Long Beach City Council
March 21, 2023

C-8 Correspondence – Miyoko Sakashita

From: Miyoko Sakashita [mailto:[email protected]] Sent: Tuesday, March 21, 2023 3:20 PM
To: CityClerk <[email protected]>
Subject: CBD Sources Part 1.1

-EXTERNAL-

Part 1.1

__________________________________________
Miyoko Sakashita
Oceans Director | Senior Counsel
Center for Biological Diversity
1212 Broadway, Suite 800
Oakland, CA 94612
tel. 510-844-7108 | [email protected]
@endangeredocean | Center for Biological Diversity

March 21, 2023 Submitted via email to [email protected] References available at https://centerforbiologicald-my.sharepoint.com/:f:/g/personal/celkins_biologicaldiversity_org/EnKgnCor99lGuuLZ09VgLJEBe1qZCkB-L3ApueGIIPlwhQ?e=glc5NS References also submitted via USB flash drive Long Beach City Council 411 W. OCEAN BOULEVARD Long Beach, CA 90802 Re: City Council Agenda Item: Recommendation to approve and adopt the Long Beach Unit Annual Plan (July 1, 2023 to June 30, 2024) and Program Plan (July 1, 2023 to June 30, 2028). (Citywide) Dear Long Beach City Council: The Center for Biological Diversity submits the following comments in response to the City of Long Beach’s (“the City”) draft five-year Program Plan for the Long Beach Unit (“LBU”), covering years 2023-28, and the related one-year draft Annual Plan for the LBU, covering July 1, 2023-June 30, 2024. The City posted both plans to its website for review by the public on Monday, March 13, 2023, and consideration by the City Council on March 21, 2023. First, as a threshold matter, the City’s plans must be subject to environmental review and public comment under the California Environmental Quality Act (“CEQA”). CEQA requires only that a discretionary activity may either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, for review to be triggered. As plans that propose over 100 drilling activities and open the door to other actions such as use of enhanced oil recovery, the plans meet this low-bar test. Long Beach oil and gas drilling, as we discuss below, impacts air quality, climate emissions, water quality, subsidence, species, environmental justice, energy use, and other areas of consequence. CEQA was intended to be interpreted in such a manner as to afford the fullest possible protection to the environment and the City must take action to comply by subjecting the plans to full review. Second, we urge the City to adhere to its own plans to eliminate oil and gas by phasing down production. Inexplicably, the draft plans project over 26.2 million barrels of oil and over 12 billion cubic feet of natural gas production—an increase over the previous five-year Program Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 2 Plan’s production numbers. This comes despite the City “know[ing] and support[ing] the position that oil production is not in [its] long-term future.”1 Third, the City must end all oil and gas operations within 3200 feet of homes, schools, nursing homes, and hospitals, as established by Senate Bill 1137 (2022). Governor Newsom signed SB 1137 into law, and while its enactment is delayed because of a referendum, it is a vital public health protection that begins to address the environmental health disparities experienced by frontline communities. The City must not perpetuate the harms that the legislature already declared “disproportionately impact[s] Black, indigenous, and people of color in California.”2 Instead of pushing forward its plans that lead to continued harms and increased drilling, the City should create a plan for alternative sources of revenue, consistent with a five-year phaseout of oil drilling, that supports a just transition for impacted workers. Finally, one week is an appallingly short amount of time for the public to review the proposed plans that will have consequences for years to come. In addition to pausing approvals for CEQA review, the City must provide the public with adequate time (at least 30 days) for review and public comment. I. Because the plans are projects, CEQA review is required The City of Long Beach is proposing in its five-year Program Plan for 2023-28 and associated Annual Plan to conduct oil and gas drilling activities in the LBU that are likely to cause adverse environmental impacts, as described in greater detail below. That neither the City nor any affiliated agencies have conducted CEQA review on the plans runs counter to law and deprives the public and other officials of information necessary to make informed decisions and formulate project alternatives and mitigations.3 CEQA directs state and local agencies to “take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state” and to “[e]nsure that the long-term protection of the environment . . . shall be the guiding criterion in public decisions.”4 “CEQA was intended to be interpreted in such a manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language,” and “[t]he purpose of CEQA is . . . to compel government at all levels to make decisions with environmental consequences in mind.”5 By “requir[ing] full environmental disclosure,” the Act 1 City of Long Beach, Recommendation from the Sustainable City Commission (March 15, 2022) at 19, https://www.longbeach.gov/globalassets/city-manager/media-library/documents/memos-to-the-mayor-tabbed-file-list-folders/2022/march-15--2022---recommendation-from-the-sustainable-city-commission; see also City of Long Beach, Recommendation from the Sustainable City Commission & Reducing Reliance on City Revenue from Oil Production (Jan. 2022 and Oct. 2021) at 4, http://longbeach.legistar.com/View.ashx?M=F&ID=10423777&GUID=CE2373C6-1897-4A8F-9FE8-858224EC882E. 2 SB 1137 (Gonzalez, 2022), approved and filed Sept. 16, 2022. 3 Cal. Pub. Res. Code § 21002. 4 Id. § 21001. 5 Cal. Code Regs. tit. 14, § 15003 (hereinafter, “CEQA Guidelines”).

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 3 ensures public awareness and participation in decisions with the potential for environmental consequences.6 The LBU plans are projects under CEQA and therefore warrant environmental review. CEQA applies to all “discretionary projects proposed to be carried out or approved by public agencies.”7 CEQA defines “project” as “the whole of an action” directly undertaken, supported or authorized by a public agency, “which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.”8 The bar for what constitutes a direct or reasonably foreseeable indirect physical change in the environment is low. According to the California Supreme Court, the “likely actual impact of an activity is not at issue when determining its status as a project.”9 Instead, the threshold question is whether an activity, “by its general nature” may be “capable, at least in theory, of causing” direct or “reasonably foreseeable indirect” environmental changes.10 The LBU plans easily meet the test for what constitutes a “project” under CEQA. The draft Program Plan, covering years 2023-28, prescribes discretionary activities such as redrilling and possible new drilling, potential use of enhanced oil recovery, and other activities that could be capable of producing environmental impacts on air quality, water quality, noise, species, and more. The Annual Plan is not only “based upon 33 replacement wells” described in the Program Plan, but also pledges to undertake discretionary activities related to “facilities piping, tanks, and vessels” as well as to “plug[] wells to surface, in-zone, and conditional abandonments.”11 These are all activities that are capable of causing environmental changes and must be subject to environmental review. Further, just because the City is projecting to end its reliance on revenue from oil production by 2035,12 that does not preclude the current plans (which extend to 2028) or future plans from triggering CEQA, given that the plans are capable of causing environmental impacts for many years to come. Once CEQA review begins for the plans, it is likely that a full environmental impact report (“EIR”) will be warranted because oil drilling activities may cause significant 6 Cmtys. for a Better Env’t v. City of Richmond, 108 Cal. Rptr. 3d 478, 491 (Cal. Ct. App. 2010). 7 Cal. Pub. Res. Code § 21080(a). Note that just because “further governmental decisions need to be made before . . . actual environmental impacts can be determined” does not mean an activity is not a project triggering CEQA review. Muzzy Ranch Co. v. Solano Cnty. Airport Land Use Com., 41 Cal. 4th 372, 383 (2007), as modified (Sept. 12, 2007); see also Save Tara v. City of W. Hollywood, 45 Cal. 4th 116, 194 P.3d 344 (2008), as modified (Dec. 10, 2008) (“CEQA review may not always be postponed until the last governmental step is taken, because postponing the environmental review may incentivize ignoring environmental concerns.”). 8 Cal. Pub. Res. Code. § 21065 (emphasis added); CEQA Guidelines § 15378. 9 Union of Med. Marijuana Patients, Inc. v. City of San Diego, 7 Cal. 5th 1171, 1199 (2019) (emphasis in original). 10 Id. at 1197. 11 Annual Plan 2023-24 at 3-5. 12 See City of Long Beach, Recommendation from the Sustainable City Commission & Reducing Reliance on City Revenue from Oil Production (Jan. 2022 and Oct. 2021), http://longbeach.legistar.com/View.ashx?M=F&ID=10423777&GUID=CE2373C6-1897-4A8F-9FE8-858224EC882E.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 4 environmental effects.13 That EIR must present “feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such” activities.14 The foundational components of CEQA—transparency, analysis and information sharing, alternatives and enforceable mitigation measures, public comments and agency responses15—are vitally important to environmental protection and civic participation. Notably, all such components are absent in the City’s current process for Program and Annual Plans. The draft plans provide no impacts analysis, offer no alternatives, and prescribe no mitigations. Moreover, the City provided only one week between release of the draft plans and the hearing date before City Council—hardly enough time for the public, and particularly those in overburdened and frontline communities—to digest the plans and offer comment. As such, the City is running afoul of CEQA and undermining public participation. II. Impacts of Plan Activities The plans prescribe drilling and operations activities that will lead to the production of over 26.2 million barrels of oil and over 12 billion cubic feet of natural gas. These activities will cause a range of direct and indirect environmental impacts. The drilling will put communities and ecosystems at risk of oil spills and other accidents, degrade groundwater aquifers, and cause subsidence which can lead to flooding and increased seismicity. The plan activities will lead to harmful air pollution as well as approximately the same greenhouse gas emissions as two coal-fired powerplants. The activities also perpetuate environmental injustice since much of the operations are within the health and safety buffer researchers have identified as necessary to avoid frontline communities at risk. Because of these foreseeable impacts, and others, the City must conduct a robust CEQA review. A. The Plans Risk Harmful Oil Spills and Other Accidents Oil spills are an inevitable consequence of oil drilling and can occur during every phase of onshore and offshore drilling, from exploration to extraction to transportation and refinement. California has seen spill after spill during the decades oil companies have been drilling on land and in our ocean. In the last two years alone, Orange County has seen multiple oil spills discharge tens of thousands of gallons of oil into the ocean, from breaks in pipes connecting offshore drilling operations to shore. And in 2015, the Plains All American pipeline ruptured and spilled up to 142,000 gallons of oil on the Santa Barbara coastline. While there are inherent risks in any drilling, the infrastructure in waters off California is especially susceptible to causing another disaster due to its age and condition, including Long Beach’s oil islands and pipelines. Long Beach must consider the risk and mitigate the risk oil spills pose to the local community, the coastal ecosystem, endangered wildlife, and the economy. In addition to the risks inherent in drilling for oil, hazards from climate change, such as increased severity of storms and sea level rise, increase the risk of oil spills and other accidents 13 Cal. Pub. Res. Code § 21080(d); see also CEQA Guidelines §§ 15063(b)(1), 15064. 14 Cal. Pub. Res. Code § 21002. 15 See Cal. Pub. Res. Code § 21002, 21003.1; see generally CEQA Guidelines § 15002.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 5 from aging infrastructure. Their old age also increases the risk of spills. For example, according to scientists, aging poses risks of corrosion, erosion and fatigue stress to subsea pipelines.16 Subsea pipeline corrosion appears to accelerate over time,17 and can act synergistically with fatigue stress to increase the rate of crack propagation.18 Marine environments are especially known to produce significant corrosion on steel surfaces, and when a steel structure is at or beyond its elastic limit, the rate of corrosion increases 10 to 15 percent.19 One offshore pipeline study found that after 20 years the annual probability of pipeline failure increases rapidly, with values in the range of 0.1 to 1.0, which equates to a probability of failure of 10 to 100 percent per year.20 The U.S. Department of Transportation itself found that offshore pipelines can be more vulnerable than onshore pipelines. They have a greater vulnerability to severe weather conditions than onshore pipelines, especially during hurricane events. And massive wave action can alter the pipeline stability, causing gradual displacement, especially in small diameter pipelines.21 Offshore pipelines can also face more corrosion than onshore pipelines due to higher temperature and pressure conditions that occur during the laying of these pipelines.22 Oil spills have a wide array of lethal and sublethal impacts on terrestrial and marine species, both immediate and long-term. For example, a growing body of evidence demonstrate that even brief exposures to crude oil and its components can have severe impacts on fish and invertebrate species. Schlenker et al. (2022) investigated the response of wild mahi-mahi (Coryphaena hippurus) to crude oil exposure and found: profound effects on survival and reproduction in the wild. In addition to significant changes in gene expression profiles and predation mortality, we documented altered acceleration and habitat use in the first 8 days oil-exposed individuals were at liberty as well as a cessation of apparent spawning activity for at least 37 days. These data reveal that even a brief and low-dose exposure to crude oil impairs fitness in wild mahi-mahi.23 16 Petroleum Safety Authority Norway, Material Risk – Ageing offshore installations (2006) (“PSA Norway”). 17 Mohd, M.H. and J.K. Paik, Investigation of the corrosion progress characteristics offshore oil well tubes, 67 Corrosion Science 130-141 (2013). 18 PSA Norway 2006. 19 Mohd and J.K. Paik, Pitting corrosion in pipeline steel weld zones, 53:12 Corros. Sci. 4026–4032 (2011); R.E. Melchers, et al., Statistical characterization of surfaces of corroded steel plates, 23 Mar. Struct. 274–287 (2010). 20 Bea, R., C. Smith, et al., Real-time Reliability Assessment & Management of Marine Pipelines, ASME, 21st Int’l Conference on Offshore Mechanics & Arctic Engineering (2002), https://asmedigitalcollection.asme.org/OMAE/proceedings-abstract/OMAE2002/36142/133/294825. 21 U.S. Dep’t of Transportation: Federal Highway Administration. Impacts of Climate Change and Variability on Transportation Systems and Infrastructure: The Gulf Coast Study, Phase 2 (2014). 22 Keuter, J., In-line Inspection of Pipes Using Corrosion Resistant Alloys (CRA) (2014), Rosen Technology and Research Center GmbH, Rosen Group, Germany; Standard Oil Company (1981) Drilling fluid bypass for marine riser. U.S. Grant. US4291772 A. 23 Schlenker, Lela S. et al., Brief oil exposure reduces fitness in wild Gulf of Mexico mahi-mahi (Coryphaena hippurus), 56 Envt’l Sci. & Tech. 13019, 13019 (2022). See also Ek-Huchim, Juan Pablo et al., Red blood cell cytotoxicity associated to heavy metals and hydrocarbons exposure in flouder fish from two regions of the Gulf of Mexico, 108 Bull. Envt’l Contamination & Toxicology 78 (2022); McDonald, Ashley M. et al., Prior Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 6 Recent research demonstrates that fish exposure to oil and gas from any given lease—exposure that contributes to the cumulative stresses experienced by individual animals—rises to the level of significance. For example, Pulster et al. (2021) found that 99 percent of red snapper (Lutjanus campechanus) sampled throughout the Gulf of Mexico between 2011–2017 showed signs of liver damage (e.g., inflammation, neoplasms and other lesions, parasites) associated with exposure to PAHs.24 And Lawson et al. (2021) found that deep-sea invertebrate species including sea anemones, sea cucumbers, and sea pens bioaccumulate PAHs.25 Oil pollution poses a well-known and significant threat to seabirds.26 Seabirds are particularly vulnerable to offshore oil and gas development because of their frequent contact with the water’s surface, their myriad foraging strategies, and the propensity of oil—even the thinnest sheen—to adhere to the birds’ plumage.27 Birds may be exposed to oil through acute events like spills, and chronically through routine discharges and leaks.28 Chronic oil exposure is more challenging to measure, but can have pervasive lethal, sublethal, and cascading effects that exposure to weathered oil influences foraging of an ecologically important saltmarsh resident fish, 10 PeerJ e12593 (2022). 24 Pulster, Erin L. et al., Hepatobiliary PAHs and prevalence of pathological changes in Red Snapper, 230 Aquatic Toxicology 105714 (2021). Previous research has demonstrated that fish exposed to PAHs may experience reduced growth, endocrine disruption, reproductive harms, embryonic malformations, behavioral impairment, suppressed immune system function, skeletal and skin disorders, abnormal liver growths, cancer, and death. Peter Albers, Petroleum and Individual Polycyclic Aromatic Hydrocarbons, Ch. 14 in David J. Hoffman et al. (eds), Handbook of Ecotoxicology 352, 353 (2d ed. 2002); Tracy K. Collier et al., Effects on fish of polycyclic aromatic hydrocarbons (PAHs) and naphthenic acid exposures, 33 Organic Chemical Toxicology of Fishes 195, 197-98, 200-06, 211-22, 224-30 (2014); Ronald Eisler, Polycyclic aromatic hydrocarbon hazards to fish, wildlife, and invertebrates: a synoptic review, U.S. Fish & Wildlife Serv. Biological Report 85 (1.11) 32 (May 1987); Xavier Cousin & Jerome Cachot, PAHs and fish—exposure monitoring and adverse effects—from molecular to individual level, 21 Envtl. Sci. and Pollution Research 13685, 13688 (2014); Canadian Water Quality Guidelines for the Protection of Aquatic Life: Polycyclic Aromatic Hydrocarbons (PAHs) 5, 6, 8 (1999); Britton C. Goodale, Ph.D., Dissertation: Developmental toxicity of Polycyclic Aromatic Hydrocarbons: Defining Mechanisms with Systems-Based Transcriptional Profiling 8 (2013); Jerry F. Payne et al., Ecotoxicological Studies Focusing on Marine and Freshwater Fish, Ch. 11 in Peter E.T. Douben (ed.), PAHs: An Ecotoxicological Perspective 192, 201-06, 208-09 (2003). The harms of exposure may be passed down through the generations. Collier et al. at 222-24; Cousin & Cachot 16389; Payne et al. at 205-06. 25 Lawson, M. Chase, et al. PAH and PCB body-burdens in epibenthic deep-sea invertebrates from the northern Gulf of Mexico, Marine Pollution Bulletin 162 (2021): 111825. 26 Dias, M.P. et al., Threats to seabirds: a global assessment, 237 Biological Conservation 525 (2019). 27 O’Hara, Patrick D. & Lora A. Morandin, Effects of sheens associated with offshore oil and gas development on the feather microstructure of pelagic seabirds, 60 Marine Pollution Bull. 672 (2010); Haney, J.C. et al., Challenges to oil spill assessment for seabirds in the deep ocean, 73 Arch. Environ. Contam. Toxicol. 33, 33 (2017). 28 Jodice, P. G. R., et al., GoMAMN Strategic Bird Monitoring Guidelines: Seabirds, at 129-170 in R. R. Wilson, A. M. V. Fournier, J. S. Gleason, J. E. Lyons, and M. S. Woodrey (Eds.) (2019), Strategic Bird Monitoring Guidelines for the Northern Gulf of Mexico, Mississippi Agricultural and Forestry Experiment Station Research Bulletin 1228, Mississippi State University; Lamb, Juliet S., et al., Seasonal variation in environmental and behavioural drivers of annual-cycle habitat selection in a nearshore seabird, 26 Diversity & Distributions 254 (2020).

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 7 hinder species and ecosystem recovery.29 Sublethal effects can occur even when oil is not visible.30 Marine mammals can be exposed to oil internally by inhaling volatile compounds at the surface, swallowing oil, consuming oil-contaminated prey, and externally by swimming in oil.31 Exposure to toxic fumes from petroleum hydrocarbons during oil spills have been recently linked to mortality in cetaceans, even years after such accidents.32 Studies have determined, for example, that the Deepwater Horizon oil spill caused adrenal and lung lesions in bottlenose dolphins which led to an unusual mortality event in which dolphins died over the course of several years.33 Oil spills can harm a wide variety of wildlife, which includes species protected under the Endangered Species Act (“ESA”). For example, ESA-listed sea otters are particularly vulnerable to contamination from oil spills. When sea otters come into contact with oil, it causes their fur to mat, which prevents the fur from insulating their bodies. Without this natural protection from the cold water temperature, sea otters can quickly die from hypothermia. The toxicity of oil can also be harmful to sea otters, causing liver and kidney failure and damage to their lungs and eyes.34 ESA-listed western snowy plovers and the California least tern are extremely sensitive to disturbances such as oil spills, especially during the nesting season.35 ESA-listed fish also may be affected by the lease extensions. Tidewater goby is a small, endangered coastal fish that inhabits the coastal areas of California. Steelhead trout are an anadromous fish, and the southern California population is listed as endangered. They both have designated critical habitat in areas along the Southern California Coast.36 Oil field pollution degrades tidewater goby habitat.37 Fish are vulnerable to offshore oil and gas pollution and oil spills at all life stages.38 For example, oil induced developmental abnormalities in laboratory 29 Peterson, Charles H. et al., Long-term ecosystem response to the Exxon Valdez oil spill, 302 Sci. 2082 (2003). 30 Fallon, J.A. et al., Ultraviolet-assisted oiling assessment improves detection of oiled birds experiencing clinical signs of hemolytic anemia after exposure to the deepwater horizon oil spill, 29 Ecotoxicology 1399 (2020). 31 NOAA, Analysis of Hydrocarbons in Samples Provided from the Cruise of the R/V WEATHERBIRD II, (May 23-26, 2010). 32 Venn-Watson et al., Adrenal Gland and Lung Lesions in Gulf of Mexico Common Bottlenose Dolphins (Tursiops truncatus) Found Dead following the Deepwater Horizon Oil Spill. PLoS ONE 10(5): e0126538 (2015), doi:10.1371/journal.pone.0126538. 33 Id. 34 U.S. Fish and Wildlife Service, Southern Sea Otter (Enhydra lutris nereis) 5-Year Review: Summary and Evaluation (Sept. 15, 2015). 35 U.S. Fish and Wildlife Service, Recovery Plan for the Pacific Coast Popultion of the Western Snowy Plover at 73 (Sept. 13, 2007). Available at https://www.biologicaldiversity.org/species/birds/western_snowy_plover/pdfs/2007%20recovery%20plan.pdf. 36 70 Fed. Reg. 52488-52627 (2005); 78 Fed. Reg. 8746-8819 (2013). 37 U.S. Fish and Wildlife Service, Recovery Plan for the Tidewater Goby (2005). 38 Bernanke, J. & H.R. Kohler, The impact of environmental chemicals on wildlife vertebrates, 198 Rev. Envtl. Contamination & Toxicology 1 (2009).

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 8 zebrafish,39 and salmonid embryos exposed to oil exhibited reduced growth and significantly lower survival.40 Oil and gas activity also creates noise, light, and other pollution that can harm ESA-listed species. For example, Senzaki et al. (2020) found “that anthropogenic noise and light can substantially affect breeding bird phenology and fitness.”41 Noise pollution created by offshore oil and gas activity can also harm marine mammals. In addition, the air, water, noise, light, and vibration pollution from injection activities onshore extends beyond the well pad and affects nearby habitat. Numerous studies have documented density effects whereby wildlife species decrease use of preferable habitat areas or avoid habitat areas altogether in areas with increasing densities of oil and gas development, leading to indirect habitat loss.42 Wetlands, and the sensitive vegetation and species they support, are also vulnerable to oil spills. When marsh plants come into contact with crude oil, it can cause nearly complete mortality.63 Additionally, the oil can reside in the soil and cause long-term stress for marsh vegetation and erosion of marshlands.43 Salt marsh bird’s-beak, Ventura marsh milkvetch, and other threatened and endangered plants along the Southern California coast are at risk. The coastal areas affected by oil spills in California include some of the more important cultural resources for Indigenous people. For example, the disastrous spills in 1969 and 2015 off Santa Barbara harmed Chumash sacred sites and animals.44 The 2021 Platform Elly pipeline spill has harmed Acjachemen and Tongva homelands and cultural resources. A spill in Long Beach would harm important cultural resources. Under CEQA, agencies must, when feasible, avoid damaging tribal cultural resources, which include sites, features, places, cultural landscapes, sacred places, and objects with cultural value to California Native American tribes.45 Several tribal entities of the Acjachemen and Tongva nations hold critical cultural information regarding the cultural sites affected by the continued development of oil infrastructure, continued extraction, and continued threat of oil spills that threaten to impact these cultural resources and sacred sites. Oil spill response efforts without consultation with these entities risk further impacting cultural resources, and the City should consult early and often on these impacts and oil spill response plans. The City has the responsibility to engage in early and meaningful 39 de Soysa, T. Yvanka et al., Macondo crude oil from the Deepwater Horizon oil spill disrupts specific developmental processes during zebrafish embryogenesis, 10 BMC Biology 40 (2012). 40 Heintz, R.A. et al., Delayed effects on growth and marine survival of pink salmon Oncorhynchus gorbuscha after exposure to crude oil during embryonic development, 208 Marine Ecology Progress Series 205 (2000). 41 Senzaki, Masayuki et al., Sensory pollutants alter bird phenology and fitness across a continent, 587 Nature 605 (2020). 42 Beckmann, J.P. et al., Human-mediated shifts in animal habitat use: Sequential changes in pronghorn use of a natural gas field in Greater Yellowstone, Biological Conservation 147(1): 222-3 (2012); Dzialak M.R. et al., Prioritizing conservation of ungulate calving resources in multiple-use landscapes, PLOS One 6(1): e14597 (2011); Doherty, K.E. et al., Greater sage-grouse winter habitat selection and energy development, Journal of Wildlife Management 72: 187-195 (2008). 43 NOAA, Oil Spills in Marshes (2013). 44 Ben-Hur, Arielle, The Chumash Heritage National Marine Sanctuary: An Exploration of Changing the Discourse on Conservation, 105 Pitzer Senior Theses. 45-50 (2020). 45 Cal. Pub. Res. Code § 21084.3.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 9 consultation with tribes traditionally and culturally affiliated with the area (if such consultation is requested by the tribes).46 Oil spills also cause economic impacts, from closures of fisheries to lost revenue from tourism. Even before the 2021 oil spills in Orange County, an analysis found that since 1986, nearly 1400 oil and gas pipeline leaks, spills and other incidents in the California have caused at least $1.2 billion in damages, as well as 230 injuries and 53 deaths.47 On average California has suffered 40 significant pipeline incidents a year, according to federal data.48 Other areas also experience significant costs as a result of oil spills. For example, tourism significantly declined after the 2010 BP Deepwater Horizon oil disaster in the Gulf of Mexico, even in neighboring states that were largely free of oil on their beaches.49 Leisure visitor spending in Louisiana alone dropped by $247 million in 2010, with a total loss of $422 million over three years.50 Even after shorelines are clean of oil, normal tourism activities may not resume if public perception of prolonged and wide-scale pollution remains.51 Both the Plains All American Oil Spill and the Platform Elly pipeline spill closed California fisheries and caused longer-term harm. The Deepwater Horizon disaster also has long lasting impacts on the region’s fisheries. The long-term economic impact of the spill on commercial and recreational fisheries in the Gulf of Mexico is estimated at $8.7 billion.52 California’s economy similarly stands a lot to lose if an oil spill were to seriously impact the state’s commercial fisheries. In 2017, approximately $210 million dollars in ex-vessel revenue (the amount paid directly to fishermen) came from commercial fishery landings, and more than 120,000 jobs on and off the water were supported by the state's seafood industry.53 B. Injection Wells Could Contaminate Drinking Water and Result in Earthquakes The Plans will result in the injection of produced water containing chemicals used in oil production, and analysis must be done to ensure these injections do not contaminate drinking water in Long Beach or have other harmful impacts to human health and the environment including increased seismicity. Under CEQA, Long Beach must consider and mitigate direct and 46 Id. §§ 21080.3.1, 21080.3.2. 47 Center for Biological Diversity, Analysis: Even Before Orange County Leak, California Pipeline Incidents Cased $1.2 Billion in Damages, available at https://biologicaldiversity.org/w/news/press-releases/analysis-even-before-orange-county-leak-california-pipeline-incidents-caused-12-billion-in-damages-2021-10-07/ (Oct. 2021). 48 Pipeline and Hazardous Materials Safety Administration, Accident and Incident Data, available at https://www.phmsa.dot.gov/data-and-statistics/pipeline/distribution-transmission-gathering-lng-and-liquid-accident-and-incident-data 49 Oceana, Oil Spills and Tourism: They Don’t Mix (2015), https://coastalcarolinariverwatch.org/wp-content/uploads/2019/06/14Oil-Spills-Tourism-Dont-Mix-Oceana.pdf. 50 The Impact of The BP Oil Spill on Visitor Spending in Louisiana: Revised estimates based on data through 2010 Q4 , Tourism Economics, prepared for the Louisiana Office of Tourism (June 2011). 51 ITOPF 2014, Effects of Oil Pollution on Social and Economic Activities, https://www.itopf.org/fileadmin/uploads/itopf/data/Documents/TIPS_TAPS_new/TIP_12_Effects_of_Oil_Pollution_on_Social_and_Economic_Activities.pdf. 52 Sumaila et al. 2012, Impact of the Deepwater Horizon well blowout on the economics of US Gulf fisheries, Canadian Journal of Fisheries and Aquatic Sciences, https://doi.org/10.1139/f2011-171. 53 NOAA, Fisheries Economics of the United States (2017), https://media.fisheries.noaa.gov/2021-09/FEUS2017-final-v1.3.pdf Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 10 indirect impacts of allowing injection. Because injecting produced water is part of the process of producing oil and gas, all those impacts should be adequately disclosed, analyzed, and mitigated for the entire 5-year duration of this project. CalGEM’s independent scientific panel has recommended a 3,200 foot buffer between homes and all oil and gas activities, including injection, and Long Beach must ensure that it meets this minimum distance for all injection wells.54 CalGEM has also questioned the validity of Long Beach’s maximum allowable injection pressure, and in particular the current injection gradient.55 If altered, this “would limit the Unit’s ability to inject water and subsequently reduce produced volumes.”56 Long Beach must disclose the content of the discussions with CalGEM and why the agency believes the current injection pressures and gradients are insufficient to protect the environment, including human health. 1. Risk of Aquifer Contamination The Plans make clear that new injection wells are anticipated in the coming years, but make no attempt to ensure they do not result in contamination of nearby aquifers. The Plans also suggest that injection wells will be drilled in more permeable layers, which could result in increased leaching into nearby aquifers.57 (To support the “strategy to invest and minimize the decline of the LBU’s oil production rate” . . . activities will include [d]rilling injection wells targeting increased throughout in the less mature sand layers”). At a very minimum, Long Beach must disclose what is in the water being injected, and the water quality of the aquifer being injected into. Because the risks of aquifer contamination are great, and because Long Beach relies upon local groundwater for 60% of its water use, the City must ensure injection wells do not risk the drinking water for any residents of Long Beach.58 As shown by a century-long hydrological record, California undergoes repeated cycles of drought and non-drought due to natural climate variability.59 During drought periods—when precipitation and snow pack are at a minimum—the state is forced utilize its groundwater reserves to meet it agricultural and drinking water needs. With ever-progressing climate change, such demand will only increase as drought-favorable conditions become more prevalent.60 Studies show that anthropogenic warming contributed to the severity of the recent California drought. One study attributes as much as 27 percent of California 2012-14 drought 54 PSE Berkeley, Response to CalGEM Questions for the California Oil and Gas Public Health Rulemaking Scientific Advisory Panel (Oct. 1, 2021), https://www.conservation.ca.gov/calgem/Documents/public-health/Public%20Health%20Panel%20Responses_FINAL%20ADA.pdf. 55 Program Plan at 13. 56 Id. 57 Id. at 27. 58 Long Beach Water, Water Sources, available at https://lbwater.org/water-sources/ (“Roughly 60% of the Long Beach water supply is local groundwater). 59 See Cheng, L. et al., How has human-induced climate change affected California drought risk?, 29 Journal of Climate 111 (2016); Diffenbaugh, N.S. et al., Anthropogenic warming has increased drought risk in California, 112 PNAS 3931 (2015); Williams, A.P., Contribution to anthropogenic warming to California drought during 2012-2014, 42 Geophys. Res. Lett. 6819 (2015). 60 Id.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 11 severity to anthropogenic warming, with natural variability accounting for the remainder.61 As a result, drought severity was record-breaking in many counties.62 This is because higher temperatures increase soil moisture loss, alter the timing of snowmelt, and decrease reservoir levels due to increased evaporation.63 In the future, municipalities may need to look not just to seawater, but to aquifers previously considered too salty to be usable, as a source of drinking water. The SDWA mandates protection of future drinking water sources as well as current sources. Given the potential for desalination and other treatment systems to render what was previously considered unusable water potable, the City must protect “freshwater” using a protective approach that more accurately reflects current technology in water treatment, and the necessity of preserving the future availability of sufficient fresh water during times of drought. The fragile state of groundwater makes any potential impact of great and significant concern. All oil and gas wells, cyclic steam wells included, use a host of chemicals that are harmful to the environment and human health that would jeopardize groundwater. Recent studies have found numerous chemicals contained in fluid involved in routine oil production operations are harmful to human health.64, 65 These include injection activities like waste disposal and enhanced oil recovery.66 Disposal wells may receive wastewater that contains chemicals used to perform well maintenance or other chemical-dependent processes. Oil and gas wastewater and fluids injected for enhanced oil recovery may contain additional chemicals added in other phases of production or maintenance of a well. Contaminating nearby aquifers would be an irreversible disaster. The State Water Resources Control Board explained to the state legislature recently that injection wells across the state have already contaminated scores of aquifers: “any injection [from injection wells] into the aquifers that are not exempt has contaminated those aquifers.”67 And once contaminants reach an aquifer, according to the Water Board, “you don't clean up aquifers, you contain the spread of 61 Williams, A.P., Contribution to anthropogenic warming to California drought during 2012-2014, 42 Geophys. Res. Lett. 6819 (2015). 62 Id. 63 Gleick, Peter, Circle of Blue, Clarifying the Discussion about California Drought and Climate Change (Mar. 7, 2014), available at: http://www.circleofblue.org/2014/in-the-circle/peter-gleick-clarifying-discussion-california-drought-climate-change/. 64 Stringfellow WT, et al., Comparison of chemical-use between hydraulic fracturing, acidizing, and routine oil and gas development, 12 PLoS ONE(4): e0175344 (2017), https://doi.org/10.1371/journal.pone.0175344. 65 See Shonkoff, S., “Hazard Assessment of Chemical Additives Used in Oil Fields that Reuse Produced Water for Agricultural Irrigation, Livestock Watering, and Groundwater Recharge in The San Joaquin Valley of California: Preliminary Results,” PSE Health Energy Technical Report (Sept. 2016). 66 Id., citing Muggeridge, A, et al., Recovery rates, enhanced oil recovery and technological limits, Phil Trans R Soc A. 372:20120320 (2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3866386/. 67 Transcript: Joint Oversight Hearing: Senate Natural Resource and Water and Environmental Quality Committees, “Ensuring Groundwater Protection: Is the Underground Injection Control Program Working?” Jonathan Bishop speaking at 74, (March 10, 2015). See also, CalEPA 2015, Memo: CalEPA Review of UIC Program, https://sntr.senate.ca.gov/sites/sntr.senate.ca.gov/files/3_10_15_cal_epa_review_of_uic_program.pdf.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 12 contamination.”68 Thus, any plans that puts groundwater at risk could lead to irreversible damage. Long Beach should not be jeopardizing groundwater for the benefit of the oil industry. Injection activity does not occur in isolation. Operators use chemicals in all stages of oil production, such as drilling muds to facilitate the drilling process, powerful cleaning solvents, or chemical mixtures designed to maintain the well. Unfortunately, neither state nor federal regulations require companies to fully disclose the chemical identities or volumes used. While some chemicals have been identified, a substantial portion of chemicals remain secret. This is worrisome because enhanced oil recovery operations like cyclic steam injection commonly employ harmful chemicals acting as surfactants, polymers, caustics, or biocides to facilitate the operation. The City must be aware of the full spectrum of substances being injected in order to regulate effectively. Accordingly, the range of substances to be tested for must be expanded, so that regulators and operators are aware of all fluids and chemicals injected or emplaced into a Class II injection well. Without such chemical information, it is impossible to detect contamination or predict how chemicals will interact or migrate in the subsurface. The potential for harm is evident from past studies of oil and gas activities. CalGEM itself acknowledges that there are potential pathways for the chemicals and hydrocarbons to migrate underground. For example, “[o]ther wells within the area of review that penetrate the injection zone could potentially serve as conduits for fluid migration.”69 The injection wells themselves may become conduits for fluid migration. In cyclic steam injection, the repeated soaking of the formation with very hot steam creates “large temperature variations and formation movements,” putting extreme pressure on the ground and well casing, which can cause well failure or the migration of fluids and steam.70 Indeed, “[c]yclic steam injection presents some of the harshest conditions” under which a well can be placed.71 Thus, it is not surprising that rates of well casing failure from “excessive deformation, buckling, and collapse” are especially high in cyclic steam injection wells.72 Further, the injection of hot steam can deform the surrounding formation and overlying ground so much that cyclic steaming can result in the migration of fluids and steam. This can sometimes pollute underground aquifers. It can also result in “surface expressions,” in which the steam, oil, gas, and whatever else might be mixed in underground come bubbling to, or even exploding out of the surface of the ground.73 68 Id. at 73. 69 Division of Oil, Gas, and Geothermal Resources (DOGGR), Initial Statement of Reasons In Support of Updated Underground Injection Control Regulations (2018) (“Statement of Reasons 2018”), at p. 16. 70 Xie, Jueren, Analysis of Casing Deformations in Thermal Wells (2008), https://www.researchgate.net/publication/308709003_Analysis_of_Casing_Deformations_in_Thermal_Wells. 71 Kulakofsky, David, Achieving Long-Term Zonal Isolation in Heavy-Oil Steam Injection Wells, a Case History (Aug. 2008), DOI: 10.2118/115201-MS. 72 Wu, Jiang, Casing Temperature and Stress Analysis in Steam-Injection Wells, paper presented at the International Oil & Gas Conference and Exhibition (December 2006); see also Wu, Jiang, Casing Failures in Cyclic Steam Injection Wells (2008). 73 Cal. Dep’t of Conservation, Division of Oil, Gas, and Geothermal Resources, Report of Occurrences, Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 13 Cyclic steam injection leads to changes subsurface pressures, which are poorly understood and opens the door to fluid migration. A scientist at Lawrence Berkeley National Laboratory explained: “As important as the subsurface is for U.S. energy strategy, our understanding of how the subsurface responds to common perturbations, such as those caused by pulling fluids out or pushing fluids in, is quite crude.…We’re not able to manipulate the subsurface with the control that can guarantee that we’re not only maximizing energy production or waste storage, but that we’re also protecting our environment—including minimizing greenhouse gas emissions, impacts to groundwater, and induced seismicity. That’s a significant gap.”74 Cyclic steam operations will lead to significant and unavoidable impacts for surface and groundwater. In the winter of 1995, six well casings in a field in Alberta, Canada, failed under the pressure of cyclic steam stimulation.75 Similar to projects in Long Beach, the operations were pursuing heavy oil at relatively shallow depths.76 The failures released approximately 55,000 cubic meters of “oil, saline produced water, and solids” to the environment, polluting two groundwater aquifers in the process.77 2. Increased risk of earthquakes The mechanisms linking wastewater injection and earthquakes are well understood: injection-induced increases in fluid pressure within aquifers and fault lubrication by injected fluids have the potential to destabilize well bores and cause preexisting faults to slip.78 Such mechanisms serve to explain atypical seismic activity, such as the extensively documented earthquakes in the central and eastern United States. There, earthquake count has increased dramatically over the last decade, with more than 300 earthquakes with M ≥ 3 between 2010 and 2012, or an average of 100 events/year, compared with an average rate of 21 events/year for the period spanning 1967 to 2000.79 This surge of activity includes a magnitude 5.7 earthquake that struck Oklahoma in 2011, in close proximity to active hydraulic fracturing wastewater wells,80 The Chevron Fatality Accident, June 21, 2011, and Area Surface Expression Activity, Pre and Post Accident, Sections 21 & 22 T.32S./R.23E., Midway-Sunset Oil Field, Kern County (May 2012) (“Accident Report”); Cal. Dep’t of Conservation, Division of Oil, Gas, and Geothermal Resources, Reports of Occurrence: Surface Expressions in Bakersfield (2011) (“Spill Binder”). 74 Chao, J., “Underground Science: Berkeley Lab Digs Deep For Clean Energy Solutions,” Lawrence Berkeley National Laboratory (Oct. 19. 2016), quoting Susan Hubbard, Associate Director, available at http://newscenter.lbl.gov/2016/10/19/berkeley-lab-digs-deep-clean-energy-solutions/. 75 Kennedy, Alan and Calvin Sikstrom, Assessment and Remediation of a Heavy-Oil Spill into Groundwater Aquifers, International Oil Spill Conference Proceedings, Vol. 1997, No. 1, pp. 347-363 ( April 1997). 76 Id. 77 Id. 78 Brodsky, Emily and Lisa J. Lajoie, Anthropogenic Seismicity Rates and Operational Parameters at the Salton Sea Geothermal Field, 341 Science (2013); Davies, Richard et al., Induced Seismicity and Hydraulic Fracturing for the Recovery of Hydrocarbons, 45 Marine and Petroleum Geology 171 (2013). 79 Ellsworth, William, Injection-Induced Earthquakes, 341 Science ( July 12, 2013), https://www.science.org/doi/10.1126/science.1225942. 80 Keranen, Katie M. et al., Potentially Induced Earthquakes in Oklahoma, USA: Links between Wastewater Injection and the 2011 Mw 5.7 Earthquake Sequence, 41 Geology 699 (2013).

