

burning) in areas where black 

abalone habitat exists. Mitigation measures include adoption 

of oil/chemical spill clean-up 

protocols and oil/chemical spill 

prevention plans, more Clean 

Seas boats as first responders 

to prevent oil/chemical spills 

from coming onshore, and relocation of proposed oil/chemical platforms further away 

from black abalone habitats. 

Vessel grounding 8 ....................... Rocky substrate and settlement 

habitat PCEs—Vessel grounding can affect the rocky substrate and have substantial effects on the environment, ranging from minor displacement of 

sediment to 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 oceangoing 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. 

The USCG has the authority to 

respond to all oil and hazardous substance spills in the 

offshore/coastal zone, while 

the EPA has the authority to 

respond in the inland zone.

Best management practices 

(BMP) for oil spill and debris 

clean-up to reduce trampling. 

Education of USCG, NMS biologists, and others involved in 

clean-up to raise awareness of 

black abalone. 

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Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59915 

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—Continued 

Activity Specific areas PCE and nature of the threat Section 7 nexus Possible modification(s) to the 

activity 

Construction and 

operation of 

power plants.

10 ..................... Water quality PCE—The power 

plants’ use of coastal waters 

for cooling and subsequently 

discharging of heated water 

back into the marine environment may raise water temperatures and introduce contaminants into the water. Elevated 

water temperatures have been 

linked to increased virulence of 

the withering syndrome disease.

The Diablo Canyon Nuclear 

Power Plant, located in specific 

area 10, is licensed through 

the Nuclear Regulatory Commission.

Require cooling of thermal effluent before release to the environment (may require use of 

different technology). Require 

treatment of any contaminated 

waste materials. 

Modifications associated with 

permit issued under NPDES 

(any updates from current 

early 1990s issuance). Dry 

cooling systems (not as feasible as 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 desalination plants.

4, 7, 8, 9, 10, 

12, 17, and 19.

Water quality PCE—Discharge of 

hyper-saline water results in increased salinity and fluctuating 

salinity conditions that may affect sensitive organisms near 

the outfall. The impacts of 

brine effluent are generally 

more severe in rocky substrate 

than on sandy seafloor habitats. However, more research 

is needed on the tolerance 

level of black abalone for 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.

A desalination facility may require a Section 404 permit 

under the CWA from the 

USACE if it involves placing fill 

in navigable waters, and a 

Section 10 permit under the 

RHA if the proposal involves 

placing a structure in a navigable waterway.

Potential conservation efforts to 

mitigate desalination impacts 

may include the treatment of 

hyper-saline effluent to ensure 

that salinity levels are restored 

to normal values. The costs of 

treating hyper-saline effluent or 

finding an alternate manner of 

brine disposal can vary widely 

across plants depending on 

plant capacity and design. 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4

59916 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 

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—Continued 

Activity Specific areas PCE and nature of the threat Section 7 nexus Possible modification(s) to the 

activity 

Construction and 

operation of 

tidal and wave 

energy projects.

1 and 19 ........... Rocky substrate PCE—Impacts 

on rocky substrate may result 

from the installation of power 

lines to transport power to 

shore. These projects typically 

involve placement of structures, such as buoys, cables, 

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. 

Subject to the Federal Energy 

Regulatory Commission 

(FERC) permitting and licensing requirements, as well as 

requirements under Section 

401 of the CWA.

Use of non-toxic fluids instead of 

toxic fluids. 

When the project requires the 

use of power lines, use existing power lines, instead of constructing new ones, and avoid 

rocky intertidal areas. 

Construction and 

operation of liquefied natural 

gas (LNG) 

projects.

Unknown ...........

We solicit the 

public for 

more information (see 

‘‘Public Comments Solicited’’).

Rocky substrate PCE—Onshore 

LNG terminals, construction of 

breakwaters, jetties, or other 

shoreline structures and the 

activities associated with construction (e.g., dredging) may 

affect black abalone habitat. 

Offshore LNG terminals involve 

construction of pipelines to 

transport LNG onshore and 

may affect rocky habitat. See 

sedimentation effects described under ‘‘dredging’’, ‘‘inwater 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. 

