29300 Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 0808061060–9710–02] 

RIN 0648–AW77 

Endangered and Threatened Species; 

Designation of Critical Habitat for 

Atlantic Salmon (Salmo salar) Gulf of 

Maine Distinct Population Segment 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration, 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), issue a final 

rule designating critical habitat for the 

Atlantic salmon (Salmo salar) Gulf of 

Maine Distinct Population Segment 

(GOM DPS). We previously determined 

that naturally spawned and several 

hatchery populations of Atlantic salmon 

which constitute the GOM DPS warrant 

listing as endangered under the 

Endangered Species Act of 1973, as 

amended (ESA). We are required to 

designate critical habitat for the GOM 

DPS as a result of this listing. We hereby 

designate as critical habitat 45 specific 

areas occupied by Atlantic salmon at the 

time of listing that comprise 

approximately 19,571 km of perennial 

river, stream, and estuary habitat and 

799 square km of lake habitat within the 

range of the GOM DPS and in which are 

found those physical and biological 

features essential to the conservation of 

the species. The entire occupied range 

of the GOM DPS in which critical 

habitat is designated is within the State 

of Maine. We exclude approximately 

1,256 km of river, stream, and estuary 

habitat and 100 square km of lake 

habitat from critical habitat pursuant to 

section 4(b)(2) of the ESA. 

DATES: This rule becomes effective July 

20, 2009. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, are available for public 

inspection by appointment, during 

normal business hours, at the National 

Marine Fisheries Service, NMFS, 

Protected Resources Division, 55 Great 

Republic Drive, Gloucester, MA 01930– 

2276. The final rule, maps, and other 

materials relating to these designations 

can be found on our Web site at: 

http://www.nero.noaa.gov/prot_res/ 

altsalmon/. 

FOR FURTHER INFORMATION CONTACT: Dan 

Kircheis, National Marine Fisheries 

Service, Maine Field Station, 17 Godfrey 

Drive, Orono, ME 04473 at (207) 866– 

7320, or Marta Nammack at (301) 713– 

1401 ext. 180. 

SUPPLEMENTARY INFORMATION: 

Organization of the Final Rule: 

This final rule describes the critical 

habitat designation for the GOM DPS of 

Atlantic salmon under the ESA. The 

pages that follow summarize the 

comments and information received in 

response to the proposed designation 

published on September 5, 2008 (73 FR 

51747), describe any changes from the 

proposed designation, and detail the 

final designation for the GOM DPS of 

Atlantic salmon. To assist the reader, 

the content of the document is 

organized as follows: 

I. Background and Previous Federal Action 

II. Summary of Comments and Responses 

Biological Valuation 

Economic Analysis 

4(b)(2) Exclusion Analysis 

Miscellaneous Comments 

Comments Not Relevant to This Rule 

Remarks 

III. Summary of Revisions 

IV. Methods and Criteria Used to Identify 

Critical Habitat 

Atlantic Salmon Life History 

Identify the Geographic Area Occupied by 

the Species and Specific Areas Within 

the Geographic Area 

Physical and Biological Features in 

Freshwater and Estuary Specific Areas 

Essential to the Conservation of the 

Species 

Special Management Considerations or 

Protections 

Specific Areas Outside the Geographic 

Area Occupied by the Species * * * 

Essential to the Conservation of the 

Species 

Criteria 

V. Application of ESA Section 4(a)(3)(B)(i) 

(Military Lands) 

VI. Application of ESA Section 4(b)(2) 

Assigning Biological Value 

Consideration of Economic Impacts, 

Impacts to National Security, and Other 

Relevant Impacts 

Economic Impacts 

National Security and Other Relevant 

Impacts in Relation to Military Interests 

Other Relevant Impacts: Tribal Lands 

Determine Whether Exclusions Will Result 

in the Extinction of the Species 

VII. Effects of Critical Habitat 

ESA Section 7 Consultation 

Activities That May Be Affected (Section 

4(b)(8)) 

VIII. Classification 

Regulatory Planning and Review 

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

seq.) 

Information Quality Act (IQA) (Section 515 

of Pub. L. 106.554) 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

National Environmental Policy Act 

Federalism 

Takings 

IX. References Cited 

I. Background and Previous Federal 

Action 

We are responsible for determining 

whether a species, subspecies, or 

distinct population segment (DPS) of 

Atlantic salmon (Salmo salar) is 

threatened or endangered, and for 

designating critical habitat for the 

species, subspecies, or DPS under the 

ESA (16 U.S.C. 1531 et seq.). To qualify 

as a DPS, an Atlantic salmon population 

must be substantially reproductively 

isolated from other conspecific 

populations and represent an important 

component in the evolutionary legacy of 

the biological species. 

We are also responsible for 

designating critical habitat for species 

listed under our jurisdiction. Section 3 

of the ESA defines critical habitat as (1) 

specific areas within the geographical 

area occupied by the species at the time 

of listing, on which are found those 

physical or biological features that are 

essential to the conservation of the 

listed species and that may require 

special management considerations or 

protection, and (2) specific areas outside 

the geographical area occupied by the 

species at the time of listing that are 

essential for the conservation of a listed 

species. Our regulations direct us to 

focus on the ‘‘primary constituent 

elements,’’ or PCEs, in identifying these 

physical or biological features. Section 

7(a)(2) of the ESA requires that each 

Federal agency, in consultation with 

and with the assistance of NMFS, 

ensure that any action authorized, 

funded, or carried out by such agency is 

not likely to jeopardize the continued 

existence of an endangered or 

threatened Atlantic salmon or result in 

the destruction or adverse modification 

of critical habitat. Section 4 of the ESA 

requires us to consider the economic 

impacts, impacts on national security, 

and other relevant impacts of specifying 

any particular area as critical habitat. 

NMFS and the U.S. Fish and Wildlife 

Service (USFWS; collectively ‘‘the 

Services’’) issued a final rule listing the 

GOM DPS of Atlantic salmon as 

endangered on November 17, 2000 (65 

FR 69459). The GOM DPS was defined 

in the 2000 rule as all naturally 

reproducing wild populations and those 

river-specific hatchery populations of 

Atlantic salmon, having historical riverspecific characteristics found north of 

and including tributaries of the lower 

Kennebec River to, but not including, 

the mouth of the St. Croix River at the 

U.S.-Canada border and the Penobscot 

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River above the site of the former 

Bangor Dam. 

In September 2006, a new Status 

Review for Atlantic salmon in the 

United States (Fay et al., 2006) was 

made available to the public (http:// 

www.nmfs.noaa.gov/pr/pdfs/ 

statusreviews/atlanticsalmon.pdf). The 

2006 Status Review identified the GOM 

DPS of Atlantic salmon as being 

comprised of all anadromous Atlantic 

salmon whose freshwater range occurs 

in the watersheds of the Androscoggin 

River northward along the Maine coast 

to the Dennys River, including all 

associated conservation hatchery 

populations used to supplement natural 

populations; currently, such 

populations are maintained at Green 

Lake National Fish Hatchery (GLNFH) 

and Craig Brook National Fish Hatchery 

(CBNFH). In September 2008 a proposed 

rule was published proposing to list the 

GOM DPS of Atlantic salmon as defined 

in the 2006 Status Review as 

endangered (73 FR 51415; September 3, 

2008). In response to public comments 

received on the proposed listing rule, 

and in review of the critical habitat 

proposed rule, also published in 

September 2008 (73 FR 51747; 

September 5, 2008), the Gulf of Maine 

DPS was re-defined to exclude those 

areas that were outside the historic 

range of the species. The final rule 

published by NMFS and the USFWS in 

today’s Federal Register (see 

Endangered and Threatened Species; 

Determination of Endangered Status for 

the Gulf of Maine Distinct Population 

Segment of Atlantic Salmon) defines the 

GOM DPS as all anadromous Atlantic 

salmon whose freshwater range occurs 

in the watersheds from the 

Androscoggin River northward along 

the Maine coast to the Dennys River, 

and wherever these fish occur in the 

estuarine and marine environment. The 

following impassable falls delimit the 

upstream extent of the freshwater range: 

Rumford Falls in the town of Rumford 

on the Androscoggin River; Snow Falls 

in the town of West Paris on the Little 

Androscoggin River; Grand Falls in 

Township 3 Range 4 BKP WKR, on the 

Dead River in the Kennebec Basin; the 

un-named falls (impounded by Indian 

Pond Dam) immediately above the 

Kennebec River Gorge in the town of 

Indian Stream Township on the 

Kennebec River; Big Niagara Falls on 

Nesowadnehunk Stream in Township 3 

Range 10 WELS in the Penobscot Basin; 

Grand Pitch on Webster Brook in Trout 

Brook Township in the Penobscot Basin; 

and Grand Falls on the Passadumkeag 

River in Grand Falls Township in the 

Penobscot Basin. The marine range of 

the GOM DPS extends from the Gulf of 

Maine, throughout the Northwest 

Atlantic Ocean, to the coast of 

Greenland. Included are all associated 

conservation hatchery populations used 

to supplement these natural 

populations; currently, such 

conservation hatchery populations are 

maintained at GLNFH and CBNFH. 

Excluded are landlocked salmon and 

those salmon raised in commercial 

hatcheries for aquaculture. The GOM 

DPS as defined in the final rule has been 

listed as endangered under the ESA. 

The most substantial difference 

between the 2000 GOM DPS and the 

GOM DPS described in the final rule 

published by NMFS and the USFWS in 

today’s Federal Register (see 

Endangered and Threatened Species; 

Determination of Endangered Status for 

the Gulf of Maine Distinct Population 

Segment of Atlantic Salmon) is the 

inclusion of the Androscoggin, 

Kennebec, and Penobscot River basins. 

The timeline for completing the 

critical habitat designation described in 

this final rule was established pursuant 

to litigation between NMFS and the 

Center for Biological Diversity and the 

Conservation Law Foundation. Upon 

reaching a settlement agreement, NMFS 

has agreed to publish a final rule 

designating critical habitat for Atlantic 

salmon no later than June 1, 2009. 

II. Summary of Comments and 

Responses 

As described in agency regulations at 

50 CFR 424.16(c)(1), we requested that 

all interested parties submit written 

comments on the proposed critical 

habitat designation. We also contacted 

the appropriate Federal and State 

agencies, scientific organizations, and 

other interested parties and invited 

them to comment on the proposed rule. 

To facilitate public participation, we 

made the proposed rule available via the 

Internet as soon as the rule was 

published and accepted comments by 

standard mail, fax, e-mail or through 

http://www.regulations.gov. In addition 

we held two public hearings: One in 

Augusta, ME, on November 5, 2008; and 

one in Brewer, ME, on November 6, 

2008. During this time 37 parties or 

individuals submitted written 

comments on the critical habitat 

proposed rule. These comments were 

grouped into three categories as they 

related to the 3 primary sections of the 

Critical habitat designation: Biological 

Valuation; Economic Analysis; and 

4(b)(2) exclusion analysis. A fourth 

category is included to address general 

comments and an overview of how 

comments were handled that were not 

directly related to the critical habitat 

designation. In section III we review 

comments and additional information 

that resulted in changes to the critical 

habitat rule and supporting documents. 

Biological Valuation 

Comment 1: One commenter stated 

that assuming the standard habitat 

needs of salmon (240 eggs per unit, 

7,200 eggs per female, 1:1 sex ratio) and 

using the calculations described in the 

document, the historic run size of 

150,000 fish would have required 

2,250,000 units of habitat (75,000 

females (assuming 1:1 sex ratio) × 7,200 

eggs per female/240 eggs per unit of 

habitat); seven times the amount of 

habitat in the entire Penobscot Salmon 

Habitat Recovery Unit (SHRU). 

Response: Conservation Spawning 

Escapement or CSE is often used as a 

tool to describe the minimum number of 

spawners needed to provide sufficient 

quantities of eggs needed to fully seed 

the available habitat. The estimation of 

CSE is not meant to predict run sizes. 

The minimum number of eggs to fully 

seed the habitat is 240 eggs per unit of 

habitat where one unit of habitat is 

equivalent to 100 meters squared. The 

equation described by the commenter: 

(# of females × 7,200 eggs per female/ 

240 eggs per unit of habitat = units of 

habitat) incorporates the same values 

used to estimate the minimum spawner 

requirement or CSE for a river in both 

national and international forums. CSE 

estimates do not take into account that, 

in healthy robust populations, animals 

are often produced in numbers greater 

than what is needed to fully seed the 

habitat, and, therefore, only those 

animals that are most fit for the given 

environment successfully contribute to 

the next generation. This is why historic 

estimates of over 100,000 adults in the 

Penobscot River far exceed the 

minimum spawning requirement or CSE 

for the Penobscot of 6,838 adult 

spawners. Despite the estimations that 

the Penobscot River had run sizes in the 

10’s of thousands or even 100’s of 

thousands, only a fraction of the entire 

run would be expected to actually 

contribute to the next generation due to 

natural selection factors (i.e., not all 

adults will successfully spawn, and, of 

those that do, not all of the juveniles 

will successfully reach maturity). We 

refer to this historic estimate provided 

by Atkins and Foster (1868) as a 

reference point to what the run potential 

for the Penobscot SHRU could be; not 

the minimum number of spawners that 

would be needed to fully seed the 

habitat. Furthermore, the historic 

estimates of 150,000 adult returns 

(males and females) was not a factor in 

determining the run size of 2,000 adult 

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spawners (1,000 males and 1,000 

females assuming a 1:1 sex ratio) used 

as a recovery goal to project critical 

habitat for each SHRU. 

Comment 2: One commenter stated 

that the 240 eggs per unit was derived 

as a way to estimate the number of 

spawners needed to populate salmon 

habitat with juveniles to produce 2, 3, 

and 4 year old smolts, and was never 

intended to be used to calculate the 

amount of habitat required by a given 

number of spawners. The commenter 

stated that it was their belief that using 

the 240 eggs per unit of habitat to 

predict habitat is an incorrect 

application of the work of Elson (1975) 

and Symons and Heland (1978), and is 

very likely to greatly overestimate the 

amount of habitat required to achieve 

recovery. 

Response: As described in the 

response to comment 1, the 240 eggs per 

unit is a target egg deposition needed to 

fully seed a river (Elson, 1975) and is 

the same number that is used to predict 

CSE of a river. The CSE is most often 

used to establish a conservation goal for 

a river based on the amount of habitat 

that is available to the species and 

widely used to describe the status of 

individual Atlantic salmon populations. 

Absent better information we believe 

that the equation used to estimate CSE 

can be applied inversely (# of females × 

7,200 eggs per female/240 eggs per unit 

= units of habitat) to estimate habitat 

needed to support the offspring from a 

pre-determined number of females. We 

do not believe that the estimates we 

provide are an over estimation, as the 

240 eggs per unit were intended to take 

into account natural selection factors 

that would limit survival of the species. 

In some site specific cases, there are 

likely to be river reaches that could 

support far more than 240 eggs per unit 

and conversely, there are likely some 

reaches that can support fewer than 240 

eggs per unit. 

Comment 3: Some commenters 

supported the designation of critical 

areas for the protection of Atlantic 

salmon in the Gulf of Maine, but felt 

that this designation did not extend far 

enough. The commenters stated that a 

critical habitat designation must include 

all habitat within the historical range of 

the GOM DPS of Atlantic salmon. Some 

commenters believed that the proposed 

critical habitat designation arbitrarily 

excluded most of the historic, suitable 

Atlantic salmon habitat and should 

include more specific areas in the 

Kennebec River, the Androscoggin River 

main stem and its tributaries all the way 

to Rumford, the entire West Branch of 

the Penobscot and its tributaries, and 

the Passadumkeag River. Some 

commenters also stated that critical 

habitat designation should include the 

Presumpscot River and the Sebago Lake 

watershed. Alternatively, some 

commenters were opposed to the 

proposed critical habitat designation on 

the Androscoggin River. 

Response: Sections 3(5)(A)(i) and (ii) 

of the ESA define critical habitat for a 

threatened or endangered species as the 

specific areas within the geographical 

area occupied by the species, at the time 

it is listed in accordance with the 

provisions of Section 4 of the ESA, 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 

specific areas outside of the 

geographical area occupied by the 

species at the time it is listed in 

accordance with the provisions of 

section 4 of the ESA, upon a 

determination by the Secretary that such 

areas are essential for the conservation 

of the species. We determined in the 

Biological Valuation process that no 

additional areas outside of the 

geographical area occupied by the 

species at the time it is listed were 

essential for the conservation of the 

species because sufficient quantities of 

habitat are available to achieve 

conservation in the currently occupied 

range (NMFS, 2009a). Therefore, we 

concluded that unoccupied areas, 

including those specific areas within the 

Kennebec River above the Sandy River, 

the Androscoggin River above Lewiston 

Falls, and the entire West Branch of the 

Penobscot, did not qualify for critical 

habitat designation. 

The Presumpcot River and Sebago 

Lake watershed are not included in the 

geographic range of the GOM DPS, and 

therefore are not eligible for designation 

as critical under section 3(5)(A) of the 

ESA. 

Comment 4: Several commenters felt 

that our review of habitat requirements 

focused on activities or conditions that 

may affect salmon habitat but did not 

focus on activities that have impacted 

habitat. Additionally, commenters 

stated concerns with our identification 

of activities that may affect primary 

constituent elements and therefore may 

require special management 

consideration. Commenters specifically 

stated concerns with the following three 

statements: (1) The most direct effect of 

logging on stream temperature is the 

reduction in shade provided by riparian 

vegetation; (2) agricultural practices 

influence all specific areas proposed for 

designation and negatively impact PCE 

sites for spawning and rearing and 

migration; and (3) timber harvesting and 

preparation of soil for forestry practices 

can decrease large woody debris as well 

as increase soil erosion. 

Response: We do not state explicitly 

that any activities are negatively 

impacting Atlantic salmon habitat, but 

rather we list activities that may 

negatively impact Atlantic salmon 

habitat. Section 4(b)(8) of the ESA states 

that in general we * * * ‘‘are to include 

a brief description and evaluation of 

those activities (whether public or 

private) which, in the opinion of the 

Secretary, if undertaken, may adversely 

modify such habitat, or may be affected 

by such designation.’’ The word ‘‘may’’ 

gives us the discretion to identify 

activities that are currently affecting 

critical habitat as well as activities that 

have the potential to affect critical 

habitat. In our description of activities 

and the types of effects that the 

activities have on critical habitat, we 

state that the activities may affect 

critical habitat recognizing that, at 

times, the activity can occur and have 

no affect on critical habitat, while in 

other circumstances the activity may 

have an affect on critical habitat. 

Activities that may affect critical habitat 

and are carried out, funded, or 

authorized by a Federal agency, will 

require an ESA section 7 consultation. 

In this rule, we identify activities and 

how they may affect critical habitat; a 

more detailed description of activities 

that may affect salmon habitat is 

available in our supporting document: 

Habitat requirements and management 

considerations for Atlantic salmon 

(Salmo salar) in the Gulf of Maine 

Distinct Population Segment (GOM 

DPS). 

Comment 5: One commenter stated 

that based on the 500 fish criterion, the 

Penobscot SHRU is certainly not in any 

danger of extinction. 

Response: In the recovery criteria we 

state that in order for the DPS to be 

considered recovered, all three SHRUs 

must meet or exceed the criteria that we 

have established: (1) The adult spawner 

population of each SHRU must be 500 

or greater in an effort to maintain 

sufficient genetic variability within the 

population for long-term persistence. 

This is to be determined or estimated 

through adults observed at trapping 

facilities or redd counts; (2) The GOM 

DPS must demonstrate self-sustaining 

persistence where each SHRU has less 

than a 50 percent probability of falling 

below 500 adult spawners in the next 15 

years based on population viability 

analysis (PVA) projections (NMFS, 

2009, appendix A). The 50 percent 

assurance threshold satisfies the 

criterion that the population is ‘‘not 

likely’’ to become an endangered 

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species, while 15 years represents the 

‘‘foreseeable future’’ for which we have 

determined that we can make 

reasonable projections based on past 

demographic data available to us; (3) 

The entire GOM DPS must demonstrate 

consistent positive population growth 

for at least 2 generations (10 years) 

before the decision to delist is made. 

Ten years of pre-decision data that 

reflect positive population trends 

provide some assurance that recent 

population increases are not 

happenstance but more likely a 

reflection of sustainable positive 

population growth; (4) A recovered 

GOM DPS must represent the natural 

population (i.e., adult returns must 

originate from natural reproduction that 

has occurred in the wild); hatchery 

product cannot be counted towards 

recovery because a population reliant 

upon hatchery product for sustainability 

is indicative of a population that 

continues to be at risk; (5) In order to 

delist the GOM DPS, the threats 

identified at the time of listing must be 

addressed through regulatory or any 

other means. These threats are 

identified in the five factors specified in 

section 4(a)(1) of the ESA as described 

in the 2006 Status Review (Fay et al., 

2006). Though the Penobscot River has 

consistently retained a census 

population of over 500 adult spawners, 

for the period between 1997 to 2006 

approximately 9.6 percent of the 

Penobscot run resulted from wild 

spawning or fry stocked fish with the 

greatest wild origin adult return 

recorded in 1997 estimated at 160 adults 

(USASAC, 2007). Due to the low 

numbers of wild origin adult returns, 

the entire GOM DPS, including the 

Penobscot, fails to meet the objectives of 

recovery on the one principle point that 

none of the SHRUs have a wild 

spawning population greater than 500 

adult spawners. 

Comment 6: One commenter agreed 

with the analysis of choosing 500 adult 

spawners (both male and female) for an 

effective population size, and 2,000 

spawners as a number that can weather 

downturns in survival as reasonable 

estimates for the large rivers such as 

those in the Merrymeeting Bay and 

Penobscot SHRUs (73 FR 51747; 

September 5, 2008, 51760–51761), but 

did not agree that these are appropriate 

numbers for the Downeast Coastal 

SHRU. The commenter urged us to 

consider reducing the numbers required 

for an effective population size for the 

Downeast Coastal SHRU to be more 

representative of these smaller rivers, 

smaller habitat, and historically far 

smaller salmon numbers than the larger 

rivers that make up the two other 

SHRUs. 

Response: We believe that each of the 

three SHRUs, including the Downeast 

Coastal SHRU, is easily capable of 

supporting an effective population of 

500 adult spawners. Furthermore, we 

believe using the criterion that each 

SHRU must have enough habitat to 

support the offspring of 2,000 adult 

spawners (See ‘‘Specific areas outside 

the geographical area occupied by the 

species . . . essential to the 

conservation of the species’’ section of 

this document) as a means of buffering 

against downturns in survival is also 

very attainable and not unreasonable for 

any of the three SHRUs. In the 

biological valuation we estimate that 

there are approximately 61,400 units of 

historical spawning and rearing habitat 

in the Downeast Coastal SHRU. Using 

the methods described by Elson (1975) 

to establish a minimum spawning 

requirement, otherwise known as the 

CSE, for 61,400 units of habitat, an 

estimated 4,094 adult spawners is 

needed to fully seed the Downeast 

Coastal SHRU (61,400 units / 7,200 eggs 

per female × 240 eggs per unit needed 

to fully seed the habitat = 2,047 females 

or 4,094 adult spawners assuming 1:1 

sex ratio). We chose 500 adult spawners 

as the minimum effective population 

size not in respect to the size of the area, 

but rather in respect to the number of 

fish that we believe is the minimum 

number needed to retain sufficient 

genetic diversity within a SHRU. This is 

the case for all three SHRUs. 

Comment 7: One commenter stated 

that recovery criteria should not be set 

that cannot be met. Based on the 

Services’ calculations, the Downeast 

SHRU does not have enough functional 

habitat to meet recovery criteria. 

Response: There are approximately 

61,400 units of habitat in the Downeast 

Coastal SHRU which are considered to 

be equivalent to approximately 29,111 

functional units. The reduced functional 

value of habitat in the Downeast SHRU 

is based on a reduction of habitat 

quality or the presence of dams or a 

combination of both as described in the 

biological valuation (NMFS, 2009). This 

means that the occupied areas in the 

Downeast Coastal SHRU are functioning 

at approximately 47 percent of their 

potential. We do recognize that not all 

Atlantic salmon habitat may have 

functioned historically at its fullest 

potential due to natural factors. In 

Downeast Maine, habitat degradation 

from roads and road crossings, dams, 

historic log drives, and introduction of 

non-indigenous species are all factors 

that have been identified as factors that 

reduce the functional value of habitat 

(NRC, 2004; Fay et al., 2006). 

Improvements in habitat quality can 

increase the functional value of habitat 

for the Downeast SHRU (e.g., Project 

SHARE’s ongoing efforts that enhance 

fish passage and habitat quality by 

improving or removing bridges, 

culverts, and roads adjacent to or 

crossing streams). Given improvements 

to degraded habitat in the occupied 

areas, functional habitat quantities in 

the Downeast SHRU would be sufficient 

to meet recovery goals. 

Comment 8: One commenter 

expressed difficulty in understanding 

how we determined fractions of dams 

for HUC 10s. 

Response: Dams were discounted 

based on their location within a HUC 10 

watershed and the degree to which it 

was estimated they would impede 

downstream migration of smolts. Dams 

with turbines were estimated to reduce 

the functional capacity habitat by 15 

percent based on the findings of several 

studies (GNP, 1995; GNP, 1997; 

Holbrook, 2007; Shepard, 1991; Spicer 

et al., 1995). Mainstem dams without 

turbines are not expected to affect 

smolts in the same way as dams with 

turbines, but can result in direct or 

indirect mortality from delays in 

migration and by increased predation 

from predators that congregate around 

dams. Therefore, dams without turbines 

were estimated to reduce the functional 

capacity of habitat units by 7.5 percent 

(one half of 15 percent). Dams located 

at roughly the midpoint of habitat 

within a HUC 10 watershed were 

estimated to affect passage of roughly 

half the fish in the HUC 10 watershed 

(e.g., located half way up the HUC 10 

watershed) and therefore were 

discounted accordingly (e.g., 7.5 percent 

for dams with turbines). 

Comment 9: A commenter stated that 

we were unclear as to why dams were 

treated differently than other factors that 

influence survival of salmon. The 

commenter stated that dam mortality is 

applied using a quantitative approach 

while all other factors are applied using 

an index number. It would therefore 

take approximately seven dams to have 

an equal effect as a quality rating of 1 

(e.g., approximately 33 percent). This 

seems to greatly underestimate the 

relative effects of dams compared to 

other factors (or vice-versa). 

Response: Habitat quality scores 

address localized impacts and, 

therefore, only influence the functional 

habitat units within a HUC 10 for which 

the habitat quality score is assigned. 

Dams were figured into our calculations 

differently than habitat quality scores 

because they affect not only the HUC 10 

in which they are present, but also every 

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HUC 10 upstream of their location. 

Depending on the geographic location of 

the dam in regards to habitat, a dam 

may influence a much larger quantity of 

habitat than an individual habitat 

quality score. 

Comment 10: A commenter stated that 

some habitat scores within the 

Penobscot SHRU were underestimated 

because the Penobscot River Restoration 

Project was not included in the critical 

habitat designation. 

Response: We did not formulate 

habitat estimates that included the 

Penobscot River Restoration Project 

because it has not been completed at 

this point and there is not certainty that 

the project will be completed because 

neither the permitting nor funding has 

been fully secured. 

Comment 11: One commenter stated 

that the HUC 10 scale is too coarse. The 

HUC 12 scale would be better suited to 

identifying critical habitat. 

Response: We considered analyzing at 

the HUC 12 scale in an attempt to gain 

higher resolution for critical habitat 

designation, but we determined that we 

had insufficient information to evaluate 

the PCEs at the HUC 12 scale for the 

entire GOM DPS. In order to provide fair 

representation across the GOM DPS, we 

determined that it would not be 

appropriate to evaluate some areas at 

the HUC 10 scale and some areas at the 

HUC 12 scale. 

Comment 12: One commenter stated 

that the habitat amounts in some rivers 

were suspect. For example, the Dennys 

has 1,717 units compared to the 

Pleasant that is shown to have 3,025 

units of habitat. Field habitat surveys 

indicate that the Dennys has 

approximately twice the number of 

habitat units as the Pleasant River. Some 

differences are valid due to un-surveyed 

small streams; however, the gross 

differences are surprising and need to be 

assessed. 

Response: In our evaluation, we relied 

on a GIS based habitat prediction model 

to estimate habitat for the entire GOM 

DPS described in Appendix C of the 

Biological Valuation. Even though in 

some areas we have fairly 

comprehensive field surveys of habitat, 

most of the DPS range does not have 

this level of information. In constructing 

the model, the outputs were cross 

referenced to existing habitat surveys 

and were determined to be roughly 75 

percent accurate at the reach level. As 

the commenter stated, the field surveys 

often only take into account mainstem 

habitat and major tributaries and do not 

take into account minor tributaries, 

while the GIS based model does. In the 

Pleasant River, Western Little River, 

Taylor Brook and a significant portion 

of Eastern Little River contain fairly 

significant amounts of habitat, but are 

not included in the field survey, and, 

therefore, may account for some of the 

discrepancy between the two survey 

methods. Over time as more information 

becomes available, we will be able to 

increase the accuracy of this model, but 

for now this is the best available 

information. 

Comment 13: One commenter stated 

that the Nezinscot River HUC 10 

watershed was assigned a final 

biological value of ‘‘3’’ even though the 

Nezinscot is a destination and not a 

migratory corridor, and another 

commenter stated that we designated 

the Little Androscoggin River which is 

not occupied but arbitrarily did not 

include any other unoccupied, but 

historically occupied, watersheds in 

either the Androscoggin Basin or the 

Kennebec Basin. 

Response: The Nezinscot River HUC 

10 watershed includes the mainstem 

Androscoggin River between the Little 

Androscoggin River HUC 10 and the 

Androscoggin River at Riley Dam and 

therefore is an important migratory 

corridor. 

The Little Androscoggin River HUC 

10 watershed does not actually include 

the Little Androscoggin River. This 

particular HUC 10 watershed includes 

only the Androscoggin River and its 

tributaries from the confluence with the 

Kennebec up to, but not including, the 

Little Androscoggin River. These 

comments reflect confusion expressed 

by many commenters about the names 

of HUC 10s as they relate to the location 

of the HUC 10. In section III of this rule, 

we describe how we have attempted to 

alleviate this confusion. 

Comment 14: A commenter stated that 

historically inaccessible habitat should 

be removed from critical habitat. 

Response: No specific areas in the 

range of the GOM DPS where the entire 

specific area was historically 

inaccessible were proposed as critical 

habitat. However, in some cases there 

may be small stream segments within a 

specific area identified as occupied that 

historically were, and still may be, 

inaccessible. We are unable to 

specifically identify the stream 

segments where critical habitat is 

proposed that may have been 

historically inaccessible because of 

insufficient information on where these 

barriers exist and whether they are full 

barriers to migration or partial barriers 

to migration. As activities occur in these 

areas, the section 7 consultation process 

will allow us to further evaluate stream 

segments that may have been 

historically inaccessible, and a 

determination of ‘‘effect’’ on the habitat 

will be made accordingly. If the activity 

is determined to be outside the historic 

range of the species, and the activity is 

not believed to affect critical habitat 

downstream of the migration barrier, 

then a determination of ‘‘no effect’’ or 

‘‘not likely to affect’’ critical habitat may 

be made. 

Comment 15: A commenter stated that 

the biological value score of the lower 

river migration corridors should not be 

based on the biological value scores of 

watersheds outside the currently 

occupied range. 

Response: We discussed assigning 

biological values using two approaches: 

assigning scores based on the value of 

habitat only within the currently 

occupied range or assigning biological 

value based on the historic range of the 

species within the GOM DPS. We 

concluded that biological value scores 

should be assigned to HUC 10 

watersheds based on the historic range 

of the species regardless of the presence 

of dams because areas with dams should 

not be under valued in terms of their 

relative importance to Atlantic salmon 

recovery. Hence, when evaluating the 

biological value of habitat, we asked 

biologists not to consider dams as part 

of their evaluation, but they were to 

score areas as ‘‘0’’ if they believed the 

area to be historically inaccessible due 

to natural barriers. 

Comment 16: A commenter stated that 

the SHRU does not function as a true 

population but rather as a collection of 

independent populations, stating that 

this is evident by the genetic 

information presented in studies by 

King et al. (2000, 2001) and Spidle et al. 