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 14 and a 5.8 magnitude quake on September 3, 2016 that proved to be the most powerful earthquake ever recorded in Oklahoma.81 Detecting induced events in California has received less attention due to the greater background seismicity in the West. However, such connections have been made, as is the case in a published 2016 study linking wastewater injection in the Tejon Oil Field in Kern County to a September 2005 earthquake swarm of three M ≥ 4 events near the White Wolf Fault.82 Given California’s history with earthquakes and the noted links between wastewater injection and seismicity, these plans should not be approved without adequate consideration of these threats. In Oklahoma, wastewater injection has already led to a magnitude 5.8 earthquake.83 The earthquake’s epicenter was an unknown fault.84 The proposed regulations require disclosure of only previously known faults. This leaves the operator with no requirement to seek out any unmapped fault lines, like the one triggering Oklahoma’s record earthquake, before injection operations begin. Seismic monitoring should apply to all injection wells. Until more is known about the link between injection activity and seismic events, it is necessary to collect more data on earthquakes near injection activity. By failing to require data collection on injection wells, Long Beach is eschewing an important opportunity to further study how injections may lead to increased seismic activity. 3. Track record of missing well integrity tests An analysis of state public records between 2015 and 2018 from California’s Division of Oil, Gas and Geothermal Resources showed that the THUMS offshore platforms had long lapses with missing well integrity tests that are required by state law at least every five years. Most of the missing and failed well tests in the THUMS notices of violation were for underground injection wells, which are used to stimulate oil and gas production and help prevent the land subsidence that has caused billions of dollars in damage to Long Beach. Drilling wastes contaminated with toxic chemicals and heavy metals can be injected into these wells, which state law requires to be enclosed and able to withstand pressure so the ocean and freshwater aquifers don’t get contaminated. “Mechanical integrity tests” are required before any underground injections take place. THUMS had 103 violations for missing tests and 47 failed tests, and Tidelands had 68 missing tests and 10 wells that failed the tests over the past three years.85 Long 81 Chen, Xiaowei et al., The Pawnee earthquake as a result of the interplay among injection, faults and aftershocks, 7 Nature Scientific Reports 4945 (2017). 82 Goebel, T.H.W. et al., Wastewater Disposal and Earthquake Swarm Activity at the Southern End of the Central Valley, California, 43 Geophys. Res. Lett. 1092 (2016), https://doi.org/10.1002/2015GL066948. 83 Yeck, W. L., et al., Oklahoma experiences largest earthquake during ongoing regional wastewater injection hazard mitigation efforts, 44 Geophys. Res. Lett. (2017), doi:10.1002/2016GL071685. 84 Id. 85 Center for Biological Diversity, “Records: Nearly 400 Violations at California Offshore Drilling Operations (April 11, 2018), https://www.biologicaldiversity.org/news/press_releases/2018/offshore-drilling-04-11-2018.php#:~:text=THUMS%20had%20103%20violations%20for,over%20the%20past%20three%20years; see also Database of Violations (included in references).

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 15 Beach must ensure that oil and gas operations are performing the proper well integrity tests to ensure adequate protection of the environment and human health. C. Enhanced Oil Recovery The Program Plan leaves open the possibility for enhanced oil recovery to “be considered for implementation if economically and technically viable.”86 Long Beach must examine and mitigate the impacts of such dangerous oil and gas extraction techniques under CEQA. Enhanced oil recovery involves the injection of fluids or steam underground to increase the flow of oil and gas to the surface. Enhanced oil recovery techniques may combine injected fluids or steam with harmful chemicals used as surfactants. And while there are a number of enhanced oil recovery technologies, some elements are common to all processes; the use of a recovery fluid, a system to inject recovery fluids, surface processing, and a need to dispose of waste materials.87 As a result, the environmental risks of enhanced oil recovery are shared by all methods. Groundwater contamination: As discussed above, migration of injection fluids into drinking water aquifers is concerning due to the potentially hazardous substances those fluids may contain.88 Chemical additives are often added to help increase production, and disclosure of contaminants in not required by federal or state regulations. Post injection, dissolution of other contaminants present in oil reservoirs can introduce new compounds into the fluid that will be recovered with oil. Contamination of groundwater is a major concern as approximately 60% of Long Beach’s water needs are filled by local groundwater.89 Health risks from chemicals migrating into Long Beach’s groundwater must be adequately examined and mitigated. Air pollution: As detailed below, oil and gas drilling in Long Beach results in emissions of hazardous air pollutants include volatile organic compounds and considerable greenhouse gas pollution. The pressure and heat needed for extended oil recovery operations can lead to significantly larger quantities of air pollution that conventional oil and gas extraction techniques. The California Air Resources Board itemized a number of sources associated with operational activities including steam generators, steam drive wells, cyclic steam wells, fugitive emissions from the wellhead, valves, fittings, and evaporation from sumps and pits.90 The air pollution from these operational activities will be a significant impact if the Plans authorize extended oil recovery. In addition, the energy required to create the steam and transport the oil makes 86 Program Plan 2023-28 at 6. 87 See Clean Water Action, Environmental Risks and Oversight of Enhanced Oil Recovery (2017), https://www.cleanwateraction.org/sites/default/files/docs/publications/Environmental%20Risks%20and%20Oversight%20of%20Enhanced%20Oil%20Recovery%2011.08.17a.pdf. 88Stringfellow, et al., Comparison of chemical-use between hydraulic fracturing, acidizing, and routine oil and gas development, 12 PLoS ONE(4): e0175344 (2017) https://doi.org/10.1371/journal.pone.0175344. 89 Long Beach Water, Groundwater, available at https://lbwater.org/water-sources/ground-and-imported-water/. 90 CCST Report Vol. II at p. 199, citing CARB (California Air Resources Board) (2013), Almanac Emission Projection Data: 2012 Estimated Annual Average Emissions by California Air District, http://www.arb.ca.gov/ei/maps/statemap/dismap.htm.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 16 California’s oil production some of the most carbon-intensive in the world, especially from fields that rely on enhanced oil recovery.91 Worker safety: California regulators now rightly presume injections into diatomaceous formations “creates a risk of surface expressions….”92 These surface expressions have occurred frequently and with disastrous effects. On June 21, 2011, a Chevron worker was killed when investigating steam coming from a surface expression caused by cyclic steaming in Kern County’s Midway-Sunset oil field.93 When approaching the plume of steam, the ground gave way, and the worker fell into a sinkhole and died.94 In May 2012, California’s Division of Oil, Gas, and Geothermal Resources (now known as CalGEM) issued a report on the tragedy.95 As with the Plan at issue, operations in the Midway-Sunset oil field were using enhanced oil recovery (cyclic steam injection) to exploit shallow heavy oil deposits.96 D. Subsidence and Increased Impacts from Sea Level Rise, Storm Surges, and Flooding Long Beach admits in its Program Plan that “the oil reservoir zones of the Wilmington Oil Field are susceptible to compaction” and “[a] major goal during the operation and development of the Unit is the continued prevention of subsidence related to oil and gas production.”97 Long Beach must examine and mitigate the risks of subsidence under CEQA, especially as subsidence will be exacerbated by sea level rise, storm surges, and flooding caused by climate change. Land subsidence in Long Beach is caused by the extraction of oil and gas from underground reservoirs. Long Beach is home to one of this country’s most dramatic cases of land subsidence caused by oil and gas production; between 1928 and 1965, the community sank almost 30 feet. As the oil reservoirs were depleted, sand compaction caused a land subsidence that flooded streets and wharfs and caused structural damage to bridges, railroads, and other harbor facilities.98 While subsidence in Long Beach in recent years is less dramatic, subsidence is still a major issue. One recent study that examined subsidence in Long Beach was conducted by the 91 Center for Biological Diversity, Killer Crude: How California Produces Some of the Dirties, Most Dangerous Oil in the World (2021), https://www.biologicaldiversity.org/programs/climate_law_institute/pdfs/June-2021-Killer-Crude-Rpt.pdf. 92 Statement of Reasons at p. 30. 93 Department of Conservation Division of Oil, Gas and Geothermal Resources, Executive Summary of Report of Occurrences: The Chevron Fatality Accident June 21, 2011 and Area Surface Expression Activity Pre and Post Accident – Sections 21 & 22 T.32S./R.23E., Midway-Sunset Oil Field Kern County (May 2012). (aka “Accident Report ES”); Accident Report at 2. 94 Id. at 2. 95 Id. at 1. 96 Id. at 9. 97 Program Plan 2023-28 at 11. 98 USGS, National Assessment of Coastal Change Hazards (2003), https://pubs.usgs.gov/of/2003/of03-337/extraction.html.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 17 United States Geological Survey (“USGS”) in collaboration with the City of Long Beach.99 The study, published in 2018, used satellite data to measure changes in land surface elevation in Long Beach over a 17-year period. The study found that parts of Long Beach had subsided by as much as 9 inches during that time period, with the greatest subsidence occurring in areas where oil extraction had taken place. The impacts of land subsidence are particularly dire near sea level where minor lowering of the land surface results in permanent inundation. Not only are many of Long Beach wells near sea level, but sea level rise in coming years will compound the subsidence problem and result in increased flooding. In the Los Angeles region, containing all of Ventura, LA, and Orange Counties, roughly 1 to 2 feet of sea level rise is projected by mid-century, with the most extreme projections predicting 8 to 10 feet of sea level rise by the end of the century.100 Scientific estimates suggest that sea level rise in California could be at least half of a foot just in 2030.101 In its recent adopted Climate Action Plan, the city of Long Beach projected 11 inches of sea level rise by 2030.102 As drilling in Long Beach exacerbates land subsidence in the community, the impacts of sea level rise will become increasingly severe. The City of Long Beach has voiced extreme concern at the prospect of sea level rise and resulting economic impacts.103 For example, in its Climate Action Plan, Long Beach acknowledges that “permanent inundation from [sea level rise] as well as increased frequency and intensity of temporary flooding from king tides and storm surges will become a very real threat in the near future.” The Plan identifies a number of actions the City will take to address sea level rise and flooding.104 These include relocating/elevating critical infrastructure, including elevating riverine levees and flood proofing vulnerable sewer pump stations, elevating streets and pathways, extending sea walls, and investigating the feasibility of a managed retreat in the long term.105 Despite the concern the City professes to have for the impacts of sea level rise, it continues to allow oil and gas drilling that will inevitably increase subsidence and vulnerability to sea level rise, as well as produce the very emissions that causes sea level rise in the first place. The subsidence caused by drilling in Long Beach will also result in increased expense to mitigate the harm of sea level rise. With 11 inches of sea level rise (predicted by 2030), approximately 1.3 million square feet of buildings are projected to be exposed to annual king tides. Approximately half of these buildings are residential (624,100 square feet) and half are 99 USGS, Comparison of regression relations of bankfull discharge and channel geometry for the glaciated and nonglaciated settings of Pennsylvania and southern New York (2018), https://pubs.er.usgs.gov/publication/sir20185066. 100 California’s 4th Climate Change Assessment, Los Angeles Region Report, https://www.energy.ca.gov/sites/default/files/2019-11/Reg%20Report-%20SUM-CCCA4-2018-007%20LosAngeles_ADA.pdf. 101 Legislative Analyst’s Office, What Threat Does Sea Level Rise Pose to California (2020), https://lao.ca.gov/reports/2020/4261/sea-level-rise-081020.pdf. 102 City of Long Beach, Climate Action Plan at 16 (2022), https://longbeach.gov/globalassets/lbds/media-library/documents/planning/lb-cap/adopted-lb-cap_-aug-2022. 103 Id. at 55. 104 Id. at 11-12. 105 Id.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 18 commercial (689,600 square feet).106 At the very least, Long Beach must examine to the degree to which oil and gas drilling exacerbate the burdens of sea level rise within the city. In addition, larger storms are predicted in the future, resulting in increased rainfall, flooding, and storm surges. According to the Climate Action Plan: “Urban flooding during precipitation events is already a problem in Long Beach, and extreme events today provide an example of what may become more common in the future, when more intense precipitation events are projected.”107 As Long Beach experiences heightened storm surges and king tides, battering the coast, subsidence will increase water inundation and cause innumerable problems for residents of the city. E. Environmental Justice There are significant environmental justice impacts from drilling in the Long Beach Unit. According to analysis by FracTracker, an estimated 140,138 Long Beach residents—amounting to over 30% of the City’s population—live within 3,200 feet of an operational oil and gas well within the city limits.108 Of those, 101,498 (72.4%) are people of color.109 According to CalEnviroScreen, communities living near Long Beach Unit drilling activities are in the highest percentiles for pollution vulnerability. The CalEnviroScreen map below “shows the combined Population Characteristics scores, which is made up of indicators from the Sensitive Populations and Socioeconomic Factors components of the CalEnviroScreen model. Population Characteristics represent physiological traits, health status, or community characteristics that can result in increased vulnerability to pollution.”110 Environmental justice is increasingly being incorporated into State decisionmaking, and CEQA is an important environmental justice tool. The State Attorney General announced that his office “is particularly concerned that land use planning and permitting decisions consider and address any additional burdens on environmental justice communities.”111 And as stated by the California Environmental Justice Alliance, “CEQA protects the basic rights of disadvantaged or EJ communities in California. These rights include the right to clean air and water, [and] the right to participate in local land use decisions, and the right to affordable housing and good schools free from pollution and other harms.”112 As shown above, environmental justice considerations are directly relevant to LBU plans. The City’s current process to prepare, propose, and adopt Program and Annual Plans ignores the need to take environmental justice considerations into account. 106 Id. at 23, Appendix C. 107 City of Long Beach, Climate Action Plan at 56. 108 FracTracker, City of Long Beach Oil and Gas Extraction (April 1, 2022) at 2. 109 Id. 110 OEHHA, CalEnviroScreen 4.0, https://oehha.ca.gov/calenviroscreen/report/calenviroscreen-40 (search for “Long Beach” and “Population Characteristics”). 111 Bon Bonta, Cal. Attorney General, https://oag.ca.gov/environment/justice. 112 Cal. Environmental Justice Alliance, Protect CEQA to Advance Environmental Justice and Protect Housing, https://caleja.org/2019/05/protect-ceqa-to-advance-environmental-justice-and-protect-housing/.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 19 F. Greenhouse Gas Emissions & Air Pollution Drilling and other oil field operations in the LBU produce significant air pollution and greenhouse gas (“GHG”) emissions, impacts that must be analyzed and mitigated under CEQA.113 The climate crisis, caused primarily by fossil fuels, poses an existential threat to every aspect of society. In the words of the State Lands Commission: Climate change is an existential threat that grows more urgent each passing day . . . . The State of California, the fifth largest economy in the world, is aggressively pursuing various options to reduce greenhouse gas emissions and deaccelerate the impacts of climate change. The United Nation’s Intergovernmental Panel on Climate Change has found that emissions from fossil fuels are the dominant cause of global warming. Oil, a fossil fuel that releases an enormous amount of carbon when burned, exacerbates climate change.114 113 See generally CEQA Guidelines § 15126.2; Appendix G (naming GHG emissions and air quality as environmental factors that must be evaluated for significance). 114 State Lands Commission, Staff Report 52 (Feb. 25, 2022), https://slcprdwordpressstorage.blob.core.windows.net/wordpressdata/2022/02/02-25-22_52.pdf.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 20 Indeed, the vast scientific literature documenting these findings has been set forth in a series of authoritative reports from the Intergovernmental Panel on Climate Change (“IPCC”), U.S. Global Change Research Program, and other institutions, which make clear that fossil-fuel driven climate change is a “code red for humanity.”115 Without limits on fossil fuel production and deep and rapid emissions reductions, global temperature rise will exceed 1.5°C and will result in catastrophic damage in the U.S. and around the world.116 While the City has made statements to the effect of, “Long Beach knows and supports the position that oil production is not in our long-term future,”117 the LBU continues to produce millions of barrels of oil each year. In 2015, “oil fields in Long Beach [likely referring to the entire Wilmington field] produced more than 13 million barrels of crude oil, representing significant [GHG] emissions.”118 Those 13 million barrels of crude oil (and 5.1 million Mcf of natural gas extracted) “generated an estimated 8.3 million MT CO2e in lifecycle emissions.”119 This is the equivalent of over 1.7 million gasoline-powered passenger cars driven for one year, or the annual operations of 2.2 coal-fired power plants.120 Similarly, in 2022, the City reported production of approximately 10 million barrels of oil per year.121 According to a 2020 study conducted as part of the City’s climate action planning, approximately 96 percent of the city’s oil and gas lifecycle emissions are attributed to oil, with the remaining 4 percent resulting from natural gas.122 That same study determined that Long Beach oil field carbon intensity is 5.48 gCO2e/MJ, which puts the oil field at 94th out of 157 115 See United Nations Secretary-General, Secretary-General’s statement on the IPCC Working Group 1 Report on the Physical Science Basis of the Sixth Assessment, Aug. 9, 2021, https://www.un.org/sg/en/content/secretary-generals-statement-the-ipcc-working-group-1-report-the-physical-science-basis-of-the-sixth-assessment. 116 IPCC, Summary for Policymakers, In: Global Warming of 1.5°C.:An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty (2018) [Masson-Delmotte, V. et al. (eds.)], https://www.ipcc.ch/sr15/. 117 City of Long Beach, Recommendation from the Sustainable City Commission (March 15, 2022) at 19, https://www.longbeach.gov/globalassets/city-manager/media-library/documents/memos-to-the-mayor-tabbed-file-list-folders/2022/march-15--2022---recommendation-from-the-sustainable-city-commission; see also City of Long Beach, Recommendation from the Sustainable City Commission & Reducing Reliance on City Revenue from Oil Production (Jan. 2022 and Oct. 2021) at 4, http://longbeach.legistar.com/View.ashx?M=F&ID=10423777&GUID=CE2373C6-1897-4A8F-9FE8-858224EC882E. 118 City of Long Beach, Appx G, Proposed Climate Action and Adaptation Plan (Nov. 2020) at 1, https://www.longbeach.gov/globalassets/lbds/media-library/documents/planning/lb-cap/lb-caap-proposed-plan-app-g-_dec-14 (“Appx G Climate Plan”). 119 Appx G Climate Plan at 1. 120 See EPA, Greenhouse Gas Equivalencies Calculator, https://www.epa.gov/energy/greenhouse-gas-equivalencies-calculator#results. 121 City of Long Beach, Recommendation from the Sustainable City Commission (March 15, 2022) at 5, https://www.longbeach.gov/globalassets/city-manager/media-library/documents/memos-to-the-mayor-tabbed-file-list-folders/2022/march-15--2022---recommendation-from-the-sustainable-city-commission. 122 Appx G Climate Plan at 1.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 21 when ranked lowest to highest.123 This suggests that even among other California oil fields, the majority have a lower carbon intensity value than Long Beach oil.124 The City cannot ignore the plain fact that its oil and gas drilling operations results in significant climate impacts. The current draft Program Plan projects that over the next five years, LBU expects to produce over 26.2 million barrels of oil and over 12 billion cubic feet of natural gas.125 Those are tremendously high numbers and represent an increase over what the Program Plan for 2021-26 anticipated.126 The City’s own report acknowledges that “[u]pstream emissions occur at the oil fields within the city boundary” and because “[t]he City issues well permits for petroleum operations, [it] has relatively more direct control over these emissions.”127 Even if oil and gas operations had no other environmental and public health impacts (which clearly is not the case), these massive GHG emissions would warrant analysis and mitigation under CEQA. Similarly, it is well-documented that oil field operations result in significant impacts to air quality and expose communities and sensitive receptors to substantial air pollution concentrations.128 Oil and gas operations emit large amounts of volatile organic compounds (“VOCs”) and nitrous oxides (“NOX”).129 The oil and natural gas industry is the largest industrial source of emissions of VOCs, a group of chemicals that contribute to the formation of ground-level ozone (smog).130 Ozone exposure is linked to a wide range of health effects, including aggravated asthma, increased emergency room visits and hospital admissions, and premature death.131 The VOCs emitted include the BTEX compounds—benzene, toluene, ethyl benzene, and xylene—which are Hazardous Air Pollutants.132 There is substantial evidence of the harm from 123 Id. at 8. 124 Id. 125 Draft Program Plan 2023-28, Exhibit C. 126 Program Plan 2021-26, Exhibit C (projecting just over 25.4 million barrels of oil produced over five years). Moreover, the City showed its discretion because it increased production numbers anticipated in 2023-26 over what it prescribed in the 2021 Program Plan for the time period. For example, the City expected 5,037,000 barrels per year in 2023/24 (2021-26 Program Plan) but increased that to 5,365,000 (2023-28 Program Plan). 127 Appx G Climate Plan at 2. 128 See, e.g., Stanford News, “Living near oil and gas wells increases air pollution exposure, according to Stanford research” (Oct. 21, 2021), https://news.stanford.edu/2021/10/12/living-near-oil-gas-wells-increases-air-pollution-exposure/. 129 Id. 130 EPA, “Basic Information about Oil and Natural Gas Air Pollution Standards,” https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry/basic-information-about-oil-and-natural-gas#:~:text=In%20addition%20to%20helping%20form,and%20other%20serious%20health%20effects. 131 Id. 132 Each has also been identified as a carcinogen. Mall, Amy, Petition for Rulemaking Pursuant to Section 6974(a) of the Resource Conservation and Recovery Act Concerning the Regulation of Wastes Associated with the Exploration, Development, or Production of Crude Oil or Natural Gas or Geothermal Energy at 13 (Sep. 8, 2010); 42 U.S.C. § 7412(b).

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 22 these pollutants, including cancer and other serious health effects.133 One analysis found that 37 percent of the chemicals used during natural gas drilling, fracturing, and production were volatile, and that of those volatile chemicals, 81 percent can harm the brain and nervous system, 71 percent can harm the cardiovascular system and blood, and 66 percent can harm the kidneys.134 Exposure to benzene has been associated with increased incidence of leukemia and other serious health conditions; exposure to toluene can damage the nervous system; and xylenes can cause dizziness, headaches, and loss of balance.135 Another study found that among known air contaminants, compounds of particular concern that are known to be emitted during the well-stimulation-enabled oil and gas development process are BTEX compounds, formaldehyde, hydrogen sulfide, particulate matter, nitrogen oxides, sulfur dioxide, polycyclic aromatic, aliphatic, and aromatic hydrocarbons, and volatile organic compounds.136 Wastewater reinjection and disposal are among the potential pathways for these contaminants to escape into the air.137 The pressure and heat needed for EOR operations can lead to significantly larger quantities of air pollution. The California Air Resources Board itemized a number of sources associated with operational activities including steam generators, steam drive wells, cyclic steam wells, fugitive emissions from the wellhead, valves, fittings, and evaporation from sumps and pits.138 The air pollution from these operational activities will be a significant impact if the Plans authorize EOR. In a 14-year study of air quality across California, researchers observed higher levels of air pollutants within 2.5 miles of oil and gas wells, likely worsening negative health outcomes for nearby residents.139 Moreover, the cumulative impacts of oil and gas air pollution combined with Port pollution needs to be analyzed. The community in West Long Beach has extensive exposure to air pollution, heightened risks of pollution related health problems, and the South Coast Air Basin is in non-attainment of ozone and particulate matter.140 Neither draft plans 133 Colborn, Theo et al., Natural Gas Operations for a Public Health Perspective, 17 Human and Ecological Risk Assessment 1039 (2011) (“Colborn 2011”); McKenzie, Lisa et al., Human Health Risk Assessment of Air Emissions form Development of Unconventional Natural Gas Resources, Sci Total Environ (2012), doi:10.1016/j.scitotenv.2012.02.018; Food & Water Watch, The Case for a Ban on Fracking (2012). 134 Colborn 2011 at 8. 135 Mall, Amy, Petition for Rulemaking Pursuant to Section 6974(a) of the Resource Conservation and Recovery Act Concerning the Regulation of Wastes Associated with the Exploration, Development, or Production of Crude Oil or Natural Gas or Geothermal Energy at 7 (Sep. 8, 2010). 136 CCST Report, Vol. II, p. 410. 137 Id. 138 Id. at p. 199, citing CARB (California Air Resources Board) (2013), Almanac Emission Projection Data: 2012 Estimated Annual Average Emissions by California Air District, http://www.arb.ca.gov/ei/maps/statemap/dismap.htm. 139 Stanford News, “Living near oil and gas wells increases air pollution exposure, according to Stanford research” (Oct. 21, 2021), https://news.stanford.edu/2021/10/12/living-near-oil-gas-wells-increases-air-pollution-exposure/. 140 South Coast Air Quality Management District, Multiple Air Toxics Exposure Study in the South Coast Air Basin, MATES IV (2012), at 4-16, https://www.aqmd.gov/docs/default-source/air-quality/air-toxic-studies/mates-iv/mates-iv-final-draft-report-4-1-15.pdf?sfvrsn=7.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 23 describe the impacts to air quality, which is all the more reason for analysis and disclosure of these likely impacts through CEQA analysis. G. Energy Use California’s grid is on “shaky ground,” with the 2022 heat wave pushing the grid “to the brink of collapse,” prompting the California legislature and Governor Newsom to extend the life of the Diablo Canyon nuclear power plant despite a pre-planned closure.141 Yet with the crisis of electricity demand in the State, the LBU is one of Southern California Edison’s biggest electricity users, consuming approximately 683 million kWh per year in order to power its oilfield operations.142 This is unacceptable. Because CEQA require that environmental reviews discuss the potential energy impacts of proposed projects, with particular emphasis on avoiding or reducing inefficient, wasteful and unnecessary consumption of energy,143 LBU’s massive energy use must be addressed under CEQA. Moreover, the Program Plan notes that the property lease for the Unit’s in-house, 45MW power plant expires in July 2024, and lease negotiations have “stalled.”144 Failure to renew the lease could mean even greater demand on the State’s power grid and/or “result in . . . relocating the plant or installing a sales pipeline to SoCal Gas.”145 Any of the potential scenarios above concerning the power plant could lead to significant concerns and environmental impacts and must be analyzed under CEQA. H. Amine Plant The City’s Program Plan refers to an amine plant located within the oil field that is used in conjunction with power plant operations.146 Amines are a class of chemicals that derive from ammonia147 and can have negative effects on human health (irritation, sensitization, carcinogenicity, genotoxicity), be toxic to animals and aquatic organisms, and cause eutrophication and acidification in marine environments.148 The Program Plan inadequately describes what having an “amine plant” means for the LBU and surrounding ecosystems and 141 See “California’s latest power grid problems are just the beginning,” Politico (Sept. 23, 2022), https://www.politico.com/news/2022/09/23/californias-lofty-climate-goals-clash-with-reality-00058466; Nathan Rott, “California lawmakers extend the life of the state's last nuclear power plant,” NPR (Sept. 1, 2022), https://www.npr.org/2022/09/01/1119778975/california-lawmakers-extend-the-life-of-the-states-last-nuclear-power-plant. 142 Program Plan 2023-28 at 12. 143 Cal. Pub. Res. Code § 21100(b)(3); see also CEQA Guidelines, Appx. F: Energy Conservation (noting that environmental effects related to energy may include the project’s energy requirements and its energy use efficiencies; the effects of the project on local and regional energy supplies; the effects of the project on peak and base period demands for electricity and other forms of energy; the degree to which the project complies with existing energy standards; the effects of the project on energy resources). 144 Program Plan 2023-28 at 12. 145 Id. 146 Id. at 11. 147 Science Direct, Amine Overview, https://www.sciencedirect.com/topics/chemistry/amine. 148 Bellona, Amines Used in CO2 Capture - Health and Environmental Impacts (2009), https://network.bellona.org/content/uploads/sites/3/fil_Bellona_report_September_2009_-_Amines_used_in_CO2_capture.pdf (“Amine Report”).

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 24 communities. The public needs to know about chemical transport, storage, production, use, discharges, and disposal. Because of the likely environmental and health impacts from using (or producing) amines in the LBU, this component of operations triggers CEQA and must be subject to review. Amine use results in environmental and health impacts throughout its lifecycle. Amine gases that are released to the air could be dissolved in the rain droplets and ended up in water supplies such as rivers and lakes.149 Some emitted amines are unstable in the nature environment.150 The amines specifically used in natural gas capture are highly soluble in water and their reclaimer waste contains amine, ammonia, other degradation products, heat-stable salts, flue gas impurities, and also corrosion products.151 Amines used in natural gas operations also lead to metals corrosion, which can result in excess emissions and leaks.152 Discharged amines may degrade to some dangerous substances that are toxic and represents a risk for cancer, such as aldehydes, amides, nitrosamines, and nitramines.153 Amine spills are a “major problem[].”154 High concentration of amines in environment could leads to disruption of aquatic life and bioconcentration potential and can be toxic to humans.155 Amines used near saltwater (a concern for the LBU) is especially concerning and could lead to significant impacts, as studies have sown amine degradation in seawater is slower than in the freshwater system.156 I. Cumulative Impacts The public and other officials are entitled to know the cumulative impacts of LBU operations—including from drilling/redrilling activities, equipment updates and new technologies, power plant operations (including the associated amine plant), actions to reduce subsidence, and more. CEQA requires a cumulative project impacts analysis because “the full environmental impact of a proposed . . . action cannot be gauged in a vacuum.”157 Under CEQA, cumulative impacts refer to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.158 The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects.159 In an EIR, the discussion of each type of cumulative 149 Salim, S.R.S., Treatment of amine wastes generated in industrial processes, IOP Conf. Series: Materials Science and Engineering (2021) at 2, https://iopscience.iop.org/article/10.1088/1757-899X/1092/1/012051/pdf (“Amine Treatment Study”). 150 Amine Report at 13. 151 Amine Treatment Study at 2. 152 Id. 153 Amine Report at 13. 154 Amine Treatment Study at 2. 155 Id. 156 Eide-Haugmo, Ingvild et al., Environmental impact of amines, Science Direct, Energy Procedia 1 (2009) at 1298, https://www.sciencedirect.com/science/article/pii/S1876610209001714. 157 Whitman v. Board of Supervisors, 88 Cal.App.3d 397, 408 (1979). 158 CEQA Guidelines § 15355. 159 Id.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 25 impact need only be proportional to the severity of the impact and the likelihood of its occurrence,160 but even an insignificant impact must be justified as such.161 An underinclusive cumulative impacts analysis “impedes meaningful public discussion and skews the decision maker’s perspective concerning the environmental consequences of a project, the necessity for mitigation measures, and the appropriateness of project approval.”162 J. Health and Safety Buffer Zones The projections for oil and gas production in the Program Plan, and yearly maximums for redrills in FY 2025, assume that the 2022 legislation establishing 3200-foot health and safety setbacks from oil and gas operations—Senate Bill 1137 (SB 1137)—will not take effect and that CalGEM will issue permits for redrilling wells between now and 2028. While implementation of SB 1137 is currently paused because of a forced ballot referendum sponsored by the oil and gas industry that seeks to overturn the law, the City should not assume the absence of setbacks and instead should incorporate these necessary protections into its planning. Schedule 1B indicates that up to 22 redrills on Island Grissom and up to 6 redrills on Pier J for oil production will be completed in FY 2024 alone. All of these wells are within the buffer zone that will be in place if SB 1137 remains law. This zone represents areas where Long Beach residents and visitors live, work, and recreate. Ongoing operations in these areas already pose significant public health harms and these harms will be exacerbated by the expanded production proposed by the five-year Program Plan. There are an estimated 140,000 individuals living within 3200 feet of Long Beach oil and gas wells (a number that encompasses the entire oil field).163 Of those, 101,498 (72.4%) identify as non-white, including Latina/Hispanic origin, which is slightly higher than the citywide average (71.7% non-white).164 The map below depicts oil and gas operations from the LBU that are within the proposed setback zone.165 160 Id. § 15130(b). 161 Id. § 15130(a). 162 Citizens to Preserve the Ojai v. County of Ventura, 176 Cal.App.3d 421, 431 (1985); see also Friends of the Eel River v. Sonoma County Water Agency, 108 Cal.App.4th 859 (2003). 163 FracTracker, City of Long Beach Oil and Gas Extraction (April 1, 2022) at 2. 164 Id. 165 FracTracker, California 3,200' Setbacks Analysis (zoomed in for LBU), https://ft.maps.arcgis.com/apps/SimpleViewer/index.html?appid=6f315303438045a09ebbcd9698e3518e.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 26 It is well-documented that there are adverse health outcomes for those living near oil and gas wells. In a 14-year analysis of air quality across California, Stanford researchers observed higher levels of air pollutants within 2.5 miles of oil and gas wells, likely worsening negative health outcomes for nearby residents.166 Their data aligned with other smaller-scale studies that measured emissions from a handful of wells.167 A panel of medical experts reported consistent findings of health impacts at distances less than one kilometer and recommended 3200-foot setbacks paired with pollution control measures on existing wells to account for significant impacts to perinatal and respiratory health in humans.168 The city manager’s hesitation to embrace the health and safety buffer zone is concerning and runs counter to the city’s 2030 strategic vision stating the intention to “improve the health of our environment and quality of life for all Long Beach residents and begin to remedy longstanding social, economic and environmental inequities . . . . All communities will have access to clean air, clean water, flourishing ecosystems, and protection from extreme weather events.”169 Fourteen organizations representing environmental justice, public health, business, and the environment have submitted a letter to the city manager expressing support for health and safety buffer zones and urging the city to reverse advocacy efforts casting doubt on the state law.170 166 Gonzalez, et al., Upstream oil and gas production and ambient air pollution in California, S. of the Total Envt., Vol. 806, Part 1, (Feb. 1, 2022), 150298, https://www.sciencedirect.com/science/article/pii/S0048969721053754. 167 Id. 168 PSE Berkeley, Response to CalGEM Questions for the California Oil and Gas Public Health Rulemaking Scientific Advisory Panel (Oct. 1, 2021), https://www.gov.ca.gov/wp-content/uploads/2021/10/Public-Health-Panel-Memo.pdf. 169 City of Long Beach, 2030 Strategic Vision at 52, https://www.longbeach.gov/globalassets/city-manager/media-library/documents/2030-strategic-vision. 170 See Sign-on letter re: SB 1137 (March 21, 2023), attached herein.

Center for Biological Diversity Comments on the Long Beach Unit Program and Annual Plans March 2023 27 In order to protect the health of residents and to prepare for the implementation of SB 1137, Long Beach’s plans should not include any projects (including redrills) within setback zones, which includes on Island Grissom, Island White, or Pier J. And the city should move expeditiously to phase down operations within the 3200-foot health and safety buffer zone. K. Tribal consultation Several tribal entities of the Acjachemen and Tongva nations hold critical cultural information regarding the cultural sites affected by the continued development of oil infrastructure, continued extraction, and continued threat of oil spills that threaten to impact these cultural resources and sacred sites. Oil spill response efforts without consultation with these entities risk further impacting cultural resources. A new CEQA review should be conducted considering these impacts and incorporating revisions of the oil spill response plans to alert and consult with Tribes. CONCLUSION Thank you for considering our comments. All the references cited herein are available at https://centerforbiologicald-my.sharepoint.com/:f:/g/personal/celkins_biologicaldiversity_org/EnKgnCor99lGuuLZ09VgLJEBe1qZCkB-L3ApueGIIPlwhQ?e=glc5NS. We will also hand-deliver a USB flash drive containing all references to the city clerk at tonight’s meeting. __________________________ Victoria Bogdan Tejeda Staff Attorney, Climate Law Institute Center for Biological Diversity [email protected] _______________________ Emily Jeffers Senior Attorney, Oceans Program Center for Biological Diversity [email protected]

Friday,
September 2, 2005
Part II
Department of
Commerce
National Oceanic and Atmospheric
Administration
50 CFR Part 226
Endangered and Threatened Species;
Designation of Critical Habitat for Seven
Evolutionarily Significant Units of Pacific
Salmon and Steelhead in California; Final
Rule
VerDate Aug<18>2005 17:17 Sep 01, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\02SER2.SGM 02SER2 52488 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Rules and Regulations

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 226
[Docket No. 041123329–5202–02; I.D.

No.110904F]
RIN 0648–AO04
Endangered and Threatened Species;
Designation of Critical Habitat for
Seven Evolutionarily Significant Units
of Pacific Salmon and Steelhead in
California
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration,
Commerce.

ACTION: Final rule.

