Endangered and Threatened Species; Designation of Critical Habitat for the Southern Distinct Population Segment of Eulachon
We, the National Marine Fisheries Service (NMFS), issue a final rule to designate critical habitat for the southern Distinct Population Segment (DPS) of Pacific eulachon (Thaleichthys pacificus), pursuant to section 4 of the Endangered Species Act (ESA). We designate 16 specific areas as critical habitat within the states of California, Oregon, and Washington. The designated areas are a combination of freshwater creeks and rivers and their associated estuaries, comprising approximately 539 km (335 mi) of habitat. The Tribal lands of four Indian Tribes are excluded from designation after evaluating the impacts of designation and benefits of exclusion associated with Tribal land ownership and management by the Tribes. No areas were excluded from designation based on economic impacts.
This final rule responds to and incorporates public comments received on the proposed rule and supporting documents, as well as peer reviewer comments received on our draft biological report and draft economic report.
Endangered and Threatened Species, Designation of Critical Habitat for Southern Distinct Population Segment of Eulachon
3 actions from January 5th, 2011 to December 2011
January 5th, 2011
March 7th, 2011
- NPRM Comment Period End
- Final Action
Table of Contents Back to Top
- FOR FURTHER INFORMATION CONTACT:
- SUPPLEMENTARY INFORMATION:
- Eulachon Natural History
- Early Life History and Maturation
- Spawning Behavior
- Summary of Comments Received and Responses
- Physical or Biological Features Essential for Conservation
- Specific Areas Within the Geographical Area Occupied by the Species
- Special Management Considerations
- Unoccupied Areas
- Economic Impacts of Critical Habitat Designation
- Indian Lands Exclusions
- Summary of Revisions
- Methods and Criteria Used To Identify Critical Habitat
- Geographical Area Occupied by the Species
- Physical or Biological Features Essential for Conservation
- Specific Areas Within the Geographical Area Occupied by the Species
- Occupied Areas Not Designated at This Time
- Special Management Considerations
- Unoccupied Areas
- Military Lands
- Application of ESA Section 4(b)(2)
- Benefits of Designation
- Impacts of Designation
- Economic Impacts
- Impacts to National Security
- Other Relevant Impacts—Impacts to Tribal Sovereignty and Self-Governance
- Other Relevant Impacts—Impacts to Landowners With Contractual Commitments to Conservation
- Balancing Benefits of Designation Against Benefits of Exclusion
- Economic Exclusions
- HCP Exclusions
- Indian Lands Exclusions
- Extinction Risk Due to Exclusions
- Critical Habitat Designation
- Lateral Extent of Critical Habitat
- Effects of Critical Habitat Designation
- Activities That May Be Affected
- Information Quality Act and Peer Review
- Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
- Executive Order 12866
- Executive Order 13211
- Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
- Coastal Zone Management Act
- Civil Justice Reform
- Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
- National Environmental Policy Act of 1969 (NEPA)
- Government-to-Government Relationship With Tribes
- References Cited
- List of Subjects in 50 CFR Part 226
- PART 226—DESIGNATED CRITICAL HABITAT
Tables Back to Top
- Table 1—Summary of Occupied Specific Areas That Contain the Physical or Biological Features Essential to the Conservation of the Southern DPS of Eulachon
DATES: Back to Top
This rule will take effect on December 19, 2011.
ADDRESSES: Back to Top
Reference materials regarding this rulemaking can be obtained via the Internet at: http://www.nwr.noaa.gov or by submitting a request to the Protected Resources Division, Northwest Region, National Marine Fisheries Service, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232.
FOR FURTHER INFORMATION CONTACT: Back to Top
Marc Romano, NMFS, Northwest Region, 503-231-2200, or Jim Simondet, NMFS, Southwest Region, 707-825-5171, or Dwayne Meadows, NMFS, Office of Protected Resources, 301-427-8403.
SUPPLEMENTARY INFORMATION: Back to Top
Background Back to Top
On March 18, 2010, we listed the southern DPS of eulachon as threatened under the ESA (75 FR 13012). A proposed critical habitat rule for the southern DPS of eulachon was published in the Federal Register on January 5, 2011 (76 FR 515). The present rule describes the final critical habitat designation, including responses to public comments and peer reviewer comments, and supporting information on eulachon biology, distribution, and habitat use, and the methods used to develop the final designation.
We considered various alternatives to the critical habitat designation for the southern DPS of eulachon. The alternative of not designating critical habitat for the southern DPS of eulachon would impose no economic, national security, or other relevant impacts, but would not provide any conservation benefit to the species. This alternative was considered and rejected because such an approach does not meet the legal requirements of the ESA and would not provide for the conservation of the southern DPS of eulachon. The alternative of designating all potential critical habitat areas (i.e., no areas excluded) also was considered and rejected because for some areas the benefits of exclusion from designation outweighed the benefits of inclusion.
An alternative to designating all potential critical habitat areas is the designation of critical habitat within a subset of these areas. Under section 4(b)(2) of the ESA, NMFS must consider the economic impact, impacts on national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary of Commerce (Secretary) has the discretion to exclude an area from designation as critical habitat if the benefits of exclusion (i.e., the impacts that would be avoided if an area were excluded from the designation) outweigh the benefits of designation (i.e., the conservation benefits to the southern DPS of eulachon if an area were designated), as long as exclusion of the area will not result in extinction of the species. We prepared an analysis describing our exercise of discretion, which is contained in our Final Section 4(b)(2) Report (NMFS, 2011a). Under this preferred alternative we have excluded Indian lands in California and Washington from designation as critical habitat. The total estimated economic impact of designating all specific areas (without any exclusions) is $512,000 (discounted at 7 percent) or $532,000 (discounted at 3 percent). However the total estimated economic impact of the preferred alternative would be approximately $487,300 (discounted at 7 percent) or $506,300 (discounted at 3 percent). We determined that the exclusion of Indian lands would not significantly impede the conservation of the southern DPS of eulachon nor result in extinction of the species. We selected this as the preferred alternative because it results in a critical habitat designation that supports the conservation of the southern DPS of eulachon while reducing other relevant impacts. This alternative also meets the requirements under the ESA and our joint NMFS-U.S. Fish and Wildlife Service (USFWS) regulations concerning critical habitat at 50 CFR 424.19.
Section 3 of the ESA (16 U.S.C. 1532(5)(A)) 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.” We may not designate critical habitat in areas outside of U. S. jurisdiction (50 CFR 424.12(h)). Section 4 of the ESA requires that, before designating critical habitat, we consider economic impacts, impacts on national security, and other relevant impacts of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of designation, unless excluding an area from critical habitat will result in the extinction of the species concerned. Once critical habitat is designated, section 7(a)(2) of the ESA requires that each federal agency, in consultation with NMFS and with our assistance, ensure that any action it authorizes, funds, or carries out is not likely to result in the destruction or adverse modification of critical habitat. This requirement is additional to the section 7 requirement that federal agencies ensure their actions do not jeopardize the continued existence of listed species.
Eulachon Natural History Back to Top
Eulachon are an anadromous fish, meaning adults migrate from the ocean to spawn in freshwater creeks and rivers where their offspring hatch and migrate back to the ocean to forage until maturity. Although they spend 95 to 98 percent of their lives at sea (Hay and McCarter, 2000), current data only provides an incomplete picture concerning their saltwater existence. The species is endemic to the northeastern Pacific Ocean, ranging from northern California to the southeastern Bering Sea in Bristol Bay, Alaska (McAllister, 1963; Scott and Crossman, 1973; Willson et al., 2006). This distribution coincides closely with the distribution of the coastal temperate rain forest ecosystem on the west coast of North America (with the exception of populations spawning west of Cook Inlet, Alaska).
In the portion of the species' range that lies south of the United States-Canada border, most eulachon production originates in the Columbia River basin. Within the Columbia River basin, the major and most consistent spawning runs return to the mainstem of the Columbia River and the Cowlitz River (Gustafson et al., 2010). Spawning also occurs in other tributaries to the Columbia River, including the Grays, Elochoman, Kalama, Lewis, and Sandy Rivers (WDFW and ODFW, 2001). Historically, the only other large river basins in the contiguous United States where large, consistent spawning runs of eulachon have been documented are the Klamath River in northern California and the Umpqua River in Oregon. Eulachon have been found in numerous coastal rivers in northern California (including the Mad River and Redwood Creek), Oregon (including Tenmile Creek south of Yachats, OR) and Washington (including the Quinault and Elwha Rivers) (Emmett et al., 1991; Willson et al., 2006).
Major eulachon production areas in Canada are the Fraser and Nass rivers (Willson et al., 2006). Numerous other river systems in central British Columbia and Alaska have consistent yearly runs of eulachon and historically supported significant levels of harvest (Willson et al., 2006; Gustafson et al., 2010). Many sources note that runs occasionally occur in other rivers and streams, although these tend to be sporadic, appearing in some years but not others, and appearing only rarely in some river systems (Hay and McCarter, 2000; Willson et al., 2006).
Early Life History and Maturation
Eulachon eggs can vary considerably in size but typically are approximately 1 mm (0.04 in) in diameter and average about 43 mg (0.002 oz) in weight (Hay and McCarter, 2000). Eggs are enclosed in a double membrane; after fertilization in the water, the outer membrane breaks and turns inside out, creating a sticky stalk which acts to anchor the eggs to the substrate (Hart and McHugh, 1944; Hay and McCarter, 2000). Eulachon eggs hatch in 20 to 40 days with incubation time dependent on water temperature (Smith and Saalfeld, 1955; Langer et al., 1977). Shortly after hatching, the larvae are carried downstream and dispersed by estuarine, tidal, and ocean currents. Larval eulachon may remain in low salinity, surface waters of estuaries for several weeks or longer (Hay and McCarter, 2000) before entering the ocean. Similar to salmon, juvenile eulachon are thought to imprint on the chemical signature/smell of their natal river basin. However, juvenile eulachon spend less time in freshwater environments than do juvenile salmon and researchers believe that this may cause returning eulachon to stray between spawning sites at higher rates than salmon (Hay and McCarter, 2000).
