[Federal Register Volume 79, Number 219 (Thursday, November 13, 2014)]
[Rules and Regulations]
[Pages 68042-68087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26558]



[[Page 68041]]

Vol. 79

Thursday,

No. 219

November 13, 2014

Part IV





 Department of Commerce





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 National Oceanic and Atmospheric Administration





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50 CFR Part 226





Endangered and Threatened Species; Designation of Critical Habitat for 
the Puget Sound/Georgia Basin Distinct Population Segments of Yelloweye 
Rockfish, Canary Rockfish and Bocaccio; Final Rule

Federal Register / Vol. 79 , No. 219 / Thursday, November 13, 2014 / 
Rules and Regulations

[[Page 68042]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 130404330-4883-02]
RIN 0648-BC76


Endangered and Threatened Species; Designation of Critical 
Habitat for the Puget Sound/Georgia Basin Distinct Population Segments 
of Yelloweye Rockfish, Canary Rockfish and Bocaccio

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

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a 
final rule to designate critical habitat for three species of rockfish 
listed under the Endangered Species Act (ESA): the threatened yelloweye 
rockfish (Sebastes ruberrimus) Distinct Population Segment (DPS), the 
threatened canary rockfish (S. pinniger) DPS, and the endangered 
bocaccio (S. paucispinus) DPS (listed rockfish) pursuant to section 4 
of the ESA. The specific areas in the final designation include 590.4 
square miles (1529 square km) of nearshore habitat for canary rockfish 
and bocaccio, and 414.1 square miles (1072.5 square km) of deepwater 
habitat for yelloweye rockfish, canary rockfish and bocaccio. This 
final designation represents a reduction of approximately 15.2 percent 
(180.3 sq mi, 467 sq km) for canary rockfish and bocaccio, and a 
reduction of approximately 28 percent (160 sq mi, 416.2 sq km) for 
yelloweye rockfish, compared to our proposed critical habitat rule on 
August 6, 2013 (78 FR 47635). We exclude some particular areas from 
designation because the benefits of exclusion outweigh the benefits of 
inclusion and exclusion of those areas will not result in the 
extinction of the species. No areas were excluded based on economic 
impacts.
    This final rule responds to and incorporates public comments 
received on the proposed rule and supporting documents, as well as peer 
reviewer comments received on our draft biological report.

DATES: This final rule will take effect on February 11, 2015.

ADDRESSES: Reference materials regarding this rulemaking can be 
obtained via the Internet at: http://www.wcr.noaa.gov or by submitting 
a request to the Protected Resources Division, West Coast Region, 
National Marine Fisheries Service, 7600 Sand Point Way NE., Seattle, WA 
98115.

FOR FURTHER INFORMATION CONTACT: Dan Tonnes, NMFS, West Coast Region, 
Protected Resources Division, at the address above or at 206-526-4643; 
or Dwayne Meadows, NMFS, Office of Protected Resources, Silver Spring, 
MD, 301-427-8403.

SUPPLEMENTARY INFORMATION: 

Background

    On April 28, 2010, we listed the Puget Sound/Georgia Basin Distinct 
Population Segments (DPSs) of yelloweye rockfish and canary rockfish as 
threatened under the Endangered Species Act (ESA), and bocaccio as 
endangered (75 FR 22276, updated 79 FR 20802, April 14, 2014). A 
proposed critical habitat rule for the listed DPSs of rockfish was 
published in the Federal Register on August 6, 2013 (78 FR 47635). This 
rule describes the final critical habitat designation, including 
responses to public comments and peer reviewer comments, and supporting 
information on yelloweye rockfish, canary rockfish and bocaccio 
including biology, distribution and habitat use, and the methods used 
to develop the final designation.
    We considered various alternatives to the critical habitat 
designation for yelloweye rockfish, canary rockfish, and bocaccio of 
the Puget Sound/Georgia Basin. The alternative of not designating 
critical habitat for each species 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 it does not meet the legal requirements of the ESA 
and would not provide for the conservation of each species. The 
alternative of designating all potential critical habitat areas (i.e., 
no areas excluded) also was considered and rejected because for some 
areas the benefits of exclusion outweighed the benefits of inclusion. 
An alternative to designating all potential critical habitat areas is 
the designation of critical habitat within a subset of these areas. 
Under section 4(b)(2) of the ESA, we must consider the economic 
impacts, impacts on national security, and other relevant impacts of 
designating any particular area as critical habitat. The Secretary of 
Commerce (Secretary) 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 these species if an area were designated), so 
long as exclusion of the area will not result in extinction of the 
species. We prepared an analysis describing our exercise of discretion, 
which is contained in our final Section 4(b)(2) Report (NMFS, 2014c). 
Under this alternative we are excluding Indian lands as well as several 
areas under the control of the Department of Defense (DOD). We 
selected, and are implementing, this alternative because the benefits 
of excluding these areas outweigh the benefits of including these areas 
and result in a critical habitat designation that provides for the 
conservation of listed rockfish while avoiding impacts to Indian lands 
and impacts to national security. This alternative also meets the 
requirements under the ESA and our joint NMFS-U.S. Fish and Wildlife 
Service (USFWS) regulations concerning critical habitat. We estimated a 
total annualized incremental administrative cost of approximately 
$123,000 (discounted at 7 percent) for designating the five specific 
areas as listed rockfish critical habitat.

Statutory and Regulatory Background for Critical Habitat Designations

    The ESA defines critical habitat under section 3(5)(A) as: ``(i) 
The specific areas within the geographical area occupied by the 
species, at the time it is listed . . . , on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed . . 
. upon a determination by the Secretary [of Commerce] that such areas 
are essential for the conservation of the species.''
    Section 4(a) of the ESA precludes military land from designation, 
where that land is covered by an Integrated Natural Resource Management 
Plan that the Secretary has found in writing will benefit the listed 
species.
    Section 4(b)(2) of the ESA requires us to designate critical 
habitat for threatened and endangered species ``on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical 
habitat.'' It grants the Secretary discretion to exclude any area from 
critical habitat if she determines ``the benefits of such exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat.'' The decision to

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exclude is wholly discretionary with the Secretary. In adopting this 
provision, Congress explained that, ``[t]he consideration and weight 
given to any particular impact is completely within the Secretary's 
discretion.'' H.R. No. 95-1625, at 16-17 (1978; M-37016, ``The 
Secretary's Authority to Exclude Areas from a Critical Habitat 
Designation under Section 4(b)(2) of the Endangered Species Act'' (Oct. 
3, 2008) (DOI 2008, 78 FR 53058, August 18, 2013). The Secretary's 
discretion to exclude is limited, as he may not exclude areas that 
``will result in the extinction of the species.''
    Once critical habitat is designated, section 7 of the ESA requires 
Federal agencies to ensure they do not fund, authorize, or carry out 
any actions that are likely to destroy or adversely modify that 
habitat. This requirement is in addition to the section 7 requirement 
that Federal agencies ensure their actions are not likely to jeopardize 
the continued existence of listed species.

Yelloweye Rockfish, Canary Rockfish, and Bocaccio Natural History and 
Habitat Use

    Our final Biological Report (NMFS, 2014a) describes the life 
histories of yelloweye rockfish, canary rockfish and bocaccio in 
detail, which are summarized here. The U.S. portion of the Puget Sound/
Georgia Basin that is occupied by yelloweye rockfish, canary rockfish, 
and bocaccio can be divided into five areas, or Basins, based on the 
distribution of each species, geographic conditions, and habitat 
features. These five interconnected Basins are: (1) The San Juan/Strait 
of Juan de Fuca Basin, (2) Main Basin, (3) Whidbey Basin, (4) South 
Puget Sound, and (5) Hood Canal. We describe habitat usage in these 
Basins where we have available information, in addition to available 
information about life history and habitat usage outside of these 
areas. The life histories of listed rockfish include pelagic larval and 
juvenile stages, followed by a juvenile stage in shallower waters, and 
a sub-adult/adult stage. Much of the life history of these three 
species is similar, with differences noted below.
    Rockfishes are iteroparous (i.e., have multiple reproductive cycles 
during their lifetime) and are typically long-lived (Love et al., 
2002). Yelloweye rockfish are one of the longest lived of the 
rockfishes, reaching more than 100 years of age. Yelloweye rockfish 
reach 50 percent maturity at sizes of 16 to 20 in (40 to 50 cm) and 
ages of 15 to 20 years (Rosenthal et al., 1982; Yamanaka and Kronlund, 
1997). The maximum age of canary rockfish is at least 84 years (Love et 
al., 2002), although 60 to 75 years is more common (Caillet et al., 
2000). Canary rockfish reach 50 percent maturity at sizes around 16 in 
(40 centimeters) and ages of 7 to 9 years. The maximum age of bocaccio 
is unknown, but may exceed 50 years. Bocaccio are reproductively mature 
near age 6 (FishBase, 2010). Mature females of each species produce 
from several thousand to over a million eggs annually (Love et al., 
2002). Being long-lived allows each species to persist through many 
years of poor reproduction until a good recruitment year occurs.
    Rockfishes fertilize their eggs internally and the young are 
extruded as larvae. Upon parturition (birth), larval rockfishes can 
occupy the full water column, but generally occur in the upper 80 m 
(262 ft) (Love et al., 2002; Weis, 2004). Larval rockfishes have been 
documented in Puget Sound (Greene and Godersky, 2012), yet most studies 
have not identified individual fish to species. There is little 
information regarding the habitat requirements of rockfish larvae, 
though other marine fish larvae biologically similar to rockfish larvae 
are vulnerable to low dissolved oxygen levels and elevated suspended 
sediment levels that can alter feeding rates and cause abrasion to 
gills (Boehlert, 1984; Boehlert and Morgan, 1985; Morgan and Levings, 
1989). Larvae have also been observed immediately under free-floating 
algae, seagrass, and detached kelp (Shaffer et al., 1995; Love et al., 
2002). Oceanographic conditions within many areas of Puget Sound likely 
result in the larvae staying within the basin where they are born 
rather than being more broadly dispersed by tidal action or currents 
(Drake et al., 2010).
    Larvae occur throughout the water column (Love et al., 2002; Weis, 
2004). When bocaccio and canary rockfish reach sizes of 1 to 3.5 in (3 
to 9 cm) or 3 to 6 months old, they settle into shallow, intertidal, 
nearshore waters in rocky, cobble and sand substrates with or without 
kelp (Love et al., 1991; Love et al., 2002). This habitat feature 
offers a beneficial mix of warmer temperatures, food, and refuge from 
predators (Love et al., 1991). Areas with floating and submerged kelp 
species support the highest densities of juvenile bocaccio and canary 
rockfish, as well as many other rockfish species (Carr, 1983; Halderson 
and Richards, 1987; Matthews, 1989; Love et al., 2002). Unlike bocaccio 
and canary rockfish, juvenile yelloweye rockfish are not typically 
found in intertidal waters (Love et al. 1991; Studebaker et al. 2009), 
but are most frequently observed in waters deeper than 30 meters (98 
ft) near the upper depth range of adults (Yamanaka et al., 2006).
    Depth is generally the most important determinant in the 
distribution of many rockfish species of the Pacific coast (Chen, 1971; 
Williams and Ralston, 2002; Anderson and Yoklavich, 2007; Young et al., 
2010). Adult yelloweye rockfish, canary rockfish, and bocaccio 
generally occupy habitats from approximately 30 to 425 m (90 ft to 
1,394 ft) (Orr et al., 2000; Love et al., 2002), and in Federal waters 
off the Pacific coast each species is considered part of the ``shelf 
rockfish'' assemblage under the authorities of the Magnuson-Stevens 
Fishery Conservation and Management Act because of their generally 
similar habitat usages (50 CFR part 660, Subparts C-G).
    Adult yelloweye rockfish, canary rockfish, and bocaccio most 
readily use habitats within and adjacent to areas that are highly 
rugose (rough). These are benthic habitats with moderate to extreme 
steepness, complex bathymetry, and/or substrates consisting of 
fractured bedrock, rock, and boulder-cobble complexes (Yoklavich et 
al., 2000; Love et al., 2002; Wang, 2005; Anderson and Yoklavich, 
2007). Most of the benthic habitats in Puget Sound consist of 
unconsolidated materials such as mud, sand, clays, cobbles and 
boulders, and despite the relative lack of rock, some of these benthic 
habitats are moderately to highly rugose. More complex marine habitats 
are generally used by higher numbers of fish species relative to less 
complex areas (Anderson and Yoklavich, 2007; Young et al., 2010), thus 
supporting food sources for sub-adult and adult yelloweye rockfish, 
canary rockfish, and bocaccio. More complex marine habitats also 
provide refuge from predators, and their structure may provide shelter 
from currents, thus leading to energy conservation (Young et al., 
2010).
    Though areas near rocky habitats or other complex structure are 
most readily used by adults of each species, non-rocky benthic habitats 
are also occupied. In Puget Sound, adult yelloweye rockfish, canary 
rockfish, and bocaccio have been documented in areas with non-rocky 
substrates such as sand, mud, and other unconsolidated sediments (Haw 
and Buckley, 1971; Washington, 1977; Miller and Borton, 1980; Reum, 
2006).

Prey

    Food sources for yelloweye rockfish, canary rockfish, and bocaccio 
occur throughout Puget Sound. However, each of the Basins has unique 
biomass and species compositions of fishes and

[[Page 68044]]

invertebrates, which vary temporally and spatially (Rice, 2007; Rice et 
al., 2012). Absolute and relative abundance and species richness of 
most fish species in the Puget Sound/Georgia Basin increase with 
latitude (Rice, 2007; Rice et al., 2012). Despite these differences, 
each Basin hosts common food sources for yelloweye rockfish, canary 
rockfish, and bocaccio as described below.
    Larval and juvenile rockfish feed on very small organisms such as 
zooplankton, copepods and phytoplankton, small crustaceans, 
invertebrate eggs, krill, and other invertebrates (Moser and Boehlert, 
1991; Love et al., 1991; Love et al., 2002). Larger juveniles also feed 
upon small fish (Love et al., 1991). Adult yelloweye rockfish, canary 
rockfish, and bocaccio have diverse diets that include many species of 
fishes and invertebrates, including crabs, various rockfishes (Sebastes 
spp.), flatfishes (Pleuronectidae spp.), juvenile salmon (Oncorhynchus 
spp.), walleye pollock, (Theragra chalcogramma), Pacific hake 
(Merluccius productus), Pacific cod (Gadus macrocephalus), green sea 
urchin (Stongylocentrotus droebachiensis), lingcod (Ophiodon elongates) 
eggs, various shrimp species (Pandalus spp.), and perch (Rhacochilus 
spp.). Common forage fish that are part of their diets include Pacific 
herring (Clupea harengus pallasi), surf smelt (Hypomesus pretiosus), 
and Pacific sand lance (Ammodytes hexapterus) (Washington et al., 1978; 
Lea et al., 1999; Love et al., 2002; Yamanaka et al., 2006).

Summary of Public and Peer Review Comments Received and Responses

    We solicited public comment for a total of 90 days on the proposed 
designation of critical habitat for the Puget Sound/Georgia Basin DPSs 
of yelloweye rockfish, canary rockfish and bocaccio. We received 
written comments from five commenters, and these are available online 
at: http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0105. 
Summaries of the substantive comments received, and our responses, are 
organized by category and provided below.
    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review pursuant to the 
Information Quality Act (IQA). The Bulletin was published in the 
Federal Register on January 14, 2005 (70 FR 2664). The Bulletin 
established minimum peer review standards, a transparent process for 
public disclosure of peer review planning, and opportunities for public 
participation with regard to certain types of information disseminated 
by the Federal Government. The peer review requirements of the OMB 
Bulletin apply to influential or highly influential scientific 
information disseminated on or after June 16, 2005.
    Two documents supporting this final designation of critical habitat 
for listed rockfishes are considered influential scientific information 
and subject to peer review. In accordance with the OMB policies and the 
Information Quality Act (IQA) (Section 515 of Public Law 106-554), we 
solicited pre-dissemination peer review of the draft Biological Report 
(NMFS, 2013a) from three reviewers. We also solicited peer review of 
the draft Economic Analysis (NMFS, 2013b) from two reviewers. We 
received two sets of peer review comments on the draft Biological 
Report in advance of proposing critical habitat for listed rockfishes, 
and they are included in the Peer Review Report (http://www.cio.noaa.gov/services_programs/prplans/ID213.html.) Based on those 
peer review comments, we revised the Biological Report prior to our 
proposed designation. There was some overlap between the comments from 
the peer reviewers and the substantive public comments on the draft 
Biological Report (NMFS, 2013b). As many peer review and public 
comments were similar, we have responded to both the peer reviewer's 
comments and public comments below. We received no peer review 
responses on the draft Economic Analysis; however, we did receive 
public comments specific to economics. Responses to the public comments 
on the draft Economic Analysis (NMFS, 2013b) and also the draft Section 
4(b)(2) Report (NMFS, 2013c) are included below. Revisions addressing 
the public comments have been made in the final documents supporting 
this designation as discussed below (i.e., Biological Report, Economic 
Analysis, and Section 4(b)(2) Report), and the final versions of those 
documents can be found on our Web site at: http://www.wcr.noaa.gov/.

Physical or Biological Features Essential for Conservation

    Comment 1: One peer reviewer stated that the Biological Report 
provided an adequate review of listed rockfish life history attributes, 
the physical and biological features essential to conservation, and 
specific areas for designation. The reviewer stated that the lack of 
biological and life-history information for canary, yelloweye and 
bocaccio in Puget Sound restricts a more complete analysis of critical 
habitat needs of these species, thus obligating a conservative approach 
to designating critical habitat. The reviewer asked how new scientific 
information will be used in the future to modify or refine critical 
habitat designation.
    Response: This designation is based upon ``best available 
science.'' As new information relevant to, among other things, 
historical and contemporary habitat use is gathered and developed, we 
may revise this designation. In spring 2013 we appointed a Rockfish 
Recovery Team to aid in the development of the Recovery Plan for listed 
rockfishes. The Recovery Team is composed of nine individuals with a 
variety of academic and government affiliations and expert knowledge of 
listed rockfishes and the Puget Sound/Georgia basin ecosystem. That 
recovery team effort is underway and NMFS anticipates releasing a draft 
Recovery Plan for public review and comment in 2015.
    Comment 2: One peer reviewer stated that a statistically-based 
predictive model would be the best case approach to scientifically 
define critical habitat for listed rockfish in Puget Sound. However, 
due to the lack of precise bathymetry and habitat information, the peer 
reviewer stated that the approach we used to identify critical habitat 
was a conservative, risk-averse approach to defining adult and juvenile 
habitat because it includes most records where listed rockfishes have 
been documented and areas they likely occupy.
    Response: This designation is based upon ``best available 
science.'' We agree that a statistically-based predictive model, or 
similar approach, could provide a sophisticated assessment of important 
listed rockfish habitat, yet we do not have sufficient information to 
build such a model, and the ESA requires we meet statutory timeframes 
to designate critical habitat. We also agree with the commenter that 
the current bathymetry and habitat knowledge of most of the Puget 
Sound/Georgia Basin necessitates the use of the best available methods 
and analytical tools described in the Biological Report. In order to 
build a statistically-based predictive model to inform the development 
of critical habitat for listed rockfishes, we would need a combination 
of historical and contemporary population data, built from a new, 
systematically conducted survey across all likely habitat in the range 
of the DPSs, in addition to more sophisticated benthic habitat 
information. We expect that our draft Recovery Plan will outline the 
research and data needs to gain pertinent information to potentially 
develop such

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a predictive model in the future. An example of a critical research 
task to build such a predictive model is systematic surveys targeting 
listed rockfish habitats in the Puget Sound. The Washington Department 
of Fish and Wildlife (WDFW) has conducted Remotely Operated Vehicle 
(ROV) surveys in the past several years for rare rockfishes in the San 
Juan Islands (Pacunski et al., 2013). We are funding additional ROV 
surveys for other areas of the Puget Sound to build our knowledge on 
listed rockfish habitat use and population information.
    Comment 3: One peer reviewer of our draft Biological Report (NMFS, 
2013a) stated we should use maps generated by WDFW from surveys and 
historical sources to evaluate the effectiveness of our benthic habitat 
analytical tools at encompassing known occurrences of the adults within 
the DPSs.
    Response: We did what the commenter requested. Prior to publishing 
the proposed critical habitat designation for listed rockfish we 
assessed the maps generated by WDFW and published in Palsson et al. 
(2009) to compare the documented locations of yelloweye rockfish, 
canary rockfish and bocaccio in the Puget Sound. As described in the 
final Biological Report (NMFS, 2014a), we assessed the number of listed 
rockfish observations located outside of areas of high rugosity, and 
found that most were included in our habitat evaluation methods. We 
added the few listed rockfish observations that fell outside of our 
initial critical habitat area, which resulted in 0.94 square miles (2.4 
sq km) of area added to critical habitat (NMFS, 2014a).
    Comment 4: One peer reviewer stated that there is a lack of 
specific knowledge about habitat requirements, life histories, and 
habitat occurrence of the listed rockfishes in the Puget Sound DPSs. 
The reviewer stated that it was logical of NMFS to draw from knowledge 
of habitat and life history requirements throughout the range of these 
species, but the Biological Report should better emphasize that there 
is a lack of direct information regarding the juvenile habitat 
requirements for canary and bocaccio rockfishes in Puget Sound and that 
what is known from coastal populations, especially from California, may 
not apply to the unique geomorphology and oceanography of the Puget 
Sound DPSs.
    Response: We agree with the commenter that most of our knowledge 
regarding the life-history and habitat use of yelloweye rockfish, 
canary rockfish and bocaccio is based upon research of rockfishes that 
live in waters outside of the Puget Sound/Georgia Basin. However, we 
must designate critical habitat based upon ``best available science.'' 
We revised our Biological Report in response to this peer review 
comment to further underscore the source of best science available to 
inform this designation and the status of our knowledge of listed 
rockfishes in Puget Sound.
    Comment 5: One commenter stated that we did not consider some 
biological components of critical habitat, such as kelp and floating 
vegetation, and existing data supported their use.
    Response: We did what the commenter suggests. In our proposed 
designation we considered the biological components of rockfish habitat 
including biotic benthic communities that consist of kelp, and we 
report these general conditions for each of the main Basins of the 
Puget Sound in our final Biological Report (NMFS, 2014a). Our analysis 
of the features in nearshore areas that are important for canary 
rockfish and bocaccio considered the location of documented kelp and 
areas where kelp can be supported by appropriate substrates such as 
cobbles and rock. We agree that floating vegetation such as detached 
eelgrass and kelp are important for juvenile rockfish, but were unable 
to map areas of floating vegetation because their locations are likely 
extremely ephemeral and generally unpredictable with existing 
analytical tools.
    Comment 6: One commenter questioned the designation of critical 
habitat in South Puget Sound and stated that there is a high prevalence 
of unvegetated mudflats in this region which would be inappropriate 
habitat for listed rockfish.
    Response: We agree that there is a high prevalence of unvegetated 
mudflats in this Basin which would be inappropriate critical habitat 
for listed rockfishes. During our analysis of habitats in South Puget 
Sound we found that much of the most southern portion of the Basin does 
not have nearshore habitat features such as kelp readily used by 
rearing canary rockfish and bocaccio. Thus our designation of critical 
habitat does not include these areas of the South Puget Sound, but does 
include other nearshore areas of the basin that support kelp and/or 
have substrates that can support kelp and otherwise have beneficial 
rearing conditions.
    Comment 7: One commenter stated that data exist to allow us to 
conduct a tiered ``grading'' of biological parameters, such as forage 
fish species, and features in each of the Basins of Puget Sound in 
order to provide an overview of the differences between each area.
    Response: Our draft and final Biological Reports (NMFS, 2013; 
2014a) provide a qualitative description of the biological parameters, 
or essential features, relevant to listed rockfishes in each of the 
Basins of the Puget Sound. We do not believe the generally coarse and 
uneven level of information we have on many biological parameters 
important to listed rockfishes in each of the Basins of Puget Sound is 
of sufficient quality to inform a grading system for this final 
critical habitat designation. We will continue to evaluate the 
usefulness of this approach as new information becomes available.