SUMMARY: We, the National Marine
Fisheries Service (NMFS), are issuing a
final rule designating critical habitat for
two Evolutionarily Significant Units
(ESUs) of chinook salmon
(Oncorhynchus tshawytscha) and five
ESUs of steelhead (O. mykiss) listed as
of the date of this designation under the
Endangered Species Act of 1973, as
amended (ESA). The specific areas
designated in the rule text set out below
include approximately 8,935 net mi
(14,269 km) of riverine habitat and 470
mi
2 (1,212 km2) of estuarine habitat
(primarily in San Francisco-San Pablo-
Suisun Bays) in California. Some of the
areas designated are occupied by two or
more ESUs. The annual net economic
impacts of changes to Federal activities
as a result of the critical habitat
designations (regardless of whether
those activities would also change as a
result of the ESA’s jeopardy
requirement) are estimated to be
approximately $81,647,439. We
solicited information and comments
from the public in an Advanced Notice
of Proposed Rulemaking and on all
aspects of the proposed rule. This rule
is being issued to meet the timeline
established in litigation between NMFS
and Pacific Coast Federation of
Fishermen’s Associations (PCFFA et. al
v. NMFS (Civ.No. 03–1883)). In the
proposed rule, we identified a number
of potential exclusions we were
considering including exclusions for
federal lands subject to the Pacific
Northwest Forest Plan, PACFISH and
INFISH. We are continuing to analyze
whether exclusion of those federal lands
is appropriate.

DATES: This rule becomes effective
January 2, 2006.

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, 501 W.

Ocean Blvd., Suite 4200, Long Beach,
CA 90802–4213. The final rule, maps,
and other materials relating to these
designations can be found on our Web
site at http://swr.nmfs.noaa.gov.

FOR FURTHER INFORMATION CONTACT :

Craig Wingert at the above address, at
562/980–4021, or Marta Nammack at
301/713–1401 ext. 180.

SUPPLEMENTARY INFORMATION:

Organization of the Final Rule
This Federal Register notice describes
the final critical habitat designations for
seven ESUs of West Coast salmon and
steelhead listed under the ESA. The
pages that follow summarize the
comments and information received in
response to proposed designations
published on December 10, 2004 (69 FR
71880), describe any changes from the
proposed designations, and detail the
final designations for seven ESUs. To
assist the reader, the content of this
notice is organized as follows:

I. Background and Previous Federal Action
II. Summary of Comments and
Recommendations
Notification and General Comments
Identification of Critical Habitat Areas
Economics Methodology
Weighing the Benefits of Designation vs.

Exclusion
Effects of Designating Critical Habitat
ESU-specific Issues
III. Summary of Revisions
IV. Methods and Criteria Used to Identify
Critical Habitat
Salmon Life History
Identifying the Geographical Area
Occupied by the Species and Specific
Areas within the Geographical Area
Primary Constituent Elements
Special Management Considerations or
Protections
Unoccupied Areas
Lateral Extent of Critical Habitat
Military Lands
Critical Habitat Analytical Review Teams
V. Application of ESA Section 4(b)(2)
Exclusions Based on ‘‘Other Relevant
Impacts’’
Impacts to Tribes
Impacts to Landowners with Contractual
Commitments to Conservation
Exclusions Based on National Security
Impacts
Exclusions Based on Economic Impacts
VI. Critical Habitat Designation
VII. Effects of Critical Habitat Designation
Section 7 Consultation
Activities Affected by Critical Habitat
Designation
VIII. Required Determinations
IX. References Cited
I. Background and Previous Federal
Action
We are responsible for determining
whether species, subspecies, or distinct
population segments of Pacific salmon
and steelhead (Oncorhynchus spp.) are
threatened or endangered, and for
designating critical habitat for them
under the ESA (16 U.S.C. 1531 et seq).

To qualify as a distinct population
segment, a Pacific salmon or steelhead
population must be substantially
reproductively isolated from other
conspecific populations and represent
an important component in the
evolutionary legacy of the biological
species. According to agency policy, a
population meeting these criteria is
considered to be an Evolutionarily
Significant Unit (ESU) (56 FR 58612,
November 20, 1991).

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 ‘‘primary constituent
elements,’’ or PCEs, in identifying these
physical or biological features. Section
7(a)(2) of the ESA requires that each
Federal agency shall, 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 salmon or steelhead ESU 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.

The timeline for completing the
critical habitat designations described in
this Federal Register notice was
established pursuant to litigation
between NMFS and the Pacific Coast
Federation of Fishermen’s Associations,
Institute for Fisheries Resources, the
Center for Biological Diversity, the
Oregon Natural Resources Council, the
Pacific Rivers Council, and the
Environmental Protection Information
Center (PCFFA, et al.) and is subject to
a Consent Decree and Stipulated Order
VerDate Aug<18>2005 17:17 Sep 01, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\02SER2.SGM 02SER2 52489 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Rules and Regulations of Dismissal (Consent Decree) approved
by the D.C. District Court. A complete
summary of previous court action
regarding these designations can be
found in the proposed rule (69 FR
71880; December 10, 2004).

In keeping with the Consent Decree,
on December 10, 2004 (69 FR 71880),
we published proposed critical habitat
designations for two ESUs of Chinook
salmon and five ESUs of O. mykiss. (For
the latter ESUs we used the species’
scientific name rather than ‘‘steelhead’’
because at the time they were being
proposed for revision to include both
anadromous (steelhead) and resident
(rainbow/redband) forms of the
species— see 69 FR 33101, June 14,
2004). The seven ESUs addressed in the
proposed rule were: (1) California
Coastal Chinook salmon; (2) Northern
California O. mykiss; (3) Central
California Coast O. mykiss; (4) South-
Central Coast O. mykiss; (5) Southern
California O. mykiss; (6) Central Valley
spring run Chinook salmon; and (7)
Central Valley O. mykiss. The comment
period for the proposed critical habitat
designations was originally opened
until February 8, 2005. On February 7,
2005 (70 FR 6394), we announced a
court-approved Amendment to the
Consent Decree which revised the
schedule for completing the
designations and extended the comment
period until March 14, 2005, and the
date to submit final rules to the Federal
Register as August 15, 2005.

In the critical habitat proposed rule
we stated that ‘‘the final critical habitat
designations will be based on the final
listing decisions for these seven ESUs
due by June 2005 and thus will reflect
occupancy ‘‘at the time of listing’’ as the
ESA requires.’’ All of these ESUs had
been listed as threatened or endangered
between 1997–2000, but in 2002 we
announced that we would reassess the
listing status of these and other ESUs
(67 FR 6215; February 11, 2002). We
recently published final listing
decisions for the two Chinook salmon,
but not for the five ESUs of O. mykiss
(70 FR 37160; June 28, 2005). Final
listing determinations for these five
ESUs are expected by December 2005
(70 FR 37219; June 28, 2005). However,
the Consent Decree governing the
schedule for our final critical habitat
designations requires that we complete
final designations for those of the seven
ESUs identified above that are listed as
of August 15, 2005. Because
anadromous forms (i.e., ‘‘steelhead’’) of
the five O. mykiss ESUs have been listed
since 1997–2000 (see summary in June
14, 2004 Federal Register notice, 69 FR
33103), we are now issuing final critical
habitat designations for them in this
notice in accordance with the Consent
Decree. We are able to do so because in
developing critical habitat designations
for this species we have focused on the
co-occurring range of both the
anadromous and resident forms.

Therefore, both the proposed and final
designations were restricted to the
species’ anadromous range, although we
did consider and propose to designate
some areas occupied solely by resident
fish in upper Alameda Creek in the San
Francisco Bay area. We focused on the
co-occurring range due to uncertainties
about: (1) The distribution of resident
fish outside the range of co-occurrence,
(2) the location of natural barriers
impassable to steelhead and upstream of
habitat areas proposed for designation,
and (3) the final listing status of the
resident form. Section 4(a)(3)(B) of the
ESA provides for the revision of critical
habitat designations as appropriate, and
we will do so (if necessary) after making
final listing determinations for these
five O. mykiss ESUs. Moreover, we
intend to actively revise critical habitat
as needed for all seven ESUs to keep
them as up-to-date as possible.

In an Advance Notice of Proposed
Rulemaking (ANPR) (68 FR 55926;
September 29, 2003), we noted that the
ESA and its supporting regulations
require the agency to address a number
of issues before designating critical
habitat: ‘‘What areas were occupied by
the species at the time of listing? What
physical and biological features are
essential to the species’ conservation?
Are those essential features ones that
may require special management
considerations or protection? Are areas
outside those currently occupied
‘essential for conservation’? What are
the benefits to the species of critical
habitat designation? What economic and
other relevant impacts would result
from a critical habitat designation, even
if coextensive with other causes such as
listing? What is the appropriate
geographic scale for weighing the
benefits of exclusion and benefits of
designation? What is the best way to
determine if the failure to designate an
area as critical habitat will result in the
extinction of the species concerned?’’
We recognized that ‘‘[a]nswering these
questions involves a variety of
biological and economic
considerations’’ and therefore were
seeking public input before issuing a
proposed rule. As we stated in the
proposed rule that followed: ‘‘We
received numerous comments in
response to the ANPR and considered
them during development of this
proposed rulemaking. Where applicable,
we have referenced these comments in
this Federal Register notice as well as
in other documents supporting this
proposed rule.’’ In the proposed rule,
we described the methods and criteria
we applied to address these questions,
relying upon the unique life history
traits and habitat requirements of
salmon and steelhead.

In issuing the final rule, we
considered the comments we received
to determine whether a change in our
proposed approach to designating
critical habitat for salmon and steelhead
was warranted. In some instances, we
concluded based on comments received
that a change was warranted. For
example, in this final rule we have
revised our approach to allow us to
consider excluding areas covered by
habitat conservation plans in those
cases where the benefits of exclusion
outweigh the benefits of designation.

In other instances, we believe the
approach taken is supported by the best
available scientific information, and that
given the time and additional analyses
required, changes to the methods and
criteria we applied in the proposed rule
were not feasible. We recognize there
are other equally valid approaches to
designating critical habitat and for
answering the myriad questions
described above. Nevertheless, issuance
of the final rule for designating critical
habitat for these ESUs is subject to a
Court Order that requires us to submit
the final regulation to the Federal
Register no later than August 15, 2005,
less than 5 months after the close of the
public comment period. Taking
alternative approaches to designating
critical habitat would have required a
retooling of multiple interrelated
analyses and undertaking additional
new analyses in support of the final
rule, and was not possible given the
time available to us. We will continue
to study alternative methods and criteria
and may apply them in future
rulemakings designating critical habitat
for these or other species.

II. Summary of Comments and
Recommendations
As described in agency regulations at
50 CFR 424.16(c)(1), in the critical
habitat proposed rule we requested that
all interested parties submit written
comments on the proposals. We also
contacted the appropriate Federal, state,
and local 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
it was signed (approximately 2 weeks
prior to actual publication) and
accepted comments by standard mail
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internet (e.g., www.regulations.gov). In
addition, we held four public hearings
between January 13, 2005, and February
1, 2005, in the following locations:

Arcata, Rohnert Park, Sacramento, and
Santa Barbara, CA. We received 3,762
written comments (3,627 of which were
form letters or in the form of e-mails
with nearly identical verbiage) during
the comment period on the proposed
rule.

In December 2004, the Office of
Management and Budget (OMB) issued
a Final Information Quality Bulletin for
Peer Review establishing minimum peer
review standards, a transparent process
for public disclosure, and opportunities
for public input (70 FR 2664; January
14, 2005). The OMB Peer Review
Bulletin, implemented under the
Information Quality Act (Pub. L. 106–
554), is intended to provide public
oversight on the quality of agency
information, analyses, and regulatory
activities, and applies to information
disseminated on or after June 16, 2005.

Prior to publishing the proposed rule we
submitted the initial biological
assessments of our Critical Habitat
Analytical Review Teams (hereafter
referred to as CHART) to state co-
managers and asked them to review
those findings. These co-manager
reviews resulted in some changes to the
CHARTs’ preliminary assessments (e.g.,
revised fish distribution as well as
conservation value ratings) and helped
to ensure that the CHARTs’ revised
findings (NMFS, 2004b) incorporated
the best available scientific data. We
later solicited technical review of the
entire critical habitat proposal
(biological, economic, and policy bases)
from several independent experts
selected from the academic and
scientific community, Native American
tribal groups, Federal and state agencies,
and the private sector. We also solicited
opinions from three individuals with
economics expertise to review the draft
economics analysis supporting the
proposed rule. All three of the
economics reviewers and one of the
biological reviewers submitted written
opinions on our proposal. We have
determined that the independent expert
review and comments received
regarding the science involved in this
rulemaking constitute adequate prior
review under section II.2 of the OMB
Peer Review Bulletin (NMFS, 2005b).

We reviewed all comments received
from the peer reviewers and the public
for substantive issues and new
information regarding critical habitat for
the various ESUs, and we address them
in the following summary. Peer
reviewer comments were sufficiently
similar to public comments that we
have responded to them through our
general responses below. For
readers’convenience we have assigned
comments to major issue categories and
where possible have combined similar
comments into single comments and
responses.

Notification and General Comments
Comment 1: Some commenters raised
concerns or complained about the
adequacy of public notification and time
to comment.

Response: We made all reasonable
attempts to communicate our
rulemaking process and the critical
habitat proposal to the affected public.

Prior to the proposed rule we published
an ANPR in which we identified issues
for consideration and evaluation, and
solicited comments regarding these
issues and information regarding the
areas and species under consideration
(68 FR 55926; September 29, 2003). We
considered comments on the ANPR
during our development of the proposed
rule. As soon as the proposed rule was
signed on November 29, 2004 (2 weeks
before actual publication in the Federal
Register), we posted it and supporting
information on the agency’s internet site
to facilitate public review, and we have
provided periodic updates to that site
(see
ADDRESSES). In response to
numerous requests— in particular from
plaintiffs as well as private citizens,
counties, farm bureaus, and state
legislators in Washington— the original
60-day public comment period was
extended by 30 days (70 FR 6394;
February 7, 2005) to allow additional
time for the public to submit comments
on the critical habitat proposals.

Additionally, we realize that the
statute provides a short time frame for
designating critical habitat. Congress
amended the ESA in 1982 to establish
the current time frame for designation.

In doing so, Congress struck a balance
between the recognition that critical
habitat designations are based upon
information that may not be
determinable at the time of listing and
the desire to ensure that designations
occur in a timely fashion. Additionally,
the ESA and supporting regulations
provide that designations may be
revised as new data become available to
the Secretary. We recognize that where
the designation covers a large
geographic area, as is the case here, the
short statutory time frame requires a
short period for the public to consider
a great deal of factual information. We
also recognize that this designation
takes a new approach by considering
relative conservation value of different
areas and applying a cost-effectiveness
framework. In this notice we are
announcing our intention to consider
revising the designations as new habitat
conservation plans and other
management plans are developed, and
as other new information becomes
available. Through that process we
anticipate continuing to engage the
interested public and affected
landowners in an ongoing dialogue
regarding critical habitat designations.

Comment 2: Some commenters
disagreed with our decision to vacate
the February 2000 critical habitat
designations for these ESUs.

Response: We believe that the issues
identified in a legal challenge to our
February 2000 designations warranted
withdrawing that rule. Developing a
cost-effectiveness approach, designed to
achieve the greatest conservation at the
least cost, is in keeping with long-
standing Executive direction on
rulemaking and is a responsible and
conservation-oriented approach to
implementing section 4(b)(2) of the
ESA. In addition, we had new and better
information in 2004 than we had in
2000, such as the information of fish
distribution and habitat use that was
generated by agency fishery biologists.

The ESA requires that we use the best
available information, and the
distribution data is the best information
currently available. Finally, the
litigation challenging our 2000
designation also challenged the lack of
specificity in our designation of the
riparian area, leading us to consider
whether there was a better approach
that was more consistent with our
regulations and with the best available
information.

Comment 3: Some commenters stated
that we should wait to publish final
critical habitat designations until after
final listing determinations have been
made and the final hatchery listing
policy is published.

Response: The ESA states that the
Secretary shall designate critical habitat,
defined as areas within or outside the
geographical area occupied by the
species at the time of listing and using
the best available information (emphasis
added). These designations follow that
statutory mandate and have been
completed on a schedule established
under a Consent Decree. Also, the final
hatchery listing policy and final listing
determinations for several salmon ESUs
were published on June 28, 2005 (70 FR
37160 and 37204) in advance of the
completion of this final critical habitat
designation. For reasons described
above in the ‘‘Background and Previous
Federal Action’’ section, we are now
making final designations for those
listed salmon and steelhead ESUs in the
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Consent Decree and listed as of the date
of this designation.

Identification of Critical Habitat Areas
Comment 4: Several commenters
contended that we can only designate
areas that are essential for species
conservation.

Response: Section 3(5)(A) of the ESA
has a two-pronged definition of critical
habitat: ‘‘(i) the specific areas within the
geographical area occupied by the
species, at the time it is listed * * * on
which are found those physical or
biological features (I) essential to the
conservation of the species and (II)
which may require special management
considerations or protection; and (ii)
specific areas outside the geographical
area occupied by the species, at the time
it is listed * * * upon a determination
by the Secretary that such areas are
essential for the conservation of the
species’ (emphasis added). As described
in this rule and documented in the
reports supporting it, we have strictly
applied this definition and made the
requisite findings. We requested and
received comments on various aspects
of our identification of areas meeting
this definition and address those here.

Only those areas meeting the definition
were considered in the designation
process. Comments regarding the
section 4(b)(2) process, in which we
considered the impacts of designation
and whether areas should be excluded,
are addressed in a subsequent section.

Comment 5: In the proposed rule we
considered occupied streams within a
CALWATER Hydrologic Subarea (HSA)
as the ‘‘specific area’’ in which the
physical or biological features essential
to conservation of the ESUs were found.

We also used these watershed
delineations as the ‘‘particular areas’’—
the analytical unit— for purposes of the
section 4(b)(2) analysis. In the proposed
rule we requested public comment on
whether considering exclusions on a
stream-by-stream approach would be
more appropriate. Some commenters
believed that the watershed scale was
too broad for making critical habitat
designations and suggested that a
smaller watershed or a stream-by-stream
approach was more appropriate. Some
commenters believed that we should
conduct a reach-by-reach assessment in
their watersheds.

Response: Our ESA section 4(b)(2)
report (NMFS, 2005c) acknowledges
that the delineation of both specific
areas and particular areas should be as
small as practicable, to ensure our
designations are not unnecessarily
broad and to carry out congressional
intent that we fully consider the impacts
of designation. For reasons described in
the section below on ‘‘Methods and
Criteria Used to Identify Critical
Habitat,’’ we continue to believe that the
specific facts of salmon biology and life
history make CALWATER HSA
watersheds in California an appropriate
scale to use in delineating the ‘‘specific’’
areas in which physical or biological
features are found. We also believe
consideration of the impacts of
designation on an HSA watershed scale
results in a meaningful section 4(b)(2)
balancing process. Moreover,
congressional direction requires that
designations be completed in a very
short time frame by a specified
deadline, ‘‘based on such data as may be
available at that time.’’ Given that short
time frame and the geographic extent of
salmon critical habitat, the HSA
watershed was the smallest practicable
area we were able to analyze.

Comment 6: Some commenters
believed we applied the definition of
‘‘specific areas within the geographical
area occupied by the species at the time
it is listed’’ too narrowly. In their views,
this led to two errors— failure to
designate all ‘‘accessible’’ stream
reaches and failure to designate riparian
and upstream areas. Commenters felt
that the ‘‘best scientific data available’’
support a conclusion that salmon and
steelhead will occupy all accessible
streams in a watershed during a period
of time that can be reasonably construed
as ‘‘at the time it is listed.’’ One
commenter stated that ‘‘[w]hether a
particular stream reach is occupied
cannot be determined with certainty
based on ‘‘occupation’’ data alone,
especially for fragmented, declining, or
depressed populations of fish.’’ The
commenter pointed to the rationale
provided in our 2000 rule for
identifying occupied areas as all areas
accessible within a subbasin (a 4th field
watershed, using U.S. Geological Survey
(USGS) terminology): ‘‘NMFS believes
that adopting a more inclusive,
watershed based description of critical
habitat is appropriate because it (1)
recognizes the species’ use of diverse
habitats and underscores the need to
account for all of the habitat types
supporting the species’ freshwater and
estuarine life stages, from small
headwater streams to migration
corridors and estuarine rearing areas; (2)
takes into account the natural variability
in habitat use that makes precise
mapping problematic (e.g., some
streams may have fish present only in
years with abundant rainfall) (65 FR
7764; February 16, 2000).’’
Some commenters believe that in
delineating ‘‘specific areas within the
geographical area occupied by the
species,’’ we need not confine ourselves
to areas that are literally ‘‘occupiable’’
by the species in that we should
designate riparian and upstream areas. If
there are physical or biological features
essential to conservation to be found
within a broadly defined ‘‘geographical
area occupied by the species,’’ we have
the duty to delineate specific areas in a
way that encompasses them. Some
argued that limiting the designation to
the stream channel fails to recognize the
biological and hydrological connections
between streams and riparian areas and
would lead to further degradation of the
latter. Some commenters suggested that
we use a fixed distance (e.g., 300 feet
(91.4 m) if a functional description is
not used. Some requested that we adopt
the ‘‘functional zone’’ description for
lateral extent used in the 2000
designations (65 FR 7764; February 16,
2000), while other commenters felt that
our reference to habitat linkages with
upslope and upstream areas was vague
and wondered whether we were
actually using the old approach anyway.

Other commenters believed that using
the line of ordinary high water or
bankfull width was appropriate and
noted that this would remove prior
ambiguities about which areas were
designated. Other commenters
supported the approach taken in this
designation, to identify specific areas
occupied by the species and not broadly
designate ‘‘all areas accessible,’’ some
commenting that this was a more
rigorous assessment and more in
keeping with the ESA.

Response: The approach we took in
the proposed designation is different
from the approach we took in the
vacated 2000 designation for a variety of
reasons. The ESA directs that we will
use the best scientific data available in
designating critical habitat. Our
regulations also provide direction:
‘‘[e]ach critical habitat will be defined
by specific limits using reference points
and lines as found on standard
topographic maps of the area * * *
Ephemeral reference points (e.g., trees,
sand bars) shall not be used in defining
critical habitat.’’ (50 CFR 424.12(c)).

With respect to our approach for
identifying ‘‘the geographical area
occupied by the species,’’ we recognize
that the available fish and habitat use
distribution data are limited to areas
that have been surveyed or where
professional judgment has been applied
to infer distribution, and that large areas
of watersheds containing fish may not
have been observed or considered. We
also recognize there have been many
instances in which previously
unobserved areas are found to be
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Nevertheless, we believe the extensive
data compiled by agency biologists,
which was not available when we
completed the 2000 designations,
represents the best scientific
information currently available
regarding the geographical area
occupied by the species. Moreover, the
CHARTs had an opportunity to interact
with the state fish biologists with the
California Department of Fish and Game
(CDFG) to confirm the accuracy of the
data. We also believe the approach we
have taken in this designation better
conforms to the regulatory direction to
use ‘‘specific limits’’ for the designation.

The approach we used in 2000 used
subbasin boundaries to delineate
‘‘specific areas,’’ which arguably met the
requirement to use ‘‘specific limits,’’ but
we believe using latitude-longitude
endpoints in stream reaches, as we have
done here, better adheres to the letter
and spirit of our regulations.

With respect to our approach of
limiting the designation to the occupied
stream itself, not extending the
designation into the riparian zone or
upstream areas, we acknowledge that
our regulations contemplate situations
in which areas that are not literally
occupiable may nevertheless be
designated. Paragraph (d) of 50 CFR
424.12 gives as an example a situation
in which areas upland of a pond or lake
may be designated if it is determined
that ‘‘the upland areas were essential to
the conservation of an aquatic species
located in the ponds and lakes.’’ For this
designation, however, given the vast
amount of habitat under consideration
and the short statutory time frames in
which to complete the designation, we
could not determine ‘‘specific limits’’
that would allow us to map with
accuracy what part of the riparian zone
or upstream area could be considered to
contain PCEs. As an alternative, we
considered the approach we used in
2000, which was to designate riparian
areas that provide function, but
concluded that approach may not have
been entirely consistent with the
regulatory requirement to use ‘‘specific
limits.’’ We believe limiting the
designation to streams will not
compromise the ability of an ESA
section 7 consultation to provide for
conservation of the species. Section 7
requires Federal agencies to ensure their
actions are not likely to destroy or
adversely modify critical habitat.

Actions occurring in the riparian zone,
upstream areas, or upland areas all have
the potential to destroy or adversely
modify the critical habitat in the stream.

Although these areas are not themselves
designated, Federal agencies must
nevertheless meet their section 7
obligations if they are taking actions in
these areas that ‘‘may affect’’ the
designated critical habitat in the stream.

Even though these designations are
restricted to the stream itself, we will
continue to be concerned about the
same activities we have addressed in
past consultations.

Comment 7: Several commenters
believed we incorrectly applied the
definition of ‘‘specific areas outside the
geographical area occupied by the
species.’’ In the view of some, we failed
our duty under the ESA by not making
a determination that we had identified
as critical habitat enough areas
(occupied and unoccupied) to support
conservation. In the view of others, it
was this failure that led to one of the
errors described in the previous
comment— the failure to designate all
‘‘accessible stream reaches.’’ Many
commenters expressed concern about
statements made in the press that the
change from ‘‘all areas accessible’’ to
areas documented as occupied led to a
90-percent reduction in critical habitat.

Other commenters supported the
approach taken in this designation, to
identify specific areas occupied by the
species and not broadly designate ‘‘all
areas accessible,’’ some commenting
that this was a more rigorous assessment
and more in keeping with the ESA.

Response: Section 3(5)(A)(I) of the
ESA requires us to identify specific
areas within the geographical area
occupied by the species that contain
physical or biological features that may
require special management
considerations or protection. Section
3(5)(A)(ii) requires that specific areas
outside the geographical area occupied
by the species only fall within the
definition of critical habitat if the
Secretary determines that the area is
essential for conservation. Our
regulations further provide that we will
designate unoccupied areas ‘‘only when
a designation limited to [the species’]
present range would be inadequate to
ensure the conservation of the species
(50 CFR 424.12(e)).’’ The ESA requires
the Secretary to designate critical
habitat at the time of listing. If critical
habitat is not then determinable, the
Secretary may extend the period by 1
year, ‘‘but not later than the close of
such additional year the Secretary must
publish a final regulation, based on such
data as may be available at that time,
designating, to the maximum extent
prudent, such habitat.’’
At the present time, we do not have
information allowing us to determine
that the specific areas within the
geographical area occupied by the
species are inadequate for conservation,
such that unoccupied areas are essential
for conservation. We anticipate revising
our critical habitat designations in the
future as additional information
becomes available through recovery
planning processes.

Comment 8: Some commenters
questioned the adequacy of our
identification of PCEs, in particular the
lack of specificity.

Response: To determine the physical
or biological features essential to
conservation of these ESUs, we first
considered their complex life cycle. As
described in the ANPR and proposed
rule, ‘‘[t]his complex life cycle gives rise
to complex habitat needs, particularly
during the freshwater phase (see review
by Spence et al., 1996).’’ We considered
these habitat needs in light of our
regulations regarding criteria for
designating critical habitat. Those
criteria state that the requirements
essential to species’ conservation
include such things as ‘‘space * * *
[f]ood, water, air, light, minerals, or
other nutritional or physiological
requirements * * * cover or shelter. ’’
They further state that we are to focus
on the ‘‘primary constituent elements’’
such as ‘‘spawning sites, feeding sites,
* * * water quality or quantity, ’’ etc. In
the ANPR and proposed rule we
identified the features of the habitat that
are essential for the species to complete
each life stage and are therefore
essential to its conservation. We
described the features in terms of sites
(spawning, rearing, migration) that
contain certain elements.

Comment 9: In the proposed rule we
requested comments on the extent to
which specific areas may require special
management considerations or
protection in light of existing
management plans. Several commenters
stated that lands covered by habitat
conservation plans or other management
or regulatory schemes do not require
special management considerations or
protection. Others commented that even
where management plans are present,
there still may be ‘‘methods or
procedures useful’’ for protecting the
habitat features.

Response: The statutory definition
and our regulations (50 CFR 424.02 and
424.12) require that specific areas
within the geographical area occupied
by the species must contain ‘‘physical or
biological features’’ that are ‘‘essential to
the conservation of the species,’’ and
that ‘‘may require special management
considerations or protection.’’ As
described in the proposed rule, and
documented in the reports supporting it,
we first identified the physical or
biological features essential to
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regulations at 50 CFR 424.12(b)(5) as
‘‘primary constituent elements’’ or
PCEs). We next determined the ‘‘specific
areas’’ in which those PCEs are found
based on the occupied stream reaches
within a CALWATER HSA watershed.

We used this watershed-scale approach
to delineating specific areas because it
is relevant to the spatial distribution of
salmon and steelhead, whose innate
homing behavior brings them back to
spawn in the watersheds where they
were born (Washington Department of
Fisheries et al., 1992; Kostow, 1995;
McElhany et al., 2000). We then
considered whether the PCEs in each
specific area (watershed) ‘‘may require
special management considerations or
protection.’’
We recognize there are many ways in
which ‘‘specific areas’’ may be
delineated, depending upon the biology
of the species, the features of its habitat
and other considerations. In addressing
these comments, we considered whether
to change the approach described in our
proposed rule and instead delineate
specific areas based on ownership. The
myriad ownerships and state and local
regulatory regimes present in any
watershed, as well as the timing issues
discussed previously, made such an
approach impractical for this
rulemaking, as noted in section I,
‘‘Background and Previous Federal
Action,’’ above. While there are other
equally valid methods for identifying
areas as critical habitat, we believe that
the watershed scale is an appropriate
scale for identifying specific areas for
salmon and steelhead, and for then
determining whether the PCEs in these
areas may require special management
considerations or protections. We will
continue to study this issue and
alternative approaches in future
rulemakings designating critical habitat.

Comment 10: One commenter stated
that we could not designate any
unoccupied areas if we had excluded
any occupied areas, relying on the
regulatory provision cited in a previous
comment and response.

Response: The comment assumes that
all habitat areas are equivalent and
exchangeable, which they are not. An
area may be essential for conservation
because it was historically the most
productive spawning area for an ESU
and unless access to it is restored, the
ESU will not fully recover to the point
that the protections of the ESA are no
longer necessary. This area will be
essential regardless of whether some
other specific area has been excluded.

Comment 11: Several commenters
supported the designation of
unoccupied areas above dams and some
believed that by not designating these
areas we will make it more difficult to
achieve fish passage in the future. They
further noted that excluding these
presently blocked areas now may
promote habitat degradation that will
hinder conservation efforts should
passage be provided in the future.

Several commenters identified areas
above specified dams as being essential
for conservation.

Response: At the present time, we do
not have information allowing us to
determine that the specific areas within
the geographical area occupied by the
species are inadequate for conservation
nor that currently unoccupied areas
above dams are essential for
conservation. The Southwest Region is
actively involved in a multi-year, large-
scale recovery planning effort in
California that involves scientific teams
(called technical recovery teams or
TRTs) which are in the process of
identifying ESU population structure,
population viability criteria, and ESU
level biological viability or recovery
goals. These recovery planning efforts
are developing information which will
inform our decisions about whether
unoccupied habitat will be needed to
facilitate conservation beyond what is
currently occupied by the ESUs
addressed in this rulemaking. Until
these efforts are more fully developed,
we cannot make the specific
determinations required under the ESA
to designate critical habitat in
‘‘unoccupied’’ areas. We use our
authorities under the ESA and other
statutes to advocate for salmon passage
above impassible dams where there is
evidence such passage would promote
conservation. This is not the same,
however, as making the determinations
required by the statute and our
regulations to support designation.

Comment 12: In the proposed rule we
requested comments regarding the use
of professional judgment as a basis for
identifying areas occupied by the
species. Some commenters indicated
that it was appropriate to accept the
professional judgment of fish biologists
who are most familiar with fish habitat
within a watershed. Others believed that
limiting the definition of occupied
stream reaches to only those where fish
presence has been observed and
documented is overly narrow and fails
to consider a number of conditions that
affect species distribution, including
natural population fluctuations and
habitat alterations that affect
accessibility or condition (e.g., de-
watering stream reaches). These
commenters also argued that defining
occupied reaches should be based on a
broad time scale that takes into account
metapopulation processes such as local
extinction and recolonization, adding
along with other commenters that many
streams have not been adequately
surveyed and species may frequent
stream reaches but not actually be
observed by a biologist at the time that
critical habitat is being assessed.

Response: We relied on distribution
and habitat use information developed
by our agency fishery biologists from a
wide range of sources, including the
CDFG, to determine which specific
stream reaches were occupied by each
ESU. The data sets we developed
defined occupancy based on field
observations from stream surveys, and,
in some cases, professional judgment
based on the expert opinion of area
biologists. In all cases the exercise of
professional judgment included the
consideration of habitat suitability for
the particular species. We received
several comments on our proposed rule
regarding the accuracy of the
distribution data in specific locations,
and, where we could confirm that the
information provided by the commenter
was accurate, we accepted it as the best
available information and adjusted our
designation. We view designation of
critical habitat as an ongoing process
and expect to adjust the designations as
necessary as new information or
improved methods become available.

Comment 13: Some commenters
addressed the CHART process although
few recommended changes to the
CHARTs’ ratings of watershed
conservation values. Some supported
the process used, in particular the
recognition that not all habitats have the
same conservation value for an ESU and
that this in turn allows for a more
meaningful exclusion assessment under
section 4(b)(2) of the ESA. One
commenter contended that the CHART
assessments were compromised by
restricting them to consider only the
stream channel rather than upslope
areas as well.

Response: The CHART process was an
important part of our analytical
framework in that it allowed us to
improve our analysis of the best
available scientific data and to provide
watershed-specific conservation ratings
useful for the Secretary’s exercise of
discretion in balancing whether the
benefits of exclusion outweigh the
benefits of designation under section
4(b)(2) of the ESA. We do not believe
that designating only the stream channel
compromised the CHARTs’ ability to
assess watershed conservation values.

As noted in the CHART report, the
CHARTs employed a scoring system to
assess (among other area characteristics)
the quality, quantity, and distribution of
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have defined for these ESUs are found
within occupied stream channels, and
therefore, it is appropriate to focus our
assessment on those areas. The CHART
scoring did include a factor related to
the potential improvement of existing
PCEs and thereby allowed the CHARTs
to consider the ability of a watershed to
contribute PCEs via natural processes
such as recruitment of large wood and
substrate, flow regulation, floodplain
connectivity, etc. We recognize that
salmon habitat is dynamic and that our
present understanding of areas
important for conservation will likely
change as recovery planning sheds light
on areas that can and should be
protected and restored. We intend to
actively update these designations as
needed so that they reflect the best
available scientific data and
understanding.

Comment 14: Some commenters
questioned whether the CHARTs
considered the work of the various
Technical Recovery Teams (TRTs) and
suggested that the CHART assessments
should be reviewed by the TRTs.

Response: Where information had
been developed by the TRTs, the
CHARTs did consider that information
in their assessments. The CHARTs also
solicited input and comments from the
TRTs on their distribution and habitat
use information as well as their
watershed conservation assessments.

We believe, therefore, that we have been
able to integrate much of the TRT
findings to date into our final critical
habitat designations. Given their
priorities (i.e., providing crucial
recovery planning criteria and guidance)
and the time constraints under which
we needed to complete the critical
habitat assessments, TRT members
could not participate on the CHARTs
directly. We recognize that recovery
planning is an ongoing process and that
new information from the TRTs and
recovery planning stakeholders may
result in changes to our critical habitat
assessments in the future.

Economics Methodology
Comment 15: Several commenters
stated that the economic analysis
overestimated the actual costs of critical
habitat designation by including costs
that should be attributed to the baseline.

For example, commenters asserted that
costs associated with listing and
application of the jeopardy requirement
should not be included in the analysis.

Commenters also asserted that costs that
would have occurred under Pacific
Fisheries (PACFISH) or the Northwest
Forest Plan should be excluded from the
analysis. One commenter also stated
that costs associated with existing
critical habitat designations for salmon
or other endangered species should be
considered baseline impacts.

Response: Regarding costs associated
with listing and application of ESA
section 7’s jeopardy requirement, the
economic analysis follows the direction
of the New Mexico Cattlegrowers
decision, in which the Court of Appeals
for the Tenth Circuit called for ‘‘a full
analysis of all of the economic impacts
of a critical habitat designation,
regardless of whether those impacts are
attributable coextensively to other
causes (New Mexico Cattle Growers’
Association v. U.S. Fish and Wildlife
Service, 248 F.3d 1277, 10th Cir. 2001).

Consistent with this decision, the
economic analysis includes incremental
impacts, those that are solely
attributable to critical habitat
designation and would not occur
without the designation, as well as
coextensive impacts, or those that are
associated with habitat-modifying
actions covered by both the jeopardy
and adverse modification standards
under section 7 of the ESA. We do not
think this overestimate of costs creates
a bias in our 4(b)(2) balancing, however,
for two reasons. On the ‘‘benefit of
designation’’ side of the balance, we
consider the benefit of designation to be
the entire benefit that results from
application of section 7’s requirements
regarding adverse modification of
critical habitat, regardless of whether
application of the jeopardy requirement
would result in the same impact.

Moreover, the cost-effectiveness
approach we have adopted allows us to
consider relative benefits of designation
or exclusion and prioritize for exclusion
areas with a relatively low conservation
value and a relatively high economic
cost. With such an approach it is most
important that we are confident our
analysis has accurately captured the
relative economic impacts, and we
believe it has.

In many cases, the protections
afforded by PACFISH, the Northwest
Forest Plan and other regulations are
intertwined with those of ESA section 7.

In cases where the specific regulation or
initiative driving the salmon and
steelhead conservation efforts is
uncertain, we considered it as an ESA
section 7 impact and examined the
record of consultations with the affected
agencies and based our analysis on the
habitat protection measures routinely
incorporated into the consultations. The
economic analysis therefore assumes
that the impacts of these types of habitat
protection measures are attributable to
the implementation of section 7. In
these instances, to the extent that
conservation burdens on economic
activity are not, in fact, resulting from
section 7 consultation, the economic
analysis may overstate costs of the
designation. We took this possibility
into account in conducting the 4(b)(2)
balancing of benefits. Conservation
efforts clearly engendered by other
regulations are included in the
regulatory baseline. For example,
Federal lands management activities in
the Northwest Forest Plan planning area
are affected by PACFISH. As a result,
some projects that would have affected
salmon habitat will not be proposed,
and therefore will not be subject to
section 7 consultation. These changes in
projects are considered baseline and are
not included as a cost of section 7 in the
economic analysis.