Once juvenile eulachon enter the ocean, they move from shallow nearshore areas to deeper areas over the continental shelf. Larvae and young juveniles become widely distributed in coastal waters, where they are typically found near the ocean bottom in waters 20 to 150 m deep (66 to 292 ft) (Hay and McCarter, 2000) and sometimes as deep as 182 m (597 ft) (Barraclough, 1964). There is currently little information available about eulachon movements in nearshore marine areas and the open ocean. However, eulachon occur as bycatch in the ocean shrimp (Pandalus jordani) fishery (Hay et al., 1999; Olsen et al., 2000; Northwest Fishery Science Center (NWFSC), 2008; Hannah and Jones, 2009), indicating that the distribution of these two species may overlap in the ocean.
Eulachon typically spend several years in salt water before returning to fresh water as a “run” to spawn from late winter through early summer. Eulachon are semelparous, meaning that they spawn once and then die (Gustafson et al., 2010; Hay et al., 2002). Spawning grounds are typically in the lower reaches of larger rivers fed by snowmelt (Hay and McCarter, 2000). Willson et al. (2006) concluded that the age distribution of eulachon in a spawning run varies considerably, but typically consists of fish that are 2 to 5 years old. Eulachon eggs commonly adhere to sand (Langer et al., 1977) or pea-sized gravel (Smith and Saalfeld, 1955), though eggs have been found on silt, gravel to cobble sized rock, and organic detritus (Smith and Saalfeld, 1955; Langer et al., 1977; Lewis et al., 2002). Eggs found in areas of silt or organic debris reportedly suffer much higher mortality than those found in sand or gravel (Langer et al., 1977).
In many rivers, spawning is limited to the part of the river that is influenced by tides (Lewis et al., 2002), but some exceptions exist. In the Berners Bay system of Alaska, the greatest abundance of eulachon are observed in tidally-influenced reaches, but some fish ascend well beyond the tidal influence (Willson et al., 2006). In the Kemano River, Canada, water velocity greater than 0.4 meters/second begins to limit the upstream movements of eulachon (Lewis et al., 2002).
Entry into the spawning rivers appears to be related to water temperature and the occurrence of high tides (Ricker et al., 1954; Smith and Saalfeld, 1955; Spangler, 2002). Spawning generally occurs in January, February, and March in the Columbia River, the Klamath River, and the coastal rivers of Washington and Oregon, and April and May in the Fraser River (Gustafson et al., 2010). Eulachon runs in central and northern British Columbia typically occur in late February and March or late March and early April. Attempts to characterize eulachon run timing are complicated by marked annual variation in timing. Willson et al. (2006) give several examples of spawning run timing varying by a month or more in rivers in British Columbia and Alaska. Climate change, especially as it affects ocean conditions, is considered a significant threat to eulachon and their habitats and may also be a factor in run timing (Gustafson et al., 2010). Most rivers supporting spawning runs of eulachon are fed by extensive snowmelt or glacial runoff, so elevated temperatures and changes in snow pack and the timing and intensity of stream flows will likely impact eulachon run timing. There are already indications, perhaps in response to warming conditions and/or altered stream flow timing, that spawning runs are occurring earlier in several rivers within the range of the southern DPS (Moody, 2008).
Water temperature at the time of spawning varies across the range of the species. Although spawning generally occurs at temperatures from 4 to 7 °C (39 to 45 °F) in the Cowlitz River (Smith and Saalfeld, 1955), and at a mean temperature of 3.1 °C (37.6 °F) in the Kemano and Wahoo Rivers, peak eulachon runs occur at noticeably colder temperatures (between 0 and 2 °C [32 and 36 °F]) in the Nass River. The Nass River run is also earlier than the eulachon run that occurs in the Fraser River, which typically has warmer temperatures than the Nass River (Langer et al., 1977).
Eulachon larvae and juveniles eat a variety of prey items, including phytoplankton, copepods, copepod eggs, mysids, barnacle larvae, and worm larvae (Barraclough, 1967; Barraclough and Fulton, 1967; Robinson et al., 1968a, 1968b). Eulachon adults feed on zooplankton, chiefly eating crustaceans such as copepods and euphausiids (Hart, 1973; Scott and Crossman, 1973; Hay, 2002; Yang et al., 2006), unidentified malacostracans (Sturdevant, 1999), and cumaceans (Smith and Saalfeld, 1955). Adults and juveniles commonly forage at moderate depths (20-150 m [66-292 ft]) in nearshore marine waters (Hay and McCarter, 2000). Eulachon adults do not feed during spawning (McHugh, 1939; Hart and McHugh, 1944).
Summary of Comments Received and Responses Back to Top
We solicited public comment for a total of 60 days on the proposed designation of critical habitat for the southern DPS of eulachon. In addition, we held a public hearing on the proposal in Portland, Oregon on January 26, 2011 at which one member of the public provided oral testimony. This testimony was recorded and our responses to comments address substantive comments from that individual. We received written comments from eight commenters, and these are available online at: http://www.regulations.gov/#!docketDetail;rpp=10;po=10;D=NOAA-NMFS-2011-0013. Summaries of the substantive comments received, and our responses, are organized by category and provided below.
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review pursuant to the Information Quality Act (IQA). The Bulletin was published in the Federal Register on January 14, 2005 (70 FR 2664). The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by the Federal Government. The peer review requirements of the OMB Bulletin apply to influential or highly influential scientific information disseminated on or after June 16, 2005. Two documents supporting this final designation of critical habitat for the southern DPS of eulachon are considered influential scientific information and subject to peer review. In accordance with the OMB policies, we solicited technical review of the draft Biological Report (NMFS, 2010a) and the draft Economic Analysis (NMFS, 2010b). Each of these reports was reviewed by three independent experts selected from the academic and scientific communities.
There was substantial overlap between the comments from the peer reviewers and the substantive public comments. The comments were sufficiently similar that we have responded to the peer reviewer's comments through our general responses below. Revisions resulting from peer review and public comments have been made to the documents supporting this designation (i.e., Biological Report, Economic Analysis, and Section 4(b)(2) Report) and the final versions of those documents can be found on our Web site at: http://www.nwr.noaa.gov/Other-Marine-Species/Eulachon.cfm.
Physical or Biological Features Essential for Conservation
Comment 1: One commenter suggested that nearshore and marine waters are essential as a migratory corridor for the passage of eulachon, and passage should be included as a feature in nearshore and marine waters.
Response: Eulachon migrate from their natal streams to marine waters of the continental shelf, and likely migrate throughout coastal waters until they return as adults to spawn. There are two difficulties with relying on a passage feature in the ocean for a species such as eulachon: (1) There is no information regarding the characteristics or conditions in coastal waters that would make a specific area suitable for passage, and (2) there is no evidence that eulachon use specific marine areas for migration. Regarding the first point, there is no information to indicate that eulachon rely on habitat features to guide migration, such as a particular type of current, temperature gradient, bathymetry, coastline, etc. Since there are no known characteristics of an area that would aid in delineation, one must consider whether there is some other evidence of a migration corridor or site, such as documented use for completing a portion of the life history. In the case of eulachon, there are no observations of eulachon migration that would allow us to infer the presence of migratory pathways in specific areas of the ocean. Absent information on the detailed characteristics that would allow delineation of a specific area, or information that eulachon actually use a defined area, we were unable to identify `specific areas' in the ocean that contain migratory pathways.
Eulachon biology and habitat use differ from other species for which we have identified migratory pathways as an essential feature in marine waters. For example, green sturgeon (Acipenser medirostris) are primarily associated with bottom habitats in the ocean and travel along the coast in a migration corridor that is delimited by bathymetry (specifically, we identified the 60 fathom contour as the seaward extent of a green sturgeon migration feature) (74 FR 52300; October 9, 2009). Green sturgeon adherence to a migration corridor shoreward of this depth contour is documented through tagging studies and bycatch in fisheries (Erickson and Hightower, 2007). While we do have some limited information about areas where eulachon are present either through fisheries bycatch reports or fisheries-independent research, this information suggests only that eulachon are present in these areas. It does not shed light on a feature, such as a migratory pathway, that is essential to eulachon conservation. Additional contrasting examples include bull trout (Salvelinus confluentus) and Puget Sound Chinook (Oncorhynchus tshawytscha), which migrate in marine waters along the shoreline. Their critical habitat areas are delineated along a depth contour based on the penetration of light, which creates specific physical and biological conditions essential for their conservation. For Southern Resident killer whales (Orcinus orca) we also identified a passage feature in marine waters, among other features. The three specific areas designated as killer whale critical habitat in inland marine waters of Washington State contained all of the identified features. The one specific area primarily defined by the passage feature was the Strait of Juan de Fuca, a relatively narrow marine corridor through which killer whales pass on their migrations between coastal waters and inland waters.
Comment 2: One commenter believed that our reliance on evidence of spawning or spawning migration to designate critical habitat may be considered “arbitrary,” and they cited Alliance for Wild Rockies v. Lyder, 728 F. Supp. 1126, 1134 (D. Mont. 2010) in support of their argument. The commenter stated that “NMFS must consider other elements besides spawning when determining whether an area should be designated as critical habitat.”
Response: Eulachon are an anadromous species that spend 95-98 percent of their lives in the marine environment (Hay and McCarter, 2000). The best available scientific evidence suggests that adult eulachon are semelparous and enter freshwater and estuarine areas only to spawn, and after spawning the adult fish die (Hay et al., 2002; Gustafson et al., 2010). Eulachon eggs develop at or near the point they were spawned, and larval eulachon typically outmigrate via the same routes that adult spawners took to reach the spawning area. Because eulachon are semelparous and the best available evidence suggests that freshwater and estuarine areas are only used by eulachon for spawning activities (i.e. spawning migration, spawning, egg incubation and larval outmigration) we used spawning data to determine if essential features are present. Our approach was not the same as the approach used by the USFWS to designate critical habitat for the Canada lynx that is the subject of Alliance for Wild Rockies v. Lyder. The Canada lynx utilizes its habitat for a variety of life cycle activities beyond reproduction. There the USFWS used reproduction, one of several life functions, as the sole test to rule out the presence of essential features. In the Alliance for Wild Rockies decision, the court noted, “[w]hile it is rational to conclude areas with evidence of reproduction contain the primary constituent elements and should be designated as critical habitat, the Service could not flip that logic and so it means that critical habitat only exists where there is evidence of reproduction.” As a result, our reliance on evidence of spawning and spawning migration to identify critical habitat within freshwater and estuarine areas is not “arbitrary” according to the Alliance for Wild Rockies decision.