Specific Areas Within the Geographical Area Occupied by the Species

    Comment 8: One commenter noted that the proposed designation does 
not constitute the entire geographical area which can be occupied by 
the listed species, or which is currently occupied.
    Response: We agree that this critical habitat for listed rockfishes 
does not cover the entire geographic area of the Puget Sound/Georgia 
Basin, nor the entire area likely to be currently occupied by each 
species. Section 3(5)(A) of the ESA directs us to designate ``specific 
areas'' occupied by the species with physical or biological habitat 
features essential to the conservation of the species. Additionally, 
ESA Section 3(5)(C) provides ``[e]xcept in those circumstances 
determined by the Secretary, critical habitat shall not include the 
entire geographical area which can be occupied by the threatened or 
endangered species.''
    Comment 9: One commenter noted that critical habitat should be 
specifically identified for the larval stages of listed rockfishes. The 
commenter noted research by LeClair et al. (2012) on larval rockfishes 
in Puget Sound and suggested that modeling approaches could be used to 
model larval dispersal and support identification of critical habitat.
    Response: The ESA requires that we base this designation on ``best 
available science.'' We currently do not have sufficient information 
regarding the habitat requirements of larval listed rockfishes to 
determine which features are essential for conservation, and thus do 
not designate critical habitat based on the life-history requirements 
and habitats used by this life-stage. Because larval rockfishes are 
nearly impossible to identify to species visually until they are 
several months old (Love et al., 2002), there is relatively little 
known about their life-history on a species-

[[Page 68046]]

specific level. Our knowledge of larval rockfishes in Puget Sound is 
similarly limited to a handful of studies that report the location, 
densities and presence during portions of the year (e.g., Waldron, 
1972; Busby, 2000; Chamberlin et al., 2004; Weis, 2004; Greene and 
Godersky, 2012). None of the studies that took place in Puget Sound 
provided information specifically regarding the habitat use of larval 
yelloweye rockfish, canary rockfish or bocaccio. Larval rockfish 
species survival and settlement are dependent upon the vagaries of 
climate, abundance of predators, oceanic currents, and chance events, 
and we do not know the relative importance of these factors in the 
Puget Sound/Georgia Basin (Drake et al., 2010). LeClair et al.'s (2012) 
research on the settlement of brown rockfish (Sebastes auriculatus) in 
Puget Sound determined that some larval brown rockfish returned to the 
same habitat as their parents, indicating that site-fidelity may be 
influenced by behavior and local oceanic conditions. Modeling for 
larval rockfish dispersal in Alaskan waters was published by 
Stockhausen and Hermann (2007), and this type of research can certainly 
inform scenarios in which larval rockfishes are released and their 
potential ultimate recruitment areas tracked, and deserve additional 
analysis for the unique waters of Puget Sound. However, these modeling 
methods have not yet been adapted for the multiple Basins of Puget 
Sound and thus are not available to inform our designation of critical 
habitat. The development of such larval dispersal models will likely be 
identified as a priority action in the draft rockfish Recovery Plan.
    Though we did not formulate our designation of critical habitat 
based on the life-history requirements of larval listed rockfishes, we 
note that some of the waters of Puget Sound used by this life-stage are 
nonetheless designated as critical habitat for listed rockfishes. The 
final critical habitat designation includes not only the benthic 
features with the specific designated areas, but also the marine waters 
above these habitats within these areas. As indicated by the inclusion 
of water quality as an essential feature in our proposed rule, we did 
intend for the designation to include not just the benthic substrate in 
the areas proposed, but also the water above it that is used by larval 
listed rockfishes.
    Comment 10: One peer reviewer stated that juvenile yelloweye 
rockfish are often observed in depths from 20 to 30 m (65 to 98 ft) and 
this habitat was not included in the proposed critical habitat 
designation. The reviewer recommended that we expand juvenile yelloweye 
rockfish habitat to include waters up to 20 m in depth.
    Response: Based on review of the life-history of yelloweye 
rockfish, we found there are relatively few documented occurrences of 
yelloweye rockfish in this shallower range outside or inside the Puget 
Sound/Georgia Basin. Juvenile yelloweye rockfish do not typically 
occupy intertidal waters (Love et al., 1991; Studebaker et al., 2009). 
A few juveniles have been documented in shallow nearshore waters (Love 
et al., 2002; Palsson et al., 2009; Cloutier, 2011), but most settle in 
habitats in waters greater than 30 m (98 ft) (Richards, 1986; Yamanaka 
et al., 2006). One study found juvenile yelloweye rockfish have been 
observed at a mean depth of 73 m (239 ft), with a minimum depth of 30 m 
(98 ft) in waters of British Columbia (Yamanaka et al., 2006). As such, 
though juvenile yelloweye rockfish occasionally occupy waters shallower 
than 30 meters, best available science does not support findings that 
waters shallower than 30 meters have features that are essential to the 
conservation of the species.
    Comment 11: WDFW questioned the designation of critical habitat in 
South Puget Sound and stated there are no data suggesting that adult 
populations occur in the area.
    Response: We disagree. Existing scientific research documents that 
adults of each species utilized the South Puget Sound historically. 
Reports by the Washington Department of Fish from the 1960s and 1970s 
(i.e., Bargman, 1977; Buckley, 1965; 1966; 1967) documented thousands 
of yelloweye rockfish, canary rockfish, and bocaccio caught by 
recreational anglers in the South Puget Sound area. There have not been 
recent scientific surveys for rockfish in the South Puget Sound area, 
but it is very likely that each species continues to persist at 
depressed levels of abundance in this area. Given the long life-span of 
listed rockfishes, the cohorts (and subsequent generations) of the fish 
documented by Bargman (1977) and Buckley (1965, 1966, 1967) very likely 
continue to live in the South Puget Sound. Catch estimates from WDFW 
indicate that in recent years recreational anglers targeting salmon and 
bottomfish continue to catch canary rockfish in Marine Catch Area (MCA) 
13, which includes areas south of the Tacoma Narrows, and a few 
bocaccio and yelloweye rockfish have been caught by anglers targeting 
salmon in MCA 11, which includes waters north of the Tacoma Narrows 
(WDFW, 2011).
    Comment 12: One commenter questioned the designation of nearshore 
habitat for canary rockfish and bocaccio in several areas of Puget 
Sound. They stated that waters on the west side of Bainbridge Island 
were proposed for designation despite the relative lack of adult canary 
rockfish and bocaccio documented there. Finally, they stated that a 
large portion of Bellingham Bay is ``mud,'' implying that areas with 
this substrate are not appropriate rockfish habitat.
    Response: We proposed water shallower than 30 m (98 ft) on the west 
side of Bainbridge Island as nearshore critical habitat for canary 
rockfish and bocaccio, and waters deeper than 30 m in this area as 
deepwater critical habitat for all listed rockfishes. The final 
critical habitat designation for listed rockfishes is consistent with 
the proposed rule and includes critical habitat designation in portions 
of the west side of Bainbridge Island, and some of Bellingham Bay. For 
juvenile canary rockfish and bocaccio using the nearshore, we assessed 
the characteristics and features of specific areas of each Basin to 
determine the suitability of substrates that provide beneficial rearing 
conditions.
    We agree with the commenter that there is a lack of documented 
occurrences of canary rockfish on the west side of Bainbridge Island 
(bocaccio have been documented there), but each species has been 
documented in waters near Bainbridge Island. Since our knowledge about 
the historical or contemporary locations of listed rockfishes is 
hindered by the lack of systematic surveys in most of the Basins of the 
Puget Sound, we assessed the evidence that the species occupied the 
Basin, and the habitat characteristics of particular areas of each 
Basin, as described in our final Biological Report (NMFS, 2014a). Our 
final designation of the nearshore area of Bellingham Bay does not 
include many acres of unconsolidated sediment near the Nooksack River 
delta that are unlikely to provide beneficial rearing conditions for 
canary rockfish and bocaccio, in part because of the lack of suitable 
substrates to support kelp (NMFS, 2014a).
    Comment 13: WDFW noted that it, in addition to the Seattle 
Aquarium, has documented young of the year rockfishes in SCUBA surveys 
at sites throughout Puget Sound for several years and that this 
information should be used to increase the confidence in the validity 
of assumptions about what constitutes appropriate juvenile habitat in 
the nearshore.
    Response: We acknowledge that organizations such as the Seattle 
Aquarium, WDFW, the Reef Environmental Education Foundation

[[Page 68047]]

(REEF), and others have conducted important surveys for rearing 
rockfishes in Puget Sound. We were unable to integrate these surveys 
into an assessment of nearshore conditions and habitat preferences for 
yelloweye rockfish, canary rockfish or bocaccio for several reasons. 
First, the identification of young of the year rockfish to species is 
imprecise, with many species having similar color and shape (Love et 
al., 2002). Second, these surveys are limited spatially and temporally. 
Aside from WDFW data reported in Palsson et al. (2009) and Tonnes 
(2012), WDFW has not published much of its previous nearshore surveys 
for juvenile rockfishes. For these reasons we found it difficult to 
draw conclusions about listed rockfish rearing habitat from previous 
research identified by WDFW, given the imprecise species 
identification, limitations of the surveys, and relative lack of 
reported information.
    Comment 14: One commenter stated that we proposed to designate 
critical habitat in some degraded areas and that these areas will 
``require restoration before it [they] can be fully used by listed 
rockfish.'' They specifically mentioned Sinclair Inlet, Commencement 
Bay, and Elliot Bay, and that we should include data on pollution in 
these areas.
    Response: Our proposed and final designation of critical habitat 
for listed rockfishes include areas that are degraded by a variety of 
sources, and our description of each of the Basins of Puget Sound 
provides a discussion of the biological condition of the Basins. In our 
proposed and final designation we include a table in the Biological 
Report (NMFS, 2013; 2014a) of areas with contaminated sediments, 
including Sinclair Inlet, Commencement Bay, and Elliot Bay. In our 
final Biological Report (NMFS, 2014a) we state that a reduction of 
contaminant input and clean-up of sediments will be necessary to 
protect listed rockfishes and their food sources. Despite the degraded 
conditions of Sinclair Inlet, Commencement Bay and Elliot Bay, we do 
not know of environmental conditions that would preclude the full use 
of these waters by listed rockfishes. We note that waters in Sinclair 
Inlet Navy Restricted Area were not proposed as critical habitat for 
listed rockfishes (see Appendix C of our section 4(b)(2) report).

Delineating and Mapping Areas To Identify Critical Habitat

    Comment 15: We had several comments on our GIS methods to aid our 
determination of specific areas with essential features, particularly 
in waters deeper than 30 meters. One commenter stated that our methods 
to identify critical habitat were sound, but stated that our GIS 
methods to designate habitats around complex seafloors resulted in some 
areas that are ``unsuitable habitat.'' Similarly, one peer reviewer 
requested that our GIS procedures be further explained.
    Response: As detailed in subsequent portions of this final rule and 
our final Biological Report (NMFS, 2014a), we have revised our GIS 
methods to update the final critical habitat designation. In the 
proposed and final designation, our analysis of areas that contain 
essential features for yelloweye rockfish, canary rockfish and bocaccio 
deeper than 30 meters was in part determined by assessing where areas 
of increased seafloor complexity occur. Habitats with higher complexity 
are more likely to be used by adult yelloweye rockfish, canary 
rockfish, and bocaccio because these areas provide opportunity for 
forage and refuge.
    In our proposed critical habitat designation we determined relative 
seafloor complexity by using the rugosity tool (used in the Benthic 
Terrain Modeler (BTM) version compatible with ArcGIS 9.3), which was 
calculated as the ratio of surface area to planar area (Kvitek et al., 
2003; Dunn and Halpin, 2009). In the final rule, consistent with ``best 
available science,'' we use an updated rugosity tool to locate where 
the essential feature of complex (rugose) seafloor occurs (available 
with the BTM under ArcGIS 10.2). The updated rugosity tool was 
generated by running the terrain Vector Ruggedness Measure (VRM) script 
developed by Sappington et al. (2007). We used this updated tool to 
determine rugosity because it better detects relevant seafloor 
complexity than the rugosity tool used in the proposed rule. The VRM 
quantifies terrain ruggedness and seafloor complexity differently than 
the ArcGIS 9.3 rugosity tool by differentiating smooth, steep 
topography from topography that is irregular and varied in gradient and 
aspect (Sappington et al., 2007). Some areas of mapped high rugosity 
differ from the proposed designation because we used updated gridded 
depth data created by the Nature Conservancy to identify the 30-meter 
depth contour (Greene and Aschoff, 2014). As a result of the new 
rugosity tool and bathymetry data, some of the smooth and steep slopes 
proposed as critical habitat have been removed in the final 
designation, while other areas that were not proposed now meet the 
definition of critical habitat and have been added. The net result is a 
28 percent reduction in the deepwater habitat area designated for 
listed rockfishes based on the best available rugosity tools.
    Our proposed and final GIS methods resulted in the designation of 
some habitats that are adjacent to areas of high rugosity. The 
designation of these areas next to highly rugose habitats is supported 
by our understandings of the life history of yelloweye rockfish, canary 
rockfish and bocaccio, including movement of adult fish and ontogenetic 
movement. While most of these habitats near areas of high rugosity 
likely consist of unconsolidated materials such as mud and sand 
mixtures, yelloweye rockfish, canary rockfish and bocaccio have been 
documented in these types of habitats within and outside of the Puget 
Sound Georgia Basin (NMFS, 2014a). In Puget Sound, adult yelloweye 
rockfish, canary rockfish, and bocaccio have been documented in areas 
with non-rocky substrates such as sand, mud, and other generally 
unconsolidated sediments (Haw and Buckley, 1971; Washington, 1977; 
Miller and Borton, 1980; Reum, 2006). Surveys from outside the range of 
these DPSs also have documented each species in relatively less complex 
habitats, though generally on a less frequent basis than more complex 
habitats. Yelloweye rockfish have also been documented in areas with 
mud and mud/cobble habitats in waters off the coasts of Washington 
(Wang, 2005), California (Yoklavich et al., 2000), Oregon (Stein et 
al., 1992), and British Columbia, Canada (Richards, 1986), and have 
been observed adjacent to large and isolated boulders in areas of flat 
and muddy bottoms in Alaskan waters (O'Connell and Carlile, 1993). 
Canary rockfish were found to be slightly more abundant in less complex 
habitat than more complex habitat off the Washington coast (Jagielo et 
al., 2003). Wang (2005) also observed canary rockfish in a variety of 
benthic habitats off the Washington coast. Canary rockfish were most 
frequently found near boulders, but were also found near benthic 
habitats consisting of sand, mud, and pebble mixtures (Wang, 2005). 
Johnson et al. (2003) reported that approximately 15 percent of canary 
rockfish were observed over soft-bottomed habitats in surveys in 
Alaska. Bocaccio also occupy benthic areas with soft-bottomed habitats, 
particularly those adjacent to structure such as boulders and crevices 
(Yoklavich et al., 2000; Anderson and Yoklavich, 2007).
    Comment 16: One commenter stated we should evaluate our GIS methods 
to designate areas near high rugosity by assessing listed rockfish 
foraging, predation and home-range behavior, gene flow, and population 
isolation.

[[Page 68048]]

    Response: In assessing appropriate GIS methods to designate 
critical habitat we accounted for the life-history of listed 
rockfishes, but not explicitly for gene flow or population isolation. 
As previously mentioned, listed rockfishes display ontogenetic movement 
as they grow and thus can use a variety of habitat types, such as those 
near habitat of high rugosity, as they mature. Similarly, some adult 
canary rockfish and bocaccio have been documented to move long 
distances (Demott, 1983; Love et al., 2002; Friedwald, 2009), 
indicating these two species occupy habitats not immediately adjacent 
to the seafloor with high rugosity. We are not aware of information 
regarding gene-flow or population isolation that would assist in 
determining critical habitat areas for listed rockfishes. These 
attributes are important when considering whether a population 
qualifies as a DPS, developing recovery measures, and assuring the 
long-term viability of listed rockfishes. However, doing so requires 
securing additional research and analytical tools not available within 
the statutory timeframes to designate critical habitat. However, this 
effort will likely be outlined in the draft Recovery Plan.
    Comment 17: Several commenters and both peer reviewers questioned 
our use of the value of 1.005 and above to define ``high rugosity'' 
benthic habitats in Puget Sound to assist in identifying specific areas 
for adult listed rockfishes. One commenter stated that this value is 
related to fish presence/absence information and not fish density 
information.
    Response: As mentioned above, we updated our GIS methods to help 
determine final critical habitat designations for listed rockfishes. In 
ArcGIS 10.2 we used an updated rugosity tool that is less dependent 
upon the slope of the habitat, and more dependent on a quantification 
of terrain ruggedness by measuring the dispersion of vectors orthogonal 
to the terrain surface. We used a rugosity value of 0.001703 and above 
to define areas of ``high rugosity'' and note that, because of the 
updated methodology, the new rugosity value is not scaled to the 
original value of 1.005.
    Our use of this rugosity threshold and additional GIS procedures 
was informed by habitat characteristics mapped by Greene and Barrie 
(2007) in the San Juan Basin, additional data reported in Palsson et 
al. (2009) and general life-history literature summarized in our 
Biological Report (NMFS, 2014a), as well as listed rockfish presence/
absence information.
    Comment 18: One peer reviewer stated that our application of the 
BTM appeared to include as proposed critical habitat benthic areas with 
muddy substrates that likely do not contain rock or boulders due to the 
fjord-like nature of Puget Sound. The reviewer stated that a method to 
improve our application of the BTM would be to use current speed 
information, which would potentially reduce the areas that consist of 
silt-mud.
    Response: Our application of the BTM did result in the designation 
of some non-rocky habitats in the Puget Sound. As mentioned in our 
draft and final Biological Report (NMFS, 2013; 2014a) and above, 
yelloweye rockfish, canary rockfish and bocaccio have been documented 
to use non-rocky habitats within the range of these DPSs and outside of 
the range of these DPSs, though typically at lower density than rocky 
habitats. In response to the reviewer's comment, we received modeled 
average bottom current speed estimates for Puget Sound from the Pacific 
Northwest National Laboratory and assessed its utility to assist us in 
evaluating listed rockfish habitat. We found that the scale of the 
modeled current velocity data was too large to provide useful 
information to elucidate possible associations with bottom substrate 
compositions. We also found that listed rockfishes have been documented 
in areas with relatively slow average bottom currents. For example, in 
areas such as Hood Canal the bottom velocities can be very slow, yet 
listed rockfishes have been documented in multiple areas of this Basin. 
Thus we did not find a useful relationship between bottom current 
information and habitat to assist with evaluating listed rockfish 
habitat.
    Comment 19: One peer reviewer stated that the BTM was imprecise at 
identifying juvenile habitat in shallow water <30 m (98ft) that 
consisted of sand, cobble, and rock, and that our use of the ShoreZone 
database to predict subtidal substrates from intertidal ones may not be 
an appropriate tool. The reviewer stated that shorelines consisting of 
sand, cobble, or even rock can transition to muddy or silty 
environments in deeper waters which are not predicted by the shoreline 
character, and that this can be especially the case in the inner and 
eastern San Juan Islands and in south Puget Sound. The reviewer also 
mentioned that our proposed nearshore critical habitat designation for 
canary rockfish and bocaccio in the heads of non-estuarine embayments 
such as Case, Carr, and Dyes Inlets, Port Madison, Sinclair Inlet, Penn 
Cove, Discovery Bay, and Port Townsend Bay are areas that likely do not 
support kelp. The reviewer stated that a better test would have been to 
check our proposed designation in the nearshore with the historical 
NOAA bottom substrate database that has been shared among Puget Sound 
researchers and also occurs on several of the fine-scale nautical 
charts of Puget Sound.
    Response: We used the Washington State Department of Natural 
Resources' (DNR) ShoreZone inventory to identify substrates that host 
or may support the growth of kelp. Unlike in waters deeper that 30 
meters, we did not use the BTM to identify benthic habitats with high 
rugosity in the nearshore. We did use the benthic habitat 
classifications of the BTM related to the locations where moderate to 
large rivers enter Puget Sound and found that many of these areas do 
not support kelp and possess habitats beneficial for rearing juvenile 
canary rockfish and bocaccio. We agree with the reviewer's comment that 
shorelines consisting of sand, cobble, or even rock can give way to 
muddy or silty environments not predicted by the shoreline character--
this is one of the limitations of a shoreline inventory based on aerial 
surveys. However, even without the presence of kelp, juvenile canary 
rockfish and bocaccio have been found to rear in sandy areas and areas 
within and adjacent to complex substrates. Because the ShoreZone 
surveys were done aerially, and during different seasons, they were 
relatively imprecise at identifying all of the areas where kelp can 
grow. Based on the reviewer's suggestion, we reassessed our proposed 
designations of the above mentioned inlets and bays. We found that 
portions of Case, Carr and Dyes Inlets, Port Townsend Bay, Sinclair 
Inlet, and Port Madison are documented as supporting kelp by the 
ShoreZone inventory. We found that Discovery Bay also supports kelp, 
but note in our proposed and final designation we did not designate the 
southern-most portion of this Bay where freshwater enters, as this area 
is not likely to support essential features for rearing canary rockfish 
and bocaccio (as described in our final Biological Report (NMFS, 
2014a)). Penn Cove was not documented as supporting kelp according to 
the ShoreZone inventory, but has substrate types that can support kelp 
and also has other substrates used by juvenile canary rockfish and 
bocaccio. Based on our reassessment we made no adjustment to the final 
critical habitat designation in Penn Cove or any of the other bays and 
inlets specifically mentioned by the reviewer.
    Comment 20: One peer reviewer stated that another improvement to 
our

[[Page 68049]]

designation methodology would be to use WDFW research bottom trawl data 
or other information to model fish communities in terms of hard or 
soft-bottom types that could help predict where listed rockfishes are 
more likely to occur.
    Response: We found that the study design and sampling locations of 
WDFW bottom trawl research do not provide sufficient information for 
evaluating listed rockfish habitats as suggested by the peer reviewer. 
Data from WDFW trawl survey are depth stratified and sampling has been 
done in twelve regions of Puget Sound. Past WDFW trawl sampling effort 
was episodic with some regions sampled infrequently, only once, or only 
at the beginning or the end of the survey (Drake et al., 2010). 
Sampling effort was also uneven with some regions having as few as two 
replicate hauls in a depth zone in a given year, while others may have 
had as many as 25 replicate hauls. The lack of consistent and 
sufficient replicate sampling reduces the value of the past trawl 
surveys for rockfish habitats. Further, much of the rocky and/or 
complex habitat used by listed rockfishes is not effectively sampled by 
trawl gear, compared to unconsolidated habitat that can be easily 
surveyed. For these reasons we found it difficult to draw reliable 
conclusions about listed rockfish habitat from WDFW bottom trawl data.
    Comment 21: One commenter stated that we should improve the 
designation of critical habitat by using enhanced modeling and 
gathering additional data by field verification of model predictions 
prior to final critical habitat designation. They noted that additional 
research, such as various surveys, are needed and critical habitat 
designation should be postponed until more data are available.
    Response: To designate critical habitat the ESA requires that we 
act within a specific time frame and use the best available 
information. We researched and reviewed the best available data on 
listed rockfish, including recent biological surveys, geological 
surveys, reports, peer-reviewed literature and public comments, which 
are summarized in our final Biological Report (NMFS, 2014a). 
Nonetheless, we agree with the commenter that additional fishery-
independent research projects, such as ROV surveys, are essential to 
fill additional information needs and inform recovery implementation. 
Importantly, these surveys should be designed to sample likely listed 
rockfish habitats (i.e., similar to Pacunksi et al., 2013), rather than 
recent stereological surveys conducted by WDFW that sample habitat 
based on a gridded system that does not explicitly account for habitat 
types or depth. We continue to support future surveys and will 
reevaluate this designation if necessary as additional scientific 
information becomes available.
    Comment 22: One commenter noted our comparison of Greene et al.'s 
(2007) high-resolution bathymetric mapping of portions of the San Juan 
Basin with the areas of rugosity identified by the BTM, and recommended 
that we conduct a similar comparative procedure within other areas of 
Puget Sound.
    Response: The high-resolution benthic habitat maps produced by 
Greene et al. (2007) only exist for portions of the San Juan Basin. We 
are therefore unable to conduct an analogous assessment across the rest 
of the Puget Sound. The United States Geological Survey is in the 
process of developing high resolution benthic maps across much of the 
Puget Sound, but these maps are not yet published or available to 
potentially refine critical habitat designation for listed rockfishes 
in other Basins.
    Comment 23: One commenter stated that some of the steep slopes we 
propose as critical habitat are known as ``not suitable'' rockfish 
habitat as determined by their observations through drop camera and ROV 
surveys, and recommended that we use current and historical 
distribution data for listed species to determine the suite and range 
of BTM metrics to calibrate a habitat suitability model.
    Response: We used all available data on rockfish observations to 
inform critical habitat, but existing data are not sufficient to 
calibrate a habitat suitability model as suggested. WDFW has conducted 
drop camera surveys in various areas across the Puget Sound and many of 
these observations are reported in Palsson et al. (2009), which did 
inform our critical habitat designation. Other drop camera and ROV 
surveys have occurred in Puget Sound, but the results of these 
observations have not been published in reports and are not available. 
Because of the lack of historical or contemporary systematic surveys 
for rockfishes in most of the Puget Sound Basins, and the lack of 
comprehensive fishery data that provide relatively precise data on the 
location these species were caught, we are not confident that the 
observational data we have for yelloweye rockfish, canary rockfish and 
bocaccio fully explain their habitat usage sufficiently to justify the 
further development of a habitat suitability model at this time. We 
agree that additional and more precise analysis of habitats used by 
listed rockfishes should be conducted as additional data are collected 
and analyzed. Additional surveys and analysis for rockfishes and 
habitat use are likely to be prioritized in the listed rockfish 
Recovery Plan and may be sufficient to develop a more sophisticated 
habitat suitability model in the future.
    Comment 24: One peer reviewer stated that we should reevaluate a 
habitat ranking approach, as we have done for some Pacific salmonid 
critical habitat, to identify ``special areas'' of critical habitat. 
The reviewer pointed to habitats north of Orcas Island and Tacoma 
Narrows as areas as qualifying as ``special areas.''
    Response: We considered a habitat ranking approach for designating 
critical habitat for listed rockfishes similar to our 2005 critical 
habitat designations for listed Evolutionarily Significant Units of 
Pacific salmonids, where we designated critical habitat areas as having 
``high,'' ``medium,'' and ``low'' conservation value (70 FR 52630; 
September 2, 2005). Unfortunately, we found that the uneven resolution 
of benthic habitat mapping within the Puget Sound, in conjunction with 
the general lack of systematic historical or contemporary surveys for 
listed rockfishes in most of the Basins of Puget Sound, were not 
sufficient to support a habitat valuation approach as we did for 
salmonids. Collecting additional data and developing a habitat 
suitability model based on new benthic habitat data, fish surveys, and 
other pertinent information will likely be a priority task in the draft 
rockfish Recovery Plan.