Commenters correctly note that there
are designations currently in place
protecting critical habitat for salmon
(e.g., Sacramento River winter run
chinook salmon, Central California
Coastal coho salmon). We
acknowledged this in our proposed rule,
but also noted that the presence of those
existing designations weighs equally on
both sides of the 4(b)(2) balance— that
is, the existing designations also could
be considered as part of the baseline for
determining the benefit of designation
for the ESUs addressed in the present
rule. This concern is also addressed by
the cost-effectiveness approach we have
adopted since it relies on relative
benefits of designation and exclusion
rather than absolute benefits.

Comment 16: One commenter and one
peer reviewer noted that the economic
analysis assigns costs to all activities
within the geographic boundary of the
HSA watersheds, though not all
activities in this area will lead to an
ESA section 7 consultation or are
equally likely to have economic
impacts. By doing this, the agency
assumed that if the stream reaches
currently occupied by salmon were
designated as critical habitat, then
activities throughout the watershed
would be affected, whether or not they
are adjacent to critical habitat stream
reaches.

Response: It is possible for activities
not directly adjacent to the proposed
stream reaches to affect salmon and
steelhead or their habitat (for example,
by increasing risk of erosion or
decreased water quality), and, therefore,
such activities may be subject to
consultation and modification. Thus, we
believe the HSA watersheds represent a
reasonable proxy for the potential
boundary of consultation activities. In
some cases the revised economic
analysis applies costs less broadly by
refining the geographic scale for certain
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pesticide impacts has been refined and
are now calculated based on occupied
stream mile estimates within a
watershed.

Comment 17: One commenter
asserted that the draft report inflates its
cost estimates by repeatedly choosing
the high-end of a range of costs, while
a peer reviewer suggested using the
mid-range as a representative cost
estimate was problematic.

Response: In determining likely costs
associated with modifications to
activities that would benefit salmon and
steelhead, the economic analysis
identifies a range of costs using
available data from, for example, agency
budgets, documented conversations
with stakeholders, and published
literature. The full range of costs of
these activities is presented in the
economic analysis, and individual
watersheds are generally ranked in
terms of cost impact by the midpoint of
the cost range, as opposed to the high
end. While we recognize that a formal
sample of projects costs based on the
consultation record or other sources is
a better approach in theory, available
data did not allow such an approach. In
gathering the cost information that was
available, we avoided using outliers and
sought to construct a typical range of
costs.

Comment 18: Some commenters
asserted that the economic analysis fails
to account for regional economic
interactions between watersheds. One
commenter stated that this would result
in an overstatement of the costs, while
other commenters state that this would
underestimate the costs. One peer
reviewer suggested using regional
economic models to address these
interactions.

Response: We acknowledge that
modifications to economic activities
within one watershed may affect
economic activities in other watersheds.

The economic analysis discusses the
potential for regional economic impacts
associated with each of the potentially
affected activities. Impacts are assigned
to particular areas (watersheds) based
on where they are generated as opposed
to felt. That is, if the designation of a
watershed causes impacts in multiple
nearby watersheds, and exclusion of the
impact-causing watershed would
remove those economic impacts from
the region, the economic analysis
appropriately assigns the total cost
impact to the impact-causing watershed.

This method of assigning impacts is
most useful to us in deciding the
relative cost-effectiveness of excluding
particular areas from critical habitat
designation. As we acknowledge in
NMFS (NMFS 2005b), the economic
analysis does not explicitly analyze the
potential for these regional interactions
to introduce cumulative economic
impacts. Data are not available to
support such an effort, nor would the
results necessarily be applicable at the
level of a particular watershed. If these
impacts in fact exist, our results are
likely to be biased downward, in that
we have likely underestimated the costs
of critical habitat designation at the
level of the ESU. At the level of a
watershed, however, the potential error
is smaller. For this reason, we do not
believe the lack of a regional modeling
framework introduces a significant bias
into the results for particular
watersheds.

Comment 19: Several commenters
stated that the economic analysis
underestimates the actual costs of the
rule by excluding several categories of
costs from the estimates. One
commenter stated that the New Mexico
Cattlegrowers decision specifically
requires a full analysis of all impacts,
including those resulting from the
species’ listing. One comment argued
that assessment of impacts stemming
from activities occurring outside the
designated area should be included,
including indirect and regional impacts.

Another commenter stated that the
analysis should consider direct,
indirect, and induced economic impacts
including: changes in property values,
property takings, water rights impacts,
business activity and potential
economic growth, commercial values,
county and state tax base, public works
project impacts, disproportionate
economic burdens on society sections,
impacts to custom and culture, impacts
to other endangered species,
environmental impacts to other types of
wildlife, and any other relevant impact.

Response: As noted in a previous
response, the Court in the New Mexico
Cattlegrowers decision called for ‘‘a full
analysis of all of the economic impacts
of a critical habitat designation,
regardless of whether those impacts are
attributable coextensively to other
causes.’’ (emphasis added) The
economic analysis conducted for this
rule evaluated direct costs associated
with the designation of critical habitat
and includes: (1) Direct coextensive
impacts, or those that are associated
with habitat-modifying actions covered
by both the jeopardy (listing) and
adverse modification (critical habitat)
standards; and (2) direct incremental
impacts, or those that are solely
attributable to critical habitat
designation.

We acknowledge that designation of
critical habitat may also trigger
economic impacts outside of the direct
effects of ESA section 7 or outside of the
watersheds subject to the economic
analysis. For example, state or local
environmental laws may contain
provisions that are triggered if a state- or
locally regulated activity occurs in
Federally-designated critical habitat.

Another possibility is that critical
habitat designation could have ‘‘stigma’’
effects, or impacts on the economic
value of private land not attributable to
any direct restrictions on the use of the
land. Our economic analysis did not
reveal significant economic impacts
from stigma effects for the designation
of salmon and steelhead. Further,
significant impacts of critical habitat on
an industry may lead to broader regional
economic impacts. All of these types of
impacts are considered in the analysis,
although it was not possible to estimate
quantitative impacts in every case. We
took these considerations into account
in balancing benefits under section
4(b)(2).

We acknowledge that designation of
critical habitat may also trigger impacts
on customs, culture, or other wildlife
species. We concluded that data were
not presently available that would allow
us to quantify these impacts, at the scale
of this designation, for the economic
analysis. Our analysis was further
circumscribed by the short time frames
available, and our primary focus on
conservation benefits to the listed
species that are the subject of this
designation. We took this limitation into
account in the balancing of benefits
under section 4(b)(2).

Comment 20: Several commenters
indicated that the economic analysis
should include a discussion of the
impact of changes in flow regimes on
water users, specifically in the timing of
water flow through dams and water
withdrawal or diversion constraints.

Among potentially affected water users
are crop irrigators and other agricultural
water users, regulators and consumers
of public water supply in the region,
and in particular, water users of the
Central Valley Project and State Water
Project, among others. Similarly, several
commenters stated that the analysis
should include an analysis of impacts of
changes to operations that result in
increased spill at hydropower dams on
the cost of power in the region. These
commenters are concerned that
excluding these costs underestimates
total economic impact. One commenter
pointed out that low flow years and
drought years are not considered in the
economic impacts, and consideration of
varying water year types is especially
relevant to estimating impacts of
instream flow augmentation. Another
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economically feasible alternate sources
of water may not be available to water
users, and thus economic costs could be
large. One commenter estimated the
potential loss of agricultural income that
would result from a reduction in water
availability to a specific region. One
commenter stated that if requisite
minimum instream flows are developed
that correspond to the proposed critical
habitat designation, they could be
analyzed using the CALVIN model
developed by the University of
California.

Response: While economic impacts
would clearly result from future changes
to water supply availability, the amount
of water within particular areas that
may be diverted from activities such as
irrigation, flood control, municipal
water supply, and hydropower, for the
purposes of Pacific salmon and
steelhead conservation, and thus the
requisite timing and volume of
minimum instream flows, has not been
determined for most facilities. Many
biological and hydrologic factors are
considered in determining flow
requirements through dams for Pacific
salmon and steelhead, and the impacts
of altering flow regimes to meet these
requirements are highly site-specific.

For example, the impact of increasing
spill at a hydropower project depends
on the level and timing of the spill, and
on the method by which any lost power
generation is replaced. Similarly, at a
water supply facility, the impact of
increasing spill depends on the size and
timing of the spill, but also depends on
the specific water rights held at the
facility and by downstream users,
including the priority, volume, timing,
and particular use of those water rights.

The extent to which any future
changes in flow may be attributable to
the designation of critical habitat, as
opposed to the listing or other wildlife-
related regulations, is also unclear. The
interrelated nature of dam and diversion
projects with hydrology across river
systems makes it very difficult to
attribute flow-related impacts for
salmon and steelhead conservation to
specific watersheds. As a result, a
comprehensive prospective analysis of
the economic impacts of potential
restrictions on water use by these
activities would be highly speculative.

We acknowledge this limitation of the
economic analysis. However, the
revised economic analysis does include
an expanded discussion of what is
known about the potential impacts of
changes in flow regimes on hydropower
production and prices and water
diversions on irrigation based on
historical examples.

Comment 21: Some commenters
expressed concern that the economic
analysis does not address cumulative
costs of multiple layers of regulation on
economic activities.

Response: Our economic analysis
estimates costs associated with
conducting ESA section 7 consultation
to ensure Federal agency actions are not
likely to destroy or adversely modify
critical habitat. We did not have
information available at the scale of this
designation to determine the marginal
cost or benefit of such a consultation, in
addition to any state or local review that
may occur, nor did the commenters
provide data that would allow us to
make such a determination.

Comment 22: One commenter stated
that the economic analysis fails to factor
in subsidies given to industries such as
livestock grazing, hydropower
operations, and irrigation activities,
which minimizes true costs to the
public. Another commenter further
stated that the analysis does not
distinguish between several
countervailing cost elements, including
‘‘socialized costs’’ (costs Congress has
decided that the public should bear,
such as costs to Federal activities),
actual costs to private entities, incentive
costs, subsidies, and offsetting costs. As
a result, for Federal programs, the
analysis miscategorizes activities that
benefit a small but favored sector of
society, but that cause costs to the larger
society. The analysis assumes that costs
to these activities are costs to society in
general.

Response: The analysis attempts to
measure true social costs associated
with implementing the final critical
habitat rule. To accomplish this, the
analysis uses the measurement of the
direct costs associated with meeting the
regulatory burden imposed by the rule
as the best available proxy for the
measurement of true social costs. We
agree that it is relevant to consider
appropriate countervailing or net cost
impacts, where possible, in determining
the benefit of exclusion. Where data are
available, our analysis attempts to
capture the net economic impact (i.e.,
the increased regulatory burden less any
discernable offsetting market gains), of
ESA section 7 efforts imposed on
regulated entities and the regional
economy. For example, in the economic
analysis, the revised impact estimates
for pesticide use restrictions explicitly
net out agriculture subsidy payments in
the estimation of lost agricultural
profits.

Comment 23: Several commenters
indicated that the designation of critical
habitat will impose an administrative
burden on affected parties, including
private, Federal, state and local entities.

One commenter stated that the increase
in paperwork as a result of re-initiating
consultation on potential impacts to
critical habitat for projects that have
already been through ESA section 7
consultation is a major concern.

Response: We do consider that all
activities may be subject to future
consultation, regardless of whether past
consultation occurred on these
activities. Designation of critical habitat
may result in reinitiating consultation
on activities that were subject to
previous consultation to ensure that the
adverse modification requirement is
addressed in addition to the jeopardy
requirement. The economic analysis
estimates the level of administrative
effort associated with ESA section 7
consultations, whether those
consultations concern a new activity or
readdress the impacts of a previously
reviewed activity. The revised economic
analysis includes a refined estimate of
administrative costs associated with
consultations on West Coast salmon and
steelhead.

Comment 24: Some commenters
stated that the economic analysis
estimates impacts using a constant per-
capita income basis and that doing so is
likely to underestimate the impacts on
rural communities.

Response: Per-capita income is not
explicitly factored into the watershed
specific quantitative impact estimates in
the economic analysis. The commenter
is highlighting that equal costs in any
given watersheds will not likely result
in the same relative economic burden to
residents of those watersheds. This is
because the ratio of costs of the
designation to income may vary across
watersheds. In lower income areas, the
cost of implementing modifications to
projects for the benefit of salmon and
steelhead may be more burdensome
relative to higher income areas. We did
consider the extent to which costs of
designation within a watershed are
likely to be borne locally. In addition,
information on distribution of wealth
across the designation is provided
contextually in the economic analysis
and this information is weighed in
considering the benefits of exclusion of
particular areas.

Comment 25: One commenter stated
that the analysis does not attempt to
explain or quantify with any level of
precision what additional costs are
required by ESA section 7 consultation
for design and/or operational
modifications or mitigation measures.

Response: The economic analysis
focused on the impacts of section 7
consultation on economic activities by
first identifying the types of activities
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7 consultation. The analysis then
estimated the regulatory burden placed
upon these activities as a result of
section 7 consultation. The burden
estimate is based upon a review of past
modifications to those activities
undertaken for the benefit of salmon
and steelhead, interviews with NMFS’
consulting biologists, affected parties,
and available documents and literature.

This research on the potential costs of
these modifications then determined a
typical range of costs for potential
project modifications that may be
associated with section 7 consultation
in the future.

Comment 26: One commenter stated
that the economic analysis relied
extensively on the agency’s consultation
history for economic impact estimates.

Similarly, another commenter asserted
that past costs are not good indicators of
future costs due to streamlining of the
consultation process (for example, for
fire management) on Federal lands. One
commenter stated that the economic
analysis assumes that the population
growth and economy of the impact areas
are stagnant. The analysis should
evaluate population and economic
growth on a regional, State, and county
basis, and evaluate the degree to which
the listing of salmon and steelhead may
have contributed to any population and
economic decline.

Response: The economic analysis
does not solely rely on the consultation
history to estimate economic impacts.

The analysis includes estimated costs
associated with compliance with
salmon conservation activities produced
by regulated entities, including private,
state, and Federal agencies, as well as
published literature, where information
was available. The economic analysis
does not uniformly assume that all
activities and associated consultations
will occur at the same rate in future
years as in past years. Instead, the
economic analysis projects the most
likely level of future activity using a
broad spectrum of planning documents,
geographical data, and interviews with
planners and other stakeholders.

Further, the economic analysis does not
quantify retrospective impacts of
salmon and steelhead conservation
because the focus of the analysis is on
future impacts associated with the
critical habitat areas identified in this
rulemaking. It should also be noted that
consultations conducted by NMFS do
not include cost estimates of
implementing recommended actions.

The analysis also presents detailed
information on the current estimated
population and population density
within each of the particular areas in the
proposed critical habitat designation.

Comment 27: One comment letter
questioned whether there exists an
acceptable or unacceptable level of
negative economic impact to
communities, landowners, or local
governments and whether the
government must consider the impacts
that their decisions will have on local
economies.

Response: The economic analysis
provides information regarding the
impact to potentially affected economic
activities of the proposed critical habitat
designation. This information was used
to identify the particular areas according
to their relative cost burden. We then
weighed this information against the
relative conservation value of the
particular areas considering the
economic and any other relevant impact
of designating critical habitat. Further,
concurrent with the economic analysis,
we prepared an analysis of potential
impacts to small entities, including
small businesses and government. This
analysis identified the number of small
businesses and governments likely
impacted by the proposed critical
habitat using county-specific data on the
ratio of small businesses to total
businesses in each potentially affected
economic sector.

Comment 28: Some commenters
stated that the economic analysis used
data that are overly broad or made
assumptions across geographic areas
that are too far reaching. For example,
one commenter stated that the economic
analysis assumes that the necessity and
scope of modifications will be constant
across ESUs for most activities, when in
reality, these are likely to vary
substantially.

Response: For each activity, the
economic analysis examines the
probability of consultation and the
likelihood of modification. A variety of
activity-specific information sources
were used to forecast the frequency and
geographic distribution of potentially
affected activities. That is, frequency of
consultation was not always assumed to
be uniform across ESUs. The economic
analysis does not, however, assume that
costs increase in areas of overlapping
ESUs. In other words, the presence of
critical habitat for multiple ESUs is not
expected to generate a greater impact
than if the particular area is critical
habitat for only a single ESU.

Examination of the consultation history
did not reveal differences in requests for
modification to projects (reasonable and
prudent alternatives) among the ESUs.

We recognize, however, that the broad
scope and scale of the analysis required
us to make simplifying assumptions in
order to complete the designations in a
timely fashion.

Comment 29: Several commenters and
a peer reviewer expressed concern that
the economic analysis failed to consider
the full range of economic benefits of
salmon habitat conservation, and
therefore, provided a distorted picture
of the economic consequences of
designating versus excluding habitat
areas. Similarly, commenters expressed
concerns that the economic impact of
not designating particular areas to
fishers and investors in recovery efforts
should be considered in the economic
analysis. Commenters specifically cited
the lack of consideration in the
economic analysis of the potential
benefits of critical habitat designation
on: (1) Decreased risk of extinction; (2)
benefits to other aquatic and riparian
species; (3) water quality; (4) flood
control values; (5) recreation; (6)
commercial fishing; (7) fish harvest for
tribal uses; and (8) increased public
education.

Response: As described in the
economic analysis and ESA section
4(b)(2) report, we did not have
information available at the scale of this
designation that would allow us to
quantify the benefits of designation in
terms of increased fisheries. Such an
estimate would have required us to
determine the additional number of fish
likely to be produced as a result of the
designation, and would have required
us to determine how to allocate the
economic benefit from those additional
fish to a particular watershed. Instead,
we considered the ‘‘benefits of
designation’’ in terms of conservation
value ratings for each particular area
(see ‘‘Methods and Criteria Used to
Designate Critical Habitat’’ section). We
also lacked information to quantify and
include in the economic analysis the
economic benefit that might result from
such things as improved water quality
or flood control, or improved condition
of other species.

Moreover, we did not have
information at the scale of this
designation that would allow us to
consider the relative ranking of these
types of benefits on the ‘‘benefits of
designation’’ side of the 4(b)(2) balance.

Our primary focus was to determine,
consider, and balance the benefits of
designating these areas to conservation
of the listed species. Given the
uncertainties involved in quantifying or
even ranking these ancillary types of
benefits, we were concerned that their
consideration would interject an
element of uncertainty into our primary
task.

Comment 30: One commenter
asserted that the economic analysis did
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agriculture in California and how many
communities rely upon the agriculture
industry to survive. A number of
commenters further stated that the
analysis should address impacts on
agriculture of a judicially imposed
moratorium on pesticide use near
salmon-bearing streams. The inability to
use pesticides on farmland could result
directly in decreases in crop yields.

More specifically, the commenters
believed that the economic analysis
underestimates the impacts of the
Washington Toxics litigation
(Washington Toxics Coalition, et al. v.

EPA, No. 04–35138) limiting pesticide
use around salmon-supporting waters
and suggests that the economic analysis
should analyze the impact of this
injunction.

Response: Regarding impacts to
agricultural communities, we
considered impacts to small businesses
in our Regulatory Flexibility Act
analysis. We did not otherwise
separately consider economic impacts to
various economically or culturally
defined communities in the economic
analysis or in the ESA section 4(b)(2)
balancing process. For example, we also
did not separately consider impacts of
designation or exclusion on coastal
fishing communities. As with the
consideration of ancillary
unquantifiable benefits of designation
described above, we were concerned
that including a consideration of these
ancillary benefits of exclusion would
inject an unacceptable level of
uncertainty into our analysis.

We agree that the draft economic
analysis did not adequately consider the
impact of pesticide restrictions on the
agricultural industry. The revised
economic analysis therefore includes
refined estimates of potential lost profits
associated with reduced crop yields as
a result of implementing pesticide
restrictions across the critical habitat
designation. The analysis assumes that
the agricultural net revenue generated
by land within certain distances of
salmon-supporting waters would be
completely lost. That is, the analysis
assumes that no changes in behavior are
undertaken to mitigate the impact of
pesticide restrictions. This assumption
may lead to overestimated impacts of
restricting pesticide use. On the other
hand, the analysis may underestimate
the impact of pesticide restrictions by
assuming that farmers outside the
designated areas (e.g., upstream) will
not be restricted in their activities.

Comment 31: Several commenters
stated that impacts associated with
changes in the operations of the
hydropower projects should be
included, including impacts from
projects such as Englebright Dam,
Oroville Dam, and Santa Felicia Dam.

Response: The historical record shows
evidence that modifications to
hydropower projects in consideration of
listed salmon and steelhead can affect
the level of hydropower generation and
generating capacity, thus affecting
power prices. Flow regimes for purposes
of salmon and steelhead conservation
have been implemented at various
projects associated with a number of
regulations, including the listing of
salmon and steelhead. As mentioned
previously, however, the level of
increased flow or spill over the dams
within particular areas that may be
requested associated with critical
habitat for all hydropower projects is
uncertain at this time, and a prospective
analysis of the impacts of such efforts
would be highly speculative. Many
biological and hydrologic factors are
considered in determining flow
requirements through dams for salmon
and steelhead, and the impacts of
altering flow regimes to meet these
requirements are highly site-specific.

For example, the impact of increasing
spill at a hydropower project depends
on the level and timing of the spill, and
on the method by which any lost power
generation is replaced.

The extent to which any future
changes in flow may be attributable to
the designation of critical habitat, as
opposed to the listing or other wildlife-
related regulations, is also unclear. The
interrelated nature of dam and diversion
projects with hydrology across river
systems makes it very difficult to
attribute flow-related impacts from
salmon and steelhead conservation to
specific watersheds. We acknowledge
this limitation of the economic analysis.

The revised economic analysis includes
an expanded discussion of the potential
impacts of changes in flow regimes on
hydropower operations.

Comment 32: One commenter stated
that the Initial Regulatory Flexibility
Analysis needs more citations regarding
the applied sources of information.

Response: We have provided
appropriate citations in the Final
Regulatory Flexibility Analysis.

Comment 33: One commenter stated
that the Small Business Regulatory
Enforcement Fairness Act (SBREFA)
analysis assumes that most compliance
costs would be borne by third parties
when, in fact, a significant portion of all
ESA section 7 related costs are not
borne by those entities, but rather are
borne by the Bureau of Reclamation
(BOR).

Response: In many cases it is
uncertain who will bear the costs of
modification. The potentially burdened
parties associated with modifications to
activities are identified in the economic
analysis. The BOR may, in fact, bear the
cost of modifications to BOR dams,
Federal land management activities, and
so forth. Where information is not
available on a per-project basis
regarding the potentially affected party,
the analysis takes a conservative
approach, assuming that impacts may be
borne by private entities, a portion of
which may be small entities.

Weighing the Benefits of Designation
Versus Exclusion
Comment 34: Several commenters
supported the use of a cost-effectiveness
framework, one commenter explicitly
objected to it, and some commenters
had concerns with the way we applied
it. One commenter asserted that the
economic analysis ‘‘would have been
very different’’ if we had evaluated the
absolute conservation value of an area
‘‘with or without [section] 7
requirements,’’ rather than relative
conservation values. One commenter
asserted that ‘‘[w]ithout any target level
of conservation for designation, the
framework does not guarantee that areas
necessary for conservation will be
designated.’’ Another commenter
asserted that weighing quantitative
economic costs against qualitative
habitat ratings prejudiced the ESA
section 4(b)(2) analysis in favor of
excluding areas lacking a high
conservation value. Several commenters
suggested that the 4(b)(2) process could
benefit from more explanation regarding
how the process was applied.

Response: We believe the comparison
of benefits provides the Secretary useful
information as to the benefits of any
particular inclusion or exclusion. The
Secretary has discretion in balancing the
statutory factors, including what weight
to give those factors. The ESA provides
the Secretary with the discretion to
exclude areas 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.

Subsequent to publication of this rule,
we will undertake a review of the
methods and criteria applied in this
rule. If the Secretary determines the
critical habitat designations should be
modified as a result of that review, we
will propose a revised designation with
appropriate opportunity for notice and
comment.

Comment 35: In the proposed rule we
identified a number of potential
exclusions that we were considering but
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including Federal lands subject to the
Northwest Forest Plan and PACFISH.

Many commenters opposed these
potential exclusions. Some disagreed
that designation of critical habitat is
unnecessary or of diminished
importance in light of existing
management constraints, contending
that such a position is contrary to the
ESA’s conservation purpose and our
implementing regulations and citing
recent court decisions bearing on this
issue. Several commenters indicated
that because these ESUs are still listed,
existing regulatory and voluntary
mechanisms are inadequate and also
noted that we concluded as such in our
2000 designations. Some commenters
believed that the assumptions
underlying such exclusions were
unjustifiable and potentially disastrous
for salmon recovery. Some commenters
noted that the lack of specificity
regarding which areas might be
excluded as well as the lack of clear
exclusion standards seriously hindered
the public’s ability to comment on the
proposed exclusions. In contrast, several
commenters supported the potential
exclusions mentioned in the proposed
rule. Some commenters contended that
designating critical habitat on these
Federal lands was duplicative with
existing ESA section 7 consultation
processes, inefficient (e.g., citing costs
of re-initiating consultation), and offers
no additional conservation benefit to the
listed ESUs. One commenter believed
that excluding Federal lands would be
consistent with our exclusion of lands
subject to Integrated Natural Resource
Management Plans (INRMPs) since
existing land management plans provide
similar protections. This commenter
also cited the USFWS’’ exclusion of
Federal lands for bull trout (69 FR
59996; October 6, 2004) and provided
information supporting the belief that
we should make the same determination
for salmon and steelhead ESUs.

Response: Section 4(b)(2) provides the
Secretary with discretion to exclude
areas from the designation of critical
habitat if the Secretary determines that
the benefits of exclusion outweigh the
benefits of designation, and the
Secretary finds that exclusion of the
area will not result in extinction of the
species. In the proposed rule, and the
reports supporting it, we explained the
policies that guided us and provided
supporting analysis for a number of
proposed exclusions. We also noted a
number of additional potential
exclusions, explaining that we were
considering them because the Secretary
of the Interior had recently made similar
exclusions in designating critical habitat
for the bull trout: ‘‘On October 6, 2004,
the FWS issued a final rule designating
critical habitat for the bull trout * * *.

The Secretary of the Interior found that
a number of conservation measures
designed to protect salmon and
steelhead on Federal, state, tribal and
private lands would also have
significant beneficial impacts to bull
trout. Therefore, the Secretary of the
Interior determined that the benefits of
excluding those areas exceeded the
benefits of including those areas as
critical habitat. The Secretary of
Commerce has reviewed the bull trout
rule and has recognized the merits of
the approach taken by the Secretary of
the Interior to these emerging issues.’’
We acknowledged, in the proposed rule,
however, that we lacked the analysis to
propose these potential exclusions for
West Coast salmon and steelhead: At
this time, the Secretary of Commerce
still ‘‘has not had an opportunity to
fully evaluate all of the potential
exclusions, the geographical extent of
such exclusions, or compare the benefits
of these exclusions to the benefits of
inclusion.’’ Our regulations require that
our proposed and final rules provide the
data upon which the rule is based (50
CFR 424.16; 50 CFR 424.18).

Recently, in response to the
Department of Interior’s request, a
District Court has remanded the bull
trout rule to the Department of Interior
for further rulemaking. Alliance for the
Wild Rockies and Friends of the Wild
Swan v. David Allen and United States
Fish and Wildlife (CV 04–1812). In
seeking the remand the Department of
Interior noted that it intends to
reconsider the 4(b)(2) exclusions in the
proposed rule and that it recently issued
a Federal Register notice seeking
comment on those exclusions (70 FR
29998; May 25, 2005). In response, we
received extensive comment from those
supporting and opposing these potential
exclusions. Based on our review of the
information received and the short time
between the close of the comment
period and the court-ordered deadline
for completing this rulemaking, we are
unable to conclude at this time that the
benefits of excluding these areas
outweigh the benefits of designation,
with the exception of areas covered by
two habitat conservation plans,
discussed below.

Nevertheless, we will continue to
study this issue and alternative
approaches in future rulemakings
designating critical habitat. In
particular, we intend to analyze the
planning and management framework
for each of the ownership categories
proposed for consideration for
exclusion. In each case, we envision
that the planning and management
framework would be evaluated against a
set of criteria, which could include at
least some or all of the following:

1. Whether the land manager has
specific written policies that create a
commitment to protection or
appropriate management of the physical
or biological features essential to long-
term conservation of ESA-listed salmon
and steelhead.

2. Whether the land manager has
geographically specific goals for
protection or appropriate management
of the physical or biological features
essential to long-term conservation of
ESA-listed salmon and steelhead.

3. Whether the land manager has
guidance for land management activities
designed to achieve goals for protection
or appropriate management of the
physical or biological features essential
to long-term conservation of ESA-listed
salmon and steelhead.

4. Whether the land manager has an
effective monitoring system to evaluate
progress toward goals for protection or
appropriate management of the physical
or biological features essential to long-
term conservation of ESA-listed salmon
and steelhead.

5. Whether the land manager has a
management framework that will adjust
ongoing management to respond to
monitoring results and/or external
review and validation of progress
toward goals for protection or
appropriate management of the physical
or biological features essential to long-
term conservation of ESA-listed salmon
and steelhead.

6. Whether the land manager has
effective arrangements in place for
periodic and timely communications
with NOAA on the effectiveness of the
planning and management framework in
reaching mutually agreed goals for
protection or appropriate management
of the physical or biological features
essential to long-term conservation of
ESA-listed salmon and steelhead.

Comment 36: In the proposed rule we
requested comments on the potential
exclusion of lands subject to
conservation commitments by state and
private landowners reflected in habitat
conservation plans (HCPs) approved by
NMFS. Some commenters (none
however with NMFS-approved HCPs)
concurred with the potential exclusion
of lands covered by an HCP, believing
that we would not likely secure
additional conservation benefits by
designating these areas as critical
habitat. Some commenters
acknowledged the potential educational
benefits of designation but asserted that
designating HCP lands could have an
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existing and future cooperative
relationships. These commenters
additionally noted that HCPs have
already undergone extensive
environmental review and ESA section
7 consultation and been found to not
likely jeopardize the species.

Several commenters disagreed with
the potential exclusion of lands covered
by HCPs, believing it would be contrary
to the ESA, and some cited recent
litigation bearing on this issue (e.g.,
Center for Biological Diversity v. Norton,
240 F. Supp. 2d 1090 (D. Ariz. 2003);
Gifford Pinchot Task Force v. FWS, 378
F. 3d 1059 (9th Cir. 2004). One
commenter did not support such
exclusions because of the belief that
there are no guarantees the plans will
remain in place when, for example,
ownership changes or landowners
change their minds. Some commenters
believed that we failed to adequately
describe the benefits of designation as
they pertain to these potential
exclusions.

Response: The analysis required for
these types of exclusions, as with all
others, first requires careful
consideration of the benefits of
designation versus the benefits of
exclusion to determine whether benefits
of exclusion outweigh benefits of
designation. The benefit of designating
critical habitat on non-Federal areas
covered by an approved HCP or another
type of conservation agreement depends
upon the type and extent of Federal
activities expected to occur in that area
in the future. Activities may be initiated
by the landowner, such as when the
landowner seeks a permit for bank
stabilization, water withdrawal, or
dredging. Where the area is covered by
an HCP, the activity for which a permit
is sought may or may not be covered by
the HCP. For example, an HCP covering
forestry activities may include
provisions governing construction of
roads, but may not include provisions
governing bank stabilization or pesticide
application. The activity may be
initiated by the Federal agency without
any landowner involvement, such as
when a Federal agency is involved in
building a road or bridge, dredging a
navigation channel, or applying a
pesticide on Federal land upstream of
the HCP-covered area. In analyzing the
benefits of designation for these HCP-
covered areas, we must consider which
Federal activities are covered by the
HCP and which are not. Where activities
are covered by the HCP, we must
consider whether an ESA section 7
consultation on that particular activity
would result in beneficial changes to the
proposed action over and above what is
achieved under the HCP. Designation
may also benefit the species by notifying
the landowner and the public of the
importance of an area to species’
conservation.

On the other side of the balance are
the benefits of exclusion. We believe the
primary benefits of exclusion are related
to the conservation benefits to the
species that come from conservation
agreements on non-Federal land. If a
landowner considers exclusion from
critical habitat as a benefit, exclusion
may enhance the partnership between
NMFS and the landowner and thus
enhance the implementation of the HCP
or other agreement. If other landowners
also consider exclusion from critical
habitat as a benefit, our willingness to
exclude such areas may provide an
incentive for them to seek conservation
agreements with us. Improved
implementation of existing
partnerships, and the creation of new
conservation partnerships, would
ultimately benefit conservation of the
species.

Conservation agreements with non-
Federal landowners enhance species
conservation by extending species’
protections beyond those available
through other ESA provisions. ESA
section 7 applies only to Federal agency
actions. Section 7 consultation
requirements protect listed salmon and
steelhead on Federal lands and
whenever a Federal permit or funding is
involved in non-Federal actions, but its
reach is limited. The vast majority of
activities occurring in riparian and
upland areas on non-Federal lands do
not require a Federal permit or funding
and are not addressed by section 7. In
contrast, instream activities generally do
require a Federal permit, and therefore,
are subject to the requirements of
section 7. The ability of the ESA to
induce landowners to adopt
conservation measures lies instead in
the take prohibitions of sections 9(a)
and 4(d). Many landowners have chosen
to put conservation plans in place to
avoid any uncertainty regarding
whether their actions constitute ‘take’.

Beginning in 1994, when we released
our draft HCP Handbook for public
review and comment, we have pursued
policies that provide incentives for non-
Federal landowners to enter into
cooperative partnerships, based on a
view that we can achieve greater
species’ conservation on non-Federal
land through HCPs than we can through
coercive methods (61 FR 63854;
December 2, 1996). Before we approve
an HCP and grant an incidental take
permit, we must conduct a rigorous
analysis under ESA section 10. The HCP
must specify the impact likely to result
from take, what steps the applicant will
take to minimize and mitigate such
impacts, and the funding available to
implement such steps. The applicant
must have considered alternative
actions and explained why other
alternatives are not being pursued, and
we may require additional actions
necessary or appropriate for the
purposes of the plan. Before an HCP can
be finalized, we must conclude that any
take associated with implementing the
plan will be incidental, that the impact
of such take will be minimized and
mitigated, that the plan is adequately
funded, and that the take will not
appreciably reduce the likelihood of the
survival and recovery of the species in
the wild. The HCP undergoes
environmental analysis under the
National Environmental Policy Act
(NEPA), and we conduct a section 7
consultation with ourselves to ensure
granting the permit is not likely to
jeopardize the continued existence of
the species or destroy or adversely
modify designated critical habitat.

Based on comments received, we
could not conclude that all landowners
view designation of critical habitat as
imposing a burden on the land, and
exclusion from designation as removing
that burden and thereby strengthening
the ongoing relationship. Where an HCP
partner affirmatively requests
designation, exclusion is likely to harm
rather than benefit the relationship. We
anticipate further rulemaking in the
near future to refine these designations,
for example, in response to
developments in recovery planning. In
order to aide in future revisions, we will
affirmatively request information from
those with approved HCPs regarding the
effect of designation on our ongoing
partnership. We did not consider
pending HCPs for exclusion, both
because we do not want to prejudge the
outcome of the ongoing HCP process,
and because we expect to have future
opportunities to refine the designation
and consider whether exclusion will
outweigh the benefit of designation in a
particular case.

Comment 37: We received a request
from the Sonoma County Grape Growers
Association and the United
Winegrowers for Sonoma County to
consider a determination to exclude all
occupied areas in Sonoma County from
critical habitat for California coastal
chinook and central California coast O.
mykiss based on the conservation value
of a suite of cooperative and voluntary
conservation efforts being implemented
and developed by local government and
the private sector, primarily the
viticultural industry, in Sonoma
County.

VerDate Aug<18>2005 17:17 Sep 01, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\02SER2.SGM 02SER2 52501 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Rules and Regulations Response: These efforts may currently
provide a significant conservation
benefit to the listed species, and offer
the promise of even greater benefits in
the future. The measures include the
Vineyard Erosion and Sedimentation
Control Ordinance adopted by the
Sonoma County Board of Supervisors;
the Fish Friendly Farming Program; the
North Sonoma County Agricultural
Reuse Project; the planned Russian
River Property Owners Association
Fisheries Management Plan; the
Integrated Pest Management/Organic
Grape Production initiatives; and the
Code of Sustainable Winegrowing
Practices. The submission can be found
electronically at http://
swr.nmfs.noaa.gov/.

The request suggests the benefits of
excluding the area covered by these
measures from critical habitat may
outweigh the benefits of including it as
critical habitat because it provides
conservation measures on private land
in an area dominated by private
ownership, which is generally beyond
the reach of ESA section 7, and may
therefore provide a greater benefit for
the species than a critical habitat
designation. Private landowners would
be encouraged to participate in these
voluntary programs if their lands were
excluded from critical habitat.

We received this request on July 21,
2005, so we did not have time to
evaluate this request as part of this
rulemaking process, and could not defer
the rule to accommodate a review
because we are under court order to
submit this final rule to the Federal
Register by August 15, 2005. However,
we are committed to working with local
governments and private landowners in
cooperative conservation efforts under
Executive Order (E.O.) 13352 (August
26, 2004). As stated above, we anticipate
further rulemaking in the near future to
refine these designations. Accordingly,
we expect to complete an evaluation of
the conservation benefits of the
measures described by the Sonoma
County Grape Growers Association and
the United Wine growers for Sonoma
County by the end of 2005. If we find
that in light of the conservation value of
these measures, the benefit of excluding
these private lands outweighs the
benefits of including them as critical
habitat, we will act promptly to propose
a revision to this designation.

Comment 38: Some commenters
addressed the exclusion of Indian
Lands. All of the commenting Tribes
and the Bureau of Indian Affairs (BIA)
reiterated their support for the
exclusions.

Response: This final rule maintains
the exclusion of Indian lands for the
reasons described in the ‘‘Exclusions
Based on Impacts to Tribes’’ section
below.

Comment 39: A few commenters
addressed our assessment of INRMPs
and the exclusion of Department of
Defense (DOD) areas due to impacts on
national security. DOD agencies
supported the exclusion of military
lands based on both the development of
INRMPs as well as national security
impacts, while other commenters did
not support such exclusions. One
commenter argued that we should not
use the general ‘‘national security’’
language in ESA section 4(b)(2) to
remove our obligation to comply with
the demand for adequate INRMPs.

Response: Pursuant to section
4(a)(3)(B)(i) of the ESA (16 U.S.C.
1533(a)(3)(B)(i)), we contacted the DOD,
and, after evaluating the relevant
INRMPs, we concluded that, as
implemented, they provide conservation
benefits greater than or equal to what
would be expected to result from an
ESA section 7 consultation. We also
determined that two of these INRMP
sites (Camp Pendleton and Vandenberg
Air Force Base) should be excluded
from designation due to potential
impacts on national security. See the
‘‘Military Lands’’ and the ‘‘Exclusions
Based on National Security Impacts’’
sections below.