Comment 3: One commenter stated that in making our decision on which specific areas qualified as critical habitat, we relied on “extremely limited sampling” and, for some rivers and creeks, only “opportunistic sightings” and the “best professional judgment of agency and Tribal biologists familiar with the area.” The commenter believes that this is “insufficient to satisfy the requirements of the ESA and may make it more difficult to recover this DPS.”
Response: Section 4(b)(2) of the ESA requires the Secretary of Commerce to designate critical habitat “on the basis of the best scientific data available.” In the proposed rule, and supporting Biological Report (NMFS, 2011b), we outlined the evidence that we used to identify specific areas as critical habitat. We stated in the proposed rule that we “relied on data from published literature, field observations (including river sampling with a variety of net types), opportunistic sightings, commercial and recreational harvest, and anecdotal information.” This final rule incorporates the findings in the proposed rule and the Biological Report, as well as peer review of the Biological Report and the Economic Analysis (NMFS, 2011c) and public comments on the proposed rule. Taken together, this information represents the best available scientific data available to inform our critical habitat decision.
We relied on the most recent scientific information available to us to determine which areas were eligible for designation. For a limited number of creeks and rivers, opportunistic sightings are the only information that is available to identify the distribution of the essential features. Where the only available information was opportunistic sightings, we consulted agency and Tribal biologists familiar with the area to confirm the information and identify the extent of the essential features. Where such information was the only information available, and was confirmed by the best professional judgment of biologists knowledgeable about the species and the area, we consider it the “best available scientific information,” and adequate to inform our decisions. Our actions are thus in accordance with section 4(b)(2) of the ESA and our implementing regulations (50 CFR 424.12).
Specific Areas Within the Geographical Area Occupied by the Species
Comment 4: Two commenters agreed with our decision not to designate critical habitat in nearshore and offshore marine areas, and a third commenter recognized the problem in identifying critical habitat in these areas. In contrast, several commenters disagreed with our decision and some of these cited the availability of eulachon harvest and bycatch data as evidence of eulachon distribution in marine waters. One commenter questioned why we did not discuss in the proposed rule whether nearshore and marine waters may require special management considerations or protection. A separate commenter stated that there is a wide range of literature on the effects of trawling on seafloor habitat, and that the effects of trawling on eulachon foraging habitat need to be considered.
Response: Although some data are available on the ocean distribution of eulachon (from fisheries bycatch and fishery-independent surveys [summarized in Gustafson et al., 2010]) we cannot identify specific marine foraging areas that meet the definition of critical habitat under the ESA. The ESA defines critical habitat as “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 essential to the conservation of the species and which may require special management considerations or protection”. In the Pacific Ocean, we identified nearshore and offshore foraging habitat as an essential feature for the conservation of eulachon, and we determined that abundant forage species and suitable water quality are components of this habitat feature. Given the wide distribution of eulachon prey items, we could not associate them with “specific areas” within the marine environment occupied by eulachon. Moreover, these prey species move or drift great distances throughout the ocean and would be difficult to link to any “specific” areas as discussed in response to Comment 1. The concern is not that “specific areas” must be small, but rather in order to meet the definition of “critical habitat” under the ESA, they must be identifiable and connected to the essential feature found there. We could not discern such a linkage in marine areas occupied by eulachon. While we acknowledge that eulachon need foraging habitat in nearshore and offshore marine waters, we cannot identify any specific areas as required under section 3(5)(A) of the ESA.
Some activities (e.g. trawling), may occur in the marine environment that affect eulachon prey, such that the prey may require special management considerations or protections. However, the steps we follow in designating critical habitat include first identifying the essential features, then identifying the specific areas where those features occur, then considering whether the features in those areas may require special management consideration or protection. We did not discuss the second prong of the definition of critical habitat for marine foraging areas in the proposed rule because we did not identify any specific areas within the marine environment that meet the first prong of the definition of critical habitat (specific areas on which the features are found).
Comment 5: One commenter provided information documenting eulachon use of Redwood Creek, upstream of the area proposed.
Response: We proposed to designate approximately 6.1 km (3.8 mi) of critical habitat in Redwood Creek upstream to the confluence with Prairie Creek, based on reports from the California Department of Fish and Game (CDFG; Moyle et al., 1995). However, the commenter provided a copy of a CDFG memorandum that describes an attempt by three experienced biologists familiar with eulachon who were purposely seeking to determine the upstream limit of eulachon spawning migration in Redwood Creek during April 1973. Eulachon were observed passing Tom McDonald Creek, a tributary located 19.4 km (12.5 mi) upstream from the mouth of Redwood Creek. The CDFG biologists also checked Redwood Creek for eulachon 6.4 km (4.0 mi) upstream of the confluence with Tom McDonald Creek but they did not find any eulachon at that location. This field observation documented fish at least as far upstream as Tom McDonald Creek and presents a credible observation of eulachon ascending Redwood Creek during the spawning run beyond the upstream limit that we proposed as critical habitat. As a result, we have extended critical habitat on Redwood Creek, upstream to the confluence with Tom McDonald Creek. Although the CDFG biologists speculated that eulachon ascended Redwood Creek beyond this point, we have no evidence to confirm that claim.
Comment 6: One commenter believed that eulachon may ascend beyond the specific areas identified and asserted that the upstream limits of critical habitat proposed for Ten Mile Creek, the Elochoman River, and the Kalama River appear to be established at points that were simply advantageous survey sites and not reflective of the species' actual distribution.
Response: The upstream limits of the proposed critical habitat were established using the best available information on eulachon distribution at the time of our proposed rule and informed by public and peer review. We relied on data from published literature, field observations (from a variety of agency and Tribal biologists), opportunistic sightings, commercial and recreational harvest, and anecdotal information. Information on eulachon distribution is limited for some creeks and rivers, particularly those that don't have a history of commercial or recreational harvest of eulachon. The upstream limit of proposed critical habitat for Ten Mile Creek, the Elochoman River, and the Kalama River were determined based on the most current information provided by ODFW for Ten Mile Creek and WDFW for the Elochoman and Kalama Rivers, which are the agencies responsible for eulachon management in the respective states. We do not know whether the information provided by the agencies was based on points that are advantageous survey sites. However, the commenter presents no credible information that would allow us to identify alternative end points of eulachon spawning areas.
Comment 7: One commenter questioned why the upstream limit of critical habitat on rivers where passage is blocked by hydropower dams is established at the point of blockage.
Response: We proposed as critical habitat four specific areas with an upstream limit that terminates at a passage barrier formed by a dam. Three of these dams are hydropower dams (Bonneville Dam on the Columbia River, Merwin Dam on the Lewis River, and Elwha Dam on the Elwha River) and one is a barrier dam for a salmon hatchery (Cowlitz River). Of the four dams, two were unlikely to have had eulachon above the dam site prior to dam construction due to natural barriers (Merwin and Elwha Dams); one may have had eulachon above the dam site before dam construction, but there is no evidence to support that conclusion (hatchery dam on the Cowlitz); and one has had confirmed eulachon presence upstream of the dam site both before and after construction (Bonneville Dam).
Both Merwin Dam and Elwha Dam were built in areas where the river is constrained, with high gradient and water velocities. Prior to dam construction these areas were likely a natural barrier for eulachon. In addition, we were unable to find information supporting eulachon presence above these dam sites prior to dam construction. We were unable to find any historical accounts of eulachon ascending the Cowlitz River beyond the site of the salmon hatchery barrier dam prior to dam construction in 1968, (Mark Larivie, personal communication, April 15, 2011). We did not propose critical habitat upstream of the Merwin Dam, Elwha Dam, or the Cowlitz River salmon hatchery dam because we could not find evidence that eulachon used these areas prior to dam construction.
There have been reports of adult eulachon ascending the Columbia River beyond the Bonneville Dam site, both before and after construction of the Bonneville Dam, with some runs large enough to support recreational harvest (OFC, 1953; Smith and Saalfeld, 1955; Stockley, 1981). Cascade Rapids (approximately 4 km [2.5 mi] upstream of the current Bonneville Dam site) was a natural barrier to eulachon migration in the Columbia River prior to the construction of Bonneville Dam (Oregon Fish Commission, 1953; Gustafson et al., 2010). A ship lock constructed at Cascade Locks in 1896 allowed fish to circumvent the rapids and subsequently eulachon were reported as far upstream as Hood River, Oregon at river kilometer (RKm) 272 (river mile [RM] 169) (Smith and Saalfeld, 1955). Following completion of Bonneville Dam, both Cascade Rapids and Cascade Locks were submerged, removing the rapids as a passage barrier. Currently, passage for anadromous fish at Bonneville Dam is maintained via fish ladders, but it is highly unlikely that eulachon can ascend the ladders due to the high gradient and water velocities within. However, eulachon have been documented passing through the shipping locks at the dam (Oregon Fish Commission, 1953). Eulachon have been reported upstream of the dam in several years, including significant numbers in 1945 and 1953 (Oregon Fish Commission, 1953; Smith and Saalfeld, 1955) and more recently in 1988 (Johnsen et al., 1988), 2003 (U.S. Army Corps of Engineers [USACE], 2003), and 2005 (Martinson et al., 2010).
The area upstream of Bonneville Dam does not meet the definition of critical habitat because it does not contain the physical or biological features essential for conservation of eulachon. The physical and biological features essential for conservation of eulachon in freshwater and estuarine areas include: (1) Spawning and incubation sites with water flow, quality and temperature conditions and substrate supporting spawning and incubation; and (2) migration corridors free of obstruction and with water flow, quality and temperature conditions supporting larval and adult mobility, and with abundant prey items supporting larval feeding. Although they are separate features, spawning and incubation sites for eulachon cannot functionally exist without a migratory corridor to access them. In the proposed rule we acknowledged this relationship between the essential features when we stated that the migration corridor features are “essential to [eulachon] conservation because they allow adult fish to swim upstream to reach spawning areas”. However, in the proposed rule we identified specific areas in freshwater and estuarine areas for designation as critical habitat “which contain one or more of the essential physical or biological features” without making it clear that spawning and incubation sites require a migration corridor to provide access to the sites. The commenters' question allows us to further explain the functional relationship between the essential features.
Bonneville Dam is a major obstruction to eulachon passage. Eulachon access to the area upstream of Bonneville Dam is limited to opportunistic transport through the ship locks. Due to this passage barrier, the migration corridor essential feature in the Columbia River does not extend beyond Bonneville Dam. In order for the spawning and incubation site essential feature to exist upstream of Bonneville Dam, the migration corridor essential feature would have to extend upstream of Bonneville Dam as well. Due to the lack of a migration corridor to access the area upstream of Bonneville Dam, the spawning and incubation essential feature cannot exist upstream of the dam. Because neither the migration corridor nor spawning and incubation essential features occur upstream of Bonneville Dam, this area does not meet the ESA section 3(5)(A) definition of critical habitat.