(2001, 2003). 

Response: The studies by King and 

Spidle were referred to extensively in 

our analysis of DPS structure within the 

Gulf of Maine as well as the review 

provided by the NRC (2003). In each of 

these studies, the authors do not imply 

that there is more than one independent 

population within the Gulf of Maine 

DPS. Spidle et al. (2003) and King et al. 

(2001) do describe Maine populations as 

independent from other North American 

populations and may reflect a limited 

number of metapopulations (a spatially 

separated group of populations of the 

same species that interact at some level). 

The National Research Council (NRC; 

2004) does state that Maine rivers 

appear to reflect a metapopulation 

structure whereby the GOM DPS 

represents ‘‘a set of local breeding 

populations connected by exchange of 

some individuals’’. The NRC, however, 

avoids referring to these populations as 

independent populations. We discussed 

this issue with Tim King (personal 

communication, December 9, 2008), and 

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he concurred that he was not aware of 

substantive information that would 

suggest that there is a collection of 

independent populations within the 

GOM DPS, and he agreed with NRC’s 

interpretation that these populations 

reflect meta-population structure. 

McElhany et al. (2000) describes 

independent populations quite clearly 

as ‘‘any collection of one or more local 

breeding units whose population 

dynamics or extinction risk over a 100- 

year time period is not substantially 

altered by exchanges of individuals with 

other populations.’’ He goes on to state 

that independent populations are often 

smaller than the Evolutionarily 

Significant Unit (ESU; similar to the 

scale to a DPS) and more likely to 

inhabit a geographic range on the scale 

of an entire river basin or major subbasin. In the Gulf of Maine DPS there 

are four HUC 6 river basins which are 

the Penobscot, Kennebec, Androscoggin, 

and the Downeast Coastal Basin. 

Though we recognize that the genetic 

evidence presented by King and Spidle 

clearly indicates populations with 

strong river specificity, we do not 

believe that there is compelling 

evidence to determine the presence of 

an independent population structure in 

the GOM DPS whereby an independent 

population is a population whose 

extinction risk over a 100-year time 

period is not substantially altered by 

exchanges of individuals with other 

populations. 

Comment 17: A commenter stated that 

assigning a single population criterion 

of an effective population size (Ne) of 

500 adult spawners (male and female) 

for each SHRU is not appropriate 

because each SHRU does not function as 

a true population but rather a collection 

of independent populations. 

Response: The SHRUs are established 

as a geographic framework for recovery. 

We did not use effective population size 

as a criterion for recovery. Rather, we 

use the breeding population size in 

conjunction with other criteria because 

of the inherent difficulties of calculating 

effective population size for natural 

populations, and the further 

complication of having a group of local 

breeding populations in which there is 

limited straying among them. 

We believe that assigning a single 

population criterion for an entire SHRU 

is more appropriate than trying to 

allocate population sizes on a per river 

basis. Assigning population values at 

the SHRU level allows flexibility in 

recovery such that recovery can take 

place anywhere within the SHRU as 

long as all of the criteria that we have 

established are met. Therefore, a 

recovered population could be spread 

out among multiple rivers within the 

SHRU or all in one river. Either scenario 

would allow for a recovery 

determination as long as all the criteria 

are met for delisting the DPS. If we 

assigned specific values or goals for 

specific rivers, low populations in one 

river could conceivably delay removing 

the DPS from the list. 

In contrast, we do not believe that 

assigning population criteria to the 

entire DPS is sufficient enough to allow 

for recovery to occur. Assigning a 

population criterion without reference 

to geographic distribution could allow 

for recovery to occur in one river for the 

entire DPS. Recovery in one river could 

increase the population’s vulnerability 

to losses in genetic diversity as the 

population would be exposed to less 

habitat diversity. Recovery in one river 

could also increase the population’s 

vulnerability to geographic stochasticity 

(e.g., a catastrophic event such as a 

drought or flood that could severely 

impact the population) and 

demographic stochasticity (e.g., a 

significant decline in a population 

where recovery may require some 

straying from nearby populations to 

increase the population size or to 

increase genetic diversity to prevent 

inbreeding depression) (see NMFS, 

2009, appendix A). 

Recovery criteria were developed to 

aid in designating critical habitat 

(NMFS, 2009, appendix A), though final 

recovery criteria will be more fully 

developed as part of the recovery 

planning process following the final 

listing. 

Comment 18: A commenter stated that 

many extant populations in Maine have 

not regularly achieved Ne > 500 nor Nb 

(breeding population) > than 500 over 

the last 100 years or more, and clearly 

many extant populations would have 

been unlikely to ever exceed the 1,000– 

2,000 fish level that may be needed to 

achieve delisting under the proposed 

criteria. 

Response: We agree that many extant 

breeding populations may not have 

exceeded 1,000–2,000 spawners 

historically, but we do believe that 

1,000–2,000 spawners within a SHRU is 

a realistic goal given the number of 

breeding populations within a SHRU. 

Even though we have little population 

data that pre-dates dam construction on 

any of the rivers in Maine, Atkins’ 

assessments of populations in both the 

Kennebec and Penobscot (estimates 

range between 100,000 and 200,000 

adult spawners annually for the 

Penobscot and Kennebec) (Foster and 

Atkins, 1869) are reasonable estimates 

given that these were based on harvest 

estimates. We also avoid stating that 

only extant populations within the 

SHRUs can be used to recover the 

SHRUs, understanding that, given 

current low abundances, especially in 

the Merrymeeting Bay SHRU, common 

garden experiments that use a mixed 

stock of fish from populations outside 

the SHRU may be the most appropriate 

means to re-establish populations. This 

concept fits well with the 

metapopulation paradigm, where 

limited straying does occur between 

populations, and in fact is necessary in 

supporting genetic diversity as well as 

re-colonization of populations that have 

been extirpated or face near extirpation. 

We do state however, that in most 

circumstances it would be appropriate, 

given metapopulation dynamics, to use 

nearby or proximate populations as a 

source of fish for re-establishing 

depleted stocks, as these fish are most 

likely to retain the genetic and physical 

characteristics most suitable for reestablishing the targeted river. 

Comment 19: A commenter felt that 

the PVA simulation used to project 

habitat needed to support a recovered 

population seems overly pessimistic 

since it uses return rates from 1991– 

2006 to model a 50-year time horizon. 

The commenter suggested that it would 

be more realistic to use a longer time 

series of return rates to better reflect the 

types of variability likely to be seen over 

50 years. 

Response: In Appendix B of the 

Biological Valuation, an example is 

given of the PVA model and how it is 

used to project extinction risks using a 

time horizon of 50 years. For the actual 

calculations, the PVA was used in 

conjunction with the DRAFT Recovery 

Criteria to estimate how many spawners 

would be needed in each SHRU to 

withstand a period of low marine 

survival as experienced between the 

years of 1991 to 2006. The output of the 

model was then used in the critical 

habitat analysis to determine how much 

habitat in each SHRU would be needed 

to support a population capable of 

withstanding the period of low marine 

survival as experienced between the 

years of 1991 and 2006. This period of 

reference was used to reflect what we 

have seen as a worst case scenario. The 

outcome of the model revealed that 

2,000 adult spawners would be needed 

in each SHRU in order to ensure that the 

population of each SHRU is ‘‘not likely’’ 

(<50 percent) to fall below 500 adult 

spawners in the ‘‘foreseeable future’’ (15 

years or 3 generations). This particular 

time frame was used because our goal 

was to determine how much habitat we 

would need to support a population that 

could withstand another period of low 

marine survival such as experienced 

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during the time period between 1991 

and 2006. 

Comment 20: One commenter stated 

that while the concept of effective 

population size (Ne) of 500 adult 

spawners is established in the literature, 

the decision to use a census size of 500 

adult spawners as a minimum does not 

seem defensible. 

Response: We recognize the difference 

between effective population size (the 

number of individuals in a population 

who contribute offspring to the next 

generation) and census population size 

(the actual population, in this case the 

actual number of adult spawners) and 

acknowledge the difficulties in 

calculating the effective population size 

for Atlantic salmon throughout the 

range of the Gulf of Maine DPS. In most 

circumstances though, the effective 

population size of a species is much 

smaller than the actual census 

population size, given that not all 

breeders are likely to contribute to the 

next generation of breeders (e.g., a 

census population of 1,000 individuals 

may only have 800 individuals that are 

effective breeders) (Allendorf and 

Luikart, 2007). However, for Atlantic 

salmon where the breeding population 

consists of multiple generations, 

including parr, 1 sea winter, 2 sea 

winter, and multi-sea winter spawners, 

calculating the effective population size 

relative to the census population size is 

far more difficult than if all individuals 

were to reach maturity at the same age. 

Furthermore, the ratio of effective 

population size to census population 

size of adult spawner may be much 

closer to one for populations with 

multiple generations (including parr) 

participating in spawning activities than 

for populations that all mature at the 

same age. 

Genetic data is one means of 

calculating the effective population size 

of natural populations, though extensive 

genetic data from all the breeding 

populations across the DPS would need 

to be gathered to accurately make these 

calculations. In this case, we make an 

assumption that the census population 

size is equal to the effective population 

size, and assume that all returning 

adults will be effective spawners. The 

census population size of adult returns 

determined through redd counts or 

adult trap catch is what the State of 

Maine and the Federal agencies have 

principally relied upon as a gauge to 

describe population health of Atlantic 

salmon in Maine and elsewhere 

throughout the United States (USASAC 

2007), and, therefore, we believe that 

using this same metric to calculate 

recovery is reasonable. For lack of better 

information, we believe that a census 

population size of 500 fish with the 

added criterion identified in the 

recovery criteria is a very reasonable 

goal and adequate enough to maintain 

within population spatial structure and 

sufficient genetic diversity within each 

of the three SHRUs. 

Comment 21: One commenter stated 

that the GIS-based Atlantic salmon 

model promises to be a powerful tool for 

making fisheries management decisions 

and directing habitat restoration or 

protections. The commenter went on to 

state though that several improvements 

to this model and data set could be 

made, including: use a digital elevation 

model to estimate drainage areas in the 

smaller basins; investigate the 

discrepancies and identify variables that 

appear to underestimate stream widths 

and, therefore, appear to underestimate 

salmon habitat in some reaches; validate 

the GIS model with existing field habitat 

surveys; check the GIS model for 

missing line segments; and check the 

model to exclude areas above known, 

impassible natural barriers. 

Response: The GIS based habitat 

prediction model development was 

expedited for the purpose of designating 

critical habitat. We do recognize that 

there are many attributes that could 

improve the output of the model. These 

improvements could not be completed 

in the time available for critical habitat 

designation given the schedule for 

publishing the final critical habitat 

designation outlined in the settlement 

agreement negotiated in the 

Conservation Law Foundation and 

Center for Biological Diversity lawsuit. 

Regardless, the model output 

conservatively predicts the presence of 

habitat to near 75 percent accuracy and, 

as the commenter indicates, the model 

slightly underestimates habitat because 

of some underestimation of stream 

widths. We feel that the 75 percent 

accuracy provides us with the best 

available information at this time and is 

sufficient to designate critical habitat for 

Atlantic salmon at the HUC 10 level 

(NMFS, 2009, Appendix C). 

Comment 22: One commenter stated 

that factors outside of forestry and land 

management appear to be the major 

limiting factors to northern Atlantic 

salmon populations and stated that 

climate change may be having an even 

larger effect on the species by changing 

runoff timing, raising stream 

temperatures, and changing the timing 

of salmon runs. Critical habitat 

designation does not address these 

issues and instead places greater 

emphasis on secondary or historic 

practices that are having at most a minor 

impact on the species. 

Response: The statutory language of 

the ESA states that we shall identify and 

evaluate those activities (whether 

private or public) which, in the opinion 

of the Secretary, if undertaken, may 

adversely modify such habitat, or may 

be affected by such designation. 

Climate change in itself is not an 

activity, but rather a term that describes 

the cumulative effects of many activities 

on the environment. Even though 

Atlantic salmon managers and scientists 

are concerned about the potential 

impacts of climate change on Atlantic 

salmon, at this point we have very little 

evidence on the effects that climate 

change has had or may have on Atlantic 

salmon in the GOM DPS. Furthermore, 

we are unable to support the inclusion 

of the activities that contribute to 

climate change due to a lack of scientific 

evidence that links the impact of a 

specific activity that contributes to 

climate change to an adverse 

modification of the physical and 

biological features essential to the 

conservation of the GOM DPS. 

We also do not believe that we placed 

greater emphasis on secondary or 

historic practices that are having only 

minor impacts on the species. In our 

assessment, we focused on those 

activities that may affect critical habitat. 

Most notably, dams represent one 

activity that we have identified as 

having an effect on critical habitat. The 

NRC report (2004) concluded that ‘‘the 

greatest impediment to the increase of 

salmon populations in Maine is the 

obstruction of their passage up and 

down streams and degradation of their 

habitat caused by dams.’’ The 

importance of dams in limiting Atlantic 

salmon recovery is further elaborated in 

Fay et al. (2006). In conclusion, we 

believe that we are focusing our efforts 

on activities that have the potential to 

impact salmon habitat, as supported by 

observation and scientific data. 

Economic Analysis 

Comment 23: Several commenters 

stated that the economic analysis fails to 

address the potential cost of lost 

generation due to the diversion of flows 

for fishway operation. While it may be 

difficult to predict the costs associated 

with the potential for changes in 

minimum flows and similar operation 

changes, one commenter argued that the 

loss in generation value due to fishway 

flows can and should be quantified in 

the economic analysis. For example, a 

number of commenters assert that the 

Services’ own ‘‘rule of thumb’’ is that 

they may recommend licensees divert 

approximately three to four percent of 

the turbine hydraulic capacity for use as 

fish passage flows. The commenters 

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further assert that this equates directly 

to a loss of electric generation at these 

facilities, thereby increasing costs born 

to hydro-electric operators. 

Response: Section 3.4.2 of the draft 

economic analysis describes 

qualitatively and quantitatively 

potential impacts associated with 

operational changes. This section 

explains that, absent information 

regarding how NMFS may regulate 

flows at specific dam sites following a 

critical habitat designation, impacts 

associated with potential operational 

changes are not included in the total 

estimated impacts presented in the 

report. To provide context on the 

potential magnitude of operational 

impacts, the analysis considers a 

hypothetical scenario in which all 

hydropower operations within the study 

area are precluded from generating 

power during the month of May (peak 

season for downstream smolt 

migration). According to this scenario, 

energy costs could be expected to 

increase by up to $11.3 million. 

The final economic analysis includes 

in its impact estimates a scenario 

incorporating a three to four percent 

loss of electric generation at the projects 

for which fish passage costs are 

estimated. The analysis also 

incorporates a discussion on the 

uncertainties associated with these 

impacts. 

Comment 24: One commenter stated 

that the economic analysis needs to 

consider additional costs associated 

with fish passage facilities including: 

operational and maintenance costs, 

costs of effectiveness studies, stocking 

and managing for the species, and 

incremental costs of consultation. 

Response: As described in Exhibit 3– 

6, the draft economic analysis quantifies 

the following costs associated with fish 

passage facilities: installation, species 

survival studies, installation and 

maintenance of fish screens, and water 

quality and temperature controls. The 

analysis also includes administrative 

costs of consultation. The final 

economic analysis incorporates new 

information on the potential operation 

and maintenance costs for fish passage 

facilities. Stocking and management of 

the species is not considered to be 

related to critical habitat and is, 

therefore, appropriately not quantified 

in the economic analysis. 

Comment 25: Verso Paper Corporation 

comments that it operates four 

hydropower dams to power its mill on 

the Androscoggin. The draft economic 

analysis estimated that the cost of 

constructing fish lifts for fish passage at 

each dam would be approximately $2.5 

million each. While $2.5 million 

constitutes only a moderate impact 

according to the NMFS 4(b)(2) report, 

the combined effect of $10 million for 

all four dams is a significant economic 

impact. Further, these estimates do not 

include costs of conducting species 

survival or water quality studies, or 

installing fish screens. These costs, 

along with increases in energy costs and 

impacts of programmatic changes, make 

it clear that the economic impacts to the 

Androscoggin mill are very high. 

Response: The 4(b)(2) analysis was 

not conducted on a project-by-project 

basis, but on the sub-watershed (ten 

digit hydrologic unit code, or HUC) 

scale. That is, the total economic 

impacts of salmon conservation to all 

economic activities were summed by 

HUC. Of the four dams discussed here 

that support the Androscoggin mill, 

three (Riley, Jay, and Livermore) occur 

within the same HUC; the remaining 

dam (Otis) occurs in a separate HUC. 

Economic impacts by HUC therefore 

include the costs of fish lift construction 

for all dams within the HUC, as well as 

the impacts of conducting species 

survival and water quality studies, and 

installing fish screens (see exhibit 3–8 of 

IEc, 2009). As described in the 

economic analysis, to the extent that 

programmatic changes may also be 

requested as a result of critical habitat, 

the quantified impacts are an 

underestimate of the total impacts. 

We believe that the HUC 10 

watershed scale is an appropriate scale 

in which to conduct the ESA section 

4(b)(2) analysis as there is insufficient 

information to accurately describe the 

economic impact for all individual 

projects within the DPS, nor is there 

sufficient information to accurate 

describe the physical and biological 

features directly associated with each 

project. Even though there may be 

sufficient information for some projects 

to conduct this scale of analysis, by not 

having sufficient records for all projects 

in the DPS we can not fairly conduct a 

cost benefit analysis by conducting a 

project based analysis for some, and a 

watershed based analysis for others. 

Comment 26: A commenter stated that 

the hydropower analysis incorrectly 

assumes a 50-year license term for the 

re-licensing of hydroelectric projects 

over which impacts are discounted at an 

annual rate of seven percent. While the 

license for a new project may be for 

terms up to 50 years, a typical term for 

the re-licensing of an existing project is 

30 years. 

Response: The draft economic 

analysis uses information from the 

FERC re-licensing schedule on the relicensing dates for each dam and 

calculates present value impacts 

according to the expected year of relicensing. The analysis does not assume 

that all licenses have a 50-year term. 

The present value impacts are then 

annualized over the full 50-year time 

frame of the analysis. 

Comment 27: One commenter stated 

that the draft economic analysis 

assumes that a fishway for fish passage 

would be needed at the Milford Project’s 

Gilman Falls Dam. This dam, however, 

contains a free-flowing ‘‘breach’’ section 

of river that negates the need for any 

type of fish passage. 

Response: As described in Section 

3.4.1, the draft economic analysis 

applies a ‘‘rule of thumb’’ to determine 

whether and what type of fish passage 

may be requested at each dam. For main 

stem dams, we anticipate that fish lifts 

would serve as the preferred method of 

fish passage. The Gilman Falls Dam 

occurs on the main stem Penobscot 

River; the draft economic analysis 

therefore assumed a fish lift may be 

required. We believe that salmon should 

be able to pass this dam at most, but not 

all, times of the year, as it is a low head 

dam. While another type of fish passage 

may therefore be appropriate at this site 

(e.g., a fish ladder), the economic 

analysis conservatively assumes it is 

possible that fish passage will need to 

be incorporated at this site. 

Comment 28: One commenter stated 

that the draft economic analysis relies 

heavily on overly generalized 

assumptions and provides an example 

of the main stem Milford Dam. For this 

project, the draft economic analysis 

estimated present value impacts of $232 

(IEc, 2008), compared with the 

company’s estimate of $7.6 million to 

implement the agreed upon fish passage 

measures that include installation of a 

fish lift as part of the Penobscot River 

Restoration Plan. 

Response: Section 3.4.1 of the draft 

economic analysis notes that it does not 

include economic impacts associated 

with providing fish passage at Milford 

and a bypass at Howland Dam where 

plans to improve fish passage have 

already been developed. The $7.6 

million dollar cost will be incurred 

independent of any critical habitat 

decision and is therefore not an impact 

of the rule. At these facilities, the 

impact of the rule is limited to the 

administrative costs of conducting a 

section 7 consultation at the time of 

dam relicensing. 

Comment 29: One commenter asks 

whether the analysis of the impact on 

electricity production would change if 

the Penobscot River Restoration Project 

(PRRP) were taken into account. 

Response: The economic analysis 

attempts to isolate and quantify the 

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costs of potential project modifications 

that result specifically from the 

designation of critical habitat. With 

regard to the PRRP, a plan has already 

been established independent of the 

designation of critical habitat for four 

projects on the Penobscot River. This 

plan incorporates project modifications 

that meet or exceed the measures that 

might otherwise be requested to avoid 

or minimize adverse modification of 

critical habitat. As a result, we do not 

anticipate that critical habitat 

designation would affect the design or 

implementation of the PRRP, nor do we 

anticipate that the designation of critical 

habitat would affect the project’s costs. 

Accordingly, the economic analysis 

assumes that the designation of critical 

habitat will have no impact on the 

PRRP. 

Comment 30: One commenter 

requested that NMFS fully assess and 

quantify the economic impact that the 

listing of the Atlantic salmon will have 

on manufacturers and their employees. 

Specifically, the commenter suggested 

that it is unclear how facilities that are 

compliant with State standards for 

discharge may be affected by the listing. 

It further expressed concern that the 

listing may add uncertainty to the 

issuance of Maine Pollutant Discharge 

Elimination System (MPDES) permits, 

thereby affecting the ability of permitted 

facilities to secure financing. 

Response: The ESA does not allow for 

consideration of economic impacts in 

making decisions regarding whether to 

list species as endangered or threatened. 

Economic impacts are considered in 

designating critical habitat for listed 

species. 

Comment 31: One commenter stated 

that the ‘‘baseline approach’’ of the draft 

economic analysis considers only the 

economic impacts attributable solely to 

critical habitat designation and not 

those impacts that may be attributed coextensively to the proposed DPS listing. 

The comment asserts that this approach 

was invalidated by the Tenth Circuit 

Court in New Mexico Cattle Growers 

Association v. USFWS, 248 F 3d 1277, 

1285 (10th Cir 2001), which held that 

the Services must consider all impacts 

of a proposed designation, even those 

attributed coextensively to the listing. 

The commenter stated that the Tenth 

Circuit is the only Federal Circuit Court 

of Appeals that has considered the 

issue. In addition, the commenter stated 

that because the status of the listing is 

uncertain, attempts to measure 

incremental impacts as distinct from 

listing are tentative and misleading. 

Response: As noted in the response to 

Comment 30, above, the ESA precludes 

consideration of economic impacts in 

making listing determinations but 

allows consideration of such impacts in 

conjunction with designating critical 

habitat. To the extent possible, the 

economic analysis attempts to quantify 

the impacts associated specifically with 

the designation of critical habitat, as 

these are the economic impacts that 

stand to be affected by a critical habitat 

designation decision. In some cases, the 

analysis acknowledges that it is difficult 

to determine what may be the causative 

factor for a conservation measure—the 

listing or the critical habitat designation. 

In these cases, the draft economic 

analysis conservatively includes such 

impacts and notes the uncertainty. The 

economic analysis does not include, 

however, impacts of conservation 

measures determined by NMFS to be 

solely due to the listing, and not 

associated with the critical habitat 

designation, as these impacts are 

expected to occur regardless of the 

critical habitat designation decision. 

Since the Tenth Circuit Court 

decision, courts in other cases have held 

that an incremental analysis of impacts 

stemming solely from the critical habitat 

rulemaking is proper (Cape Hatteras 

Access Preservation Alliance v. 

Department of Interior, 344 F. Supp. 2d 

108 (D.D.C. 2004); Center for Biological 

Diversity v. United States Bureau of 

Land Management 422 F. Supp. 2d 1115 

(N.D. Cal. 2006). For example, in the 

March 2006 ruling that the August 2004 

critical habitat rule for the Peirson’s 

milk-vetch was arbitrary and capricious, 

the United States District Court for the 

Northern District of California stated, 

‘‘The Court is not persuaded by the 

reasoning of New Mexico Cattle Growers, and 

instead agrees with the reasoning and 

holding of Cape Hatteras Access Preservation 

Alliance v. U.S. Dep’t of the Interior, 344 F. 

Supp 2d 108 (D.D.C. 2004). That case also 

involved a challenge to the Service’s baseline 

approach and the court held that the baseline 

approach was both consistent with the 

language and purpose of the ESA and that it 

was a reasonable method for assessing the 

actual costs of a particular critical habitat 

designation (Id at 130). ‘To find the true cost 

of a designation, the world with the 

designation must be compared to the world 

without it.’ ’’ 

In this final rule we use an approach 

consistent with the Cape Hatteras line 

of cases. 

Comment 32: One commenter argued 

that additional time should be taken to 

fully assess and quantify the economic 

impact the listing will likely have on 

manufacturers and their employees 

located along Maine’s working rivers. 

Specifically, the commenter suggested 

that it is unclear how facilities that are 

compliant with State standards for 

discharge may be affected by the listing. 

The commenter further expressed 

concern that the listing may add 

uncertainty to the issuance of MPDES 

permits, thereby affecting the ability of 

permitting facilities to secure financing. 

Response: As mentioned in the 

response to Comment 30, economic 

impacts are not allowed to be 

considered in relation to listing 

decisions, but the ESA allows 

consideration of such impacts in 

conjunction with designating critical 

habitat. Section 5.3.1 of the economic 

analysis considers the potential effect of 

critical habitat designation on licensed 

discharge facilities. Specifically, this 

section notes that NMFS records 

indicate that there have been no section 

7 consultations regarding discharge 

permits since the Atlantic salmon was 

listed. Further, EPA has not objected to 

and federalized any MPDES permits due 

to concerns for salmon. The economic 

analysis, therefore, does not anticipate 

that the issuance of these permits is 

likely to result in consultation regarding 

salmon and its habitat. 

ESA Section 4(b)(2) Report 

Comment 33: Several commenters 

expressed concern that we only chose to 

exclude areas if the specific area had 

low biological value and a 

correspondingly higher economic cost, 

but if the area had no dams, then those 

areas were also ineligible for exclusion. 

Response: The Secretary of Commerce 

(Secretary) has discretion in balancing 

the statutory factors, including what 

weight to give those factors. The ESA 

provides the Secretary with the 

discretion to consider areas for 

exclusion based on the economic 

impact, or any other relevant impact, so 

long as a determination is made that the 

benefits of exclusion outweigh the 

benefits of designation, and so long as 

the exclusion will not result in 

extinction of the species concerned. The 

benefits of designation are to ensure that 

there is sufficient habitat with essential 

features needed to support recovery 

objectives. Given that Atlantic salmon 

are in danger of extinction in the 

foreseeable future, we used our 

discretion to only consider those areas 

for exclusion that have relatively low 

biological value and correspondingly 

higher economic cost. 

In our analysis, we set criteria to 

weigh the economic cost of designating 

critical habitat against the biological 

benefit of designating critical habitat in 

order to assure that sufficient habitat 

would remain available to achieve 

conservation of the species. Given that 

the species is in danger of extinction, 

we believe that all habitat of medium or 

high biological value, and all habitat not 

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impeded by dams is essential to achieve 

conservation of the species. In this rule, 

in the section entitled ‘‘Consideration of 

Economic Impacts, Impacts to National 

Security, and Other Relevant Impacts,’’ 

subsection ‘‘Economic Impacts’’, we 

expounded upon our decision to 

consider for exclusion only those areas 

with a biological value of ‘‘1’’. 

We did consider a more straight 

forward approach for exclusion such 

that any areas for which the costs of 

designation were greater than the 

biological value of the area to the 

species would qualify for exclusion. We 

chose, however, to consider for 

exclusion only those areas that have a 

biological value score of ‘‘1’’ (unless the 

area is without dams) because excluding 

all specific areas for which the costs of 

designation were greater than the 

biological value of the area to the 

species would reduce the quantity of 

habitat below what is needed to achieve 

conservation of the species. 

Comment 34: One commenter stated 

that the ESA 4(b)(2) analysis is flawed 

because NMFS’s determination of 

whether an economic impact was low, 

moderate, or high was done on a 

comparative basis as opposed to an 

absolute basis. NMFS did not actually 

determine the economic impact to an 

area of a proposed critical habitat 

designation. 

Response: The framework used to 

inform the section 4(b)(2) analysis was 

a modified cost-effectiveness analysis. 

The cost-effectiveness analysis allows 

us to compare a monetized estimate of 

the ‘‘benefits of exclusion’’ against the 

biological ‘‘benefits of inclusion’’ for 

any particular area. The commenter is 

suggesting that the only accepted way to 

conduct an ESA 4(b)(2) exclusion 

analysis is with a cost benefit analysis. 

However, the approach we used, a costeffectiveness analysis, is acceptable for 

4(b)(2) exclusion analysis (U.S. OMB, 

2003). 

The Office of Management and Budget 

has acknowledged the cost-effectiveness 

analysis (CEA) as an appropriate 

alternative to benefit-cost-analysis (U.S. 

OMB, 2003). The CEA provides a 

rigorous way to identify options that 

achieve the most effective use of the 

resources available without requiring 

monetization of all of the relevant 

benefits or costs. The CEA was used in 

designating critical habitat for the Gulf 

of Maine DPS of Atlantic salmon, 

whereby we differentiated among 

habitat areas based on their relative 

contribution to conservation based on 

habitat characteristics and best 

professional judgment. These qualitative 

ordinal valuations were then combined 

with estimates of the monetized 

economic costs of critical habitat 

designation. In essence, individual 

habitat areas are assessed using both 

their biological valuation and economic 

cost, so that areas with high 

conservation value and lower economic 

cost have a higher priority for 

designation, and areas with low 

conservation value and higher economic 

cost have a higher priority for exclusion. 

Using the Secretary’s discretion in 

balancing the statutory factors, only 

those areas with low biological value 

were considered for economic 

exclusion, given that excluding areas of 

higher biological value would remove 

protections to habitat needed to achieve 

conservation of the species. 

Comment 35: One commenter stated 

that, ‘‘[p]roposed designated critical 

habitat on Plum Creek lands does not 

require special management or 

protection * * * [we] implement 

practices that provide on-the-ground 

conservation outcomes that benefit 

Atlantic salmon and address the 

primary constituent elements (PCEs) of 

salmon habitat in Maine.’’ 

Response: As stated in section 4(b)(2) 

of the ESA, the Services may exclude 

any area from critical habitat if it is 

determined that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat. Based on the best 

scientific and commercial data 

available, including Federal and State 

natural resource protection regulations, 

we determined that designation of 

critical habitat in Maine, including 

Plum Creek lands, is necessary to 

protect Atlantic salmon from extinction. 

Furthermore, the fact that on-the-ground 

conservation measures are being 

implemented for Atlantic salmon 

habitat is evidence of the need to 

manage the essential features of the 

habitat. 

We recognize that many organizations 

implement practices that provide onthe-ground outcomes that benefit 

Atlantic salmon, but these practices 

have not been provided to the Services 

for thorough review to determine their 

conservation benefit to Atlantic salmon. 

Plum Creek states that it fully complies 

with Maine’s Best Management 

Practices (BMPs) and believes these 

practices to be protective of salmon 

habitat. While many of the BMPs do 

provide protections to Atlantic salmon, 

there are many aspects that we feel may 

affect Atlantic salmon habitat and, 

therefore, require further review. For 

example, we state that a 30-meter buffer 

is generally required to provide 

protections to critical habitat. The 30- 

meter buffer has been identified as what 

is generally required to maintain or 

restore optimal habitat in fish-bearing 

streams (Murphy, 1995) and necessary 

to protect invertebrate communities 

(Erman and Mahoney, 1983) that salmon 

require for forage. Murphy (1995) 

further states that narrower buffers or 

selective harvest within the buffers may 

not provide for maintenance of large 

woody debris contributions into the 

stream over the long term. Plum Creek’s 

review of Maine’s BMPs prescribe a 

tiered approach where some streams 

have no buffer protection, others have a 

75-foot (22.9-m) buffer, and others have 

up to a 250-foot (76.2-m) buffer but still 

allow for removal of up to 40 percent of 

the canopy. Based on the best scientific 

and commercial data available, 

including Federal and State natural 

resource protection regulations, we 

determined that designation of critical 

habitat in Maine, including Plum Creek 

lands, is necessary to protect Atlantic 

salmon from extinction. 