Effects of Designating Critical Habitat
Comment 40: Some commenters
noted that the success of watershed
management and restoration efforts is
dependent on critical habitat
protections, noting that designations
assist local recovery planning efforts
and provide leverage in obtaining
funding and cooperation. Several
commenters expressed concern that
excluding areas from designation,
particularly areas identified in existing
recovery efforts as important for salmon,
would undermine ongoing regional and
local recovery planning efforts by
signaling that these areas are not
important for recovery.

Response: We acknowledge that
critical habitat designations can serve an
important educational role and that they
can assist local recovery planning and
implementation efforts. The ESA
requires that we use the best available
scientific data to evaluate which areas
warrant designation and that we balance
the benefits of designation against the
benefits of excluding particular areas. In
so doing, it is possible that some areas
subject to ongoing restoration activities
may have been excluded from
designation. However, such exclusions
do not indicate that the areas are
unimportant to salmon or steelhead, but
instead reflects the practical result of
following the ESA’s balancing of
benefits as required under section
4(b)(2). We are hopeful that the
information gathered and the analyses
conducted to support these final
designations (such as species
distribution, watershed conservation
value, and economic impacts from
section 7 consultations) will be viewed
as valuable resources for local recovery
planners. As recovery planning
proceeds and we determine that
additional or different areas warrant
designation or exclusion, we can and
will make needed revisions using the
same rulemaking process.

Comment 41: Several commenters
asked for clarification regarding how we
will make adverse modification
determinations in ESA consultations.

One commenter also suggested that a
finding of adverse modification would
need to be contingent on the habitat
conditions existing at the time of
designation. They noted that, where
such conditions are the result of past
and present management actions, and
where those existing conditions would
not be altered through proposed future
actions, it is their belief that
consultation on such future actions
would result in a ‘‘no adverse
modification’’ determination.

Response: In Gifford Pinchot Task
Force v. United States Fish and Wildlife
Service, 378 F. 3d 1059 (9th Cir. 2004),
the Court of Appeals for the Ninth
Circuit Court ruled that the USFWS’
regulatory definition of ‘‘destruction or
adverse modification’’ of critical habitat,
which is also NMFS’ regulatory
definition (50 CFR 402.02), is contrary
to law. Pending issuance of a new
regulatory definition, we are relying on
the statutory standard, which relates
critical habitat to conservation of the
species. The related point raised by one
commenter regarding the relevance of
habitat conditions at the time of listing
when making an adverse modification
determination cannot be answered in a
generic way and would depend on the
facts associated with a specific
consultation.

Comment 42: Some commenters
objected to the potential land use
regulations that critical habitat
designation would prompt, citing
specific cases where local agencies have
imposed buffers and/or other
restrictions to protect ESA-listed fish.

Response: The ESA requires that we
designate critical habitat and these
designations follow that statutory
mandate and have been completed on a
schedule established under a Consent
Decree. Whether and if local
jurisdictions will implement their
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is a separate matter and is not under our
control.

Comment 43: Several commenters
believed that we fail to (or inadequately)
address required determinations related
to a number of laws, regulations, and
executive orders, including the NEPA,
Regulatory Flexibility Act, and Data
Quality Act.

Response: Our response to each of
these issues are described below, and
we also direct the reader to the
‘‘Required Determinations’’ section to
review our response to each of the
determinations relevant to this
rulemaking.
(a) NEPA— We believe that in Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir.
1995), cert. denied, 116 S. Ct. 698 (1996)
the court correctly interpreted the
relationship between NEPA and critical
habitat designation under the ESA. The
Court of Appeals for the Ninth Circuit
rejected the suggestion that
irreconcilable statutory conflict or
duplicative statutory procedures are the
only exceptions to application of NEPA
to Federal actions. The court held that
the legislative history of the ESA
demonstrated that Congress intended to
displace NEPA procedures with
carefully crafted procedures specific to
critical habitat designation. Further, the
Douglas County Court held that the
critical habitat mandate of the ESA
conflicts with NEPA in that, although
the Secretary may exclude areas from
critical habitat designation if such
exclusion would be more beneficial
than harmful, the Secretary has no
discretion to exclude areas from
designation if such exclusion would
result in extinction. The court noted
that the ESA also conflicts with NEPA’s
demand for impact analysis, in that the
ESA dictates that the Secretary ‘‘shall’’
designate critical habitat for listed
species based upon an evaluation of
economic and other ‘‘relevant’’ impacts,
which the court interpreted as narrower
than NEPA’s directive. Finally, the
court, based upon a review of precedent
from several circuits including the Fifth
Circuit, held that an environmental
impact statement is not required for
actions that do not change the physical
environment.
(b) Regulatory Flexibility Act— We
have prepared a final regulatory
flexibility analysis that estimates the
number of regulated small entities
potentially affected by this rulemaking
and the estimated coextensive costs of
section 7 consultation incurred by small
entities. As described in the analysis,
we considered various alternatives for
designating critical habitat for these
seven ESUs. After considering these
alternatives in the context of the ESA
section 4(b)(2) process of weighing the
benefits of exclusion against the benefits
of designation, we determined that our
current approach to designation
provides an appropriate balance of
conservation and economic mitigation
and that excluding the areas identified
in this rulemaking would not result in
extinction of the ESUs. Our final
regulatory flexibility analysis estimates
how much small entities will save in
compliance costs due to the exclusions
made in these final designations.
(c) Data Quality Act— One commenter
asked if we had complied with the Data
Quality Act. We have reviewed this rule
for compliance with that Act and found
that it complies with NOAA and OMB
guidance.
(d) Negotiated Rulemaking Act (5
U.S.C. 561 et seq.)— One commenter
asserted that we should have engaged in
negotiated rulemaking to issue this final
critical habitat designation. This is an
interesting idea and could be pursued in
future critical habitat rulemaking.

However, because a court approved
consent decree governs the time frame
for completion of this final rule, we do
not feel that there was ample time to
comply with the numerous processes
defined in the Negotiated Rulemaking
Act for this rulemaking. For example,
the Negotiated Rulemaking Act provides
that if the agency decides to use this
tool it must follow Federal Advisory
Committee Act procedures for selection
of a committee, conduct of committee
activities, as well as specific
documentation processes (See
Negotiated Rulemaking Source Book,
1990).
(e) Intergovernmental Cooperation
Act— One commenter asserted that we
did not properly and fully coordinate
with local governments and did not
comply with the Intergovernmental
Cooperation Act. First, the commenter
did not provide a statutory citation for
the Intergovernmental Cooperation Act.

Although we are reluctant to speculate
on that Act, we believe the comment is
in reference to the Intergovernmental
Cooperative Act, Public Law 90–577, 82
Stat. 1098 (1968) as amended by Public
Law 97–258 (1982) (codified at 31
U.S.C. 6501–08 and 40 U.S.C. 531–35
(1988)). This Act addresses Federal
grants and development assistance.

Accordingly, we do not find it relevant
to the mandatory designation of critical
habitat under the ESA. To the extent
that the commenter’s concern is
assuring that state, local and regional
viewpoints be solicited during the
designation process, the ESA and our
implementing regulations provides for
public outreach (16 U.S.C. 1533
(b)(3)(A); 50 CFR 424.16). As noted in
response to Comment 1, we actively
sought input from all sectors beginning
with an ANPR (68 FR 55926; September
29, 2003) and culminating in four public
hearings to facilitate comment from the
interested public in response to the
proposed rule. In addition we met with
several local governments and made
ourselves available to meet with others.
(f) National Historic Preservation Act
(NHPA)— One commenter asserted that
we failed to comply with the NHPA (16
U.S.C. 470–470x–6). The NHPA does
not apply to this designation. The
NHPA applies to ‘‘undertakings.’’
‘‘Undertakings’’ are defined under the
implementing regulations as ‘‘a project,
activity or program funded in whole or
in part under the direct or indirect
jurisdiction of a Federal agency,
including those carried out by or on
behalf of a Federal agency; those carried
out with Federal financial assistance;
those requiring a Federal permit, license
or approval; and those subject to State
or local regulation administered
pursuant to a delegation or approval by
a Federal agency.’’ (emphasis added) (36
CFR 800.16). The mandatory
designation of specific areas pursuant to
the criteria defined in the ESA does not
constitute an ‘‘undertaking’’ under the
NHPA.
(g) Farmland Protection Policy Act
(FPPA)— One commenter asserted that
we failed to comply with FPPA (7
U.S.C. 4201). The FFPA does not apply
to this designation. The FPPA applies to
Federal programs. Federal programs
under the Act are defined as ‘‘those
activities or responsibilities of a
department, agency, independent
commission, or other unit of the Federal
Government that involve: (A)
Undertaking, financing, or assisting
construction or improvement projects;
or (B) acquiring, managing or disposing
of Federal lands and facilities. The
designation of critical habitat does not
constitute a ‘‘Federal program’’ under
the FFPA.
(h) Unfunded Mandates Reform Act—
One commenter asserted that we failed
to properly conduct and provide an
unfunded mandates analysis because,
the commenter contended, we based our
decision solely on public awareness of
the salmon listings. This is not the case.

In the proposed rule, we found that the
designation of critical habitat is not
subject to the Unfunded Mandates
Reform Act (2 U.S.C. 1501 et seq.) and
explained in detail why this is the case.
(i) Federalism— One commenter
asserted that we failed to properly
comply with E.O. 13132. In the
proposed rule, we found that the
designation of critical habitat does not
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defined under that order, and, therefore,
a Federalism assessment is not required.

We find nothing in the commenter’s
assertions to warrant changing our
original determination.
(j) Takings— One commenter disputed
our conclusion in the proposed rule that
the designations would not result in a
taking. The commenter offered no
information or analysis that would
provide a basis for a different
conclusion.
(k) Civil Justice Reform— One
commenter asserted that we failed to
properly conduct and provide a Civil
Justice Reform analysis pursuant to E.O.
12988, the Department of Commerce has
determined that this final rule does not
unduly burden the judicial system and
meets the requirements of sections 3(a)
and 3(b)(2) of the E.O. We are
designating critical habitat in
accordance with the provisions of the
ESA. This final rule uses standard
property descriptions and identifies the
PCEs within the designated areas to
assist the public in understanding the
habitat needs of the 12 salmon and
steelhead ESUs.

ESU-Specific Issues
ESU Specific Comments— California
Coastal Chinook Salmon
Comment 44: One private timberland
owner commented that the freshwater
distribution of Chinook salmon that we
developed and used for their land
ownership had errors in occupancy and/
or upstream distribution limits. The
landowner provided us with
distribution information they had
developed for their ownership so that
the distribution information and
resulting final critical habitat
designation for this ESU would be more
accurate.

Response: Following a review of this
new information by the CHART, we
incorporated it into our database and
made changes in the mapped
distribution of this ESU for the
commenter’s land ownership. The new
information changed the distribution of
Chinook in the following streams and
Calwater HSAs: Maple Creek (110810),
Little River (110820), and the Mad River
(110920 and 110930). Overall, these
changes in distribution were minor and
increased the total occupied stream
miles for this ESU by only 0.6 mi (1.0
km). Based on a reassessment by the
CHART, these changes in distribution
did not change the occupancy status
(i.e. occupied to unoccupied or vice
versa) or conservation value of any of
the affected HSAs, and therefore, the
economic analysis did not require
revision.

Comment 45: A few commenters
questioned why there was no proposed
critical habitat connecting those
portions of the mainstem Eel River in
HSA 111142 with the high value habitat
areas in the upper tributaries of the
middle Fork Eel River in HSA 111172.

Response: In the proposed rule, HSA
watershed 111171 was proposed for
exclusion based on high economic cost
(high benefit of exclusion) and relatively
low benefit of designation. However,
because the upper tributaries of the
middle Fork Eel in HSA 111172 were
rated as having high conservation value,
the mainstem middle Fork Eel in HSA
111171 should have been designated as
a migratory corridor to provide
connectivity between critical habitat
farther downstream in the mainstem Eel
River and the high value tributaries that
were proposed for designation. This was
an error that has been corrected in the
final rule. The final designation
excludes HSA 111171 as was the case in
the proposed rule, but designates the
mainstem of the middle Fork Eel River,
which serves as a migratory corridor for
the high value upstream tributaries, as
critical habitat.

Comment 46: A commenter
questioned the conservation ratings and
proposed designations for five of the
seven occupied HSAs comprising the
Mendocino Coast Subbasin (HU 1113).

The commenter specifically questioned
the historic and current presence of
Chinook in these watersheds and
thought any Chinook that did occur in
these watersheds were likely strays from
other watersheds.

Response: The CHART considered
these comments and reviewed its
original assessments. It concluded that
its original conservation value ratings
were appropriate based on the ranking
criteria that were used and the
information that was available, and that
these areas met the definition of critical
habitat under the ESA. Accordingly, the
conservation value ratings for these
HSA watersheds were not changed.

Based on the ESA section 4(b)(2)
analysis conducted for the final rule,
however, HSA watershed 111350
(Navarro River) in this Subbasin was
excluded from the final designation for
this ESU.

Comment 47: One commenter
questioned the proposed designation of
critical habitat for this ESU in the
Austin Creek HSA (111412) and Mark
West HSA (111423), based on the view
that neither watershed supported a
historically self sustaining run and that
Chinook in both streams were most
likely strays from other watersheds.

Response: The CHART considered
this comment and reviewed its original
assessments. It concluded that its
original conservation value ratings were
appropriate based on the ranking
criteria that were used and the
information that was available, and that
these areas met the definition of critical
habitat under the ESA. Accordingly, the
conservation value ratings for these
HSA watersheds were not changed.

Based on the ESA section 4(b)(2)
analysis conducted for the final rule,
however, HSA 111423 (Mark West
Creek) in this Subbasin was excluded
from the final designation for this ESU.

Comment 48: A property owners’
association on the Russian River that
controls land adjacent to portions of the
Russian River in HSAs 111425 and
111424 requested that its lands be
excluded from the final designations for
California Coastal Chinook (and Central
California Coast steelhead) because it
has developed a Watershed
Management Plan to manage its lands
and because the benefits of excluding its
lands outweigh the benefits of including
them in the designation.

Response: We are very supportive of
the development and implementation of
this plan and have in fact participated
in its development. However, we do not
think this plan qualifies as the basis for
excluding these lands from the final
designation for either ESU at present,
since it is not completed. Once the plan
is completed, we will evaluate it to
determine whether the benefits of
excluding the habitat areas in question
will outweigh the benefits of
designation. In making this assessment
we will evaluate the plan in the same
manner as we would evaluate an
approved habitat conservation plan (see
Impacts to Landowners with
Contractual Commitments to
Conservation section). If we determine
that the benefits of exclusion outweigh
the benefits of designation, then we will
initiate the appropriate rulemaking to
refine the critical habitat designations.

ESU Specific Comments— Northern
California Steelhead
Comment 49: Two private timberland
owners commented that the freshwater
distribution of steelhead that we
developed and used for their land
ownership had errors in occupancy and/
or upstream distribution limits. Both
landowners provided us with
distribution information they had
developed for their ownership so that
the fish distribution information we
used for the final critical habitat
designation for this ESU would be more
accurate.

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new information by the CHART, we
incorporated it into our database and
made changes in the mapped
distribution of this ESU for the
commenters’ land ownership. The new
information from one of the landowners
changed the distribution of steelhead in
the following streams and Calwater
HSAs: Maple Creek (110810), Redwood
Creek (110720), Little River (110820),
Mad River (110920 and 110930), and
several small streams including Rocky
Gulch, Washington Gulch, Jacoby Creek,
Freshwater Creek, and Salmon Creek
(111000). Overall, these changes in
distribution were minor and increased
the total occupied stream miles for this
ESU by only 1.1 mi (1.8 km). The
changes in distribution did not affect
the occupancy or conservation value
rating for any of these HSAs. The new
information from the other landowner
changed the distribution of steelhead in
the following streams and HSAs: SF Eel
(111132, 111133), Usal Creek (111311),
Wages Creek (111312), Ten Mile River
(111313), Mill Creek, Pudding Creek
and the Noyo River (111320), Big River
(111330) and Salmon Creek (111340).

Overall, this new information decreased
the occupied stream miles for the ESU
by approximately 17 miles and affected
8 HSAs. Based on a re-assessment by the
CHART, these changes in distribution
did not change the occupancy status
(i.e. occupied to unoccupied or vice
versa) or conservation value of any of
the affected HSAs, and therefore, the
economic analysis did not require
revision.

ESU Specific Comments— Central
California Coast Steelhead
Comment 50: One commenter
requested that San Francisquito Creek
and Los Trancos Creek in HSA 220550
be excluded from the critical habitat
designation for this ESU because of the
economic impact of designation and
because neither creek requires special
management considerations. A second
commenter requested that San
Francisquito Creek not be designated
because of the regulatory burden and
because the economic impacts on water
supply were not included in the
economic analysis. The second
commenter also identified a labeling
error concerning West Union Creek.

Response: We disagree with the first
commenter and believe that these
streams do require special management
considerations. Both streams have
extensive zones of healthy riparian
vegetation and habitat and support
significant steelhead populations in the
San Francisco Bay area. These relatively
healthy habitats and populations are
unique to the San Francisco Bay area,
and therefore, the CHART believes they
require special management
considerations. The commenter has
many programs in place that benefit
both creeks, but there are also many
unresolved habitat issues that remain to
be addressed. For example, on Los
Trancos Creek a poorly designed fish
ladder needs to be replaced, and several
other fish passage issues remain. In
addition, NMFS and CDFG have
discussed the inadequate bypass flows
on Los Trancos Creek below the
commenter’s water diversion for the
past several years, but have yet to
resolve the issue. Special management
considerations are also necessary to
address ongoing and expanding impacts
of urbanization on the San Francisco
Peninsula. We considered the impacts
of designating the HSA watershed
containing these creeks in the proposed
rule and again using a revised procedure
for the final rule. Based on the ESA
section 4(b)(2) analysis used for the final
rule, we concluded that the benefits of
including this HSA watershed in the
designation (medium conservation
value to the ESU) outweighed the
benefits of excluding it from the
designation. On the basis of this
analysis, therefore, we do not think
there will be an unwarranted regulatory
burden placed on these commenters or
any other entities that may need to
obtain Federal permits and consult with
NMFS in this HSA watershed. We
acknowledge the comment that water
supply impacts were not considered in
the proposed rule or in the revised
4(b)(2) process for the final rule, but we
have addressed water supply impacts as
a general issue in greater detail in the
final economic analysis for this rule.

Comment 51: One commenter argued
that Suisun and Wooden Valley Creeks
in HSA 220722 do not provide suitable
habitat for steelhead and that
designation is not justified because
surrounding HSAs were not proposed
for designation.

Response: We disagree with the
commenter and believe that Suisun and
Wooden Valley Creeks currently
support a population of steelhead and
do provide suitable habitat for rearing,
spawning and migration (and thus, the
PCEs that support these habitat uses).

The reports cited by the commenter
include a discussion of limiting factors
in Suisun Creek, but also include
several favorable findings regarding
steelhead habitat conditions in the
watershed. These findings suggest that
there is suitable habitat for steelhead in
the watershed and that steelhead
spawned in Suisun Creek in 2000–2001.

Based on the information available,
therefore, we believe that the medium
conservation rating originally made by
the CHART for this HSA watershed is
appropriate. The revised ESA section
4(b)(2) exclusion analysis conducted for
the final rule, however, considered
section 7 opportunities within HSA
watersheds and adjusted the benefits of
inclusion in critical habitat accordingly.

In the case of this HSA, this re-
consideration resulted in a reduced
assessment of the benefits of designating
this watershed. Based on this revised
benefit of designation in the final 4(b)(2)
analysis, we have concluded that the
benefits of excluding this HSA from the
designation outweigh the benefits of
designating it. Accordingly, this HSA
watershed and the streams in question
have been excluded from the final
critical habitat designation.

Comment 52: Several commenters
raised issues concerning our proposal to
include the upper Alameda Creek
watershed (which supports resident O.
mykiss considered to be part of this
ESU; see 69 FR 33101; June 14, 2004) in
the critical habitat designation for this
ESU. Comments ranged from support for
designation of this watershed to
requests that it not be designated. Issues
were raised about the adequacy of the
economic analysis supporting the ESA
section 4(b)(2) analysis, the mapped
distribution of proposed critical habitat
in the watershed, the suitability of the
habitat in upper Alameda Creek for
steelhead, and the lack of access for
steelhead.

Response: We recognize that the
upper Alameda Creek watershed (HSA
220430) is not accessible to anadromous
steelhead; however, the CHART treated
this watershed as occupied in the
analysis supporting the proposed rule
because there are resident O. mykiss
populations in the upper watershed that
we had previously proposed for
inclusion in this ESU (69 FR 33101). In
its original analysis, the CHART
concluded that this watershed had high
conservation value to the ESU,
contained the requisite PCEs to support
the ESU, and that special management
considerations were required to protect
these PCEs. Based on this assessment
and the original 4(b)(2) analysis which
considered the benefits of including this
watershed against the benefits of
excluding it, we proposed to include it
in the designation, as well as a
migratory corridor to San Francisco Bay
through a portion of the adjacent
watershed (HSA 220420) that was
proposed for exclusion. We recently
invoked a statutory 6-month extension
on our final listing determination for
this ESU (70 FR 37219) based on
concerns raised by the USFWS, and,
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this final critical habitat rule, these
resident populations of O. mykiss will
not be included in this ESU and listed.

Because our original proposal was
premised on the upper Alameda Creek
watershed being occupied by resident
fish that were part of this ESU and a
final listing determination concerning
these populations will not be made
before December 2005, we have not
included this watershed in the final
critical habitat designation for this ESU.

A decision about whether to designate
this watershed as critical habitat for this
ESU will be made concurrently with the
final listing determination for this ESU
in December 2005.

Comment 53: One commenter
opposed inclusion of the Guadelupe
River/Los Gatos Creek watershed in the
proposed critical habitat designation for
this ESU.

Response: The watershed (HSA
220540) containing the upper portion of
Guadelupe River and Los Gatos Creek
was not included in the proposed
designation. Occupied habitat in this
watershed was excluded from the
proposed rule based on the ESA section
4(b)(2) analysis which concluded that
the economic benefits of exclusion
outweighed the biological benefits of
inclusion. The watershed unit (HSA
220550) which contains the lower
portion of the Guadelupe River,
however, was included in the proposed
designation. It is also included in the
final critical habitat designation for this
ESU because the biological benefits of
including the occupied stream habitat in
this watershed outweigh the economic
benefits of its exclusion.

Comment 54: One commenter argued
that Arroyo Corte Madera del Presidio
Stream in HSA watershed 220320
should be designated as critical habitat
for this ESU because it is occupied by
this ESU. The same commenter also
questioned the exclusion of HSA
220330 from the proposed designation.

Response: Exclusion of this stream
from proposed critical habitat in HSA
220320 was the result of a technical
mapping error in the proposed rule. The
CHART evaluated this stream for the
proposed rule and concluded it was
occupied and met the definition of
critical habitat. Accordingly, it has been
included in the final designation for this
ESU. Occupied habitat in HSA 220330
was excluded from the proposed rule
and in this final rule based on the
results of the 4(b)(2) analysis, which
indicated the economic benefits of
exclusion outweighed the biological
benefits of including these stream
reaches in the designation for this ESU.

Comment 55: One commenter argued
that occupied habitat in HSA 220330 in
the east Bay of San Francisco should be
designated as critical habitat for this
ESU.

Response: Occupied habitat
(Codornices Creek) in this HSA was
excluded from the proposed designation
because the conservation value of this
habitat was judged by the CHART to be
low (low habitat quantity and quality,
low restoration potential, no unique
attributes, and small population size),
and the economic benefits of excluding
this habitat outweighed the biological
benefits of designation. The CHART did
not receive any new information to
change its previous determination, and,
therefore, reaffirmed that it has low
conservation value and that its
exclusion would not impede the
conservation of this ESU.

Comment 56: One commenter
recommended that several additional,
but small, stream reaches in the San
Francisquito watershed, as well as an
unoccupied habitat above an impassable
dam (Searsville Dam), be designated as
critical habitat for this ESU.

Response: Based on a review of the
information provided by the
commenter, the CHART concluded that
some additional stream reaches in this
watershed should be considered
occupied, meet the definition of critical
habitat, and should be designated as
critical habitat. Because this watershed
was not excluded from the designation
as a result of the final ESA 4(b)(2)
analysis, additional stream reaches
qualifying as critical habitat have been
added to the final designation. These
include: a short reach of Corte Madera
Creek to the base of Searsville Dam,
approximately 2.5 mi (4 km) of West
Union Creek above the confluence with
Bear Creek, a short reach of Bear Gulch
Creek up to the California Water Service
Upper Diversion Dam, a small portion of
Squealer Gulch above the confluence
with West Union Creek, and a small
portion of McGarvey Gulch above the
confluence with West Union Creek.

Comment 57: One commenter
requested the exclusion of several
streams in Hydrologic Unit 3304 from
the critical habitat designation,
including Laguna Creek, Liddell Creek,
Majors Creek, Arana Gulch, San Lorenzo
River, Branciforte Creek, Newell Creek,
and Zayante Creek because the
commenter believes the benefits of
excluding these areas outweigh the
benefits of designating them. The
rationale is that: (1) The commenter is
developing an HCP that will address
these streams and a designation could
hinder its completion; and (2) a
designation would increase the
regulatory costs and burdens on the city
beyond those already in place. The
commenter also raised concerns about
the regulatory uncertainty associated
with critical habitat because of the 2004
Gifford Pinchot case.

Response: We disagree with the
commenter and continue to believe that
the benefits of including these streams
in the critical habitat designation
outweigh the benefits of excluding
them. For the proposed critical habitat
designation, the CHART evaluated the
HSA watersheds containing the streams
identified by the commenter (HSAs
330411 and 330412) and concluded that
the occupied streams in both HSAs had
high conservation value for this ESU
and that there was a need for special
management consideration or
protections. Based on this assessment
and the results of the ESA section
4(b)(2) analysis conducted for the
proposed designation, including the
consideration of potential economic
impacts, we concluded that the benefits
of designating the occupied streams in
both watersheds were higher than the
benefits of excluding them. The
commenter did not provide any new
scientific information to change our
assessment of the benefits of designating
these streams, and thus we continue to
believe they have a high biological value
to the ESU. As part of the 4(b)(2)
analysis conducted for the final rule,
however, we did reduce our assessment
of the benefit of designating occupied
habitat in these two HSA watersheds
because they both met a ‘‘low section 7
leverage’’ profile, which we believed
reduced the benefits of section 7
consultation (see discussion in Critical
Habitat Analytical Review Teams
section).

We continue to be supportive of the
commenter’s efforts to develop an HCP
and believe completion of an HCP that
meets the requirements of section 10 of
the ESA will provide substantial
benefits to steelhead and its habitat in
these streams. However, negotiations are
still ongoing, and an HCP has not been
completed. Until an HCP is completed
and an incidental take permit is issued,
the potential conservation benefits to
steelhead and its habitat are uncertain.

For this reason, we believe it is
premature to consider the potential
benefits of such a conservation plan in
the 4(b)(2) analysis for this final
designation. Whether or not the
commenter would experience an
increased regulatory burden or higher
costs with a critical habitat designation
in place is uncertain. Even without
critical habitat in place, the commenter
is likely to incur costs associated with
ESA section 7 consultations,
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to avoid take. We did consider the
economic impacts of critical habitat
designation in both the proposed and
final rules and in doing so analyzed the
full costs of section 7 implementation,
not just the costs associated with critical
habitat implementation. In approaching
the economic analysis this way, we
believe that we have likely overstated
the economic impacts of critical habitat
designation. The final 4(b)(2) analysis
for this designation considered both the
reduced benefit of including HSA
watersheds 330411 and 330412 and the
final economic impacts for these
watersheds. Based on our consideration
of this information, we concluded that
the benefits of designating the occupied
stream reaches in HSAs 330411 and
330412, including the streams of
concern to the commenter, outweighed
the benefits of excluding them from the
final designation.

ESU Specific Comments— South-Central
Coast Steelhead
Comment 58: One commenter
questioned the conservation value of the
San Benito watershed (HSA 330550)
and also argued that unoccupied habitat
areas above Uvas Creek Dam were not
essential for the conservation of this
ESU.

Response: The San Benito watershed
unit (HSA 330550) was rated as having
medium conservation value to this ESU
by the CHART based on factors used to
conduct the conservation value rating
and ranking effort. For the proposed
critical habitat ESA section 4(b)(2)
analysis, therefore, we attributed a
medium benefit of designation to this
watershed unit. For the final
designation, we conducted a revised
4(b)2 analysis that modified the
biologically based conservation value
scores if they met a ‘‘low section 7
leverage’’ profile which we believe
reduce the benefits of section 7
consultation (see discussion in Critical
Habitat Analytical Review Teams
section). In the case of HSA 330550, we
determined that there was relatively low
section 7 leverage which reduced the
benefits of section 7 consultation, and
therefore, reduced the benefit of
inclusion from medium to low. Based
on this low benefit level and
comparatively high economic costs
associated with section 7 consultations
in this watershed unit, this watershed
was considered for possible exclusion.

However, the CHART reviewed the
available biological and other
information for this watershed unit and
concluded that its exclusion would
impede the conservation of this ESU.

This determination was based on the
size of the San Benito River and its
contribution of habitat to the Pajaro
River Basin, the level of section 7
activity occurring in the watershed, and
the San Benito River’s potential
contribution to the recovery of this ESU.

Accordingly, we have included the San
Benito watershed unit HSA 330550 in
the final critical habitat designation.

In the proposed critical habitat
designation, the CHART did conclude
that the unoccupied habitat above the
Uvas Creek Dam ‘‘may’’ be essential for
conservation of this ESU. We recognize,
however, that there are several issues
related to providing fish passage over
this dam and also believe it is premature
to include this unoccupied habitat area
in the critical habitat designation until
ongoing recovery planning efforts have
progressed to the point where they
support a determination that these areas
are essential to the conservation of this
ESU.

Comment 59: One commenter
questioned whether the apparent
exclusion of a portion of the drainage
into Morro Bay was based on a
consideration of land ownership.

Response: The identification and
conservation rating of occupied habitat
that was eligible for designation used
only biological and ecological criteria,
including information regarding
presence of steelhead and habitat
condition. Land ownership was not a
consideration in the conservation rating
process nor in the section 4(b)(2)
analysis that identified areas for
exclusion based on a balancing of the
benefits of designation against the
economic costs of designation. In
reviewing the proposed critical habitat
designation maps in response to this
comment, however, we discovered a
technical mapping error in Los Osos
Creek. An upstream portion of Los Osos
Creek was proposed for designation in
HSA 331023, but the lower portion of
the creek which enters into Morro Bay
was inadvertently excluded from the
designation. We have corrected this
error in the final designation.

Comment 60: One commenter
recommended exclusion of San Luis
Obispo Creek from the designation for
this ESU based on the management
plans and existing agreements already
in place which provide protection for
the creek and steelhead. The commenter
also raised questions about the validity
of the economic impact analysis used
for the proposed critical habitat
designation process in light of costs
incurred as a result of ESA section 7
consultation on a water reuse project.

Response: The commenter and other
local agencies have undertaken
numerous efforts to conserve and
improve existing habitats within the San
Luis Obispo Creek watershed, though
some efforts were a result of regulatory
requirements to compensate for the
adverse effects of proposed actions.

However, these conservation efforts
have been confined to localized areas
and provide no reliable ability to
effectively protect existing suitable
habitat for steelhead and improve
currently degraded habitats. We have
not conducted a review to determine
whether the existing local conservation
and management efforts (e.g.,
conservation easements, creek set-back
ordinance, sewer ordinance) contain
measures that would be expected to
protect existing suitable habitat for
steelhead, and, therefore, the possible
benefits that existing management plans
may have for the conservation of
steelhead and their habitat is unknown.

We have, however, reviewed the draft
Creeks and Waterway Management Plan
(i.e., the Environmental Impact
Statement), which describes
management and protection of streams
within the San Luis Obispo Creek
watershed, and concluded that many of
the ‘‘management’’ activities (e.g., use of
rock riprap, removal of woody debris,
creation or modification of channels,
and in-channel detention
enhancements) in the plan would create
conditions unfavorable for long-term
survival and reproduction of steelhead
within the San Luis Obispo Creek
watershed and, in turn, the entire ESU.

Based on these considerations and other
information regarding activities
potentially affecting steelhead habitat in
the San Luis Obispo Creek watershed,
we disagree with the commenter and
continue to believe there is a need for
special management considerations or
protections of occupied stream habitat
in the San Luis Obispo Creek watershed.

Accordingly, the final designation for
this ESU includes all occupied stream
reaches in HSA 331024, including San
Luis Obispo Creek.

We acknowledge that the economic
analysis used in the ESA section 4(b)(2)
analysis for the proposed designation
did not address water supply and flow
modification related projects
adequately. The final economic analysis
prepared for this designation addresses
these issues more completely, though it
does not specifically address the water
reuse project. Rather than understate the
costs of critical habitat designation, we
believe that the economic analyses
prepared for the proposed and final
designations actually overestimate the
incremental economic costs associated
with critical habitat designation. In our
economic analyses, we estimated the
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for specific project types anticipated to
occur in the foreseeable future based on
information from Federal agencies and
other sources. We believe that much of
the estimated costs can be attributable to
the presence of listed fish and the
jeopardy analysis in section 7
consultation. Indeed, the costs cited by
the commenter for its water reuse
project were associated with a section 7
consultation that addressed the
presence of listed steelhead in the
watershed, not critical habitat. Although
consideration of critical habitat adverse
modification in the consultation on the
water reuse project may have resulted in
additional project changes, we do not
think they are likely to be significant.

Comment 61: Several commenters
were confused about whether West
Corral de Piedra Creek, an upstream
tributary to Pismo Creek (HSA 331026),
was included in the proposed
designation, and whether areas above a
local dam (the Righetti Dam) on this
creek were included in the designation.

Some commenters also argued that
habitat above the Righetti Dam was of
high quality for steelhead and should be
included in the critical habitat
designation. One commenter also
requested that an unnamed tributary of
West Corral de Piedra Creek be
designated, while a second commenter
requested that it not be designated.

Response: West Corral de Piedra
Creek was included in the proposed
designation and has also been included
in the final designation for this ESU.

The maps used to depict occupied
stream habitat and the proposed critical
habitat, however, did not properly label
West Corral de Piedra Creek, hence the
confusion of the commenters. We have
corrected this problem in the maps
depicting the final designation. The
designated critical habitat in West
Corral de Piedra Creek, however, does
not include habitat above the Righetti
Dam. Although the habitat appears to be
of high quality and would likely support
steelhead spawning, we are uncertain
whether adult fish can pass over the
dam. Accordingly, we treated the area
above the Rhighetti Dam as unoccupied
habitat and, since a determination that
it is essential to the conservation of the
ESU had not been made, we have not
included it in the final designation for
this ESU. In evaluating the areas of
occupancy, habitat conditions, and
conservation value of this HSA
watershed, the CHART reviewed the
available information about the
unnamed tributary to West Corral de
Piedra Creek. The CHART concluded it
was unoccupied and had poor habitat
conditions, and, since, a determination
that it is essential to the conservation of
the ESU has not been made, it has
likewise not been included in the final
designation.

Comment 62: Another commenter
argued that West Corral de Piedra Creek
is likely unoccupied by steelhead
because of an impassable barrier on
Pismo Creek downstream of West Corral
de Piedra Creek (and the Righetti Dam),
and, therefore, should not be designated
as critical habitat. The commenter also
criticized the economic analysis for not
addressing impacts on irrigation and
instream flow resulting from critical
habitat designation. Lastly, the
commenter argued that habitat area
above the Righetti Dam should not be
designated.

Response: The potential barrier in
question is an existing fish ladder on
Pismo Creek downstream of West Corral
de Piedra Creek. The extent to which
the ladder precludes adult steelhead is
unclear, but we do not think it is a
complete barrier. There is existing
information indicating the presence of
juvenile steelhead in West Corral de
Piedra Creek downstream of Righetti
Dam and above the Pismo Creek ladder
which suggests steelhead can pass the
existing fish ladder. In addition, direct
observations of the fish ladder suggest it
is capable of passing adult steelhead
even though the design is not ideal and
ladder operation may become impaired
by inorganic and organic debris. Based
on the available information, therefore,
the CHART considered West Corral de
Piedra to be occupied habitat for
steelhead up to, but not above, the
Rhigetti Dam. Accordingly, this reach of
West Corral de Piedra is included in the
final critical habitat designation for this
ESU. We acknowledge that the
economic analysis prepared for the
proposed critical habitat designation did
not adequately address economic
impacts related to changes in instream
flow or agricultural flows. The final
economic analysis made additional
efforts to address this issue, though
potential flow changes at the Righetti
Dam was not a part of that analysis. As
noted in the previous response, the
habitat area above the Righetti Dam is
not considered occupied by steelhead
though habitat conditions are
considered favorable for steelhead
spawning. For this reason, the habitat
area above Righetti Dam is not included
in the final designation of this ESU.

Comment 63: One commenter argued
that Arroyo Grande Creek should not be
included in the designation because it is
not essential for conservation, numerous
dams on the creek have altered habitat
conditions for steelhead, existing
protections are in place and thus there
is no need for special management
considerations, and previous
determinations by Federal and State
agencies have concluded that activities
at Oceano SVRA do not adversely
impact steelhead or their habitat. The
commenter cited the final draft HCP for
Arroyo Grande Creek as an existing
mechanism for managing the creek, and
suggested designation of critical habitat
was unnecessary because it would cause
confusion among stakeholders and
agencies regarding the management of
the area for steelhead. Another
commenter argued that designation of
the mouth of Arroyo Grande Creek may
impact recreational uses in that area,
and thereby result in significant
economic impacts to local governments
and businesses.

Response: The CHART determined
that Arroyo Grande Creek met the
definition of critical habitat, and was
therefore eligible for designation, based
on an extensive review of information,
including observations and information
obtained from site visits and field
studies. This information allowed the
CHART to identify the geographic areas
occupied by steelhead and confirm that
the creek contains physical and
biological features essential to
conservation. A draft HCP prepared by
the San Luis Obispo County Flood
Control and Water Conservation District
Zone 3 (District) provides information
regarding the quality and quantity of
habitats in Arroyo Grande Creek for
steelhead and discusses the abundance
of steelhead. Although this ESU has a
broad geographic distribution, there are
relatively few representative streams in
the southern portion of the ESU where
steelhead actively spawn and rear.