Special Management Considerations

    Comment 25: One peer reviewer asked how the special management 
considerations were identified.
    Response: We identified the 11 special management considerations by 
assessing the types of ESA section 7 (a)(2) consultations we have 
conducted since the listing of yelloweye rockfish, canary rockfish and 
bocaccio in 2010, and the types of actions we consulted on for listed 
salmonids in Puget Sound prior to 2010 (NMFS, 2014a). In addition, we 
assessed other potentially non-federal actions that may have an effect 
on habitat by researching local rockfish reports such as Palsson et al. 
(2009) and Washington's rockfish recovery plan (WDFW, 2011a), and 
additional scientific data and research which identified suites of 
actions that can affect rockfish habitat in Puget Sound.
    Comment 26: One peer reviewer stated that kelp harvest is limited 
in

[[Page 68050]]

Puget Sound and almost exclusively occurs in intertidal waters, where 
there is an unlikely threat to juvenile canary rockfish or bocaccio.
    Response: Kelp harvest is regulated by WDFW and DNR and we are not 
aware of any commercial harvest of kelp in the Puget Sound at this 
time. We included kelp harvest as a special management consideration 
because the harvest of kelp could nonetheless affect the habitat 
quality for canary rockfish and bocaccio as each can rear in these 
areas.
    Comment 27: One commenter stated that dredging and disposal of 
dredge materials are separate activities with separate management 
considerations.
    Response: We agree with the commenter that the disposal of dredge 
material has different effects than the actual dredging of materials, 
and thus management considerations for each activity are unique. We 
have clarified within our Biological Report (NMFS, 2014a) that these 
are activities with distinct management considerations.
    Comment 28: One peer reviewer stated that under the aquaculture 
special management consideration we should discuss additional habitat 
effects such as the hardening of intertidal and subtidal habitats by 
the addition of non-native oyster shells, gravel, and PVC tube for clam 
and oyster aquaculture.
    Response: We agree with the commenter and have added additional 
language in our final Biological Report about the potential habitat 
effects of intertidal aquaculture operations.
    Comment 29: One commenter stated that readers of the draft 
Biological Report could easily conclude that contaminated sediments are 
being disposed at open-water sites.
    Response: We have revised the Biological Report (NMFS, 2014a) to 
more clearly state that contaminated sediments are more likely to be 
mobilized within the water column during dredging projects rather than 
disposal projects, and that sediments undergo analysis prior to 
disposal. We also note that sediment deemed too contaminated for open-
water disposal by management agencies is placed in upland areas to 
avoid aquatic contamination. However, we note that some disposed 
sediments are not completely contaminant-free, rather they have been 
deemed as clean enough to allow open-water disposal.
    Comment 30: One commenter stated that new information is essential 
to improving management and permitting of activities, such as shoreline 
armoring, in order to avoid, minimize, mitigate or predict adverse 
effects to listed rockfishes. The same commenter stated that additional 
data are needed to describe the processes and structures that create 
and maintain rockfish habitat along Puget Sound shorelines.
    Response: We agree that additional data that assesses how and where 
juvenile canary rockfish and bocaccio use nearshore habitats would 
improve our understanding of how shoreline projects may directly alter 
rockfish habitat. We disagree, however, with the premise that new 
information is necessary to provide guidance to management of currently 
proposed activities to avoid, minimize, mitigate or predict adverse 
effects from shoreline projects to rockfish habitat in the Puget Sound. 
Juvenile canary rockfish and bocaccio primarily use areas among and 
near various species of kelp. A WDFW report found that the disruption 
of submerged aquatic vegetation like kelp could threaten habitat 
quality of juvenile rockfish (Palsson et al., 2009). Shoreline 
modification in Puget Sound includes activities such as bulkheading, 
filling, installation of overwater structures, and boat ramps (Palsson 
et al., 2009). Man-made structures adjacent to rockfish habitats could 
diminish the value of the nearshore habitat used by rockfishes (Palsson 
et al., 2009) by changing shoreline sediment dynamics, and removing or 
shading kelp habitats (Mumford, 2007). These types of nearshore 
projects can also harm forage fish habitats, such as those supporting 
surf smelt (Rice et al., 2006) that are likely important food sources 
for listed rockfishes. As such, we believe that there is sufficient 
scientific information to regulate shoreline activities in ways to 
avoid, minimize, mitigate and predict adverse effects to listed 
rockfishes and their habitats and note that many of these measures are 
already recommended by local salmon recovery plans and technical 
documents commissioned by WDFW and others (e.g., Brennan et al., 2009).
    Comment 31: One commenter requested that we clarify that scientific 
research projects in Puget Sound which we identified as a special 
management consideration have only low level effects and occur under 
NMFS Section 10 permitting.
    Response: We agree. Research that may take listed fish is reviewed 
and approved by NMFS under Section 10 (a)(1)(a) of the ESA. In the 
course of these reviews we have found that many research projects have 
little or no potential to result in more than short-term alterations to 
habitat of listed rockfishes. For instance, many of the trawl survey 
stations used by WDFW would occur outside of designated critical 
habitat for listed rockfishes, and other research projects conducted by 
SCUBA, ROV or drop cameras would have no potential to alter critical 
habitat on a short or long-term basis.
    Comment 32: WDFW requested that, under the fisheries special 
management consideration, we consider only fisheries currently underway 
in Puget Sound rather than those that have recently been closed.
    Response: We acknowledge that fisheries within Puget Sound are 
dynamic--some are closed and re-opened seasonally and when markets 
develop, thus making them economically viable. For this reason we 
characterized the fishery special management consideration to include 
some fisheries that are closed, as it is possible that these fisheries 
might be proposed again in the foreseeable future by State and/or 
tribal fishery managers.
    Comment 33: WDFW noted that the forage fish drag seines and lampara 
nets are currently used in Puget Sound, and there is no record of these 
methods catching listed rockfishes.
    Response: The designation of critical habitat for listed species is 
designed to assist us in reviewing the effects of various actions on 
specific areas that have physical and biological features essential to 
the conservation of the species. In the case of listed rockfishes, we 
found essential features to include water quality, rugosity, and 
certain nearshore features. Special management considerations for 
fisheries consider only fishing methods that have the potential to 
alter critical habitat, rather than the specific impacts associated 
with catching a listed rockfish. Thus a particular fishing method, such 
as the lampara net fishery, may have little or no potential to catch an 
individual yelloweye rockfish, canary rockfish or bocaccio, but may 
nonetheless affect critical habitat. While the forage fish drag seine 
and lampara net fisheries may not catch listed rockfishes, they could 
affect physical and biological features of designated critical habitat, 
particularly if nets are lost.
    Comment 34: WDFW noted that Hood Canal has been closed to 
bottomfishing since 2004, and questioned why fisheries are still noted 
as a special management consideration there.
    Response: Recreational bottomfishing is currently closed in Hood 
Canal, but could be reopened at some point in the future. Other Hood 
Canal fisheries continue and can affect critical habitat, such as 
recreational and commercial shrimp and crab fishing, and the use of 
gill nets that, when lost, can harm benthic areas used by rockfishes 
(Good et al., 2010) and designated as critical habitat.

[[Page 68051]]

    Comment 35: Without providing how it should be considered in the 
designation, one commenter requested that the final critical habitat 
rule consider anthropogenic noise in Puget Sound, and noted that noise 
in some waters of Puget Sound is increased by vessel traffic and Navy 
exercises as reported by Basset et al. (2006). The commenter identified 
literature that reported effects of noise on hearing loss and behavior 
of some fish species.
    Response: We acknowledge that noise can affect fish behavior and 
may affect the various life-stages of listed rockfishes, as has been 
documented in other reef fishes (Holles et al., 2013), and that some of 
the Puget Sound has elevated noise from a variety of human sources. We 
have revised our Biological Report (NMFS, 2014a) to include 
descriptions of underwater noise in some of the Basins of the Puget 
Sound. Underwater sound may have a variety of effects on fish (Popper 
and Hastings, 2009), but there is a general dearth of research 
regarding the effects of noise on the behavior and health of rockfishes 
(but see Pearson et al., 1992). Several of the special management 
considerations can result in elevated under water noise, including 
nearshore development and in-water construction, under water 
construction and operation of alternative energy hydrokinetic projects 
and cable laying, artificial habitat creation, and possibly dredging 
and disposal of dredged material. As such, we regularly conduct ESA 
section 7 consultations on construction activities that generate noise 
using best available science, and in these consultations measures are 
typically included to minimize or avoid direct impacts to ESA-listed 
species, including yelloweye rockfish, canary rockfish and bocaccio. 
Future section 7 consultations that include noise-generating activities 
will continue to assess the potential for exposure and effects to 
listed rockfishes within the range of these DPSs. Assessing the effects 
of anthropogenic noise on rockfish behavior and health will likely be 
identified as a task in the draft rockfish Recovery Plan.
    Comment 36: Two commenters stated that our list of special 
management considerations should include ocean acidification (OA) and 
global climate change. They stated that the potential direct effects of 
these pressures on rockfishes are poorly understood, but that 
predictions about food web impacts and ecosystem-wide changes in 
habitat quality are available.
    Response: A recent report found that climate change in the 
Northwest, including sea level rise, coastal erosion, and increasing 
ocean acidity, poses major risks to the local marine environment (U.S. 
Global Change Research Program, 2014). We agree that climate change, 
sea-level rise (SLR), and OA have the potential to result in 
fundamental alterations to habitats and food sources of listed 
rockfishes, and we have added activities that lead to global climate 
change as a special management consideration. In a study published 
after we proposed critical habitat for listed rockfishes, OA was found 
to affect juvenile rockfish behavior (Hamilton et al., 2014). Behavior 
(characterized as ``anxiety'' by the researchers) significantly changed 
after juvenile Californian rockfish (Sebastes diploproa) spent 1 week 
in seawater with the OA conditions that are projected for the next 
century in the California shore. The study indicated that OA could have 
severe effects on rockfish behavior (Hamilton et al., 2014). Research 
conducted to understand adaptive responses to OA of other marine 
organisms has shown that although some organisms may be able to adjust 
to OA to some extent, these adaptations may reduce the organism's 
overall fitness or survival (Wood et al., 2008).
    Aside from OA, future climate-induced changes to rockfish habitat 
could alter their productivity (Drake et al., 2010), and affect their 
habitats from sea-level rise. Harvey (2005) created a generic 
bioenergetic model for rockfishes, showing that their productivity is 
highly influenced by climate conditions. For instance, El Ni[ntilde]o-
like conditions generally lowered growth rates and increased generation 
time. The negative effect of the warm water conditions associated with 
El Ni[ntilde]o appear to be common across rockfishes (Moser et al., 
2000). Recruitment of all species of rockfish appears to be correlated 
at large environmental scales. Field and Ralston (2005) hypothesized 
that such synchrony was the result of large-scale climate forcing. 
Exactly how climate influences rockfishes in Puget Sound is unknown; 
however, given the general importance of climate to rockfish 
recruitment, it is likely that climate strongly influences the dynamics 
of ESA-listed rockfish population viability (Drake et al., 2010).
    Global sea level has risen by an average of 0.067 inch +/-0.012 
inch per year (1.7 +/-0.3 mm) since 1950, after remaining relatively 
stable for approximately the last 3000 years (Church and White, 2006). 
However, satellite data collected more recently (from 1993-2009) 
recorded rates of 0.12 inch +/-0.015 inch per year (3.3 +/-0.4mm), 
suggesting that SLR may be accelerating (Ablain et al., 2009). Global 
sea levels are projected to rise by approximately 23.6 in (60cm) by 
2100 (IPCC, 2007) to as much as 39.4 in (1 m) due to recently 
identified declines in polar ice sheet mass (Pfeffer et al., 2008). 
However, Washington State sits above an active subduction zone, which 
may mean that sea-level rise could differ from the global average 
depending on the activity of the zone (Dalton et al., 2013). Puget 
Sound lowlands are thought to be more stable in the north, but are 
tilting downward toward Tacoma in the south. This subsidence may 
amplify SLR and could effectively double the rate in areas of South 
Puget Sound, such as Olympia (Craig, 1993). In areas of South Puget 
Sound, SLR could, among other impacts, alter listed rockfish habitat by 
contaminating surface and groundwater, or causing shoreline erosion and 
landslides, which may lead to a loss of tidal and estuarine habitat 
(Craig, 1993) and alter species distribution (Harley et al., 2006).
    More research is needed to further understand rockfish-specific 
responses and possible adaptations to OA, climate change and sea level 
rise within the Puget Sound/Georgia Basin. As mentioned previously, we 
are developing a Recovery Plan for listed rockfishes, and research 
regarding OA and climate change will likely be a significant component 
of the draft plan.
    Comment 37: One commenter stated that the benthic habitats of 
Dredge Material Management Program (DMMP) sites in Puget Sound are of 
low rugosity, but are located near areas of high rugosity, and that 
these areas may serve as transitory zones for rockfishes. The commenter 
also noted that the DMMP open-water sites are not highly rugose and 
that continued disposal of sediment would be unlikely to adversely 
affect physical and biological features essential to the conservation 
of listed rockfishes.
    Response: In 2010, we completed an ESA section 7 consultation with 
the U.S. Army Corps of Engineers for the use of eight open-water dredge 
disposal sites in Puget Sound. In that consultation our analysis found 
that the benthic habitats of the dredge disposal sites are relatively 
flat and homogenous but also near more rugose habitats (NMFS, 2010). We 
agree that the DMMP sites may serve as ``transitory'' zones for sub-
adult and adult listed rockfishes as they move from and to areas of 
higher rugosity. We note that recent surveys of some of these sites 
found larval rockfishes in relatively high abundance compared to other 
sample sites in Puget Sound (Greene and Godersky, 2012). We consider 
the continued use of the

[[Page 68052]]

disposal sites to have the potential for short and transitory effects 
to the physical and biological features of listed rockfish critical 
habitat, and will continue to use best available information to assess 
the effects of the continuous use of these sites in future section 7 
consultations.
    Comment 38: In reference to our draft Biological Report, one 
commenter noted that dredge disposal is unlikely to lead to appreciable 
reductions of dissolved oxygen (DO) levels in the mid or upper portion 
of the water column after disposal of sediment, nor long-term impacts 
to the lower portion of the water column. The same commenter noted that 
sediment plumes with aquatic disposal of dredged materials would be 
intermittent and short term and unlikely to reduce DO levels.
    Response: We agree that most sediment plumes in the water column 
would likely be intermittent and short term from the discharge of 
unconsolidated dredge materials. Pertaining to the dispersive sites, we 
note research that finds that fine-grained materials remain in the 
water column longer than coarser grained materials, are more widely 
dispersed, and stay within the water column for extended periods of 
time (DMMP, 2012). One model-analysis found that 80 percent of sediment 
parcels remained active in the water column for up to 36 hours 
following disposal (DMMP, 2012). The results of this analysis indicate 
that there is potential for habitat changes in the water column while 
this material disperses.

Economic Impacts of Critical Habitat Designation

    Comment 39: Two commenters supported the draft Economic Analysis 
(NMFS, 2013b), stating that designation will not have economic impacts 
in part due to most areas of rockfish critical habitat already being 
designated for other ESA-listed species, and they agreed the 
incremental impacts method is sound.
    Response: We agree.
    Comment 40: One commenter stated that it was not clear why the 
estimated annual administrative cost from critical habitat designation 
is $123,000 when ESA section 7(a)(2) consultations are unlikely to 
result in recommended project modifications. The commenter suggested 
that these estimated costs should be lower.
    Response: Though it is unlikely that many projects will require 
modifications to protect critical habitat, the estimated administrative 
costs include the time and resources to conduct the assessment of 
project effect and consider adverse modification of listed rockfish 
critical habitat in section 7 consultations.
    Comment 41: One commenter stated that if the designation of 
critical habitat would cause an ``effective ban'' on open-water 
disposal of sediments in Puget Sound it would create a significant 
economic impact.
    Response: As previously mentioned, in 2010 we completed a section 7 
consultation with the U.S. Army Corps of Engineers for the use of eight 
open-water dredge disposal sites in Puget Sound (NMFS, 2010). At the 
time of the consultation, we estimated the take of individual listed 
rockfish and also assessed the effects of open-water disposal on their 
habitat. Some of the habitat that we assessed in the 2010 consultation 
will now become critical habitat for listed rockfishes. In the 2010 
consultation we did not recommend changing the dredge disposal window 
or contaminant standards for open-water disposal. Based on our previous 
section 7 consultation that assessed the effects of the program on 
listed rockfish habitat, the designation of critical habitat would not 
create an ``effective ban'' on open-water disposal of sediments nor 
significantly change the time window to dispose sediments. Therefore we 
do not anticipate significant economic impacts for this activity above 
those already considered in our estimated administrative costs (see 
NMFS, 2014b).
    Comment 42: One commenter stated that we should acknowledge that 
final critical habitat designation will likely increase the complexity 
and cost of implementing state Hydraulic Project Approval (HPA) and 
local Shoreline Management Act (SMA) regulatory authority.
    Response: Our Economic Analysis (NMFS, 2014b) examined the state of 
the world with and without the designation of critical habitat for 
rockfishes. The ``without critical habitat'' scenario represented the 
baseline for the analysis, considering protections already afforded 
rockfish habitat under the Federal listing rule or under other Federal, 
State, and local regulations. It also included protections afforded to 
rockfishes resulting from protections for other listed species. These 
protections are associated with the ESA listing of Puget Sound Chinook 
salmon and steelhead, Hood Canal summer-run chum salmon, bull trout, 
eulachon, green sturgeon, and Southern Resident killer whales and the 
designation of critical habitat for salmonids, killer whales, and green 
sturgeon where they overlap with rockfish critical habitat. Also 
included under the baseline are protections already afforded rockfishes 
under their ESA listing, including HPA and SMA regulations. The listed 
rockfish critical habitat designation may provide new information to 
the State of Washington or a local government about the sensitive 
ecological nature of a specific area, potentially triggering additional 
economic impacts under other State or local laws. In cases where these 
impacts would not have been triggered absent critical habitat 
designation, they are considered indirect, incremental impacts of the 
designation and our final Economic Analysis (NMFS, 2014b) estimated 
these incremental impacts. Yelloweye rockfish, canary rockfish and 
bocaccio are also listed as ``State Candidate'' species for the 
Washington State Species of Concern list (http://wdfw.wa.gov/conservation/endangered/All/). Aside from some deepwater habitat in 
Hood Canal, all areas of rockfish critical habitat are already 
designated as critical habitat for a combination of the species listed 
above, and these rockfishes are listed as ``State Candidates'' under 
Washington State Law. Therefore, we do not believe that rockfish 
critical habitat will significantly increase costs associated with 
administering the HPA program or SMA regulatory authority.

Impacts to National Security

    Comment 43: One commenter stated that the Integrated Natural 
Resource Management Plans (INRMPs) for Department of Defense (DOD) 
facilities in Puget Sound should provide greater detail on how listed 
rockfishes will benefit from plan implementation.
    Response: We reviewed the INRMPs and found that each contains 
measures that provide benefits to each listed rockfish DPS (see 
Appendix C of our section 4(B)(2) report). Examples of the types of 
beneficial measures include: (1) Implementing actions to protect water 
quality from land-based infrastructure and vessels; (2) conducting in-
water actions during appropriate time periods; and (3) initiating 
surveys for listed fish.
    Comment 44: The Navy requested that our references to ``Naval 
Station Kitsap and associated properties'' be changed to ``Naval Base 
Kitsap and associated properties.''
    Response: We have made this change within all pertinent documents 
for final critical habitat designation.
    Comment 45: The Navy requested that we exempt Naval Magazine Indian 
Island property because it has an INRMP that benefits listed 
rockfishes.
    Response: We did propose to exempt Naval Magazine Indian Island in 
our proposed critical habitat designation,

[[Page 68053]]

and we do not include it in this final critical habitat designation 
because any DOD areas for which we have approved an INRMP (because it 
provides a conservation benefit to the species) do not meet the 
definition of critical habitat (ESA Section 4(a)(3)(B)(i).
    Comment 46: The Navy requested clarification on our proposed 
critical habitat designation within some shallow nearshore areas of 
Navy security zones. Our supplemental textual descriptions of proposed 
critical habitat included language that stated ``Critical habitat is 
proposed in a narrow nearshore zone (from the extreme high tide datum 
down to mean lower low water (MLLW)) within Navy security zone areas 
not subject to an approved INRMP or associated with Department of 
Defense easements or rights-of way. . .''. They stated that our 
definition of this area is confusing, and that a similar definition for 
Puget Sound Chinook salmon critical habitat has proven to be 
problematic. The Navy recommended that we clearly separate those areas 
excluded from critical habitat designation due to national security 
concerns and those areas proposed for exemption subject to approved 
INRMPs.
    Response: In response to this request we contacted the Navy and 
verified the facilities and Security Areas that are covered by INRMPs 
and, therefore, would not be eligible for critical habitat designation. 
Based on the Navy's feedback, we have provided additional explanation 
in Appendix C of our final section 4(b)(2) report (NMFS, 2014c) whether 
a particular Navy Security Area is also covered by an INRMP, and if any 
portion of the nearshore is designated as critical habitat for canary 
rockfish and bocaccio. To summarize, we designate the narrow nearshore 
zone from extreme high tide down to MLLW at the Admiralty Inlet Naval 
Restricted Area. After consultation with the Navy, we designated the 
nearshore (extreme high tide to a depth of 30 m (98ft)) at Carr Inlet 
Naval Restricted Area. As detailed in NMFS (2014c) none of the rest of 
the restricted areas or areas covered by an INRMP are designated as 
critical habitat in any portion of the nearshore.
    Comment 47: The Navy requested Naval Base Kitsap (NBK) Bremerton 
within Sinclair Inlet not be included in the final designation.
    Response: The waters within Sinclair Inlet Naval Restricted Area, 
which encompass NBK Bremerton, were not proposed as critical habitat 
nor are they designated as such in this final rule. We came to this 
determination based on an evaluation of the benefits of exclusion to 
the Navy and the benefits of designation to rockfish conservation (see 
Appendix C of our draft 4(b)(2) report).
    Comment 48: The Navy requested we include a textual description of 
the Naval Air Station Whidbey Island Crescent Harbor Restricted Area in 
the final rule, and stated they would provide this language.
    Response: The Navy provided this textual description to us, and we 
have reviewed it and included it within this final rule.
    Comment 49: The Navy requested that Operating Area R-6713 (Navy 3), 
off the western side of Naval Air Station Whidbey Island, be excluded 
from critical habitat designation because of impacts to national 
security. The Navy provided us the rationale for this request by 
forwarding a copy of their concerns about potential Southern Green 
Sturgeon Critical Habitat designation they submitted to us in 2009. For 
green sturgeon, we determined that the benefits to national security of 
excluding this site outweigh the conservation benefits of designation, 
and excluded it from the critical habitat designation (74 FR 52300; 
October 9, 2009). The Navy did not request this area be excluded as 
Southern Resident killer whale critical habitat, and this area was 
designated as such in 2006 (70 FR 69054; November 29, 2006).
    Response: Under Section 4(b)(2) of the ESA our decision whether to 
exclude an area is ``wholly'' discretionary. We updated our evaluation 
of the benefits of exclusion to the Navy and the benefits of 
designation to rockfish conservation of this Operating Area based on 
the additional information provided by the Navy (see Appendix C of our 
final 4(b)(2) report). As a result, for several reasons we continue to 
conclude that the benefits to national security of excluding this 
particular area do not outweigh the benefits to rockfish conservation 
of designating it. We came to this conclusion after a careful and 
comprehensive analysis.
    This area is critical habitat for Southern Resident killer whales 
and thus we assessed the extent of Navy consultations for actions in 
this operating area. We have no consultation records for Navy actions 
within Navy 3, indicating that use of this area by the Navy is limited 
or sporadic. According to the Navy, activities in this Operating Area 
involve surface ship operations, including basic tactical operations, 
formation maneuvers, engineering trials and testing electronic 
equipment. We have determined that surface ship operations are not a 
special management consideration, and such operations conducted by the 
Navy are unlikely to alter the physical and biological features of 
rockfish critical habitat and specifically benthic areas with complex 
bathymetry. Any consultation for Navy action in this Operating Area 
would require a section 7 jeopardy analysis for rockfish. As discussed 
generally in our final Economic Analysis (NMFS 2014b) the adverse 
modification analysis for the Navy would be an incremental impact from 
designating a subset of this area as critical habitat. As a result 
there would be a low administrative burden to the Navy for subsequent 
section 7 consultations that assess rockfish critical habitat in Navy 3 
because their use of this area appears relatively infrequent, actions 
in this area are unlikely to result in alteration to physical and 
biological features for listed rockfishes, and any subsequent 
consultation would undergo a jeopardy analysis as well.
    Further, areas designated as critical habitat within Navy 3 for 
listed rockfishes are centrally located between the San Juan Islands 
and the mainland to the south, thus providing important spatial 
structure to listed rockfish populations. In addition, the large size 
of the Navy 3 area (65.4 sq mi, 169.4 sq km) makes it likely that 
future Federal activities will occur there that could adversely affect 
rockfish critical habitat. For instance, a recent analysis shows that 
this area is potentially affected by the open-water dredge disposal 
activities (DMMP, 2012). This area also encompasses portions of several 
popular recreational and commercial fishing areas including Smith 
Island Bank, McArthur Bank and Partridge Bank and has accumulated 
several derelict fishing nets. The designation of critical habitat in 
this area for listed rockfishes will allow future analysis of these 
activities that may adversely affect listed rockfish critical habitat 
in an area of high value to the species (NMFS, 2014a).
    These specific examples of consultations would occur with other 
Federal agencies, and thus would not constitute an administrative 
burden to the Navy, but would potentially bring conservation benefits 
to important listed rockfish habitats. For these reasons we continue to 
conclude that the benefits to national security of excluding this 
particular area do not outweigh the benefits to rockfish conservation 
of designating it (for a full description of our analysis see Appendix 
C of our 4(b)(2) report).