Miscellaneous Comments 

Comment 36: Two commenters stated 

that appropriate documentation under 

the National Environmental Policy Act 

(NEPA) must be prepared by the 

Services and published for the public 

review process prior to any final rules 

on critical habitat designation that 

impact the physical environment. 

Response: NEPA does not apply to 

designations of critical habitat under the 

ESA. The reasons underlying this 

determination, mainly that designation 

of critical habitat is a non-discretionary 

statutory obligation in relation to the 

listing of a species under the ESA, 

reflects an opinion from the Ninth 

Circuit Court of Appeals (see Douglas 

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

1995), cert. denied, 116 S.Ct. 698 

(1996)). In accordance with the 

decisions of the Ninth Circuit Court, we 

believe that NEPA documentation is not 

required for the designation of critical 

habitat within the range of the GOM 

DPS. 

Comment 37: A commenter requested 

that we revise the critical habitat 

designation proposal for the Penobscot 

and Kennebec watersheds. The revised 

proposal should, at a minimum, exclude 

potential critical habitat designation for 

Atlantic salmon in the Androscoggin 

River and other areas, as appropriate, 

based upon the updated analyses. 

The commenter felt that critical 

habitat for the expanded DPS should be 

published separate from the Downeast 

River final rule, but not before the end 

of the 1-year window permitted in the 

ESA following the initial September 5, 

2009, proposal. The Notice should 

request, and give adequate time for, 

public comments on the revised 

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proposal prior to issuance of any final 

rule or designation in the Penobscot or 

Kennebec Rivers. 

Response: The ESA states that a final 

regulation designating critical habitat of 

an endangered species or threatened 

species shall be published concurrently 

with the final regulation implementing 

the determination that such species is 

endangered or threatened. Exceptions to 

this are if critical habitat of such species 

is not determinable, in which we would 

be allowed 1 year from the time of 

listing to make such a determination. 

For Atlantic salmon, we have an 

abundance of information on which a 

determination of critical habitat can be 

based, and, therefore, a ‘‘not 

determinable’’ decision is not 

supportable in this case. 

Comment 38: Two commenters 

requested that both the critical habitat 

rule and DPS listing rule be delayed 

until additional information relating to 

the adequacies of regulations pertaining 

to waste water discharge and water 

withdrawal programs can be further 

reviewed. 

Response: The June 1, 2009, 

publication due date for the final rule 

designating critical habitat for Atlantic 

salmon was determined by a judicially 

approved settlement agreement between 

the Center for Biological Diversity, 

Conservation Law Foundation, and 

NMFS. We feel that asking the plaintiffs 

and the court to agree to an extension 

of that date to conduct further 

evaluation of existing regulations is 

unwarranted. The adequacy of existing 

regulatory mechanisms is evaluated in 

the listing determination, though it is 

not something that is considered in 

designating critical habitat. Designating 

critical habitat is designed to protect 

habitat features essential to the 

conservation of the endangered or 

threatened species. In doing so, we are 

required to identify the habitat features 

that may require special management or 

protections. As such, several activities 

were identified as affecting habitat 

features or as activities that we believe 

may have an effect on habitat features 

either now or in the near future. By 

identifying these activities, we are 

stating that if a Federal action agency 

were to fund, carry out, or authorize one 

or more of these activities, then the 

Federal action agency should consult 

with the Services on that action. At that 

point, the Services, in conjunction with 

the action agency, will make a 

determination, specific to that project, 

on whether or not existing regulatory 

mechanisms are sufficiently protective 

of the habitat features that we identified, 

or whether the action may affect the 

habitat features and, therefore, may 

require formal or informal consultation. 

During this consultation process, 

modifications to the project may be 

required to minimize or eliminate the 

effect on the habitat feature. 

Comment 39: One commenter stated 

that the Federal Register notice for 

critical habitat correctly identifies dams 

as the primary threat to Atlantic salmon, 

but falls short of recognizing or 

recommending that the cumulative 

impacts of dams be addressed if Atlantic 

salmon are going to be restored in the 

Androscoggin, Kennebec, and Penobscot 

Rivers. The commenter urges us to 

directly address the need for dam 

removal rather than focus on fishways 

that we know cannot ameliorate the 

cumulative impact of dams. 

Response: The biological valuation 

portion of the critical habitat 

designation does account for cumulative 

impacts of dams in the determination of 

the ‘‘functional habitat units’’ score of 

habitat units within the range of the 

GOM DPS. Through our scoring system, 

the functional habitat units score 

accounts for dams not only within a 

particular HUC 10, but also downstream 

of that HUC 10, thereby addressing the 

issue of cumulative impacts associated 

with each dam encountered by a fish 

making its way to or from a particular 

HUC 10. 

We do not address the needs of dam 

removal directly in the critical habitat 

designation as this would not add 

information necessary in making a 

determination of critical habitat. When 

conducting the economic analysis, we 

had to determine a course of action that 

may be required of the hydropower 

companies in order to estimate the 

economic impact. Given that we do not 

have the resources or the time to fully 

assess the most appropriate course of 

action for each and every dam within 

the Gulf of Maine DPS, we developed a 

general list of the types of modifications 

that may be required by the dam owner 

if their dam is within critical habitat. In 

some circumstances, these 

modifications may be the most 

appropriate course of action. In other 

circumstances, more or less stringent 

modifications may be required of the 

dam owner depending on the amount 

the project affects critical habitat and 

what is required to prevent jeopardy or 

adverse modification and achieve 

recovery of the species. The need for 

dam removal or improved fish passage 

for specific projects will be addressed in 

a recovery plan for the expanded GOM 

DPS and in individual section 7 

consultations on projects during relicensing or licensing. 

Comment 40: A commenter stated that 

the Services need to be more aggressive 

in dealing with numerous and welldocumented problems associated with 

elevated levels of acidity, low buffering 

capacity, and lack of important 

nutrients in our rivers and strongly 

recommend pursuing a pilot terrestrial 

liming/calcium enhancement project on 

a meaningful scale in order to address 

these known problems. 

Response: Acidification of surface 

waters has been identified in numerous 

planning documents, including the NRC 

report on Atlantic salmon in Maine 

(2004), the Final Recovery Plan for 

Atlantic Salmon (NMFS and FWS, 2005) 

and the Status Review for Atlantic 

Salmon (Fay et al., 2006). Acidification 

of surface waters has been well 

documented to have detrimental effects 

on Atlantic salmon, particularly smolts. 

Whether anthropogenic acidification of 

surface waters is affecting the GOM 

DPS, and to what extent, is still widely 

debated. A combination of low pH and 

high labile aluminum can reduce the 

physiological function of the gill 

membrane and in turn, cause direct or 

indirect mortality to a smolt as it 

attempts to enter sea water. Since the 

1980s, researchers have been working 

hard to understand acidification of 

surface waters in Maine, particularly in 

the region east of the Penobscot River. 

Haines et al. (1990) reported that, when 

Atlantic salmon smolts were subjected 

to elevated acidity and elevated 

aluminum concentrations, a 

combination of pH less than 5.5 and 

exchangeable aluminum concentration 

greater than 200 mg/l caused 

osmoregulatory stress. Since this time, 

numerous and extensive efforts have 

been undertaken to understand the role 

of acidification on Atlantic salmon 

survival, particularly in the Downeast 

Region of Maine. Furthermore, even 

though it has been widely 

acknowledged that emissions of sulfates 

and nitrates contribute significantly to 

acidification of surface waters, in Maine 

there are differing views as to how 

much of the acidity is directly 

associated with these emissions. In 

Downeast Maine, there is uncertainty 

among researchers and biologists on 

how much of the acidity in Downeast 

rivers is naturally occurring from the 

high levels of dissolved organic matter 

and what portion of the acidity 

originates from exogenous sources such 

as sulfate and nitrate emissions, marine 

aerosols, or land-use activities (e.g., 

forestry and agricultural practices). At 

this point, we recognize that some rivers 

and streams are impaired by low pH and 

high aluminum concentrations, but we 

do not believe that there is substantive 

information to suggest that the GOM 

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Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 29311 

DPS is significantly impaired at the 

population level as a result of 

anthropogenic acidification. Whether 

the Services should undertake liming or 

calcium enhancement to offset the 

effects of low pH is an issue that will 

need to be pursued in the development 

of a recovery plan and is not related to 

the designation of critical habitat. 

Comment 41: One commenter stated 

that the critical habitat designation fails 

to consider the essential migratory 

nature of Atlantic salmon * * * 

Atlantic salmon will not stay in just 

those areas of a watershed that are 

designated as critical habitat. 

Response: During our designation 

process we identified all areas currently 

occupied by the listed GOM DPS of 

Atlantic salmon. All areas currently 

occupied by the species have been 

designated as critical habitat, with 

exceptions of areas excluded as part of 

the 4(b)(2) process and marine areas as 

described in this final rule, section 

titled: Identifying the Geographical Area 

Occupied by the Species and Specific 

Areas within the Geographical Area. 

Areas not designated as critical habitat 

within the GOM DPS are areas that are 

currently inaccessible to Atlantic 

salmon due to either natural or manmade barriers or areas that do not have 

the physical and biological features 

essential to the conservation of the 

species. In order to designate critical 

habitat outside the current GOM DPS 

we would need to make the 

determination that those areas are 

essential to the conservation of the 

species. At present, we have determined 

that enough habitat is available within 

the occupied portions of the GOM DPS 

to conserve the species regardless of 

whether salmon migrate outside this 

habitat area. Therefore, habitat in 

unoccupied areas within or outside of 

the GOM DPS is not essential to the 

conservation of salmon and not 

appropriate for designation as critical 

habitat. 

Comment 42: A commenter felt we 

should provide more region specific 

review of habitat variability and threats 

in our source document (Habitat 

Requirements and Management 

Considerations for Atlantic salmon in 

the GOM DPS). 

Response: The biological valuation 

(NMFS, 2009a) does provide SHRU 

specific biological reports that describe 

the variability of physical and biological 

features essential to the conservation of 

the species within and among the 

individual SHRUs. Additionally, these 

SHRU specific biological reports 

provide general descriptions of 

activities that may affect the physical 

and biological features essential to the 

conservation of the GOM DPS within 

each SHRU. 

Comment 43: One commenter stated 

that the effects of dams are overstated. 

The commenter felt that even though 

dams do impact migration and survival, 

marine survival is the biggest factor 

limiting recovery. The commenter 

further states that dams are not the 

driving force in the decline as 

evidenced by rivers with no barriers to 

migration but with the same declines as 

rivers with barriers. 

Response: In the 4(b)(2) report 

(NMFS, 2009b), we fully acknowledge 

the importance of marine survival and 

the fact that it is a very significant 

limiting factor in the recovery of the 

GOM DPS. However, critical habitat 

may not be designated within foreign 

countries or in other areas outside of the 

jurisdiction of the United States (50 CFR 

424.12(h)). Furthermore, we are not 

able, at this time, to identify the specific 

features characteristic of marine 

migration and feeding habitat within 

waters under U.S. jurisdiction essential 

to the conservation of Atlantic salmon 

and are, therefore, unable to identify the 

specific areas in the marine 

environment where such features exist. 

Therefore, specific areas of marine 

habitat are not designated as critical 

habitat. We also do not feel that the 

effect of dams is overstated. The 

National Research Council stated in 

2004 that the greatest impediment to 

self-sustaining Atlantic salmon 

populations in Maine is obstructed fish 

passage and degraded habitat caused by 

dams. As the commenter acknowledged, 

we relied heavily on Fay et al. (2006), 

which provides a comprehensive review 

of the studies that support this 

conclusion. Dams have been found to 

result in direct loss of production 

habitat, alteration of hydrology and 

geomorphology, interruption of natural 

sediment and debris transport, and 

changes in temperature regimes 

(Wheaton et al., 2004). Riverine areas 

above impoundments are typically 

replaced by lacustrine (lake or pond) 

habitat following construction. Dramatic 

changes to both upstream and 

downstream habitat caused by dams 

directly result in changes in the 

composition of aquatic communities, 

predator/ prey assemblages, and species 

composition (NRC, 2004; Fay et al., 

2006; Holbrook, 2007). Upstream 

changes in habitat are known to create 

conditions that are ideal for Atlantic 

salmon predators such as chain 

pickerel, smallmouth bass, and double 

crested cormorants (Fay et al., 2006). 

Furthermore, dams not only change 

predator/prey assemblages, dam passage 

is known to negatively affect predator 

detection and avoidance in salmonids 

(Raymond, 1979; Mesa, 1994; Blackwell 

and Krohn, 1997; Holbrook 2007). 

Adults may also be susceptible to 

predation when they are attempting to 

locate and pass an upstream passage 

facility at a dam in conjunction with 

higher summer temperatures (Fay et al., 

2006; Power and McCleave, 1980). 

Providing highly effective fish passage 

both upstream and downstream at 

impoundments is very important. 

However, that does not negate the fact 

that even passage facilities contribute to 

Atlantic salmon mortality. Passage 

inefficiency and delays occur at 

biologically significant levels, resulting 

in incremental losses of pre-spawn 

adults, smolts, and kelts. Dams are 

known to typically injure or kill 

between 10 and 30 percent of all fish 

entrained at turbines (EPRI, 1992). With 

rivers containing multiple hydropower 

dams, these cumulative losses could 

compromise entire year classes of 

Atlantic salmon. Studies in the 

Columbia River system have shown that 

fish generally take longer to pass a dam 

on a second attempt after fallback 

compared to the first (Bjornn et al., 

1999). Thus, cumulative losses at 

passage facilities can be significant and 

are an important consideration. 

Comments on Issues Outside of the 

Scope of this Rule 

There were a number of comments 

and suggestions that are not directly 

related to the designation of critical 

habitat. These included suggestions on 

collaboration versus regulation, 

comments on the inadequacy of existing 

State regulations, comments on the 

National Pollution Discharge 

Elimination System (NPDES), comments 

on river classification, comments related 

to the listing of Atlantic salmon in 

particular rivers under the ESA 

(inclusion or exclusion of certain 

rivers), and remarks on the timing of the 

critical habitat designation given the 

U.S. economic slow down. Given that 

these comments do not affect the critical 

habitat designation process, we will not 

be providing detailed responses in this 

rule. Comments that were submitted in 

response to the proposed critical habitat 

designation, but appear to be more 

related to the listing rule, will be 

addressed in that listing action. 

Remarks 

(1) After the close of the comment 

period, we were informed that the 

watershed delineations represented as 

HUCs had recently undergone some 

revisions that would alter the 

boundaries of some of the HUC 10 

watersheds used to represent specific 

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areas within the GOM DPS. In our 

determination of specific areas, we 

identified the HUC 10 watershed scale 

as appropriate given that the HUC 10 

watershed is the approximate scale in 

which Atlantic salmon are currently 

managed. The HUC 10 scale was also 

appropriate because we had sufficient 

information to analyze each specific 

area for habitat value and economic 

cost. When we were made aware of the 

modifications, we carefully assessed the 

implications of the modifications and 

whether it would be necessary to 

reconfigure our designation based on 

the modifications. ESA section 3(5)(A) 

states that we are to identify specific 

areas within the geographical area on 

which are found those physical and 

biological features essential to the 

conservation of the species and which 

may require special management or 

protections. Section 3(5)(C) further 

states that, except in circumstances 

determined by the Secretary, critical 

habitat shall not include the entire 

geographical area which can be 

occupied by the threatened or 

endangered species. The Services’ 

regulations further state in 50 CFR 

424.12(c) that each critical habitat will 

be defined by specific limits using 

reference points and lines as found on 

standard topographic maps of the area. 

Each area will be referenced to the 

State(s), county(ies), or other local 

governmental units within which all or 

part of the critical habitat is located. 

Unless otherwise indicated within the 

critical habitat descriptions, the names 

of the State(s) and county(ies) are 

provided for information only and do 

not constitute the boundaries of the 

area. Ephemeral reference points (e.g., 

trees, sand bars) shall not be used in 

defining critical habitat. Based on the 

ESA and agency regulations, we 

concluded that reconfiguration of the 

HUC 10 watersheds based on this 

update was unnecessary for the 

following reasons: (1) Considering the 

guidance, we have a fair amount of 

discretion in defining the scale, size, 

and shape of the area used to represent 

the specific area in which critical 

habitat is analyzed; (2) the HUC 10 

watershed scale, regardless of size or 

shape, does not influence salmon 

biology or salmon behavior; (3) we can 

make available to the public maps that 

clearly identify the specific areas and 

the critical habitat within those areas; 

and (4) we clearly identify the specific 

State(s), county(ies), and town(s) in 

which all or part of the critical habitat 

is located. 

(2) In the proposed rule (50 CFR 

51747; September 5, 2008) summary 

paragraph, we stated that there were 

203,781 km of perennial river, stream, 

and estuary habitat proposed for 

designation as critical habitat. This 

number was in error, and the actual 

kilometers proposed for designation was 

20,378 km. The habitat kilometers in the 

summary tables in Part 226 of the 

proposed rule were correct. 

III. Summary of Revisions 

We evaluated the comments and the 

new information received in response to 

the proposed rule to ensure that our 

final rule contained the best scientific 

data available. Some of the comments 

and new information has resulted in a 

number of general changes to the critical 

habitat designations. A review of the 

comments that triggered those changes 

and a summary of the changes that were 

made are included in this section: 

(1) One commenter noted that on Page 

9, Criterion (a) of the biological 

valuation (NMFS, 2008a) we do not 

specify the time frame in which salmon 

have been documented in a specific area 

for the area to be considered occupied. 

Another commenter expressed concern 

over our perceived use of the ‘‘Fish 

Friends’’ program overseen by the 

Atlantic Salmon Federation as a 

criterion for occupation. On page 9 of 

the biological valuation we identify two 

criteria, that if either are met, would 

warrant the area to be considered 

occupied by the species. 

The text in criterion (a) has been 

modified to include the timeframe of 6 

years, which is consistent with the 

timeframe expressed in criteria (b), and 

we did remove reference to the Fish 

Friends program on the basis that under 

no circumstance were specific areas 

determined to be occupied solely based 

on the stocking of fry from this program. 

These modifications were made in the 

final rule section titled Identifying the 

Geographical Area Occupied by the 

Species and Specific Areas within the 

Geographical Area. 

(2) Several commenters asked that we 

clarify the approach used to bin 

economic costs as well as how cost 

thresholds were assigned and how 

specific areas were considered for 

economic exclusions. 

In order to compare economic cost to 

biological value in the exclusion process 

we needed to assign a value with which 

we could compare unlike values (e.g., 

dollar amounts vs. biological value). In 

order to create like values for both the 

economic costs and final biological 

values we chose to bin the biological 

and economic data into three categories 

(high, medium, low) in order to 

consider exclusions. In the proposed 

rule we state that we binned the 

economic costs into three categories to 

represent low, medium and high 

economic costs, but did not explain why 

or how we did this binning. We 

modified the text in the final rule 

section—Consideration of Economic 

Impacts, Impacts to National Security, 

and Any Other Relevant Impacts to 

explain why and how we did the 

binning of the economic cost. 

(3) A commenter stated that the 

algorithm used to arrive at functional 

habitat units is difficult to follow, in 

part because it is described in two 

separate sections. A unified section 

describing this process would be 

helpful, as would a formulaic 

representation of the process. 

The section of the final rule ‘‘Specific 

areas outside the geographical area 

occupied by the species * * * essential 

to the conservation of the species’’ has 

been modified by consolidating the 

explanation of how functional habitat 

units were derived and developing a 

formulaic expression for the process 

used to calculate functional habitat 

units. 

(4) A commenter noted that Belfast 

Bay is missing from the economic 

exclusion in the table on pg 51780 of the 

proposed rule. 

In 50 CFR 226.217(b)(6), Table (ii) of 

the proposed rule we outline all the 

specific areas that contain critical 

habitat, the quantity of critical habitat 

within the specific areas as well as the 

quantity of critical habitat that we 

proposed for exclusion, and the type of 

exclusion. In the Penobscot Bay subbasin, we identified Belfast Bay (HUC 

code 0105000218) as having 177 km of 

river, stream, and estuary, and 9 square 

km of lake critical habitat. The area was 

identified in the preamble and in the 

maps of 50 CFR Part 226.217(b)(6) of the 

proposed rule as being proposed for 

exclusion based on economics. We have 

modified the table to show that the 

habitat in Belfast Bay is excluded from 

critical habitat on the basis of economic 

cost in comparison with biological 

value. 

(5) A commenter questioned our use 

of the language ‘‘not likely to become 

threatened’’ that was used in the 

development of recovery criteria 

described in the section entitled 

Specific areas outside the geographical 

area occupied by the species * * * 

essential to the conservation of the 

species of the final rule, and suggested 

that our targets should be referred to as 

benchmarks for recovery. We modified 

this section of the final rule as well as 

the biological valuation by removing the 

language ‘‘not likely to become 

threatened’’. A recovered population is 

one that is neither threatened nor 

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endangered, or otherwise a population 

that is not likely to become an 

endangered species in the foreseeable 

future. The specific criteria that we have 

proposed for recovery for the sake of 

estimating the quantity of habitat 

needed to support a recovered 

population has not changed. The 

recovery criteria will remain as draft 

until they are more thoroughly 

examined through the recovery 

planning process. 

(6) According to multiple comments, 

the draft economic analysis 

underestimates the impacts of providing 

fish passage at hydropower facilities. 

Specifically, one comment notes that 

the draft economic analysis estimates 

the average cost of installing a fish lift 

to be $2.7 million whereas the 

installation of three known fish lifts 

over the past 15 years ranged in cost 

from $3.3 million to $7.8 million. 

Specific information on the fish lift and 

ladder costs were provided for FPL 

Energy hydro projects by the 

commenter. Likewise, Topsham Hydro 

Partners stated that its fish passage 

facilities cost in excess of $4 million. 

To address this, the final economic 

analysis incorporates the available 

project-specific cost estimates for fish 

ladders and lifts provided by the 

commenters to estimate the average 

costs of these project modifications. 

(7) Exhibit 3–10 in the draft economic 

analysis presents a range of impacts 

associated with decreased power 

production in May in the case that 

changes in operations are requested for 

the purposes of salmon conservation. A 

commenter stated that the range 

presented is misleading as the low end 

cost represents the lost power 

generation being replaced by the next 

cheapest source of energy. By virtue of 

being a lower cost, however, this next 

cheapest source would already be on 

line. Therefore, only the highest cost 

replacement power would occur and 

only the high end costs should be 

considered. 

The final economic analysis was 

modified to address this comment by 

removing the low end cost of the range 

presented in the draft economic 

analysis, assuming the replacement 

generation will most likely come from 

natural gas. 

(8) A commenter stated that the draft 

economic analysis fails to show how the 

present value costs for each dam were 

calculated from the averages provided 

in the report. 

To address this comment exhibit 3–7 

from the draft economic analysis has 

been revised in the final economic 

analysis to make transparent the 

derivation of the per dam present value 

costs. 

(9) A commenter stated that NMFS 

should consider that hydropower is a 

clean and renewable energy source, and 

reducing its production and replacing it 

with increased burning of fossil fuels 

would have environmental costs. 

In the final economic analysis and 

energy impact analysis we incorporated 

a qualitative discussion recognizing that 

environmental costs would occur in the 

case that lost hydropower generation 

were replaced with increased burning of 

fossil fuels. 

(10) Brookfield Renewable Power Inc. 

commented that the draft economic 

analysis fails to include all of its dams 

within the study area, missing five dams 

on the West Branch of the Penobscot 

River which are part of Federal Energy 

Regulatory Commission (FERC) No. 

2634. Further, in the case of the 

Caucomgomoc Dam, the draft economic 

analysis does not accurately portray 

existing fish passages. 

The draft economic analysis considers 

four Brookfield Power dams on the 

Penobscot River as part of FERC No. 

2634. Due to information provided by 

Brookfield in follow up to this 

comment, the final economic analysis 

considers an additional four previously 

unlicensed dams that are now licensed 

and will be in operation this year along 

the West Branch of the Penobscot. 

Brookfield additionally provided 

information on the fish passage status of 

these dams. 

(11) The FERC stated that the draft 

economic analysis underestimates the 

number of tidal/wave energy projects 

that may be licensed over the 20-year 

time period of the analysis. The FERC 

anticipates that there may be as many as 

134 permit applications leading to about 

13 projects over the next 20 years. 

Chapter 3 of the final economic 

analysis has been revised to incorporate 

more information on the potential for 

future projects and their locations. To 

provide additional context, the analysis 

also describes modifications to 

hydrokinetic projects on the west coast 

that have been requested for projects 

affecting Pacific salmon. 

(12) The Regulatory Flexibility 

Analysis (RFA) describes the potential 

impact to small farms in terms of the 

percentage of estimated annual 

revenues. A commenter stated that a 

true impact on a small farm would be 

the impact on net income because the 

farm may benefit from economies of 

scale. For small farms, any reduction in 

income may put them out of business. 

In the RFA, the impacts to small 

farmers are presented as a percentage of 

annual revenue to provide perspective 

on the level of impact. We agree that 

presenting impacts as a percentage of 

net income would be appropriate and 

would do so if sufficient data were 

available. A qualitative discussion 

addressing this issue is incorporated in 

the final economic analysis. 

(13) A commenter stated that we were 

unclear on whether both upstream and 

downstream passage efficiency 

estimates were figured into the 85 

percent passage efficiency when 

calculating the functional habitat units. 

To determine whether any 

unoccupied habitat in the GOM DPS 

should be designated as critical habitat, 

we assessed the quantity of habitat for 

each HUC 10 watershed. The total 

quantity of habitat was then discounted 

to provide a functional habitat value 

based on the habitat’s quality and the 

number of dams within and below the 

HUC 10 watershed. Therefore, the 

functional value of areas with low 

quality habitat or dams would be less 

than the total measured habitat quantity. 

In the proposed rule we did not state 

whether the dams were figured into the 

equation to account for upstream, 

downstream, or both upstream and 

downstream migration. We modified the 

section of the final rule entitled 

‘‘Specific areas outside the geographical 

area occupied by the species * * * 

essential to the conservation of the 

species’’ to clarify that only downstream 

passage efficiency was figured into the 

equation to calculate functional habitat 

units. 

This was done because we designated 

habitat based on what was sufficient to 

support the offspring of a recovered 

population. We identified a recovered 

population for the purpose of 

designating critical habitat as 2,000 

adult spawners within each SHRU. The 

next generation of adult returns does not 

directly influence the quantity of 

nursery habitat needed to support the 

offspring of the original 2,000 adult 

spawners. Assuring that passage is 

sufficient to sustain the recovered 

population is part of the recovery 

strategy and is something that will be 

addressed in the recovery plan. 

(14) Several commenters indicated 

that the HUC labels are confusing and 

make interpretation difficult. 

The HUC 10 watershed delineations 

are pre-established watershed 

delineations made available through 

USGS. We used the names and HUC 

codes already established in the dataset 

for describing critical habitat. We 

acknowledge that some of the names 

can be misleading, but these codes and 

names are standardized by the USGS. In 

order to address the confusion regarding 

the names of the HUC 10s and where 

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the HUC 10 watersheds are specifically, 

we have provided a more detailed map 

in the end of the final rule and have also 

made detailed maps available on our 

Web site at http://www.nero.noaa.gov/ 

prot_res/altsalmon/. 

HUC 0104000203 and 0104000204 

were identified as being easily confused 

because both HUCs were assigned the 

name ‘‘Ellis River.’’ HUC 0104000204 is 

below Rumford Falls and includes the 

Swift River and is historical Atlantic 

salmon habitat while HUC 0104000203 

is above Rumford Falls and historically 

was not Atlantic salmon habitat. 

(15) One commenter stated that the 

approach outlined in the proposed 

critical habitat to assign cost thresholds 

and how specific areas were considered 

for economic exclusions needed further 

clarification. 

In the 4(b)(2) analysis, in order to 

compare economic cost to biological 

value, we needed to assign a value with 

which we could compare unlike values 

(e.g., dollar amounts vs. biological 

value). In order to create like values for 

both the economic costs and final 

biological values, we chose to bin the 

original data into three categories (high, 

medium, low) in order to make 

determinations of exclusions between 

the two variables. Clarification of the 

procedures used to bin economic cost is 

included in the 4(b)(2) report (NMFS, 

2009b) and in section III of this final 

rule. 

(16) The Navy commented stating that 

they are opposed to critical habitat for 

the Atlantic salmon on properties 

owned, controlled by, or designated for 

use by the Department of Defense 

pursuant to section 4(a)(3)(B)(i) and 

4(b)(2) of the ESA. Military sites with 

military missions excluded from critical 

habitat include: Brunswick Naval Air 

Station’s Main Station in Brunswick, 

ME; the Brunswick Naval Air Station’s 

Great Pond Outdoor Adventure Center 

(OAC) in the town of Great Pond; the 

Brunswick Naval Air Stations Cold 

Weather Survival, Evasion, Resistance, 

and Escape School (SERE) in Redington 

Township near Rangeley, ME, and the 

Brunswick Naval Air Station’s Naval 

Computer and Telecommunications 

Atlantic Detachment Center in Cutler, 

Maine. The Navy further requests that 

Bath Iron Works (BIW) in Bath, ME, be 

excluded from critical habitat. The Navy 

asserts that BIW conducts activities 

essential to the operations of the Navy’s 

fleet and the Navy describes these 

activities as inherent to national 

security. 

In the proposed rule we stated that we 

had contacted the Department of 

Defense and requested information on 

the existence of INRMPs for the 

Brunswick Naval Air Station’s Maine 

Station in Brunswick, and the Naval Air 

Station’s Cold Weather Survival, 

Evasion, Resistance, and Escape school 

and the benefits any INRMPs would 

provide to Atlantic salmon. If any 

INRMPs covering these sites were 

determined, in writing, to provide a 

benefit to Atlantic salmon, we would be 

precluded from designating the habitat 

within these sites (section 4(a)(3)(B)(i) of 

the ESA). INRMPs that provide a benefit 

to Atlantic salmon are in place for these 

two areas, and, therefore, these areas do 

not meet the definition of critical habitat 

and are not be included in this final 

rule. In this final rule we also exclude 

the Great Pond Outdoor Adventure 

Center in Great Pond, ME, the 

Brunswick Naval Air Station’s Naval 

Computer and Telecommunications 

Atlantic Detachment Center in Cutler, 

Maine, and Bath Iron Works in Bath, 

ME, based on the required benefits 

analysis of section 4(b)(2) of the ESA. A 

full description of military lands that do 

not meet the definition of critical habitat 

(section 4(a)(3)(B)(i) of the ESA or that 

are excluded under section 4(b)(2) of the 

ESA is included in this final rule under 

section V (Application of ESA Section 

4(a)(3)(B)(i)) and section VI (Application 

of ESA Section 4(b)(2)). 

(17) A commenter stated that though 

it may not be the intent of the NMFS, 

the commenter believes the current 

wording that implies that the presence 

of an Atlantic Salmon Federation (ASF) 

Fish Friends school program qualifies a 

watershed for designation as critical 

habitat. ASF wants to make sure that no 

areas within the DPS were considered 

occupied solely and exclusively because 

of the presence of juvenile salmon from 

the Fish Friends program. 

In the final rule section Identifying 

the Geographical Area Occupied by the 

Species and Specific Areas within the 

Geographical Area, we have taken out 

the reference to the Fish Friends school 

program as being an impetus for 

designating critical habitat in a specific 

area as there are no circumstances 

where a HUC 10 watershed was 

considered for designation as critical 

habitat solely based on the stocking of 

fish through the Fish Friends program. 

(18) In the final listing rule, the GOM 

DPS was redefined to exclude those 

areas outside the historic range of the 

species. In the re-defined DPS, the 

following impassable falls delimit the 

upstream extent of the freshwater range: 

Rumford Falls in the town of Rumford 

on the Androscoggin River; Snow Falls 

in the town of West Paris on the Little 

Androscoggin River; Grand Falls in 

Township 3 Range 4 BKP WKR, on the 

Dead River in the Kennebec Basin; the 

un-named falls (impounded by Indian 

Pond Dam) immediately above the 

Kennebec River Gorge in the town of 

Indian Stream Township on the 

Kennebec River; Big Niagara Falls on 

Nesowadnehunk Stream in Township 3 

Range 10 WELS in the Penobscot Basin; 

Grand Pitch on Webster Brook in Trout 

Brook Township in the Penobscot Basin; 

and Grand Falls on the Passadumkeag 

River in Grand Falls Township in the 

Penobscot Basin. 