Arroyo Grande Creek is one of the few
streams at the southern portion of the
subject ESU where age-0 and older
juvenile steelhead occur during summer
and fall, and sexually ripe adults occur
in winter and early spring. There are
numerous streams in San Luis Obispo
County, but a disproportionate number
in the southern portion of the subject
ESU currently do not appear suitable for
steelhead owing in part to improper
land-use activities. Arroyo Grande Creek
is one of the notable exceptions. On the
basis of this information, the CHART
determined that the HSA watershed
containing Arroyo Grande Creek had
medium conservation value and that it
was essential for the conservation of the
ESU.

Based on information available to us,
the only dam which is a full barrier to
steelhead in Arroyo Grande Creek is
Lopez Dam. Its presence and operation
have certainly contributed to declines in
the quality and quantity of habitat for
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steelhead still use Arroyo Grande Creek
for spawning and rearing. More
importantly, the effects of Lopez Dam
on steelhead and its habitat in Arroyo
Grande Creek underscore the need for
special management considerations or
protections in this watershed.

The purpose of the HCP in question
is essentially to address the ‘‘take’’ of
steelhead and other federally listed
species associated with operation of
Lopez Dam, not to manage the Arroyo
Grande Creek as a whole. More
importantly, the current draft HCP does
not ensure that essential habitat
functions necessary for long-term
species survival would be attained
through the proposed conservation
program. For instance, the flow regime
proposed in the draft HCP is
conditioned upon reservoir-operation
constraints, and, therefore, is not
ecologically meaningful. The HCP
requires considerable revision before
being suitable for adoption in the
application phase, and years may pass
before it is ultimately approved and an
incidental take permit issued.

The commenter is correct that we
have determined through informal ESA
section 7 consultations with the U.S.

Army Corps of Engineers (COE) that off-
road vehicle crossings of the creek at the
mouth (a sandy tidally influenced area)
are not likely to adversely affect
steelhead. However, the decision to
include Arroyo Grande Creek in the
designation was not predicated on
whether previous activities, such as off-
road vehicle use, did or did not
adversely affect the species. Rather,
NMFS performed an extensive review
and analysis to identify those habitats
that are essential for conservation of the
species and determined that Arroyo
Grande Creek (including the creek
mouth) is one such habitat area for this
ESU. Inclusion of the creek mouth in
the critical habitat designation is
necessary because the mouth is an
essential migratory habitat linking
upstream spawning and rearing areas
with the ocean.

Based on our past consultation
experience in this area, we do not think
that designation of the Arroyo Grande
Creek, including the creek mouth, is
likely to result in restricted recreational
crossings of the creek mouth or cause
significant economic impacts to local
governments and businesses. Although
not definitive on the outcome of future
consultations, previous consultations
involving such crossings have
determined that steelhead were not
likely to be adversely affected and that
the value of the creek mouth as a
migration corridor for steelhead was not
likely to be diminished.

Comment 64: One commenter (CDFG)
recommended that the conservation
value of the HSA watersheds containing
Arroyo de la Cruz (HSA 331012) and
San Carpoforo (HSA 331011) creeks
should be high because of the quality
and quantity of steelhead habitat and
the potential risks to these resources in
the future.

Response: We agree with CDFG that
the quality of steelhead habitat is high
for both of these streams. However, the
CHART considered a range of factors in
assessing the conservation value of the
HSA watersheds containing these
streams, and on the basis of that
analysis, concluded that a medium
conservation value was appropriate for
both watersheds. Based on the available
information, we continue to believe that
these two HSA watersheds have a
medium conservation value to this ESU
relative to other HSA occupied
watersheds in the range of the ESU.

Both HSA watersheds had a relatively
low economic benefit of exclusion, and
therefore, all occupied habitat in both
watersheds, including the two streams
in question, are included in the final
critical habitat designation for this ESU.

ESU Specific Comments— Southern
California Steelhead
Comment 65: Several commenters
raised questions about whether or not
the Sisquoc River and some of its
tributaries are occupied by steelhead,
and whether there are PCEs to support
steelhead in this watershed. At least one
commenter argued that any O. mykiss in
this watershed were hatchery plants.

One commenter criticized the economic
analysis for the HSA containing the
Sisquoc River watershed, and another
was concerned that recreational fishing
in one tributary would be adversely
affected by a critical habitat designation.

Response: The CHART reconsidered
whether the Sisquoc River and its
tributaries should be considered
occupied based on the issues raised by
these commenters. Based on a
reassessment of the available
information (primarily the Stoecker and
Stoecker 2003 barrier assessment for the
Sisquoc River), the CHART concluded
that the Sisquoc River and its tributaries
(HSA 331220) should be considered
occupied, and that this watershed
contains PCEs supporting migration,
spawning and rearing habitat. We
recognize that flows in the Santa Maria
River watershed are constrained by the
operation of Twitchell Dam and that
migration opportunities into the Sisquoc
River are limited. For this reason,
steelhead access to this watershed is not
available in all years, and occupancy of
the watershed will be on a more
infrequent, rather than annual, basis.

Nevertheless, migration opportunities
do occur in wet years when high flows
breach the sand bar at the mouth of the
Santa Maria River, and steelhead can
and do migrate into the middle and
upper reaches of the Sisquoc River
watershed where over-summering/
rearing habitat and spawning habitat
occurs. Although rainbow trout may
well have been planted in some areas
historically, we are not aware of any
current planting of fish except in
Manzana Creek. Accordingly, we do not
believe the vast majority of steelhead in
the watershed are of hatchery origin. A
revised economic impact analysis was
prepared for the final critical habitat
designation. Although it may not
address all site specific potential
economic impacts within each HSA
watershed, we believe this analysis does
consider the vast majority of projected
activities which are subject to ESA
section 7 consultation in each
watershed and that it provides a
reasonable basis for conducting an ESA
section 4(b)(2) analysis. More detailed
responses to comments on the economic
analysis were presented earlier in this
final rule. Lastly, the designation of
critical habitat for this ESU is not
expected to affect recreational fishing
activities in this watershed because
such activities are not subject to section
7 of the ESA and are unlikely to affect
critical habitat. Nevertheless, such
activities do need to ensure that they do
not result in the ‘‘take’’ of listed
steelhead.

Comment 66: One commenter
questioned whether specific streams
(Santa Agueda and Alamo Pintado, both
tributaries to the lower Santa Ynez River
in HSA 331440, and Santa Monica
Creek in HSA 331534) should be
designated as critical habitat.

Response: We have re-examined the
available information supporting the
inclusion of these tributaries in the
proposed designation and concluded
that although these streams may
occasionally support steelhead, there is
not sufficient information to consider
them occupied for the purposes of this
designation process. Accordingly, these
tributaries were not considered
occupied in the final critical habitat
designation and a determination that
they were essential to the conservation
of the ESU was not made, so they have
been removed from the final critical
habitat designation and associated
maps.

Comment 67: Many commenters
responded to our request for comments
regarding the designation of unoccupied
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Casitas, Santa Felicia and Rindge Dams.

Several commenters recommended that
these areas be designated because they
are essential for the conservation of this
ESU, while several other commenters
were opposed to designating these
unoccupied habitats. Some commenters
were confused or misunderstood that
we were only requesting information
and thought we had proposed to
designate these areas as critical habitat.

Response: As part of the proposed
rule development process, the CHART
was asked to identify unoccupied areas
above dams within the range of this ESU
that ‘‘may’’ be essential for its
conservation. Based on its assessment,
the CHART identified the unoccupied
habitat found above the five dams listed
above. The proposed rule did not
include these unoccupied areas in the
proposed designation for this ESU, but
rather solicited public comment on our
determination that these unoccupied
areas ‘‘may’’ be essential for
conservation of this ESU. As stated
elsewhere in this rule, we believe that
it is premature to designate such areas
at this time, and that any designation of
unoccupied areas above dams or in
other areas must await the completion
of technical recovery planning efforts
that are currently underway. Our
expectation is that the technical
recovery planning process will provide
the scientific foundation to support the
inclusion of unoccupied habitat areas in
any critical habitat designation. Once
the technical recovery planning is
completed, we intend to revisit the
designation of unoccupied habitat and
will use information provided by
commenters to inform any subsequent
proposal.

Comment 68: A large number of
commenters were opposed to the
inclusion of any portion of Rincon
Creek in the critical habitat designation.

They argued that steelhead did not
occupy the stream, the habitat was
unsuitable, and the economic impacts of
designation would be significant. Some
commenters were confused and thought
that Rincon Creek upstream from the
Highway 101 culvert had been
proposed.

Response: The proposed designation
of Rincon Creek only included that
portion of the creek that is seaward of
the Highway 101 culvert. The culvert is
considered a complete barrier to
steelhead migration, and therefore, areas
upstream of the culvert are considered
unoccupied. We continue to believe that
the lagoon and that portion of Rincon
Creek seaward of the culvert is
periodically occupied and meets the
definition of critical habitat.

Accordingly, this habitat reach was
considered in the final ESA section
4(b)(2) analysis and has been retained in
the final critical habitat designation for
this ESU. Efforts are underway to
improve fish passage at this culvert, and
the designation of critical habitat
downstream may support those efforts.

If fish passage is successfully
implemented at this location and
steelhead reoccupy Rincon Creek
upstream from the Highway 101 culvert,
we will reconsider the possibility of
designating critical habitat in the newly
occupied habitat area.

Comment 69: Camp Pendleton Marine
Corps Base and Vandenberg Air Force
Base both provided supplementary
comments and information to support
the exclusion of their facilities from the
final critical habitat designation for this
ESU, based on the conservation benefits
provided by their respective INRMPs.

Both DOD facilities also provided
information supporting the national
security related impacts of a critical
habitat designation on their activities
and operations.

Response: As discussed elsewhere in
this final rule, we have concluded that
the INRMPs for both of these facilities
provide conservation benefits to this
steelhead ESU, and, therefore, the areas
subject to these INRMPs are not eligible
for designation pusuant to section
4(a)(3)(B)(i) of the ESA. Information
provided by both DOD facilities
concerning the impacts of critical
habitat designation on their activities
and operations support the view that
designation of habitat will likely reduce
the readiness capability of both the
Marine Corps and Air Force, both of
which are actively engaged in training,
maintaining, and deploying forces in the
current war on terrorism. On this basis,
we also concluded that the benefits of
excluding these facilities from the
critical habitat designation for this ESU
outweighed the benefits of designation.

Comment 70: Several commenters
raised questions about steelhead access
to, and occupancy in, upper San
Antonio Creek (a tributary to the
Ventura River) and its tributaries (e.g.,
Reeves, Thatcher, Gridley, Ladera, and
Senior Canyon Creeks). These
commenters argued that a migration
impediment at the Soule Park golf
course blocks steelhead access upstream
and that the only occupied habitat in
the San Antonio Creek watershed is
downstream from that location.

Response: We agree with the
commenters that steelhead access to
some portions of upper San Antonio
Creek watershed are in fact blocked and
should not be considered occupied
habitat for the purposes of this critical
habitat designation. For example, most
of Thatcher Creek and Reeves Creek are
presently inaccessible because of a
passage impediment at Boardman Road
on Thatcher Creek, and, therefore, these
habitat reaches are clearly unoccupied
by steelhead at present. Similarly,
steelhead access into Gridley Canyon
Creek, Senior Canyon Creek, and the
lower portion of Thatcher Creek was
blocked until this past winter when
storms washed out a passage
impediment at the Soule Park golf
course. Although the passage
impediment at the Soule Park golf
course is no longer present, we have no
information at present indicating that
steelhead occur in the habitat reaches
upstream of the former impediment to
migration. Based on this information,
we concluded it is appropriate to
consider all stream reaches in the upper
San Antonio Creek watershed above the
Soule Park golf course to be unoccupied
for the purposes of this critical habitat
designation. We have revised our fish
distribution maps accordingly and also
removed these areas from the final
critical habitat designation. It should be
noted, however, that steelhead may now
begin to occupy areas above the Soule
Park golf course, and that efforts are
underway to provide fish passage for
steelhead at the Boardman Road
location. If steelhead do access these
currently unoccupied habitat areas, we
will reconsider the exclusion of these
areas from critical habitat for this ESU.

Comment 71: Some commenters
questioned the distribution of occupied
habitat and the proposed designation of
occupied habitat in Hydrologic Unit
4901, particularly with regard to the
upstream endpoints in San Juan Creek,
Trabuco Creek (a tributary of San Juan
Creek), and Devil’s Canyon (a tributary
of San Mateo Creek). Other commenters
supported the proposed designation of
habitat in the San Juan Creek and
Trabuco Creek watersheds.

Response: We have reviewed the
information provided by the
commenters, re-evaluated the
information used in developing the
proposed designation, and also
consulted with CDFG regarding the
upstream limit of the distribution of
steelhead in San Juan Creek and
Trabuco Creek. After considering this
information, we have substantially
modified the upstream distribution
limits of steelhead occupancy in
Trabuco and San Juan Creeks.

According to CDFG, the Trabuco Creek
crossing under I–5 in San Juan
Capistrano is a complete barrier to
steelhead. Therefore, the occupied
habitat reach in Trabuco Creek is now
considered to end at the I–5 crossing
VerDate Aug<18>2005 17:17 Sep 01, 2005 Jkt 205001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\02SER2.SGM 02SER2 52510 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Rules and Regulations which is in HSA 490127. As a result of
this distributional change, three HSA
watershed units in upper Trabuco Creek
that were previously considered
occupied and proposed for designation
(HSAs 490121, 490123, and 490122) are
no longer considered occupied. Because
these watersheds are not occupied and
a determination that they are essential
to the conservation of the species had
not been made, they are not included in
the final critical habitat designation.

The I–5 does not serve as a barrier to
steelhead migration in San Juan Creek.

However, the upstream distributional
limit of steelhead according to CDFG is
basically at the I–5 bridge based on the
available anecdotal information. As a
result of this distributional change,
three HSA watersheds upstream from
this location that were previously
considered occupied and proposed for
designation (HSAs 491028, 490126, and
490125) are no longer considered
occupied; and, because a determination
that they are essential to the
conservation of the ESU has not been
made, they are not included in the final
designation for this ESU. Those portions
of Trabuco and San Juan Creeks that are
occupied and occur in HSA 490127 as
described above were considered
eligible for designation and were
considered in the final ESA section
4(b)(2) analysis. Based on this analysis,
we concluded that the benefits of
including the occupied habitat reaches
in HSA 490127 outweighed the benefits
of their exclusion, and, therefore, we
have included these habitat areas in the
final designation.

Comment 72: One commenter
questioned why Pole Creek, a tributary
to the Santa Clara River, was included
in the proposed critical habitat
designation when the habitat conditions
were poor and there was little
information indicating it was occupied.

Response: Based on information from
the commenter and observations by
agency biologists, we have reassessed
the appropriateness of including Pole
Creek in the final designation. We
recognize that habitat conditions in Pole
Creek are poor and upstream passage
through the existing concrete channel in
the lower portion of the creek is highly
unlikely. Accordingly, we have
concluded that Pole Creek should be
considered unoccupied. Because it is
considered unoccupied and we have not
made a determination that it is essential
for conservation, it is not included in
the final critical habitat designation.

Comment 73: One commenter
questioned why critical habitat was not
proposed in the Santa Clara River
upstream from its confluence with Piru
Creek.

Response: The CHART did not
consider that portion of the Santa Clara
to be occupied, and we did not make a
determination that it was essential for
the conservation of the ESU; thus it was
not considered further in the critical
habitat analysis.

ESU Specific Comments— Central
Valley Spring Run Chinook
Comment 74: Two commenters
provided information regarding the
distribution of occupied spring run
Chinook habitat and habitat use, and
recommended that additional critical
habitat be designated in the upper
Sacramento River Basin for this ESU.

One commenter indicated that we
should designate several west-side
tributaries to the upper Sacramento
River in the vicinity of Redding (HSA
550810) as critical habitat because these
streams provide significant non-natal
rearing and refugia habitat, especially
since Shasta and Keswick Dams block
access to hundreds of miles of historic
rearing and refugia habitat. Another
commenter recommended that small
intermittent tributaries used for natal
rearing in the Sacramento River, as well
as lower Butte Creek, should be
designated as critical habitat.

Response: The CHART reviewed the
information provided by these
commenters for the upper Sacramento
River tributaries and concluded that it
did not change the previously
determined distribution of occupied
habitat for this ESU. The CHART
reassessed the conservation value of
occupied habitat in HSA 550810 based
on the new information and concluded
that the conservation value of some
reach specific tributaries was less than
previously thought to be the case, but
that the overall conservation value for
the HSA remained high. All occupied
spring run Chinook habitat in HSA
550810 was proposed for designation,
and, as a result of the final ESA section
4(b)(2) analysis, this habitat has been
included in the final designation for this
ESU. The CHART agreed with the
commenter that intermittent tributaries
to the Sacramento River are used for
non-natal rearing and that lower Butte
Creek is important for the conservation
of this ESU. In fact, the CHART
previously analyzed these occupied
habitat areas and rated them as having
high conservation value. These areas
were proposed for designation and are
also included in the final designation
for this ESU.

Comment 75: One commenter
recommended that the lower American
River from the outfall of the Natomas
Main Drainage Canal downstream to the
confluence with the Sacramento River
be designated because it is used for non-
natal rearing (HSA 551921). The
argument was that this habitat provides
spawning, rearing and migration values
for spring run Chinook that may require
special management considerations.

Response: The HSA watershed
(551921) containing the lower American
River was originally rated by the
CHART as having medium conservation
value and was excluded from the
proposed designation because of
relatively high economic costs. In
response to these comments, the
CHART reassessed the conservation
value of this HSA and determined that
it should be rated as having a high
conservation value to the ESU.

Information provided by the commenter
demonstrated the importance of the
lower American River for non-natal
rearing and the high improvement
potential of the habitat conditions from
ongoing restoration projects. In
addition, the lower American River may
be used during high winter flows for
rearing and refugia by multiple
populations of spring Chinook in the
central valley (e.g., Feather and Yuba
Rivers). Additionally, the commenter
suggested that special management
considerations may be required to
maintain and improve habitat
conditions and the conservation value
of this HSA for spring run Chinook. In
particular, special management
considerations may be necessary to
address flood control, residential and
commercial development, agricultural
management, and habitat restoration.

Based on the change in conservation
value and the final ESA section 4(b)(2)
analysis, we concluded that all
occupied habitat in HSA 551921,
including the lower American River,
should be designated as critical habitat
for this ESU.

Comment 76: A commenter also
recommended that the lower Bear River
(HSA 551510) from the mouth of Dry
Creek downstream to its confluence
with the Feather River be designated as
critical habitat because it is used for
non-natal rearing and will require
special management to maintain habitat
value for this ESU.

Response: The HSA watershed
(551510) containing the lower Bear
River was originally considered
unoccupied by the CHART, and its
conservation value was not rated. Based
on the information provided by the
commenter, the CHART has reclassified
the lower Bear River as occupied habitat
for spring run Chinook. Information
provided by the commenter indicates
that the lower Bear River is used for
non-natal rearing and that habitat values
are likely to increase in the near future
VerDate Aug<18>2005 17:17 Sep 01, 2005 Jkt 205001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\02SER2.SGM 02SER2 52511 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Rules and Regulations as a result of planned restoration
projects that will improve the condition
of several PCEs. The CHART applied the
PCE factor ranking criteria and rated the
lower Bear River as having high
conservation value to this ESU,
primarily because: (1) the habitat area is
likely to be used by at least two
populations (i.e., Feather and Yuba
River); (2) non-natal rearing represents a
unique life-history strategy that is
essential for the conservation of the
species (contributing to improved
growth conditions); (3) the habitat
serves as a refugia from high water
conditions and catastrophic events; and
(4) there is high improvement potential
for this habitat from ongoing restoration
efforts. Based on information from the
commenter, the lower Bear River will
require special management efforts to
protect and maintain habitat values for
this ESU. Special management
considerations are likely to include
flood control, residential and
commercial development, agricultural
management, and habitat restoration.

Because this HSA is now considered
occupied, contains the necessary PCEs,
and has a need for special management
considerations, it was considered
eligible for designation in the final ESA
section 4(b)(2) analysis conducted for
this designation. Based on the results of
the final 4(b)(2) analysis, we concluded
that the benefits of including this area
in the designation outweighed the
benefits of its exclusion. Accordingly,
occupied habitat in HSA 551510 is now
included in the final critical habitat
designation for this ESU.

Comment 77: Several commenters
recommended that portions of the San
Joaquin River and its major tributaries
below impassable mainstem dams be
designated as critical habitat for this
ESU either because of future efforts to
restore habitat or because of
unpublished information from CDFG
indicating specific habitat areas were
occasionally occupied by spring run
Chinook. These areas include the San
Joaquin River from its confluence with
the Merced River upstream to Friant
Dam, the Tuolumne River downstream
of La Grange Dam, the Merced River
downstream of Crocker Huffman Dam,
and the Stanislaus River downstream of
Goodwin Dam.

Response: The recommendation to
designate the San Joaquin River above
the confluence with the Merced River
confluence was primarily based on the
historical occupancy of this habitat
reach by spring Chinook and the
expectation that future efforts will be
undertaken to restore habitat in this
reach. We recognize that this habitat in
the San Joaquin River was historically
used by spring Chinook; however, it has
been unoccupied for more than half a
century. Moreover, plans to restore
flows and habitat conditions
downstream of Friant Dam are
uncertain, and significant passage
impediments and flow alterations in the
San Joaquin above the Merced River
confluence present potentially
significant obstacles to future
restoration success. Because this habitat
is currently unoccupied and no
determination has been made that it is
essential for the conservation of this
ESU, we have not included it in the
final critical habitat designation.

The CHART reviewed information
provided by the commenters regarding
occupancy of the Tuolumne, Merced,
and Stanislaus Rivers by spring Chinook
and concluded there was insufficient
data to consider them occupied.

Although the CHART did evaluate these
as unoccupied areas for the proposed
critical habitat designation and
concluded that they ‘‘may’’ be essential
for the conservation of spring run
Chinook ESU, we believe it is premature
to include these unoccupied areas in the
critical habitat designation for this ESU
until ongoing recovery planning efforts
provide information sufficient to make a
determination that these areas are
essential to the conservation of this
ESU. Because these tributary rivers to
the San Joaquin River are currently
unoccupied and recovery planning
efforts do not yet support a
determination that these areas are
essential for the conservation of this
ESU, we have not included them in the
final critical habitat designation.

Comment 78: One commenter argued
that the lower Feather River below
Oroville Dam should not be designated
because of the introgression of fall run
Chinook and spring run Chinook by the
Feather River hatchery.

Response: We disagree with the
commenter and believe that the lower
Feather River below Oroville Dam
should be designated as critical habitat.

The extant Feather River population of
spring-run Chinook salmon represents a
legacy population of the fish that
historically used the upper Feather
River prior to construction of Oroville
Dam, and it is an important population
to conserve and protect because of its
potential contribution to ESU recovery.

This habitat area was proposed for
critical habitat because the CHART
considered it occupied by spring run
Chinook, it contains PCEs, and it
requires special management
considerations for activities such as
flood control, flow and temperature
management, residential and
commercial development, agricultural
management, and habitat restoration.

HSA 551540, which contains much of
the lower Feather River below Oroville
Dam, was rated as having high
conservation value by the CHART for
the proposed designation, and that
determination was not changed as a
result of these comments. Based on the
results the final ESA section 4(b)(2)
analysis, occupied habitat in HSA
551540, including the lower Feather
River below Oroville Dam, is included
in the final critical habitat designation
for this ESU.

Comment 79: Some commenters
contended that NMFS should not
designate any critical habitat for spring
run Chinook in the Sacramento River,
its major tributaries (i.e. Feather River),
the Sacramento-San Joaquin Delta, or
the Suisun-San Francisco Bay complex
because existing protective efforts and
mechanisms are sufficient to protect the
ESU.

Response: We disagree with these
commenters. These habitat areas
comprise the entire freshwater and
estuarine range of this ESU, contain one
or more PCEs that are essential to the
conservation of the ESU, including
migration, holding, spawning, rearing,
and refugia habitat, and require special
management considerations or
protections beyond those protective
efforts that are already in place or
available. For these reasons, they were
considered for designation through this
rulemaking process. In the course of the
analysis supporting this rulemaking, we
evaluated the quantity, quality and
diversity of PCEs within the occupied
portions of these waterbodies by
watershed unit, assessed the benefits of
designating these watershed units, and
finally weighed the benefits of
designation against the benefits of
exclusion by watershed unit. The
resultant critical habitat designation in
this final rule, therefore, meets the
definition of critical habitat and also
represents that habitat which contains
PCEs that we believe are essential for
the conservation of this ESU.

Comment 80: One commenter
recommended that several areas
proposed for designation in the
Sacramento River basin below
impassable barriers not be designated in
the final rule. These areas include: (1)
the South Fork Cow Creek watershed
because it is not occupied; (2) specific
streams in the Tehama Hydrologic Unit
(5504) including HSAs 550410 and
550420 because they do not support
populations of spring run Chinook and
also lack cool, deep pools for summer
holding habitat; (3) specific streams in
the Whitmore Hydrologic Unit (5507)
including HSAs 550711 and 550722
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populations of spring run Chinook and
also lack cool, deep pools for summer
holding habitat; and (4) specific streams
in the Redding Hydrologic Unit (5508)
and HSA 550810 because they do not
support a population of spring run
Chinook and lack cool, deep pools for
summer holding habitat.

Response: The CHART re-evaluated
the South Fork Cow Creek based on
these comments and agreed that it is
unoccupied and therefore reclassified
its occupancy status accordingly.

Because the HSA containing South Fork
Cow Creek (HSA 550731) is now
considered unoccupied and we have not
made a determination that it is essential
to the conservation of the ESU, it was
excluded from further consideration in
the analysis and has not been included
as critical habitat in the final
designation for this ESU.

The CHART, however, disagreed with
the commenter’s recommendation to
exclude the identified streams and
HSAs in the Tehama (5504), Whitmore
(5507), and Redding (5008) Hydrologic
Units. The recommendation was based
on the lack of cool, deep pools for
summer holding habitat that is essential
for adult holding, spawning, and
summer rearing. The CHART’s previous
assessment of the conservation value of
these streams and watershed units,
however, was based on their use during
winter and early-spring months for non-
natal rearing by juvenile spring-run
Chinook. Though current use is likely
low, it is expected to increase in the
near future as a result of habitat
restoration and range expansion in
Battle and Clear Creeks. The CHART
concluded these streams provide several
PCEs that are important for juvenile
non-natal rearing, which represents a
unique life-history strategy that is
essential for the conservation of this
ESU because of its contribution to
improved growth conditions and refugia
from high water and catastrophic
events. In addition, the CHART
concluded that these streams will
require special management efforts for
flood control, residential and
commercial development, agricultural
management, and habitat restoration to
protect and maintain the conservation
value of these habitats for spring-run
Chinook. Based on these factors, the
CHART rated most of the occupied
HSAs in these three Hydrologic Units as
having high conservation value to the
ESU. After consideration of these
comments, the CHART concluded there
was no reason to change its previous
assessment of spring Chinook
distribution, habitat use, or conservation
value for these streams and Hydrologic
Units. Accordingly, the occupied
streams in these Hydrologic Units and
associated HSAs were considered in the
final 4(b)(2) analysis for this final
designation.

Comment 81: Two commenters
questioned the historical and current
habitat use and occupancy of Putah,
Alamo, and Ulatis Creeks by spring run
Chinook and thus whether they should
be designated as critical habitat.

Response: The proposed critical
habitat designation for spring run
Chinook did not include any of these
three creeks, because the CHART
considered all of them to be unoccupied
in its original assessment and we had
not made a determination that they were
essential to the conservation of the ESU.

The commenters likely were confused
because these creeks all occur in the
Valley Putah-Cache Hydrologic Unit
(HSAs 551100 and 551120), and some
portions of this Hydrologic unit were
included in the proposed designation
because they are occupied, have the
requisite PCEs, may need special
management considerations, and were
not excluded as a result of the original
ESA section 4(b)(2) exclusion process
that led to the proposed rule. The
CHART did not receive any new
information indicating these creeks are
occupied, so they were not reconsidered
and are not included in the final critical
habitat designation for this ESU.

Comment 82: Several commenters
indicated that habitat above major
impassable rim dams on tributaries to
the San Joaquin River (Stanislaus,
Tuolumne, and Merced Rivers) do not
contain habitat that would support
spring run Chinook and/or that the
feasibility of providing fish passage for
spring run Chinook has not been
adequately evaluated.

Response: Although the CHART did
evaluate these as unoccupied areas for
the proposed critical habitat designation
and concluded that some of the reaches
above the rim dams ‘‘may’’ be essential
for the conservation of spring run
Chinook, we believe it is premature to
include these unoccupied areas in the
critical habitat designation for this ESU
until ongoing recovery planning efforts
provide technical information
supporting a determination that one or
more of these areas are essential to its
conservation and recovery. Because
these tributary rivers to the San Joaquin
River are currently unoccupied and
recovery planning efforts do not yet
support a determination that these areas
are essential for the conservation of this
ESU, we have not included them in the
final critical habitat designation.

ESU-Specific Comments— Central
Valley Steelhead
Comment 83: One commenter
recommended that we designate several
west-side tributaries to the Sacramento
River in the vicinity of Redding (HSA
550810) as critical habitat for this ESU
because they are used as spawning and/
or rearing habitat.

Response: The CHART reviewed the
new information provided by the
commenter and concluded that several
of these streams are seasonally occupied
and most likely used by steelhead as
non-natal rearing habitat with
occasional use as spawning habitat, and
that they contain PCEs supporting non-
natal habitat use. The CHART
considered these additional occupied
habitat areas important for steelhead
because they are likely to be used by
several populations (e.g., upper
Sacramento River, Clear Creek, and Cow
Creek), and because non-natal rearing
represents a unique life-history strategy
that is essential for the conservation
since it contributes to improved growth
conditions and serves as a refugia from
high water and catastrophic events. The
CHART concluded that these streams
may require special management
considerations to address activities such
as flood control, residential and
commercial development, agricultural
management, and habitat restoration,
and, therefore, evaluated the
conservation value of these occupied
habitat stream reaches and the overall
HSA. This reassessment concluded that
the conservation value of the additional
occupied stream reaches ranged from
low to high, but that the overall
conservation value of HSA watershed
550810 remained high to the ESU.

Based on the results of the final ESA
section 4(b)(2) analysis, all occupied
habitat in HSA 550810, including
several stream reaches recommended by
the commenter, is designated as critical
habitat in the final rule.

Comment 84: One commenter
recommended that we should designate
upper little Dry Creek, a tributary to
Butte Creek, as critical habitat for this
ESU.

Response: The CHART originally
evaluated the conservation value of
upper Dry Creek (HSA 552110) as being
low, and it was proposed for exclusion
in the proposed rule based on the
results of the ESA section 4(b)(2)
analysis. In response to these comments,
the CHART re-assessed the conservation
value of this HSA and concluded it
should be changed from low to medium.

The original low rating was strongly
influenced by the low number of stream
miles in the HSA. The remainder of
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in HSA 552040, which was rated as
having a high conservation value by the
CHART because of the number of
occupied stream miles, its high
restoration potential, and its use by
multiple populations of steelhead. In its
reassessment of the conservation value
of HSA 552110, the CHART placed
more emphasis on the restoration
potential of this reach of upper little Dry
Creek and the potential for the stream
reach to support life history stages of
high importance (i.e., spawning adults
and over summering juveniles) for this
ESU. Based on the increased
conservation value of this HSA 552110
(increased from low to medium) and the
results of the final ESA section 4(b)(2)
analysis, the upper little Dry Creek has
been included in the final critical
habitat designation for this ESU.

Comment 85: One commenter
recommended that we designate the
lower Bear River as critical habitat for
Central Valley steelhead from its
confluence with Dry Creek downstream
to its confluence with the Feather River
because it is used for non-natal rearing
and will require special management
considerations to maintain habitat value
for the ESU.

Response: The CHART originally
evaluated the conservation value of
HSA 551510, which contains the lower
Bear River, as being low, and it was
proposed for exclusion in the proposed
critical habitat rule based on the results
of the ESA section 4(b)(2) analysis
conducted for that rulemaking. In
response to the information provided by
the commenter, the CHART re-assessed
the conservation value and concluded
that the overall conservation value for
this HSA is medium rather than low. As
a result of the revised 4(b)(2) analysis
conducted for the final rule, however,
this HSA watershed was considered to
have a medium benefit of designation
and a relatively high benefit of
exclusion (ie., high cost relative to
benefit), making it potentially subject to
exclusion from the final designation.

However, the CHART felt the lower
portion of the Bear River within this
HSA was important because the habitat
is likely to be used for non-natal rearing
by several populations (i.e., Feather and
Yuba River populations) and because
non-natal rearing represents a unique
life-history strategy that is essential for
conservation since it contributes to
improved growth conditions and serves
as a refugia from high water and
catastrophic events. Therefore the
CHART concluded the benefit of
including this area out weighed the
benefit of excluding this area and we
have included HSA 551510, which
includes the lower Bear River, in the
final critical habitat designation for this
ESU.

Comment 86: One commenter
recommended that the Cosumnes River
should be designated as critical habitat
for this ESU based on unpublished
documentation of steelhead presence.

Response: The original analysis
conducted by the CHART for the
proposed rule considered the Cosumnes
River to be occupied, but its assessment
concluded that the HSA watersheds
(553111, 553221, 553223 and 553224)
containing this river system were of low
conservation value. Based on this
assessment and the results of the ESA
section 4(b)(2) analysis conducted for
the proposed rule, the Cosumnes River
and all other occupied habitat in these
four watersheds were excluded from the
proposed designation. The commenter
did not provide any new information
warranting a change in our proposed
rule, and, therefore, the Cosumnes River
and these four watersheds have been
excluded from the final designation for
this ESU.

Comment 87: Several commenters
recommended that we designate the San
Joaquin River from its confluence with
the Merced River to Friant Dam as
critical habitat for this ESU.

Response: The recommendations to
designate the San Joaquin River above
the confluence with the Merced River
were primarily based on the historical
occupancy of this habitat reach by
steelhead and the expectation that
future efforts will be undertaken to
restore habitat in this reach. We
recognize that this habitat in the San
Joaquin River was historically used by
steelhead, but we consider it presently
unoccupied. Moreover, plans to restore
flows and habitat conditions
downstream of Friant Dam are
uncertain, and significant passage
impediments and flow alterations in the
San Joaquin River above the Merced
confluence present significant obstacles
to future restoration success. Because
this habitat is currently unoccupied,
and ongoing recovery planning efforts
have not identified areas in this reach of
the San Joaquin River as being essential
for the conservation of this ESU, we
have not included it in the final critical
habitat designation.

Comment 88: Two commenters
recommended that we designate Dry
Creek, a tributary to the Yuba River, as
critical habitat for Central Valley
steelhead.

Response: The commenters
incorrectly interpreted the proposed
designation. Dry Creek, a tributary to the
Yuba River, occurs in two HSA
watersheds (551712 and 551713).

However, the vast majority of this creek
occurs within HSA 551712. The CHART
originally concluded that watershed
551712 had a high conservation value
and that watershed 551713 had a low
conservation value. Based on this
assessment and the original ESA section
4(b)(2) analysis, the proposed
designation for this ESU included all
occupied habitat in HSA 55172,
including Dry Creek, but did exclude a
small portion of Dry Creek occurring in
HSA 551713 because of high economic
costs. We did not receive any new
information warranting a change in the
proposed critical habitat with respect to
Dry Creek, and, therefore, the final
critical habitat designation for this ESU
only includes that portion of Dry Creek
contained in HSA 551712.

Comment 89: Some commenters
contended that we should not designate
any critical habitat for steelhead in the
Sacramento River, San Joaquin River or
its major tributaries, the Sacramento-
San Joaquin Delta, or the Suisun-San
Francisco Bay complex because existing
protective efforts and mechanisms are
sufficient to protect the ESU.

Response: We disagree with these
commenters. These waterbodies
comprise the entire freshwater and
estuarine range of this ESU, contain one
or more PCEs that are essential to the
conservation of the ESU, including
migration, holding, spawning, rearing,
and refugia habitat, and may require
special management beyond those
protective efforts that are already in
place or available. For these reasons,
they were considered for designation
through this rulemaking process. In the
course of this rulemaking, we evaluated
the quantity, quality, and diversity of
PCEs within the occupied portions of
these waterbodies by watershed unit,
assessed the benefits of designating
these watershed units, and finally
weighed the benefits of designation
against the benefits of exclusion by
watershed unit. The resultant critical
habitat designation in this final rule,
therefore, meets the definition of critical
habitat and also contains PCEs that we
believe are essential for the conservation
of this ESU.

Comment 90: One commenter
recommended that we should not
designate several streams in the upper
Sacramento River (Red Bluff [550420
and Spring Creek [550440] HSAs) as
critical habitat for Central Valley
steelhead because they are low elevation
streams without sufficient flow duration
or suitable habitat to support the
species.

Response: We disagree with the
commenter’s recommendation to
exclude specific streams in these two
VerDate Aug<18>2005 17:17 Sep 01, 2005 Jkt 205001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\02SER2.SGM 02SER2 52514 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Rules and Regulations HSAs. The CHART has evaluated these
streams and recognizes that they have
limited flow duration. However, the
team also concluded the streams in
question support important winter and
early spring non-natal rearing habitat for
steelhead and thus contain PCEs that are
important for juvenile rearing. The
CHART previously rated both HSAs as
having an overall high conservation
value for this ESU and does not believe
the comments warrant a revision in any
of its previous conclusions regarding
these two HSAs. Based on the CHART’s
previous conclusions and the results of
the final ESA section 4(b)(2) analysis
conducted for this rule, all occupied
habitat in these two HSAs is included
in the final designation for this ESU.

Comment 91: Some commenters
argued that there was no basis for
proposing to designate critical habitat
for Central Valley steelhead in the
Calaveras, Stanislaus, Tuolumne, or
Merced Rivers.

Response: We disagree with the
commenters. The CHART concluded
that the HSA watersheds containing
these rivers were occupied by steelhead,
contained PCEs supporting the species
for spawning, rearing and/or migration,
and that there may be a need for special
management considerations. On this
basis, these rivers met the definition of
occupied critical habitat, and, therefore,
were eligible for designation. We
weighed the benefits of including these
areas in the designation against the
benefits of their exclusion in the
original ESA section 4(b)(2) analysis for
the proposed rule, and again in a
revised analysis for the final rule. In
both instances, the benefits of
designating the HSA watersheds
containing these rivers outweighed the
benefits of their exclusion. Accordingly,
the HSA watershed containing these
rivers were included in the proposed
critical habitat designation and are also
included in the final designation for this
ESU.