Methods and Criteria Used To Identify Specific Areas Eligible for 
Critical Habitat

    In the following sections, we describe the relevant definitions and 
requirements in the ESA and our

[[Page 68054]]

implementing regulations and the key methods and criteria used to 
prepare this critical habitat designation. Discussion of the specific 
implementation of each item occurs within the species-specific 
sections. In accordance with section 4(b)(2) of the ESA and our 
implementing regulations (50 CFR 424.12), this designation is based on 
the best scientific information available concerning the species' 
present and historical range, habitat, and biology, as well as threats 
to their habitat. In preparing this designation, we reviewed and 
summarized current information on these species, including recent 
biological surveys and reports, peer-reviewed literature, NMFS status 
reviews, public and peer review comments on the proposed critical 
habitat designation, and the proposed and final rules to list these 
species. All of the information gathered to create this final rule has 
been collated and analyzed in three supporting documents: a Biological 
Report (NMFS, 2014a); an Economic Analysis (NMFS, 2014b); and a Section 
4(b)(2) Report (NMFS, 2014c). We used these reports to inform the 
identification of specific areas as critical habitat.
    We followed a five-step process in order to identify these specific 
areas: (1) Determine the geographical area occupied by the species at 
the time of listing, (2) identify physical or biological habitat 
features essential to the conservation of the species, (3) delineate 
specific areas within the geographical area occupied by the species on 
which are found the physical or biological features, (4) determine 
whether the features in a specific area may require special management 
considerations or protections, and (5) determine whether any unoccupied 
areas are essential for conservation. As described later, we did not 
identify any unoccupied areas that are essential for conservation.
    Once we identified specific areas, we then considered the economic 
impact, impact on national security, and any other relevant impacts. 
The Secretary has the discretion to exclude an area from designation if 
she determines the benefits of exclusion (that is, avoiding the impact 
that would result from designation) outweigh the benefits of 
designation based on the best available scientific and commercial 
information. In addition, military lands subject to INRMPs pursuant to 
Section 4(a)(3) the ESA are ineligible for designation if the Secretary 
certifies that the INRMPs provide benefits to the listed species. Our 
evaluation and determinations are described in detail in the following 
sections.

Geographical Area Occupied by the Species

    In the status review and final ESA listing for each species, we 
identified a Puget Sound/Georgia Basin DPS for yelloweye rockfish, 
canary rockfish, and bocaccio (Drake et al., 2010; 75 FR 22276; April 
28, 2010). Our review of the best available data confirmed that 
yelloweye rockfish, canary rockfish, and bocaccio occupy each of the 
major biogeographic Basins of the Puget Sound/Georgia Basin (NMFS, 
2014a). The range of the DPSs includes portions of Canadian waters; 
however, we cannot designate areas outside U.S. jurisdiction as 
critical habitat (50 CFR 424.12(h)). Puget Sound and Georgia Basin make 
up the southern arm of an inland sea located on the Pacific Coast of 
North America and connected to the Pacific Ocean by the Strait of Juan 
de Fuca. The term ``Puget Sound proper'' refers to the waters east of 
and including Admiralty Inlet. Puget Sound is a fjord-like estuary 
covering 2,331.8 square miles (6,039.3 sq km) and has 14 major river 
systems, and its benthic areas consist of a series of interconnected 
Basins separated by relatively shallow sills, which are bathymetric 
shallow areas.

Physical or Biological Features Essential to Conservation

    Agency regulations at 50 CFR 424.12(b) interpret the statutory 
phrase ``physical or biological features essential to the conservation 
of the species.'' The regulations state that these features include 
space for individual and population growth and for normal behavior; 
food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, and rearing of offspring; and habitats that are protected 
from disturbance or are representative of the historical geographical 
and ecological distribution of a species.
    Based on the best available scientific information regarding 
natural history and habitat needs, we developed a list of physical and 
biological features essential to the conservation of adult and juvenile 
yelloweye rockfish, canary rockfish, and bocaccio and relevant to 
determining whether specific areas are consistent with the above 
regulations and the ESA section (3)(5)(A) definition of ``critical 
habitat.'' Because larval rockfish are nearly impossible to identify to 
species visually until they are several months old (Love et al., 2002), 
there is relatively little known about their life-history on a species-
specific level. We do not currently have sufficient information 
regarding the habitat requirements of larval yelloweye rockfish, canary 
rockfish, and bocaccio to determine which features are essential for 
conservation, and thus are not identifying critical habitat 
specifically for this life-stage, though we note that larval listed 
rockfishes very likely use areas designated as critical habitat. The 
physical or biological features essential to the conservation of 
yelloweye rockfish, canary rockfish, and bocaccio fall into major 
categories reflecting key life history phases:

Physical or Biological Features Essential to the Conservation of Adult 
Canary Rockfish and Bocaccio, and Adult and Juvenile Yelloweye Rockfish

    Benthic habitats or sites deeper than 30 m (98ft) that possess or 
are adjacent to areas of complex bathymetry consisting of rock and or 
highly rugose habitat are essential to conservation because these 
features support growth, survival, reproduction, and feeding 
opportunities by providing the structure for rockfishes to avoid 
predation, seek food and persist for decades. Several attributes of 
these sites determine the quality of the habitat and are useful in 
considering the conservation value of the associated feature, and 
whether the feature may require special management considerations or 
protection. These attributes are also relevant in the evaluation of the 
effects of a proposed action in a section 7 consultation if the 
specific area containing the site is designated as critical habitat. 
These attributes include: (1) Quantity, quality, and availability of 
prey species to support individual growth, survival, reproduction, and 
feeding opportunities, (2) water quality and sufficient levels of 
dissolved oxygen to support growth, survival, reproduction, and feeding 
opportunities, and (3) the type and amount of structure and rugosity 
that supports feeding opportunities and predator avoidance.

Physical and Biological Features Essential to the Conservation of 
Juvenile Canary Rockfish and Bocaccio

    Juvenile settlement habitats located in the nearshore with 
substrates such as sand, rock and/or cobble compositions that also 
support kelp (families Chordaceae, Alariaceae, Lessoniacea, 
Costariaceae, and Laminaricea) are essential for conservation because 
these features enable forage opportunities and refuge from predators 
and enable behavioral and physiological changes needed for juveniles to 
occupy deeper adult habitats. Several attributes of these sites 
determine the quality of the area and are useful in considering the 
conservation value of the associated

[[Page 68055]]

feature and, in determining whether the feature may require special 
management considerations or protection. These features also are 
relevant to evaluating the effects of a proposed action in a section 7 
consultation if the specific area containing the site is designated as 
critical habitat. These attributes include: (1) Quantity, quality, and 
availability of prey species to support individual growth, survival, 
reproduction, and feeding opportunities; and (2) water quality and 
sufficient levels of dissolved oxygen to support growth, survival, 
reproduction, and feeding opportunities.

Specific Areas Within the Geographical Area Occupied by the Species

    After determining the geographical area of the Puget Sound/Georgia 
Basin occupied by adult and juvenile yelloweye rockfish, canary 
rockfish, and bocaccio, and the physical and biological features 
essential to their conservation, we next identified the specific areas 
within the geographical area occupied by the species that contain the 
essential features. The U.S. portion of Puget Sound/Georgia Basin that 
is occupied by yelloweye rockfish, canary rockfish, and bocaccio can be 
divided into five biogeographic Basins or areas based on the presence 
and distribution of adult and juvenile rockfish, geographic conditions, 
and habitat features (Figure 1). These interconnected basins are 
separated by relatively shallow sills. The configuration of sills and 
deep basins results in the partial recirculation of water masses in the 
Puget Sound and the retention of contaminants, sediment, and biota 
(Strickland, 1983). The sills largely define the boundaries between the 
Basins and contribute to the generation of relatively fast water 
currents during portions of the tidal cycle. The sills, in combination 
with bathymetry, freshwater input, and tidal exchange, influence 
environmental conditions such as the movement and exchange of biota 
from one region to the next, water temperatures and water quality, and 
they also restrict water exchange (Ebbesmeyer et al., 1984; Burns, 
1985; Rice, 2007). In addition, each Basin differs in biological 
condition; depth profiles and contours; sub-tidal benthic, intertidal 
habitats; and shoreline composition and condition (Downing, 1983; 
Ebbesmeyer et al., 1984; Burns, 1985; Rice, 2007; Drake et al., 2010). 
These areas also meet the definition of specific areas under ESA 
section (3)(5)(A) because each one contains the physical and biological 
features essential for conservation for juvenile rearing and/or adult 
reproduction, sheltering, or feeding for yelloweye rockfish, canary 
rockfish, and bocaccio. As previously stated, we do not currently have 
sufficient information regarding the habitat requirements of larval 
yelloweye rockfish, canary rockfish, and bocaccio to allow us to 
determine essential features specific to the larval life stage.
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    We considered the distribution of the essential features within 
these areas. We used available geographic data to delineate and map the 
essential features within each of the specific areas.

Delineating and Mapping Areas of Complex Bathymetry Deeper Than 30 
Meters Containing Features Essential to the Conservation of Listed 
Rockfishes

    We modified our proposed critical habitat designation by using 
newly acquired best available data and GIS tools to better identify 
areas of essential features that include high rugosity. We also used an 
updated gridded depth data model created by the Nature Conservancy to 
identify the 30-meter depth contour. This new bathymetry grid provided 
a more refined representation of the seafloor than used in our proposed 
designation in part because it included data from updated surveys 
conducted in the San Juan area (Greene and Aschoff, 2013). We used 
ArcGIS, version 10.2, Spatial Analyst (an extension to ArcGIS) and the 
BTM (Wright et al., 2012) to assist in identifying benthic habitats 
deeper than 30 m (98 ft) used by yelloweye rockfish, canary rockfish, 
and bocaccio in Puget Sound that contained the identified essential 
features. The gridded depth data was the input to the BTM. Its 
geographic extent encompasses the entire Salish Sea ensuring that the 
full U.S. portion of the listed rockfish DPSs was covered. The BTM 
classifies benthic terrain in several categories that include flats, 
depressions, crests, shelves, and slopes. The BTM does not identify the 
benthic substrate type. The BTM also generates ``rugosity'' (terrain 
complexity or bumpiness) values for the seafloor. In our proposed 
critical habitat designation we generated rugosity information (used in 
the BTM version compatible with ArcGIS 9.3), calculated as the ratio of 
surface area to planar area (Kvitek et al., 2003; Dunn and Halpin, 
2009). To develop this final rule, we used the updated rugosity method 
(available with the BTM under ArcGIS 10.2) which was generated from 
running the terrain VRM script. The VRM was originally created by Mark 
Sappington, and was adapted for ArcGIS version 10.1 by the 
Massachusetts office of Coastal Zone Management (Sappington et al., 
2007). The VRM quantifies terrain ruggedness by measuring the 
dispersion of vectors orthogonal to the terrain surface. Rugosity 
values were developed using a neighborhood analysis with a 3-grid cell 
by 3-grid cell neighborhood. The VRM values are both low in flat areas 
and in steep areas, but values are high in areas that are both steep 
and rugged. VRM is thus able to differentiate smooth, steep topography 
from topography that is irregular and varied in gradient and aspect 
(Sappington, 2007).
    We binned the rugosity values into two groups using the Geometric 
Interval method (Price, 2011). This method results in groups of classes 
in a geometric series by each class being multiplied by a constant 
coefficient to produce the next higher class. We determined the 
threshold value of high rugosity by using the ArcGIS 10.2 geometrical 
interval classification method (which is appropriate for the rugosity 
value data distribution). The geometrical interval method resulted in 
two classes, and the resultant threshold value for high rugosity was 
0.001703 and higher. We refer to benthic areas with rugosity values of 
0.001703 or higher as ``high rugosity.'' All areas of high rugosity 
(deeper than 30 meters (98 ft)) served as anchor points for critical 
habitat for each species.
    We also designated some habitat between and adjacent to high 
rugosity by using several generalization geoprocessing tools. The high 
rugosity polygons were the initial input data, set to the following 
procedures: (1) The Smooth Polygon Tool was used with the Polynomial 
Approximation with Exponential Kernel smoothing algorithm with a 600-
meter (1,968 ft) tolerance; (2) a 200-meter (656 ft) buffer was run on 
results from Step 1; (3) the Aggregate Polygons tool was run on results 
of Step 2 using an aggregation distance of 600 meters; and (4) small 
resultant non-adult critical habitat polygons that were 0.25 square 
miles (0.65 sq km) in area or less in waters deeper than 30 meters and 
having low rugosity were incorporated into surrounding ``deepwater'' 
critical habitat. Isolated polygons representing depths deeper than 30 
meters that were smaller than 0.25 square miles in area and were 
entirely surrounded by only nearshore critical habitat were 
incorporated into nearshore critical habitat making those areas more 
cohesive.
    To assess how well the BTM identified documented rocky areas within 
the DPSs, we used rocky habitat maps published by Green and Barrie 
(2011) in the San Juan Island area. We found there were 7.5 square 
kilometers (2.9 sq mi) of rocky habitat in the San Juan area that was 
not determined to be high rugosity by the BTM, which is approximately 7 
percent of the rocky habitat of this area (Greene and Barrie, 2011). We 
designated these rocky areas as critical habitat. This mapped rocky 
habitat was incorporated as critical habitat by either: (1) 
Incorporating mapped rock into immediately adjacent high rugosity 
areas, or (2) a 200-meter buffer was run on those rocky areas.
    We found that our GIS methods to identify areas of essential 
features that include high rugosity in conjunction with the four steps 
described above, encompassed the vast majority of the documented 
occurrences with precise spatial data of yelloweye rockfish, canary 
rockfish and bocaccio within the range of the DPSs. In addition, the 
spatial area designated as critical habitat for listed rockfish 
accounts for the movement of individual fish as they grow and move as 
adults. We further assessed the locations where yelloweye rockfish, 
canary rockfish and bocaccio had been documented outside of areas of 
high rugosity. For listed rockfish locations that were outside of the 
spatial area identified as critical habitat and were reliable and 
precise, we incorporated these specific locations as critical habitat 
by creating a 200-meter buffer on the location. These GIS steps 
resulted in the designation of habitats adjacent to benthic habitat 
with high rugosity. The designation of these areas next to highly 
rugose habitats is supported by our understandings of the life history 
of yelloweye rockfish, canary rockfish and bocaccio, including movement 
of adult fish and ontogenetic movement.

Delineating and Mapping Settlement Sites Containing Features Essential 
to the Conservation of Juvenile Canary Rockfish and Boccacio

    In delineating juvenile settlement sites in Puget Sound, we focused 
on the area contiguous with the shoreline from extreme high water out 
to a depth no greater than 30 meters relative to MLLW because this area 
coincides with the maximum depth of the photic zone in Puget Sound and 
thus, with appropriate substrates that can support the growth of kelp 
and rearing canary rockfish and bocaccio. To determine the distribution 
of essential features of nearshore habitats for juvenile canary 
rockfish and bocaccio, we used the Washington State DNR ShoreZone 
inventory (Berry, 2001) in combination with the benthic habitat 
classifications of the BTM related to the locations where moderate and 
large rivers enter Puget Sound (NMFS, 2014a).
    The DNR ShoreZone habitat classifications are available for all of 
the shoreline within the ranges of the DPSs. We used the habitat 
characteristics described in the ShoreZone inventory to assist in 
determining if essential features for juvenile canary rockfish and 
bocaccio occur along particular nearshore areas. The ShoreZone

[[Page 68058]]

inventory was conducted by aerial visual surveys between 1994 and 2000 
along all of Washington State's shorelines (Berry et al., 2001). The 
DNR subdivided beaches into units that are sections of beach with 
similar geomorphic characteristics. Within each unit, the DNR 
documented the presence of eelgrass or kelp, among other biological 
parameters. There are 6,856 shoreline segments in the range of the 
rockfish DPSs, ranging from 0.02 to 14 kilometers (0.01 to 8.7 mi) in 
length. The DNR delineated 15 different geomorphic shoreline types. The 
DNR's mapping of aquatic vegetation had limitations because shoreline 
segments were observed by aerial surveys during different years and 
months. Aquatic vegetation growth, including kelp, is variable from 
month to month and year to year. Some kelp species are annuals, thus 
surveys that took place during non-growing seasons may have not mapped 
kelp beds where they actually occur. Non-floating kelp species in 
particular may have also been underestimated by the DNR survey methods 
because they were more difficult to document than floating kelp. In 
particular, all kelp species mapped were usually not visible to their 
lower depth limit because of poor visibility through the water column. 
While beds of vegetation may have been visible underwater, often it was 
not possible to determine what particular type of vegetation was 
present because of a lack of color characteristics. In addition, 
because floating kelp occurs in shallow waters, off-shore of the area 
visible from the aircraft, it was not mapped in many cases. For these 
reasons, the mapped kelp within the ShoreZone database represents an 
underestimation of the total amount of kelp along Puget Sound 
shorelines.
    To determine which shorelines contained the essential features for 
juvenile canary rockfish and bocaccio, we reviewed their geomorphic 
classifications to see if they possessed ``substrates such as sand, 
rock and/or cobble compositions.'' In addition, we assessed the 
relative overlap of mapped kelp in these shoreline types. All but the 
``Estuary Wetland'' and ``Mud Flat'' type shoreline segments had at 
least 20 percent of the segment with ``continuous'' or ``sporadic'' 
kelp mapped by DNR. The Estuary Wetland and Mud Flat type segments had 
very small portions of kelp (1.5 and 2.6 percent, respectively). We 
found that the Estuary Wetland and Mud Flat type shoreline segments 
longer than one-half lineal mile in length lack essential features for 
canary rockfish and bocaccio.
    To assess nearshore estuaries and deltas of moderate and large 
rivers that enter Puget Sound, we used information from Burns (1983) 
and Teizeen (2012) to determine the location and annual flows of these 
rivers. These rivers input various volumes of sediment and fresh water 
into Puget Sound (Downing, 1983; Burns, 1985; Czuba et al., 2011) and 
profoundly influence local benthic habitat characteristics, salinity 
levels, and local biota. The nearshore areas adjacent to moderate-to-
large river deltas are characterized by the input of fresh water and 
fine sediments that create relatively flat habitats (termed ``shelves'' 
by the BTM) that do not support the growth of kelp (NMFS, 2014a). In 
addition, the net outward flow of these deltas may prevent post-
settlement juvenile canary rockfish or bocaccio from readily using 
these habitats. For these reasons we found that these nearshore areas 
do not contain the essential features of rearing sites for canary 
rockfish or bocaccio (juvenile yelloweye rockfish most commonly occupy 
waters deeper than the nearshore).
    The DNR ShoreZone survey did not delineate the geomorphic extent of 
shoreline segments associated with estuaries and deltas. Thus we 
determined the geographical extent of these estuaries and shelves from 
the BTM ``shelf'' seafloor designation associated with the particular 
river because it indicates the geomorphic extension of the tidal and 
sub-tidal delta where fresh water enters Puget Sound. Not all of the 
shorelines associated with estuaries and deltas were labeled as 
``estuary wetland'' and ``mud flat'' by DNR, thus we delineated 
juvenile settlement sites located in the nearshore at the border of 
these deltas at the geomorphic terminus of the delta at the 30 m (98 
ft) contour and/or at the shoreline segment mapped with kelp by the 
DNR. By doing this, we did not include some of the other ShoreZone 
geomorphic shoreline types in the critical habitat designation because 
available information did not support the presence of essential 
features at some specific areas adjacent to moderate to large rivers 
(see NMFS, 2014a).

Special Management Considerations or Protection

    An occupied area cannot be designated as critical habitat unless it 
contains physical or biological features that ``may require special 
management considerations or protection.'' Agency 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.'' Many forms of human activities have the potential to affect 
the essential features of listed rockfish species: (1) Nearshore 
development and in-water construction (e.g., beach armoring, pier 
construction, jetty or harbor construction, pile driving construction, 
residential and commercial construction); (2) dredging and disposal of 
dredged material; (3) pollution and runoff; (4) underwater construction 
and operation of alternative energy hydrokinetic projects (tidal or 
wave energy projects) and cable laying; (5) kelp harvest; (6) 
fisheries; (7) non-indigenous species introduction and management; (8) 
artificial habitats; (9) research activities; (10) aquaculture, and; 
(11) activities that lead to global climate change and ocean 
acidification. All of these activities may have an effect on one or 
more physical or biological features via their potential alteration of 
one or more of the following: adult habitats, food resources, juvenile 
settlement habitat, and water quality. Further detail regarding the 
biological and ecological effect of these species management 
considerations is found in the final Biological Report (NMFS, 2014a).