In the critical habitat analysis, we 

analyzed the entire Penobscot, 

Androscoggin, Kennebec, and Downeast 

Coastal Basins. All of the HUC 10 

watersheds outside the historic range 

were determined to have no biological 

value to Atlantic salmon and were 

subsequently not evaluated for critical 

habitat with the exception of the 

Passadumkeag watershed (HUC code 

0102000503) in the Penobscot River 

watershed. The Passadumkeag 

watershed was determined to be 

occupied up to Grand Falls in Grand 

Falls Township, though it was assigned 

a biological value of ‘‘1’’ because of 

biological quality and habitat quantity. 

In the ESA section 4(b)(2) exclusion 

analysis, the Passadumkeag was 

excluded from designation because it 

was assigned an economic score of ‘‘2’’, 

subsequently qualifying this watershed 

for exclusion. Upon the redelineation of 

the GOM DPS, the Passadumkeag HUC 

10 watershed was cut in half so that the 

portion of the watershed below Grand 

Falls is within the GOM DPS, and the 

portion of the watershed above Grand 

Falls is outside the DPS. Given the new 

delineation, we needed to re-assess the 

biological value and economic cost 

scores, given that these evaluations were 

conducted for the entire HUC 10 

watershed. In doing so, the biological 

value of the Passadumkeag retained its 

score of ‘‘1,’’ given that during the 

biological valuation, these falls were 

taken into account. The economic 

analysis did not take into account Grand 

Falls in the assessment and therefore the 

economic impact for the Passadumkeag 

needed to be re-examined. In doing so, 

the economic impact to the 

Passadumkeag watershed was reduced 

to an estimated high impact of $550,000, 

though this is not below the threshold 

of $338,000 which would subsequently 

reduce the economic score from a 2 to 

a 1. Thus, the Passadumkeag Watershed 

is eligible for exclusion under the 

criteria that we established. 

(19) In the proposed rule (73 FR 

51747; September 5, 2008) summary 

paragraph, we stated that there were 

203,781 km of perennial river, stream, 

and estuary habitat proposed for 

designation as critical habitat. This 

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number was in error, and the actual 

kilometers proposed for designation was 

20,378 km. The habitat kilometers in the 

summary tables in part 226 of the 

proposed rule were correct. 

IV. Methods and Criteria Used To 

Identify Critical Habitat 

The following sections describe the 

relevant definitions and guidance found 

in the ESA and our implementing 

regulations, and the key methods and 

criteria we used to make these final 

critical habitat designations after 

incorporating, as appropriate, comments 

and information received on the 

proposed rule. Section 4 of the ESA (16 

U.S.C. 1533(b)(2)) and our regulations at 

50 CFR 424.12(a) require that we 

designate critical habitat, and make 

revisions thereto, ‘‘on the basis of the 

best scientific data available.’’ 

Critical habitat is defined by section 

3 of the ESA (and 50 CFR 424.02(d)) as 

‘‘(i) the specific areas within the 

geographic area occupied by the species, 

at the time it is listed in accordance 

with the provisions of [section 4 of this 

Act], on which are found those physical 

or biological features (I) essential to the 

conservation of the species and (II) 

which may require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed in accordance with the 

provisions of [section 4 of this Act], 

upon a determination by the Secretary 

that such areas are essential for the 

conservation of the species.’’ Section 3 

of the ESA (16 U.S.C. 1532(3)) also 

defines the terms ‘‘conserve,’’ 

‘‘conserving,’’ and ‘‘conservation’’ to 

mean ‘‘to use, and the use of, all 

methods and procedures which are 

necessary to bring any endangered 

species or threatened species to the 

point at which the measures provided 

pursuant to this chapter are no longer 

necessary.’’ 

Pursuant to our regulations, when 

identifying physical or biological 

features essential to conservation, we 

consider the following requirements of 

the species: (1) Space for individual and 

population growth, and for normal 

behavior; (2) food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; (3) cover or 

shelter; (4) sites for breeding, 

reproduction, or rearing of offspring; 

and, generally, (5) habitat that is 

protected from disturbance or 

representative of the historical 

geographical and ecological distribution 

of the species (see 50 CFR 424.12(b)). In 

addition to these factors, we also focus 

on the known physical and biological 

features (primary constituent elements 

or PCEs) within the occupied areas that 

are essential to the conservation of the 

species. The regulations identify PCEs 

as including, but not limited to, the 

following: roost sites, nesting grounds, 

spawning sites, feeding sites, seasonal 

wetland or dry land, water quality or 

quantity, host species or plant 

pollinator[s], geological formation, 

vegetation type, tide, and specific soil 

types. For an area containing PCEs to 

meet the definition of critical habitat, 

we must conclude that the PCEs in that 

area ‘‘may require special management 

considerations for protection.’’ Our 

regulations define special management 

considerations or protection as ‘‘any 

methods or procedures useful in 

protecting physical and biological 

features of the environment for the 

conservation of listed species.’’ Both the 

ESA and our regulations, in recognition 

of the divergent biological needs of 

species, establish criteria that are fact 

specific rather than ones that represent 

a ‘‘one size fits all’’ approach. 

Our regulations state that, ‘‘[t]he 

Secretary shall designate as critical 

habitat areas outside the geographic area 

presently occupied by the species only 

when a designation limited to its 

present range would be inadequate to 

ensure the conservation of the species’’ 

(50 CFR 424.12(e)). Accordingly, when 

the best available scientific data do not 

demonstrate that the conservation needs 

of the species so require, we will not 

designate critical habitat in areas 

outside the geographic area occupied by 

the species. 

Section 4 of the ESA (16 U.S.C. 

1533(b)(2)) requires that, before 

designating critical habitat we must 

consider the economic impacts, impacts 

on national security, and other relevant 

impacts of specifying any particular area 

as critical habitat, and the Secretary may 

exclude any area from critical habitat if 

the benefits of exclusion outweigh the 

benefits of designation, unless 

excluding an area from critical habitat 

will result in the extinction of the 

species. This exercise of discretion must 

be based upon the best scientific and 

commercial data (16 U.S.C. 1536(a)(2)). 

Once critical habitat is designated, 

section 7(a)(2) of the ESA requires that 

Federal agencies, in consultation with 

and with the assistance of NMFS, 

ensure that any action they authorize, 

fund, or carry out is not likely to result 

in the destruction or adverse 

modification of critical habitat. 

Atlantic Salmon Life History 

Atlantic salmon have a complex life 

history that ranges from territorial 

rearing in rivers to extensive feeding 

migrations on the high seas. During 

their life cycle, Atlantic salmon go 

through several distinct phases that are 

identified by specific changes in 

behavior, physiology, morphology, and 

habitat requirements. 

Adult Atlantic salmon return to rivers 

from the sea and migrate to their natal 

stream to spawn. Adults ascend the 

rivers of New England beginning in the 

spring. The ascent of adult salmon 

continues into the fall. Although 

spawning does not occur until late fall, 

the majority of Atlantic salmon in 

Maine enter freshwater between May 

and mid-July (Meister, 1958; Baum, 

1997). Early migration is an adaptive 

trait that ensures adults have sufficient 

time to effectively reach spawning areas 

despite the occurrence of temporarily 

unfavorable conditions that occur 

naturally (Bjornn and Reiser, 1991). 

Salmon that return in early spring spend 

nearly 5 months in the river before 

spawning; often seeking cool water 

refuge (e.g., deep pools, springs, and 

mouths of smaller tributaries) during the 

summer months. 

In the fall, female Atlantic salmon 

select sites for spawning. Spawning 

sites are positioned within flowing 

water, particularly where upwelling of 

groundwater occurs to allow for 

percolation of water through the gravel 

(Danie et al., 1984). These sites are most 

often positioned at the head of a riffle 

(Beland et al., 1982), the tail of a pool, 

or the upstream edge of a gravel bar 

where water depth is decreasing, water 

velocity is increasing (McLaughlin and 

Knight, 1987; White, 1942), and 

hydraulic head allows for permeation of 

water through the redd (a gravel 

depression where eggs are deposited). 

Female salmon use their caudal fin to 

scour or dig redds. The digging behavior 

also serves to clean the substrate of fine 

sediments that can embed the cobble/ 

gravel substrate needed for spawning 

and reduce egg survival (Gibson, 1993). 

As the female deposits eggs in the redd, 

one or more males fertilize the eggs 

(Jordan and Beland, 1981). The female 

then continues digging upstream of the 

last deposition site, burying the 

fertilized eggs with clean gravel. A 

single female may create several redds 

before depositing all of her eggs. Female 

anadromous Atlantic salmon produce a 

total of 1,500 to 1,800 eggs per kilogram 

of body weight, yielding an average of 

7,500 eggs per 2 sea-winter (SW) female 

(an adult female that has spent 2 winters 

at sea before returning to spawn) (Baum 

and Meister, 1971). After spawning, 

Atlantic salmon may either return to sea 

immediately or remain in freshwater 

until the following spring before 

returning to the sea (Fay et al., 2006). 

From 1967 to 2003, approximately three 

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percent of the wild and naturally reared 

adults that returned to rivers where 

adult returns are monitored—mainly the 

Penobscot River—were repeat spawners 

(USASAC, 2004). 

Embryos develop in the redd for a 

period of 175 to 195 days, hatching in 

late March or April (Danie et al., 1984). 

Newly hatched salmon, referred to as 

larval fry, alevin, or sac fry, remain in 

the redd for approximately 6 weeks after 

hatching and are nourished by their 

yolk sac (Gustafson-Greenwood and 

Moring, 1991). Survival from the egg to 

fry stage in Maine is estimated to range 

from 15 to 35 percent (Jordan and 

Beland, 1981). Survival rates of eggs and 

larvae are a function of stream gradient, 

overwinter temperatures, interstitial 

flow, predation, disease, and 

competition (Bley and Moring, 1988). 

Once larval fry emerge from the gravel 

and begin active feeding, they are 

referred to as fry. The majority of fry 

(>95 percent) emerge from redds at 

night (Gustafson-Marjanen and Dowse, 

1983). 

When fry reach approximately 4 cm 

in length, the young salmon are termed 

parr (Danie et al., 1984). Parr have eight 

to eleven pigmented vertical bands on 

their sides that are believed to serve as 

camouflage (Baum, 1997). A territorial 

behavior, first apparent during the fry 

stage, grows more pronounced during 

the parr stage as the parr actively defend 

territories (Allen, 1940; Kalleberg, 1958; 

Danie et al., 1984). Most parr remain in 

the river for 2 to 3 years before 

undergoing smoltification, the process 

in which parr go through physiological 

changes in order to transition from a 

freshwater environment to a saltwater 

marine environment. Some male parr 

may not go through smoltification and 

will become sexually mature and 

participate in spawning with sea-run 

adult females. These males are referred 

to as ‘‘precocious parr.’’ 

First year parr are often characterized 

as being small parr or 0+ parr (4 to 7 cm 

long), whereas second and third year 

parr are characterized as large parr 

(greater than 7 cm long) (Haines, 1992). 

Parr growth is a function of water 

temperature (Elliott, 1991), parr density 

(Randall, 1982), photoperiod 

(Lundqvist, 1980), interaction with 

other fish, birds, and mammals (Bjornn 

and Reiser, 1991), and food supply 

(Swansburg et al., 2002). Parr movement 

may be quite limited in the winter 

(Cunjak, 1988; Heggenes, 1990); 

however, movement in the winter does 

occur (Hiscock et al., 2002) and is often 

necessary, as ice formation reduces total 

habitat availability (Whalen et al., 

1999a). Parr have been documented 

using riverine, lake, and estuarine 

habitats; incorporating opportunistic 

and active feeding strategies; defending 

territories from competitors including 

other parr; and working together in 

small schools to actively pursue prey 

(Gibson, 1993; Marschall et al., 1998; 

Pepper, 1976; Pepper et al., 1984; 

Hutchings, 1986; Erkinaro et al., 1998; 

Halvorsen and Svenning, 2000; 

O’Connell and Ash, 1993; Dempson et 

al., 1996; Klemetsen et al., 2003). 

In a parr’s second or third spring (age 

1 or age 2 respectively), when it has 

grown to 12.5 to 15 cm in length, a 

series of physiological, morphological, 

and behavioral changes occurs (Schaffer 

and Elson, 1975). This process, called 

‘‘smoltification,’’ prepares the parr for 

migration to the ocean and life in salt 

water. In Maine, the vast majority of 

naturally reared parr remain in 

freshwater for 2 years (90 percent or 

more), with the balance remaining for 

either 1 or 3 years (USASAC, 2005). In 

order for parr to undergo smoltification, 

they must reach a critical size of 10 cm 

total length at the end of the previous 

growing season (Hoar, 1988). During the 

smoltification process, parr markings 

fade and the body becomes streamlined 

and silvery with a pronounced fork in 

the tail. Naturally reared smolts in 

Maine range in size from 13 to 17 cm, 

and most smolts enter the sea during 

May to begin their first ocean migration 

(USASAC, 2004). During this migration, 

smolts must contend with changes in 

salinity, water temperature, pH, 

dissolved oxygen, pollution levels, and 

predator assemblages. The physiological 

changes that occur during smoltification 

prepare the fish for the dramatic change 

in osmoregulatory needs that come with 

the transition from a fresh to a salt water 

habitat (Ruggles, 1980; Bley, 1987; 

McCormick and Saunders, 1987; 

McCormick et al., 1998). Smolts’ 

transition into seawater is usually 

gradual as they pass through a zone of 

fresh and saltwater mixing that typically 

occurs in a river’s estuary. Given that 

smolts undergo smoltification while 

they are still in the river, they are preadapted to make a direct entry into 

seawater with minimal acclimation 

(McCormick et al., 1998). This preadaptation to seawater is necessary 

under some circumstances where there 

is very little transition zone between 

freshwater and the marine environment. 

The spring migration of post-smolts 

out of the coastal environment is 

generally rapid, within several tidal 

cycles, and follows a direct route 

(Hyvarinen et al., 2006; Lacroix and 

McCurdy, 1996; Lacroix et al., 2004, 

2005). Post-smolts generally travel out 

of coastal systems on the ebb tide, and 

may be delayed by flood tides 

(Hyvarinen et al., 2006; Lacroix and 

McCurdy, 1996; Lacroix et al., 2004, 

2005), though Lacroix and McCurdy 

(1996) found that post-smolts exhibit 

active, directed swimming in areas with 

strong tidal currents. Studies in the Bay 

of Fundy and Passamaquoddy Bay 

suggest that post-smolts aggregate 

together and move near the coast in 

‘‘common corridors’’ and that postsmolt movement is closely related to 

surface currents in the bay (Hyvarinen 

et al., 2006; Lacroix and McCurdy, 1996; 

Lacroix et al., 2004). European postsmolts tend to use the open ocean for a 

nursery zone, while North American 

post-smolts appear to have a more nearshore distribution (Friedland et al., 

2003). Post-smolt distribution may 

reflect water temperatures (Reddin and 

Shearer, 1987) and/or the major surfacecurrent vectors (Lacroix and Knox, 

2005). Post-smolts live mainly on the 

surface of the water column and form 

shoals, possibly of fish from the same 

river (Shelton et al., 1997). 

During the late summer/autumn of the 

first year, North American post-smolts 

are concentrated in the Labrador Sea 

and off of the west coast of Greenland, 

with the highest concentrations between 

56° N. and 58° N. (Reddin, 1985; Reddin 

and Short, 1991; Reddin and Friedland, 

1993). The salmon located off Greenland 

are composed of 1 sea winter (1SW) 

fish; fish that have spent multiple years 

at sea (multi-sea winter fish, or MSW); 

and immature salmon from both North 

American and European stocks (Reddin, 

1988; Reddin et al., 1988). The first 

winter at sea regulates annual 

recruitment, and the distribution of 

winter habitat in the Labrador Sea and 

Denmark Strait may be critical for North 

American populations (Friedland et al., 

1993). In the spring, North American 

post-smolts are generally located in the 

Gulf of St. Lawrence, off the coast of 

Newfoundland, and on the east coast of 

the Grand Banks (Reddin, 1985; Dutil 

and Coutu, 1988; Ritter, 1989; Reddin 

and Friedland, 1993; Friedland et al., 

1999). 

Some salmon may remain at sea for 

another year or more before maturing. 

After their second winter at sea, the 

salmon over-winter in the area of the 

Grand Banks before returning to their 

natal rivers to spawn (Reddin and 

Shearer, 1987). Reddin and Friedland 

(1993) found non-maturing adults 

located along the coasts of 

Newfoundland, Labrador, and 

Greenland, and in the Labrador and 

Irminger Sea in the later summer/ 

autumn. 

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Identifying the Geographical Area 

Occupied by the Species and Specific 

Areas Within the Geographical Area 

To designate critical habitat for 

Atlantic salmon, as defined under 

Section 3(5)(A) of the ESA, we must 

identify specific areas within the 

geographical area occupied by the 

species at the time it is listed. The 

geographic range occupied by the GOM 

DPS of Atlantic salmon includes 

historically accessible freshwater habitat 

ranging from the Androscoggin River 

watershed in the south to the Dennys 

River watershed in the north (Fay et al., 

2006), as well as the adjacent estuaries 

and bays through which smolts and 

adults migrate. 

The geographic range occupied by the 

species extends out to the waters off 

Canada and Greenland, where post 

smolts complete their marine migration. 

However, critical habitat may not be 

designated within foreign countries or 

in other areas outside of the jurisdiction 

of the United States (50 CFR 424.12(h)). 

Therefore, for the purposes of critical 

habitat designation, the geographic area 

occupied by the species will be 

restricted to areas within the 

jurisdiction of the United States. This 

does not diminish the importance of 

habitat outside of the jurisdiction of the 

United States for the GOM DPS. In fact, 

a very significant factor limiting 

recovery for the species is marine 

survival, and increasing marine survival 

is a conservation priority in the recovery 

of the species. Though marine migration 

routes and feeding habitat off Canada 

and Greenland are critical to the 

survival and recovery of Atlantic 

salmon, the regulations prohibit 

designation of these areas as critical 

habitat. In designating critical habitat 

for Atlantic salmon, the emphasis is two 

fold: (1) Assuring that critical habitat 

essential for a recovered population is 

protected so that when marine 

conditions improve, sufficient habitat is 

available to support recovery; and (2) 

enacting appropriate management 

measures to enhance and improve 

critical habitat areas that are not fully 

functional because the features have 

been degraded from anthropogenic 

causes. 

Atlantic salmon are anadromous and 

spend a portion of life in freshwater and 

the remaining portion in the marine 

environment. Therefore, it is 

conceivable that some freshwater 

habitat may be vacant for up to 3 years 

under circumstances where populations 

are extremely low. While there may be 

no documented spawning in these areas 

for that period of time, they would still 

be considered occupied because salmon 

at sea would return to these areas to 

spawn. 

Current stock management and 

assessment efforts also need to be 

considered in deciding which areas are 

occupied, including the stocking 

program managed by USFWS and the 

Maine Department of Marine Resources 

(MDMR). Furthermore, in addition to 

stocking programs, straying from natural 

populations can result in the occupation 

of habitat. 

Hydrologic Unit Code (HUC) 10 

(Level 5 watersheds) described by 

Seaber et al. (1994) are considered the 

appropriate ‘‘specific areas’’ within the 

geographic area occupied by Atlantic 

salmon to be examined for the presence 

of physical or biological features and for 

the potential need for special 

management considerations or 

protections for these features. 

The HUC system was developed by 

the USGS Office of Water Data 

Coordination in conjunction with the 

Water Resources Council (Seaber et al., 

1994) and provides (1) a nationally 

accessible, coherent system of water-use 

data exchange; (2) a means of grouping 

hydrographical data; and (3) a 

standardized, scientifically grounded 

reference system (Laitta et al., 2004). 

The HUC system currently includes six 

nationally consistent, hierarchical levels 

of divisions, with HUC 2 (Level 1) 

‘‘Regions’’ being the largest (avg. 

459,878 sq. km.), and HUC 12 (Level 6) 

‘‘sub-watersheds’’ being the smallest 

(avg. 41–163 sq. km.). 

The HUC 10 (level 5) watersheds were 

used to identify ‘‘specific areas’’ because 

this scale accommodates the local 

adaptation and homing tendencies of 

Atlantic salmon, and provides a 

framework in which we can reasonably 

aggregate occupied river, stream, lake, 

and estuary habitats that contain the 

physical and biological features 

essential to the conservation of the 

species. Furthermore, many Atlantic 

salmon populations in the GOM DPS are 

currently managed at the HUC 10 

watershed scale. Therefore, we have a 

better understanding of the population 

status and the biology of salmon at the 

HUC 10 level, whereas less is known at 

the smaller HUC 12 sub-watershed 

scale. 

Specific areas delineated at the HUC 

10 watershed level correspond well to 

the biology and life history 

characteristics of Atlantic salmon. 

Atlantic salmon, like many other 

anadromous salmonids, exhibit strong 

homing tendencies (Stabell, 1984). 

Strong homing tendencies enhance a 

given individual’s chance of spawning 

with individuals having similar life 

history characteristics (Dittman and 

Quinn, 1996) that lead to the evolution 

and maintenance of local adaptations, 

and may also enhance their progeny’s 

ability to exploit a given set of resources 

(Gharrett and Smoker, 1993). Local 

adaptations allow local populations to 

survive and reproduce at higher rates 

than exogenous populations 

(Reisenbichler, 1988; Tallman and 

Healey, 1994). Strong homing 

tendencies have been observed in many 

Atlantic salmon populations. Stabell 

(1984) reported that fewer than 3 of 

every 100 salmon in North America and 

Europe stray from their natal river. In 

Maine, Baum and Spencer (1990) 

reported that 98 percent of hatcheryreared smolts returned to the watershed 

where they were stocked. Given the 

strong homing tendencies and life 

history characteristics of Atlantic 

salmon (Riddell and Leggett, 1981), we 

believe that the HUC 10 watershed level 

accommodates these local adaptations 

and the biological needs of the species 

and, therefore, is the most appropriate 

unit of habitat to delineate ‘‘specific 

areas’’ for consideration as part of the 

critical habitat designation process. 

Within the United States, the 

freshwater geographic range that the 

GOM DPS of Atlantic salmon occupies 

includes perennial river, lake, stream, 

and estuary habitat connected to the 

marine environment, ranging from the 

Androscoggin River watershed to the 

Dennys River watershed. Within this 

range, HUC 10 watersheds were 

considered ‘‘occupied’’ if they 

contained either of the PCEs (e.g., sites 

for spawning and rearing or sites for 

migration, described in more detail 

below) along with the features necessary 

to support spawning, rearing and/or 

migration. Additionally, the HUC 10 

watershed must meet either of the 

following criteria. The area is occupied 

if: 

(a) Redds or any life-stage of salmon 

have been documented in the HUC 10 

in the last 6 years, or the HUC 10 is 

believed to be occupied and contain the 

PCEs based on the best scientific 

information available and the best 

professional judgment of State and 

Federal biologists; or 

(b) The HUC is currently managed by 

the MDMR and the USFWS through an 

active stocking program in an effort to 

enhance or restore Atlantic salmon 

populations, or the area has been 

stocked within the last 6 years by 

MDMR or the USFWS, and juvenile 

salmon could reasonably be expected to 

migrate to the marine environment and 

return to that area as adults and spawn. 

One hundred and five HUC 10 

watersheds within the Penobscot, 

Kennebec, Androscoggin, and Downeast 

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Coastal basins were examined for 

occupancy based on the above criteria. 

Eighteen HUCs were determined to be 

outside the historic range of the species, 

and subsequently, populations in these 

HUCs were not included in the GOM 

DPS in the final listing rule. Though the 

HUC 10 watersheds outside the historic 

range of the species were included in 

the critical habitat biological valuation 

and economic analysis, since they are 

not occupied, they were not considered 

for designation and, therefore, not 

included in the critical habitat 4(b)(2) 

exclusion analysis. Of the remaining 86 

HUCs in the range of the GOM DPS as 

defined in the final rule, we concluded 

that 48 HUC 10 watersheds within the 

geographic range are occupied by the 

species at the time of listing. Estuaries 

and bays within the occupied HUC 10 

watersheds within the range of the GOM 

DPS are also included in the geographic 

range occupied by the species. 

Occupied areas also extend outside 

the estuary and bays of the GOM DPS 

as adults return from the marine 

environment to spawn and smolts 

migrate towards Greenland for feeding. 

We are not able at this time to identify 

the specific features characteristic of 

marine migration and feeding habitat 

within waters under U.S. jurisdiction 

essential to the conservation of Atlantic 

salmon and are, therefore, unable to 

identify the specific areas where such 

features exist. Therefore, specific areas 

of marine habitat are not designated as 

critical habitat. 

Physical and Biological Features in 

Freshwater and Estuary Specific Areas 

Essential to the Conservation of the 

Species 

We identify the physical and 

biological features essential for the 

conservation of Atlantic salmon that are 

found within the specific occupied 

areas identified in the previous section. 

To determine which features are 

essential to the conservation of the GOM 

DPS of Atlantic salmon, we first define 

what conservation means for this 

species. Conservation is defined in the 

ESA as using all methods and 

procedures which are necessary to bring 

any endangered or threatened species to 

the point at which the measures 

provided by the ESA are no longer 

necessary. Conservation, therefore, 

describes those activities and efforts 

undertaken to achieve recovery. For the 

GOM DPS, we have determined that the 

successful return of adult salmon to 

spawning habitat, spawning, egg 

incubation and hatching, juvenile 

survival during the rearing time in 

freshwater, and smolt migration out of 

the rivers to the ocean are all essential 

to the conservation of Atlantic salmon. 

Therefore, we identify features essential 

to successful completion of these life 

cycle activities. Although successful 

marine migration is also essential to the 

conservation of the species, we are not 

able to identify the essential features of 

marine migration and feeding habitat at 

this time. Therefore, as noted above, 

marine habitat areas are not designated 

as critical habitat. 

Within the occupied range of the Gulf 

of Maine DPS, Atlantic salmon PCEs 

include sites for spawning and 

incubation, sites for juvenile rearing, 

and sites for migration. The physical 

and biological features of the PCEs that 

allow these sites to be used successfully 

for spawning, incubation, rearing, and 

migration are the features of habitat 

within the GOM DPS that are essential 

to the conservation of the species. A 

detailed review of the physical and 

biological features required by Atlantic 

salmon is provided in Kircheis and 

Liebich (2007). As stated above, Atlantic 

salmon also use marine sites for growth 

and migration; however, we did not 

identify critical habitat within the 

marine environment because the 

specific physical and biological features 

of marine habitat that are essential for 

the conservation of the GOM DPS (and 

the specific areas on which these 

features might be found) cannot be 

identified. Unlike Pacific salmonids, 

some of which use near-shore marine 

environments for juvenile feeding and 

growth, Atlantic salmon migrate 

through the near-shore marine areas 

quickly during the month of May and 

early June. We have limited knowledge 

of the physical and biological features 

that the species uses in the marine 

environment. However, we have very 

little information on the specifics of 

these physical and biological features 

and how they may require special 

management considerations or 

protection. Therefore, we cannot 

accurately identify the specific areas 

where these features exist or what types 

of management considerations or 

protections may be necessary to protect 

these physical and biological features 

during the migration period. 

Detailed habitat surveys have been 

conducted in some areas within the 

range of the GOM DPS of Atlantic 

salmon, providing clear estimates of and 

distinctions between those sites most 

suited for spawning and incubation and 

those sites most used for juvenile 

rearing. These surveys are most 

complete for seven coastal watersheds: 

Dennys, East Machias, Machias, 

Pleasant, Narraguagus, Ducktrap, and 

Sheepscot watersheds; and portions of 

the Penobscot Basin, including portions 

of the East Branch Penobscot, portions 

of the Piscataquis and Mattawamkeag, 

Kenduskeag Stream, Marsh Stream, and 

Cove Brook; and portions of the 

Kennebec Basin, including a portion of 

the lower mainstem around the site of 

the old Edwards Dam and portions of 

the Sandy River. Throughout most of 

the range of the GOM DPS, however, 

this level of survey has not been 

conducted, and, therefore, this level of 

detail is not available. 

In order to determine habitat quantity 

for each HUC 10 we relied on a GIS 

based habitat prediction model (See 

appendix C of NMFS, 2009a). The 

model was developed using data from 

existing habitat surveys conducted in 

the Machias, Sheepscot, Dennys, Sandy, 

Piscataquis, Mattawamkeag, and 

Souadabscook Rivers. A combination of 

reach slope (change in elevation of a 

stream segment) derived from contour 

and digital elevation model (DEM) 

datasets, cumulative drainage area, and 

physiographic province were used to 

predict the total amount of rearing 

habitat within a reach. These features 

help to reveal stream segments with 

gradients that would likely represent 

areas of riffles or fast moving water, 

habitat most frequently used for 

spawning and rearing of Atlantic 

salmon. The variables included in the 

model accurately predict the presence of 

rearing habitat approximately 75 

percent of the time. We relied on the 

model to generate the habitat quantity 

present within each HUC 10 to provide 

consistent data across the range of the 

entire DPS and on existing habitat 

surveys to validate the output of the 

model. 

Although we have found the model to 

be nearly 75 percent accurate in 

predicting the presence of sites for 

spawning and rearing within specific 

areas, and we have an abundance of 

institutional knowledge on the physical 

and biological features that distinguish 

sites for spawning and sites for rearing, 

the model cannot be used to distinguish 

between sites for spawning and sites for 

rearing across the entire geographic 

range. This is because: (1) Sites used for 

spawning are also used for rearing; and 

(2) the model is unable to identify 

substrate features most frequently used 

for spawning activity, but rather uses 

landscape features to identify where 

stream gradient conducive to both 

spawning and rearing activity exists. As 

such, we have chosen to group sites for 

spawning and sites for rearing into one 

PCE. Therefore, sites for spawning and 

sites for rearing are discussed together 

throughout this analysis as sites for 

spawning and rearing. 

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In the section below, we identify the 

essential physical and biological 

features of spawning and rearing sites 

and migration sites found in the 

occupied areas described in the 

previous section. 

(A) Physical and Biological Features of 

the Spawning and Rearing PCE 

1. Deep, oxygenated pools and cover 

(e.g., boulders, woody debris, vegetation, 

etc.), near freshwater spawning sites, 

necessary to support adult migrants 

during the summer while they await 

spawning in the fall. Adult salmon can 

arrive at spawning grounds several 

months in advance of spawning activity. 

Adults that arrive early require holding 

areas in freshwater and estuarine areas 

that provide shade, protection from 

predators, and protection from other 

environmental variables such as high 

flows, high temperatures, and 

sedimentation. Early migration is an 

adaptive trait that ensures adults 

sufficient time to reach spawning areas 

despite the occurrence of temporarily 

unfavorable conditions that occur 

naturally (Bjornn and Reiser, 1991). 

Salmon that return in early spring spend 

nearly 5 months in the river before 

spawning; often seeking cool water 

refuge (e.g., deep pools, springs, and 

mouths of smaller tributaries) during the 

summer months. Large boulders or 

rocks, over-hanging trees, logs, woody 

debris, submerged vegetation, and 

undercut banks provide shade, reduce 

velocities needed for resting, and offer 

protection from predators (Giger, 1973). 

These features are essential to the 

conservation of the species to help 

ensure the survival and successful 

spawning of adult salmon. 

2. Freshwater spawning sites that 

contain clean, permeable gravel and 

cobble substrate with oxygenated water 

and cool water temperatures to support 

spawning activity, egg incubation, and 

larval development. Spawning activity 

in the Gulf of Maine DPS of Atlantic 

salmon typically occurs between midOctober and mid-November (Baum, 

1997) and is believed to be triggered by 

a combination of water temperature and 

photoperiod (Bjornn and Reiser, 1991). 

Water quantity and quality, as well as 

substrate type, are important for 

successful Atlantic salmon spawning. 

Water quantity can determine habitat 

availability, and water quality may 

influence spawning success. Substrate 

often determines where spawning 

occurs, and cover can influence survival 

rates of both adults and newly hatched 

salmon. 