Comment 8: One commenter did not agree with the use of the COLREGS line (or equivalent) to demarcate the downstream boundary of critical habitat for rivers that directly enter the ocean. The commenter believes that this boundary was established as a convenient management tool but does not make sense as an ecologically-based boundary. The commenter suggested that if freshwater delivery to the ocean is the key feature, then the boundary could be established at the edge of the river plume.
Response: As we stated previously, our regulations require that “Each critical habitat will be defined by specific limits using reference points and lines as found on standard topographic maps of the area” (50 CFR 424.12(c)). In order for critical habitat to be a useful tool for conservation and management of the species, Federal agencies that are proposing actions in the vicinity of critical habitat need to be able to identify where critical habitat occurs. An ephemeral boundary, such as the maximum extent of freshwater delivery into the marine environment from a creek or river, would be difficult to identify. The COLREGS lines (where defined) were chosen as the downstream extent of freshwater and estuarine critical habitat because they are a clearly defined federal standard which incorporates landmarks that are found on standard topographic maps to uniformly depict an area of transition between freshwater and marine areas.
Comment 9: One commenter stated that it was unclear if smaller secondary or tertiary streams within watersheds assessed in the proposed rule are included or excluded from critical habitat.
Response: We used watersheds containing stream reaches occupied by eulachon as a basis for conducting our analysis of economic impacts associated with critical habitat designation. However, the specific areas identified as critical habitat were limited to the portions of individual creeks and rivers that contain the physical and biological features essential for eulachon conservation. The specific areas that are being designated as critical habitat are listed in this final rule (including the accompanying maps) and will appear in part 226, title 50 of the Code of Federal Regulations. Secondary or tertiary streams within the watersheds used for the economic analysis are not designated as critical habitat unless they are specifically described in this rule and in part 226, title 50 of the Code of Federal Regulations.
Comment 10: One commenter proposed that two locations in Washington State (the Toutle River in the Cowlitz Basin and Skamokawa Creek in the Elochoman Basin) be included in the critical habitat designation.
Response: In our proposed rule we identified criteria to determine if a specific area contained either one of the essential features of freshwater spawning and incubation sites and freshwater and estuarine migration corridors (76 FR 515; January 5, 2011). These criteria are sites that contain: (1) Larval fish or pre-/post-spawn adults that have been positively identified and documented; or (2) commercial or recreational catches that have been documented over multiple years. Prior to publishing the proposed rule, we were unable to identify information that would satisfy these criteria for either the Toutle River or Skamokawa Creek.
In the proposed rule we acknowledged that many areas within the geographical area occupied by the southern DPS have not been surveyed to determine the extent of eulachon spawning and migration (76 FR 515; January 5, 2011). To address this information need we funded several eulachon monitoring studies and surveys currently being undertaken by ODFW, WDFW, the Cowlitz Indian Tribe, and the Yurok Indian Tribe. During April 2011 biologists from the Cowlitz Indian Tribe documented the presence of eulachon larvae in the Toutle River and Skamokawa Creek, confirming eulachon spawning in these two systems (Cowlitz Indian Tribe, 2011). This information satisfies the criteria we used in our proposed rule to identify specific areas where the essential physical and biological features occur. As a result, these specific areas meet the statutory definition of critical habitat and we have included them in this final rule. Additional information on these two areas can be found below.
Comment 11: One commenter questioned the proposed designation of the lower Elwha River as critical habitat on several points. First, the commenter noted that although eulachon have been captured in the lower Elwha River in small numbers, this may be consistent with straying. Second, the commenter asserted that there is a likely velocity barrier for eulachon located at approximately RKm 0.8 (RM 0.5). And finally, the commenter reasoned that once the Lower Elwha Tribal land is excluded from critical habitat designation, very little of the remaining river below the Elwha Dam that is accessible to eulachon would be eligible for designation as critical habitat.
Response: Eulachon were documented in the Elwha River in 2005, although anecdotal observations suggest that eulachon “were a regular, predictable feature in the Elwha until the mid 1970s” (Shaffer et al., 2007, p. 80). Other Olympic Peninsula rivers draining into the Strait of Juan de Fuca have been extensively surveyed over many years for salmonid migrations; however, eulachon have not been observed in any of these other systems (Shaffer et al., 2007; Peter Toppings, WDFW, 2011; Lower Elwha Tribe, 2011). Since 2005, eulachon in spawning condition have been observed nearly every year in the Elwha River by Lower Elwha Tribe Fishery Biologists (Lower Elwha Tribe, 2011). After only one year of catch data, Shaffer et al. (2007; p. 80) concluded that “observations of eulachon in the Elwha lead us to surmise that the Elwha eulachon are likely a remnant stock of the Elwha River rather than stray.” We believe that the consistent spawning returns to the Elwha River in subsequent years supports the conclusion of Shaffer et al. (2007) that eulachon in the Elwha River are a self-sustaining population and not stray fish from nearby rivers.
Mike McHenry (Fishery Biologist, Lower Elwha Tribe, personal communication April 4, 2011) has confirmed reports that eulachon have ascended the Elwha River to at least RKm 4.0 (RM 2.5). This would place eulachon well upstream of the potential velocity barrier at RKm 0.9 (RM 0.5) that the commenter believes may limit their upstream movement. Studies from the Kemano River indicate that many eulachon are unable to maintain long-term position in the river at flow velocities greater than 0.3 m/s (1.0 ft/s; Lewis et al., 2002). However, when water velocities were high in the mid-channel, eulachon travelled near the shore (Lewis et al., 2002) where water velocities are likely lower. Research conducted in the lower Elwha River has shown that water velocities can be significantly lower nearshore and along the bottom of the river, when compared to the mid-channel (USGS, 2008). It is likely that eulachon ascend beyond RKm 0.8 (RM 0.5) in the Elwha River by migrating in the lower velocity water of the nearshore or river bottom.
The Lower Elwha Tribe controls over 1,000 acres of land in the lower Elwha River watershed that are eligible for exclusion from this critical habitat designation. From the mouth of the river, upstream to the Elwha Dam at RKm 7.6 (RM 4.7), the Lower Elwha Tribe lands include approximately 2.3 km (1.4 mi) of this area. This leaves approximately 5.3 km (3.3 mi) of river that does not overlap Tribal land and thus is not excluded from critical habitat. Although federal actions conducted on Lower Elwha Tribe land would not require section 7 consultation to determine the effects on critical habitat, federal activities on non-Tribal lands would.
Special Management Considerations
Comment 12: One commenter wanted to know why dams and water diversions were listed as an activity that may require special management considerations in Redwood Creek given that there are no dams or surface water diversions on Redwood Creek.
Response: Although summer seasonal dams have existed on the mainstem of Redwood Creek in the past, they have been removed and are no longer allowed. The commenter rightly points out that dams and water diversions are not activities in Redwood Creek that may require special management considerations and we have removed them from the list of special management considerations for Redwood Creek.
Comment 13: One commenter suggested that the construction and maintenance of the Redwood Creek Flood Control Project levees (that line the lower 5.5 km [3.4 miles] of Redwood Creek), should be considered in-water construction or alteration and listed as an activity that may require special management consideration.
Response: We agree and have updated our report to include this category of activity.
Comment 14: One commenter suggested that we should give greater consideration to the potential designation of unoccupied habitats. The commenter stated that NMFS “must consider physical and biological features of historically occupied areas, not just presence and production, before determining that these areas are not essential for the conservation of the species.”
Response: Section 3(5)(A)(ii) of the ESA authorizes the Secretary of Commerce to designate “specific areas outside the geographical area occupied at the time [the species] is listed” if the Secretary determines that these areas are essential for the conservation of the species. Section 4(b)(2) of the ESA directs the Secretary to designate critical habitat “on the basis of the best scientific data available” Regulations at 50 CFR 424.12(e) emphasize that the agency “shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.”
The commenter states that NMFS must base its decision to designate critical habitat in unoccupied areas on whether those areas might contain the physical or biological features essential to the conservation of the species. However, the ESA's definition of critical habitat in unoccupied areas does not rely on the presence of physical or biological features, but on the determination that the area is essential for the conservation of the species. Our implementing regulations provide that we may only designate unoccupied areas if we determine that currently occupied areas are not adequate for conservation (50 CFR 424.12(e)). In the case of the southern DPS of eulachon, we are unable to make such a determination at this time. In the process of recovery planning we may determine that additional areas are necessary for conservation and revise the designation.
In addition, the commenter incorrectly states that we based our decision to not designate critical habitat in unoccupied areas “on a lack of documentation of the presence of eulachon in those areas.” Based on the best available science, we determined that nearly all of the historical and current presence and production of the southern DPS of eulachon comes from within the geographical area occupied at the time the species was listed (and particularly the Klamath, Umpqua, Columbia and Fraser Rivers). Sightings of southern DPS eulachon from creeks or rivers outside of the geographical area occupied by the species have been extremely infrequent, and have consisted of very few fish (Gustafson et al., 2010). Due to such an overwhelming proportion of the historical and current abundance and production of the southern DPS of eulachon occurring within the geographical area occupied by the species, we could not determine that currently occupied areas are inadequate to conserve the species. We received no new information on this subject during the comment and peer review process of the Proposed Critical Habitat Designation (76 FR 515; January 5, 2011). Therefore, we are not designating any unoccupied areas as critical habitat for the DPS. This is an issue that we will continue to investigate during the recovery planning process and we will update the critical habitat designation if needed.
Economic Impacts of Critical Habitat Designation
Comment 15: One commenter put forth the argument that contemporary forest management activities have little impact on aquatic organisms such as eulachon. The commenter also believes that “it is troubling that forest management is listed as the activity likely to have the second most section 7 actions as a result of the critical habitat designation.”