Descriptions of Essential Features and Special Management 
Considerations in each Specific Area

    We describe the five Basins (the specific areas) of the Puget Sound 
below and summarize their biological condition and attributes; full 
details are found in the final biological report supporting this 
designation (NMFS, 2014a). Each Basin has different levels of human 
impacts related to the sensitivity of the local environment, and degree 
and type of human-derived impacts. We have also included examples of 
some of the activities that occur within these Basins that affect the 
essential features such that they may require special management 
considerations or protection.
    The San Juan/Strait of Juan de Fuca Basin--This Basin is the 
northwestern boundary of the U.S. portion of the DPSs. The Basin is 
delimited to the north by the Canadian border and includes Bellingham 
Bay, to the west by the entrance to the Strait of Juan de Fuca, to the 
south by the Olympic Peninsula and Admiralty Inlet, and to the east by 
Whidbey Island and the mainland between Anacortes and Blaine, 
Washington. The predominant feature of this Basin is the Strait of Juan 
de Fuca, which is 99.4 mi (160 km) long and varies from 13.7 mi (22 km) 
wide at its western end to over 24.9 mi (40

[[Page 68059]]

km) wide at its eastern end (Thomson, 1994). Drake et al. (2010) 
considered the western boundary of the DPSs as the Victoria Sill 
because it is hypothesized to control larval dispersal for rockfishes 
(and other biota) of the region. Water temperatures are lower and more 
similar to coastal marine waters than to Puget Sound proper, and 
circulation in the strait consists of a seaward surface flow of diluted 
seawater (>30.0 practical salinity units [psu]) in the upper layer and 
an inshore flow of saline oceanic water (>33.0 psu) at depth (Drake et 
al., 2010). Water exchange in this Basin has not been determined 
because, unlike the rest of the Basins of the DPSs, it is more oceanic 
in character and water circulation is not nearly as constrained by 
geography and sills as it is in the other Basins.
    The San Juan/Strait of Juan de Fuca Basin has the most rocky 
shoreline and benthic habitats of the U.S. portion of the DPSs. Most of 
the Basin's numerous islands have rocky shorelines with extensive, 
submerged aquatic vegetation and floating kelp beds necessary for 
juvenile canary rockfish and bocaccio settlement sites.
    This Basin also contains abundant sites deeper than 30 meters that 
possess or are adjacent to areas of complex bathymetry. Approximately 
93 percent of the rocky benthic habitats of the U.S. portion of the 
range of all three DPSs are in this Basin (Palsson et al., 2009). Plate 
tectonic processes and glacial scouring/deposition have produced a 
complex of fjords, grooved and polished bedrock outcrops, and erratic 
boulders and moraines along the seafloor of the San Juan Archipelago 
(Greene, 2012). Banks of till and glacial advance outwash deposits have 
also formed and contribute to the variety of relief and habitat within 
the Basin. These processes have contributed to the development of 
benthic areas with complex bathymetry.
    Yelloweye rockfish, canary rockfish, and bocaccio have been 
documented in the San Juan Archipelago, in addition to the southern 
portion of this Basin along the Strait of Juan de Fuca (Washington, 
1977; Moulton and Miller, 1987; Pacunski, 2013). The southern portion 
of this Basin has several pinnacles that include Hein, Eastern, Middle, 
MacArthur, Partridge, and Coyote Banks. Yelloweye rockfish were once 
commonly caught by anglers along these areas, particularly Middle Bank 
(Olander, 1991).
    As described in more detail in the final Biological Report (NMFS, 
2014a), there are several activities that occur in this Basin that 
affect the essential features such that they may require special 
management considerations. Commercial and recreational fisheries occur 
here, as well as scientific research. The highest concentration of 
derelict fishing nets within the range of the DPSs remain here, 
including over 199 nets in waters deeper than 100 ft (30.5 m) (NRC, 
2014), and an estimated 241 nets in waters shallower than 100 ft (30.5 
m) (NRC, 2014). Because this Basin has the most kelp within the range 
of the DPSs, commercial harvest of kelp could be proposed for the San 
Juan Islands area. The Ports of Bellingham and Anacortes are located in 
this Basin, and numerous dredging and dredge disposal projects and 
nearshore development, such as new docks, piers, and bulkheads occur in 
this Basin. These development actions have the potential to alter 
juvenile settlement sites of canary rockfish and bocaccio. Two open-
water dredge disposal sites are located in the Basin, one in Rosario 
Strait and the other northwest of Port Townsend. These are termed 
dispersive sites because they have higher current velocities; thus, 
dredged material does not accumulate at the disposal site and settles 
on benthic environments over a broad area (Army Corps of Engineers, 
2010). Sediment disposal activities in this specific area may 
temporarily alter water quality (dissolved oxygen levels) and feeding 
opportunities (the ability of juvenile rockfish to seek out prey). 
There are several areas with contaminated sediments along the eastern 
portion of this Basin, particularly in Bellingham Bay and Guemes 
Channel near Anacortes.
    Whidbey Basin--The Whidbey Basin includes the marine waters east of 
Whidbey Island and is delimited to the south by a line between 
Possession Point on Whidbey Island and Meadowdale, south of Mukilteo. 
The northern boundary is Deception Pass at the northern tip of Whidbey 
Island. The Skagit, Snohomish, and Stillaguamish Rivers flow into this 
Basin and contribute the largest influx of freshwater inflow to Puget 
Sound (Burns, 1985). Water retention is approximately 5.4 months due to 
the geography and sills at Deception Pass (Ebbesmeyer et al., 1984).
    Most of the nearshore of the Whidbey Basin consists of bluff-backed 
beaches with unconsolidated materials ranging from mud and sand to 
mixes of gravels and cobbles (McBride, 2006). Some of these nearshore 
areas support the growth of kelp. Some of the northern part of this 
Basin is relatively shallow with moderately flat bathymetry near the 
Skagit, Stillaguamish and Snohomish River deltas and does not support 
kelp growth because it lacks suitable areas for holdfast attachment, 
such as rock and cobble.
    Benthic areas in this Basin contain sites deeper than 30 meters 
that possess or are adjacent to areas of complex bathymetry. The 
southern portion of the Basin has more complex bathymetry compared to 
the north, with deeper waters adjacent to Whidbey Island, southern 
Camano Island, and near the City of Mukilteo.
    Yelloweye rockfish, canary rockfish, and bocaccio have been 
documented in the Whidbey Basin, with most occurrences within the 
southern portion near south Camano Island, Hat (Gedney) Island, and 
offshore of the City of Mukilteo. It is not known if the southern 
portion of the Whidbey Basin has more attractive rockfish habitat 
compared to the northern portion, or if most documented occurrences are 
a reflection of uneven sampling effort over the years.
    As described in more detail in the biological report, there are 
several activities that occur in this Basin that affect the essential 
features such that they may require special management considerations. 
Activities include commercial and recreational fisheries, scientific 
research, dredging projects and dredge disposal operations, nearshore 
development projects, aquaculture and potential tidal energy projects. 
An estimated 3 derelict nets remain in waters deeper than 100 ft (30.5 
m) and 3 nets in deeper waters in this Basin (NRC, 2014). A planned 
tidal energy site is located within the Deception Pass area, at the 
northern tip of Whidbey Island. Pollution and runoff are also concerns 
in this Basin, mostly near the Port Gardner area. There are several 
areas with contaminated sediments along the eastern portion of this 
Basin, particularly near the Cities of Mukilteo and Everett.
    Main Basin--The 62.1 mi (100 km) long Main Basin is delimited to 
the north by a line between Point Wilson near Port Townsend and 
Partridge Point on Whidbey Island, to the south by Tacoma Narrows, and 
to the east by a line between Possession Point on Whidbey Island and 
Meadow Point. The sill at the border of Admiralty Inlet and the eastern 
Straits of Juan de Fuca regulates water exchange of Puget Sound (Burns, 
1985). The Main Basin is the largest Basin, holding 60 percent of the 
water in Puget Sound proper. Water retention is estimated to be one 
month due to the sills at Admiralty Inlet and Deception Pass 
(Ebbesmeyer et al., 1984).
    Approximately 33 percent (439.3 mi (707 km)) of Puget Sound's 
shoreline occurs within this Basin and nearshore

[[Page 68060]]

habitats consist of bluff-backed beaches with unconsolidated materials 
ranging from mud and sand to mixes of gravels and cobbles (Drake et 
al., 2010). Some of these nearshore areas support the growth of kelp. 
Subtidal surface sediments in Admiralty Inlet tend to consist largely 
of sand and gravel, whereas sediments just south of the inlet and 
southwest of Whidbey Island are primarily sand. Areas deeper than 30 
meters in the Main Basin have varying amounts of sites that possess or 
are adjacent to areas of complex bathymetry. Sediments in the deeper 
areas of the central portion of the Main Basin generally consist of mud 
or sandy mud (Bailey et al., 1998) and are generally not complex. 
Possession Point is centrally located within this Basin at the southern 
end of Whidbey Island, and has relatively steep eastern, southern, and 
western edges and also has some rocky substrates (Squire and Smith, 
1977). There are benthic areas deeper than 98ft (30 m) along Possession 
Point, Admiralty Inlet and the rims of Puget Sound beyond the nearshore 
that feature complex bathymetry, with slopes and areas of high 
rugosity.
    Yelloweye rockfish, canary rockfish, and bocaccio have been 
documented at Possession Point, near the port of Kingston and Apple 
Cove, and along much of the eastern shoreline of this Basin 
(Washington, 1977; Moulton and Miller, 1987).
    As described in more detail in the biological report, there are 
several activities that occur in this Basin that affect the essential 
features such that they may require special management considerations. 
Activities include commercial and recreational fisheries, scientific 
research, dredging projects and dredge disposal operations, nearshore 
development projects, aquaculture and planned tidal energy projects. An 
estimated 20 derelict nets in waters shallower than 100 ft (30.5 m), 
and one in deeper waters remain in this Basin (NRC, 2014). A planned 
tidal energy site is located within the Admiralty Inlet area off 
Whidbey Island. Pollution and runoff are also concerns in this Basin 
because of extensive amounts of impervious surface located on its 
eastern side. Two open-water dredge disposal sites are located in the 
Basin, one located in Elliot Bay and the other in Commencement Bay. 
These are non-dispersive disposal sites, which are areas where currents 
are slow enough that dredged material is deposited on the disposal 
target area rather than dispersing broadly with prevailing currents 
(Army Corps of Engineers, 2010). An estimated 36 percent of the 
shoreline in this area has been modified by human activities (Drake et 
al., 2010) and bulkhead/pier repair projects and new docks/piers are 
proposed regularly in this Basin. There are several areas with 
contaminated sediments in this Basin, particularly in Elliot Bay, 
Sinclair Inlet, and Commencement Bay.
    South Puget Sound--This Basin includes all waterways south of 
Tacoma Narrows, and is characterized by numerous islands and shallow 
(generally <65ft (20 m)) inlets with extensive shoreline areas. The 
sill at Tacoma Narrows restricts water exchange between the South Puget 
Sound and the Main Basin and water retention is an estimated 1.9 months 
(Ebbesmeyer et al., 1984). This restricted water exchange influences 
environmental characteristics of the South Puget Sound such as nutrient 
levels and dissolved oxygen, and perhaps its biotic communities 
(Ebbesmeyer et al., 1984; Rice, 2007).
    Wide assortments of sediments are found in the nearshore and 
intertidal areas of this Basin (Bailey et al., 1998). The most common 
sediments and the percent of the intertidal area they cover (with 95 
percent confidence limits) are: mud, 38.3 <plus-minus> 29.3 percent; 
sand, 21.7 <plus-minus> 23.9 percent; mixed fine, 22.9 <plus-minus> 
16.1 percent; and gravel, 11.1 <plus-minus> 4.9 percent. Subtidal areas 
have a similar diversity of surface sediments, with shallower areas 
consisting of mixtures of mud and sand and deeper areas consisting of 
mud (Puget Sound Water Quality Authority, 1987). The southern inlets of 
this Basin include Oakland Bay, Totten Inlet, Bud Inlet and Eld Inlet, 
in addition to the Nisqually River delta. These inlets have relatively 
muddy habitats that do not support essential nearshore features such as 
holdfasts for kelp, and rock and cobble areas for rearing juvenile 
canary rockfish and bocaccio. Despite the prevalence of muddy and sandy 
substrate in the southern portion of this Basin, some of these 
nearshore areas support the growth of kelp and therefore contain 
juvenile settlement sites.
    With a mean depth of 121 ft (37 m), this Basin is the shallowest of 
the five Basins (Burns, 1985). Benthic areas deeper than 98 ft (30 m) 
occur in portions of the Tacoma Narrows and Dana Passage and around the 
rims of the Basin. Sediments in Tacoma Narrows and Dana Passage consist 
primarily of gravel and sand. The rims of South Puget Sound beyond the 
nearshore feature complex bathymetry, with slopes and areas of high 
rugosity.
    Yelloweye rockfish, canary rockfish, and bocaccio have been 
documented within the South Puget Sound (NMFS, 2014a). Canary rockfish 
may have been historically most abundant in the South Puget Sound 
(Drake et al., 2010).
    As described in more detail in the biological report, there are 
several activities that occur in this Basin that affect the essential 
features such that they may require special management considerations. 
Activities include commercial and recreational fisheries, scientific 
research, dredging and dredge disposal, nearshore development, 
pollution and runoff, aquaculture operations, and potential tidal 
energy projects. An estimated 7 derelict nets in waters shallower than 
100 ft (30.5 m) remain in this Basin (Northwest Straits Initiative, 
2011). A non-dispersive dredge disposal site is located off Anderson/
Ketron Island (Army Corps of Engineers, 2010). A potential tidal energy 
site is located in the Tacoma Narrows area. Important point sources of 
waste include sewage treatment facilities, and about 5 percent of the 
nutrients (as inorganic nitrogen) entering greater Puget Sound enter 
this Basin through nonpoint sources (Embrey and Inkpen, 1998). An 
estimated 34 percent of the shoreline in this area has been modified by 
human activities (Drake et al., 2010), and bulkhead/pier repair 
projects and new docks/piers are proposed regularly in this Basin. The 
major urban areas, and thus more pollution and runoff into the South 
Puget Sound, are found in the western portions of Pierce County. Other 
urban centers in Southern Puget Sound include Olympia and Shelton. 
There are several areas with contaminated sediments in this Basin in 
Carr Inlet and near Olympia.
    Hood Canal--Hood Canal branches off the northwest part of the Main 
Basin near Admiralty Inlet and is the smallest of the greater Puget 
Sound Basins, being 55.9 mi (90 km) long and 0.6 to 1.2 mi (1 to 2 km) 
wide (Drake et al., 2010). Water retention is estimated at 9.3 months; 
exchange in Hood Canal is regulated by a 164-foot (50-meter) deep sill 
near its entrance that limits the transport of deep marine waters in 
and out of Hood Canal (Ebbesmeyer et al., 1984; Burns, 1985). The major 
components of this Basin consist of the Hood Canal entrance, Dabob Bay, 
the central Basin, and the Great Bend at the southern end. A 
combination of relatively little freshwater inflow, the sill at 
Admiralty Inlet, and bathymetry lead to relatively slow currents; thus, 
water residence time within Hood Canal is the longest of the 
biogeographic Basins, with net surface flow generally northward 
(Ebbesmeyer et al., 1984).
    The intertidal and nearshore zone consists mostly of mud (53.4 
<plus-minus> 89.3 percent of the intertidal area), with

[[Page 68061]]

similar amounts of mixed fine sediment and sand (18.0 <plus-minus> 18.5 
percent and 16.7 <plus-minus> 13.7 percent, respectively) (Bailey et 
al., 1998). Some of the nearshore areas of Hood Canal have cobble and 
gravel substrates intermixed with sand that support the growth of kelp. 
Surface sediments in the subtidal areas also consist primarily of mud 
and cobbles (Puget Sound Water Quality Authority, 1987). The shallow 
areas of the Great Bend, Dabob Bay, and the Hamma Hamma, Quilcene, 
Duckabusch, Dosewallips, Tahuya and Skokomish River deltas feature 
relatively muddy habitats that lack holdfasts for kelp, such as rock 
and cobble areas, and thus do not support kelp growth. Such areas thus 
lack the essential feature of juvenile settlement sites for juvenile 
canary rockfish and bocaccio.
    Benthic areas deeper than 98 ft (30 m) occur along the rim of 
nearly all of Hood Canal, and these areas feature complex bathymetry, 
with slopes and areas of high rugosity.
    Bocaccio have been documented in Hood Canal (NMFS, 2014a). 
Yelloweye and canary rockfish have also been documented at several 
locations and have been caught in relatively low numbers for the past 
several years (WDFW, 2011).
    As described in more detail in the biological report, there are 
several activities that occur in this Basin that affect the essential 
features such that they may require special management considerations. 
Activities in Hood Canal include commercial and recreational fisheries, 
scientific research, nearshore development, non-indigenous species 
management, aquaculture, and pollution and runoff. An estimated three 
derelict nets in waters shallower than 100 ft (30.5 m) and two in 
deeper waters remain in this Basin (NRC, 2014). The unique bathymetry 
and low water exchange have led to episodic periods of low dissolved 
oxygen (Newton et al., 2007), though the relative role of nutrient 
input from humans in exacerbating these periods of hypoxia is in doubt 
(Cope and Roberts, 2012). Dissolved oxygen levels have decreased to 
levels that cause behavioral changes and kill some rockfish (i.e., 
below 1.0 mg/L (1 ppm)) (Palsson et al., 2008). An estimated 34 percent 
of the shoreline in this area has been modified by human activities 
(Drake et al., 2010), and bulkhead/pier repairs and new docks/piers are 
regularly proposed in this Basin. The non-indigenous tunicate (Ciona 
savignyi) has been documented at 86 percent of sites surveyed in Hood 
Canal (Drake et al., 2010), and may impact benthic habitat function 
that includes rearing and settlement habitat for rockfish.

Depicting Critical Habitat With Maps

    As previously described, we updated our methods to determine the 
final critical habitat designation by using newly acquired best 
available bathymetry data and GIS tools. We used ArcGIS, version 10.2 
and updated 30-meter bathymetry data provided to us by the Nature 
Conservancy. We used the new BTM within ArcGIS 10.2 (Wright et al., 
2012). We used available geographic data to identify the locations of 
benthic sites with or adjacent to complex bathymetry and shoreline 
sites with sand, rock and/or cobble compositions that also support 
kelp, as described in more detail in the Biological Report (NMFS, 
2014a). Once we identified these sites, we aggregated sites located in 
close proximity through GIS methods described in NMFS (2014a), 
consistent with the regulatory guidance regarding designation of an 
inclusive area for habitats in close proximity (50 CFR 424.12(d)).
    Consistent with current agency regulations we refined the 
designation and provide a critical habitat map that clearly delineates 
where the essential features are found within the specific areas and, 
consistent with our proposed designation, are only designating those 
areas that are mapped. Current agency regulations state that instead of 
designating critical habitat using lines on a map, we may show critical 
habitat on a map, with additional information discussed in the preamble 
of the rulemaking and in agency records (50 CFR 424.12(c)), rather than 
requiring long textual description in the Code of Federal Regulations 
(CFR). In adopting this regulation, we stated in response to comments:

    [I]n instances where there are areas within a bigger area that 
do not contain the physical and biological features necessary for 
the conservation of the species, the Services would have the option 
of drawing the map to reflect only those parts of the area that do 
contain those features (77 FR 25611, May 1, 2012).

    The maps we developed for the present designation conform to this 
new regulation. In addition, in agency records, and available on our 
Web site, we provide the GIS plot points used to create these maps, so 
interested persons may determine whether any place of interest is 
within critical habitat boundaries (http://www.wcr.noaa.gov).

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.'' We conducted a review of the 
documented occurrences of each listed rockfish species in the five 
biogeographic Basins of Puget Sound (NMFS, 2014a). We found that each 
of the Basins is currently occupied by listed rockfish and our 
biological review did not identify any unoccupied areas that are 
essential to conservation and thus have not identified any unoccupied 
areas as candidates for critical habitat designation (NMFS, 2014a).
    Section 3(5)(C) of the ESA provides that ``[e]xcept in those 
circumstances determined by the Secretary, critical habitat shall not 
include the entire geographical area which can be occupied by the 
threatened or endangered species.'' In this case we are proposing to 
designate all the specific areas that possess essential features that 
can be mapped (such as complex bathymetry in waters deeper than 30 
meters, and nearshore areas such as sand, rock and/or cobble 
compositions that also support kelp) and as described above, we are 
only designating those portions of the specific areas that actually 
contain the essential features. We acknowledge that some listed 
rockfishes have been documented to occur outside of the mapped areas 
that we designate as critical habitat (NMFS, 2014a) and that larval 
listed rockfishes could occur throughout the specific areas. Therefore, 
although each specific area contains designated critical habitat, we 
conclude that the designation does not constitute ``the entire 
geographical area which can be occupied'' by the listed rockfish 
species.

Identifying Military Lands Ineligible for Designation

    Section 4(a)(3) of the ESA precludes the Secretary from designating 
military lands as critical habitat if those lands are subject to an 
INRMP under the Sikes Act that the Secretary certifies in writing 
benefits the listed species. The Navy has not determined the extent of 
marine waters covered by INRMPs, nor has it set forth a process or 
timeline to determine this. In considering the benefits of the INRMPs 
for rockfishes we have determined that they may influence habitat of 
the nearshore (78 FR 47635; August 6, 2013). These areas are contiguous 
with the shoreline from

[[Page 68062]]

the line of extreme high water out to a depth no greater than 30 meters 
(98 ft) relative to MLLW (NMFS, 2014a). This zone includes the photic 
zone (upper layer of a water body delineated by the depth at which 
enough sunlight can penetrate to allow photosynthesis) which can be 
readily affected by actions occurring in intertidal waters or adjacent 
land. Prior to the proposed rule we consulted with the DOD and 
determined that there are several installations with INRMPs which 
overlap with marine habitats occupied by listed rockfishes: (1) Joint 
Base Lewis-McChord: (2) Manchester Fuel Department, (3) Naval Air 
Station Whidbey Island, (4) Naval Station Everett, and (5) Naval 
Station Kitsap and associated properties. After the proposed rule (78 
FR 47635; August 6, 2013) published, the Navy clarified that Hood Canal 
and Dabob Bay Naval Non-Explosive Torpedo Testing Area and Dabob Bay, 
Whitney Point Naval Restricted Area are covered by the INRMP for Naval 
Station Kitsap. The Navy also clarified that the two Naval Restricted 
Areas in the Strait of Juan de Fuca, Eastern End; off the Westerly 
Shore of Whidbey Island, the Port Townsend, Indian Island, Walan Point 
Naval Restricted Area, Port Orchard Naval Restricted Area and the Puget 
Sound, Manchester Fuel Depot, Naval Restricted Area are also covered by 
an INRMP.
    We found that Naval Station Everett is covered by an INRMP that 
would benefit listed rockfishes, but we also found the nearshore of 
this area does not overlap with essential features for listed 
rockfishes and we are not designating it as critical habitat. We 
identified habitat meeting the statutory definition of critical habitat 
at all of the other installations and reviewed the INRMPs, as well as 
other information available, regarding the management of these military 
lands. Our review indicates that each of these INRMPs addresses listed 
rockfish habitat, and all contain measures that provide benefits to the 
listed rockfish DPSs. Examples of the types of benefits include actions 
that improve shoreline conditions, control erosion and water quality, 
prevent or ensure prompt response to chemical and oil spills, and 
monitor listed species and their habitats. As a result, we conclude 
that the areas identified within INRMPs are not eligible for critical 
habitat designation (see Appendix C of NMFS, 2014c).

Summary of Areas Meeting the Definition for Critical Habitat 
Designation

    We have determined that approximately 644.7 square miles (1,669.8 
sq km) of nearshore habitat for juvenile canary rockfish and bocaccio, 
and 438.5 square miles (1,135.7 sq km) of deepwater habitat for 
yelloweye rockfish, canary rockfish, and bocaccio meet the definition 
of critical habitat (Table 1).

    Table 1--Physical and Biological Features and Management Considerations for Yelloweye Rockfish, Canary Rockfish and Bocaccio in Areas Meeting the
                                                   Definition of Critical Habitat, Prior to Exclusions
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
             DPS basin                Nearshore sq    Deepwater sq          Physical or biological features                      Activities
                                           mi.             mi.
                                      (for juvenile  (for adult and
                                         canary and        juvenile
                                     bocaccio only)       yelloweye
                                                          rockfish,
                                                       adult canary
                                                      rockfish, and
                                                              adult
                                                          bocaccio)
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Juan/Strait of Juan de Fuca....           349.4           203.6  Deepwater sites <30     Nearshore juvenile     1, 2, 3, 6, 9, 10, 11.
                                                                      meters) that support    rearing sites with
                                                                      growth, survival,       sand, rock and/or
                                                                      reproduction and        cobbles to support
                                                                      feeding opportunities.  forage and refuge.
Whidbey Basin......................            52.2            32.2                                                 1, 2, 3, 4, 6, 9, 10, 11.
Main Basin.........................           147.4           129.2                                                 1, 2, 3, 4, 6,7, 9, 10, 11.
South Puget Sound..................            75.3            27.1                                                 1, 2, 3, 4, 6,7, 9, 10, 11.
Hood Canal.........................            20.4            46.4                                                 1, 2, 3, 6,7, 9, 10, 11.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Management Considerations Codes: (1) Nearshore development and in-
water construction (e.g., beach armoring, pier construction, jetty or 
harbor construction, pile driving construction, residential and 
commercial construction); (2) dredging and disposal of dredged 
material; (3) pollution and runoff; (4) underwater construction and 
operation of alternative energy hydrokinetic projects (tidal or wave 
energy projects) and cable laying; (5) kelp harvest; (6) fisheries; (7) 
non-indigenous species introduction and management; (8) artificial 
habitats; (9) research; (10) aquaculture; and (11) activities that lead 
to global climate change and ocean acidification. Commercial kelp 
harvest does not occur presently, but would probably be concentrated in 
the San Juan/Georgia Basin. Artificial habitats could be proposed to be 
placed in each of the Basins. Non-indigenous species introduction and 
management could occur in each Basin.