Preferred spawning habitat contains 

gravel substrate with adequate water 

circulation to keep buried eggs well 

oxygenated (Peterson, 1978). Eggs in a 

redd are entirely dependent upon subsurface movement of water to provide 

adequate oxygen for survival and 

growth (Decola, 1970). Water velocity 

and permeability of substrate allow for 

adequate transport of well-oxygenated 

water for egg respiration (Wickett, 1954) 

and removal of metabolic waste that 

may accumulate in the redd during egg 

development (Decola, 1970; Jordan and 

Beland, 1981). Substrate permeability as 

deep as the egg pit throughout the 

incubation period is important because 

eggs are typically deposited at the 

bottom of the egg pit. 

Dissolved oxygen (DO) content is 

important for proper embryonic 

development and hatching. Embryos 

can survive when DO concentrations are 

below saturation levels, but their 

development is often subnormal due to 

delayed growth and maturation, 

performance, or delayed hatching 

(Doudoroff and Warren, 1965). In 

addition, embryos consume more 

oxygen (i.e., the metabolism of the 

embryo increases) when temperature 

increases (Decola, 1970). An increase in 

water temperature, however, decreases 

the amount of oxygen that the water can 

hold. During the embryonic stage when 

tissue and organs are developing and 

the demand for oxygen is quite high, 

embryos can only tolerate a narrow 

range of temperatures. These sites are 

essential for the conservation of the 

species because, without them, embryo 

development would not be successful. 

3. Freshwater spawning and rearing 

sites with clean, permeable gravel and 

cobble substrate with oxygenated water 

and cool water temperatures to support 

emergence, territorial development, and 

feeding activities of Atlantic salmon fry. 

The period of emergence and the 

establishment of feeding territories is a 

critical period in the salmon life cycle 

since at this time mortality can be very 

high. When fry leave the redd, they 

emerge through the interstitial spaces in 

the gravel to reach the surface. When 

the interstitial spaces become embedded 

with fine organic material or fine sand, 

emergence can be significantly impeded 

or prevented. Newly emerged fry prefer 

shallow, low velocity, riffle habitat with 

a clean gravel substrate. Territories are 

quickly established by seeking out areas 

of low velocities that occur in eddies in 

front of or behind larger particles that 

are embedded in areas of higher 

velocities to maximize drift of prey 

sources (Armstrong et al., 2002). Once a 

territory has been established, fry use a 

sit-and-wait strategy, feeding 

opportunistically on invertebrate drift. 

This strategy enables the fish to 

minimize energy expenditure while 

maximizing energy intake (Bachman, 

1984). These sites are essential for the 

conservation of the species because, 

without them, fry emergence would not 

be successful. 

4. Freshwater rearing sites with space 

to accommodate growth and survival of 

Atlantic salmon parr. When fry reach 

approximately 4 cm in length, the young 

salmon are termed parr (Danie et al., 

1984). The habitat in Maine rivers 

currently supports on average between 

five and ten large parr (age 1 or older) 

per 100 square meters of habitat, or one 

habitat unit (Elson, 1975; Baum, 1997). 

The amount of space available for 

juvenile salmon occupancy is a function 

of biotic and abiotic habitat features, 

including stream morphology, substrate, 

gradient, and cover; the availability and 

abundance of food; and the makeup of 

predators and competitors (Bjornn and 

Reiser, 1991). Further limiting the 

amount of space available to parr is 

their strong territorial instinct. Parr 

actively defend territories against other 

fish, including other parr, to maximize 

their opportunity to capture prey items. 

The size of the territory that a parr will 

defend is a function of the size and 

density of parr, food availability, the 

size and roughness of the substrate, and 

current velocity (Kalleberg, 1958; Grant 

et al., 1998). The amount of space 

needed by an individual increases with 

age and size (Bjornn and Reiser, 1991). 

Cover, including undercut banks, 

overhanging trees and vegetation, 

diverse substrates and depths, and some 

types of aquatic vegetation, can make 

habitat suitable for occupancy (Bjornn 

and Reiser, 1991). Cover can provide a 

buffer against extreme temperatures; 

protection from predators; increased 

food abundance; and protection from 

environmental variables such as high 

flow events and sedimentation. These 

features are essential to the conservation 

of the species because, without them, 

juvenile salmon would have limited 

areas for foraging and protection from 

predators. 

5. Freshwater rearing sites with a 

combination of river, stream, and lake 

habitats that accommodate parr’s ability 

to occupy many niches and maximize 

parr production. Parr prefer, but are not 

limited to, riffle habitat associated with 

diverse rough gravel substrate. The 

preference for these habitats by parr that 

use river and stream habitats supports a 

sit-and-wait feeding strategy intended to 

minimize energy expenditure while 

maximizing growth. Overall, large 

Atlantic salmon parr using river and 

stream habitats select for diverse 

substrates that predominately consist of 

boulder and cobble (Symons and 

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Heland, 1978; Heggenes, 1990; Heggenes 

et al., 1999). 

Parr can also move great distances 

into or out of tributaries and mainstems 

to seek out habitat that is more 

conducive to growth and survival 

(McCormick et al., 1998). This occurs 

most frequently as parr grow and they 

move from their natal spawning grounds 

to areas that have much rougher 

substrate, providing more suitable overwintering habitat and more food 

organisms (McCormick et al., 1998). In 

the fall, large parr that are likely to 

become smolts the following spring 

have been documented leaving summer 

rearing areas in some head-water 

tributaries and migrating downstream, 

though not necessarily entering the 

estuary or marine environment 

(McCormick et al., 1998). 

Though parr are typically stream 

dwellers, they also use pools within 

rivers and streams, dead-waters 

(sections of river or stream with very 

little to no gradient), and lakes within 

a river system as a secondary nursery 

area after emergence (Cunjak, 1996; 

Morantz et al., 1987; Erkinaro et al., 

1998). It is known that parr will use 

pool habitats during periods of low 

water, most likely as refuge from high 

temperatures (McCormick et al., 1998) 

and during the winter months to 

minimize energy expenditure and avoid 

areas that are prone to freezing or dewatering (Rimmer et al., 1984). Salmon 

parr may also spend weeks or months in 

the estuary during the summer (Cunjak 

et al., 1989, 1990; Power and Shooner, 

1966). These areas are essential to the 

conservation of the species to ensure 

survival and species persistence when 

particular habitats become less suitable 

or unsuitable for survival during periods 

of extreme conditions such as extreme 

high temperatures, extreme low 

temperatures, and droughts. 

6. Freshwater rearing sites with cool, 

oxygenated water to support growth and 

survival of Atlantic salmon parr. 

Atlantic salmon are cold water fish and 

have a thermal tolerance zone where 

activity and growth is optimal (Decola, 

1970). Small parr and large parr have 

similar temperature tolerances (Elliott, 

1991). Water temperature influences 

growth, survival, and behavior of 

juvenile Atlantic salmon. Juvenile 

salmon can be exposed to very warm 

temperatures (> 20 °C) in the summer 

and near freezing temperatures in the 

winter, and have evolved with a series 

of physiological and behavioral 

strategies that enables them to adapt to 

the wide range of thermal conditions 

that they may encounter. Parr’s optimal 

temperature for feeding and growth 

ranges from 15 ° to 19 °C (Decola, 1970). 

When water temperatures surpass 19 °C, 

feeding and behavioral activities are 

directed towards maintenance and 

survival. During the winter when 

temperatures approach freezing, parr 

reduce energy expenditures by spending 

less time defending territories, feeding 

less, and moving into slower velocity 

microhabitats (Cunjak, 1996). 

Oxygen consumption by parr is a 

function of temperature. As temperature 

increases, the demand for oxygen 

increases (Decola, 1970). Parr require 

highly oxygenated waters to support 

their active feeding strategy. Though 

salmon parr can tolerate oxygen levels 

below 6mg/l, both swimming activity 

and growth rates are restricted. These 

features are essential to the conservation 

of the species because high and low 

water temperatures and low oxygen 

concentrations can result in the 

cessation of feeding activities necessary 

for juvenile growth and survival and can 

result in direct mortality. 

7. Freshwater rearing sites with 

diverse food resources to support growth 

and survival of Atlantic salmon parr. 

Atlantic salmon require sufficient 

energy to meet their basic metabolic 

needs for growth and reproduction 

(Spence et al., 1996). Parr largely 

depend on invertebrate drift for 

foraging, and actively defend territories 

to assure adequate food resources 

needed for growth. Parr feed on larvae 

of mayflies, stoneflies, chironomids, 

caddisflies, blackflies, aquatic annelids, 

and mollusks, as well as numerous 

terrestrial invertebrates that fall into the 

river (Scott and Crossman, 1973; Nislow 

et al., 1999). As parr grow, they will 

occasionally eat small fishes, such as 

alewives, dace, or minnows (Baum, 

1997). 

Atlantic salmon attain energy from 

food sources that originate from both 

allochthonous (outside the stream) and 

autochthonous (within the stream) 

sources. What food is available to parr 

and how food is obtained is a function 

of a river’s hydrology, geomorphology, 

biology, water quality, and connectivity 

(Annear et al., 2004). The riparian zone 

is a fundamental component to both 

watershed and ecosystem function, as it 

provides critical physical and biological 

linkages between terrestrial and aquatic 

environments (Gregory et al., 1991). 

Flooding of the riparian zone is an 

important mechanism needed to 

support the lateral transport of nutrients 

from the floodplain back to the river 

(Annear et al., 2004). Lateral transport 

of nutrients and organic matter from the 

riparian zone to the river supports the 

growth of plant, plankton, and 

invertebrate communities. Stream 

invertebrates are the principle linkage 

between the primary producers and 

higher trophic levels, including salmon 

parr. These features are essential to the 

conservation of the species, as parr 

require these food items for growth and 

survival. 

(B) Physical and Biological Features of 

the Migration PCE 

1. Freshwater and estuary migratory 

sites free from physical and biological 

barriers that delay or prevent access of 

adult salmon seeking spawning grounds 

needed to support recovered 

populations. Adult Atlantic salmon 

returning to their natal rivers or streams 

require migration sites free from barriers 

that obstruct or delay passage to reach 

their spawning grounds at the proper 

time for effective spawning (Bjornn and 

Reiser, 1991). Physical and biological 

barriers within migration sites can 

prevent adult salmon from effectively 

spawning either by preventing access to 

spawning habitat or impairing a fish’s 

ability to spawn effectively by delaying 

migration or impairing the health of the 

fish. Migration sites free from physical 

and biological barriers are essential to 

the conservation of the species because, 

without them, adult Atlantic salmon 

would not be able to access spawning 

grounds needed for egg deposition and 

embryo development. 

2. Freshwater and estuary migration 

sites with pool, lake, and instream 

habitat that provide cool, oxygenated 

water and cover items (e.g., boulders, 

woody debris, and vegetation) to serve 

as temporary holding and resting areas 

during upstream migration of adult 

salmon. Atlantic salmon may travel as 

far as 965 km upstream to spawn 

(NEFMC, 1998). During migration, adult 

salmon require holding and resting 

areas that provide the necessary cover, 

temperature, flow, and water quality 

conditions needed to survive. Holding 

areas can include areas in rivers and 

streams, lakes, ponds, and even the 

ocean (Bjornn and Reiser, 1991). 

Holding areas are necessary below 

temporary seasonal migration barriers 

such as those created by flow, 

temperature, turbidity, and temporary 

obstructions such as debris jams and 

beaver dams, and adjacent to spawning 

areas. Adult salmon can become 

fatigued when ascending high velocity 

riffles or falls and require resting areas 

within and around high velocity waters 

where they can recover until they are 

able to continue their migration. 

Holding areas near spawning areas are 

necessary when upstream migration is 

not delayed and adults reach spawning 

areas before they are ready to spawn. 

These features are essential to the 

conservation of the species because, 

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without them, adult Atlantic salmon 

would be subject to fatigue, predation, 

and mortality from exposure to 

unfavorable conditions, significantly 

reducing spawning success. 

3. Freshwater and estuary migration 

sites with abundant, diverse native fish 

communities to serve as a protective 

buffer against predation. Adult Atlantic 

salmon and Atlantic salmon smolts 

interact with other diadromous species 

indirectly. Adult and smolt migration 

through the estuary often coincides with 

the presence of alewives (Alosa spp.), 

American shad (Alosa sapidissima), 

blueback herring (Alosa aestivalis), and 

striped bass (Morone saxatilis). The 

abundance of diadromous species 

present during adult migration may 

serve as an alternative prey source for 

seals, porpoises and otters (Saunders et 

al., 2006). As an example, pre-spawned 

adult shad enter rivers and begin their 

upstream spawning migration at 

approximately the same time as early 

migrating adult salmon (Fay et al., 

2006). Historically, shad runs were 

considerably larger than salmon runs 

(Atkins and Foster, 1867; Stevenson, 

1898). Thus, native predators of 

medium to large size fish in the 

estuarine and lower river zones could 

have preyed on these 1.5 to 2.5 kg size 

fish readily (Fay et al., 2006; Saunders 

et al., 2006). In the absence or reduced 

abundance of these diadromous fish 

communities, it would be expected that 

Atlantic salmon will likely become 

increasingly targeted as forage by large 

predators (Saunders et al., 2006). 

As Atlantic salmon smolts pass 

through the estuary during migration 

from their freshwater rearing sites to the 

marine environment, they experience 

high levels of predation. Predation rates 

through the estuary often result in up to 

50 percent mortality during this 

transition period between freshwater to 

the marine environment (Larsson, 1985). 

There is, however, large annual 

variation in estuarine mortality, which 

is believed to be dependent upon the 

abundance and availability of other prey 

items including alewives, blueback 

herring, and American shad, as well as 

the spatial and temporal distribution 

and abundance of predators (Anthony, 

1994). 

The presence and absence of coevolutionary diadromous species such 

as alewives, blueback herring, and 

American shad likely play an important 

role in mitigating the magnitude of 

predation on smolts from predators such 

as striped bass, double-crested 

cormorants (Phalacrocorax auritus), and 

ospreys (Pandion haliaetus). The 

migration time of pre-spawned adult 

alewives overlaps in time and space 

with the migration of Atlantic salmon 

smolts (Saunders et al., 2006). Given 

that when alewife populations are 

robust, alewife numbers not only likely 

greatly exceed densities of Atlantic 

salmon smolts, making them more 

available to predators, but the caloric 

content per individual alewife is greater 

than that of an Atlantic salmon smolt 

(Schulze, 1996), likely making the 

alewife a more desirable prey species 

(Saunders et al., 2006). These features 

are essential to the conservation of the 

species because, without highly prolific 

abundant alternate prey species such as 

alewives and shad, the less prolific 

Atlantic salmon will likely become a 

preferred prey species. 

4. Freshwater and estuary migration 

sites free from physical and biological 

barriers that delay or prevent emigration 

of smolts to the marine environment. 

Atlantic salmon smolts require an open 

migration corridor from their juvenile 

rearing habitat to the marine 

environment. Seaward migration of 

smolts is initiated by increases in river 

flow and temperature in the early spring 

(McCleave, 1978; Thorpe and Morgan, 

1978). Migration through the estuary is 

believed to be the most challenging 

period for smolts (Lacroix and 

McCurdy, 1996). Although it is difficult 

to generalize migration trends because 

of the variety of estuaries, Atlantic 

salmon post-smolts tend to move 

quickly through the estuary and enter 

the ocean within a few days or less 

(Lacroix et al., 2004; Hyvarinen et al., 

2006; McCleave, 1978). In the upper 

estuary, where river flow is strong, 

Atlantic salmon smolts use passive drift 

to travel (Moore et al., 1995; Fried et al., 

1978; LaBar et al., 1978). In the lower 

estuary smolts display active swimming, 

although their movement is influenced 

by currents and tides (Lacroix and 

McCurdy, 1996; Moore et al., 1995; 

Holm et al., 1982; Fried et al., 1978). In 

addition, although some individuals 

seem to utilize a period of saltwater 

acclimation, some fish have no apparent 

period of acclimation (Lacroix et al., 

2004). Stefansson et al. (2003) found 

that post-smolts adapt to seawater 

without any long-term physiological 

impairment. Several studies also suggest 

that there is a ‘‘survival window’’ which 

is open for several weeks in the spring, 

and gradually closes through the 

summer, during which time salmon can 

migrate more successfully (Larsson, 

1977; Hansen and Jonsson, 1989; 

Hansen and Quinn, 1998). These 

features are essential to the conservation 

of the species because a delay in 

migration of smolts can result in the loss 

of the smolts’ ability to osmoregulate in 

the marine environment, a necessary 

adaptation for smolt survival. 

5. Freshwater and estuary migration 

sites with sufficiently cool water 

temperatures and water flows that 

coincide with diurnal cues to stimulate 

smolt migration. The process of 

smoltification is triggered in response to 

environmental cues. Photoperiod and 

temperature have the greatest influence 

on regulating the smolting process. 

Increase in day length is necessary for 

smolting to occur (Duston and 

Saunders, 1990). McCormick et al., 

(1999) noted that in spite of wide 

temperature variations among rivers 

throughout New England, almost all 

smolt migrations begin around the first 

of May and are nearly complete by the 

first week in June. However, the time 

that it takes for the smoltification 

process to be completed appears to be 

closely related to water temperature. 

When water temperatures increase, the 

smolting process is advanced, evident 

by increases in Na+, K+-ATPase 

activity—the rate of exchange of sodium 

(Na+) and potassium (K+) ions across 

the gill membrane or the regulation of 

salts that allow smolts to survive in the 

marine environment (Johnston and 

Saunders, 1981; McCormick et al., 1998; 

McCormick et al., 2002). In addition to 

playing a role in regulating the 

smoltification process, high 

temperatures also are responsible for the 

cessation of Na+, K+-ATPase activity of 

smolts, limiting their ability to excrete 

excess salts when they enter the marine 

environment. McCormick et al. (1999) 

found significant decreases in Na+, K+- 

ATPase activity in smolts at the end of 

the migration period, but also found that 

smolts in warmer rivers had reductions 

in Na+, K+-ATPase activity earlier than 

smolts found in colder rivers. Hence any 

delay of migration has the potential to 

reduce survival of out-migrating smolts 

because as water temperatures rise over 

the spring migration period, smolts 

experience a reduction in Na+, K+- 

ATPase, reducing their ability to 

regulate salts as they enter the marine 

environment. Though flow does not 

appear to play a role in the 

smoltification process, flow does appear 

to play an important role in stimulating 

a migration response (Whalen et al.,, 

1999b). Whalen et al. (1999b) recorded 

that there was no apparent downstream 

migration following a high flow event in 

mid-to late April in a Vermont river 

when water temperatures were between 

3 and 6 °C; however, when water 

temperatures reached 8 to 12 °C, small 

peaks in discharge resulted in 

corresponding increases in smolt 

migration. These features are essential 

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to the conservation of the species 

because elevated water temperatures 

that occur in advance of a smolt’s 

diurnal cues to migrate can result in a 

decreased migration window in which 

smolts are capable of transitioning into 

the marine environment. A decrease in 

the migration window has the potential 

to reduce survival of smolts especially 

for fish with greater migration distances. 

6. Freshwater migration sites with 

water chemistry needed to support sea 

water adaptation of smolts. The effects 

of acidity on Atlantic salmon have been 

well documented. The effects of acidity 

cause ionoregulatory failure in Atlantic 

salmon smolts while in freshwater 

(Rosseland and Skogheim, 1984; Farmer 

et al., 1989; Staurnes et al., 1993, 1996). 

This inhibition of gill Na+, K+-ATPase 

activity can cause the loss of plasma 

ions and may result in reduced seawater 

tolerance (Rosseland and Skogheim, 

1984; Farmer et al., 1989; Staurnes et 

al., 1993, 1996) and increased 

cardiovascular disturbances (Milligan 

and Wood, 1982; Brodeur et al., 1999). 

Parr undergoing parr/smolt 

transformation become more sensitive to 

acidic water, hence, water chemistry 

that is not normally regarded as toxic to 

other salmonids may be toxic to smolts 

(Staurnes et al., 1993, 1995). This is true 

even in rivers that are not chronically 

acidic and not normally considered as 

being in danger of acidification 

(Staurnes et al., 1993, 1995). Atlantic 

salmon smolts are most vulnerable to 

low pH in combination with elevated 

levels of monomeric labile species of 

aluminum (aluminum capable of being 

absorbed across the gill membrane) and 

low calcium (Rosseland and Skogheim, 

1984; Rosseland et al., 1990; Kroglund 

and Staurnes, 1999). These features are 

essential to the conservation of the 

species because Atlantic salmon smolts 

exposed to acidic waters can lose sea 

water tolerance, which can result in 

direct mortality or indirect mortality 

from altered behavior and fitness. 

Special Management Considerations or 

Protections 

Specific areas within the geographic 

area occupied by a species may be 

designated as critical habitat only if they 

contain physical or biological features 

essential to the conservation of the 

species that ‘‘may require special 

management considerations or 

protection.’’ It is the features and not the 

specific areas that are the focus of the 

‘‘may require’’ provision. Use of the 

disjunctive ‘‘or’’ also suggests the need 

to give distinct meaning to the terms 

‘‘special management considerations’’ 

and ‘‘protection.’’ ‘‘Protection’’ suggests 

actions to address a negative impact. 

‘‘Management’’ seems broader than 

protection, and could include active 

manipulation of the feature or aspects of 

the environment. The ESA regulations 

at 50 CFR 424.02(j) further define 

special management considerations as 

‘‘any methods or procedures useful in 

protecting physical and biological 

features of the environment for the 

conservation of listed species.’’ The 

term ‘‘may’’ was the focus of two 

Federal district courts that ruled that 

features can meet this provision because 

of either a present requirement for 

special management considerations or 

protection or possible future 

requirements (see Center for Biol. 

Diversity v. Norton, 240 F. Supp. 2d 

1090 (D. Ariz. 2003); Cape Hatteras 

Access Preservation Alliance v. DOI, 

344 F. Supp. 2d 108 (D.D.C. 2004)). The 

Arizona district court ruled that the 

provision cannot be interpreted to mean 

that features already covered by an 

existing management plan must be 

determined to require additional special 

management, because the term 

additional is not in the statute. Rather, 

the court ruled that the existence of 

management plans may be evidence that 

the features in fact require special 

management (Center for Biol. Diversity 

v. Norton, 240 F. Supp. 2d at 1096– 

1100). The need for special management 

considerations or protection need not be 

immediate, but it is required that the 

specific area designated have features 

which, in the future, may require 

special consideration or protection 

(Cape Hatteras, 344 F. Supp. 2d at 123– 

124). 

The primary impacts of critical 

habitat designation result from the 

consultation requirements of ESA 

section 7(a)(2). Federal agencies must 

consult with NMFS to ensure that their 

actions are not likely to result in the 

destruction or adverse modification of 

critical habitat (or jeopardize the 

species’ continued existence). These 

impacts are attributed only to the 

designation (i.e., are incremental 

impacts of the designation) if Federal 

agencies modify their proposed actions 

to ensure they are not likely to destroy 

or adversely modify the critical habitat 

beyond any modifications they would 

make because of listing and the 

requirement to avoid jeopardy. 

Incremental impacts of designation 

include State and local protections that 

may be triggered as a result of 

designation and education of the public 

about the importance of an area for 

species conservation. When a 

modification is required due to impacts 

both to the species and critical habitat, 

the impact of the designation is 

considered to be co-extensive with ESA 

listing of the species. The ESA 4(b)(2) 

Report (NMFS, 2009b) and Economic 

Analysis (IEc, 2009a) describe the 

impacts in detail. These reports identify 

and describe potential future Federal 

activities that would trigger section 7 

consultation requirements because they 

may affect the essential physical and 

biological features. 

We identified a number of activities 

and associated threats that may affect 

the PCEs and associated physical and 

biological features essential to the 

conservation of Atlantic salmon within 

the occupied range of the GOM DPS. 

These activities, which include 

agriculture, forestry, changing land-use 

and development, hatcheries and 

stocking, roads and road crossings, 

mining, dams, dredging, and 

aquaculture have the potential to reduce 

the quality and quantity of the PCEs and 

their associated physical and biological 

features. There are other threats to 

Atlantic salmon habitat, including 

acidification of surface waters. 

However, we are not able to clearly 

separate out the specific activities 

responsible for acidification, and 

therefore, are unable to specifically 

identify a Federal nexus. 

TABLE 1—SPECIFIC AREAS WITHIN THE GEOGRAPHIC AREA OCCUPIED BY A SPECIES AND THE ASSOCIATED SPECIAL

MANAGEMENT CONSIDERATIONS OR PROTECTIONS THAT MAY BE REQUIRED

HUC code Watershed name Special management considerations* 

105000205 .............. Machias River ..................................................................................................... A F C/L H/S R Da Dr 

105000204 .............. East Machias River ............................................................................................. A F C/L H/S R M Da Dr 

105000208 .............. Pleasant River ..................................................................................................... A F C/L H/S R M Da Dr 

105000201 .............. Dennys River ....................................................................................................... A F C/L H/S R M Da Dr 

105000207 .............. Chandler River .................................................................................................... A F C/L H/S R M Da Dr 

105000209 .............. Narraguagus River .............................................................................................. A F C/L H/S R M Da Dr 

105000213 .............. Union River Bay .................................................................................................. A F C/L H/S R M Da Dr Q 

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TABLE 1—SPECIFIC AREAS WITHIN THE GEOGRAPHIC AREA OCCUPIED BY A SPECIES AND THE ASSOCIATED SPECIAL

MANAGEMENT CONSIDERATIONS OR PROTECTIONS THAT MAY BE REQUIRED—Continued 

HUC code Watershed name Special management considerations* 

105000203 .............. Grand Manan Channel ........................................................................................ A F C/L H/S R M Da Dr Q 

105000206 .............. Roque Bluffs Coastal .......................................................................................... A F C/L H/S R M Da Dr 

105000210 .............. Tunk Stream ........................................................................................................ A F C/L H/S R Da Dr 

105000212 .............. Graham Lake ...................................................................................................... A F C/L H/S R M Da 

102000202 .............. Grand Lake Matagamon ..................................................................................... A F C/L H/S R Da 

102000203 .............. East Branch Penobscot River ............................................................................. A F C/L H/S R 

102000204 .............. Seboeis River ...................................................................................................... A F C/L H/S R Da 

102000205 .............. East Branch Penobscot River ............................................................................. A F C/L H/S R Da 

102000301 .............. West Branch Mattawamkeag River .................................................................... A F C/L H/S R M Da 

102000302 .............. East Branch Mattawamkeag River ..................................................................... A F C/L H/S R M 

102000303 .............. Mattawamkeag River .......................................................................................... A F C/L H/S R M 

102000305 .............. Mattawamkeag River .......................................................................................... A F C/L H/S R M 

102000306 .............. Molunkus Stream ................................................................................................ A F C/L H/S R 

102000307 .............. Mattawamkeag River .......................................................................................... A F C/L H/S R M Da 

102000401 .............. Piscataquis River ................................................................................................ A F C/L H/S R Da 

102000402 .............. Piscataquis River ................................................................................................ A F C/L H/S R M Da 

102000404 .............. Pleasant River ..................................................................................................... A F C/L H/S R Da 

102000405 .............. Seboeis Stream ................................................................................................... A F C/L H/S R Da 

102000406 .............. Piscataquis River ................................................................................................ A F C/L H/S R M Da 

102000501 .............. Penobscot River at Mattawamkeag .................................................................... A F C/L H/S M Da 

102000502 .............. Penobscot River at West Enfield ........................................................................ A F C/L H/S R M Da 

102000503 .............. Passadumkeag River .......................................................................................... A F C/L H/S R M Da 

102000505 .............. Sunkhaze Stream ................................................................................................ A F C/L H/S R 

102000506 .............. Penobscot River at Orson Island ........................................................................ A F C/L H/S R M 

102000507 .............. Birch Stream ....................................................................................................... A F C/L H/S R M 

102000509 .............. Penobscot River at Veazie Dam ......................................................................... A F C/L H/S R M Da 

102000510 .............. Kenduskeag Stream ............................................................................................ A F C/L H/S R M Da Dr 

102000511 .............. Souadabscook Stream ........................................................................................ A F C/L H/S R M Da Dr 

102000512 .............. Marsh River ......................................................................................................... A F C/L H/S M Da Dr 

102000513 .............. Penobscot River .................................................................................................. A F C/L H/S R M Da Dr 

105000218 .............. Belfast Bay .......................................................................................................... A F C/L H/S R M Da Dr 

105000219 .............. Ducktrap River .................................................................................................... A F C/L H/S R Da Dr Q 

105000301 .............. St. George River ................................................................................................. A F C/L H/S R M Da Dr 

105000302 .............. Medomak River ................................................................................................... A F C/L H/S R M Da Dr 

105000305 .............. Sheepscot River .................................................................................................. A F C/L H/S R M Da Dr 

103000306 .............. Kennebec River at Waterville Dam ..................................................................... A F C/L H/S R M Da Dr 

103000305 .............. Sandy River ......................................................................................................... A F C/L H/S R M Da Dr 

103000312 .............. Kennebec at Merrymeeting Bay ......................................................................... A F C/L H/S R M Da Dr 

105000306 .............. Sheepscot Bay .................................................................................................... A F C/L H/S R M Da Dr 

105000307 .............. Kennebec River Estuary ..................................................................................... A F C/L H/S R M Da Dr 

104000210 .............. Little Androscoggin River .................................................................................... A F C/L H/S R M Da Dr 

* A = Agriculture; F = Forestry; C/L = Changing Land Use; H/S = Hatcheries and Stocking; R = Roads and Road Crossings; M = Mining; Da = 

Dams; Dr = Dredging; Q = Aquaculture. 

‘‘Specific Areas Outside the 

Geographical Area Occupied by the 

Species * * * Essential to the 

Conservation of the Species’’ 

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

defines ‘‘critical habitat’’ as ‘‘specific 

areas outside the geographical area 

occupied by the species at the time it is 

listed in accordance with the provisions 

of [section 4 of this Act], upon a 

determination by the Secretary that such 

areas are essential for the conservation 

of the species.’’ For the reasons stated 

above in the discussion of specific 

occupied areas, we delineated the 

specific areas outside the geographic 

area occupied by the species using HUC 

10 (level 5) watersheds. To determine 

whether these unoccupied areas are 

essential for the conservation of the 

species, we: (1) established recovery 

criteria to determine when the species 

no longer warrants the protections of the 

ESA (See NMFS, 2009a (Appendix A)) 

and the amount of habitat needed to 

support the recovered population; and 

(2) determined the amount of habitat 

currently occupied by the species 

relative to the amount of habitat 

necessary to achieve recovery. 

In developing recovery criteria, we 

employed a strategy of identifying both 

geographic and population level criteria, 

that, if met would protect the DPS from 

demographic and environmental 

variation to the extent in which the 

population would no longer require 

protection under the ESA. Geographic 

criteria were established to assure that 

Atlantic salmon are well distributed 

across the range of the DPS to 

accommodate the metapopulation 

characteristics of Atlantic salmon. 

Atlantic salmon have strong homing 

characteristics that allow local breeding 

populations to become well adapted to 

a particular environment. At the same 

time, limited straying does occur among 

salmon populations assuring population 

diversity through exchange of some 

genes between populations, and 

allowing for population expansion and 

recolonization of extirpated 

populations. To accommodate these life 

history characteristics, we established a 

geographic framework represented by 

three Salmon Habitat Recovery Units, or 

SHRUs, within the DPS (see NMFS, 

2009a (appendix A)) that would, we 

believe, be reasonably protective of 

these life history characteristics and to 

ensure that Atlantic salmon are widely 

distributed across the range of the DPS 

to provide protection from demographic 

and environmental variation. As 

explained in more detail in the 

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29324 Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 

Recovery Criteria (NMFS, 2009a 

(Appendix A)), we determined that all 

three SHRUs must fulfill the criteria 

described below for the overall species, 

the GOM DPS, to be considered 

recovered. 

Criteria 

Population level criteria were 

established to assure that a recovered 

population is likely to be sufficiently 

robust to withstand natural 

demographic variability (e.g., periods of 

low marine survival) and not likely to 

become an endangered species in the 

foreseeable future. We concluded that a 

census population of 500 adult returns 

(assuming a 1:1 sex ratio) in each SHRU 

is to be used as a benchmark to evaluate 

the population as either recovered or 

one that requires protection under the 

ESA. Franklin (1980) introduced 500 as 

the approximate effective population 

size necessary to retain sufficient 

genetic variation and long term 

persistence of a population. 