CWA permits under section 401 

(water quality certificate) and/ 

or section 404 (a dredge and 

fill permit) and Clean Air Act 

permits under section 502 may 

be required.

Offshore facilities: In the installation of pipelines, avoid rocky 

intertidal habitats or use existing pipelines. Onshore siting 

considerations: Avoid siting 

LNG projects within or adjacent to rocky intertidal habitats. 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4

Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59917 

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—Continued 

Activity Specific areas PCE and nature of the threat Section 7 nexus Possible modification(s) to the 

activity 

Mineral and petroleum exploration and extraction.10 ..................... Rocky substrate PCE—This activity may result in increased 

sedimentation into rocky 

intertidal habitats. See sedimentation effects described 

under ‘‘dredging’’, ‘‘in-water 

construction’’, and ‘‘coastal development’’.

Food resources and settlement 

habitat PCE—In a laboratory 

study, 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. 

The Mineral Management Service (MMS) manages the nation’s offshore energy and mineral resources, including oil, 

gas, and alternative energy 

sources, as well as sand, gravel and other hard minerals on 

the outer continental shelf.

Adoption of erosion control 

measures. Adoption of oil spill 

clean-up protocols and oil spill 

prevention plans; more Clean 

Seas boats as first responders 

to prevent oil spills from coming onshore; and relocation of 

proposed oil platforms further 

away from black abalone habitats. 

Non-native species introduction 

and management.

2, 4, 8, 10, and 

11.

Food resources PCE—The release of wastewater, sewage, 

and ballast water from commercial shipping presents a 

risk to kelp and other 

macroalgal species because of 

the potential introduction of exotic species.

Settlement habitat PCE—Nonnative species may displace 

native organisms by preying on 

them or out-competing them 

for resources such as food, 

space or both. Non-native species may introduce diseasecausing organisms and can 

cause substantial population, 

community, and habitat 

changes. Other possible consequences of non-native species introductions could be impacts on flow patterns, sediment and nutrient dynamics, 

and impacts on native bioengineering species. 

The National Invasive Species 

Act of 1996 (NISA) and the 

Nonindigenous Aquatic Nuisance Prevention and Control 

Act of 1990 under the USCG.

For commercial shipping: safe 

(non-contaminated) ballast disposal; rinse anchors and anchor chains when retrieving the 

anchor to remove organisms 

and sediments at their place of 

origin; remove hull fouling organisms from hull, piping, propellers, sea chests, and other 

submerged portions of a vessel, on a regular basis, and 

dispose of removed substances in accordance with 

local, state, and federal law. 

For aquaculture: inspect aquaculture facilities to prevent nonnative species transport in 

packing materials. 

Kelp harvesting ... 7–20 ................. Food resources PCE—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.

None ............................................ None. 

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59918 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 

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—Continued 

Activity Specific areas PCE and nature of the threat Section 7 nexus Possible modification(s) to the 

activity 

Activities leading 

to global climate change 

(e.g., fossil fuel 

combustion).

1–20 ................. Affects all PCEs. There is little 

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 25ßC 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). 

Uncertain ..................................... Uncertain. 

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 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4

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

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS4

59920 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 

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 nonpoint 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; nonnative 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 

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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 Montan ̃ 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 Montan ̃ 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 northcentral 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 

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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 

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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 

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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 CO2) (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 LawrenzMiller, 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). 

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Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 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) NPDESpermitted 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 (Montan ̃ 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 

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59926 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 

1FERC. 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. 

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 activelygenerating 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. 

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 nonFederal government entities or private 

parties. The only regulatory effect of a 

critical habitat designation is that 

Federal agencies must ensure that their 

actions do not destroy or adversely 

modify critical habitat under ESA 

section 7. Non-Federal entities that 

receive funding, assistance, or permits 

from Federal agencies, or otherwise 

require approval or authorization from a 

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

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59928 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 

of Federal Regulations as set forth 

below: 

PART 226—DESIGNATED CRITICAL 

HABITAT 

1. The authority citation of part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

2. Add § 226.220, to read as follows: 

§ 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°44′25.04′′ N, 

123°30′52.067′′ W; northern shoreward 

coordinates: 38°44′25.948′′ N, 

123°30′19.175′′ W; southern seaward 

coordinates: 38°18′38.623′′ N, 

123°4′21.549′′ W; southern shoreward 

coordinates: 38°18′39.478′′ N, 

123°4′7.573′′ W. 