Application of ESA Section 4(b)(2)

    The foregoing discussion describes those areas that are eligible 
for designation as critical habitat--the specific areas that fall 
within the ESA section 3(5)(A) definition of critical habitat, not 
including lands owned or controlled by the DOD, or designated for its 
use, that are covered by an INRMP that the Secretary has determined in 
writing provides a benefit to the species. Specific areas eligible for 
designation are not automatically designated as critical habitat. As 
described above, Section 4(b)(2) of the ESA requires that the Secretary 
first consider the economic impact, impact on national security, and 
any other relevant impact. The Secretary has the discretion to exclude 
an area from designation if she determines the benefits of exclusion 
(that is, avoiding the impact that would result from designation) 
outweigh the benefits of designation, based on the best available 
scientific and commercial information. The Secretary may not exclude an 
area from designation if

[[Page 68063]]

exclusion will result in the extinction of the species. Because the 
authority to exclude is wholly discretionary, exclusion is not required 
for any areas (H.R. No.95-1625, at 16-17 1978; M-37016, ``The 
Secretary's Authority to Exclude Areas from a Critical Habitat 
Designation under Section 4(b)(2) of the Endangered Species Act'' (Oct. 
3, 2008) (DOI, 2008; 78 FR 53058, August 18, 2013).
    The first step in conducting an ESA section 4(b)(2) analysis is to 
identify the ``particular areas'' to be analyzed. Section 3(5)(A) of 
the ESA defines critical habitat as ``specific areas,'' while section 
4(b)(2) of the ESA requires the agency to consider certain factors 
before designating any ``particular area.'' Depending on the biology of 
the species, the characteristics of its habitat, and the nature of the 
impacts of designation, ``specific'' areas might be different from, or 
the same as, ``particular'' areas. For this designation, we identified 
the ``specific'' areas as (1) The San Juan/Strait of Juan de Fuca 
Basin, (2) Main Basin, (3) Whidbey Basin, (4) South Puget Sound, and 
(5) Hood Canal. For our economic impact analysis we defined the 
``particular'' areas as equivalent to the ``specific'' areas. This 
approach allowed us to most effectively consider the conservation value 
of the different areas when balancing conservation benefits of 
designation against economic benefits of exclusion. However, to assess 
impacts of designation on national security and Indian lands, we 
instead used a delineation of ``particular'' areas based on ownership 
or control of the area. These ``particular'' areas consisted of marine 
areas that overlap with designated military areas and Indian lands. 
This approach allowed us to consider impacts and benefits associated 
with management by the military or land ownership and management by 
Indian tribes.

Identify and Determine the Impacts of Designation

    Section 4(b)(2) of the ESA provides that the Secretary shall 
consider ``the economic impact, impact on national security, and any 
other relevant impact of specifying any particular area as critical 
habitat.'' 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 ensure their 
actions are not likely to jeopardize the species' continued existence. 
The true impact of designation is the extent to which Federal agencies 
modify their actions to ensure their actions are not likely to destroy 
or adversely modify the critical habitat of the species, beyond any 
modifications they would make because of listing and the jeopardy 
requirement for the species. Additional impacts of designation include 
state and local protections that may be triggered as a result of the 
designation.
    In determining the impacts of designation, we assessed the 
incremental change in Federal agency actions as a result of critical 
habitat designation and the adverse modification prohibition, beyond 
the changes predicted to occur as a result of listing and the jeopardy 
provision. In August 2013 the USFWS and NMFS published a final rule to 
amend our joint regulations at 50 CFR 424.19 to make clear that in 
considering impacts of designation as required by Section 4(b)(2) we 
would consider the incremental impacts (78 FR 53058; August 24, 2013). 
This approach is in contrast to our 2005 critical habitat designations 
for salmon and steelhead (70 FR 52630; September 2, 2005) where we 
considered the ``coextensive'' impact of designation. The consideration 
of co-extensive impacts was in accordance with a Tenth Circuit Court 
decision (New Mexico Cattle Growers Association v. U.S. Fish and 
Wildlife Service, 248 F.3d 1277 (10th Cir. 2001)). More recently, 
several courts (including the 9th Circuit Court of Appeals) have 
approved an approach that considers the incremental impact of 
designation. The Federal Register notice (77 FR 5103; August 24, 2012) 
announcing the proposed policy on considering impacts of designation 
describes and discusses these court cases: Arizona Cattlegrowers' Ass'n 
v. Salazar, 606 F3d 1160, 1172-74 (9th Cir. 2010), cert. denied, 131 S. 
Ct. 1471, 179 L. Ed. 2d 300 (2011); Homebuilders Ass'n v. FWS, 616 F3d 
983, 991093j (9th Cir. 2010) cert. denied, 131 S. Ct. 1475, 179 L. Ed. 
2d 301 (2011). The notice also discusses a Department of Interior 
Solicitor's memo (M-3706 The Secretary's Authority to Exclude Areas 
from Critical Habitat Designation Under 4(b)(2) of the Endangered 
Species Act (Oct. 3, 2008) (DOI, 2008)). In more recent critical 
habitat designations, both NMFS and the USFWS have considered the 
incremental impact of critical habitat designation (for example, NMFS' 
designation of critical habitat for the Southern DPS of green sturgeon 
(74 FR 52300; October 9, 2009) and the Southern DPS of Pacific eulachon 
(76 FR 65324; October 20, 2011), and the USFWS' designation of critical 
habitat for the Oregon chub (75 FR 11031; March 10, 2010)).
    Consistent with our new regulations (78 FR 53058; August 24, 2013), 
the more recent court cases, and more recent agency practice, we 
estimated the incremental impacts of designation, beyond the impacts 
that would result from the listing and jeopardy provision. In addition, 
because these designations almost completely overlap our previous 
salmonid, killer whale and green sturgeon critical habitat designations 
in Puget Sound, and the essential features defined for those species in 
previous designations are similar to those for listed rockfishes (NMFS, 
2014a), we estimated only the incremental impacts of designation beyond 
the impacts already imposed by those prior designations.
    To determine the impact of designation, we examined what the state 
of the world would be with and without the designation of critical 
habitat for listed rockfishes. The ``without critical habitat'' 
scenario represents the baseline for the analysis. It includes process 
requirements and habitat protections already afforded listed rockfishes 
under their Federal listing or under other Federal, state, and local 
regulations. Such regulations include protections afforded listed 
rockfish habitat from other co-occurring ESA listings and critical 
habitat designations, such as those for Pacific salmon and steelhead 
(70 FR 52630; September 2, 2005), North American green sturgeon (74 FR 
52300; October 9, 2009), Southern Resident killer whales (71 FR 69054; 
November 29, 2006), and bull trout (75 FR 63898; October 18, 2010) (see 
the Final Economic Analysis for listed rockfish (NMFS, 2014a) for 
examples of protections for other species that would benefit listed 
rockfishes). The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for listed rockfishes. The primary impacts of critical 
habitat designation we found were: (1) The economic costs associated 
with additional administrative effort of including a critical habitat 
analysis in section 7 consultations for these three DPSs, (2) impacts 
to national security, and (3) the possible harm to our working 
relationship with Indian tribes and landowners and entities with 
conservation plans.

Economic Impacts

    Our Economic Analysis sought to determine the impacts on land uses 
and

[[Page 68064]]

other activities from the designation of critical habitat, above and 
beyond--or incremental to--those ``baseline'' impacts due to existing 
or planned conservation efforts being undertaken due to other Federal, 
state, and local regulations or guidelines (NMFS, 2014b). Other Federal 
agencies, as well as state and local governments, may also seek to 
protect the natural resources under their jurisdiction. If compliance 
with the Clean Water Act or state environmental quality laws, for 
example, protects habitat for the species, such protective efforts are 
considered to be baseline protections and costs associated with these 
efforts are not quantified as impacts of critical habitat designation.
    When critical habitat is designated, section 7 requires Federal 
agencies to ensure that their actions are not likely to result in the 
destruction or adverse modification of critical habitat, in addition to 
ensuring that the actions are not likely to jeopardize the continued 
existence of the species. The added administrative costs of considering 
critical habitat in section 7 consultations and the additional impacts 
of implementing project modifications to protect critical habitat are 
the direct result of the designation of critical habitat. These costs 
are not in the baseline, and are considered incremental impacts of the 
rulemaking.
    Incremental economic impacts may include the direct costs 
associated with additional effort for future consultations, reinitiated 
consultations, new consultations occurring specifically because of the 
designation, and additional project modifications that would not have 
been required to avoid jeopardizing the continued existence of the 
species. Additionally, incremental economic impacts may include 
indirect impacts resulting from reaction to the potential designation 
of critical habitat (e.g., developing habitat conservation plans in an 
effort to avoid designation of critical habitat), triggering of 
additional requirements under State or local laws intended to protect 
sensitive habitat, and uncertainty and perceptional effects on markets.
    To evaluate the potential administrative and project modification 
costs of designating critical habitat we examined our ESA section 7 
consultation record for rockfishes for the years 2010 and 2011. As 
further explained in the supporting Economic Analysis (NMFS, 2014b), to 
quantify the economic impact of designation, we employed the following 
three steps:
    (1) Define the geographic study area for the analysis, and identify 
the units of analysis (the ``particular areas''). In this case, we 
defined the five biogeographic Basins of the Puget Sound/Georgia Basin 
that encompass occupied marine areas as the particular areas.
    (2) Identify potentially affected economic activities and determine 
how management may increase due to the designation of listed rockfish 
critical habitat, both in terms of project administration and potential 
project modification.
    (3) Estimate the economic impacts associated with both potential 
administrative costs and costs from project modifications. In this 
critical habitat designation we did not identify potential systematic 
project modification costs (NMFS, 2014b).
    We estimated that the additional effort to address adverse 
modification of critical habitat in an ESA section 7 consultation is 
equivalent to one third of the effort already devoted to the 
consultation to consider the species. This is based on estimates of 
additional USFWS effort for bull trout consultations in the Northwest, 
which was considered relevant to the current critical habitat 
designation (NMFS, 2014b). That is, for every 3 hours spent considering 
a jeopardy analysis for rockfishes, an additional hour would be needed 
to consider rockfish critical habitat. Based on that assumption, we 
estimated a total annualized incremental administrative cost of 
approximately $123,000 (discounted at 7 percent) for designating the 
five specific areas as listed rockfish critical habitat. The greatest 
costs are associated with nearshore work, transportation, water 
quality, and utilities (see NMFS, 2014b for more details). The 
estimated annual incremental costs across the five biogeographic Basins 
range from $32,100 in the San Juan/Strait of Juan de Fuca Basin to 
$10,200 in Hood Canal (NMFS, 2014b).
    For the second category of impacts, we consider it unlikely there 
will be incremental costs for project modifications specific to 
rockfish critical habitat for most individual project types. This is 
because of the existing high level of protection afforded by previous 
salmonid, green sturgeon and killer whale critical habitat designations 
that have generally similar biological features, and the protections 
already afforded listed rockfishes through the separate jeopardy 
analysis (see NMFS, 2014b for more details). The results of our 
Economic Analysis are discussed in greater detail in a separate report 
that is available for public review (NMFS, 2014b).

Impacts to National Security

    During preparations for the proposed designation we sent a letter 
to the DOD seeking information to better understand their activities 
taking place in areas owned or controlled by them and the potential 
impact of designating critical habitat in these areas. We received two 
letters from the DOD in response to our initial inquiry. A single 
letter from the U.S. Air Force and U.S. Army stated that these services 
did not foresee any adverse impacts to their national security or 
training missions from proposed rockfish critical habitat designations. 
The second letter, from the U.S. Navy, identified 14 Restricted Areas, 
Operating Areas and Danger Zones (security zones) within the range of 
listed rockfishes in the five Basins of the Puget Sound. The Navy 
confirmed that it uses all of these security zones, and assessed the 
potential for critical habitat designation to adversely affect 
operations, testing, training, and other essential military activities. 
Of the 14 security zones identified by the Navy, only one area is 
already designated as critical habitat for other ESA-listed species 
(Southern Resident killer whales). The Navy letter identified several 
aspects of potential impacts to national security from critical habitat 
designation and requested that areas owned or controlled by the Navy be 
excluded from designation. We had several conversations with the Navy 
subsequent to their letter to further understand their uses of the 
areas, concerns identified in their response letter, and any related 
habitat protections resulting from Navy policies and initiatives (NMFS, 
2014c).
    The Navy sent us a letter and subsequent electronic communications 
in response to our proposed critical habitat designation. The Navy 
clarified that Hood Canal and Dabob Bay Naval Non-Explosive Torpedo 
Testing Area and Dabob Bay, Whitney Point Naval Restricted Area are 
covered by the INRMP for Naval Station Kitsap in addition to several 
other security areas (see above). In addition, the Navy specifically 
requested that Operating Area R-6713 (Navy 3) not be designated as 
critical habitat and requested clarification on our proposed nearshore 
designation in some areas of the Puget Sound. We contacted the Navy 
regarding their uses and concerns regarding our proposed critical 
habitat designation of Operating Area R-6713. In 2009 we designated 
critical habitat for green sturgeon (74 FR 52300; October 9, 2009). 
Prior to the green sturgeon final critical habitat designation the Navy 
provided us

[[Page 68065]]

language regarding how critical habitat designation for that species 
would affect their operations. The Navy stated that the impacts of 
green sturgeon critical habitat designation would be similar to listed 
rockfish critical habitat designation. We assessed the Navy's 
information regarding Operating Area R-6713 (see Appendix C of our 
section 4(b)(2) report).

Other Relevant Impacts--Impacts to Tribal Sovereignty and Self-
governance

    During preparations for the proposed designation we sent a letter 
to Puget Sound Indian tribes, notifying them of our intent to propose 
critical habitat for listed rockfishes. We identified several areas 
under consideration for critical habitat designation that overlap with 
Indian lands in each of the specific areas (see the final 4(b)(2) 
report and Figures 2 and 3). The federally recognized tribes with lands 
potentially affected are the Lummi, Swinomish, Tulalip, Puyallup, 
Squaxin Island, Skokomish, Port Gamble, and Port Madison. In addition 
to the economic impacts described above, designating these tribes' 
Indian lands would have an impact on Federal policies promoting tribal 
sovereignty and self-governance. The longstanding and distinctive 
relationship between the Federal and tribal governments is defined by 
treaties, statutes, executive orders, secretarial orders, judicial 
decisions, and agreements, which differentiate tribal governments from 
the other entities that deal with, or are affected by, the U.S. 
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 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.
    Tribal governments have a unique status with respect to salmon, 
steelhead, and other marine resources in the Pacific Northwest, where 
they are co-managers of these resources throughout the region. The co-
manager relationship crosses tribal, Federal, and state boundaries, and 
addresses all aspects of the species' life cycle. The positive working 
relationship between the Federal government and tribes can be seen in 
Federal-tribal participation within the U.S. v. Oregon and U.S. v. 
Washington framework and the participation of tribes on interstate 
(Pacific Fisheries Management Council) and international (Pacific 
Salmon Commission) management bodies. Additionally, there are 
innumerable local and regional forums and planning efforts in which the 
tribes are engaged with the Federal Government, including ESA section 6 
species recovery grants to the tribes. While many of these activities 
currently concentrate on recovery of listed salmon and steelhead in 
Puget Sound, they nonetheless result in several benefits to habitats 
used by listed rockfishes through the conservation of habitats and prey 
sources of rockfishes (NMFS, 2014c).

Other Relevant Impacts--Impacts to Landowners/Entities With Contractual 
Commitments to Conservation

    Section 10(a)(1)(B) of the ESA authorizes us to issue to non-
Federal entities a permit for the incidental take of endangered and 
threatened species. This permit allows a non-Federal landowner/entity 
to proceed with an activity that is legal in all other respects, but 
that results in the incidental taking of a listed species (i.e., take 
that is incidental to, and not the purpose of, the carrying out of an 
otherwise lawful activity). The ESA specifies that an application for 
an incidental take permit (ITP) must be accompanied by a conservation 
plan, and specifies the content of such a plan. The purpose of such 
conservation plans is to describe and ensure that the effects of the 
permitted action on covered species are adequately minimized and 
mitigated, and that the action does not appreciably reduce the 
likelihood of the survival and recovery of the species. Conservation 
plans that cover habitat actions are common for terrestrial and 
freshwater species and can benefit species threatened by land use 
activities. Conservation plans that cover fisheries are less common and 
can benefit species and habitats threatened by fishing activities.
    Conservation agreements with non-Federal landowners and other 
entities enhance species conservation by extending species' protections 
beyond those available through section 7 consultations. We have 
encouraged non-Federal landowners to enter into conservation 
agreements, based on a view that we can achieve greater species' 
conservation on non-Federal land through such partnerships than we can 
through coercive methods (61 FR 63854; December 2, 1996). In past 
critical habitat designations we have found there is a benefit to 
excluding some areas covered by conservation agreements when there is 
affirmative evidence that the conservation partner considered exclusion 
beneficial to our relationship and beneficial to implementation of the 
conservation agreement (e.g., for Pacific salmon, 70 FR 52630; 
September 2, 2005). We considered the benefit of exclusion to be a 
conservation benefit to the affected species because of the enhanced 
implementation of the agreement and the incentive for others to enter 
into conservation agreements with us to further protect the species.
    In the case of the listed rockfish species, there are two 
conservation agreements that partially or wholly overlap with critical 
habitat. The first is with the Washington DNR and covers geoduck 
harvest on lands managed by the department. The second is with the 
Washington Department of Fish and Wildlife (WDFW) and covers fisheries 
and research in Puget Sound that incidentally take the listed 
rockfishes and other listed species and may also affect rockfish 
habitat.

Determine Whether To Exercise the Discretion to Exclude

    Benefits of critical habitat designation are those conservation 
benefits to the species, while benefits of exclusion result from 
avoiding the impacts of designation identified above. For the present 
designation, we decided to balance benefits of designation against 
benefits of exclusion because some impacts of designation implicate 
competing Federal values, such as national security and tribal 
sovereignty and self-governance (see NMFS, 2014c).

Benefits of Designation

    The principal benefit of designating critical habitat is that ESA 
section 7 requires every Federal agency to ensure that any action it 
authorizes, funds, or carries out is not likely to result in the 
destruction or adverse modification of designated critical habitat. 
This complements the Section 7 provision that Federal agencies ensure 
their actions are not likely to jeopardize the continued existence of a 
listed species. The requirement that agencies avoid adversely modifying 
critical habitat is in addition to the requirement that they avoid 
jeopardy to the species, thus the benefit of designating critical 
habitat is ``incremental'' to the benefit that comes with listing. 
Another possible benefit is that the designation of critical habitat 
can serve to educate the public regarding the potential conservation 
value of an area. Systematic analysis and delineation of important 
rockfish habitat has not been previously conducted in the Puget Sound, 
so designating critical habitat may focus and contribute to 
conservation efforts by

[[Page 68066]]

clearly delineating areas that are important to species conservation.
    Ideally the consideration and balancing of benefits would involve 
first translating all benefits into a common metric. Executive branch 
guidance from the Office of Management and Budget (OMB) suggests that 
benefits should first be monetized--converted into dollars. Benefits 
that cannot be monetized should be quantified (for example, numbers of 
fish saved). Where benefits can neither be monetized nor quantified, 
agencies are to describe the expected benefits (OMB, 2003).
    It may be possible to monetize benefits of critical habitat 
designation for a threatened or endangered species in terms of 
willingness-to-pay (OMB, 2003). However, we are not aware of any 
available data at the scale of our designation (the five Basins of 
Puget Sound Sound) that would support such an analysis for listed 
rockfishes. In addition, section 4(b)(2) requires analysis of impacts 
other than economic impacts that are equally difficult to monetize, 
such as impacts to national security of including areas from critical 
habitat. In the case of rockfish designations, impacts to Northwest 
Indian tribes or to our program to promote voluntary conservation 
agreements are ``other relevant'' impacts that also may be difficult to 
monetize.
    Because we could not monetize or quantify the conservation benefit 
of designating the particular areas as critical habitat, we 
qualitatively describe their conservation value to the listed species. 
The rockfish critical habitat we have identified consists of only five 
areas. Each area is a biogeographic Basin that represents a unique 
ecological setting with unique habitats and biological communities. 
This diversity of habitats is important to maintaining long-term 
viability of the DPSs. Four of the five areas are also relatively 
spatially isolated in terms of water circulation and exchange of some 
biota. Although we lack detailed genetic information to confirm that 
this isolation has led to reproductive isolation among Basins, it is 
likely that there is some degree of reproductive isolation and that the 
unique habitat conditions in each Basin have therefore resulted in 
important adaptations. The diversity this creates in the population, 
like the diversity in habitats, is important to long-term viability. 
These factors suggest that all of the populations and Basins are 
important in maintaining the diversity and spatial structure of each 
DPS. Though we have not yet developed a final Recovery Plan for these 
DPSs, it is likely that all five areas are important to recovery of the 
listed DPSs and therefore have high conservation value (NMFS, 2014a).

Balancing Economic Impacts

    In our 2005 final and 2013 proposed critical habitat designations 
for salmon and steelhead, we balanced conservation benefits of 
designation against economic benefits of exclusion and excluded 
particular areas for many of the affected species. Our approach was 
informed by both biology and policy (78 FR 2725, January 14, 2013; 70 
FR 52630, September 2, 2005). In deciding to balance benefits, we noted 
that salmon and steelhead are widely distributed and their range 
includes areas that have both high and low conservation value; thus, it 
may be possible to construct different scenarios for achieving 
conservation. We also noted Administration policy regarding 
regulations, as expressed in Executive Order 12866, which directs 
agencies to select regulatory approaches that ``maximize net 
benefits,'' and to ``design regulations in the most cost-effective 
manner to achieve the regulatory objective.''
    For the salmon and steelhead designations, we used a cost 
effectiveness approach in which we identified areas to consider for 
economic exclusion by balancing relative conservation value against 
relative economic impact. Where the relative conservation value of an 
area was lower than the relative economic impact, we considered the 
area eligible for exclusion. Relying on policies that promote 
conservation of threatened and endangered species in general and salmon 
in particular, we did not consider areas for exclusion if exclusion 
would significantly impede conservation. We concluded that exclusion of 
high conservation value areas would significantly impede conservation 
and therefore we did not consider any high conservation value areas for 
exclusion for salmon and steelhead.
    In considering economic exclusions for listed rockfishes, we 
considered the following factors: (1) Section 2 of the ESA provides 
that a purpose of the act is ``to provide a means whereby the 
ecosystems upon which endangered species and threatened species depend 
may be conserved''; (2) in listing the three listed rockfish DPSs under 
the ESA, we concluded that degradation of rocky habitat, loss of 
eelgrass and kelp, introduction of non-native habitat-modifying 
species, and degraded water quality were all threats to the species; 
(3) that rocky habitats are rare in Puget Sound and have been affected 
by or are threatened by derelict fishing gear, development, and 
construction and dredging activities; (4) as described above, there are 
only five habitat areas and all are of high conservation value; and (5) 
the economic impacts of designating any particular area are small (the 
largest impact is $32,100 in the San Juan/Strait of Juan de Fuca 
Basin), as is the economic impact of designating the entire area 
($123,000).
    For these reasons, we conclude that the economic benefit of 
excluding any of these particular areas does not outweigh the 
conservation benefit of designation. Therefore, none of the areas were 
eligible for exclusion based on economic impacts.