We have chosen to use a census 

population (N) (the actual count of adult 

returns) of 500 adult returns in each 

SHRU to serve as a benchmark to 

evaluate the population as either 

recovered or one that requires 

protection under the ESA. We used the 

census number rather than an effective 

population size for four reasons: (1) The 

adult census through redd counts or 

trap catches have been used as the 

principal indicator of population health 

in the GOM DPS since Charles Atkins 

first started estimating returns in the 

mid to late 1800s. At this time, there are 

not sufficient resources or time to fully 

assess the effective population size of 

the entire Gulf of Maine DPS on an 

annual basis, whereas sufficient 

resources are already in place to 

reasonably assess the census 

population; (2) a census population of 

500 adults per SHRU provides a starting 

point only for establishing criteria for 

delisting and does not represent the 

actual number at which the population 

warrants delisting. Other pre-decision 

criteria must also be met for delisting as 

described in the following paragraph: 

(3) Atlantic salmon have tremendously 

complex life histories allowing for great 

opportunity for extensive cross 

generational breeding. This is because of 

salmon’s iteroparity and because 

precocious parr, one-sea winter and 

multi-sea winter fish can all participate 

in spawning activity. Having multigenerational participation in spawning 

activity significantly reduces the 

effective population to census 

population ratio, but furthermore, 

makes determining the actual Ne/N 

ratios extremely difficult and highly 

debatable for the natural population; (4) 

Though there has been much debate in 

the literature regarding the application 

of assigning a general number to 

represent when populations are 

sufficiently large enough to maintain 

genetic variation (Allendorf and Luikart, 

2007; Waples & Yokota, 2007; Reiman & 

Allendorf, 2001), the 500 rule 

introduced by Franklin (1980) has not 

been superseded by any other rule and 

does serve as useful guidance for 

indicating when a population may be at 

risk of losing genetic variability 

(Allendorf and Luikart, 2007). 

To evaluate recovery of the GOM DPS, 

we have determined that five criteria 

must be met: (1) The adult spawner 

population of each SHRU must be 500 

or greater in an effort to maintain 

sufficient genetic variability within the 

population for long-term persistence. 

This is to be determined or estimated 

through adults observed at trapping 

facilities or redd counts; (2) The GOM 

DPS must demonstrate self-sustaining 

persistence where each SHRU has less 

than a 50 percent probability of falling 

below 500 adult spawners in the next 15 

years based on PVA projections 

described above. The 50 percent 

assurance threshold satisfies the 

criterion that the population is ‘‘not 

likely’’ to become an endangered 

species; while 15 years represents the 

‘‘foreseeable future’’ for which we have 

determined that we can make 

reasonable projections based on past 

demographic data available to us; (3) 

The entire GOM DPS must demonstrate 

consistent positive population growth 

for at least two generations (10 years) 

before the decision to delist is made. 

Ten years of pre-decision data that 

reflects positive population trends 

provides some assurance that recent 

population increases are not 

happenstance but more likely a 

reflection of sustainable positive 

population growth; (4) A recovered 

GOM DPS must represent the natural 

population (i.e., adult returns must 

originate from natural reproduction that 

has occurred in the wild); hatchery 

product cannot be counted towards 

recovery because a population reliant 

upon hatchery product for sustainability 

is indicative of a population that 

continues to be at risk; (5) In order to 

delist the GOM DPS, the threats 

identified at the time of listing must be 

addressed through regulatory or any 

other means. These threats are 

identified in the factors specified under 

section 4(a)(1) of the ESA as described 

in the 2006 Status Review (Fay et al., 

2006). Methods to address these threats 

will be addressed in a final recovery 

plan for the expanded GOM DPS. 

After determining criteria for 

delisting, we applied these criteria to 

assess the number of adult spawners 

that would be needed to weather a 

downturn in survival as experienced 

between the years of 1991 and 2006, a 

period of exceptionally low survival. 

Using demographic data for this time 

period we applied the criteria described 

above in conjunction with a PVA to 

determine how many adults would be 

required in each SHRU to weather a 

similar downturn in survival while 

having a greater than 50 percent chance 

of remaining above 500 adults (see 

NMFS, 2009a (Appendix B)). This 

analysis projected that a census 

population of 2,000 spawners (1000 

male and 1000 female) would be needed 

in each of the three SHRUs for the GOM 

DPS to weather a downturn in survival 

such as experienced over the time 

period from 1991–2006. Based on this 

analysis, we conclude that enough 

habitat is needed in each of the three 

SHRUs to support the offspring of these 

2,000 adult spawners. Using an average 

fecundity per female of 7,200 eggs 

(Legault, 2004), and male to female ratio 

of 1:1, or 1000 females, and a target 

number of eggs per one unit of habitat 

(100m2) of 240 (Baum, 1997), we 

determined that 30,000 units of habitat 

are needed across each SHRU (7,200 

eggs × 1000 females/240 eggs = 30,000) 

to support the offspring of 2,000 

spawners, which represents the quantity 

of habitat in each SHRU essential to the 

conservation of the species (NMFS, 

2009a, Appendix B). 

To calculate the existing quantity of 

habitat across the range of the DPS both 

within the currently occupied range and 

outside the occupied range, we 

recognized that both habitat quantity 

and quality should be taken into 

consideration. As a result, we describe 

the existing quantity of habitat in terms 

of functional habitat units. To generate 

this estimate of functional habitat units, 

we considered the measured quantity of 

habitat within each HUC 10 as well as 

the habitat’s quality. The functional 

habitat units values are a measure of the 

quantity of habitat (expressed in units 

where 1 unit of habitat is equivalent to 

100m 2 of habitat) within a HUC 10 

based on qualitative factors that limit 

survivorship of juvenile salmon 

utilizing the habitat for spawning, 

rearing, and migration. The functional 

habitat units also account for dams 

within or below the HUC 10 that would 

further reduce survivorship of juvenile 

salmon within the HUC 10 as the 

juvenile salmon migrate towards the 

marine environment. In HUC 10s that 

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are not believed to be limited by 

qualitative factors or dams, the 

functional habitat units would be 

identical to the measured quantity of 

habitat units within the HUC 10. In 

HUC 10s where quality and dams are 

believed to be limiting, the functional 

habitat units would be less than the 

measured habitat units within the HUC 

10. The functional habitat units value is 

used in the critical habitat evaluation 

process to determine the quantity of 

functioning habitat units within each 

HUC 10. It also determines the quantity 

of functioning habitat within the 

currently occupied range relative to the 

amount needed to support the offspring 

of 2,000 adult spawners. 

Functional habitat unit scores were 

generated by multiplying the quantity of 

spawning and rearing habitat units 

within each HUC 10 by the habitat 

quality score divided by 3 (e.g., 1 = 0.33, 

2 = 0.66, and 3 = 1; discussed below 

under application of ESA section 

4(b)(2)) to represent the relative values 

in terms of percentages. Using this 

approach, a ‘‘1’’ habitat quality score 

has a qualitative value roughly 

equivalent to 33 percent of fully 

functioning habitat; accordingly, a ‘‘2’’ 

habitat quality score is roughly 66 

percent of the value of fully functioning 

habitat; and a ‘‘3’’ score equals 100 

percent habitat quality. The sum of this 

value was then multiplied by 0.85 

raised to the power of the number of 

dams both within and downstream of 

the HUC 10. We consider 0.85 to 

represent a coarse estimate of passage 

efficiency of smolts for FERC dams with 

turbines (smolt mortality associated 

with turbine entrainment is 0.15) based 

on the findings of several studies (GNP, 

1995; GNP, 1997; Holbrook, 2007; 

Shepard, 1991c; Spicer et al., 1995) and, 

therefore, roughly equivalent to a 15 

percent reduction in functional habitat 

unit. Mainstem dams without turbines 

are not expected to affect smolts the way 

dams with turbines do, but can result in 

direct or indirect mortality from delays 

in migration and by increased predation 

from predators that congregate around 

dams. Therefore, dams without turbines 

were estimated to reduce the functional 

capacity of habitat units by 7.5 percent 

(one half of 15 percent). Dams located 

at roughly the midpoint of habitat 

within a HUC 10 watershed were 

estimated to affect passage of roughly 

half the fish in the HUC 10 watershed 

(e.g., located half way up the HUC 10 

watershed) and, therefore, were 

discounted accordingly (e.g., 7.5 percent 

for dams with turbines). A dam without 

turbine located at the midpoint of 

habitat within a HUC 10 was estimated 

to reduce the functional capacity of 

habitat units by 3.75 percent. The 

number of dams present both within 

and downstream of the HUC 10 was 

used as an exponent to account for 

cumulative effects of dams. A formulaic 

representation of our method is written 

as: 

QSRH

N × B E = Functional Habitat Units ( ) SS DE /3 × ( ) ^

QSRH = quantity of spawning and rearing 

habitat 

BSS = biological suitability score 

EDE = estimated downstream passage 

efficiency of a typical FERC licensed 

dam 

N = number of dams within and downstream 

of HUC 

Given that computing the functional 

habitat units was conducted to estimate 

the quantity of habitat necessary to 

support the offspring of 2,000 adult 

spawners, only downstream passage 

efficiency was figured into the equation 

to calculate functional habitat units. We 

based our projected habitat needs on the 

amount of habitat needed to support the 

offspring of 2,000 adult spawners, so 

our analysis of functional habitat units 

was based on those factors that would 

diminish the survival of the offspring of 

the spawners. This rule is not designed 

to serve as a recovery plan but rather to 

ensure that there is sufficient habitat 

available to meet recovery goals. A full 

review of how habitat quantities and 

habitat qualities were computed is 

provided in the Biological Valuation of 

Atlantic Salmon Habitat within the 

GOM DPS (2008). 

Table 2 represents the total amount of 

measured habitat within the occupied 

areas of each SHRU; the quantity of 

functional habitat units for each SHRU; 

amount of habitat excluded; the amount 

of functional habitat (represented as 

functional habitat unit) after exclusion; 

and the amount of habitat still needed 

to support the offspring of 2,000 adult 

spawners within each SHRU. 

TABLE 2—TOTAL HABITAT AND FUNCTIONAL HABITAT FOR OCCUPIED AREAS AMONG THE THREE SHRUS IN THE GOM 

DPS 

SHRU Total habitat 

units 

Functional 

habitat units 

Economic 

exclusion 

Functional 

habitat after 

exclusions 

Additional 

habitat needed 

to support the 

offspring of 

2,000 adult 

spawners (i.e., 

30,000 units) 

Merrymeeting Bay ................................................................ 372,639 40,001 0 40,001 0 

Penobscot Bay ..................................................................... 323,740 66,263 3,205 63,058 0 

Downeast Coastal ................................................................ 61,395 29,111 0 29,111 889 

In both the Penobscot and 

Merrymeeting Bay SHRUs, there are 

more than 30,000 units of functional 

habitat within the currently occupied 

area to support the offspring of adult 

spawners. In the Downeast Coastal 

SHRU, the amount of functional habitat 

available to the species is estimated to 

be 889 units short of what is needed to 

support 2,000 adult spawners. 

Nonetheless, we determined that no 

areas outside the occupied geographical 

area within the Downeast SHRU are 

essential to the conservation of the 

species. This is because the 61,395 total 

habitat units in Downeast Maine are 

predicted to be functioning at the 

equivalent of 29,111 units because of 

the presence of dams or because of 

degraded habitat features that reduce 

the habitat’s functional value. However, 

through restoration efforts, including 

enhanced fish passage and habitat 

improvement of anthropogenically 


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degraded features (including stream 

crossing improvement projects like 

those currently being carried out by 

Project SHARE in the Downeast SHRU, 

for example), a substantial portion of the 

approximately 32,000 units of nonfunctioning habitat may be restored to a 

functioning state. The Union River, for 

instance, has over 12,000 units of 

habitat, though its functional habitat 

value, largely because of dams, is 

estimated to be equivalent to 

approximately 4,000 units of habitat. 

Dam removal or improved fish passage 

has the potential to significantly 

increase the function of critical habitat 

in the Union river and, therefore, the 

entire Downeast SHRU. 

Throughout Maine, there has been 

substantial effort on behalf of State and 

Federal agencies and non-profit 

organizations in partnership with 

landowners and dam owners to restore 

habitat through a combination of land 

and riparian protection efforts, and fish 

passage enhancement projects. Project 

SHARE, the Downeast Salmon 

Federation, watershed councils, Trout 

Unlimited, and the Atlantic Salmon 

Federation, for example, have 

conducted a number of projects 

designed to protect, restore, and 

enhance habitat for Atlantic salmon 

ranging from the Kennebec River in 

south central Maine to the Dennys River 

in Eastern Maine. Projects include, but 

are not limited to: dam removals along 

the Kennebec, St. George, Penobscot, 

and East Machias Rivers; land 

protection of riparian corridors along 

the Machias, Narraguagus, Dennys, 

Pleasant, East Machias, Sheescot, 

Ducktrap rivers and Cove Brook; 

surveying and repair of culverts that 

impair fish passage; and outreach and 

education efforts on the benefits of such 

projects. In 2008 in the Downeast 

SHRU, Project SHARE replaced 7 

culverts with open bottom arch culverts 

to improve fish passage, 

decommissioned 12 road crossings by 

removing the culvert or bridge and 

stabilizing the banks, and removed 6 

remnant log drive dams. The Penobscot 

River Restoration Project is another 

example of cooperative efforts on behalf 

of Federal and State agencies, nonprofit 

organizations, and dam owners. The 

PRRP goal is to enhance runs of 

diadromous fish, including Atlantic 

salmon, through the planned removal of 

two mainstem dams and enhanced fish 

passage around several other dams 

along the Penobscot River. These 

cooperative efforts can increase the 

functional potential of Atlantic salmon 

habitat by both increasing habitat 

availability as well as increasing habitat 

quality. Therefore, we do not believe 

that it is essential to designate critical 

habitat outside of the currently 

occupied range. 

V. Application of ESA Section 

4(a)(3)(B)(i) (Military Lands) 

The Sikes Act of 1997 (16 U.S.C. 

670a–670f, as amended), enacted on 

November 18, 1997, required that 

military installations with significant 

natural resources prepare and 

implement an integrated natural 

resource management plan (INRMP) in 

cooperation with the USFWS and State 

fish and wildlife agencies, by November 

18, 2001. The purpose of the INRMP is 

to provide the basis for carrying out 

programs and implementing 

management strategies to conserve and 

protect biological resources on military 

lands. Because military lands are often 

protected from public access, they can 

include some of the nation’s most 

significant tracts of natural resources. 

INRMPs are to provide for the 

management of natural resources, 

including fish, wildlife, and plants; 

allow multipurpose uses of resources; 

and provide public access where 

appropriate for those uses, without any 

net loss in the capability of an 

installation to support its military 

mission. 

In 2003, the National Defense 

Authorization Act (Pub. L. 108–136) 

amended the ESA to limit areas eligible 

for designation as critical habitat. 

Specifically, section 4(a)(3)(B)(i) of the 

ESA (16 U.S.C. 1533(a)(B)(i)) states: 

‘‘The Secretary shall not designate as 

critical habitat any lands or other 

geographical areas owned or controlled 

by the Department of Defense, or 

designated for its use, that are subject to 

an integrated natural resources 

management plan prepared under 

section 101 of the Sikes Act (16 U.S.C. 

67a), if the Secretary determines in 

writing that such plan provides a benefit 

to the species for which critical habitat 

is proposed for designation.’’ 

Within the specific areas identified as 

critical habitat for the Gulf of Maine 

DPS, there are four military sites; two of 

these currently have INRMPs, and the 

other two have INRMPs being 

developed. The Brunswick Naval Air 

Station has 15,800 acres (63.9 sq km) of 

real property spread out among the 

main station in Brunswick and several 

remote stations across Maine. Military 

installations that are part of the 

Brunswick Naval Air Station and that 

are either partly or entirely within the 

area where critical habitat is proposed 

include the 3,091-acre (12.5-sq km) 

main station in Brunswick; a 12,000- 

acre (48.5-sq km) Survival, Evasion, 

Resistance, and Escape (SERE) school 

near Rangeley, Maine; and the 396-acre 

(1.6-sq km) Great Pond Outdoor 

Adventure Center located in the town of 

Great Pond in Hancock County, Maine. 

The two military installations within 

the occupied range of the DPS with 

INRMPs are not included in the critical 

habitat designation in accordance to 

4(a)(3)(B)(i) of the ESA. These 

installations include: (1) The 3,091-acre 

(12.5-sq km) Brunswick Naval Air 

Station in Brunswick, Maine, of which 

435 acres (1.8 sq km) are within Little 

Androscoggin HUC 10 watershed in the 

Merrymeeting Bay SHRU; and (2) the 

Brunswick Naval Air Station’s cold 

weather survival, evasion, resistance, 

and escape school, which occupies 

12,000 acres (48.5 sq km) near Rangeley, 

Maine, of which 5,328 acres (21.6 sq 

km) are within the Sandy River HUC 10 

watershed in the Merrymeeting Bay 

SHRU. The INRMPs at these two 

locations specifically provide for water 

quality protection via erosion and 

sediment control, wetland protection, 

monitoring of non point source 

pollution, protection of watersheds from 

hazardous materials, use of 

environmentally beneficial landscaping, 

monitoring for and responding to 

forestry management units health 

problems and management of forests as 

shoreline buffers. We determined that 

these two INRMPs provide a 

conservation benefit to the GOM DPS of 

Atlantic salmon. 

The two sites with military missions 

that currently do not have INRMPs and 

the one non-military facility identified 

as being essential to national security 

are being excluded from critical habitat 

under section 4(b)(2) described in the 

final rule section entitled Application of 

ESA Section 4(b)(2). 

VI. Application of ESA Section 4(b)(2) 

The foregoing discussion described 

the specific areas within U.S. 

jurisdiction that meet the ESA 

definition of critical habitat because 

they contain the physical and biological 

features essential to the conservation of 

Atlantic salmon that may require special 

management considerations or 

protection. Before including areas in a 

designation, section 4(b)(2) of the ESA 

requires the Secretary to consider the 

economic impact, impact on national 

security, and any other relevant impacts 

of designation of any particular area. 

The Secretary has the discretion to 

exclude any area from designation if he 

determines that the benefits of exclusion 

(that is, avoiding some or all of the 

impacts that would result from 

designation) outweigh the benefits of 

designation based upon the best 

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scientific and commercial data 

available. The Secretary may not 

exclude an area from designation if 

exclusion will result in the extinction of 

the species. Because the authority to 

exclude is discretionary, exclusion is 

not required for any particular area 

under any circumstances. 

The ESA section 4(b)(2) exclusion 

process is conducted for a ‘‘particular 

area,’’ not for the critical habitat as a 

whole. This analysis is, therefore, 

conducted at a geographic scale that 

divides the area under consideration 

into smaller sub-areas. The statute does 

not specify the exact geographic scale of 

these ‘‘particular areas.’’ For the 

purposes of the analysis of economic 

impacts, a ‘‘particular area’’ is 

equivalent to a ‘‘specific area’’, defined 

as a HUC 10 (level 5) standard 

watershed. There are 48 ‘‘specific areas’’ 

(HUC 10s) occupied by the species on 

which are found those physical and 

biological features essential to the 

conservation of the species and which 

may require special management 

considerations or protection. 

Where we considered impacts on 

Indian Tribes, we delineated particular 

areas based on land ownership. Where 

we consider impacts on national 

security, particular areas will be 

delineated based on lands identified by 

the military as areas where critical 

habitat designation will have an impact 

on national security. These areas may 

only account for a small fraction of a 

HUC 10 watershed or, in some 

circumstances, may span across several 

HUC 10 watersheds. Factors that were 

considered in determining whether the 

benefits of exclusion outweighed the 

benefits of designating the particular 

areas as critical habitat include: 

(1) The quantity of functional habitat 

excluded relative to the quantity of 

habitat needed to support a recovered 

population; 

(2) The relative biological value of a 

particular area to the conservation of the 

species, measured by the quantity and 

quality of the physical and biological 

features with the particular area; 

(3) The anticipated conservation loss 

that would be accrued through not 

designating a particular area based upon 

the conservation value of that particular 

area; and 

(4) Whether exclusion of habitat 

within the particular area, based upon 

the best scientific and commercial data, 

would result in the extinction of the 

species concerned. 

Assigning Biological Value 

To determine the benefits of including 

an area as critical habitat, we assigned 

a Final Biological Value to each HUC 10 

watershed based on the quantity and 

quality of Atlantic salmon spawning 

and rearing habitat and the migratory 

needs of the species (see NMFS, 2009a). 

The Final Biological Value indicates 

each area’s current value to Atlantic 

salmon spawning, rearing, and 

migration activities and is applied in the 

ESA section 4(b)(2) exclusion analysis, 

where it is weighed against the 

economic, national security, and other 

relevant impacts to consider whether 

specific areas may be excluded from 

designation. The final biological value 

also aided in determining those areas 

currently occupied by the species 

described earlier in the final rule under 

‘‘Identifying the Geographical Area 

Occupied by the Species and Specific 

Areas within the Geographical Area’’. 

The variables used to develop the Final 

Biological Value include a combination 

of habitat units, habitat quantity, habitat 

quality, and the value of the HUC 10 to 

migration of smolts and adults. The 

final biological value does not 

incorporate the use of functional habitat 

units as described in the previous 

section entitled Specific areas outside 

the geographical area occupied by the 

species * * * essential to the 

conservation of the species. Functional 

habitat units were only used to 

determine whether areas that contain 

PCEs outside the currently occupied 

range should be designated as critical 

habitat. 

A habitat unit represents 100 m2 of 

spawning and rearing habitat. A habitat 

unit is used in North America and 

Europe to quantify habitat features most 

frequently used for spawning and 

juvenile rearing (e.g., riffles and runs). 

Habitat units for each HUC 10 were 

calculated using the GIS based habitat 

prediction model described earlier in 

the final rule under Physical and 

Biological Features in Freshwater and 

Estuary Specific Areas Essential to the 

Conservation of the Species. 

Habitat quantity is the estimate of 

habitat units generated by the model 

and was calculated separately for each 

HUC 10. The units of habitat were then 

binned into four categories for each of 

the three SHRUs. A HUC 10 with no 

habitat was assigned a score of ‘‘0’’ and 

was considered unoccupied. HUC 10s 

with the lowest 25 percent of total units 

of habitat across the entire SHRU 

received a ‘‘1’’ score, the middle 50 

percent received a ‘‘2’’ score, and the 

upper 25 percent received a ‘‘3’’ score. 

A ‘‘3’’ score represents the highest 

relative habitat quantity score. This 

method resulted in the majority of the 

habitat receiving a score of ‘‘2’’ 

representing an average habitat quantity. 

Habitat scores outside the middle 50 

percent were considered to have above 

average habitat quantity or below 

average habitat quantity. 

Habitat quality scores were assigned 

to HUC 10s based on information and 

input from fisheries biologists working 

with the Maine Department of Inland 

Fisheries and Wildlife, the MDMR, 

NMFS, and Kleinschmidt Energy and 

Water Resource Consultants, who 

possess specific knowledge and 

expertise about the geographic region. 

For each of the three SHRUs, a 

minimum of three biologists with 

knowledge of and expertise in the 

geographic area were asked to 

independently assign habitat scores, 

using a set of scoring criteria developed 

by fisheries biologists from NMFS, to 

HUC 10s based on the presence and 

quality of the physical and biological 

features essential to the conservation of 

the species (see NMFS, 2009a). The 

scoring criteria ranked qualitative 

features, including temperature, 

biological communities, water quality, 

and substrate and cover, as being highly 

suitable (‘‘3’’), suitable (‘‘2’’), marginally 

suitable (‘‘1’’) or not suitable (‘‘0’’) for 

supporting Atlantic salmon spawning, 

rearing, and migration activities. A 

habitat value of ‘‘0’’ indicates that one 

or more factors is limiting to the point 

that Atlantic salmon could not 

reasonably be expected to survive in 

those areas; a score of ‘‘1’’, ‘‘2’’, or ‘‘3’’ 

indicates the extent to which physical 

and biological features are limiting, with 

a ‘‘1’’ being most limiting and a ‘‘3’’ 

being not limiting. In HUC 10s that are 

and have always been inaccessible due 

to natural barriers, the entire HUC 10 

was automatically scored as ‘‘0’’ and 

considered not occupied by the species. 

Emphasis was placed on identifying 

whether the physical and biological 

features needed for Atlantic salmon 

spawning and rearing are present and of 

what quality the features are. The 

overall habitat quality score for each 

HUC 10 was typically an average 

determined by the compilation of 

scores. In some instances, not all the 

biologists were familiar with the HUC 

10, so only one or two scores were 

provided for some HUCs. In some 

instances where only two scores were 

provided for a HUC 10 watershed and 

each biologist scored the watershed 

differently we relied on a combination 

of the comments provided on the score 

sheets, knowledge from fisheries 

biologist working for NMFS that were 

familiar with these HUCs, or phone 

interviews with the commenters to 

resolve the ‘‘tie’’ score. We resolved 

‘‘tie’’ scores based on comments when it 

was clearly apparent, based on the 

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comments, that one biologist had more 

knowledge of the HUC 10 than the other 

biologist who scored the HUC 10. 

Final Habitat Values were generated 

for each HUC 10 by combining habitat 

quantity and habitat quality scores 

within each HUC 10. Scores were 

combined by multiplying the two 

variables together giving scores of 0, 1, 

2, 3, 4, 6, 9. HUC 10s with zero scores 

received a zero score for Final Habitat 

Value. Scores of 1 or 2 were valued as 

low or ‘‘1’’ final habitat value. Scores of 

3 or 4 were valued as medium or ‘‘2’’ 

final habitat value, and scores of 6 or 9 

were valued as high or ‘‘3’’ final habitat 

value. 

A final migration value was generated 

based on the final habitat values and the 

migratory requirements of adults to 

reach spawning areas and smolts to 

reach the marine environment. We 

determined the final migration value of 

a HUC 10 to be equal to the highest final 

habitat value upstream from the HUC 10 

because we concluded that access to 

spawning and rearing habitat was 

equally as important as the spawning 

and rearing habitat itself. 

The final biological value for each 

HUC 10, which is the value used in 

weighing economic cost against the 

biological value of habitat to salmon, 

was determined by selecting the higher 

of the final habitat value and the final 

migration score of each HUC 10. This 

approach assures the preservation of 

spawning and rearing habitat as well as 

migration habitat (see NMFS, 2009a). 

Consideration of Economic Impacts, 

Impacts to National Security and Other 

Relevant Impacts 

The impact of designating any 

particular area as critical habitat occurs 

primarily through section 7 of the ESA. 

Once critical habitat is designated, 

section 7(a)(2) requires that Federal 

agencies ensure any action they 

authorize, fund, or carry out (this action 

is called the ‘‘Federal nexus’’) is not 

likely to result in the destruction or 

adverse modification of critical habitat 

(16 U.S.C. 1536(a)(2)). Parties involved 

in section 7 consultations include 

NMFS or the USFWS, a Federal action 

agency, and in some cases, a private 

entity involved in the project or land 

use activity. The Federal action agency 

serves as the liaison with NMFS. Under 

Section 7(a)(2), when a Federal agency 

proposes an action that may affect a 

listed species or its critical habitat, it 

must initiate formal consultation with 

NMFS (or the USFWS, as applicable) or 

seek written concurrence from the 

Service(s) that the action is not likely to 

adversely affect listed species or its 

designated critical habitat. Formal 

consultation is a process between the 

Services and a Federal agency designed 

to determine whether a proposed 

Federal action is likely to jeopardize the 

continued existence of a species or 

destroy or adversely modify critical 

habitat, an action prohibited by the 

ESA. If the action is likely to destroy or 

adversely modify critical habitat, then 

the Federal agency may be required to 

implement a reasonable and prudent 

alternative (RPA) to the proposed action 

to avoid the destruction or adverse 

modification of critical habitat. In 

addition, conservation benefits to the 

listed species would result when the 

consultation process avoids destruction 

or adverse modification of its critical 

habitat through inclusion of RPAs, or 

avoids lesser adverse effects to critical 

habitat that may not rise to the level of 

adverse modification through inclusion 

of harm avoidance measures. 

Outside of the Federal agencies’ 

obligation to consult on actions that 

‘‘may affect’’ critical habitat and adopt 

project modifications to avoid 

destruction or adverse modification, the 

ESA imposes no requirements or 

limitations on entities or individuals as 

a result of a critical habitat designation. 

Economic Impacts 

As discussed above, economic 

impacts of the critical habitat 

designation result from implementation 

of section 7 of the ESA. Section 7(a)(2) 

requires Federal agencies to consult 

with NMFS to ensure their proposed 

actions are not likely to destroy or 

adversely modify critical habitat. These 

economic impacts may include both 

administrative and project modification 

costs. Economic impacts may also be 

associated with the conservation 

benefits of the designation. 

Economic impacts were assessed for 

each specific HUC 10 area designated as 

critical habitat, as well as for 

unoccupied areas within the range of 

the GOM DPS. While we are not 

designating unoccupied areas as critical 

habitat, we evaluated the economic 

impacts in the event that we determined 

in the biological valuation process, or 

determine as a result of public comment 

or subsequently available information, 

that some or all of the unoccupied areas 

were found to be to be essential to the 

conservation of the species. For the 

entire range of the GOM DPS, most of 

the economic impact results from 

impacts to hydropower projects and 

development (IEc, 2009a). The 

estimated economic impact of 

designation of the occupied areas before 

economic exclusions ranges from 

approximately $128 million to $152 

million. 

For the designation of critical habitat 

for the GOM DPS, economic exclusions 

within the 48 occupied HUC 10s 

throughout the range of the DPS were 

considered by weighing biological value 

determined in the biological valuation 

and the economic cost determined in 

the economic analysis. As described 

earlier, the biological values were 

assigned a score of 1, 2, or 3, with a ‘‘1’’ 

being of lowest biological value and a 

‘‘3’’ being of highest biological value. 

Areas could also be assigned a 

biological value of ‘‘0’’ if the physical 

and biological features in those areas 

were so degraded that they were not 

considered essential to the conservation 

of salmon. Areas assigned a ‘‘0’’ score 

were not included in the economic 

exclusion analysis. As stated above, we 

consider these areas to be unoccupied, 

and we determined that no unoccupied 

areas were essential to the conservation 

of the GOM DPS. 

To compare economic cost with 

biological value, we used the range of 

monetized values provided in the 

economic analysis binned into three 

categories, with a score of ‘‘1’’ 

representing low economic cost and a 

score of ‘‘3’’ representing high economic 

cost. These categories illustrate 

economic costs over the range of the 

GOM DPS. The high, medium, and low 

scores assigned to economic costs were 

then used to weigh economic cost 

against the corresponding biological 

value (also scored as high, medium, or 

low) of each HUC 10. The binning 

process was designed to describe a 

range of monetized values in qualitative 

terms that could be directly compared 

with the qualitative assessment of the 

physical and biological habitat features 

essential to the conservation of the 

species. The binning was conducted so 

that the lowest 25 percent of the total 

economic costs represent costs that were 

below average. Low economic costs 

were assigned a score of ‘‘1,’’ 

representing a cost ranging from $71,000 

to $388,000. The middle 50 percent 

represents the average cost across all 

HUCs containing critical habitat and 

received a score of ‘‘2,’’ with economic 

cost ranging from $388,001 to 

$3,420,000. The upper 25 percent 

represents those costs that were above 

average or high and received a score of 

‘‘3,’’ with economic cost ranging from 

$3,420,001 to $27,900,000. We binned 

the economic costs using the same 

procedures that we used to bin habitat 

quantity within each HUC 10, with the 

lower and upper 25 percent of habitat 

representing those areas as being either 

above average or below average. 

These dollar thresholds do not 

represent an objective judgment that 

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low-value areas are worth no more than 

$388,000, medium-value areas are worth 

no more than $3,420,000, or high value 

areas are worth no more than 

$27,900,000. Under the ESA, we are to 

weigh dissimilar impacts given limited 

time and information. The statute 

emphasizes that the decision to exclude 

is discretionary. Thus, the economic 

impact level at which the economic 

benefits of exclusion outweigh the 

conservation benefits of designation is a 

matter of discretion and depends on the 

policy context. For critical habitat, the 

ESA directs us to consider exclusions to 

avoid high economic impacts, but also 

requires that the areas designated as 

critical habitat are sufficient to support 

the conservation of the species and to 

avoid extinction. In this policy context, 

we selected dollar thresholds 

representing the levels at which we 

believe the economic impact associated 

with a specific area would outweigh the 

conservation benefits of designating that 

area. 