Response: In the proposed rule we identified a number of activities that may affect the physical and biological features essential to conservation of the southern DPS of eulachon (76 FR 515; January 5, 2011). One of the major types of activity was pollution and runoff from point and non-point sources including industrial activities, urbanization, grazing, agriculture, and forestry operations. Nearly all of the watersheds that contain specific areas proposed as critical habitat for eulachon have been or are still subject to forest management activities. While we acknowledge that modern forest practice rules have greatly reduced the impact of forest management activities on aquatic environments (Cafferata and Spittler, 1998), there is a large body of information demonstrating that such activities continue to require special management considerations to ensure they do not impair eulachon habitat. For example, Rashin et al. (2006) state that “[t]imber harvest activities have the potential to increase sediment loading to streams from harvest site erosion and to cause direct physical disturbance of stream channels and riparian zones.” Gomi et al. (2005) report that “[f]orest management practices can increase fine sediment supply though soil disturbance and accelerated landsliding.” These authors go on to state “[s]oil disturbance and sediment delivery to streams are commonly associated with construction of roads and landings, slash burning, and log skidding (Reid and Dunne, 1984; Christie and Fletcher, 1999; Jordan, 2001; Kreutzwiser et al., 2001). The hydrologic and geomorphic effects of forest roads in particular have been the focus of many studies, given their demonstrated potential for negative impacts (Luce and Wemple, 2001).”
As part of our estimate of the potential economic impact of critical habitat designation for the southern DPS of eulachon we projected the future administrative costs of engaging in ESA section 7 consultations. In our Draft Economic Analysis (NMFS, 2010b), we provided a forecast of the annual number of future section 7 actions, organized by affected watershed and activity, that may require consultation with NMFS. Forest management was one of the ten broad activity groups that were identified that may require some form of section 7 consultation in the future. We have an extensive consultation history for other anadromous species (including West Coast salmon and steelhead) in the watersheds that we proposed as eulachon critical habitat. Estimates of the future annual number of section 7 actions related to eulachon were based on the average number of past actions that required consultation for these species in these watersheds between 2000 and 2009.
While forest management is the activity that we forecast to have the second-most section 7 actions as a result of eulachon critical habitat designation, it is important to keep the estimates in perspective. We chose the individual watersheds that encompass each stream reach proposed as eulachon critical habitat as our assessment area for economic impacts (specifically, we used 5th field hydrologic units as designated by the U.S. Geological Survey). The total land area included in our assessment area is approximately 9,500 km  (2.3 million acres). We estimate that forest management activities will result in approximately seven ESA section 7 consultations per year as a result of eulachon critical habitat designation, and of these, only one will require formal consultation. Given that forest management is one of the most dominant land uses across our assessment area, the estimated number of related consultations that may need to address eulachon critical habitat is comparatively small for an area so large.
Comment 16: One commenter believed designating ocean areas as critical habitat would have an adverse economic impact on shrimp fisheries off the Pacific Coast.
Response: We did not propose to designate critical habitat in marine waters because we were unable to identify specific areas in the marine environment that meet the definition of critical habitat under section 3(5)(A). Therefore we did not assess the economic impact of designating marine areas as critical habitat, including any economic impacts to ocean shrimp fisheries.
Comment 17: One commenter expressed concern that the designation of critical habitat in the Elwha River could lead to changes in the timing of the upcoming removal of the Elwha and Glines Canyon Dams. The commenter believes that any changes in the timing of dam removal could potentially have high associated costs that were not factored into NMFS' economic analysis.
Response: In 2010, we completed our consultation with the National Park Service on removal of the Elwha and Glines Canyon Dams and their effects on eulachon (NMFS, 2010c). Removal of the dams will result in the release of accumulated sediment that is likely to harm eulachon and their habitat. In our consultation we considered the direct effects to eulachon as well as the indirect effects that would result from habitat alteration. The Biological Opinion contains terms and conditions that require the Park Service to maintain consistent sediment loads during March through May to minimize impacts to spawning eulachon. Designation of critical habitat in the Elwha River will require reinitiation of consultation with the Park Service. It is possible that during the course of the consultation our analysis may lead to additional terms and conditions, but at this time there are none that we can reasonably anticipate (NMFS 2010c; Zach Hughes, NMFS, Washington State Habitat Office, personal communication, 9/12/2011). Our economic analysis therefore includes as a cost of designation only the added administrative cost of completing a new consultation.
Indian Lands Exclusions
Comment 18: One commenter believed that Tribal lands should not be excluded from critical habitat because doing so would diminish the conservation value of the designation. A separate commenter believed that Tribal lands should only be excluded if the affected Tribes agree to address eulachon protections in their conservation plans.
Response: Section 4(b)(2) of the ESA 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. Tribal lands are managed by Indian Tribes in accordance with Tribal goals and objectives within the framework of applicable treaties and laws. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, outlines the policies and responsibilities of the Federal Government in matters affecting Tribal interests (recently confirmed by Presidential Memorandum; 74 FR 57879; November 9, 2009). In addition to Executive Order 13175, we have Department of Commerce policy direction, via Secretarial Order 3206, stating that Indian lands shall not be designated as critical habitat, nor areas where the “Tribal trust resources * * * or the exercise of Tribal rights” will be impacted, unless such lands or areas are determined “essential to conserve a listed species.” In such cases we “shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by designating only other lands.”
In our proposed rule, we determined that excluding Tribal lands from critical habitat designation would have the benefit of promoting federal policies regarding Tribal sovereignty and self-governance (e.g., Executive Order 13175). In addition, we determined that exclusion of Tribal lands would have the benefit of promoting a positive working relationship between NMFS and the Tribes (in accordance with Secretarial Order 3206), with a very small reduction in the benefits of designation (primarily the loss of section 7 consultation to consider adverse modification of critical habitat). Although these specific areas have a high conservation value for eulachon, their extent is relatively small (approximately 5% of the total area designated). In the decision Center for Biological Diversity, v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court held that a positive working relationship with Indian Tribes is a relevant impact that can be considered when weighing the relative benefits of a critical habitat designation.
The Tribes affected by this critical habitat designation have played and continue to play an active role in the conservation and management of this species. These Tribal governments are also co-managers of a variety of other freshwater and marine species and resources throughout the region. The co-manager relationship crosses Tribal, Federal, and state boundaries, due to the migratory characteristics of these species. As we move forward with eulachon recovery planning, a positive working relationship with the Tribes will be crucial to the management and recovery of eulachon.
While it is possible that exclusion of Indian lands may result in a small reduction in the conservation benefits of the designation, the species is still protected under the jeopardy standard of ESA section 7, and activities that occur on non-Tribal lands near or adjacent to excluded Tribal lands will still be subject to section 7 consultation for adverse modification of critical habitat. In addition, there are several management plans that guide Tribal activities in the affected watersheds (e.g., the Quinault Reservation Forest Management Plan, Elwha River Fish Restoration Plan, and the Lower Klamath River Sub-Basin Watershed Restoration Plan) and provide protection to eulachon habitat.
Comment 19: One commenter believed that we should not exclude lands covered by a Habitat Conservation Plan (HCP) unless the plan contains adequate protections for eulachon.
Response: We agree that adequate protections for eulachon within an existing HCP should be a requirement for any landowner seeking to have land excluded from critical habitat designation. There are two existing HCPs that overlap areas that were proposed as critical habitat for the southern DPS of eulachon; the Green Diamond Timber HCP (covering the company's operations in northern California, including portions of the Klamath River), and the Humboldt Bay Municipal Water District HCP (covering their operations in the Mad River, California). Neither of these HCPs address conservation of eulachon, and it is unclear what, if any, conservation benefits they might provide to eulachon. In addition, neither of the HCP holders requested that their lands be excluded from critical habitat. Therefore, we have decided not to exclude any land covered by these HCPs from this critical habitat designation.
Summary of Revisions Back to Top
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 changes to the critical habitat designations, including:
(1) We revised the number of specific areas included in our critical habitat designation based on comments received and new scientific information that became available following publication of the proposed rule. Specifically, we added Skamokawa Creek, and the Toutle River (both in Washington State) to the list of specific areas.
(2) We extended the upstream extent of critical habitat for three specific areas based on comments received and new scientific information. Critical habitat was extended on Redwood Creek, California, and the Elochoman and Kalama Rivers in Washington. In addition we revised the Lewis River specific area to include the East Fork of the Lewis River.
(3) We further explained and clarified the functional relationship between the spawning and incubation essential feature and the migration corridor essential feature based on comments received.
(4) We revised our economic analysis based on additions to the specific areas included in the critical habitat designation. Specifically, we added a new 5th field hydrologic unit to our analysis (HUC 1708000205: East Fork Lewis River).
(5) We have designated critical habitat in the Quinault River, Washington, and the Klamath River, California. These specific areas were excluded entirely from the proposed critical habitat rule. Upon further review, based on more complete information on land ownership, we determined that only the portions of these rivers that overlap with Indian lands are eligible for exclusion. Critical habitat does not include any Tribal lands of the Lower Elwha Tribe, Quinault Tribe, Resighini Rancheria, or Yurok Tribe.
Methods and Criteria Used To Identify Critical Habitat Back to Top
In accordance with section 4(b)(2) of the ESA and our implementing regulations (50 CFR 424.12), this final rule is based on the best scientific information available concerning the southern DPS's present and historical range, habitat, and biology, as well as threats to its habitat. In preparing this rule, we reviewed and summarized current information on eulachon, including recent biological surveys and reports, peer-reviewed literature, NMFS status reviews for the southern DPS of eulachon (Gustafson et al., 2010), the proposed rule to list eulachon (74 FR 10857; March 13, 2009), and the final listing determination for eulachon (75 FR 13012; March 18, 2010) and information provided during the comment process. All of the information gathered to create this final rule has been collated and analyzed in three supporting documents: The Eulachon Biological Report (NMFS, 2011b); the Eulachon Economic Analysis (NMFS, 2011c); and, the Eulachon Section 4(b)(2) Report (NMFS, 2011a).
We used this information to identify specific areas that qualify as critical habitat for the southern DPS. We followed a five-step process in order to identify these specific areas: (1) Determine the geographical area occupied by the species, (2) identify physical or biological habitat features essential to the conservation of the species, (3) delineate specific areas within the geographical area occupied by the species on which are found the physical or biological features, (4) determine whether the features in a specific area may require special management considerations or protections, and (5) determine whether any unoccupied areas are essential for conservation. Our evaluation and conclusions are described in detail in the following sections.