Comment 92: One commenter argued
that the Old River and Paradise Cut
channels in the San Joaquin Delta
Subbasin or Hydrologic Unit (5544) do
not meet the definition of critical habitat
for Central Valley steelhead.

Response: We disagree with the
commenter. The CHART concluded that
all of the estuarine habitat in this
Hydrologic Unit, including the Old
River and Paradise Cut channels, is used
by steelhead smolts for rearing and
migration from upstream freshwater
rivers. On this basis the CHART
considered the entire Hydrologic Unit to
be occupied and to contain PCEs for
rearing and migration that are essential
to the conservation of this ESU. The
CHART also concluded that agricultural
water and municipal water withdrawals,
entrainment associated with water
diversions, invasive/non-invasive
species management, and point and
non-point source water pollution could
affect these PCEs and that there was a
need for special management
considerations. Based on all of the
available information, the CHART rated
this Hydrologic Unit as having high
conservation value for the ESU. Based
on the CHART’s assessment and the
original ESA section 4(b)(2) analysis
conducted for the proposed rule, this
Hydrologic Unit was proposed for
designation. We have received no new
information warranting a change in this
proposal, and, therefore, all occupied
habitat in this Hydrologic Unit
including the Old River and Paradise
Cut channels are included in the final
critical habitat designation for this ESU.

Comment 93: One commenter
recommended designating critical
habitat above major dams in the central
valley to ensure these habitats were
protected and to encourage
implementation of fish passage above
these dams.

Response: As part of the proposed
critical habitat designation process, the
CHART did evaluate many unoccupied
areas above dams in the central valley
as potential critical habitat, and
concluded that some of the reaches
above the rim dams ‘‘may’’ be essential
for the conservation of steelhead.

Although the CHART believes these
areas may be essential for conservation,
and we recognize the historical
importance of many of these areas to
steelhead, we believe it is premature to
include these unoccupied areas in the
final designation for this ESU until
ongoing recovery planning efforts
provide technical information to
support a determination that any such
areas are essential to its conservation
and recovery. Because these above-dam
habitat areas are currently unoccupied
and recovery planning efforts do not yet
support a determination that any
specific areas are essential for the
conservation of this ESU, we have not
included them in the final critical
habitat designation. As recovery
planning efforts mature and sufficient
information is available to make a
determination about whether any of
these areas are essential for conservation
of this ESU, we will conduct additional
rulemaking as appropriate.

Comment 94: Two commenters
addressed the issue of designating
critical habitat above the Solano
Irrigation District Dam on Putah Creek.

One commenter argued that habitat
between the Solano Irrigation Dam and
Monticello Dam on Putah Creek should
be designated as critical habitat for
steelhead even though it is unoccupied
because: Suitable spawning and rearing
habitat exists for steelhead above the
dam; providing fish passage is likely to
be economically and logistically
feasible; and Central Valley steelhead
populations are constrained by the lack
of accessible habitat. The other
commenter argued that this habitat
should not be designated because of
problems associated with providing
passage.

Response: The CHART considered the
information provided by these
commenters and concluded that the
unoccupied area above Solano Irrigation
Dam may contain PCEs that would
support steelhead and that providing
passage would likely be feasible.

However, the CHART did not make a
determination about whether this above
dam area may be essential for the
conservation of this ESU. As noted
previously, we believe it is premature to
include any unoccupied areas above
dams in the final critical habitat
designation for this ESU until ongoing
recovery planning efforts identify those
specific unoccupied areas that are
essential to its conservation and
recovery. Because the habitat above the
Solano Irrigation Dam is currently
unoccupied and recovery planning
efforts do not yet support a
determination that this area is essential
for the conservation of this ESU, we
have not included this area in the final
critical habitat designation.

ESU-Specific Comments— Central
Valley Spring Run Chinook and Central
Valley Steelhead
Comment 95: One commenter argued
that west-side tributaries in Glenn
County, and in particular Stony Creek,
should not be designated as critical
habitat for either spring-run Chinook
salmon or steelhead because these
habitats are unoccupied and water
temperatures are too warm to support
salmonids.

Response: We disagree with the
commenter. The CHART has evaluated
the available information, particularly
with regard to Stony Creek (HSA
550410), and concluded that this stream
is occupied by both spring run Chinook
and steelhead. Juvenile spring run
Chinook have been consistently
documented using Stony Creek as
rearing habitat since 2001 (Corwin and
Grant, 2004), as well as in previous
years (Maslin and McKinney, 1994).

Similarly, juvenile steelhead have been
periodically documented rearing in
Stony Creek (Corwin and Grant, 2004;
Maslin and McKinney, 1994). The
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has PCEs that support both species.

Water temperature monitoring from
2001 through 2004 has shown that
temperatures in Stony Creek under
current operations are generally suitable
for adult and juvenile salmonids (below
65 °F) from mid-October through late
May. Water temperatures have been
found to be suitable for salmonid
spawning and incubation (below 56 °F)
from mid-November through early May
(Corwin and Grant, 2004). Though
successful steelhead spawning has not
been documented recently in Stony
Creek, habitat conditions under current
operations are considered marginally
suitable to support steelhead
reproduction. Because of ongoing
restoration actions and ESA section 7
consultations, progress is being made
toward improving these habitat
conditions, and we expect conditions to
continue to improve into the future.

Comment 96: Numerous commenters
raised issues concerning the designation
of unoccupied and inaccessible habitat
in the Yuba River. Several commenters
recommended we designate unoccupied
stream reaches above major impassable
barriers in the Middle, North, and South
Fork Yuba Rivers as critical habitat for
both ESUs. In contrast, several other
commenters recommended we delay
any decision to designate unoccupied
and inaccessible habitat for both ESUs
in the Yuba River above Englebright
Dam until the Upper Yuba River Studies
Program is completed.

Response: The CHART reviewed
information regarding unoccupied
habitat above Englebright Dam for the
proposed rule and concluded that
unoccupied and inaccessible areas
above the dam ‘‘may’’ be essential for
the conservation of these ESUs.

However, we have not made a final
determination that these areas are
essential to conservation. As noted
previously for other unoccupied and
inaccessible areas, we believe that it is
premature to designate unoccupied
areas in the Yuba River above
Englebright Dam as critical habitat until
ongoing recovery planning efforts
identify those specific unoccupied
habitat areas in the central valley that
are essential to the conservation and
recovery of these ESUs. The Upper Yuba
River Studies Program is expected to
provide relevant information for the
recovery planning process of both ESUs,
and we intend to await the findings of
this program as well as recovery
planning efforts before making a
determination about whether or not the
unoccupied habitat areas in question are
essential to the conservation of either
ESU. If such a determination is made,
we will undertake the appropriate
rulemaking to propose the designation
of these areas as critical habitat.

Comment 97: One commenter
recommended designating the entire
Butte Creek watershed, upstream from
the Centerville Diversion Dam, as
critical habitat for both the spring run
Chinook and steelhead ESUs.

Conversely, another commenter argued
that we should not designate this
unoccuped habitat in Butte Creek
because there is no historical
information that suggests this habitat
was historically occupied by
anadromous salmonids, and recent
CDFG barrier assessments have
concluded that barrier modifications are
not desirable because of the high stream
gradient and the presence of multiple
natural barriers immediately above the
Dam.

Response: The CHART reviewed
information regarding unoccupied
habitat above the Centerville Diversion
Dam on Butte Creek for the proposed
rule and concluded that this
unoccupied and inaccessible habitat
‘‘may’’ be essential for the conservation
of both the spring run Chinook and
steelhead ESUs. As noted previously for
other unoccupied and inaccessible areas
above dams, however, we believe that it
is premature to designate unoccupied
areas in Butte Creek above the
Centerville Diversion Dam as critical
habitat until ongoing recovery planning
efforts identify those specific
unoccupied habitat areas in the central
valley that are essential to the
conservation and recovery of these
ESUs. Because the habitat areas above
the Centerville Diversion Dam are
unoccupied and no final determination
has been made that they are essential for
conservation of the ESU, they are not
included in the final critical habitat
designation for these ESUs. If the agency
makes such a determination in the
future, we will undertake the
appropriate rulemaking to designate
these areas as critical habitat.

Comment 98: One commenter (CDFG)
argued that it is premature to designate
unoccupied habitat above Oroville Dam
in the upper Feather River as critical
habitat for either spring run Chinook or
steelhead.

Response: As discussed in other
responses, we agree with CDFG.

Although the CHART concluded as part
of the proposed critical habitat rule that
specific unoccupied areas above
Oroville Dam ‘‘may’’ be essential for the
conservation of spring run Chinook and
steelhead, we believe it is premature to
make such a determination until
ongoing recovery planning efforts in the
central valley identify above-dam
unoccupied areas that are essential for
conservation of these ESUs. For this
reason, unoccupied areas above Oroville
Dam are not included in the final
designation.

Comment 99: Some commenters
indicated that habitat above rim dams
on tributaries (Tuolumne, Stanislaus,
and Merced) to the San Joaquin River
did not contain suitable habitat for
either ESU and that the feasibility of
passage had not been adequately
studied.

Response: The CHART evaluated
specific unoccupied and inaccessible
stream reaches above rim dams on these
San Joaquin River tributaries and
concluded that they ‘‘may’’ be essential
for the conservation of spring run
Chinook and steelhead. However, as
discussed previously, we believe it is
premature to make such a determination
until ongoing recovery planning efforts
in the central valley identify above-dam
unoccupied areas that are essential for
conservation of these ESUs. For this
reason, unoccupied areas above these
rim dams on the San Joaquin River
tributaries are not included in the final
designation.

III. Summary of Revisions
We evaluated the comments and new
information received on the proposed
rule to ensure that they represented the
best scientific data available and made
a number of general types of changes to
the critical habitat designations,
including:
(1) We revised distribution maps and
related biological assessments based on
a final CHART assessment (NMFS,
2005a) of information provided by
commenters, peer reviewers, and agency
biologists. We also evaluated
watersheds that may be low leverage
(i.e., unlikely to have an ESA section 7
consultation or where a section 7
consultation, if it did occur, would yield
few conservation benefits) and
identified several for possible exclusion
in the final ESA section 4(b)(2) analysis.
(2) We revised our economic analysis
based on information provided by
commenters and peer reviewers as well
as our own efforts as referenced in the
proposed rule. Major changes included
assessing new impacts associated with
pesticide consultations, revising Federal
land consultation costs to take into
account wilderness areas, and
modifying grazing impacts to more
accurately reflect likely project
modifications.
(3) We conducted a new ESA section
4(b)(2) analysis based on economic
impacts to take into account the above
revisions. This resulted in the final
exclusion of many of the same
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also resulted in some areas originally
proposed for exclusion not being
excluded and some areas proposed for
designation now being excluded. The
analysis is described further in the
4(b)(2) report (NMFS, 2005c).
(4) We did not conduct an ESA
section 4(b)(2) analysis of lands covered
by approved HCPs because existing HCP
holders did not request exclusion from
the critical habitat designation. We did
not have sufficient information to
conduct this analysis for the vast areas
covered by Federal land management
plans, but may do so in the future.

The following sections summarize the
ESU-specific changes to the proposed
critical habitat rule. These changes are
also reflected in final agency reports
pertaining to the biological, economic,
and policy assessments supporting these
designations (NMFS, 2005a; NMFS,
2005b; NMFS, 2005c). We conclude that
these changes are warranted based on
new information and analyses that
constitute the best scientific data
available.

ESU Specific Changes— California
Coastal Chinook Salmon
The CHART did not change
conservation value ratings for any
watershed within the geographical area
occupied by this ESU. However, based
on public comments and new
information reviewed by the CHART,
we have identified minor changes to the
extent of occupied habitat areas in some
watersheds. Also, based on public
comments we have added a migratory
corridor in one watershed (HSA 111171)
that was proposed to be fully excluded
in order to provide connectivity
between the ocean and an upstream
watershed of high conservation value.

Additionally, as a result of revised
economic data for this ESU and our
final ESA section 4(b)(2) analysis, we
are excluding all occupied habitat in
two watersheds that were previously
proposed for designation (HSAs 111350
and 111423). Table 1 summarizes the
specific changes made for this ESU.

TABLE 1.—ESU S PECIFIC CHANGES—C ALIFORNIA COASTAL CHINOOK SALMON Hydrologic unit
HSA wa-
tershed
code
HSA watershed name Changes from proposed rule
Trinidad ................... 110810 Big Lagoon ....................................... Removed 0.7 mi (1.1 km) of occupied habitat area.

Trinidad ................... 110820 Little River—Albion—Big Salmon .... Added 1.2 miles (1.9 km) of occupied habitat area.

Mad River ................ 110920 NF Mad River .................................. Removed 0.8 miles (1.3 km) of occupied habitat ar ea.

Mad River ................ 110930 Butler Valley ..................................... Added 1.0 mile (1.6 km) of occupied habitat a rea.

Eel River .................. 111171 Eden Valley ...................................... Excluded tributaries from final designation and retained migratory cor- ridor.

Mendocino Coast .... 111350 Navarro River ................................... Excluded all occupied habitat from final designation Russian River .......... 111423 Mark West ........................................ Excluded all occupied habitat from final designa tion.

ESU Specific Changes—Northern
California Steelhead
The CHART did not change
conservation value ratings for any
watershed within the geographical area
occupied by this ESU. However, based
on public comments and new
information reviewed by the CHART,
we have identified changes to the extent
of occupied habitat areas in 13
watersheds. As a result of revised
economic data for this ESU and our
final ESA section 4(b)(2) analysis, we
did not make any changes to the areas
that were previously proposed for
designation or identify any new areas
for exclusion in the final designation.

Table 2 summarizes the specific changes
made for this ESU.

TABLE 2.—ESU S PECIFIC CHANGES—N ORTHERN CALIFORNIA STEELHEAD Hydrologic unit
HSA wa-
tershed
code
HSA watershed name Changes from proposed rule
Redwood Creek ................................ 110720 Beaver .............................................. Removed 0.7 mi (1.1 km) of occupied habitat area.

Trinidad ............................................. 110810 Big Lagoon ....................................... Added 0.3 mi (0.5 km) of occupied habitat area.

Trinidad ............................................. 110820 Little River ........................................ Added 2.9 mi (4 .7 km) of occupied habitat areas.

Mad River ......................................... 110930 Butler Valley ..................................... Removed 0.4 mi (0.6 km) of occupied habitat area.

Eureka Plain ..................................... 111000 Eureka Plain ..................................... Removed 0.8 mi (1.3 km ) of occupied habitat area.

Eel River ........................................... 111132 Benbow ............................................ Removed 0.7 mi (1. 1 km) of occupied habitat area.

Eel River ........................................... 111133 Laytonville ........................................ Removed 0.8 mi (1 .3 km) of occupied habitat area.

Mendocino Coast .............................. 111311 Usal Creek ....................................... Removed 5.6 mi (9.0 km) of Coast occupied habitat areas.

Mendocino Coast .............................. 111312 Wages Creek ................................... Removed 0.5 mi (0.8 km) of oc cupied habitat area.

Mendocino Coast .............................. 111313 Ten Mile Creek ................................. Removed 7.6 mi (12.2 km) of occupied habitat area.

Mendocino Coast .............................. 111320 Noyo River ....................................... Removed 0.9 mi (1.4 km) of occupied habitat area Mendocino Coast .............................. 111330 Big River ........................................... Removed 0.3 mi (0.5 km) of occupied habitat area.

Mendocino Coast .............................. 111340 Albion River ...................................... Removed 1.2 mi (1.9 km) o f occupied habitat area.

ESU Specific Changes— Central
California Coast Steelhead
The CHART did not change the
conservation value of any occupied
watersheds within the geographical area
occupied by this ESU. Occupied habitat
was added to one watershed (220320)
because of a mapping error in the
proposed rule and to another watershed
(220550) based on public comments and
new information received by the
CHART. The Upper Alameda Creek
watershed (220430) was removed from
the final designation because it is
occupied only by resident O. mykiss,
and a final listing determination for this
life form will not be made until
December 2005 (70 FR 37219; June 28,
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portions of the migratory corridor to
upper Alameda Creek were also
removed from two watersheds (220420
and 220520) in the final designation. As
a result of revised economic data for this
ESU and our final ESA section 4(b)(2)
analysis, we are excluding all occupied
habitat areas in two watersheds that
were not previously proposed for
designation (111421 and 220722). Table
3 summarizes the specific changes made
for this ESU.

TABLE 3.— ESU SPECIFIC CHANGES— CENTRAL CALIFORNIA COAST STEELHEAD Hydrologic unit
HSA wa-
tershed
code
HSA watershed name Changes from proposed rule
Russian River .......... 111421 Laguna De Santa Rosa ................... Excluded all occupied habitat from final designation.

Bay Bridges ............. 220320 San Rafael ....................................... Added 6.4 mi (10.3 km) of occupied habitat area (Arroyo Core Madera del Presidio).

South Bay ................ 220420 Eastbay Cities .................................. Removed 8.6 mi (13.8 km) migratory corridor to Upper Alameda Creek watershed (220430).

South Bay ................ 220430 Upper Alameda Creek ..................... Removed all occupied habitat (99.0 mi, or 159 km) from final designa- tion.

Santa Clara ............. 220520 Fremont Bayside .............................. Removed portion of migratory corridor (1.0 mi, or 1 .6 km) to Upper Al- ameda Creek watershed (220430).

Santa Clara ............. 220550 Palo Alto .......................................... Added 1.9 mi (3.0 km) of occupied habitat are a (San Francisquito Creek tributaries).

Suisun ..................... 220722 Suisun Creek ................................... Excluded all occupied habitat area from final designation.

ESU Specific Changes— South-Central
California Steelhead
The CHART did not change the
conservation value rating for any
watershed within the geographical area
occupied by this ESU, nor were there
any changes to the extent of occupied
habitat areas. As a result of revised
economic data for this ESU and our
final ESA section 4(b)(2) analysis, we
did not make any changes to the areas
that were previously proposed for
designation or identify any new areas
for exclusion.

ESU Specific Changes— Southern
California Steelhead
The CHART did not change the
conservation value ratings for any of the
occupied watersheds within the
geographical area occupied by this ESU.

However, based on information from the
public comments and agency biologists
and reviewed by the CHART, several
watershed units (490121, 490122,
490125, 490126, and 490128) were
determined to be unoccupied and,
because we had not made a
determination that they were essential
to the conservation of the ESU, were not
considered eligible for designation or
considered in the final ESA section
4(b)(2) analysis for this final
designation. These watershed units
were located in the San Juan Creek/
Trabuco Creek watershed in the
southern portion of the range of the
ESU. Also, based on public comments
and other information reviewed by the
CHART, we have identified several
changes to the extent of occupied
habitat in a number of watersheds.

Based on the revised economic data for
this ESU and our final ESA section
4(b)(2) analysis, we did not make any
changes to the watershed areas that
were previously proposed for
designation. Table 4 summarizes the
specific changes made for this ESU.

TABLE 4.— ESU SPECIFIC CHANGES— SOUTHERN CALIFORNIA STEELHEAD Hydrologic unit
HSA wa-
tershed
code
HSA watershed/area name Changes from proposed rule
Santa Ynez ....................................... 331440 Santa Ynez to Bradbury ................... Removed 24.0 mi (38.6 km) of o ccupied tributary habi- tat area to the Santa Ynez River (Alamo Pintado
and Santa Aguedo Creeks).

South Coast ...................................... 331534 Carpenteria ....................................... Removed 0.8 mi (1.3 k m) of occupied habitat (Santa Monica estuary).

Ventura River .................................... 440232 Thatcher ........................................... Removed 20.9 mi (33. 6 km) of occupied tributary habi- tat area (San Antonio Creek and tributaries).

Santa Clara— Calleguas ................... 440331 Sespe — Santa Clara ........................ Removed 5.4 mi (8.7 km) of occupied habitat area (Pole Creek).

San Juan .......................................... 490121 Trabuco ............................................ Changed to unoccupi ed. Removed small amount of occupied habitat area (Trabuco Creek).

San Juan .......................................... 490122 Upper Trabuco ................................. Changed to unoccupied. R emoved 7.7 mi (12.4 km) of occupied habitat area (Trabuco Creek).

San Juan .......................................... 490123 Middle Trabuco ................................ Removed 12.4 mi (20.0 km ) of occupied habitat area (Trabuco Creek).

San Juan .......................................... 490125 Upper San Juan ............................... Changed to unoccupied. Re moved 12.5 mi (20.1 km) of occupied habitat area (San Juan Creek).

San Juan .......................................... 490126 Mid upper San Juan ......................... Changed to unoccupied. Remo ved 3.8 mi (6.1 km) of occupied habitat area (San Juan Creek).

San Juan .......................................... 490128 Middle San Juan .............................. Changed to unoccupied. Re moved 3.4 mi (5.5 km) of occupied habitat area (San Juan Creek).

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HSA wa-
tershed
code
HSA watershed/area name Changes from proposed rule
San Juan .......................................... 490140 San Mateo ........................................ Removed 4.9 mi (7.9 k m) of occupied habitat (Devil Creek).

ESU Specific Changes— Central Valley
Spring Run Chinook Salmon
Based on information provided in the
public comments and new information
reviewed by the CHART, one watershed
was changed from occupied to
unoccupied (550731), one was changed
from unoccupied to occupied and rated
as having a high conservation value to
the ESU (551510), and one watershed
was changed from a medium to a high
conservation value (551921). Also,
based on public comments and new
information reviewed by the CHART,
we have identified relatively minor
changes to the extent of occupied
habitat in some watersheds. Based on
the results of the revised economic data
for this ESU and our final ESA section
4(b)(2) analysis, we are excluding all
occupied habitat areas in one watershed
(551720) that were previously proposed
for designation, and designating all
occupied habitat areas in a second
watershed (551921) that were
previously proposed for exclusion.

Table 5 summarizes the specific changes
made for this ESU.

TABLE 5.— ESU SPECIFIC CHANGES— CENTRAL VALLEY SPRING RUN CHINOOK Hydrologic unit
HSA wa-
tershed
code
HSA Watershed name Changes from proposed rule
Whitmore .......................................... 550731 South Cow Creek ............................. Changed from occupied to u noccupied. Removed 10.3 mi (16.6 km) of occupied habitat area.

Redding ............................................ 550810 Enterprise Flat .................................. Minor changes in dis tribution. No net change in occu- pied mi of habitat area.

Marysville .......................................... 551510 Lower Bear River ............................. Changed from unoccupied to occupied. Added 5.1 mi (8.2 km) of occupied habitat area. Rated as high in
conservation value and included all occupied habitat
in the final designation.

Yuba River ........................................ 551720 Nevada City ...................................... Excluded all occupied habitat from final designation.

Valley-American ................................ 551921 Lower American ............................... Changed conservation value f rom medium to high and included all occupied habitat in the final designation.

ESU Specific Changes— Central Valley
Steelhead
Based on information provided in the
public comments and new information
reviewed by the CHART, the
conservation value of two watersheds
(551510 and 552110) within the
geographical range of this ESU was
changed from low to medium.

Additionally, based on public
comments and new information
reviewed by the CHART, we have
identified changes to the extent of
occupied habitat areas in two
watersheds. As a result of the revised
economic data for this ESU and our
final ESA section 4(b)(2) analysis, we
are excluding all occupied habitat areas
in two watersheds (550964 and 552435)
proposed for designation and
designating all occupied areas in two
other watersheds (551510 and 552110)
that were previously proposed for
exclusion. Table 6 summarizes the
specific changes made for this ESU.

TABLE 6.— ESU SPECIFIC CHANGES— CENTRAL VALLEY STEELHEAD Hydrologic unit
HSA wa-
tershed
code
HSA Watershed name Changes from proposed rule
Redding ............................................ 550810 Enterprise Flat .................................. Added 5.7 mi (9.2 km ) of occupied habitat area (sev- eral tributaries).

Eastern Tehama ............................... 550964 Paynes Creek ................................... Excluded all occupied habita t Tehama from the final designation.

Marysville .......................................... 551510 Lower Bear River ............................. Changed conservation va lue from low to medium. In- cluded all occupied habitat in the final designation.

Butte Creek ....................................... 552110 Upper Dry Creek .............................. Changed conservation valu e from low to medium. In- cluded all occupied habitat in the final designation.

Shasta Bally ...................................... 552435 Ono ................................................... Excluded all occ upied habitat from the final designa- tion.

Shasta Bally ...................................... 552440 Spring Creek .................................... Removed 3.1 mi (5.0 km ) of occupied habitat area.

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Designate 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.’’
Section 3 of the ESA (16 U.S.C.
1532(5)) defines critical habitat as ‘‘(i)
the specific areas within the
geographical area occupied by the
species, at the time it is listed * * * on
which are found those physical or
biological features (I) essential to the
conservation of the species and (II)
which may require special management
considerations or protection; and (ii)
specific areas outside the geographical
area occupied by the species at the time
it is listed upon a determination by the
Secretary that such areas are essential
for the conservation of the species.’’
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
designating critical habitat 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) habitats that are
protected from disturbance or are
representative of the historical
geographical and ecological
distributions 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 and that
may require special management
considerations or protection. Both the
ESA and our regulations, in recognition
of the divergent biological needs of
species, establish criteria that are fact
specific rather than ‘‘one size fits all.’’
Our regulations state that, ‘‘The
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 and
commercial 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 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
inclusion, unless excluding an area from
critical habitat will result in the
extinction of the species concerned.

Once critical habitat for a salmon or
steelhead ESU is designated, section
7(a)(2) of the ESA requires that each
Federal agency shall, 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 result in the destruction or
adverse modification of critical habitat.

Salmon Life History
Pacific salmon are anadromous fish,
meaning adults migrate from the ocean
to spawn in freshwater lakes and
streams where their offspring hatch and
rear prior to migrating back to the ocean
to forage until maturity. The migration
and spawning times vary considerably
across and within species and
populations (Groot and Margolis, 1991).

At spawning, adults pair to lay and
fertilize thousands of eggs in freshwater
gravel nests or ‘‘redds’’ excavated by
females. Depending on lake/stream
temperatures, eggs incubate for several
weeks to months before hatching as
‘‘alevins’’ (a larval life stage dependent
on food stored in a yolk sac). Following
yolk sac absorption, alevins emerge
from the gravel as young juveniles
called ‘‘fry’’ and begin actively feeding.

Depending on the species and location,
juveniles may spend from a few hours
to several years in freshwater areas
before migrating to the ocean. The
physiological and behavioral changes
required for the transition to salt water
result in a distinct ‘‘smolt’’ stage in most
species. On their journey juveniles must
migrate downstream through every
riverine and estuarine corridor between
their natal lake or stream and the ocean.

For example, smolts from Idaho will
travel as far as 900 miles (1,448 km)
from the inland spawning grounds. En
route to the ocean the juveniles may
spend from a few days to several weeks
in the estuary, depending on the
species. The highly productive estuarine
environment is an important feeding
and acclimation area for juveniles
preparing to enter marine waters.

Juveniles and subadults typically
spend from 1 to 5 years foraging over
thousands of miles in the North Pacific
Ocean before returning to spawn. Some
species, such as coho and Chinook
salmon, have precocious life history
types (primarily male fish known as
‘‘jacks’’) that mature and spawn after
only several months in the ocean.

Spawning migrations known as ‘‘runs’’
occur throughout the year, varying by
species and location. Most adult fish
return or ‘‘home’’ with great fidelity to
spawn in their natal stream, although
some do stray to non-natal streams.

Salmon species die after spawning,
except anadromous O. mykiss
(steelhead), which may return to the
ocean and make one or more repeat
spawning migrations. This complex life
cycle gives rise to complex habitat
needs, particularly during the
freshwater phase (see review by Spence
et al., 1996). Spawning gravels must be
of a certain size and free of sediment to
allow successful incubation of the eggs.

Eggs also require cool, clean, and well-
oxygenated waters for proper
development. Juveniles need abundant
food sources, including insects,
crustaceans, and other small fish. They
need places to hide from predators
(mostly birds and bigger fish), such as
under logs, root wads and boulders in
the stream, and beneath overhanging
vegetation. They also need places to
seek refuge from periodic high flows
(side channels and off channel areas)
and from warm summer water
temperatures (coldwater springs and
deep pools). Returning adults generally
do not feed in fresh water but instead
rely on limited energy stores to migrate,
mature, and spawn. Like juveniles, they
also require cool water and places to
rest and hide from predators. During all
life stages salmon require cool water
that is free of contaminants. They also
require rearing and migration corridors
with adequate passage conditions (water
quality and quantity available at specific
times) to allow access to the various
habitats required to complete their life
cycle.

The homing fidelity of salmon has
created a metapopulation structure with
distinct populations distributed among
watersheds (McElhany et al., 2000). Low
levels of straying result in regular
genetic exchange among populations,
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populations in adjacent watersheds.

Maintenance of the metapopulation
structure requires a distribution of
populations among watersheds where
environmental risks (e.g., from
landslides or floods) are likely to vary.

It also requires migratory connections
among the watersheds to allow for
periodic genetic exchange and alternate
spawning sites in the case that natal
streams are inaccessible due to natural
events such as a drought or landslide.

More detailed information describing
habitat and life history characteristics of
the ESUs is contained in the proposed
rule (69 FR 71880; December 10, 2004),
agency status reviews for each ESU,
technical recovery team products, and
in a biological report supporting these
designations (NMFS, 2005a).

Identifying the Geographical Area
Occupied by the Species and Specific
Areas Within the Geographical Area
In past critical habitat designations,
we had concluded that the limited
availability of species distribution data
prevented mapping salmonid critical
habitat at a scale finer than occupied
river basins (65 FR 7764; February 16,
2000). Therefore, the 2000 designations
defined the ‘‘geographical area occupied
by the species, at the time of listing’’ as
all accessible river reaches within the
current range of the listed species.

In the proposed rule we described in
greater detail that since the previous
designations in 2000, we can now be
somewhat more precise about the
‘‘geographical area occupied by the
species’’ because of efforts by agency
biologists, in coordination with Federal
and state co-managers, to compile
information and map actual species
distribution at the level of stream
reaches. Moreover, much of the
available data can now be accessed and
analyzed using geographic information
systems (GIS) to produce consistent and
fine-scale maps. The current mapping
effort for these ESUs documents fish
presence and identifies occupied stream
reaches where the species has been
observed. It also identifies stream
reaches where the species is presumed
to occur based on the professional
judgment of biologists familiar with the
watershed. We made use of these finer-
scale data for the current critical habitat
designations, and we now believe that
they enable a more accurate delineation
of the ‘‘geographical area occupied by
the species’’ referred to in the ESA
definition of critical habitat.

We are now also able to identify
‘‘specific areas’’ (ESA section 3(5)(a))
and ‘‘particular areas’’ (ESA section
4(b)(2)) at a finer scale than in 2000. As
described in the proposed rule, we have
used the State of California’s
CALWATER watershed classification
system, which is similar to the USGS
watershed classification system that was
used for salmonid critical habitat
designations in the Northwest. This
information is now generally available
via the internet, and we have expanded
our GIS resources to use these data. We
used the CALWATER Hydrologic
Subarea (HSA) unit (which is generally
similar in size to USGS HUC5s) to
organize critical habitat information
systematically and at a scale that, while
somewhat broad geographically, is
applicable to the spatial distribution of
salmon. Organizing information at this
scale is especially relevant to salmonids,
since their innate homing ability allows
them to return to the watersheds where
they were born. Such site fidelity results
in spatial aggregations of salmonid
populations that generally correspond to
the area encompassed by HSA
watersheds or aggregations of these
watersheds.

The CALWATER system maps
watershed units as polygons, bounding
a drainage area from ridge-top to ridge-
top, encompassing streams, riparian
areas and uplands. Within the
boundaries of any HSA watershed, there
are stream reaches not occupied by the
species. Land areas within the
CALWATER HSA boundaries are also
generally not ‘‘occupied’’ by the species
(though certain areas such as flood
plains or side channels may be occupied
at some times of some years). We used
the watershed boundaries as a basis for
aggregating occupied stream reaches, for
purposes of delineating ‘‘specific’’ areas
at a scale that often corresponds well to
salmonid population structure and
ecological processes. This designation
refers to the occupied stream reaches
within the watershed boundary as the
‘‘habitat area’’ to distinguish it from the
entire area encompassed by the
watershed boundary. Each habitat area
was reviewed by the CHARTs to verify
occupation, PCEs, and special
management considerations (see
‘‘Critical Habitat Analytical Review
Teams’’ section below).

The watershed-scale aggregation of
stream reaches also allowed us to
analyze the impacts of designating a
‘‘particular area,’’ as required by ESA
section 4(b)(2). As a result of watershed
processes, many activities occurring in
riparian or upland areas and in non-
fish-bearing streams may affect the
physical or biological features essential
to conservation in the occupied stream
reaches. The watershed boundary thus
describes an area in which Federal
activities have the potential to affect
critical habitat (Spence et al., 1996).

Using watershed boundaries for the
economic analysis ensured that all
potential economic impacts were
considered. Section 3(5) defines critical
habitat in terms of ‘‘specific areas,’’ and
section 4(b)(2) requires the agency to
consider certain factors before
designating ‘‘particular areas.’’ In the
case of Pacific salmonids, the biology of
the species, the characteristics of its
habitat, the nature of the impacts and
the limited information currently
available at finer geographic scales
made it appropriate to consider
‘‘specific areas’’ and ‘‘particular areas’’
as the same unit.

Occupied estuarine areas were also
considered in the context of defining
‘‘specific areas.’’ In our proposed rule
we noted that estuarine areas are crucial
for juvenile salmonids, given their
multiple functions as areas for rearing/
feeding, freshwater-saltwater
acclimation, and migration (Simenstad
et al., 1982; Marriott et al., 2002). The
San Francisco Bay estuary complex
consists of five CALWATER HSA
watershed units that are separate from
upstream freshwater habitats that drain
into the estuarine complex, and these
units were analyzed separately. Some
other small estuaries did not correspond
to HSA watershed units nor were they
part of defined HSA watershed units,
and so we defined specific polygons
which were analyzed separately. In all
occupied estuarine areas we were able
to identify physical or biological
features essential to the conservation of
the species, and that may require special
management considerations or
protection. For those estuarine areas
designated as critical habitat we are
again delineating them in similar terms
to our past designations, as being
defined by a line connecting the furthest
land points at the estuary mouth.

In previous designations of salmonid
critical habitat we did not designate
offshore marine areas. In the Pacific
Ocean, we concluded that there may be
essential habitat features, but we could
not identify any special management
considerations or protection associated
with them as required under section
3(5)(A)(i) of the ESA (65 FR 7776;
February 16, 2000). Since that time we
have carefully considered the best
available scientific information, and
related agency actions, such as the
designation of Essential Fish Habitat
under the Magnuson-Stevens Fishery
Conservation and Management Act. In
contrast to estuarine areas, we conclude
that it is not possible to identify
‘‘specific areas’’ in the Pacific Ocean
that contain essential features for
salmonids. Also, links between human
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to listed salmonids are less direct in
offshore marine areas. Perhaps the
closest linkage exists for salmon prey
species that are harvested commercially
(e.g., Pacific herring) and, therefore, may
require special management
considerations or protection. However,
because salmonids are opportunistic
feeders we could not identify ‘‘specific
areas’’ where these or other essential
features are found within this vast
geographic area occupied by salmon and
steelhead. Moreover, prey species move
or drift great distances throughout the
ocean and would be difficult to link to
any ‘‘specific’’ areas. Therefore, we are
not designating critical habitat in
offshore marine areas. We requested
comment on this issue in our proposed
rule but did not receive comments or
information that would change our
conclusion.

Primary Constituent Elements
In determining what areas are critical
habitat, agency regulations at 50 CFR
424.12(b) require that we must
‘‘consider those physical or biological
features that are essential to the
conservation of a given species * * *,
including space for individual and
population growth and for normal
behavior; food, water, air, light,
minerals, or other nutritional or
physiological requirements; cover or
shelter; sites for breeding, reproduction,
and rearing of offspring; and habitats
that are protected from disturbance or
are representative of the historical
geographical and ecological distribution
of a species.’’ The regulations further
direct us to ‘‘focus on the principal
biological or physical constituent
elements * * * that are essential to the
conservation of the species,’’ and
specify that the ‘‘known primary
constituent elements shall be listed with
the critical habitat description.’’ The
regulations identify primary constituent
elements (PCEs) as including, but not
limited to: ‘‘roost sites, nesting grounds,
spawning sites, feeding sites, seasonal
wetland or dryland, water quality or
quantity, host species or plant
pollinator, geological formation,
vegetation type, tide, and specific soil
types.’’
NMFS biologists developed a list of
PCEs that are essential to the species’
conservation and based on the unique
life history of salmon and steelhead and
their biological needs (Hart, 1973;
Beauchamp et al., 1983; Laufle et al.,
1986; Pauley et al., 1986, 1988, and
1989; Groot and Margolis, 1991; Spence
et al., 1996). Guiding the identification
of PCEs was a decision matrix we
developed for use in ESA section 7
consultations (NMFS, 1996) which
describes general parameters and
characteristics of most of the essential
features under consideration in this
critical habitat designation. We
identified these PCEs and requested
comment on them in the ANPR (68 FR
55931; September 29, 2003) and
proposed rule (69 FR 74636; December
14, 2005) but did not receive
information to support changing them.

The ESUs addressed in this final rule
share many of the same rivers and
estuaries and have similar life history
characteristics and, therefore, many of
the same PCEs. These PCEs include sites
essential to support one or more life
stages of the ESU (sites for spawning,
rearing, migration and foraging). These
sites in turn contain physical or
biological features essential to the
conservation of the ESU (for example,
spawning gravels, water quality and
quantity, side channels, forage species).

The specific PCEs include:

1. Freshwater spawning sites with
water quantity and quality conditions
and substrate supporting spawning,
incubation and larval development.

These features are essential to
conservation because without them the
species cannot successfully spawn and
produce offspring.

2. Freshwater rearing sites with water
quantity and floodplain connectivity to
form and maintain physical habitat
conditions and support juvenile growth
and mobility; water quality and forage
supporting juvenile development; and
natural cover such as shade, submerged
and overhanging large wood, log jams
and beaver dams, aquatic vegetation,
large rocks and boulders, side channels,
and undercut banks. These features are
essential to conservation because
without them juveniles cannot access
and use the areas needed to forage,
grow, and develop behaviors (e.g.,
predator avoidance, competition) that
help ensure their survival.

3. Freshwater migration corridors free
of obstruction with water quantity and
quality conditions and natural cover
such as submerged and overhanging
large wood, aquatic vegetation, large
rocks and boulders, side channels, and
undercut banks supporting juvenile and
adult mobility and survival. These
features are essential to conservation
because without them juveniles cannot
use the variety of habitats that allow
them to avoid high flows, avoid
predators, successfully compete, begin
the behavioral and physiological
changes needed for life in the ocean,
and reach the ocean in a timely manner.