Given the low abundance and 

endangered status of Atlantic salmon, 

we exercise our discretion to consider 

exclusion of specific areas based on 

three decision rules: (1) Specific areas 

with a biological value of medium (‘‘2’’) 

or high (‘‘3’’) score were not eligible for 

exclusion regardless of the level of 

economic impact, because of the 

endangered status of Atlantic salmon; 

(2) specific areas with a low biological 

value (‘‘1’’) were excluded if the 

economic costs were greater than 

$388,000 (economic score of ‘‘2’’ or 

‘‘3’’); and (3) specific areas were not 

considered for exclusion, including 

those areas having a low biological 

value (‘‘1’’), if the area had no dams 

both within it or below it, given that 

these areas are not subject to the 

deleterious effects that dams have on 

migration of adults and smolts (GNP, 

1995; GNP, 1997; Holbrook, 2007; 

Shepard, 1991c; Spicer et al., 1995). 

These decision rules: (1) Ensure that 

enough occupied habitat receives the 

protections of critical habitat to meet 

our conservation objectives, in this case, 

30,000 units of habitat per SHRU; (2) 

ensure that all habitat that has average 

(2 score) or better biological value 

receives the protections of critical 

habitat and is available to be used for 

the conservation and recovery of the 

species; and (3) given that dams have 

been identified as one of the greatest 

impediments to salmon recovery (NRC, 

2004; Fay et al., 2006), ensure that 

occupied areas without dams receive 

the protections of critical habitat. 

If we excluded all areas where 

economic costs were higher than 

biological value, then the Downeast 

Coastal SHRU would be 3,840 units 

short of the 30,000 units needed to meet 

our conservation objectives. Habitat that 

is excluded for economic impact 

reasons offers no protections to those 

features that are essential to the 

conservation of Atlantic salmon. In 

contrast, tribal lands and military lands 

excluded from the Downeast Coastal 

SHRU were excluded because of 

ongoing conservation efforts being 

carried out by the Tribe or natural 

resource plans that are in place or in 

development by the military that 

provide protections to Atlantic salmon 

habitat. 

We believe that all habitat with a 

biological value of ‘‘2’’ or greater is 

essential to the recovery efforts of 

Atlantic salmon. In the Gulf of Maine, 

of the 105 HUC 10 watersheds that we 

analyzed for critical habitat, we 

determined that 86 HUC 10s were 

historically accessible to Atlantic 

salmon. Of those 86 historic watersheds, 

only 48 of those HUC 10 watersheds are 

currently occupied by Atlantic salmon 

and provide the best opportunity for the 

agencies to implement on the ground 

recovery efforts through stocking 

programs and habitat restoration and 

enhancement efforts. Of the 48 occupied 

HUC 10 watersheds, 32 of these 

watersheds are considered to have 

average (‘‘2’’ score) or better biological 

value. These 32 remaining watersheds 

provide the best opportunity for 

managers to carry out restoration efforts, 

and provide the best potential for 

recovery of Atlantic salmon across the 

DPS. 

We believe that protection of specific 

areas without dams is imperative to 

salmon recovery. The fact that the 

National Research Council (NRC, 2004) 

and the Atlantic Salmon Status Review 

(Fay et al., 2006) both emphasize that 

dams are one of the greatest 

impediments to salmon recovery in the 

State of Maine underscores the 

importance of specific areas that are free 

of dams, even if these specific areas 

have relatively low biological value. 

Even highly effective passage facilities 

cause Atlantic salmon mortality. 

Passage inefficiency and delays 

associated with dams occur at 

biologically significant levels, resulting 

in incremental losses of pre-spawn 

adults, smolts, and kelts (a life stage 

after Atlantic salmon spawn) (See the 

final rule published by NMFS and the 

USFWS in today’s Federal Register (see 

Endangered and Threatened Species; 

Determination of Endangered Status for 

the Gulf of Maine Distinct Population 

Segment of Atlantic Salmon)). Dams can 

delay migration of smolts, increasing 

predation risk (Nettles and Gloss, 1987) 

or cause Atlantic salmon smolts to miss 

the migration window in which smolts 

are physiologically capable of 

transitioning from the freshwater 

environment to the marine environment 

(Whalen et al., 1999; McCormick et al., 

1999). Studies in the Columbia River 

system have shown that fish generally 

take longer to pass a dam on a second 

attempt after fallback compared to the 

first (Bjornn et al., 1999). Dams can also 

cause direct injury to downstream 

migrating Atlantic salmon smolts, 

which can be a result of pressure 

changes during turbine entrainment or 

direct contact with the turbines (Cada, 

2000). Dams are known to typically 

injure or kill between 10 and 30 percent 

of all fish entrained at turbines (EPRI, 

1992). With rivers containing multiple 

hydropower dams, these cumulative 

losses could compromise entire year 

classes of Atlantic salmon. 

With at least 116 dams in the 

Penobscot watershed (FERC, 1997), 18 

of which currently generate electricity; 

73 dams in the Kennebec watershed, 26 

of which are licensed hydropower 

facilities and storage dams (MSPO, 

1993); and 85 dams in the Androscoggin 

watershed, 45 of which are 

hydroelectric facilities, there are very 

few areas remaining that are free of 

dams. In fact, of the six stocks of 

Atlantic salmon that make up the 

genetic line of the Atlantic salmon 

conservation hatchery program, five of 

those stocks come from rivers that 

currently do not have hydroelectric 

dams, and four of those stocks originate 

from rivers where their mainstems 

below the headwaters are free of dams. 

The areas that are currently free of dams 

provide the best opportunity for 

maintaining the existing genetic line of 

Atlantic salmon, and rebuilding the 

Atlantic salmon population either 

through recolonization that occurs 

naturally through straying or through 

managed stocking programs. 

We propose to exclude three 

particular areas (HUC 10s) in the 

Penobscot Bay SHRU due to economic 

impact, out of a total of 48 occupied 

HUC 10s within the range of the GOM 

DPS. Areas excluded from critical 

habitat for reasons of economics include 

approximately 1,198 km of river, stream, 

and estuary habitat and 99 sq km of 

lakes in all of Belfast Bay (HUC 

105000218), Passadumkeag River (HUC 

102000503), and Molunkus Stream 

(HUC 102000306). The combined 

economic impact of the designation in 

those particular areas was estimated to 

be $11,600,000 to $12,600,000 before 

they were considered for exclusion. The 

estimated economic impact for critical 

habitat following exclusions ranges from 

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approximately $117 million to $140 

million. The estimated economic 

impacts of designating critical habitat 

for each SHRU are in Table 3. 

TABLE 3—SUMMARY OF ECONOMIC IMPACT FOLLOWING EXCLUSIONS FOR OCCUPIED HUC 10 BY SHRU IN THE GOM 

DPS 

SHRU Low estimate High estimate 

Downeast Coastal ........................................................................................................................................ $9,710,000 $12,700,000 

Penobscot Bay ............................................................................................................................................. 23,800,000 28,700,000 

Merrymeeting Bay ........................................................................................................................................ 83,400,000 98,100,000 

Total ...................................................................................................................................................... 116,910,000.00 139,500,000.00 

National Security and Other Relevant 

Impacts in Relation to Military Interests 

Section 4(b)(2) of the ESA states that 

the Secretary may exclude any area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

and commercial data available, that the 

failure to designate such areas as critical 

habitat will result in the extinction of 

the species concerned (16 U.S.C. 

1533(b)(2)). We are excluding the two 

sites with military missions without 

INRMPs from critical habitat 

designation under section 4(b)(2) of the 

ESA as the Secretary has determined 

that the benefits of exclusion of these 

areas outweigh the benefits of inclusion. 

NAS Brunswick OAC supports the naval 

aviation activities of NAS Brunswick, 

and the NCTAMS provides 

communications to the fleet in the 

Atlantic Ocean and the Mediterranean 

Sea. The consultations and project 

modifications required by designation of 

these areas as critical habitat would 

impact the military and national 

security missions of these facilities. In 

addition, upon the completion of the 

INRMPs, any final rule designating 

these areas as critical habitat would 

need to be revised to remove these areas 

from the designation in accordance with 

section 4(a)(3)(B)(i) of the ESA. The 

Navy has agreed to work cooperatively 

with NMFS in the development of these 

INRMPs to assure that the Navy’s 

activities are reasonably protective of 

Atlantic salmon habitat (Letter to NMFS 

from the Office of the Chief of Navy 

Operations (Ser N4/8u156068), 

December 2, 2008). 

Before including areas in a 

designation, section 4(b)(2) of the ESA 

requires the Secretary to consider the 

impact on national security of 

designation of any particular area as 

critical habitat. Bath Iron Works (BIW) 

located in Bath, Maine has also been 

excluded from designation for reasons 

of national security as advised by the 

Navy. The Secretary has concluded that 

the benefits of exclusion of these areas 

outweigh the benefits of inclusion as 

critical habitat. BIW is a premier shipbuilding facility that provides the 

design, building, and support of 

complex navy warships, including the 

AEGIS Class Destroyers. BIW has been 

building and servicing the U.S. 

warships for over 120 years, and their 

activities are essential to the military 

mission for the construction, 

maintenance, and modernization of 

Navy surface ships. These activities 

have been identified by the Navy as 

inherent to national security, whereby, 

without BIW’s ability to construct and 

test current and future classes of surface 

ships, mission readiness and U.S. 

national security is at risk. The 

consultations and project modifications 

required by designation of these areas as 

critical habitat would impact the 

military and national security functions 

of these facilities. The areas excluded 

from designation include the Kennebec 

River from the south side of the U.S. 

Route 1 bridge over the Kennebec River 

down river to 50 feet below the south 

side of BIWs dry dock, but does not 

include any portion of Hanson Bay or 

the thoroughfare between Hanson Bay 

and the Kennebec River. The specific 

area excluded from designation lies 

within a box between four points with 

the following coordinates: Point 1: N43 

54′39.8′′, W069 48′43.5′′; Point 2: N43 

54′40′′, W069 48′17.8′′; Point 3: N43 

54′0.0′′, W069 48′47; Point 4: N43 

54′0.0′′, W069 48′28′′. 

Other Relevant Impacts: Tribal Lands 

The Penobscot Indian Nation and the 

Passamaquoddy Tribe own and conduct 

activities on lands within the range of 

the GOM DPS. Activities may include 

agriculture; residential, commercial, or 

industrial development; in-stream 

construction projects; silviculture; water 

quality monitoring; hunting and fishing; 

and other uses. Some of these activities 

may be affected by the designation of 

critical habitat for the GOM DPS of 

Atlantic salmon. 

Secretarial Order 3206 recognizes that 

Tribes have governmental authority and 

the desire to protect and manage their 

resources in the manner that is most 

beneficial to them. Pursuant to the 

Secretarial Order, and consistent with 

the Federal government’s trust 

responsibilities, the Services must 

consult with the affected Indian Tribes 

when considering the designation of 

critical habitat in areas that may impact 

tribal trust resources, tribally-owned fee 

lands, or the exercise of tribal rights. 

Critical habitat in such areas, unless 

determined to be essential to conserve a 

species, may not be designated. 

The Indian lands specifically 

excluded are those defined in 

Secretarial Order 3206 and include: (1) 

Lands held in trust by the United States 

for the benefit of any Indian tribe; (2) 

lands held in trust by the United States 

for any Indian Tribe or individual 

subject to restrictions by the United 

States against alienation; (3) fee lands, 

either within or outside the reservation 

boundaries, owned by the tribal 

government; and, 4) fee lands within the 

reservation boundaries owned by 

individual Indians. Not excluded from 

designation are tribal lands held by the 

Penobscot Tribe which specifically 

requested that their land not be 

excluded from designation emphasizing 

the importance of their lands as critical 

habitat for Atlantic salmon. 

The Penobscot Indian Nation and the 

Passamaquoddy Tribe own and conduct 

activities on approximately 182,000 

acres (736.5 sq km) of land throughout 

the Penobscot, Androscoggin, Kennebec, 

and Downeast Coastal Basins. Both 

tribes that own lands within the GOM 

DPS have actively pursued or 

participated in activities to further 

promote the health and continued 

existence of Atlantic salmon and their 

habitats. The Penobscot tribe has 

developed and maintained its own 

water quality standards that state ‘‘it is 

the official policy of the Penobscot 

Nation that all waters of the Tribe shall 

be of sufficient quality to support the 

ancient and historical traditional and 

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customary uses of such tribal waters by 

members of the Penobscot Nation.’’ The 

Tribe is also currently participating in 

the Penobscot River Restoration Project 

that has the intended goal of restoring 

11 species of diadromous fish, including 

Atlantic salmon. The Passamaquoddy 

Tribe has continued to maintain efforts 

to balance agricultural practices with 

natural resources. In a tract of Tribal 

land in Township 19, which accounts 

for approximately 12 km of the 27.8 km 

of rivers and streams on Passamaquoddy 

land that contain physical and 

biological features essential to salmon, 

the Tribe has established an ordinance 

to govern its water withdrawals for 

these lands. This ordinance states ‘‘it is 

important to the Tribe that its water 

withdrawals at T. 19 do not adversely 

affect the Atlantic salmon in any of its 

life stages, or its habitat,’’ and restricts 

water withdrawals to avoid adverse 

impact on the Atlantic salmon. 

Within the occupied range designated 

as critical habitat, the Tribes own 

approximately 65,000 acres (263 sq km) 

of land within 16 HUC 10 watersheds. 

NMFS has determined that the rivers, 

streams, lakes, and estuaries of 9,571 

acres (38.7 sq km) of tribal land within 

the areas occupied by the GOM DPS be 

excluded from critical habitat 

designation based on the principles of 

the Secretarial Order discussed above. 

Per request of the Penobscot Nation, 

55,180 acres (223 sq km) of the 

Penobscot Nation lands are included as 

critical habitat. 

Determine Whether Exclusion Will 

Result in Extinction of the Species 

Section 4(b)(2) states that particular 

areas shall not be excluded from critical 

habitat if the exclusion will result in 

extinction of the species. Our decision 

to only propose for exclusion particular 

areas based on economic impacts that 

had low biological value, unless dams 

were absent from the particular area, led 

to exclusions only in the Penobscot 

SHRU. No economic exclusions are in 

the Downeast Coastal or Merrymeeting 

Bay SHRUs. Given that exclusions based 

on economic impacts within the 

Penobscot SHRU were only made in 

areas considered to have little biological 

value to Atlantic salmon, those 

exclusions are not considered to 

jeopardize the species’ continued 

existence because those areas do not 

diminish the functional habitat unit 

below what is needed to support a 

recovered GOM DPS. 

Even though 156 units of habitat on 

tribal and military lands in the 

Downeast Coastal SHRU are being 

excluded from critical habitat, we do 

not believe that exclusions of these 

lands will reduce the conservation value 

of Atlantic salmon habitat. We do not 

believe that exclusion of 

Passamaquoddy tribal lands, including 

their lands in the Downeast Coastal 

SHRU, will reduce the conservation 

value or functional habitat unit of 

Atlantic salmon habitat within those 

particular areas, given the ongoing 

cooperative efforts between the Tribe 

and the agencies. We do not believe that 

excluding the two military installations 

that contain critical habitat in the 

Downeast Coastal SHRU from the 

critical habitat designation is likely to 

result in the extinction of the species. 

VII. Effects of Critical Habitat 

Designation 

ESA Section 7 Consultation 

The cost of specifying any particular 

area as critical habitat occurs primarily 

through section 7 of the ESA. Once 

critical habitat is designated, section 

7(a)(2) requires that Federal agencies 

ensure any action they authorize, fund 

or carry out (this action is called the 

‘‘Federal nexus’’) is not likely to result 

in the destruction or adverse 

modification of critical habitat (16 

U.S.C. 1536(a)(2)). Parties involved in 

section 7 consultations include NMFS 

or the USFWS, a Federal action agency, 

and in some cases, a private entity 

involved in the project or land use 

activity. The Federal action agency 

serves as the liaison with NMFS. Under 

Section 7(a)(2), when a Federal agency 

proposes an action that may affect a 

listed species or its critical habitat, then 

they must initiate formal consultation 

with NMFS (or the USFWS, as 

applicable) or seek written concurrence 

from the Services that the action is not 

likely to adversely affect listed species 

or its designated critical habitat. Formal 

consultation is a process between the 

Services and a Federal agency designed 

to determine whether a proposed 

Federal action is likely to jeopardize the 

continued existence of a species or 

destroy or adversely modify critical 

habitat, an action prohibited by the 

ESA. If the action is likely to destroy or 

adversely modify critical habitat, then 

the Federal agency may be required to 

implement a reasonable and prudent 

alternative (RPA) to the proposed action 

to avoid the destruction or adverse 

modification of critical habitat. Harm 

avoidance measures may also be 

implemented to avoid lesser adverse 

effects to critical habitat that may not 

rise to the level of adverse modification. 

Outside of the Federal agencies’ 

obligation to consult with respect to 

actions that may affect critical habitat 

and adopt project modifications to avoid 

destruction or adverse modification, the 

ESA imposes no requirements or 

limitations on entities or individuals as 

result of a critical habitat designation. 

The benefits of designation used for 

the proposed critical habitat designation 

for the GOM DPS are the biological 

values assigned to each HUC 10 that 

evaluate the quality and quantity of the 

physical and biological features within 

each HUC 10 and the current potential 

of each HUC 10 to support (absent 

dams) the spawning, rearing, and 

migration of the GOM DPS (NMFS, 

2009a). 

Activities That May Be Affected (Section 

4(b)(8)) 

Section 4(b)(8) of the ESA requires 

that we describe briefly and evaluate in 

any proposed or final regulation to 

designate critical habitat, those 

activities that may destroy or adversely 

modify such habitat or that may be 

affected by such designation. A wide 

variety of activities may affect critical 

habitat and, when carried out, funded, 

or authorized by a Federal agency, will 

require an ESA section 7 consultation. 

Such activities (detailed in IEc, 2009a) 

include, but are not limited to 

agriculture, transportation, development 

and hydropower. 

We believe this critical habitat 

designation will provide Federal 

agencies, private entities, and the public 

with clear notification of critical habitat 

for Atlantic salmon and the boundaries 

of such habitat. This designation will 

allow Federal agencies and others to 

evaluate the potential effects of their 

activities on critical habitat to determine 

if ESA section 7 consultation with 

NMFS is needed given the specific 

definition of physical and biological 

features. 

VIII. Classification 

Regulatory Planning and Review 

This final rule has been determined to 

be significant for purposes of Executive 

Order (E.O.) 12866. We have integrated 

the regulatory principles of the E.O. into 

the development of this final rule to the 

extent consistent with the mandatory 

duty to designate critical habitat, as 

defined in the ESA. 

Coastal Zone Management Act (15 

U.S.C. 1451 et seq.) We have determined 

that this action is consistent to the 

maximum extent practicable with the 

enforceable policies of the approved 

coastal management program of the 

State of Maine. The determination has 

been submitted for review by the 

responsible State agency under section 

307 of the Coastal Zone Management 

Act (16 U.S.C. 1451 et seq.). 

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29332 Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 

Regulatory Flexibility Act (U.S.C. 601 

et seq.) 

We prepared a final regulatory 

flexibility analysis (FRFA) pursuant to 

section 603 of the Regulatory Flexibility 

Act (RFA) (5 U.S.C. 601 et seq.) (IEc, 

2009b). This FRFA only analyzes the 

impacts to those areas where critical 

habitat is designated and is available at 

the location identified in the ADDRESSES

section. The FRFA is summarized 

below, as required by section 603 of the 

RFA. The FRFA describes the economic 

impact this final rule would have on 

small entities. A description of the 

action, why it is being considered, and 

the objectives of and legal basis for this 

action are contained in the preamble of 

this rule and are not repeated here. A 

summary of the FRFA follows: 

After reviewing the land use activities 

evaluated in the economic analysis 

conducted for this action, the types of 

small entities that may be impacted 

include those entities involved in 

hydropower, agriculture, and 

development activities. The total 

number of affected small entities 

includes up to 11 dam owners and 62 

farms. There are an unknown number of 

small entities involved in development 

projects. Because impacts are calculated 

on a per acre basis and not for specific 

projects, it is not possible to identify 

specific landowners. 

This action does not contain any new 

collection-of-information, reporting, 

recordkeeping, or other compliance 

requirements beyond the potential 

economic impacts described below and 

any reporting requirements associated 

with reporting on the progress and 

success of implementing project 

modifications, which do not require 

special skills to satisfy. Third party 

applicants or permittees may also incur 

costs associated with participating in 

the administrative process of 

consultation along with the permitting 

Federal agency. 

No Federal laws or regulations 

duplicate or conflict with the final rule. 

Existing Federal laws and regulations 

overlap with the final rule only to the 

extent that they provide protection to 

marine natural resources generally. 

However, no existing laws or 

regulations specifically prohibit 

destruction or adverse modification of 

critical habitat for, and focus on the 

recovery of, Atlantic salmon. 

In conducting the FRFA, we 

considered three regulatory alternatives 

and the impacts of these alternatives. 

Alternative 1 was designating the 

bankfull width of rivers and perennial 

streams throughout the 105–HUC 10 

study area as critical habitat for Atlantic 

salmon. Only 48 of these HUCs, 

however, are currently occupied by the 

salmon and contain the physical and 

biological features essential to the 

conservation of the species. We 

determined that the 57 HUCs that are 

currently unoccupied are not essential 

to the conservation of the species. 

Accordingly, we rejected this 

alternative. Alternative 2 was to 

designate as critical habitat the bankfull 

width of rivers and perennial streams 

within the 48 occupied HUCs. We 

rejected this alternative because we 

determined that, in certain cases, the 

benefits of excluding particular areas 

outweigh the benefits of including them 

in the designation, and excluding these 

areas will not result in extinction of the 

species. Alternative 3 limits the 

designation of critical habitat to the 

bankfull width of rivers and perennial 

streams within 45 of the 48 occupied 

HUCs. This is the alternative that we 

have accepted and the alternative 

described in the FRFA. 

The FRFA estimates for alternative 3, 

that approximately 62 small farms 

(average annual receipts of less than 

$750,000) may be affected by critical 

habitat designation (IEc, 2009b). The 

average annual revenue of these farms 

was estimated at $74,000 (USDA, 2002). 

The estimated average losses per small 

farm are estimated at $6,300 (IEc, 

2009b). 

Impacts to development are based on 

impacts to landowners associated with 

constraints on development within a 30- 

meter buffer of streams within the study 

area. The present value of impacts to all 

development projects is estimated at 

$94.6 million to $127 million. Section 3 

of the Small Business Act defines small 

business as any firm that is 

independently owned and operated and 

is not dominant in its field of operation. 

The U.S. Small Business Administration 

(SBA) has developed size standards to 

carry out the purposes of the Small 

Business Act, and those size standards 

can be found in 13 CFR 121.201. Size 

standards are expressed either in 

number of employees or annual receipts 

in millions of dollars depending on the 

specific type of business. Because 

impacts to development projects are 

determined on a per acre basis and not 

by the specific type of development 

project, we were unable to determine 

who the specific affected landowners 

are. In some cases, some portion of these 

landowners are likely individuals and 

not businesses, and, therefore, not 

relevant to the small business analysis, 

while it is also likely that some of these 

landowners are businesses, including 

small businesses, that may be impacted 

by constraints. 

Land developers and subdividers are 

one type of small business that may be 

affected by constraints stemming from 

the final critical habitat designation 

(IEc, 2009b). The available data suggest 

that 188 small land developers operate 

in counties that overlap the 45 HUCs 

containing critical habitat, accounting 

for 97 percent of the subdividers in the 

region (IEc, 2009b). The information 

available, however, is insufficient to 

estimate the impacts on these entities or 

to identify other potentially affected 

landowners (IEc, 2009b). 

Impacts to hydropower were 

estimated for small hydropower 

producers identified by the Small 

Business Administration as those 

producing less than four billion 

kilowatt-hours annually and are likely 

to experience impacts associated with 

the critical habitat designation. The 

FRFA analysis (IEc, 2009b) estimates 11 

hydropower producers within the 45 

HUCs that contain critical habitat may 

be affected. The estimated annualized 

cost accrued by these dam owners is 

between $50 to $294,000 (IEc, 2009b). 

Critical habitat designation may 

encourage landowners to develop 

Habitat Conservation Plans (HCPs). 

Under section 10 of the ESA, 

landowners seeking an incidental take 

permit must develop an HCP to 

counterbalance the potential harmful 

effects that an otherwise lawful activity 

may have on a species. The purpose of 

the habitat conservation planning 

process is to ensure that the effects of 

incidental take are adequately 

minimized and mitigated. Thus, HCPs 

are developed to ensure compliance 

with section 9 of the ESA and to meet 

the requirements of section 10 of the 

ESA. Neither the FRFA nor the 

Economic Analysis forecasts effects 

associated with the development of 

HCPs. 

Information Quality Act (IQA) (Section 

515 of Pub. L. 106–554) 

The data and analyses supporting this 

designation have undergone a predissemination review and have been 

determined to be in compliance with 

applicable information quality 

guidelines implementing the 

Information Quality Act (IQA) (Section 

515 of Pub. L. 106–554). 

In December 2004, the Office of 

Management and Budget (OMB) issued 

a Final Information Quality Bulletin for 

Peer Review pursuant to the IQA. The 

Bulletin established minimum peer 

review standards, a transparent process 

for public disclosure of peer review 

planning, and opportunities for public 

participation with regard to certain 

types of information disseminated by 

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Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 29333 

the Federal government. The peer 

review requirements of the OMB 

Bulletin apply to influential or highly 

influential scientific information 

disseminated on or after June 16, 2005. 

To satisfy our requirements under the 

OMB Bulletin, we allowed a 90-day 

public comment period and held two 

public hearings (Brewer and Augusta, 

Maine) where we gave the public the 

opportunity to participate in the review 

of the proposed critical habitat rule and 

supporting documents. An independent 

peer review of the scientific information 

that supports the proposal to designate 

critical habitat for the GOM DPS of 

Atlantic salmon was conducted, and 

peer review comments were 

incorporated prior to dissemination of 

this rulemaking. Four independent peer 

reviewers were solicited to review the 

proposed critical habitat rule, though all 

declined the opportunity to review the 

document largely due to time 

constraints. A 4(b)(2) Report (NMFS, 

2009) that supports the designation of 

critical habitat for the GOM DPS of 

Atlantic salmon was also peer reviewed 

pursuant to the requirements of the 

Bulletin and is available on our Web site 

( see ADDRESSES). 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This final rule does not contain a 

collection-of-information requirement 

for purposes of the Paperwork 

Reduction Act. This final rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

An environmental analysis as 

provided for under the National 

Environmental Policy Act for critical 

habitat designations made pursuant to 

the ESA is not required. See Douglas 

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

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

Federalism 

In accordance with Executive Order 

13132 ‘‘Federalism,’’ agencies are 

required to ensure meaningful and 

timely input from State and local 

officials in the development of 

regulatory policies that have federalism 

implications. In accordance with 

Department of Commerce policies, we 

requested information from, and 

coordinated development of, this 

critical habitat designation with 

appropriate State resource agencies in 

the State of Maine. 

Takings 

In accordance with E.O. 12630, this 

final rule does not have takings 

implications. A takings implication 

assessment is not required. The 

designation of critical habitat affects 

only Federal agency actions. This final 

rule will not increase or decrease the 

current restrictions on private property 

concerning take of Atlantic salmon. 

Critical habitat does not preclude the 

development of HCPs and issuance of 

incidental take permits, and, therefore, 

landowners within areas designated as 

critical habitat will continue to have the 

opportunity to use their property in 

ways consistent with the survival of 

endangered Atlantic salmon. 

IX. References Cited 

A complete list of all references cited 

in this rule making can be found on our 

Web site at http://www.nero.noaa.gov/ 

prot_res/altsalmon/, and is available 

upon request from the NMFS Northeast 

Regional Office in Gloucester, 

Massachusetts (see ADDRESSES). 

List of Subjects in 50 CFR Part 226 

Endangered and threatened species. 

Dated: June 12, 2009. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons set out in the 

preamble, 50 CFR part 226 is amended 

as set forth below: 

PART 226—DESIGNATED CRITICAL 

HABITAT (AMENDED) 

■ 1. The authority citation for part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 2. Add § 226.217 to read as follows: 

§ 226.217 Critical habitat for the Gulf of 

Maine Distinct Population Segment of 

Atlantic Salmon (Salmo salar). 

Critical habitat is designated to 

include all perennial rivers, streams, 

and estuaries and lakes connected to the 

marine environment within the range of 

the Gulf of Maine Distinct Population 

Segment of Atlantic Salmon (GOM 

DPS), except for those particular areas 

within the range which are specifically 

excluded. Within the GOM DPS, the 

primary constituent elements (PCEs) for 

Atlantic salmon include sites for 

spawning and incubation, sites for 

juvenile rearing, and sites for migration. 

The essential physical and biological 

features of habitat are those features that 

allow Atlantic salmon to successfully 

use sites for spawning and rearing and 

sites for migration. These features 

include substrate of suitable size and 

quality; rivers and streams of adequate 

flow, depth, water temperature and 

water quality; rivers, streams, lakes and 

ponds with sufficient space and diverse, 

abundant food resources to support 

growth and survival; waterways that 

allow for free migration of both adult 

and juvenile Atlantic salmon; and 

diverse habitat and native fish 

communities in which salmon interact 

with while feeding, migrating, 

spawning, and resting. 

(a) The GOM DPS is divided into 

three salmon habitat recovery units 

(SHRUs) within the range of the GOM 

DPS: These are the Downeast Coastal 

SHRU, the Penobscot Bay SHRU, and 

the Merrymeeting Bay SHRU. Critical 

habitat is being considered only in 

specific areas currently occupied by the 

species. Critical habitat specific areas 

are identified by hydrological unit codes 

(HUC) and counties within the States of 

Maine. Hydrological units are those 

defined by the Department of Interior 

(DOI), U.S. Geological Survey (USGS) 

publication, ‘‘Hydrologic Unit Maps’’ 

Water Supply Paper (Seaber et al., 1994) 

and the following DOI, USGS 1:500,000 

scale hydrologic unit map: State of 

Maine. These documents are 

incorporated by reference. The 

incorporation by reference was 

approved by the Director of the Federal 

Register in accordance with 5 U.S.C. 

552(a) and 1 CFR part 51. Copies of the 

USGS publication and the maps may be 

obtained from the USGS, Map Sales, 

Box 25286, Denver, CO 80225. Copies 

may be inspected at NMFS, Protected 

Resources Division, Office of Protected 

Resources, 1315 East-West Highway, 

Silver Spring, MD 20910, or at the 

National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to: http://www.archives.gov/

Federal_register/code_of_Federal_

regulations/ibr_locations.html. 

(b) Critical habitat is designated in the 

Maine counties and towns for the three 

SHRUs described in paragraphs (b)(1) 

and (2) of this section. The textual 

descriptions of critical habitat for each 

SHRU are included in paragraphs (b)(3) 

through (6) of this section, and these 

descriptions are the definitive source for 

determining the critical habitat 

boundaries. A general location map 

(Figure 1) is provided at the end of 

paragraph (b)(2) and is for general 

guidance purposes only, and not as a 

definitive source for determining critical 

habitat boundaries. 

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29334 Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 

(1) Maine counties and towns 

affected. Critical habitat is designated 

for the following SHRUs in the 

following counties and towns. 

(i) Counties and towns partially or 

entirely within areas containing critical 

habitat in the Downeast Coastal SHRU: 

Sub-basin County Town 

Coastal Washington Hancock.Penobscot .......................... Clifton, Eddington, Grand Falls Twp, Greenfield Twp, Summit Twp. 

Hancock ............................. Waltham, Bucksport, Dedham, Eastbrook, Ellsworth, Fletchers Landing Twp, Franklin, Great Pond, Hancock, Lamoine, Mariaville, Oqiton Twp, Orland, Osborn, 

Trenton Otis, Sullivan, Surry, T10 SD, T16 MD, T22 MD, T28 MD, T32 MD, T34 

MD, T35 MD, T39 MD, T40 MD, T41 MD, T7 SD, T9 SD. 