Geographical Area Occupied by the Species Back to Top
As described in the proposed rule, the first step in designating critical habitat is to identify the geographical area occupied by the species at the time of listing. In our proposed critical habitat designation we interpreted the “geographical area occupied” in ESA section 3(3) as equivalent to the range of the species at the time of listing. In our March 2010 final ESA listing rule, and in the proposed critical habitat designation, we identified the range of the southern DPS of eulachon as extending from the Skeena River in British Columbia, Canada, to the Mad River in California (Gustafson et al., 2010). We cannot designate areas outside U.S. jurisdiction as critical habitat (see above), thus, we limited our consideration of the range of the southern DPS of eulachon to the geographical area from the international border with Canada to the Mad River in California. We did not attempt to further refine our identification of the “geographical area occupied by the species” at the time of listing because of the process we followed in the subsequent steps of our designation. As explained more fully below, we identified freshwater spawning and incubation sites as a “physical or biological feature essential to conservation” of the species. In determining the “specific areas” that contain those sites, we confirmed that eulachon were documented using the sites for spawning. Thus our process of confirming that a specific area contains the essential features also allowed us to confirm that the area was indeed occupied. Given the highly migratory nature of eulachon and limited marine sampling, we do not know how far offshore the southern DPS of eulachon are distributed and thus how far offshore the geographical area occupied by the species extends. We consider the marine extent of the geographical area occupied by the species as undeterminable at this time.
Physical or Biological Features Essential for Conservation Back to Top
Joint NMFS-USFWS regulations at 50 CFR 424.12(b) state that in determining what areas are critical habitat, the agencies “shall consider those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection.” These physical and biological features include, but are not limited to: “(1) Space for individual and population growth, and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally; (5) Habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.”
Based on the best available scientific information, we developed a list of physical and biological features essential to the conservation of eulachon and relevant to determining whether occupied areas are consistent with the above regulations and the ESA section (3)(5)(A) definition of “critical habitat.” The physical or biological features essential to the conservation of the southern DPS fall into three major categories reflecting key life history phases of eulachon:
(1) Freshwater spawning and incubation sites with water flow, quality and temperature conditions and substrate supporting spawning and incubation, and with migratory access for adults and juveniles. These features are essential to conservation because without them the species cannot successfully spawn and produce offspring.
(2) Freshwater and estuarine migration corridors associated with spawning and incubation sites that are free of obstruction and with water flow, quality and temperature conditions supporting larval and adult mobility, and with abundant prey items supporting larval feeding after the yolk sac is depleted. These features are essential to conservation because they allow adult fish to swim upstream to reach spawning areas and they allow larval fish to proceed downstream and reach the ocean.
(3) Nearshore and offshore marine foraging habitat with water quality and available prey, supporting juveniles and adult survival. Eulachon prey on a wide variety of species including crustaceans such as copepods and euphausiids (Hay and McCarter, 2000; WDFW and ODFW, 2001), unidentified malacostracans (Sturdevant, 1999), cumaceans (Smith and Saalfeld, 1955) mysids, barnacle larvae, and worm larvae (WDFW and ODFW, 2001). These features are essential to conservation because they allow juvenile fish to survive, grow, and reach maturity, and they allow adult fish to survive and return to freshwater systems to spawn.
The components of the freshwater spawning and incubation sites include:
Flow: A flow regime (i.e., the magnitude, frequency, duration, seasonality, and rate-of-change of freshwater discharge over time) that supports spawning, and survival of all life stages. Most spawning rivers experience a spring freshet characteristic of rivers draining large snow packs or glaciers (Hay and McCarter, 2000). In general, eulachon spawn at lower water levels before spring freshets (Lewis et al., 2002). In the Kemano River, British Columbia, eulachon preferred water velocities from 0.1 to 0.7 m/s (Lewis et al., 2002). Sufficient flow may also be needed to flush silt and debris from spawning substrate surfaces to prevent suffocation of developing eggs.
Water Quality: Water quality suitable for spawning and viability of all eulachon life stages. Sublethal concentrations of contaminants affect the survival of aquatic species by increasing stress, predisposing organisms to disease, delaying development, and disrupting physiological processes, including reproduction. Adult eulachon can take up and store pollutants from their spawning rivers, despite the fact that they do not feed in fresh water and remain there only a few weeks (Rogers et al., 1990; WDFW and ODFW, 2001). Eulachon have also been shown to avoid polluted waters when possible (Smith and Saalfeld, 1955).
Water Temperature: Suitable water temperatures, within natural ranges, in eulachon spawning reaches. Water temperature between 4 °C and 10 °C (39 °F and 50 °F) in the Columbia River is preferred for spawning (WDFW and ODFW, 2001) although temperatures during spawning can be much colder in northern rivers (e.g., 0 °C to 2 °C [32 °F to 36 °F] in the Nass River; Willson et al., 2006). High water temperatures can lead to adult mortality and spawning failure (Blahm and McConnell, 1971).
Substrate: Spawning substrates for eulachon egg deposition and development. Spawning substrates typically consist of silt, sand, gravel, cobble, or detritus (Gustafson et al., 2010). However, pea-sized gravel (Smith and Saalfeld, 1955) and coarse sand (Langer et al., 1977) are the most commonly used. Water depth for spawning can range from 8 cm (3 in) to at least 7.6 m (25 ft) (Willson et al., 2006).
The components of the freshwater and estuarine migration corridor essential feature include:
Migratory Corridor: Safe and unobstructed migratory pathways for eulachon adults to pass from the ocean through estuarine areas to riverine habitats in order to spawn, and for larval eulachon to access rearing habitats within the estuaries and juvenile and adults to access habitats in the ocean. Lower reaches of larger river systems (e.g., the Columbia River) are used as migration routes to upriver or tributary spawning areas. Out-migrating larval eulachon are distributed throughout the water column in some rivers (e.g., the Fraser River) but are more abundant in mid-water and bottom portions of the water column in others (e.g., the Columbia River; Smith and Saalfeld, 1955; Howell et al., 2001).
Flow: A flow regime (i.e., the magnitude, frequency, duration, seasonality, and rate-of-change of freshwater discharge over time) that supports spawning migration of adults and outmigration of larval eulachon from spawning sites. Most eulachon spawning rivers experience a spring freshet (Hay and McCarter, 2000) that may influence the timing of spawning adult migration. In general, eulachon spawn at low water levels before spring freshets (Lewis et al., 2002). In the Kemano River water velocity greater than 0.4 m/s (1.3 ft/s) begins to limit upstream movements (Lewis et al., 2002).
Water Quality: Water quality suitable for survival and migration of spawning adults and larval eulachon. Adult eulachon can take up and store pollutants from their spawning rivers, despite the fact that they do not feed in fresh water and remain there only a few weeks (Rogers et al., 1990; WDFW and ODFW, 2001). Eulachon avoid polluted waters when possible (Smith and Saalfeld, 1955).
Water Temperature: Water temperature suitable for survival and migration. Eulachon run timing may be influenced by water temperature (Willson et al., 2006), and high water temperatures can increase adult mortality (Blahm and McConnell, 1971). Given the range of temperatures in which eulachon spawn, Langer et al. (1977) suggested that the contrast between ocean and river temperatures might be more critical than absolute river or ocean temperatures.
Food: Prey resources to support larval eulachon survival. Eulachon larvae need abundant prey items (especially copepod larvae; Hart, 1973) when they begin exogenous feeding after the yolk sac is depleted. The eulachon yolk sac can be depleted between 6 and 21 days after hatching (Howell, 2001), and larvae may be retained in low salinity, surface waters of the natal estuary for several weeks or longer (Hay and McCarter, 2000), making this an important component in migratory corridor habitat.
The components of the nearshore and offshore marine foraging essential feature include:
Food: Prey items, in a concentration that supports foraging leading to adequate growth and reproductive development for juveniles and adults in the marine environment. Eulachon larvae and juveniles eat a variety of prey items, including phytoplankton, copepods, copepod eggs, mysids, barnacle larvae, and worm larvae (Barraclough, 1967; Barraclough and Fulton, 1967; Robinson et al., 1968a, 1968b). Eulachon adults feed on zooplankton, chiefly eating crustaceans such as copepods and euphausiids (Hart, 1973; Scott and Crossman, 1973; Hay, 2002; Yang et al., 2006), unidentified malacostracans (Sturdevant, 1999), and cumaceans (Smith and Saalfeld, 1955).
Water Quality: Water quality suitable for adequate growth and reproductive development. The water quality requirements for eulachon in marine habitats are largely unknown, but they would likely include adequate dissolved oxygen levels, adequate temperature, and lack of contaminants (such as pesticides, organochlorines, elevated levels of heavy metals) that may disrupt behavior, growth, and viability of eulachon and their prey.
Specific Areas Within the Geographical Area Occupied by the Species Back to Top
After determining the geographical area occupied by the southern DPS of eulachon, and identifying the physical and biological features essential to their conservation, we next identified the specific areas that meet the statutory definition of critical habitat. Critical habitat is defined in Section 3(5)(A)(i) of the ESA as the “specific areas within the geographical area occupied by the species * * * on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection”. All of the essential physical and biological features we identified for freshwater and estuarine habitat occur within either spawning and incubation areas, or migratory corridors. In order to identify specific areas where the essential features occur, we developed criteria to determine if an area contained either spawning and incubation sites, or a migratory corridor. These criteria are areas that contain: (1) Larval fish or pre-/post-spawn adults that have been positively identified and documented; or (2) commercial or recreational eulachon fishery that has been documented over multiple years. There are 42 creeks and rivers with known or possible eulachon spawning within the U.S. range of the southern DPS of eulachon (Gustafson et al., 2010; NMFS, 2011b). Of these, we identified 16 that meet at least one of the criteria for the presence of the physical or biological features essential for eulachon conservation. We then determined the distribution of the essential features within these creeks or rivers. We relied on evidence of adult and larval eulachon presence to delineate the extent of the specific areas where the spawning and incubation sites and migration corridors are found.
We used the most recent scientific information available to us (including data from published literature, field observations, opportunistic sightings, commercial and recreational harvest, and anecdotal information) to determine the presence and distribution of the essential features within the creeks and rivers with known or possible presence of eulachon. For a limited number of areas, opportunistic sightings are the only information that is available to identify the presence and distribution of the essential features. Where the only available information was opportunistic sightings, we consulted agency and Tribal biologists familiar with the area to confirm the information and identify the presence and extent of the essential features. For these areas we consider this the “best available scientific information,” necessary to inform our decisions.