(ii) Bodega Head, Sonoma County, 

California to Point Bonita, Marin 

County, California: northern seaward 

coordinates: 38°18′38.623′′ N, 

123°4′21.549′′ W; northern shoreward 

coordinates: 38°18′39.478′′ N, 

123°4′7.573′′ W; southern seaward 

coordinates: 37°49′3.404′′ N, 

122°31′56.339′′ W; southern shoreward 

coordinates: 37°49′3.082′′ N, 

122°31′50.549′′ W. 

(iii) South of San Francisco Bay to 

Moss Beach, San Mateo County, 

California: northern seaward 

coordinates: 37°47′17.078′′ N, 

122°31′13.59′′ W; northern shoreward 

coordinates: 37°47′17.524′′ N, 

122°30′21.458′′ W; southern seaward 

coordinates: 37°30′11.763′′ N, 

122°30′35.06′′ W; southern shoreward 

coordinates: 37°30′12.815′′ N, 

122°30′2.083′′ W. 

(iv) Moss Beach to Pescadero State 

Beach, San Mateo County, California: 

northern seaward coordinates: 

37°30′11.763′′ N, 122°30′35.06′′ W; 

northern shoreward coordinates: 

37°30′12.815′′ N, 122°30′2.083′′ W; 

southern seaward coordinates: 

37°16′42.635′′ N, 122°24′52.453′′ W; 

southern shoreward coordinates: 

37°16′45.728′′ N, 122°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°16′42.635′′ N, 

122°24′52.453′′ W; northern shoreward 

coordinates: 37°16′45.728′′ N, 

122°24′32.42′′ W; southern seaward 

coordinates: 36°57′11.547′′ N, 

121°58′36.276′′ W; southern shoreward 

coordinates: 36°57′15.208′′ N, 

121°58′31.424′′ W. 

(vi) Pacific Grove to Prewitt Creek, 

Monterey County, California: northern 

seaward coordinates: 36°36′41.16′′ N, 

121°53′30.453′′ W; northern shoreward 

coordinates: 36°36′41.616′′ N, 

121°53′47.763′′ W; southern seaward 

coordinates: 35°56′5.324′′ N, 

121°28′45.131′′ W; southern shoreward 

coordinates: 35°56′6.025′′ N, 

121°28′34.36′′ W. 

(vii) Prewitt Creek, Monterey County, 

California to Cayucos, San Luis Obispo 

County, California: northern seaward 

coordinates: 35°56′5.324′′ N, 

121°28′45.131′′ W; northern shoreward 

coordinates: 35°56′6.025′′ N, 

121°28′34.36′′ W; southern seaward 

coordinates: 35°26′22.887′′ N, 

120°54′6.264′′ W; southern shoreward 

coordinates: 35°26′23.708′′ N, 

120°53′39.427′′ W. 

(viii) Montan ̃ 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°17′15.72′′ N, 

120°53′30.537′′ W; northern shoreward 

coordinates: 35°17′15.965′′ N, 

120°52′59.583′′ W; southern seaward 

coordinates: 34°27′12.95′′ N, 

120°22′10.341′′ W; southern shoreward 

coordinates: 34°27′25.11′′ N, 

120°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°48′22.604′′ N, 118°24′3.534′′ W; 

northern shoreward coordinates: 

33°48′22.268′′ N, 118°23′35.504′′ W; 

southern seaward coordinates: 

33°42′10.303′′ N, 118°16′50.17′′ W; 

southern shoreward coordinates: 

33°42′25.816′′ N, 118°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) An ̃ 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 

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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 °C, optimal 

range: 18 to 22 °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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59930 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 


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Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Proposed Rules 59931 

[FR Doc. 2010–24215 Filed 9–27–10; 8:45 am] 

BILLING CODE 2510–22–C 


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