Balancing Impacts to Tribal Sovereignty and Self-Determination

    We balanced the conservation benefits to rockfishes of designation 
against the benefits of exclusion for Indian lands in light of the 
unique Federal tribal relationship, the unique status of Indian lands, 
and the Federal policies promoting tribal sovereignty and self-
determination, among others. Indian lands potentially affected by a 
critical habitat designation occur within the range of the listed 
rockfishes and are specific to nearshore juvenile rearing sites for 
canary rockfish and bocaccio. We are not designating any nearshore 
areas of Puget Sound as critical habitat for yelloweye rockfish (NMFS, 
2014a). There are eight tribes with Indian lands that overlap the 
critical habitat in all five Basins. Approximately 64.1 lineal miles 
(103 km) of shoreline within reservation boundaries overlap with the 
nearshore component of critical habitat.
    The principal benefit of designating critical habitat is section 
7's requirement that Federal agencies ensure their actions are not 
likely to result in adverse modification of that habitat. To understand 
the benefit of designating critical habitat on Indian lands, we 
considered the number of miles of shoreline affected, and the types of 
activities occurring there that would be likely to undergo a section 7 
consultation along this shoreline area. The types of activities 
occurring in these areas that would be likely to undergo a section 7 
consultation include activities associated with: Nearshore development, 
utilities, dredging, water quality projects, transportation, and other 
project types.
    The benefit of excluding these areas is that Federal agencies 
acting on behalf of, funding, or issuing permits to the tribes would 
not need to reinitiate consultation on ongoing activities for which 
consultation has been completed. Reinitiation of consultation would 
likely require some commitment of

[[Page 68067]]

resources on the part of the affected tribe. Moreover, in a reinitiated 
consultation, or in any future consultation, it is possible that tribes 
may be required to modify some of their activities to ensure the 
activities would not be likely to adversely modify the critical habitat 
(though given the small proportion of shoreline length with essential 
features, and tribal shoreline management, this is unlikely). The 
benefits of excluding Indian lands from designation include: (1) The 
furtherance of established national policies, our Federal trust 
obligations, and our deference to the tribes in management of natural 
resources on their lands; (2) the maintenance of effective long-term 
working relationships to promote the conservation of rockfishes; (3) 
the allowance for continued meaningful collaboration and cooperation in 
scientific work to learn more about the conservation needs of the 
species; and (4) continued respect for tribal sovereignty over 
management of natural resources on Indian lands through established 
tribal natural resource programs. We also considered the degree to 
which the tribes believe designation will affect their participation in 
regional management forums and their ability to manage their lands.
    Based on our consideration, and given the preceding factors, we 
concluded that the benefits to conservation of listed rockfishes from 
full tribal participation in Puget Sound recovery efforts mitigates the 
potential loss of conservation benefits that could result from 
designation of tribal lands as critical habitat. With this mitigating 
conservation benefit in mind, we further concluded that the benefits to 
tribal governments, with whom the Federal Government has a unique trust 
relationship, particularly with regard to land held by the Federal 
Government in trust for the tribes, outweigh the conservation benefits 
of designation for listed rockfishes (NMFS, 2014c).
    The Indian lands specifically excluded are those defined in the 
Secretarial Order 3206, including: (1) Lands held in trust by the 
United States for the benefit of any Indian tribe; (2) lands held in 
trust by the United States for any Indian tribe or individual subject 
to restrictions by the United States against alienation; (3) fee lands, 
either within or outside the reservation boundaries, owned by the 
tribal government; and (4) fee lands within the reservation boundaries 
owned by individual Indians. Our consideration of whether these 
exclusions would result in extinction of listed rockfishes is described 
below.

Balancing Impacts to Landowners/Entities With Contractual Commitments 
to Conservation

    Our consideration of the DNR and WDFW conservation plans is 
described in detail in the ESA Section 4(b)(2) Report (NMFS, 2014c). We 
balanced the conservation benefits to rockfishes of critical habitat 
designation against the benefits of exclusion (referring to the impacts 
of designation section above) of the areas covered in each conservation 
plan. Each plan covers several activities that may take listed species 
and harm critical habitat in Puget Sound. Congress added section 10 to 
the ESA to encourage ``creative partnerships between the private sector 
and local, state, and Federal agencies for the protection of endangered 
species and habitat conservation'' (H.R. Rep. No. 835, 97th Congress, 
2nd Session 31; Reprinted in 1982 U.S. Code Congressional and 
Administrative News 2807, 2831). If excluding areas from critical 
habitat designation promotes such conservation partnerships, such 
exclusions may have conservation benefits that offset the conservation 
benefit that would have resulted from designation. The covered areas of 
the WDNR conservation plan overlap with approximately 30,000 acres of 
nearshore critical habitat for canary rockfish and bocaccio. The 
covered areas of the WDFW conservation plan overlap with the entire 
critical habitat for yelloweye rockfish, canary rockfish, and bocaccio. 
DNR covered activities are geoduck research and harvest management. 
WDFW covered activities are the management of recreational bottom fish 
fishing and commercial shrimp trawls. The types of activities occurring 
in these areas that would be likely to undergo a section 7 consultation 
include nearshore development, dredging, aquaculture operations, 
fisheries management, alternative energy projects and cable laying, and 
others (NMFS, 2014a).
    In general, the benefits of designating the covered areas of each 
conservation plan is that once critical habitat is designated, section 
7(a)(2) of the ESA provides that Federal agencies must ensure any 
actions they authorize, fund, or carry out are not likely to result in 
the destruction or adverse modification of designated critical habitat. 
An additional benefit of inclusion is that a systematic analysis and 
delineation of important rockfish habitat has not been previously 
conducted in the Puget Sound. Thus, for non-Federal activities 
occurring in the covered areas, designation may raise public awareness 
of habitats important to rockfishes and encourage additional 
conservation measures and voluntary conservation agreements within the 
section 10 program. The benefits of designating areas covered by these 
two conservation plans may be less than what they would be on areas not 
covered by conservation plans because of the fact that the permit 
holder has put conservation measures in place through provisions of the 
plan. These measures provide protection when actions are allowed that 
could affect critical habitat (geoduck harvest and management by DNR, 
and fisheries by WDFW). However, these conservation plans are unlike 
other land-based conservation plans in the Northwest (such as forestry 
conservation plans) because the DNR and WDFW plans cover a small subset 
of potential actions that could be affected by future Federal actions 
in Puget Sound (i.e., Federal permits for nearshore development, 
fisheries that cause new derelict fishing nets, tidal energy or cable-
laying, and others).
    The benefits of excluding these covered areas from designation 
include the potential furtherance of our ongoing relationship with 
these entities; in particular, the potential that the exclusion of 
these areas may provide an incentive for other entities to seek 
conservation plans, and the general promotion of the section 10 
conservation program. Conservation agreements on non-federally 
controlled areas of Puget Sound provide important benefits to listed 
species. Section 7 applies to only Federal agency actions. Its 
requirements protect listed fishes only when a Federal permit or 
funding is involved; thus, its reach is limited. Neither DNR nor WDFW 
identified any potential impacts to our relationship or implementation 
of each conservation plan.
    For each rockfish DPS we considered the areas each conservation 
plan covered and the types of Federal activities in those areas that 
would likely undergo section 7 consultation. We also considered the 
degree to which DNR and WDFW believe the designation would affect the 
ongoing relationship that is essential to the continued successful 
implementation of the conservation plan and the extent to which 
exclusion provides an incentive to other entities.
    Based on our consideration, and given the following factors, we 
concluded that the benefits of excluding the areas covered by each 
conservation plan do not outweigh the benefits of designation. We 
considered the following factors in reaching this conclusion: (1) DNR 
and WDFW did not identify any impacts to our ongoing relationship, nor 
did they comment on

[[Page 68068]]

our proposed designation relative to their conservation plans and 
critical habitat; (2) DNR and WDFW did not identify any impacts of 
critical habitat designation to their implementation of the existing 
conservation plans; and (3) the DNR and WDFW conservation plans cover 
only a subset of activities that could affect rockfish critical habitat 
conducted by other entities such as private landowners, municipalities, 
and Federal agencies in the covered areas. Thus, designation would not 
impact our relationship with DNR and WDFW nor harm the implementation 
of their conservation plans. In general, designation would benefit 
rockfish conservation by enabling section 7 consultations for 
activities not covered by each conservation plan to ensure adverse 
modification is avoided by Federal activities.

Balancing Impacts to National Security

    Based on information provided by the three branches of the military 
on impacts to national security of potential critical habitat 
designations described above, we consulted with DOD to better 
understand the potential impact of designating critical habitat at 
these sites. The DOD confirmed that all of the security zones are used 
by the Navy, and confirmed the potential for critical habitat 
designation to impact national security by adversely affecting their 
ability to conduct operations, testing, training, and other essential 
military activities. The Navy letter identified several aspects of 
potential impacts from critical habitat designation that include the 
possible prevention, restriction, or delay of training or testing 
exercises and delayed response time for ship deployments. We had 
several conversations with the Navy subsequent to its letter to further 
understand its uses of the security zones concerns identified in its 
response letter, and any related habitat protections derived by Navy 
policies and initiatives. We also had further discussions with the Navy 
regarding the extent of the proposed designation associated with these 
sites. The Navy agreed to refine the delineation of offshore areas in 
Puget Sound where the Navy has established security zones. Similar to 
the salmonid critical habitat designation (NMFS, 2005) the Navy agreed 
that the military zone could be designated in all or a portion of the 
nearshore in one of their security zones that is not covered by an 
INRMP, and we clarified which areas of the nearshore are designated as 
critical habitat in our final 4(b)(2) report (see NMFS, 2014c) and in 
this final rule. Because many of the activities affecting rockfishes in 
the nearshore zone are land-based, this refinement allowed us to retain 
most of the conservation benefit of designating nearshore areas as 
critical habitat in one area while still retaining the benefit to 
national security of excluding offshore military areas (NMFS, 2014c).
    We balanced the conservation benefits of designation to rockfishes 
against the benefits of exclusion for security zones as ultimately 
defined by the Navy in the Puget Sound/Georgia Basin. Prior to the 
publication of the proposed rule (78 FR 47635; August 6, 2013) the Navy 
requested that 14 areas be excluded from critical habitat designation, 
including four in the San Juan/Strait of Juan de Fuca Basin, three in 
Hood Canal, two in the Whidbey Basin, four in the Main Basin, and one 
in South Puget Sound based on the impacts to national security. In 
response to the proposed rule the Navy clarified that Hood Canal and 
Dabob Bay Naval Non-Explosive Torpedo Testing Area and Dabob Bay, 
Whitney Point Naval Restricted Area are covered by the INRMP for Naval 
Station Kitsap. The Navy also clarified that the two Naval Restricted 
Areas in the Strait of Juan de Fuca, Eastern End; off the Westerly 
Shore of Whidbey Island, the Port Townsend, Indian Island, Walan Point 
Naval Restricted Area, Port Orchard Naval Restricted Area and the Puget 
Sound, Manchester Fuel Depot, Naval Restricted Area are also covered by 
an INRMP. For the security zones that occur solely within the nearshore 
we did not conduct the balancing exercise, as each falls completely 
within the provisions of the Sikes Act.
    The factors we consider relevant to assessing the impact to 
national security and the benefits of exclusion include: (1) The 
percent of the military area that would be designated; and (2) the 
importance of the area activity to national security and likelihood an 
activity would need to be changed to avoid adverse modification.
    The factors we consider relevant to assessing the benefits of 
designation to rockfish conservation include: (1) The percent of the 
nearshore and deepwater critical habitat that would be designated in 
that Basin; (2) uniqueness and conservation role of the habitat in 
particular DOD areas; (3) the likelihood that Navy activities would 
destroy or adversely modify critical habitat; and (4) the likelihood 
habitat would be adversely modified by other Federal or non-Federal 
activities, considering Navy protections (this factor considers the 
type and frequency of Navy actions that occur in each site and their 
potential effect on rockfish habitat features, which informs the 
benefit to conservation that would occur by a section 7 consultation 
that considers rockfish critical habitat).
    All but the quantitative factors were given a qualitative rating of 
high, medium, or low (NMFS, 2014c). Based on our analysis, we are 
excluding all but one of the areas requested by the Navy. We do not 
exclude Operating Area R-6713 (Navy 3). We contacted the Navy regarding 
its uses and concerns regarding our proposed critical habitat 
designation of this area, and assessed the additional information 
provided to us by the Navy. We continue to conclude that the benefits 
to national security of excluding this particular area do not outweigh 
the benefits to rockfish conservation of designating it. This area is a 
polygon off the western side of Naval Air Station Whidbey Island 
(appearing on NOAA Chart 18400) which is used in conjunction with the 
restricted area under 33 CFR 334.1180 for surface vessel training 
activities. For this area we found moderate benefits of exclusion to 
the Navy because the percent of the military area that would be 
designated is relatively small, the area is only sporadically used by 
the Navy, suggesting little value of the area to the Navy mission, and 
the additional analysis required for consultation addressing the 
potential for adverse modification is likely minimal (NMFS, 2014c). We 
found moderate benefits to designating the area as critical habitat 
because of the uniqueness and conservation role of the area, and the 
likelihood that habitat could be adversely modified by other Federal or 
non-Federal activities, and considering Navy restrictions on non-Navy 
activities (NMFS, 2014c). Because the benefit of exclusion does not 
outweigh the benefit of designation, we do not exclude Navy 3. The 
excluded areas total approximately 15.7 nearshore sq mi (40.7 sq km) 
and 20.1 square miles (52.1 sq km) of deepwater critical habitat.
    Critical habitat is designated in a narrow nearshore zone (from the 
extreme high tide datum down to MLLW) within the Admiralty Inlet Naval 
Restricted Area. Critical habitat is designated from extreme high tide 
to a depth of 30 meters at Carr Inlet Naval Restricted Area. The 
following Department of Defense areas are not included as critical 
habitat:
    (1) Small Arms Danger Zone off Western Side of Naval Air Station 
Whidbey Island and additional Accident Potential Zone restricted 
areas--In the waters located in the San Juan De Fuca Strait beginning 
on the beach of NAS Whidbey Island, Oak Harbor, Washington at latitude 
48[deg]19'20.00'' N, longitude 122[deg]42'6.92''

[[Page 68069]]

W; thence southerly, along the mean high water mark, to latitude 
48[deg]17'41'' N, longitude 122[deg]43'35'' W; thence southwesterly to 
latitude 48[deg]17'23'' N, longitude 122[deg]45'14'' W; thence 
northerly to latitude 48[deg]20'00'' N, longitude 122[deg]44'00'' W; 
thence easterly, landward to the point of origin. Accident Potential 
Zone Area No. 1 is bounded by a line commencing at latitude 
48[deg]20'57'' N, longitude 122[deg]40'39'' W; thence to latitude 
48[deg]20'40'' N, longitude 122[deg]42'59'' W; thence to latitude 
48[deg]21'19'' N, longitude 122[deg]43'02'' W; thence to latitude 
48[deg]21'13'' N, longitude 122[deg]40'26'' W; and thence along the 
shore line to the point of origin. Accident Potential Zone Area No. 2 
is bounded by a line commencing at latitude 48[deg]21'53'' N, longitude 
122[deg]40'00'' W; thence to latitude 48[deg]23'12'' N, longitude 
122[deg]41'17'' W; thence to latitude 48[deg]23'29'' N, longitude 
122[deg]40'22'' W; thence to latitude 48[deg]22'21'' N, longitude 
122[deg]39'50'' W; and thence along the shore line to the point of 
origin.
    (2) Strait of Juan de Fuca Naval Air-to-Surface Weapon Range 
Restricted Area--A circular area immediately west of Smith Island with 
a radius of 1.25 nautical mi (2.32 km) having its center at latitude 
48[deg]19'11'' N and longitude 122[deg]54'12'' W.
    (3) Hood Canal and Dabob Bay Naval Non-Explosive Torpedo Testing 
Area--All waters of Hood Canal between latitude 47[deg]46'00'' N and 
latitude 47[deg]42'00'' N, exclusive of navigation lanes one-fourth 
nautical mile (0.46 km) wide along the west shore and along the east 
shore south from the town of Bangor (latitude 47[deg]43'28'' N). All 
waters of Dabob Bay beginning at latitude 47[deg]39'27'' N, longitude 
122[deg]52'22'' W; thence northeasterly to latitude 47[deg]40'19'' N, 
longitude 122[deg]50'10'' W; thence northeasterly to a point on the 
mean high water line at Takutsko Pt.; thence northerly along the mean 
high water line to latitude 47[deg]48'00'' N; thence west on latitude 
47[deg]48'00'' N to the mean high water line on the Bolton Peninsula; 
thence southwesterly along the mean high water line of the Bolton 
Peninsula to a point on longitude 122[deg]51'06'' W; thence south on 
longitude 122[deg]51'06'' W to the mean high water line at Whitney Pt.; 
thence along the mean high water line to a point on longitude 
122[deg]51'15'' W; thence southwesterly to the point of beginning. The 
nearshore from Tsuktsko Pt. 47[deg]41'30.0'' N latitude, 
122[deg]49'48'' W longitude to the north at 47[deg]50'0.0'' N latitude, 
122[deg]47'30'' W longitude.
    (4) Admiralty Inlet Naval Restricted Area--This area begins at 
Point Wilson Light thence southwesterly along the coast line to 
latitude 48[deg]07'00'' N; thence northwesterly to a point at latitude 
48[deg]15'00'' N longitude 123[deg]00'00'' W; thence due east to 
Whidbey Island; thence southerly along the coast line to latitude 
48[deg]12'30'' N; thence southerly to the point of beginning.
    (5) Port Gardner, Everett Naval Base, Naval Restricted Area--The 
waters of Port Gardner and East Waterway surrounding Naval Station 
Everett begin at a point near the northwest corner of Naval Station 
Everett at latitude 47[deg]59'40'' N, longitude 122[deg]13'23.5'' W and 
thence to latitude 47[deg]59'40'' N, longitude 122[deg]13'30'' W ; 
thence to latitude 47[deg]59'20'' N, longitude 122[deg]13'33'' W ; 
thence to latitude 47[deg]59'13'' N, longitude 122[deg]13'38'' W; 
thence to latitude 47[deg]59'05.5'' N, longitude 122[deg]13'48.5'' W; 
thence to latitude 47[deg]58'51'' N, longitude 122[deg]14'04'' W; 
thence to latitude 47[deg]58'45.5'' N, longitude 122[deg]13'53'' W; 
thence to latitude 47[deg]58'45.5'' N, longitude 122[deg]13'44'' W; 
thence to latitude 47[deg]58'48'' N, longitude 122[deg]13'40'' W; 
thence to latitude 47[deg]58'59'' N, longitude 122[deg]13'30'' W; 
thence to latitude 47[deg]59'14'' N, longitude 122[deg]13'18'' W (Point 
11); thence to latitude 47[deg]59'13'' N, longitude 122[deg]13'12'' W; 
thence to latitude 47[deg]59'20'' N, longitude 122[deg]13'08'' W; 
thence to latitude 47[deg]59'20'' N, longitude 122[deg]13'02.5'' W, a 
point upon the Naval Station's shore in the northeast corner of East 
Waterway.
    (6) Hood Canal, Bangor Naval Restricted Areas--The Naval restricted 
area described in 33 CFR 334.1220 has two areas. Area No. 1 is bounded 
by a line commencing on the east shore of Hood Canal in relation to the 
property boundary and area No. 2 encompasses waters of Hood Canal with 
a 1,000 yard (0.91 km) radius diameter from a central point. Area No. 1 
is bounded by a line commencing on the east shore of Hood Canal at 
latitude 47[deg]46'18'' N longitude 122[deg]42'18'' W; thence to 
latitude 47[deg]46'32'' N, longitude 122[deg]42'20'' W; thence to 
latitude 47[deg]46'38'' N, longitude 122[deg]42'52'' W; thence to 
latitude 47[deg]44'15'' N, longitude 122[deg]44'50'' W; thence to 
latitude 47[deg]43'53'' N, longitude 122[deg]44'58'' W; thence to 
latitude 47[deg]43'17'' N, longitude 122[deg]44'49'' W. Area 2 is 
waters of Hood Canal within a circle of 1,000 yards (0.91 km) diameter 
centered on a point located at latitude 47[deg]46'26'' N, longitude 
122[deg]42'49'' W.
    (7) Port Orchard Naval Restricted Area--The Naval restricted area 
described in 33 CFR 334.1230 is shoreward of a line beginning at a 
point on the west shoreline of Port Orchard bearing 90[deg] from stack 
(at latitude 47[deg]42'01'' N, longitude 122[deg]36'54'' W); thence 
90[deg], approximately 190 yards (174 m), to a point 350 yards (320 m) 
from stack; thence 165[deg], 6,000 yards (5.49 km), to a point bearing 
179[deg], 1,280 yards (1.17 km), from Battle Point Light; thence 
westerly to the shoreline at latitude 47[deg]39'08'' N (approximate 
location of the Brownsville Pier).
    (8) Sinclair Inlet Naval Restricted Areas--The Naval restricted 
area described in 33 CFR 334.1240 to include: Area No. 1--All the 
waters of Sinclair Inlet westerly of a line drawn from the Bremerton 
Ferry Landing at latitude 47[deg]33'48'' N, longitude 122[deg]37'23'' 
W; on the north shore of Sinclair Inlet and latitude 47[deg]32'52'' N, 
longitude 122[deg]36'58'' W; on the south shore of Sinclair Inlet; and 
Area No. 2--That area of Sinclair Inlet to the north and west of an 
area bounded by a line commencing at latitude 47[deg]33'43'' N, 
longitude 122[deg]37'31'' W thence south to latitude 47[deg]33'39'' N, 
longitude 122[deg]37'27'' W thence southwest to latitude 47[deg]33'23'' 
N, longitude 122[deg]37'45'' W thence southwest to latitude 
47[deg]33'19'' N, longitude 122[deg]38'12'' W thence southwest to 
latitude 47[deg]33'10'' N, longitude 122[deg]38'19'' W thence southwest 
to latitude 47[deg]33'07'' N, longitude 122[deg]38'29'' W thence west 
to latitude 47[deg]33'07'' N, longitude 122[deg]38'58'' W thence 
southwest to latitude 47[deg]33'04'' N, longitude 122[deg]39'07'' W 
thence west to the north shore of Sinclair Inlet at latitude 
47[deg]33'04.11'' N, longitude 122[deg]39'41.92'' W.
    (9) Dabob Bay, Whitney Point Naval Restricted Area--The Naval 
restricted area described in 33 CFR 334.1260 beginning at the high 
water line along the westerly shore of Dabob Bay at the Naval Control 
Building located at latitude 47[deg]45'36'' N and longitude 
122[deg]51'00'' W. The western shoreline boundary is 100 yards (91 m) 
north and 100 yards (91 m) south from that point. From the north and 
south points, go eastward 2,000 yards (1.83 km) into Dabob Bay. The 
eastern boundary is a virtual vertical line between the two points (200 
yards (189.2 m) in length).
    (10) Carr Inlet, Naval Restricted Area--The Naval restricted area 
described in 33 CFR 334.1250 to include: The area in the Waters of Carr 
Inlet bounded on the southeast by a line running from Gibson Point on 
Fox Island to Hyde Point on McNeil Island, on the northwest by a line 
running from Green Point (at latitude 47[deg]16'54'' N, longitude 
122[deg]41'33'' W) to Penrose Point; plus that portion of Pitt Passage

[[Page 68070]]

extending from Carr Inlet to Pitt Island, and that portion of Hale 
Passage extending from Carr Inlet southeasterly to a line drawn 
perpendicular to the channel 500 yards (457 m) northwesterly of the Fox 
Island Bridge.
    (11) Port Townsend, Indian Island, Walan Point Naval Restricted 
Area--The Naval restricted area described in 33 CFR 334.1270 to 
include: The waters of Port Townsend Bay bounded by a line commencing 
on the north shore of Walan Point at latitude 48[deg]04'42'' N, 
longitude 122[deg]44'30'' W; thence to latitude 48[deg]04'50'' N, 
longitude 122[deg]44'38'' W; thence to latitude 48[deg]04'52'' N, 
longitude 122[deg]44'57'' W; thence to latitude 48[deg]04'44'' N, 
longitude 122[deg]45'12'' W; thence to latitude 48[deg]04'26'' N, 
longitude 122[deg]45'21'' W; thence to latitude 48[deg]04'10'' N, 
longitude 122[deg]45'15'' W; thence to latitude 48[deg]04'07'' N, 
longitude 122[deg]44'49'' W; thence to a point on the Walan Point 
shoreline at latitude 48[deg]04'16'' N, longitude 122[deg]44'37'' W.
    (12) NAS Whidbey Island, Crescent Harbor--The waters of Puget Sound 
adjacent to Whidbey Island Naval Air Station that include: the waters 
of Crescent Harbor starting at Maylor Point at latitude 48[deg]16'4'' 
N, longitude 122[deg]37'28'' W; thence to 6/10 mile (0.97 km) south of 
Maylor Point latitude 48[deg]15'32'' N, longitude 122[deg]37'28'' W; 
thence to 6/10 mile (0.97 km) south of Polnell Point latitude 
48[deg]15'47'', longitude 122[deg]33'25'' W; thence to 500 ft (152 m) 
southeast of Polnell Point latitude 48[deg]16'16'' N, longitude 
122[deg]33'27'' W; thence to Polnell Point latitude 48[deg]16'19'' N, 
longitude 122[deg]33'34'' W.
    (13) Puget Sound, Manchester Fuel Depot, Naval Restricted Areas--
The waters of Puget Sound surrounding the Manchester Fuel Depot bounded 
by a line commencing along the northern shoreline of the Manchester 
Fuel Depot at latitude 47[deg]33'55'' N, longitude 122[deg]31'55'' W; 
thence to latitude 47[deg]33'37'' N, longitude 122[deg]31'50'' W; 
thence to latitude 47[deg]33'32'' N, longitude 122[deg]32'06'' W; 
thence to latitude 47[deg]33'45.9'' N, longitude 122[deg]32'16.04'' W, 
a point in Puget Sound on the southern shoreline of the Manchester Fuel 
Depot then back to the original point.