The 16 specific freshwater and estuarine areas which contain one or more of the essential physical or biological features are described below and summarized in Table 1, which appears at the end of the Special Management Considerations section. The Eulachon Biological Report (NMFS, 2011b) provides more detailed information on each specific area, including a description of the essential physical and biological features, special management considerations or protection that may be needed, and the presence and distribution of the southern DPS of eulachon.
(1) Mad River, CA: The Mad River is located in northwestern California. It flows for approximately 150 km (95 mi) in a roughly northwest direction through Trinity and Humboldt Counties, draining a 1,290 km  (497 mi  ) basin into the Pacific Ocean near McKinleyville, California. The river's headwaters are in the Coast Range mountains near South Kelsey Ridge.
Eulachon consistently spawned in large numbers in the Mad River as recently as the 1960s and 1970s (Moyle et al., 1995; Moyle, 2002; Gustafson et al., 2010). However, in recent years eulachon numbers have declined, and they are now considered rare (Sweetnam et al., 2001). Based on observations by the California Department of Fish and Game (CDFG), spawning occurs as far upstream as the confluence with the North Fork of the Mad River (CDFG, 2009). The river below this point contains overlapping spawning and incubation sites and migration corridor features.
(2) Redwood Creek, CA: Redwood Creek is located entirely in Humboldt County, in northwestern California. The basin is approximately 105 km (65 mi) long, and drains approximately 738 km  (285 mi  ), most of which is forested and mountainous terrain (Cannata et al., 2006).
Eulachon have been reported from Redwood Creek by a variety of sources (Young, 1984; Ridenhour and Hofstra, 1994; Moyle et al., 1995; Larson and Belchik, 1998), and runs large enough to be noted in available local newspaper accounts occurred in 1963 and 1967. Eulachon returns to Redwood Creek have declined drastically in recent years, and they are now considered rare (Sweetnam et al., 2001). CDFG reported that during the early 1970s eulachon regularly spawned between the ocean and the mouth of Prairie Creek (the first major tributary on Redwood Creek; Moyle et al., 1995). During April 1973, a spawning run of eulachon were observed passing Tom McDonald Creek (CDFG, 1973), a tributary located approximately 19.7 km (12.2 miles) upstream from the mouth of Redwood Creek, indicating that this area contains the essential features of spawning and incubation, and a migration corridor. Spawning also occurred in the lower 0.5 km (0.3 mi) of Prairie Creek (Moyle et al., 1995), sporadically up to the 1970s.
The lower reach of Redwood Creek alternates between an open estuary and a closed coastal lagoon depending on the season. During early summer a sand bar typically forms across the river mouth creating a lagoon. Rains during the fall typically clear the sand bar away and open up the river mouth to the ocean (Cannata et al., 2006).
(3) Klamath River, CA: The Klamath River basin drains approximately 25,100 km  (9,690 mi  ) in southern Oregon and northern California, making it the second largest river in California (after the Sacramento River). Historically, the Klamath River has been a major producer of anadromous fish, and once was the third most productive salmon and steelhead fishery in the continental United States, prior to recent significant declines (Powers et al., 2005).
Historically, large aggregations of eulachon consistently spawned in the Klamath River (Fry, 1979; Moyle et al., 1995; Larson and Belchik, 1998; Moyle, 2002; Hamilton et al., 2005), and a commercial fishery occurred there in 1963 (Odemar, 1964). During the spawning run, fish were regularly caught from the mouth of the river upstream to Brooks Riffle, near the confluence with Omogar Creek (Larson and Belchik, 1998), indicating that this area contains the spawning and incubation, and migration corridor essential features.
The only reported commercial catch of eulachon in Northern California occurred in 1963 when a combined total of 25 metric tons (56,000 lbs) was landed from the Klamath River, the Mad River, and Redwood Creek (Odemar, 1964). Since 1963, the run size has declined to the point that only a few individual fish have been caught in recent years. According to accounts of Yurok Tribal elders, the last noticeable runs of eulachon were observed in the Klamath River in 1988 and 1989 by Tribal fishers (Larson and Belchik, 1998). However, in January 2007, and again in February 2011, a small number of eulachon were reportedly caught by Tribal fishers on the Klamath River (Yurok Tribe, 2008; McCovey, 2011). Larson and Belchik (1998) report that eulachon have not been of commercial importance in the Klamath in recent years and are unstudied as to their current run strengths.
Approximately 68 km (42 mi) of the lower Klamath River is bordered by the Yurok Indian Reservation. The lower Klamath River is listed as a National Wild and Scenic River from the mouth, upstream to just below Iron Gate Dam, for a total of 460 km (286 mi). Of these, 19 km (12 mi) are designated Wild, 39 km (24 mi) are designated Scenic, and 402 km (250 mi) are designated Recreational.
(4) Umpqua River/Winchester Bay, OR: The Umpqua River Basin consists of a 10,925 km  (4,220 mi  ) drainage area comprised of the main Umpqua River, the North Umpqua River, the South Umpqua River, and associated tributary streams (Snyder et al., 2006). The Umpqua River drains a varied landscape, from steep-sloped uplands, to low gradient broad floodplains. Upstream, the Umpqua River collects water from tributaries as far east as the Cascade Mountains.
Historically, a large and consistent run of eulachon returned to the Umpqua River, and both recreational and commercial fisheries occurred. The Umpqua River eulachon sport fishery was active for many years during the 1970s and 1980s, with the majority of fishing activity centered near the town of Scottsburg. A commercial fishery also harvested eulachon during that time. Approximately 1,800 to 2,300 kg (4,000 to 5,000 lbs) of eulachon were landed by two commercial fishermen in the Umpqua River during 31 days of drift gill net fishing from late December 1966 to mid-March 1967 (OFC, 1970). Numbers of fish returning to the Umpqua seem to have declined in the 1980s and do not appear to have rebounded to previous levels. Johnson et al. (1986) list eulachon as occurring in trace amounts in their trawl and beach-seine samples from April 1977 to January 1986. Williams (2009) reported on the results of seine collections conducted during March to November from 1995 to 2003 in Winchester Bay estuary on the Lower Umpqua River, which confirmed the presence of eulachon in four of the years in which sampling occurred.
Eulachon have been documented in the lower Umpqua River during spawning, from the mouth upstream to the confluence of Mill Creek, just below Scottsburg (Williams, 2009). This indicates that the area downstream from this confluence contains the spawning and incubation, and migration corridor essential features.
(5) Tenmile Creek, OR: The Tenmile Creek watershed lies entirely within Lane County, Oregon and encompasses approximately 60 km  (23 mi  ) on the central Oregon Coast (Johnson, 1999). The watershed is in a unique location, between the Cummins Creek and Rock Creek wilderness areas, which are protected from development.
Eulachon are regularly caught in salmonid smolt traps operated in the lower reaches of Tenmile Creek by ODFW. During previous sampling efforts, 80-90 percent of the eulachon captured in the traps were spawned out and several fish were found dead (Williams, 2009). Given the timing of the sampling (February to May), it is very likely that spawning occurs regularly in Tenmile Creek. It is not known how far adult eulachon ascend the creek to spawn, but the location of the ODFW trap (just upstream of the Highway 101 bridge) is the confirmed upstream extent of adult eulachon in spawning condition, and we conclude that the specific area containing spawning and incubation sites extends upstream at least to this point (ODFW, 2009).
(6) Sandy River, OR: The Sandy River and its tributaries drain 1,316 km  (508 mi  ). Most of the headwaters of the Sandy River are within Clackamas County, while the lower mainstem of the river lies within Multnomah County. The Sandy River originates from glaciers on Mount Hood and flows for 90 km (56 mi) to join the Columbia River near the City of Troutdale (Sandy River Basin Watershed Council, 1999). The segment of the Sandy River from Dodge Park to Dabney State Park was designated as a National Wild and Scenic River in October 1988.
Large commercial and recreational fisheries have occurred in the Sandy River in the past. The most recent commercial harvest in the Sandy River was in 2003 and resulted in a catch of 10,400 kg (23,000 lbs) (Joint Columbia River Management Staff [JCRMS], 2009). During spawning, eulachon extent in the Sandy River is typically upstream to the confluence with Gordon Creek (Anderson, 2009), indicating that this area contains the spawning and incubation, and migration corridor essential features.
(7) Lower Columbia River, OR and WA: The lower Columbia River and its tributaries support the largest known spawning run of eulachon. The mainstem of the lower Columbia River provides spawning and incubation sites, and a large migratory corridor to spawning areas in the tributaries. Major tributaries of the Columbia River that have supported eulachon runs in the past include the Grays, Elochoman, Cowlitz, Kalama and Lewis Rivers in Washington and the Sandy River in Oregon (WDFW and ODFW, 2001; Gustafson et al., 2010; the Columbia River tributaries in Washington State are discussed below as separate specific areas).
Although direct estimates of adult spawning stock abundance in the Columbia River are unavailable, records of commercial fishery landings begin in 1888 and continue as a nearly uninterrupted data set to 2010 (Gustafson et al., 2010). A large recreational dipnet fishery, for which catch records have not been maintained, has taken place concurrent with the commercial fishery (WDFW and ODFW, 2001). However, the dipnet fishery took place almost entirely within the tributaries. During spawning, adult eulachon are found in the lower Columbia River from the mouth of the river to immediately downstream of Bonneville Dam (WDFW and ODFW, 2008), indicating that the area contains the essential feature of migration corridors. Eulachon eggs have been collected, and spawning presumed, from river km 56 (river mi 35) to river km 117 (river mi 73) (Romano et al., 2002) indicating that this area contains the spawning and incubation essential feature. However, due to the limited range of the study, the entire range of eulachon spawning in the mainstem of the Columbia River remains unknown (Romano et al., 2002). As noted above in response to Comment 7, eulachon have historically been reported as far upstream as Hood River but have rarely passed Bonneville Dam since its completion in 1937.