Similarly, these features are essential for
adults because they allow fish in a non-
feeding condition to successfully swim
upstream, avoid predators, and reach
spawning areas on limited energy stores.

4. Estuarine areas free of obstruction
with water quality, water quantity, and
salinity conditions supporting juvenile
and adult physiological transitions
between fresh- and saltwater; natural
cover such as submerged and
overhanging large wood, aquatic
vegetation, large rocks and boulders,
and side channels; and juvenile and
adult forage, including aquatic
invertebrates and fishes, supporting
growth and maturation. These features
are essential to conservation because
without them juveniles cannot reach the
ocean in a timely manner and use the
variety of habitats that allow them to
avoid predators, compete successfully,
and complete the behavioral and
physiological changes needed for life in
the ocean. Similarly, these features are
essential to the conservation of adults
because they provide a final source of
abundant forage that will provide the
energy stores needed to make the
physiological transition to fresh water,
migrate upstream, avoid predators, and
develop to maturity upon reaching
spawning areas.

5. Nearshore marine areas free of
obstruction with water quality and
quantity conditions and forage,
including aquatic invertebrates and
fishes, supporting growth and
maturation; and natural cover such as
submerged and overhanging large wood,
aquatic vegetation, large rocks and
boulders, and side channels. As in the
case with freshwater migration corridors
and estuarine areas, nearshore marine
features are essential to conservation
because without them juveniles cannot
successfully transition from natal
streams to offshore marine areas.

6. Offshore marine areas with water
quality conditions and forage, including
aquatic invertebrates and fishes,
supporting growth and maturation.

These features are essential for
conservation because without them
juveniles cannot forage and grow to
adulthood. However, for the reasons
stated previously in this document, it is
difficult to identify specific areas
containing this PCE as well as human
activities that may affect the PCE
condition in those areas. Therefore, we
have not designated any specific areas
based on this PCE but instead have
identified it because it is essential to the
species’ conservation and specific
offshore areas may be identified in the
future (in which case any designation
would be subject to separate
rulemaking).

The occupied habitat areas designated
in this final rule contain PCEs required
to support the biological processes for
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CHARTs verified this for each
watershed/nearshore zone by relying on
the best available scientific data
(including species distribution maps,
watershed analyses, and habitat
surveys) during their review of occupied
areas and resultant assessment of area
conservation values (NMFS, 2005a). The
contribution of the PCEs varies by site
and biological function such that the
quality of the elements may vary within
a range of acceptable conditions. The
CHARTs took this variation into account
when they assessed the conservation
value of an area.

Special Management Considerations or
Protections
An occupied area cannot be
designated as critical habitat unless it
contains physical and biological
features that ‘‘may require special
management considerations or
protection.’’ Agency regulations at
424.02(j) define ‘‘special management
considerations or protection’’ to mean
‘‘any methods or procedures useful in
protecting physical and biological
features of the environment for the
conservation of listed species.’’
As part of the biological assessment
described below under ‘‘Critical Habitat
Analytical Review Teams,’’ teams of
biologists examined each habitat area to
determine whether the physical or
biological features may require special
management consideration. These
determinations are identified for each
area in the CHART report (NMFS,
2005a). In the case of salmon and
steelhead, the CHARTs identified a
variety of activities that threaten the
physical and biological features
essential to listed salmon and steelhead
(see review by Spence et al., 1996),
including: (1) Forestry; (2) grazing and
other associated rangeland activities; (3)
agriculture; (4) road building/
maintenance; (5) channel modifications/
diking/stream bank stabilization; (6)
urbanization; (7) sand and gravel
mining; (8) mineral mining; (9) dams;
(10) irrigation impoundments and
withdrawals; (11) wetland loss/removal;
(12) exotic/invasive species
introductions; and (13) impediments to
migration. In addition to these, the
harvest of salmonid prey species (e.g.,
forage fishes such as herring, anchovy,
and sardines) may present another
potential habitat-related management
activity (Pacific Fishery Management
Council, 1999).

Unoccupied Areas
ESA section 3(5)(A)(ii) defines critical
habitat to include ‘‘specific areas
outside the geographical area occupied’’
if the areas are determined by the
Secretary to be ‘‘essential for the
conservation of the species.’’ NMFS
regulations at 50 CFR 424.12(e)
emphasize that we ‘‘shall designate as
critical habitat areas outside the
geographical area presently occupied by
a species only when a designation
limited to its present range would be
inadequate to ensure the conservation of
the species.’’ The CHARTs did identify
several unoccupied areas above dams
that may be essential for the
conservation of specific ESUs, primarily
within the historical range of the Central
Valley spring run Chinook, Central
Valley steelhead, and Southern
California steelhead ESUs (see proposed
rule; 69 FR 71880; December 10, 2004);
however, we are not designating
unoccupied areas at this time. Though
it is not possible to conclude at this time
that any of these historically occupied
areas warrant designation, we believe it
is useful to signal to the public that
these specific areas may be considered
for possible designation in the future.

However, any designation of
unoccupied areas would be based on the
required determination that such area is
essential for the conservation of an ESU
and would be subject to separate
rulemaking with the opportunity for
notice and comment.

Lateral Extent of Critical Habitat
In past designations we have
described the lateral extent of critical
habitat in various ways ranging from
fixed distances to ‘‘functional’’ zones
defined by important riparian functions
(65 FR 7764; February 16, 2000). Both
approaches presented difficulties, and
this was highlighted in several
comments (most of which requested that
we focus on aquatic areas only) received
in response to the ANPR (68 FR 55926;
September 29, 2003). Designating a set
riparian zone width will (in some
places) accurately reflect the distance
from the stream on which PCEs might
be found, but in other cases may over-
or understate the distance. Designating
a functional buffer avoids that problem,
but makes it difficult for Federal
agencies to know in advance what areas
are critical habitat. To address these
issues we are proposing to define the
lateral extent of designated critical
habitat as the width of the stream
channel defined by the ordinary high-
water line as defined by the COE in 33
CFR 329.11. This approach is consistent
with the specific mapping requirements
described in agency regulations at 50
CFR 424.12(c). In areas for which
ordinary high-water has not been
defined pursuant to 33 CFR 329.11, the
width of the stream channel shall be
defined by its bankfull elevation.

Bankfull elevation is the level at which
water begins to leave the channel and
move into the floodplain (Rosgen, 1996)
and is reached at a discharge which
generally has a recurrence interval of 1
to 2 years on the annual flood series
(Leopold et al., 1992). Such an interval
is commensurate with nearly all of the
juvenile freshwater life phases of most
salmon and steelhead ESUs. Therefore,
it is reasonable to assert that for an
occupied stream reach this lateral extent
is regularly ‘‘occupied’’. Moreover, the
bankfull elevation can be readily
discerned for a variety of stream reaches
and stream types using recognizable
water lines (e.g., marks on rocks) or
vegetation boundaries (Rosgen, 1996).

As underscored in previous critical
habitat designations, the quality of
aquatic habitat within stream channels
is intrinsically related to the adjacent
riparian zones and floodplain, to
surrounding wetlands and uplands, and
to non-fish-bearing streams above
occupied stream reaches. Human
activities that occur outside the stream
can modify or destroy physical and
biological features of the stream. In
addition, human activities that occur
within and adjacent to reaches upstream
(e.g., road failures) or downstream (e.g.,
dams) of designated stream reaches can
also have demonstrable effects on
physical and biological features of
designated reaches.

In estuarine areas we believe that
extreme high water is the best descriptor
of lateral extent. We are designating the
area inundated by extreme high tide
because it encompasses habitat areas
typically inundated and regularly
occupied during the spring and summer
when juvenile salmon are migrating in
the nearshore zone and relying heavily
on forage, cover, and refuge qualities
provided by these occupied habitats. As
noted above for stream habitat areas,
human activities that occur outside the
area inundated by extreme or ordinary
high water can modify or destroy
physical and biological features of the
nearshore habitat areas, and Federal
agencies must be aware of these
important habitat linkages as well.

Military Lands
The Sikes Act of 1997 (Sikes Act) (16
U.S.C. 670a) required each military
installation that includes land and water
suitable for the conservation and
management of natural resources to
complete, by November 17, 2001, an
INRMP. An INRMP integrates
implementation of the military mission
of the installation with stewardship of
the natural resources found there. Each
INRMP includes: an assessment of the
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including the need to provide for the
conservation of listed species; a
statement of goals and priorities; a
detailed description of management
actions to be implemented to provide
for these ecological needs; and a
monitoring and adaptive management
plan. Among other things, each INRMP
must, to the extent appropriate and
applicable, provide for fish and wildlife
management, fish and wildlife habitat
enhancement or modification, wetland
protection, enhancement, and
restoration where necessary to support
fish and wildlife and enforcement of
applicable natural resource laws.

The National Defense Authorization
Act for Fiscal Year 2004 (Pub. L. No.
108–136) amended the ESA to address
designation of military lands as critical
habitat. Specifically, section 4(a)(3)(B)(i)
of the ESA (16 U.S.C. 1533(a)(3)(B)(i))
now provides: ‘‘The Secretary shall not
designate as critical habitat any lands or
other geographical areas owned or
controlled by the Department of
Defense, or designated for its use, that
are subject to an integrated natural
resources management plan prepared
under section 101 of the Sikes Act (16
U.S.C. 670a), if the Secretary determines
in writing that such plan provides a
benefit to the species for which critical
habitat is proposed for designation.’’
To address this new provision we
contacted the DOD and requested
information on all INRMPs that might
benefit Pacific salmon. In response to
the ANPR (68 FR 55926; September 29,
2003) we had already received a letter
from the U.S. Marine Corps regarding
this and other issues associated with a
possible critical habitat designation on
its facilities in the range of the Southern
California Steelhead ESU. In response to
our request, the military services
identified 25 installations in California
with INRMPs in place or under
development. Based on information
provided by the military, as well as GIS
analysis of fish distributional
information compiled by NMFS’’
Southwest Region (NMFS, 2004b;
NMFS, 2005a) and land use data, we
determined that the following facilities
with INRMPs overlap with habitat areas
under consideration for critical habitat
designation in California: (1) Camp
Pendleton Marine Corps Base; (2)
Vandenberg Air Force Base; (3) Camp
San Luis Obispo; (4) Camp Roberts; and
(5) Mare Island Army Reserve Center.

Two additional facilities are adjacent to,
but do not overlap with, habitat areas
under consideration for critical habitat
in California: (1) Naval Weapons
Station, Seal Beach/Concord
Detachment; and (2) Point Mugu Naval
Air Station. None of the remaining
facilities with INRMPs in place
overlapped with or were adjacent to
habitat under consideration for critical
habitat based on the information
available to us. All of these INRMPs are
final except for the Vandenberg Air
Force Base INRMP, which is expected to
be finalized in the near term.

We identified habitat of value to listed
salmonids in each INRMP and reviewed
these plans, as well as other information
available regarding the management of
these military lands. Our review
indicates that each of these INRMPs
addresses habitat for salmonids, and all
contain measures that provide benefits
to ESA-listed salmon and steelhead.

Examples of the types of benefits
include actions that control erosion,
protect riparian zones, minimize
stormwater and construction impacts,
reduce contaminants, and monitor listed
species and their habitats. As a result of
our review, we have determined that the
final INRMPs and the draft INRMP for
Vandenberg Air Force Base provide a
benefit to the species for which critical
habitat is proposed for designation, and,
therefore, we are not designating critical
habitat in those areas. Also, we have
received information from the
Vandenberg Air Force Base and Camp
Pendleton Marine Corps Base
identifying national security impacts to
their operations from critical habitat
designation. Our consideration of such
impacts is separate from our assessment
of INRMPs, but serves as an
independent and sufficient basis for our
determination not to designate those
areas as critical habitat.

Critical Habitat Analytical Review
Teams
To assist in the designation of critical
habitat, we convened several CHARTs
organized by major geographic domains
that roughly correspond to salmon
recovery planning domains in
California. The CHARTs consisted of
NMFS fishery biologists from the
Southwest Region with demonstrated
expertise regarding salmonid habitat
and related protective efforts within the
domain. The CHARTs were tasked with
compiling and assessing biological
information pertaining to areas under
consideration for designation as critical
habitat. Each CHART worked closely
with GIS specialists to develop maps
depicting the spatial distribution of
habitat occupied by each ESU and the
use of occupied habitat on stream
hydrography at a scale of 1:100,000. The
CHARTs also reconvened to review the
public comments and any new
information regarding the ESUs and
habitat in their domain.

The CHARTs examined each habitat
area within the watershed to determine
whether the stream reaches or lakes
occupied by the species contain the
physical or biological features essential
to conservation. As noted previously,
the CHARTs also relied on their
experience conducting ESA section 7
consultations and existing management
plans and protective measures to
determine whether these features may
require special management
considerations or protection.

In addition to occupied areas, the
definition of critical habitat also
includes unoccupied areas if we
determine that area is essential for
conservation of a species. Accordingly
the CHARTs were also asked whether
there were any unoccupied areas within
the historical range of the ESUs that
may be essential for conservation. For
the seven ESUs addressed in this
rulemaking, the CHARTs did not have
sufficient information that would allow
them to conclude that specific
unoccupied areas were essential for
conservation; however, in many cases
they were able to identify areas they
believed may be determined essential
through future recovery planning
efforts. These were described in the
proposed critical habitat designation
rule (69 FR 71880).

The CHARTs were next asked to
determine the relative conservation
value of each occupied HSA watershed
area for each ESU. The CHARTs scored
each habitat area based on several
factors related to the quantity and
quality of the physical and biological
features. They next considered each area
in relation to other areas and with
respect to the population occupying that
area. Based on a consideration of the
raw scores for each area, and a
consideration of that area’s contribution
in relation to other areas and in relation
to the overall population structure of the
ESU, the CHARTs rated each habitat
area as having a ‘‘high,’’ ‘‘medium,’’ or
‘‘low’’ conservation value. The
preliminary CHART ratings were
reviewed by several state and tribal co-
managers in advance of the proposed
rule and the CHARTs made needed
changes prior to that rule. State co-
managers also evaluated our proposed
rule and provided comments and new
information which were also reviewed
and incorporated as needed by the
CHARTs in the preparation of the final
designations.

The rating of habitat areas as having
a high, medium, or low conservation
value provided information useful to
inform the Secretary’s exercise of
discretion in balancing whether the
benefits of exclusion outweigh the
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4(b)(2). The higher the conservation
value for an area, the greater may be the
likely benefit of the ESA section 7
protections. We recognized that the
‘‘benefit of designation’’ would also
depend on the likelihood of a
consultation occurring and the
improvements in species’ conservation
that may result from changes to
proposed Federal actions. To address
this concern, we developed a profile for
a ‘‘low leverage’’ watershed— that is, a
watershed where it was unlikely there
would be a section 7 consultation, or
where a section 7 consultation, if it did
occur, would yield few conservation
benefits. For watersheds not meeting the
‘‘low leverage’’ profile, we considered
their conservation rating to be a fair
assessment of the benefit of designation,
for purposes of our cost-effectiveness
framework (NMFS 2005c). For
watersheds meeting the ‘‘low leverage’’
profile, we considered the benefit of
designation to be an increment lower
than the conservation rating. For
example, therefore, a watershed with a
‘‘high’’ conservation value but ‘‘low
leverage’’ was considered to have a
‘‘medium’’ benefit of designation, and
so forth. We then applied the dollar
thresholds for exclusion appropriate to
the adjusted ‘‘benefit of designation.’’
As discussed earlier, the scale chosen
for the ‘‘specific area’’ referred to in
section 3(5)(a) was an HSA watershed as
delineated by the CALWATER
watershed classification system. This
delineation required us to adapt the
approach for some areas. For example,
a large stream or river might serve as a
rearing and migration corridor to and
from many watersheds, yet be
embedded itself in a watershed. In any
given watershed through which it
passes, the stream may have a few or
several tributaries. For rearing/migration
corridors embedded in a watershed, the
CHARTs were asked to rate the
conservation value of the watershed
based on the tributary habitat. We
assigned the rearing/migration corridor
the rating of the highest-rated watershed
for which it served as a rearing/
migration corridor. The reason for this
treatment of migration corridors is the
role they play in the salmon’s life cycle.

Salmon are anadromous— born in fresh
water, migrating to salt water to feed
and grow, and returning to fresh water
to spawn. Without a rearing/migration
corridor to and from the sea, salmon
cannot complete their life cycle. It
would be illogical to consider a
spawning and rearing area as having a
particular conservation value and not
consider the associated rearing/
migration corridor as having a similar
conservation value.

V. Application of ESA Section 4(b)(2)
The foregoing discussion describes
those areas that are eligible for
designation as critical habitat— the
specific areas that fall within the ESA
section 3(5)(A) definition of critical
habitat, minus those lands owned or
controlled by the DOD, or designated for
its use, that are covered by an INRMP
that we have determined provides a
benefit to the species.

Specific areas eligible for designation
are not automatically designated as
critical habitat. Section 4(b)(2) of the
ESA requires that the Secretary first
considers the economic impact, impact
on national security, and any other
relevant impact. The Secretary has the
discretion to exclude an area from
designation if he determines the benefits
of exclusion (that is, avoiding the
impact that would result from
designation) outweigh the benefits of
designation. 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 areas. In this
rulemaking, the Secretary has applied
his statutory discretion to exclude areas
from critical habitat for several different
reasons.

In this exercise of discretion, the first
issue we must address is the scope of
impacts relevant to the 4(b)(2)
evaluation. As discussed in the
Background and Previous Federal
Action section, we are re-designating
critical habitat for these seven ESUs
because the previous designations were
vacated (National Association of
Homebuilders v. Evans, 2002 WL
1205743 No. 00–CV–2799 (D.D.C.)
(NAHB)). The NAHB court had agreed
with the reasoning of the Court of
Appeals for the Tenth Circuit in New
Mexico Cattle Growers Association v.

U.S. Fish and Wildlife Service, 248 F.3d
1277 (10th Cir. 2001). In that decision,
the Tenth Circuit stated ‘‘[t]he statutory
language is plain in requiring some kind
of consideration of economic impact in
the critical habitat designation phase.’’
The Tenth Circuit concluded that, given
the USFWS’’ failure to distinguish
between ‘‘adverse modification’’ and
‘‘jeopardy’’ in its 4(b)(2) analysis, the
USFWS must analyze the full impacts of
critical habitat designation, regardless of
whether those impacts are coextensive
with other impacts (such as the impact
of the jeopardy requirement).

In re-designating critical habitat for
these salmon ESUs, we have followed
the Tenth Circuit Court’s directive
regarding the statutory requirement to
consider the economic impact of
designation. Areas designated as critical
habitat are subject to ESA section 7
requirements, which provide that
Federal agencies ensure that their
actions are not likely to destroy or
adversely modify critical habitat. To
evaluate the economic impact of critical
habitat we first examined our
voluminous section 7 consultation
record for these as well as other ESUs
of salmon. (For thoroughness, we
examined the consultation record for
other ESUs to see if it shed light on the
issues.) That record includes
consultations on habitat-modifying
Federal actions both where critical
habitat has been designated and where
it has not. We could not discern a
distinction between the impacts of
applying the jeopardy provision versus
the adverse modification provision in
occupied critical habitat. Given our
inability to detect a measurable
difference between the impacts of
applying these two provisions, the only
reasonable alternative seemed to be to
follow the recommendation of the Tenth
Circuit, approved by the NAHB court—
to measure the coextensive impacts; that
is, measure the entire impact of
applying the adverse modification
provision of section 7, regardless of
whether the jeopardy provision alone
would result in the identical impact.

The Tenth Circuit’s opinion only
addressed ESA section 4(b)(2)’s
requirement that economic impacts be
considered. The court did not address
how ‘‘other relevant impacts’’ were to be
considered, nor did it address the
benefits of designation. Because section
4(b)(2) requires a consideration of other
relevant impacts of designation, and the
benefits of designation, and because our
record did not support a distinction
between impacts resulting from
application of the adverse modification
provision versus the jeopardy provision,
we are uniformly considering
coextensive impacts and coextensive
benefits, without attempting to
distinguish the benefit of a critical
habitat consultation from the benefit
that would otherwise result from a
jeopardy consultation that would occur
even if critical habitat were not
designated. To do otherwise would
distort the balancing test contemplated
by section 4(b)(2).

The principal benefit of designating
critical habitat is that Federal activities
that may affect such habitat are subject
to consultation pursuant to section 7 of
the ESA. Such consultation requires
every Federal agency to ensure that any
action it authorizes, funds or carries out
is not likely to result in the destruction
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habitat. This complements the section 7
provision that Federal agencies ensure
that their actions are not likely to
jeopardize the continued existence of a
listed species. Another benefit is that
the designation of critical habitat can
serve to educate the public regarding the
potential conservation value of an area
and thereby focus and contribute to
conservation efforts by clearly
delineating areas of high conservation
value for certain species. It is unknown
to what extent this process actually
occurs, and what the actual benefit is,
as there are also concerns, noted above,
that a critical habitat designation may
discourage such conservation efforts.

The balancing test in ESA section
4(b)(2) contemplates weighing benefits
that are not directly comparable— the
benefit associated with species
conservation balanced against the
economic benefit, benefit to national
security, or other relevant benefit that
results if an area is excluded from
designation. Section 4(b)(2) does not
specify a method for the weighing
process. Agencies are frequently
required to balance benefits of
regulations against impacts; E.O. 12866
established this requirement for Federal
agency regulation. Ideally such a
balancing would involve first translating
the benefits and impacts into a common
metric. Executive branch guidance from
the OMB suggests that benefits should
first be monetized (i.e., converted into
dollars). Benefits that cannot be
monetized should be quantified (for
example, numbers of fish saved). Where
benefits can neither be monetized nor
quantified, agencies are to describe the
expected benefits (OMB, 2003).

It may be possible to monetize
benefits of critical habitat designation
for a threatened or endangered species
in terms of willingness-to-pay (OMB,
2003). However, we are not aware of any
available data that would support such
an analysis for salmon. In addition, ESA
section 4(b)(2) requires analysis of
impacts other than economic impacts
that are equally difficult to monetize,
such as benefits to national security of
excluding areas from critical habitat. In
the case of salmon designations, impacts
to Northwest tribes are an ‘‘other
relevant impact’’ that also may be
difficult to monetize.

An alternative approach, approved by
OMB (OMB, 2003), is to conduct a cost-
effectiveness analysis. A cost-
effectiveness analysis ideally first
involves quantifying benefits, for
example, percent reduction in
extinction risk, percent increase in
productivity, or increase in numbers of
fish. Given the state of the science, it
would be difficult to quantify reliably
the benefits of including particular areas
in the critical habitat designation.

Although it is difficult to monetize or
quantify benefits of critical habitat
designation, it is possible to
differentiate among habitat areas based
on their relative contribution to
conservation. For example, habitat areas
can be rated as having a high, medium,
or low conservation value. The
qualitative ordinal evaluations can then
be combined with estimates of the
economic costs of critical habitat
designation in a framework that
essentially adopts that of cost-
effectiveness. Individual habitat areas
can then be assessed using both their
biological evaluation and economic
cost, so that areas with high
conservation value and lower economic
cost might be considered to have a
higher priority for designation, while
areas with a low conservation value and
higher economic cost might have a
higher priority for exclusion. While this
approach can provide useful
information to the decision-maker, there
is no rigid formula through which this
information translates into exclusion
decisions. Every geographical area
containing habitat eligible for
designation is different, with a unique
set of ‘‘relevant impacts’’ that may be
considered in the exclusion process.

Regardless of the analytical approach,
section 4(b)(2) makes clear that what
weight the agency gives various impacts
and benefits, and whether the agency
excludes areas from the designation, is
discretionary.

Exclusions Based on Impacts to Tribes
The principal benefit of designating
critical habitat is that Federal activities
that may affect such habitat are subject
to consultation pursuant to section 7 of
the ESA. We believe there is very little
benefit to designating critical habitat on
Indian lands for these seven ESUs.

Although there are potentially a number
of activities on Indian lands that may
trigger section 7 consultation, Indian
lands comprise only a very minor
portion (substantially less than 1
percent) of the total habitat under
consideration for these seven California
ESUs. Specifically, occupied stream
reaches on Indian lands only occur
within the range of the California
Coastal Chinook, Northern California
steelhead, and Central California Coast
steelhead ESUs, and these areas
represent less than 0.1 percent of the
total occupied habitat under
consideration for these three ESUs.

Based on our analysis, the remaining
four ESUs did not contain any Indian
lands that overlapped with occupied
stream habitat. These percentages are
likely overestimates as they include all
habitat area within reservation
boundaries.

There are several benefits to
excluding Indian lands. The
longstanding and distinctive
relationship between the Federal and
tribal governments is defined by
treaties, statutes, executive orders,
judicial decisions, and agreements,
which differentiate tribal governments
from the other entities that deal with, or
are affected by, the Federal government.

This relationship has given rise to a
special Federal trust responsibility
involving the legal responsibilities and
obligations of the United States toward
Indian Tribes and the application of
fiduciary standards of due care with
respect to Indian lands, tribal trust
resources, and the exercise of tribal
rights. Pursuant to these authorities
lands have been retained by Indian
Tribes or have been set aside for tribal
use. These lands are managed by Indian
Tribes in accordance with tribal goals
and objectives within the framework of
applicable treaties and laws.

In addition to the distinctive trust
relationship for Pacific salmon and
steelhead in California and in the
Northwest, there is a unique partnership
between the Federal government and
Indian tribes regarding salmon
management. Indian tribes in California
and the Northwest are regarded as ‘‘co-
managers’’ of the salmon resource, along
with Federal and State managers. This
co-management relationship evolved as
a result of numerous court decisions
clarifying the tribes’ treaty right to take
fish in their usual and accustomed
places.

The benefits of excluding Indian
lands from designation include: (1) The
furtherance of established national
policies, our Federal trust obligations
and our deference to the tribes in
management of natural resources on
their lands; (2) the maintenance of
effective long-term working
relationships to promote the
conservation of salmonids on an
ecosystem-wide basis; (3) the allowance
for continued meaningful collaboration
and cooperation in scientific work to
learn more about the conservation needs
of the species on an ecosystem-wide
basis; and (4) continued respect for
tribal sovereignty over management of
natural resources on Indian lands
through established tribal natural
resource programs.

We believe that the current co-
manager process addressing activities
on an ecosystem-wide basis across the
State is currently beneficial for the
conservation of the salmonids. Because
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coordinated ongoing focused action
through a variety of forums, we find the
benefits of this process to be greater
than the benefits of applying ESA
section 7 to Federal activities on Indian
lands, which comprise much less than
one percent of the total area under
consideration for these ESUs.

Additionally, we have determined that
the exclusion of tribal lands will not
result in the extinction of the species
concerned. We also believe that
maintenance of our current co-manager
relationship consistent with existing
policies is an important benefit to
continuance of our tribal trust
responsibilities and relationship. Based
upon our consultation with the Round
Valley Indian Tribes and the BIA, we
believe that designation of Indian lands
as critical habitat would adversely
impact our working relationship and the
benefits resulting from this relationship.

Based upon these considerations, we
have decided to exercise agency
discretion under ESA section 4(b)(2)
and exclude Indian lands from the
critical habitat designation for these
ESUs of salmonids. The Indian lands
specifically excluded from critical
habitat are those defined in the
Secretarial Order, including: (1) Lands
held in trust by the United States for the
benefit of any Indian tribe; (2) land held
in trust by the United States for any
Indian Tribe or individual subject to
restrictions by the United States against
alienation; (3) fee lands, either within or
outside the reservation boundaries,
owned by the tribal government; and (4)
fee lands within the reservation
boundaries owned by individual
Indians. The Indian tribes for which
these exclusions apply in California
include: Big Lagoon Reservation, Blue
Lake Rancheria, Round Valley Indian
Tribes, Laytonville Rancheria, Redwood
Valley Rancheria, Coyote Valley
Reservation, and Manchester-Point
Arena Rancheria. We have determined
that these exclusions, together with the
other exclusions described in this rule,
will not result in the extinction of any
of the seven ESUs in this designation.

Impacts to Landowners With
Contractual Commitments to
Conservation
Conservation agreements with non-
Federal landowners (e.g., HCPs)
enhance species conservation by
extending species’ protections beyond
those available through section 7
consultations. In the past decade we
have encouraged non-Federal
landowners to enter into conservation
agreements, based on a view that we can
achieve greater species’ conservation on
non-Federal land through such
partnerships than we can through
coercive methods (61 FR 63854;
December 2, 1996).

Section 10(a)(1)(B) of the ESA
authorizes us to issue to non-Federal
entities a permit for the incidental take
of endangered and threatened species.

This permit allows a non-Federal
landowner to proceed with an activity
that is legal in all other respects, but
that results in the incidental taking of a
listed species (i.e., take that is incidental
to, and not the purpose of, the carrying
out of an otherwise lawful activity). The
ESA specifies that an application for an
incidental take permit must be
accompanied by a conservation plan,
and specifies the content of such a plan.

The purpose of such an HCP is to
describe and ensure that the effects of
the permitted action on covered species
are adequately minimized and
mitigated, and that the action does not
appreciably reduce the survival and
recovery of the species.

To date we have not excluded critical
habitat on lands covered by an HCP, but
we acknowledged in our proposed rule
that this was an emerging issue and that
the benefits of such exclusions may
outweigh the benefits of designation (69
FR 74623; December 14, 2004). As
described in greater detail above (see
Comment 42) and in our assessment of
HCPs associated with this final
rulemaking (NMFS, 2005e), the analysis
required for these types of exclusions
requires careful consideration of the
benefits of designation versus the
benefits of exclusion to determine
whether benefits of exclusion outweigh
benefits of designation. The benefits of
designation typically arise from
additional section 7 protections as well
as enhanced public awareness once
specific areas are identified as critical
habitat. The benefits of exclusion
generally relate to relieving regulatory
burdens on existing conservation
partners, maintaining good working
relationships with them, and
encouraging the development of new
partnerships.

Based on comments received on our
proposed rule, we could not conclude
that all landowners view designation of
critical habitat as imposing a burden,
and exclusion from designation as
removing that burden and thereby
strengthening the ongoing relationship.

Where an HCP partner affirmatively
requests designation, exclusion is likely
to harm rather than benefit the
relationship. Where an HCP partner has
remained silent on the benefit of
exclusion of its land, we do not believe
the record supports a presumption that
exclusion will enhance the relationship.

Similarly, we do not believe it provides
an incentive to other landowners to seek
an HCP if our exclusions are not in
response to an expressed landowner
preference. We anticipate further
rulemaking in the near future to refine
these designations, for example, in
response to developments in recovery
planning. As part of future revisions, we
will consider information we receive
from those with approved HCPs
regarding the effect of designation on
our ongoing partnership. We did not
consider pending HCPs for exclusion,
both because we do not want to
prejudge the outcome of the ongoing
HCP process, and because we expect to
have future opportunities to refine the
designation and consider whether
exclusion will outweigh the benefit of
designation in a particular case.

Exclusions Based on National Security
Impacts
As previously noted (see Military
Lands section), we evaluated several
DOD sites with draft or final INRMPs
and determined that each INRMP
provides a benefit to the listed salmon
or steelhead ESUs under consideration
at the site. Therefore, we conclude that
those areas subject to final INRMPs are
not eligible for designation pursuant to
section 4(a)(3)(B)(I) of the ESA (16
U.S.C. 1533(A)(3)). At the request of the
DOD (and in the case that an INRMP
might not provide a benefit to the
species), we also assessed the impacts
on national security that may result
from designating these and other DOD
sites as critical habitat.

The U.S. Marine Corps provided
comments in response to the ANPR (68
FR 55926; September 29, 2003)
regarding its INRMP for Camp
Pendleton Marine Corps Base and
potential impacts to national security
for this facility, which is within the
range of the Southern California O.
mykiss ESU. By letter, NMFS
subsequently provided the DOD with
information about the areas we were
considering to designate as critical
habitat for the seven ESUs in California
(as well as the 13 ESUs in the Pacific
Northwest), and, in addition to a request
for information about DOD’s INRMPs,
requested information about potential
impacts to national security as a result
of any critical habitat designation. In
response to that request and also in
comments on the proposed critical
habitat designation (69 FR 71880), the
Camp Pendleton Marine Corps Base and
Vandenberg Air Force Base provided
detailed information on such impacts to
their operations. Both military agencies
concluded that critical habitat
designation at either of these sites
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diminishing military readiness, with
possible impacts including: (1) The
prevention, restriction, or delay in
training or testing exercises or access to
such sites; (2) the restriction or delay in
activities associated with space
launches; (3) a delay in response times
for troop deployments and overall
operations; and (4) the creation of
uncertainties regarding ESA
consultation (e.g., reinitiation
requirements) or imposition of
compliance conditions that would
divert military resources. Also, both
military agencies cited their ongoing
and positive consultation history with
NMFS and underscored cases where
they are implementing best management
practices to reduce impacts on listed
salmonids. The occupied fish habitat
occurring on Camp Pendleton and
Vandenberg AFB have important
conservation value, but they are
primarily migratory corridors and
represent only a small percentage of the
total occupied habitat area for the
Southern California steelhead ESU.

Designating habitat on these two
installations will likely reduce the
readiness capability of the Marine Corps
and the Air Force, both of which are
actively engaged in training,
maintaining, and deploying forces in the
current war on terrorism. Therefore, we
conclude that the benefits of exclusion
outweigh the benefits of designation,
and we are not proposing to designate
these DOD sites as critical habitat.

Exclusions Based on Economic Impacts
Our assessment of economic impact
generated considerable interest from
commenters on the ANPR (68 FR 55926;
September 29, 2003) and the proposed
rule (69 FR 71880; December 10, 2004).

Based on new information and
comments received on the proposed
rule, we have updated the economics
report wherein we document our
conclusions regarding the economic
impacts of designating each of the
particular areas found to meet the
definition of critical habitat (NMFS,
2005b). This report is available from
NMFS (see
ADDRESSES).

The first step in the overall economic
analysis was to identify existing legal
and regulatory constraints on economic
activity that are independent of critical
habitat designation, such as Clean Water
Act (CWA) requirements. Coextensive
impacts of the ESA section 7
requirement to avoid jeopardy were not
considered part of the baseline. Also, we
have stated our intention to revisit the
existing critical habitat designations for
Sacramento River winter run Chinook
salmon and two California coastal coho
salmon ESUs, if appropriate, following
completion of related rulemaking (67 FR
6215; February 11, 2002). Given the
uncertainty that these designations will
remain in place in their current
configuration, we decided not to
consider them as part of the baseline for
the ESA section 4(b)(2) analysis.

From the consultation record, we
identified Federal activities that might
affect habitat and that might result in an
ESA section 7 consultation. (We did not
consider Federal actions, such as the
approval of a fishery, that might affect
the species directly but not affect its
habitat.) We identified ten types of
activities including: Hydropower dams;
non-hydropower dams and other water
supply structures; federal lands
management, including grazing
(considered separately); transportation
projects; utility line projects; instream
activities, including dredging
(considered separately); activities
permitted under EPA’s National
Pollution Discharge Elimination System;
sand & gravel mining; residential and
commercial development; and
agricultural pesticide applications.

Based on our consultation record and
other available information, we
determined the modifications each type
of activity was likely to undergo as a
result of section 7 consultation
(regardless of whether the modification
might be required by the jeopardy or the
adverse modification provision). We
developed an expected direct cost for
each type of action and projected the
likely occurrence of each type of project
in each watershed, using existing spatial
databases (e.g., the COE 404(d) permit
database). Finally, we aggregated the
costs from the various types of actions
and estimated an annual impact, taking
into account the probability of
consultation occurring and the likely
rate of occurrence of that project type.

This analysis allowed us to estimate
the coextensive economic impact of
designating each ‘‘particular area’’ (that
is, each habitat area, or aggregated
occupied stream reaches in an HSA
watershed). Expected economic impacts
ranged from zero to in excess of 1
million dollars per habitat area. Where
a watershed included both tributaries
and a migration corridor that served
other watersheds, we attempted to
estimate the separate impacts of
designating the tributaries and the
migration corridor. We did this by
identifying those categories of activities
most likely to affect tributaries and
those most likely to affect larger
migration corridors.

Because of the methods we selected
and the data limitations, portions of our
analysis both under- and over-estimate
the coextensive economic impact of
ESA section 7 requirements. For
example, we lacked data on the likely
impact on flows at non-Federal
hydropower projects, which would
increase economic impacts. In addition,
we did not have information about
potential changes in irrigation flows
associated with section 7 consultation
which would likely increase the
estimate of coextensive costs. On the
other hand, we estimated an impact on
all activities occurring within the
geographic boundaries of a watershed,
even though in some cases activities
would be far removed from occupied
stream reaches and so might not require
modification. In addition, we were
unable to document significant costs of
critical habitat designation that occur
outside the section 7 consultation
process, including costs resulting from
state or local regulatory burdens
imposed on developers and landowners
as a result of a Federal critical habitat
designation.

In determining whether the economic
benefit of excluding a habitat area might
outweigh the benefit of designation to
the species, we took into consideration
the many data limitations described
above. The ESA requires that we make
critical habitat designations within a
short time frame ‘‘with such data as may
be available’’ at the time. Moreover the
cost-effectiveness approach we adopted
accommodated many of these data
limitations by considering the relative
benefits of designation and exclusion,
giving priority to excluding habitat areas
with a relatively lower benefit of
designation and a relatively higher
economic impact.

The circumstances of most of the
listed ESUs can make a cost-
effectiveness approach useful. Pacific
salmon are wide-ranging species and
occupy numerous habitat areas with
thousands of stream miles. Not all
occupied areas, however, are of equal
importance to conserving an ESU.

Within the currently occupied range
there are areas that support highly
productive populations, areas that
support less productive populations,
and areas that support production in
only some years. Some populations
within an ESU may be more important
to long-term conservation of the ESU
than other populations. Therefore, in
many cases it may be possible to
construct different scenarios for
achieving conservation. Scenarios might
have more or less certainty of achieving
conservation, and more or less
economic impact.

Our first step in constructing an
exclusion scenario was to identify all
watershed areas we would consider for
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thresholds. The next step was to
examine those areas potentially eligible
for exclusion based on dollar thresholds
to determine whether or not any of them
would make an important contribution
to conservation for the ESU. Based on
the rating process used by the CHARTs,
we judged that all of the high
conservation value habitat areas make
an important contribution to
conservation, and therefore, we did not
consider them for exclusion.

In developing criteria for the first
step, we chose dollar thresholds that we
anticipated would lead most directly to
a cost effective scenario. We considered
for exclusion, low value habitat areas
with an economic impact greater than
$70,000–85,000, and medium value
areas with an economic impact greater
than $300,000.