Exclusion Will Not Result in Extinction of the Species

    Section 4(b)(2) of the ESA limits our discretion to exclude areas 
from designation if exclusion will result in extinction of the species. 
We have not excluded any habitat areas based on economic impacts or 
10(a)(1)(B) permits (conservation plans). We have excluded 64.1 lineal 
mi (103.1 km) of marine habitat adjacent to Indian lands and 
approximately 35.8 sq mi (92.7 sq km) of marine habitat area (15.7 sq 
mi of nearshore, 20.1 sq mi of deepwater) controlled by the Navy as 
described above. We conclude that excluding Indian lands--and thereby 
furthering the Federal government's policy of promoting respect for 
tribal sovereignty and self-governance--in addition to several areas 
controlled by the Navy, will not result in extinction of listed 
rockfishes. Listed rockfish habitat on Indian lands represents a small 
proportion of total area occupied by these DPSs, and the Tribes are 
actively engaged in fisheries management, habitat management and Puget 
Sound ecosystem recovery programs that benefit listed rockfishes.
    Listed rockfish habitat within areas controlled by the Navy 
represents approximately 8 percent of the nearshore area and 
approximately 6 percent of the deepwater area we determined to have 
essential features. In addition to the small size of these exclusions, 
the Navy actively seeks to protect actions that would impact their 
mission and these protections provide ancillary protections to rockfish 
habitat by restricting actions that may harm the Navy mission and 
rockfishes in the respective area (NMFS, 2014c). Thus the benefit of 
designating these areas as critical habitat would be reduced.
    For the following reasons, we conclude that the exclusions 
described above, in combination, will not result in the extinction of 
the yelloweye rockfish, canary rockfish or bocaccio DPSs: (1) The 
Indian land exclusions involve nearshore habitats that are already 
managed by the tribes for conservation; (2) the Navy exclusions involve 
nearshore and deepwater habitats that are already afforded some 
protections by the Navy, and (3) the extent of Indian lands exclusions 
and Navy exclusions are spread amongst each of the five biogeographic 
Basins of Puget Sound, and cumulatively total a fraction of the overall 
habitats that have essential features for listed rockfishes.

Critical Habitat Designation

    In total we designate approximately 590.4 square miles (1,529 sq 
km) of nearshore habitat for canary rockfish and bocaccio, and 414.1 sq 
mi (1,072.5 sq km) of deepwater habitat for yelloweye rockfish, canary 
rockfish and bocaccio within the geographical area occupied by the DPSs 
(Figures 2 and 3). Aside from some deepwater areas designated as 
critical habitat for rockfishes in Hood Canal, all other critical 
habitat overlaps with designated critical habitat for other species.
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    Other co-occurring ESA-listed species with designated critical 
habitat that, collectively, almost completely overlap with rockfish 
critical habitat include Pacific salmon (70 FR 52630; September 2, 
2005), North American green sturgeon (74 FR 52300; October 9, 2009), 
Southern Resident killer whales (71 FR 69054; November 29, 2006), and 
bull trout (75 FR 63898; October 18, 2010). The areas designated are 
all within the geographical area occupied by the species and contain 
physical and biological features essential to the conservation of the 
species and that may require special management considerations or 
protection. No unoccupied areas were identified that are considered 
essential for the conservation of the species. All of the areas 
designated have high conservation value (NMFS, 2014a). As a result of 
the balancing process for some military

[[Page 68073]]

areas and tribal areas described above, we are proposing to exclude 
from the designation small areas listed in Table 2 (see Figures 2 and 3 
for locations of tribal lands). As a result of the balancing process 
for tribal areas we concluded that the benefits of excluding these 
areas outweigh the benefits of designation (NMFS, 2014c). As a result 
of the balancing process for economic impacts described above, we 
conclude that the economic benefit of excluding any of these particular 
areas does not outweigh the conservation benefit of designation. 
Therefore none of the areas were eligible for exclusion based on 
economic impacts. As a result of the balancing process for areas 
covered by Conservation Plans we concluded that the benefits of 
excluding the areas covered by each conservation plan do not outweigh 
the benefits of designation (NMFS, 2014c).
    On May 1, 2012, NMFS and the USFWS revised the critical habitat 
implementing regulations to eliminate the requirement to publish 
textual descriptions of proposed (NMFS only) and final (NMFS and USFWS) 
critical habitat boundaries in the Regulation Promulgation section of 
the Federal Register for codification and printing in the CFR (77 FR 
25611; May 1, 2012). The regulations instead provide that the map(s), 
as clarified or refined by any textual language within the preamble of 
the proposed or final rule, constitutes the definition of the 
boundaries of a critical habitat (50 CFR 17.94(b), 226.101, 424.12(c), 
424.16(b) and (c)(1)(ii), and 424.18(a)). The revised regulations 
provide that the boundaries of critical habitat as mapped or otherwise 
described in the Regulation Promulgation section of a rulemaking 
published in the Federal Register will be the official delineation of 
the designation (50 CFR 424.12). In this final designation we include 
some latitude-longitude coordinates (to delineate certain DOD 
controlled security zone boundaries) to provide clarity on the location 
of DOD areas excluded, but also rely on the maps to depict critical 
habitat for yelloweye rockfish, canary rockfish and bocaccio. The GIS 
data from which the maps have been generated are included in the 
administrative record and located on our Web site.
    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.'' We conducted a review of the 
documented occurrences of each listed rockfish in the five 
biogeographic Basins (NMFS, 2014a). We found that each of the Basins is 
currently occupied by yelloweye rockfish, canary rockfish, and 
bocaccio. We have not identified any unoccupied areas as candidates for 
critical habitat designation.

       Table 2--Habitat Areas Within the Geographical Range of for Yelloweye Rockfish, Canary Rockfish and Bocaccio Exclused From Critical Habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Total
                                                         annualized                         DOD areas  excluded      Indian lands       Exclusions for
          Specific area            Conservation value     estimated          Economic          from  critical       exclusions  by     conservation plan
                                                          economic          exclusions            habitat            ``particular       permit holders
                                                        impacts  (7%)                                                  areas''
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Juan/Straits of Juan de Fuca  High...............         $32,100  No.................  Yes................  Yes................  No.
Whidbey Basin...................  High...............          30,100  No.................  Yes................  Yes................  No.
Main Basin......................  High...............          29,000  No.................  Yes................  Yes................  No.
Hood Canal......................  High...............          10,200  No.................  Yes................  Yes................  No.
South Puget Sound...............  High...............          21,200  No.................  Yes................  Yes................  No.
Totals..........................  na.................         123,000  0..................  20.1 sq mi           64.1 lineal mi.....  0.
                                                                                             deepwater.
                                                                                            15.7 sq mi
                                                                                             nearshore.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Effects of Critical Habitat Designation

    Section 7(a)(2) of the ESA requires Federal agencies to ensure that 
any action authorized, funded, or carried out by the agency (agency 
action) is not likely to 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 or that may affect the species 
or its critical habitat. During the consultation, we evaluate the 
agency action to determine whether the action may adversely affect 
listed species or critical habitat and issue our findings in a 
biological opinion or concurrence letter. If we conclude in the 
biological opinion that the agency action would likely result in the 
destruction or adverse modification of critical habitat, we would also 
recommend any reasonable and prudent alternatives to the action. 
Reasonable and prudent alternatives (defined in 50 CFR 402.02) are 
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 a 
consultation or conference with us on actions for which formal 
consultation has been completed,

[[Page 68074]]

if those actions may affect designated critical habitat or adversely 
modify or destroy 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 Clean Water 
Act, Section 404 dredge or fill permit from U.S. Army Corps of 
Engineers (USACE)) or some other Federal action, including funding 
(e.g., Federal Highway Administration funding for transportation 
projects). ESA section 7 consultation would not be required for Federal 
actions that are not likely to affect listed species or critical 
habitat and for actions on non-Federal and private lands that are not 
Federally funded, authorized, or carried out.

Activities Affected by Critical Habitat Designation

    ESA section 4(b)(8) requires in any final regulation to designate 
critical habitat an evaluation and brief description of those 
activities (whether public or private) that may adversely modify such 
habitat or that may be affected by such designation. A wide variety of 
activities may affect the critical habitat and may be subject to the 
ESA section 7 consultation process when carried out, funded, or 
authorized by a Federal agency. These include water and land management 
actions of Federal agencies (e.g., the Department of Defense, USACE, 
the Department of Defense, the Federal Energy Regulatory Commission, 
and the Environmental Protection Agency and related or similar 
federally regulated projects). Other actions of concern include 
dredging and filling, and bank stabilization activities authorized or 
conducted by the USACE, and approval of water quality standards and 
pesticide labeling and use restrictions administered by the EPA.
    Private or non-Federal entities may also be affected by these 
critical habitat designations if the activity requires a Federal 
permit, receives Federal funding, or the entity is involved in or 
receives benefits from a Federal project. For example, private entities 
may need Federal permits to build or repair a bulkhead, or install an 
artificial reef. These activities will need to be evaluated with 
respect to their potential to destroy or adversely modify critical 
habitat for yelloweye rockfish, canary rockfish, or bocaccio of the 
Puget Sound/Georgia Basin.
    Questions regarding whether specific activities will constitute 
destruction or adverse modification of critical habitat should be 
directed to NMFS (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).

Information Quality Act and Peer Review

    The data and analyses supporting this action have undergone a pre-
dissemination review and have been determined to comply with applicable 
information quality guidelines implementing the Information Quality Act 
(IQA) (Section 515 of Public Law 106-554). In December 2004, OMB issued 
a Final Information Quality Bulletin for Peer Review pursuant to the 
IQA. The Bulletin was published in the Federal Register on January 14, 
2005 (70 FR 2664). The Bulletin established minimum peer review 
standards, a transparent process for public disclosure of peer review 
planning, and opportunities for public participation with regard to 
certain types of information disseminated by the Federal Government. 
The peer review requirements of the OMB Bulletin apply to influential 
or highly influential scientific information disseminated on or after 
June 16, 2005. Two documents supporting these critical habitat 
proposals are considered influential scientific information and subject 
to peer review. These documents are the Biological Report (NMFS, 2014a) 
and the Economic Analysis (NMFS, 2014b). We distributed the draft 
Biological Report for peer review and addressed comments in the 
proposed critical habitat rule. We distributed the draft Economic 
Analysis for peer review, however, we did not receive any peer review 
comments. The peer review report for the draft Biological Report is 
available on our Web site at http://www.wcr.noaa.gov, or upon request 
(see ADDRESSES).

Classification

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996), whenever an agency publishes a notice of rulemaking for any 
proposed or final rule, it must prepare and make available for public 
comment a regulatory flexibility analysis describing the effects of the 
rule on small entities (i.e., small businesses, small organizations, 
and small government jurisdictions). We have prepared a final 
regulatory flexibility analysis, which is part of the final Economic 
Analysis (NMFS, 2014b). This document is available upon request (see 
ADDRESSES), via our Web site at http://wcr.noaa.gov. The results of the 
regulatory flexibility analysis are summarized below.
    The impacts to small businesses were assessed for the following 
broad categories of activities: utilities, nearshore work, 
transportation, water quality and other activities. Small entities were 
defined by the Small Business Administration size standards for each 
activity type, which were updated for Finfish fishing, shellfish 
fishing, and Other Marine Fishing (78 FR 37398; June 20, 2013). Taking 
this change as well as public comment into consideration, we have 
identified no additional significant alternatives that accomplish 
statutory objectives and minimize any significant economic impacts of 
the final rule on small entities. We do not forecast any costs to small 
entities related to utilities projects because the only consultation 
associated with utilities are pre-consultation/technical assistance and 
programmatic consultations, which do not include any cost to third 
parties; therefore, we do not expect any impacts to small entities 
related to utilities.
    We estimated the annualized costs associated with ESA section 7 
consultations incurred per small business under a scenario intended to 
provide a measure of uncertainty regarding the number of small entities 
that may be affected by the designations for each project category 
(NMFS, 2014c). It is uncertain whether small entities will be project 
proponents for these types of consultations, so the analysis 
conservatively assumes that all consultations will be undertaken by 
small entities, and that all such consultation will be formal. Under 
these assumptions, the costs to entities engaged in nearshore work are 
an estimated $27,000 annually, or $1,900 per entity. This cost 
represents less than 0.1 percent of annual revenues in this sector. The 
costs to entities engaged in transportation projects are an estimated 
$46,000 annually, or $7,700 for entities in this sector. This cost 
represents 0.29 percent of annual revenues. The costs to entities 
engaged in water quality projects is an estimated $23,000 annually, or 
$9,100 per entity. This cost represents 1.3 percent of annual revenues 
for entities in this sector. The costs for other entities, including 
fishing, would be approximately $18,000 annually, or $2,600 per entity. 
This cost represents 1.1 percent of annual revenues for entities in 
this sector.
    In accordance with the requirements of the Regulatory Flexibility 
Act (as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996) this analysis considered various

[[Page 68075]]

alternatives to the critical habitat designations for these DPSs. These 
alternatives are described in the preamble above, and in the full 
Economic Analysis (see ADDRESSES). The alternative of not designating 
critical habitat for these DPSs was considered and rejected because 
such an approach does not meet the legal requirements of the ESA.

Executive Order 12866

    At the guidance of OMB and in compliance with Executive Order 
12866, ``Regulatory Planning and Review,'' Federal agencies measure 
changes in economic efficiency in order to understand how society, as a 
whole, will be affected by a regulatory action. Our analysis of 
economic impacts can be found in NMFS (2014b), and this rule has been 
determined to be not significant under Executive Order 12866.

Executive Order 13211

    On May 18, 2001, the President issued an executive order on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking any action that promulgates or is 
expected to lead to the promulgation of a final rule or regulation that 
(1) is a significant regulatory action under Executive Order 12866 and 
(2) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy.
    We have considered the potential impacts of this action on the 
supply, distribution, or use of energy and find the designation of 
critical habitat will not have impacts that exceed the thresholds 
identified above (NMFS, 2014b).

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act, NMFS makes the 
following findings:
    (a) This final rule will not produce a Federal mandate. In general, 
a Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon state, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to state, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the state, local, or tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement.)
    ``Federal private sector mandate'' includes a regulation that 
``would impose an enforceable duty upon the private sector, except (i) 
a condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.'' The designation of 
critical habitat does not impose a legally binding duty on non-Federal 
government entities or private parties. Under the ESA, the only 
regulatory effect is that Federal agencies must ensure that their 
actions do not destroy or adversely modify critical habitat under 
section 7. While non-Federal entities which receive Federal funding, 
assistance, permits or otherwise require approval or authorization from 
a Federal agency for an action may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency. 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 existing protection afforded to the designated 
critical habitat from existing critical habitat for salmon (70 FR 
52630; September 2, 2005), Southern DPS of green sturgeon (74 FR 52300; 
October 9, 2009), bull trout (70 FR 56212; September 26, 2005), and the 
southern resident killer whale (71 FR 69054; November 29, 2006), we do 
not anticipate that this rule will significantly or uniquely affect 
small governments. As such, a Small Government Agency Plan is not 
required.

Takings

    Under Executive Order 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 Executive 
Order 12630, this final rule does not have significant takings 
implications. A takings implication assessment is not required. The 
designation of critical habitat affects only Federal agency actions. We 
do not expect the critical habitat designations will impose additional 
burdens on land use or affect property values. Additionally, the 
critical habitat designations do not preclude the development of 
Conservation Plans and issuance of incidental take permits for non-
Federal actions. Owners of areas included within the critical habitat 
designations would continue to have the opportunity to use their 
property in ways consistent with the survival of listed rockfishes.

Federalism

    In accordance with Executive Order 13132, we determined that this 
final rule does not have significant Federalism effects and that a 
Federalism assessment is not required. In keeping with Department of 
Commerce policies, we request information from, and will continue to 
coordinate with, appropriate state resource agencies in Washington 
regarding this critical habitat designation. The designations 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 essential features of the habitat necessary for the survival of 
the subject DPSs are specifically identified. It may also assist local 
governments in long-range planning (rather than waiting for case-by-
case ESA section 7 consultations to occur).

Government-to-Government Relationship With Tribes

    Pursuant to Executive Order 13175 and Secretarial Order 3206, we 
contacted the affected Indian Tribes when considering the designation 
of critical habitat in an area that may impact tribal trust resources, 
tribally owned fee lands or the exercise of tribal rights. The 
responding tribes expressed

[[Page 68076]]

concern about the intrusion into tribal sovereignty that critical 
habitat designation represents. These concerns are consistent with 
previous responses from tribes when we developed critical habitat 
designations for salmon and steelhead in 2005 (70 FR 52630; September 
2, 2005). The Secretarial Order defines Indian lands as ``any lands 
title to which is either: (1) Held in trust by the United States for 
the benefit of any Indian tribe or (2) held by an Indian Tribe or 
individual subject to restrictions by the United States against 
alienation.'' Our conversations with the tribes indicate that they view 
the designation of Indian lands as an unwanted intrusion into tribal 
self-governance, compromising the government-to-government relationship 
that is essential to achieving our mutual goal of conserving listed 
rockfishes.
    For the general reasons described in the Impacts to Tribal 
Sovereignty and Self-Governance section above, the ESA Section 4(b)(2) 
analysis has led us to exclude of all Indian lands in our critical 
habitat designations for yelloweye rockfish, canary rockfish, and 
bocaccio.

Civil Justice Reform

    The Department of Commerce has determined that this final rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of Executive Order 12988. We are designating 
critical habitat in accordance with the provisions of the ESA. This 
rule uses standard property descriptions and identifies the essential 
features within the designated areas to assist the public in 
understanding the habitat needs of yelloweye rockfish, canary rockfish, 
and bocaccio of the Puget Sound/Georgia Basin.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This final rule does not contain new or revised information 
collection requirements for which OMB approval is required under the 
Paperwork Reduction Act (PRA). This rule will not impose recordkeeping 
or reporting requirements on state or local governments, individuals, 
businesses, or organizations. Notwithstanding any other provision of 
the law, no person is required to respond to, nor shall any person be 
subject to a penalty for failure to comply with, a collection of 
information subject to the requirements of the PRA, unless that 
collection of information displays a currently valid OMB Control 
Number.

National Environmental Policy Act of 1969 (NEPA)

    We have determined that an environmental analysis as provided for 
under NEPA is not required for critical habitat designations made 
pursuant to the ESA. See Douglas County v. Babbitt, 48 F.3d 1495 (9th 
Cir. 1995), cert. denied, 116 S. Ct. 698 (1996).

Coastal Zone Management Act (CZMA)

    Under section 307(c)(1)(A) of the CZMA (16 U.S.C. 1456(c)(1)(A)) 
and its implementing regulations, each Federal activity within or 
outside the coastal zone that has reasonably foreseeable effects on any 
land or water use or natural resource of the coastal zone shall be 
carried out in a manner which is consistent to the maximum extent 
practicable with the enforceable policies of approved State coastal 
management programs. We have determined that any coastal effects of 
this proposed designation of critical habitat on Washington State 
coastal uses and resources are not reasonably foreseeable at this time. 
This proposed designation does not restrict any coastal uses, affect 
land ownership, or establish a refuge or other conservation area; 
rather the designation only affects the ESA section 7 consultation 
process. Through the consultation process, we will receive information 
on proposed Federal actions and their effects on listed rockfishes and 
the designated critical habitat upon which we base our consultation. It 
will then be up to the Federal action agencies to decide how to comply 
with the ESA in light of our opinion, as well as to ensure that their 
actions comply with the CZMA's Federal consistency requirement. At this 
time, we do not anticipate that this designation is likely to result in 
any additional management measures by other Federal agencies. We have 
determined that this proposed designation of critical habitat is 
consistent to the maximum extent practicable with the enforceable 
policies of the approved coastal management programs of Washington 
State. The determination has been submitted to the responsible agencies 
in the aforementioned states for review.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on our Web site at http://www.wcr.noaa.gov/ and is available upon 
request from the NMFS office in Seattle, Washington (see ADDRESSES).

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: November 3, 2014.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 226 is amended 
to read as follows:

PART 226--DESIGNATED CRITICAL HABITAT

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

    Authority:  16 U.S.C. 1533.


0
2. Add Sec.  226.224 to read as follows;


Sec.  226.224  Critical habitat for the Puget Sound/Georgia Basin DPS 
of yelloweye rockfish (Sebastes ruberrimus), canary rockfish (S. 
pinniger), and bocaccio (S. paucispinus).

    Critical habitat is designated in the following states and counties 
for the following DPSs as depicted in the maps below and described in 
paragraphs (a) through (d) of this section. The maps can be viewed or 
obtained with greater resolution (http://www.wcr.noaa.gov/) to enable a 
more precise inspection of critical habitat for yelloweye rockfish, 
canary rockfish and bocaccio.
    (a) Critical habitat is designated for the following DPSs in the 
following state and counties:

------------------------------------------------------------------------
                  DPS                             State-counties
------------------------------------------------------------------------
Yelloweye rockfish.....................  Wa--San Juan, Whatcom, Skagit,
                                          Island, Clallam, Jefferson
                                          Snohomish, King, Pierce,
                                          Kitsap, Thurston, Mason.
Canary rockfish........................  Wa--San Juan, Whatcom, Skagit,
                                          Island, Clallam, Jefferson
                                          Snohomish, King, Pierce,
                                          Kitsap, Thurston, Mason.
Bocaccio...............................  Wa--San Juan, Whatcom, Skagit,
                                          Island, Clallam, Jefferson
                                          Snohomish, King, Pierce,
                                          Kitsap, Thurston, Mason.
------------------------------------------------------------------------

    (b) Critical habitat boundaries. In delineating nearshore 
(shallower than 30 m (98 ft)) areas in Puget Sound, we define critical 
habitat for canary rockfish and bocaccio, as depicted in the maps 
below, as occurring from the shoreline from extreme high water out to a 
depth no greater than 30 m (98 ft) relative to mean lower low water.

[[Page 68077]]

Deepwater critical habitat for yelloweye rockfish, canary rockfish and 
bocaccio occurs in some areas, as depicted in the maps below, from 
depths greater than 30 m (98 ft). The critical habitat designation 
includes the marine waters above (the entire water column) the 
nearshore and deepwater areas depicted in the maps below.
    (c)(1) Essential features for juvenile canary rockfish and 
bocaccio. Juvenile settlement habitats located in the nearshore with 
substrates such as sand, rock and/or cobble compositions that also 
support kelp are essential for conservation because these features 
enable forage opportunities and refuge from predators and enable 
behavioral and physiological changes needed for juveniles to occupy 
deeper adult habitats. Several attributes of these sites determine the 
quality of the area and are useful in considering the conservation 
value of the associated feature and in determining whether the feature 
may require special management considerations or protection. These 
features also are relevant to evaluating the effects of an action in an 
ESA section 7 consultation if the specific area containing the site is 
designated as critical habitat. These attributes include:
    (i) Quantity, quality, and availability of prey species to support 
individual growth, survival, reproduction, and feeding opportunities; 
and
    (ii) Water quality and sufficient levels of dissolved oxygen to 
support growth, survival, reproduction, and feeding opportunities.
    (2) Nearshore areas are contiguous with the shoreline from the line 
of extreme high water out to a depth no greater than 30 meters (98 ft) 
relative to mean lower low water.
    (d) Essential features for adult canary rockfish and bocaccio, and 
adult and juvenile yelloweye rockfish. Benthic habitats and sites 
deeper than 30 m (98 ft) that possess or are adjacent to areas of 
complex bathymetry consisting of rock and or highly rugose habitat are 
essential to conservation because these features support growth, 
survival, reproduction, and feeding opportunities by providing the 
structure for rockfish to avoid predation, seek food and persist for 
decades. Several attributes of these sites determine the quality of the 
habitat and are useful in considering the conservation value of the 
associated feature, and whether the feature may require special 
management considerations or protection. These attributes are also 
relevant in the evaluation of the effects of a proposed action in an 
ESA section 7 consultation if the specific area containing the site is 
designated as critical habitat. These attributes include:
    (1) Quantity, quality, and availability of prey species to support 
individual growth, survival, reproduction, and feeding opportunities;
    (2) Water quality and sufficient levels of dissolved oxygen to 
support growth, survival, reproduction, and feeding opportunities; and
    (3) The type and amount of structure and rugosity that supports 
feeding opportunities and predator avoidance.
BILLING CODE 3510-22-P

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[FR Doc. 2014-26558 Filed 11-12-14; 8:45 am]
BILLING CODE 3510-22-C