Washington ........................ Addison, Alexander, Baileyville, Baring Plt, Beddington, Centerville Twp, Charlotte, 

Cherryfield, Columbia, Columbia Falls, Cooper, Crawford, Cutler, Deblois, 

Dennysville, Devereaux Twp, East Machias, Edmunds Twp, Harrington, 

Jonesboro, Jonesport, Lubec, Machias, Machiasport, Marion Twp, Marshfield, 

Meddybemps, Milbridge, No 14 Twp, No 21 Twp, Northfield, Princeton, Roque 

Bluffs, Sakom Twp, Steuben, Trescott Twp, Whiting, Whitneyville, Wesley T18 

ED BPP, T18 MD BPP, T19 ED BPP, T19 MD BPP, T24 MD BPP, T25 MD 

BPP, T26 ED BPP, T27 ED BPP, T30 MD BPP, T31 MD BPP, T36 MD BPP, 

T37 MD BPP, T42 MD BPP, T43 MD BPP. 

(ii) Counties and towns partially or 

entirely within areas containing critical 

habitat in the Penobscot Bay SHRU: 

Sub-basin County Town 

Piscataquis ...................................... Penobscot ...................................... T4 Indian Purchase Twp, Long A Twp, Seboeis Plt, Mattamiscontis 

Twp, Maxfield, Lagrange, Charleston, Howland, T3 R9 NWP, Edinburg, Hopkins Academy Grant Twp, Garland. 

Piscataquis .................................... Shawtown Twp, TA R11 WELS, TA R10 WELS, TB R10 WELS, 

Greenville, T7 R9 NWP, Bowdoin College Grant West Twp, T4 R9 

NWP, Ebeemee Twp, Moosehead Junction Twp, Lake View Plt, 

Brownville, Milo, Blanchard Twp, Sebec, Dover-Foxcroft, Abbot, 

Kingsbury Plt, Parkman, Wellington, Frenchtown Twp, Medford, 

Sangerville, TB R11 WELS, Katahdin Iron Works Twp, Elliottsville 

Twp, Shirley, Guilford, Atkinson, Beaver Cove, Williamsburg Twp, 

Bowdoin College Grant East Twp, Barnard Twp, Monson, Orneville 

Twp. 

Somerset ....................................... Squaretown Twp, Mayfield Twp, Brighton Plt, East Moxie Twp, Bald 

Mountain Twp T2 R3. 

East Branch ..................................... Aroostook ....................................... Moro Plt, T7 R5 WELS. 

Penobscot ...................................... Mount Chase, East Millinocket, Grindstone Twp, Herseytown Twp, 

Medway, Patten, Soldiertown Twp T2 R7 WELS, Stacyville, T1 R6 

WELS, T2 R8 WELS, T3 R7 WELS, T3 R8 WELS, T4 R7 WELS, 

T4 R8 WELS, T5 R7 WELS, T5 R8 WELS, T6 R6 WELS, T6 R7 

WELS, T6 R8 WELS, T7 R6 WELS, T7 R7 WELS, T7 R8 WELS, 

T8 R6 WELS, T8 R7 WELS, T8 R8 WELS. 

Piscataquis .................................... Mount Katahdin Twp, Nesourdnahunk Twp, Trout Brook Twp, T3 R10 

WELS, T4 R10 WELS, T4 R9 WELS, T5 R11 WELS, T5 R9 

WELS, T6 R10 WELS, T6 R11 WELS, T7 R10 WELS, T7 R11 

WELS, T7 R12 WELS, T7 R9 WELS. 

Mattawamkeag ................................ Aroostook ....................................... Amity, Bancroft, Benedicta Twp, Crystal, Dudley Twp, Dyer Brook, 

Forkstown Twp, Moro Plt, North Yarmouth Academy Grant Twp, 

Oakfield, Orient, Reed Plt, Sherman, Silver Ridge Twp, Smyrna, 

Upper Molunkus Twp, Webbertown Twp, Weston, T1 R5 WELS, 

T2 R4 WELS, T3 R3 WELS, T3 R4 WELS, T4 R3 WELS, T7 R5 

WELS, TA R2 WELS. 

Penobscot ...................................... Carroll Plt, Drew Plt, Herseytown Plt, Kingman Twp, Lee, Lincoln, 

Mattawamkeag, Mount Chase, Patten, Prentiss Twp T7 R3 NBPP, 

Springfield, Stacyville, Webster Plt, Winn, T1 R6 WELS, T4 R7 

WELS, T6 R6 WELS. 

Washington .................................... T8 R3 NBPP, T8 R4 NBPP. 

Penobscot ....................................... Aroostook ....................................... Benedicta TWP, Molunkus Twp, Sherman, T1 R5 WELS. 

Hancock ......................................... Amherst, Blue Hill, Bucksport, Castine, Dedham, Great Pond, Oqiton 

Twp, Orland, Penobscot, Surry, Verona Island, T3 ND, T32 MD, 

T34 MD, T35 MD, T39 MD, T40 MD, T41 MD. 

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Sub-basin County Town 

Penobscot ...................................... Alton, Argyle Twp, Bangor, Brewer, Burlington, Carmel, Charleston, 

Chester, Clifton, Corinna, Corinth, Dexter, Dixmont, Eddington, Edinburg, Enfield, Etna, Exeter, Garland, Glenburn, Grand Falls Twp, 

Hampden, Hermon, Herseytown Twp, Holden, Howland, Hudson, 

Indian Island, Kenduskeag, Lagrange, Lakeville, Lee, Levant, Lincoln, Lowell, Mattamiscontis Twp, Mattawamkeag, Maxfield, 

Medway, Milford, Newburgh, Newport, Old Town, Orono, Orrington, 

Passadumkeag, Plymouth, Seboeis Plt, Springfield, Stacyville, 

Stetson, Summit Twp, Veazie, Winn, Woodville T1 R6 WELS, T2 

R8 NWP, T2 R9 NWP, T3 R1 NBPP, T3 R9 NWP, TA R7 WELS. 

Piscataquis .................................... Medford. 

Waldo ............................................. Brooks, Frankfort, Jackson, Knox, Monroe, Montville, Prospect, 

Searsport, Stockton Springs, Swanville, Thorndike, Waldo, 

Winterport. 

Penobscot Bay ................................ Waldo ............................................. Belfast, Belmont, Brooks, Frankfort, Knox, Lincolnville, Monroe, 

Montville, Morrill, Northport, Searsmont, Searsport, Swanville, 

Waldo. 

(iii) Counties and towns partially or 

entirely within areas containing critical 

habitat in the Merrymeeting Bay SHRU: 

Sub-basin County Town 

Lower Androscoggin ....................... Androscoggin ................................. Auburn, Durham, Greene, Leeds, Lewiston, Lisbon, Sabattus, Wales. 

Cumberland ................................... Brunswick, Freeport. 

Kennebec ....................................... Litchfield, Monmouth 

Sagadahoc ..................................... Bath, Bowdoin, Bowdoinham, Richmond, Topsham. 

Merrymeeting Bay ........................... Androscoggin ................................. Livermore Falls. 

Franklin .......................................... Avon, Carthage, Chesterville, Farmington, Freeman Twp, Industry, 

Jay, Madrid Twp, Mount Abram Twp, New Sharon, New Vineyard, 

Perkins TWP, Phillips, Redington Twp, Salem Twp, Sandy River 

Plt, Strong, Temple, Township 6 North of Weld, Township E, 

Washington Twp, Weld, Wilton. 

Kennebec ....................................... Augusta, Benton, Chelsea, China, Clinton, Farmingdale, Fayette, 

Gardiner, Hallowell, Manchester, Oakland, Pittston, Randolph, 

Rome, Sidney, Vassalboro, Vienna, Waterville, West Gardiner, 

Windsor, Winslow. 

Lincoln ........................................... Alna, Dresden, Whitefield, Wiscasset. 

Sagadahoc ..................................... Bowdoinham, Perkins Twp Swan Island, Richmond, Woolwich. 

Somerset ....................................... Anson, Athens, Bingham, Brighton Plt, Canaan, Cornville, Fairfield, 

Hartland, Madison, Mayfield Twp, Mercer, Norridgewock, Pittsfield, 

Skowhegan, Smithfield, Solon, Starks. 

Coastal Drainages East of Small 

Point.

Cumberland ................................... Brunswick. 

Kennebec ....................................... Albion, Pittston, Windsor. 

Knox ............................................... Appleton, Camdem, Cushing, Friendship, Hope, Rockland, Rockport, 

Saint George, South Thomaston, Thomaston, Union, Warren, 

Washington. 

Lincoln ........................................... Alna, Boothbay, Boothbay Harbor, Bremen, Briston, Dresden, 

Edgecomb, Hibberts Gore, Jefferson, Newcastle, Nobleboro, Somerville, Southport, Waldoboro, Westport Island, Whitefield, 

Wiscasset. 

Sagadahoc ..................................... Arrowsic, Bath, Bowdoinham, Georgetown, Phippsburg, West Bath, 

Woolwich. 

Waldo ............................................. Belmont, Freedom, Liberty, Lincolnville, Montville, Morrill, Palermo, 

Searsmont. 

(2) Critical habitat boundaries. 

Critical habitat includes the stream 

channels within the designated stream 

reaches, and includes a lateral extent as 

defined by the ordinary high-water line 

(33 CFR 329.11). In areas where the 

ordinary high-water line has not been 

defined, the lateral extent will be 

defined by the bankfull elevation. 

Bankfull elevation is the level at which 

water begins to leave the channel and 

move into the floodplain and is reached 

at a discharge which generally has a 

recurrence interval of 1 to 2 years on an 

annual flood series. Critical habitat in 

estuaries is defined by the perimeter of 

the water body as displayed on standard 

1:24,000 scale topographic maps or the 

elevation of extreme high water, 

whichever is greater. 

BILLING CODE 2510–22–P 

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(i) HUC 10 watersheds in the 

Penobscot Bay SHRU analyzed for 

critical habitat, those that meet the 

criteria for critical habitat, and those 

excluded under ESA section 4(b)(2): 


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Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 29337 

Penobscot 

Bay SHRU HUC 10 code HUC 10 name Status 

Economic (E), 

Military (M), or 

Tribal (T) 

exclusions 

1 ............... 0102000101 North Branch Penobscot River.

2 ............... 0102000102 Seeboomook Lake.

3 ............... 0102000103 WEST Branch Penobscot River at Chesuncook Lake.

4 ............... 0102000104 Caucomgomok Lake.

5 ............... 0102000105 Chesuncook Lake.

6 ............... 0102000106 Nesowadnehunk Stream.

7 ............... 0102000107 Nahamakanta Stream.

8 ............... 0102000108 Jo-Mary Lake.

9 ............... 0102000109 West Branch Penobscot River (3).

10 ............. 0102000110 West Branch Penobscot River (4).

11 ............. 0102000201 Webster Brook.

12 ............. 0102000202 Grand Lake Matagamon ................................................................................. Critical Habitat.

13 ............. 0102000203 East Branch Penobscot River (2) ................................................................... Critical Habitat.

14 ............. 0102000204 Seboeis River ................................................................................................. Critical Habitat.

15 ............. 0102000205 East Branch Penobscot River (3) ................................................................... Critical Habitat.

16 ............. 0102000301 West Branch Mattawamkeag River ................................................................ Critical Habitat.

17 ............. 0102000302 East Branch Mattawamkeag River ................................................................. Critical Habitat.

18 ............. 0102000303 Mattawamkeag River (1) ................................................................................ Critical Habitat.

19 ............. 0102000304 Baskahegan Stream.

20 ............. 0102000305 Mattawamkeag River (2) ................................................................................ Critical Habitat.

21 ............. 0102000306 Molunkus Stream ............................................................................................ Critical Habitat ..... E 

22 ............. 0102000307 Mattawamkeag River (3) ................................................................................ Critical Habitat.

23 ............. 0102000401 Piscataquis River (1) ...................................................................................... Critical Habitat.

24 ............. 0102000402 Piscataquis River (3) ...................................................................................... Critical Habitat.

25 ............. 0102000403 Sebec River.

26 ............. 0102000404 Pleasant River ................................................................................................ Critical Habitat.

27 ............. 0102000405 Seboeis Stream .............................................................................................. Critical Habitat ..... T 

28 ............. 0102000406 Piscataquis River (4) ...................................................................................... Critical Habitat.

29 ............. 0102000501 Penobscot River (1) at Mattawamkeag .......................................................... Critical Habitat.

30 ............. 0102000502 Penobscot River (2) at West Enfield .............................................................. Critical Habitat ..... T 

31 ............. 0102000503 Passadumkeag River ...................................................................................... Critical Habitat ..... E 

32 ............. 0102000505 Sunkhaze Stream ........................................................................................... Critical Habitat.

33 ............. 0102000506 Penobscot River (3) at Orson Island .............................................................. Critical Habitat.

34 ............. 0102000507 Birch Stream ................................................................................................... Critical Habitat.

35 ............. 0102000508 Pushaw Stream.

36 ............. 0102000509 Penobscot River (4) at Veazie Dam ............................................................... Critical Habitat.

37 ............. 0102000510 Kenduskeag Stream ....................................................................................... Critical Habitat.

38 ............. 0102000511 Souadabscook Stream ................................................................................... Critical Habitat.

39 ............. 0102000512 Marsh River .................................................................................................... Critical Habitat.

40 ............. 0102000513 Penobscot River (6) ........................................................................................ Critical Habitat.

92 ............. 0105000216 Bagaduce River.

93 ............. 0105000217 Stonington Coastal.

94 ............. 0105000218 Belfast Bay ...................................................................................................... Critical Habitat.

105 ........... 0105000219 Ducktrap River ................................................................................................ Critical Habitat.

103 ........... 0102000504 Olamon Stream.

95 ............. 0105000220 West Penobscot Bay Coastal.

(ii) HUC 10 watersheds in the 

Merrymeeting Bay SHRU analyzed for 

critical habitat, those that meet the 

criteria for critical habitat, and those 

excluded under ESA section 4(b)(2): 

Merrymeeting 

Bay SHRU HUC 10 code HUC 10 name Status Military (M) exclusions 

41 ................. 0103000101 South Branch Moose River.

42 ................. 0103000102 Moose River (2) above Attean Pond.

43 ................. 0103000103 Moose River (3) at Long Pond.

44 ................. 0103000104 Brassua Lake.

45 ................. 0103000105 Moosehead Lake.

46 ................. 0103000106 Kennebec River (2) above The Forks.

47 ................. 0103000201 North Branch Dead River.

48 ................. 0103000202 South Branch Dead River.

49 ................. 0103000203 Flagstaff Lake.

50 ................. 0103000204 Dead River.

51 ................. 0103000301 Kennebec River (4) at Wyman Dam.

52 ................. 0103000302 Austin Stream.

53 ................. 0103000303 Kennebec River (6).

54 ................. 0103000304 Carrabassett River.

55 ................. 0103000305 Sandy River ................................................................................................. Critical Habitat ..... M 

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Merrymeeting 

Bay SHRU HUC 10 code HUC 10 name Status Military (M) exclusions 

56 ................. 0103000306 Kennebec River at Waterville Dam ............................................................. Critical Habitat.

57 ................. 0103000307 Sebasticook River at Pittsfield.

58 ................. 0103000308 Sebasticook River (3) at Burnham.

59 ................. 0103000309 Sebasticook River (4) at Winslow.

60 ................. 0103000310 Messalonskee Stream.

61 ................. 0103000311 Cobbosseecontee Stream.

62 ................. 0103000312 Kennebec River at Merrymeeting Bay ......................................................... Critical Habitat.

63 ................. 0104000101 Mooselookmeguntic Lake.

64 ................. 0104000102 Umbagog Lake Drainage.

65 ................. 0104000103 Aziscohos Lake Drainage.

66 ................. 0104000104 Magalloway River.

67 ................. 0104000105 Clear Stream.

68 ................. 0104000106 Middle Androscoggin River.

69 ................. 0104000201 Gorham-Shelburne Tributaries.

70 ................. 0104000202 Androscoggin River (2) at Rumford Point.

71 ................. 0104000203 Ellis River.

72 ................. 0104000204 Ellis River.

73 ................. 0104000205 Androscoggin River (3) above Webb River.

74 ................. 0104000206 Androscoggin River (4) at Riley Dam.

75 ................. 0104000207 Androscoggin River (5) at Nezinscot River.

76 ................. 0104000208 Nezinscot River.

77 ................. 0104000209 Androscoggin River (6) above Little Androscoggin River.

78 ................. 0104000210 Little Androscoggin River ............................................................................. Critical Habitat ..... M 

96 ................. 0105000301 St. George River .......................................................................................... Critical Habitat.

97 ................. 0105000302 Medomak River ............................................................................................ Critical Habitat.

98 ................. 0105000303 Johns Bay.

99 ................. 0105000304 Damariscotta River.

100 ............... 0105000305 Sheepscot River ........................................................................................... Critical Habitat.

101 ............... 0105000306 Sheepscot Bay ............................................................................................. Critical Habitat.

102 ............... 0105000307 Kennebec River Estuary .............................................................................. Critical Habitat ..... M 

(iii) HUC 10 watersheds in the 

Downeast Coastal SHRU analyzed for 

critical habitat, and those that meet the 

criteria for critical habitat, and those 

excluded under ESA section 4(b)(2): 

Downeast 

SHRU HUC 10 code HUC 10 name Status Tribal (T) exclusions 

79 ............. 0105000201 Dennys River .................................................................................................. Critical Habitat.

80 ............. 0105000203 Grand Manan Channel ................................................................................... Critical Habitat.

81 ............. 0105000204 East Machias River ......................................................................................... Critical Habitat ..... T 

82 ............. 0105000205 Machias River ................................................................................................. Critical Habitat.

83 ............. 0105000206 Roque Bluffs Coastal ...................................................................................... Critical Habitat.

84 ............. 0105000208 Pleasant River ................................................................................................ Critical Habitat.

85 ............. 0105000209 Narraguagus River .......................................................................................... Critical Habitat.

86 ............. 0105000210 Tunk Stream ................................................................................................... Critical Habitat.

87 ............. 0105000211 Bois Bubert Coasta.

88 ............. 0105000212 Graham Lake .................................................................................................. Critical Habitat.

89 ............. 0105000213 Union River Bay .............................................................................................. Critical Habitat.

90 ............. 0105000214 Lamoine Coastal.

91 ............. 0105000215 Mt. Desert Coastal.

104 ........... 0105000207 Chandler River ................................................................................................ Critical Habitat.

(3) Primary constituent elements. 

Within the GOM DPS, the primary 

constituent elements (PCEs) for the 

conservation of Atlantic salmon include 

sites for spawning and incubation, sites 

for juvenile rearing, and sites for 

migration. The physical and biological 

features of the habitat that are essential 

to the conservation of Atlantic salmon 

are those features that allow Atlantic 

salmon to successfully use sites for 

spawning and rearing and sites for 

migration. These features include: 

(i) Deep, oxygenated pools and cover 

(e.g., boulders, woody debris, 

vegetation, etc.), near freshwater 

spawning sites, necessary to support 

adult migrants during the summer while 

they await spawning in the fall; 

(ii) Freshwater spawning sites that 

contain clean, permeable gravel and 

cobble substrate with oxygenated water 

and cool water temperatures to support 

spawning activity, egg incubation and 

larval development; 

(iii) Freshwater spawning and rearing 

sites with clean gravel in the presence 

of cool, oxygenated water and diverse 

substrate to support emergence, 

territorial development, and feeding 

activities of Atlantic salmon fry; 

(iv) Freshwater rearing sites with 

space to accommodate growth and 

survival of Atlantic salmon parr, and 

population densities needed to support 

sustainable populations; 

(v) Freshwater rearing sites with a 

combination of river, stream, and lake 

habitats, that accommodate parr’s ability 

to occupy many niches and to maximize 

parr production; 

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Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 29339 

(vi) Freshwater rearing sites with cool, 

oxygenated water to support growth and 

survival of Atlantic salmon parr; 

(vii) Freshwater rearing sites with 

diverse food resources to support 

growth and survival of Atlantic salmon 

parr; 

(viii) Freshwater and estuary 

migratory sites free from physical and 

biological barriers that delay or prevent 

access to spawning grounds needed to 

support a recovered population; 

(ix) Freshwater and estuary migration 

sites with abundant, diverse native fish 

communities to serve as a protective 

buffer against predation; 

(x) Freshwater and estuary migration 

sites free from physical and biological 

barriers that delay or prevent emigration 

of smolts to the marine environment; 

(xi) Freshwater and estuary migration 

sites with sufficiently cool water 

temperatures and water flows that 

coincide with diurnal cues to stimulate 

smolt migration; 

(xii) Freshwater migration sites with 

water chemistry needed to support sea 

water adaptation of smolts; and 

(xiii) Freshwater and marine sites 

with diverse, abundant assemblages of 

native fish communities to enhance 

survivorship as Atlantic salmon smolts 

emigrating through the estuary. 

(4) Exclusion of Indian lands. Critical 

habitat does not include occupied 

habitat areas on Passamaquoddy Tribal 

Indian lands within the range of the 

GOM DPS. Critical habitat does include 

occupied habitat on Penobscot Tribal 

lands within the range of the GOM DPS. 

The Indian lands specifically excluded 

from critical habitat are those defined in 

the Secretarial Order 3206, including: 

(i) Lands held in trust by the United 

States for the benefit of any Indian 

Tribe; 

(ii) Lands held in trust by the United 

States for the benefit of any Indian Tribe 

or individual subject to restrictions by 

the United States against alienation; 

(iii) Fee lands, either within or 

outside the reservation boundaries, 

owned by the tribal government; and 

(iv) Fee lands within the reservation 

boundaries owned by individual 

Indians. We have determined that the 

rivers, streams, lakes, and estuaries of 

9,571 acres (38.7 sq km) of tribal land 

within the areas occupied by the GOM 

DPS are excluded from critical habitat 

designation based on the principles of 

the Secretarial Order discussed above. 

Per request of the Penobscot Nation, 

55,180 acres (223 sq km) of the 

Penobscot Nation lands are included as 

critical habitat. 

(5) Areas that do not meet the 

definition of critical habitat under 

section 4(a)(3)(B)(i). Critical habitat does 

not include the following areas owned 

or controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a). These areas that are not 

included are: 

(i) The 435 acres (1.8 sq km) of the 

Brunswick Naval Air Station in 

Brunswick Maine within the Little 

Androscoggin HUC 10 watershed in the 

Merrymeeting Bay SHRU; and 

(ii) The 5,328 acres (21.5 sq km) of the 

Brunswick Naval Air Stations cold 

weather survival, evasion, resistance, 

and escape school within the Sandy 

River HUC 10 watershed in the 

Merrymeeting Bay SHRU. 

(6) Areas excluded under ESA Section 

4(b)(2). (i) The 396 acres (1.6 sq km) of 

the Great Pond Outdoor Adventure 

Center in the Graham Lake HUC 10 

watershed in the Downeast Coastal 

SHRU; 

(ii) The 3,000 acres (12.1 sq km) of the 

Naval Computer and 

Telecommunications Area Master 

Station Atlantic Detachment in the 

Roques Bluffs Coastal HUC 10 in the 

Downeast Coastal SHRU; 

(iii) The Bath Iron Works ship 

building facility that provides the 

design, building, and support of 

complex Navy warships, including 

AEGIS Class Destroyers. The excluded 

area extends from U.S. Route 1 bridge 

over the Kennebec River down river to 

50 feet below the south side of BIWs dry 

dock, but does not include any portion 

of Hanson Bay or the thoroughfare 

between Hanson Bay and the Kennebec 

River. The specific area excluded from 

designation lies within a box between 

four points with the following 

coordinates: Point 1: N43 54′39.8′′, 

W069 48′43.5′′; Point 2: N43 54′40′′, 

W069 48′17.8′′; Point 3: N43 54′0.0′′, 

W069 48′47′′; Point 4: N43 54′0.0′′, 

W069 48′28′′; 

(iv) The Belfast Bay HUC 10 

Watershed (HUC 105000218); 

(v) The Passadumkeag River HUC 10 

Watershed (HUC 102000503); and 

(vi) The Molunkus Stream HUC 10 

Watershed (HUC102000306). 

(7) Description of critical habitat. 

Critical habitat is designated to include 

the areas defined in the following 

hydrological units in the three SHRUs 

with the exception of those particular 

areas specifically identified: 

(i) Downeast Coastal SHRU. Critical 

habitat area (in sq km), areas excluded 

under ESA section 4(b)(2) (in sq km), 

and exclusion type, by HUC 10 

watersheds: 

Sub-basin HUC 10 code HUC 10 watershed name 

Critical habitat Excluded areas [type]* 

River, 

stream and 

estuary (km) 

Lake 

(sq. km) 

River, 

stream and 

estuary (km) 

Lake 

(sq. km) 

Coastal Washington 

Hancock sub-basin.

0105000201 Dennys River ................................................ 218 45 

0105000203 Grand Manan Channel ................................. 641 15.5 

0105000204 East Machias River ...................................... 575 70 16 [T] 0.1 [T] 

0105000205 Machias River ............................................... 991 58 

0105000206 Roque Bluffs Coastal ................................... 321 .9 13(M) .004(M) 

0105000207 Chandler River ............................................. 154 0.1 

0105000208 Pleasant River .............................................. 325 6.5 

0105000209 Narraguagus River ....................................... 573 15.5 

0105000210 Tunk Stream ................................................. 117 14 

0105000212 Graham Lake ................................................ 974 121 2.3(M) .2(M) 

0105000213 Union River Bay ........................................... 303 18 

0105000211 Bois Bubert Coastal.

0105000214 Lamoine Coastal.

0105000215 Mt. Desert Coastal.

* Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal—considered unoccupied at the time of listing. 

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29340 Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 

(ii) Penobscot Bay SHRU. Critical 

habitat area (in sq km), areas excluded 

under ESA section 4(b)(2) (in sq km), 

and exclusion type, by HUC 10 

watersheds: 

Sub-basin HUC 10 code HUC 10 watershed name 

Critical habitat Excluded Areas [Type]* 

River, 

stream and 

estuary (km) 

Lake 

(sq. km) 

River, 

stream and 

estuary (km) 

Lake 

(sq. km) 

East Branch Penobscot sub-basin.0102000202 Grand Lake Matagamon .............................. 326 30 

0102000203 East Branch Penobscot River (2) ................ 179 3 

0102000204 Seboeis River ............................................... 418 31 

0102000205 East Branch Penobscot River (3) ................ 588 5 

0102000201 Webster Brook.

West Branch Penobscot sub-basin.0102000101 North Branch Penobscot River.

0102000102 Seeboomook Lake.

0102000103 W. Br. Penobscot R. at Chesuncook.

0102000104 Caucomgomok Lake.

0102000105 Chesuncook Lake.

0102000106 Nesowadnehunk Stream.

0102000107 Nahamakanta Stream.

0102000108 Jo-Mary Lake.

0102000109 West Branch Penobscot River (3).

0102000110 West Branch Penobscot River (4).

Mattawamkeag River 

sub-basin.

0102000301 West Branch Mattawamkeag River .............. 657 22 

0102000302 East Branch Mattawamkeag River ............... 315 12 

0102000303 Mattawamkeag River (1) .............................. 192 0.5 

0102000305 Mattawamkeag River (2) .............................. 451 8 

0102000307 Mattawamkeag River (3) .............................. 226 3 

0102000306 Molunkus Stream ......................................... 0 0 438 [E] 11 [E] 

0102000304 Baskahegan Stream.

Piscataquis River 

sub-basin.

0102000401 Piscataquis River (1) .................................... 762 15 

0102000402 Piscataquis River (3) .................................... 382 6 

0102000404 Pleasant River .............................................. 828 17 

0102000405 Seboeis Stream ............................................ 312 36 8.2 [T] 0.03 [T] 

0102000406 Piscataquis River (4) .................................... 328 30 

0102000403 Sebec River.

Penobscot River subbasin.0102000501 Penobscot River (1) at Mattawamkeag ........ 292 7 

0102000502 Penobscot River (2) at West Enfield ............ 551 29 3 [T] 

0102000503 Passadumkeag River ................................... 0 0 583 [E] 79 [E] 

0102000505 Sunkhaze Stream ......................................... 177 0.5 

0102000506 Penobscot River (3) at Orson Island ........... 211 0.5 

0102000507 Birch Stream ................................................. 120 1 

0102000509 Penobscot River (4) at Veazie Dam ............ 225 10 

0102000510 Kenduskeag Stream ..................................... 420 1.5 

0102000511 Souadabscook Stream ................................. 341 5.5 

0102000512 Marsh River .................................................. 319 3 

0102000513 Penobscot River (6) ..................................... 514 29 

0102000504 Olamon Stream.

0102000508 Pushaw Stream.

Penobscot Bay subbasin.0105000218 Belfast Bay ................................................... .................... .................... 177 [E] 9 [E] 

0105000219 Ducktrap River .............................................. 76 4 

0105000216 Bagaduce River.

0105000217 Stonington Coastal.

0105000220 West Penobscot Bay Coastal.

* Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal—considered unoccupied at the time of listing. 

(iii) Merrymeeting Bay SHRU. Critical 

habitat area (in sq km), areas excluded 

under ESA section 4(b)(2) (in sq km), 

and exclusion type, by HUC 10 

watershed: 

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Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 29341 

Sub basin HUC 10 code HUC 10 watershed name 

Critical habitat Excluded areas [type] * 

River, 

stream and 

estuary (km) 

Lake 

(sq. km) 

River, 

stream and 

estuary (km) 

Lake 

(sq. km) 

Kennebec River 

above the Forks 

sub-basin.

0103000101 South Branch Moose River.

0103000102 Moose River (2) above Attean Pond.

0103000103 Moose River (3) at Long Pond.

0103000104 Brassua Lake.

0103000105 Moosehead Lake.

0103000106 Kennebec River (2) above The Forks.

Dead River sub-basin 0103000201 North Branch Dead River.

0103000202 South Branch Dead River.

0103000203 Flagstaff Lake.

0103000204 Dead River.

Merrymeeting Bay 

sub-basin.

0103000305 Sandy River .................................................. 1,215 15.8 12 [M] 0.2 [M] 

0103000306 Kennebec River at Waterville Dam .............. 794 14 

0103000312 Kennebec River at Merrymeeting Bay ......... 621 22 

0103000310 Messalonskee Stream.

0103000301 Kennebec River (4) at Wyman Dam.

0103000302 Austin Stream.

0103000303 Kennebec River (6).

0103000304 Carrabassett River.

0103000307 Sebasticook River at Pittsfield.

0103000308 Sebasticook River (3) at Burnham.

0103000309 Sebasticook River (4) at Winslow.

0103000311 Cobbosseecontee Stream.

Upper Androscoggin 

sub-basin.

0104000101 Mooselookmeguntic Lake.

0104000102 Umbagog Lake Drainage.

0104000103 Aziscohos Lake Drainage.

0104000104 Magalloway River.

0104000105 Clear Stream.

0104000106 Middle Androscoggin River.

Lower Androscoggin 

sub-basin.

0104000210 Little Androscoggin River ............................. 549 10.5 1 [M] 

0104000201 Gorham-Shelburne Tributaries.

0104000202 Androscoggin River at Rumford Point.

0104000203 Ellis River.

0104000204 Ellis River.

0104000205 Androscoggin River above Webb River.

0104000206 Androscoggin River at Riley Dam.

0104000207 Androscoggin River at Nezinscot River.

0104000208 Nezinscot River.

0104000209 Androscoggin R. above L. Andro. R.

Coastal Drainages 

East of Small Point 

sub-basin.

0105000301 St. George River .......................................... 624 32 

0105000302 Medomak River ............................................ 318 6 

0105000305 Sheepscot River ........................................... 553 19 

0105000306 Sheepscot Bay ............................................. 220 2 

0105000307 Kennebec River Estuary .............................. 275 3.5 1 [M] 

0105000303 Johns Bay.

0105000304 Damariscotta River.

* Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal—considered unoccupied at the time of listing. 

[FR Doc. E9–14268 Filed 6–18–09; 8:45 am] 

BILLING CODE 2510–22–P 

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