The Columbia River, estimated to have historically represented half of the species' abundance, experienced a sudden decline in its commercial eulachon fishery landings in 1993-1994 (WDFW and ODFW, 2001; JCRMS, 2009). Commercial catch levels were consistently high (usually greater than 500 metric tons [550 tons] and often greater than 1,000 metric tons [1,100 tons]) for the three quarters of a century from about 1915 to 1992. In 1993, catches declined greatly to 233 metric tons (257 tons) and to an average of less than 40 metric tons (44 tons) between 1994 and 2000. From 2001 to 2004, the catches increased to an average of 266 metric tons (293 tons), before falling to an average of less than 5 metric tons (5.5 tons) from 2005 to 2008. Some of this pattern is due to fishery restrictions put in place in response to the apparent sharp declines in the species abundance. Persistent low returns and landings of eulachon in the Columbia River from 1993 to 2000 prompted the states of Oregon and Washington to adopt a Joint State Eulachon Management Plan in 2001 that provides for restricted harvest management when parental run strength, juvenile production, and ocean productivity forecast a poor return (WDFW and ODFW, 2001). Despite a brief period of improved returns in 2001-2003, the returns and associated commercial landings declined to the very low levels observed in the mid-1990s (JCRMS, 2009), and the fishery operated at the most conservative level allowed in the Joint State Eulachon Management Plan from 2005 to 2010 (JCRMS, 2009). All commercial and recreational fisheries for eulachon were closed in Oregon and Washington for 2011.
(8) Grays River, WA: The Grays River watershed is located in Pacific and Wahkiakum counties, in Washington State. The Grays River is a tributary of the Columbia River, which it enters near the town of Oneida, Washington. The Grays River watershed encompasses 322 km  (124 mi  ) (May and Geist, 2007).
From 1980 to 1989 the annual commercial harvest of eulachon in the Grays River varied from 0 to 16 metric tons (0 to 35,000 lbs.). No commercial harvest has been recorded for the Grays River from 1990 to the present, but larval sampling has confirmed successful spawning in recent years (JCRMS, 2009). During spawning, eulachon typically ascend the river as far as the covered bridge near the unincorporated town of Grays River, WA (Anderson, 2009), indicating that this area contains the spawning and incubation, and migration corridor essential features.
(9) Skamokawa Creek, WA: Skamokawa Creek is a tributary of the Columbia River located in southwest Washington. Skamokawa Creek drains a relatively small (161 km  [63 mi  ]) watershed that lies entirely within Wahkiakum County.
During April 2011, biologists from the Cowlitz Indian Tribe documented the presence of eulachon larvae in Skamokawa Creek, confirming eulachon spawning in this system (Cowlitz Indian Tribe, 2011). These biologists used a systematic sampling protocol to determine that the bridge crossing at Petersen was the likely upstream limit of spawning. We consider this recent information as the best available indicating that this area contains the spawning and incubation, and migration corridor essential features for eulachon.
(10) Elochoman River, WA: The Elochoman River is a tributary of the Columbia River in southwest Washington and it originates in the Willapa Hills. The watershed lies within Lewis, Cowlitz, and Wahkiakum counties and flows generally south to the Columbia River. The Elochoman watershed area is approximately 261 km  (101 mi  ) (Lower Columbia Fish Recovery Board [LCFRB], 2004a).
Eulachon spawn occasionally in the Elochoman River, although there is no history of commercial or recreational harvest of eulachon for the Elochoman River. Sampling of outmigrating larval eulachon by WDFW has confirmed spawning in the river 7 times in the last 15 years (JCRMS, 2011), most recently in 2011 (Chris Wagemann, WDFW, personal communication, 4/18/2011). In the past, WDFW has observed spawning eulachon in the Elochoman River as far the Washington State Highway 4 bridge crossing (Anderson, 2009). However, in April 2011, biologists from the Cowlitz Indian Tribe documented the presence of larval eulachon in the Elochoman River to the Monroe Drive bridge crossing (Cowlitz Tribe, 2011), indicating that a more extensive area contains the spawning and incubation, and migration corridor essential features. If eulachon ascend the river beyond this point, the water intake dam at the old Beaver Creek Hatchery (located on the Elochoman River at river km 11.5 [river mi 7.1]) may be a barrier to any further upstream migration of eulachon (Wade, 2002).
(11) Cowlitz River, WA: The Cowlitz River flows from its source on the west slope of the Cascade Mountains through the towns of Kelso and Longview, Washington, and empties into the Columbia River about 109 km (68 mi) upstream from the Pacific Ocean. The Cowlitz River drains approximately 6,400 km  (2,480 mi  ) over a distance of 243 km (151 mi) (Dammers et al., 2002). Principal tributaries to the Cowlitz River include the Coweeman, Toutle, Tilton, and Cispus Rivers.
The Cowlitz River is likely the most productive and important spawning river for eulachon within the Columbia River system (Wydoski and Whitney, 2003). Spawning adults typically move upstream about 26 km (16 mi) to the town of Castle Rock, WA or beyond to the confluence with the Toutle River. Adults are regularly sighted from the mouth of the river to 55 km (34 mi) upstream (near the town of Toledo, WA). Eulachon are occasionally sighted as far as 80 km (50 mi) upstream, to the barrier dam at the Cowlitz Salmon Hatchery (WDFW and ODFW, 2008; Anderson, 2009), indicating that this area contains the spawning and incubation, and migration corridor essential features.
The Cowlitz River currently has 3 major hydroelectric dams and several small-scale hydropower and sediment retention structures located on tributaries within the Cowlitz Basin. Mayfield Dam is located at river km 84 (river mi 52) and is a complete barrier to upstream migration of anadromous fishes (LCFRB, 2004b) (although the salmon hatchery barrier dam at river km 80 (river mi 50) may also be a complete barrier to eulachon).
(12) Toutle River, WA: The Toutle River is a tributary of the Cowlitz River, and it occurs in portions of Lewis, Cowlitz, and Skamania Counties in southwestern Washington State. The Toutle River is one of the major tributaries of the lower Cowlitz River and their confluence occurs 32 km (20 mi) upstream of the mouth of the Cowlitz River, just north of the town of Castle Rock, Washington. The basin encompasses approximately 1,329 km  (513 mi  ) of mostly forested land. The Toutle River drains the north and west sides of Mount St. Helens and elevations in the watershed range from near sea level at the mouth to 2,550 m (8,365 ft) at the summit of Mount St. Helens. The watershed contains three main drainages: The North Fork Toutle, the South Fork Toutle, and the Green River. Most of the North and South Fork were impacted severely by the 1980 eruption of Mount St. Helens and the resulting massive debris torrents and mudflows (LCFRB, 2004b).
During April 2011, biologists from the Cowlitz Indian Tribe documented the presence of eulachon larvae in the Toutle River, confirming eulachon spawning in this system (Craig Olds, Cowlitz Indian Tribe, personal communication, April 22, 2011). In the past, spawned out eulachon adults have been collected in the Cowlitz River near the mouth of the Toutle River. But the recent surveys provide the first evidence of spawning in the Toutle River. The Cowlitz Tribe biologists captured eulachon larvae in the Toutle River up to the bridge crossing at Tower Road, which is 10.5 km (6.6 mi) upstream from the confluence with the Cowlitz River. We consider this recent information as the best available indicating that this area contains the spawning and incubation, and migration corridor essential features for eulachon.
(13) Kalama River, WA: The Kalama River basin is a 531 km  (205 mi  ) watershed extending from the southwest slopes of Mount St. Helens to the Columbia River (LCFRB, 2004e). The headwaters of the Kalama River begin in Skamania County, WA, but the majority of the 72 km (45 mi) of river flows within Cowlitz County. At river km 16 (river mi 10), a concrete barrier dam and fish ladder prevent upstream movement of all anadromous fishes with the exception of summer steelhead and spring Chinook salmon (LCFRB, 2004c).
The extent of spawning within the Kalama River is from the confluence with the Columbia River to the confluence with Indian Creek (Cowlitz Indian Tribe, 2011), indicating that this area contains the spawning and incubation, and migration corridor essential features. Although the last commercial harvest of eulachon in the Kalama River occurred in 1993, sampling for larval eulachon has confirmed spawning in the Kalama River as recently as 2011 (Cowlitz Indian Tribe, 2011).
(14) Lewis River, WA: The Lewis River enters the Columbia River 104 km (87 mi) upstream from the mouth of the Columbia River, a few kilometers north of the town of Ridgefield, Washington. The majority of the 1,893 km  (731 mi  ) watershed lies within Clark, Cowlitz and Skamania Counties (LCFRB, 2004d). Although generally not considered as large a eulachon run as the Cowlitz River, the Lewis River has produced very large runs periodically. Nearly half of the total commercial eulachon catch for the Columbia River Basin in 2002 and 2003 came from the Lewis River. Larval eulachon have been caught in the Lewis River during sampling efforts by WDFW and the Cowlitz Indian Tribe, (JCRMS, 2009; Cowlitz Indian Tribe, 2011). During spawning, eulachon typically move upstream in the Lewis River about 16 km (10 mi; to Eagle Island), but they have been observed upstream to the Merwin Dam (WDFW and ODFW, 2008; Anderson, 2009). Larval eulachon have also been caught in the East Fork of the Lewis River, up to the confluence with Mason Creek, 9.2 km (5.7 mi) from the confluence with the mainstem of the Lewis River (Cowlitz Indian Tribe, 2011). The capture of larval eulachon in the mainstem and east fork of the Lewis River indicates that these areas contain the spawning and incubation, and migration corridor essential features.
Merwin Dam, completed in 1931, is 240 feet high and currently presents a passage barrier to all anadromous fish, including eulachon (LCFRB, 2004d). We are unable to find information to determine whether eulachon ascended the river beyond river km 31.4 (river mi 19.5) prior to construction of the dam. However, Merwin Dam was built in an area where the Lewis River became constricted, with increased gradient and higher water velocities. Prior to dam construction this area was likely a natural passage barrier for eulachon. For this reason, the area upstream of the current Merwin Dam site was not considered for inclusion as critical habitat.
(15) Quinault River, WA: The headwaters of the Quinault River originate in the Olympic Mountains within Olympic National Park. The river then crosses into the Quinault Indian Reservation where it flows into Lake Quinault. Downstream of the lake, the Quinault River remains within the Quinault Indian Reservation for another 53 km (33 mi) to the Pacific Ocean. The total watershed area is 1,190 km  (460 mi  ) (Smith and Caldwell, 2001).
Although there is currently no monitoring for eulachon in the Quinault River, WDFW and ODFW (2001) reported that eulachon “were noted in large abundance in the Quinault” River in 1993. A noticeable number of eulachon make an appearance in the Quinault River, and to a lesser extent the Queets River, at 5 to 6 year intervals and were last observed in the Quinault River in the winter of 2004-2005 (Quinault Indian Nation, 2008). There is very little information on eulachon spawning distribution in the Quinault River, but Tribal fishermen targeting eulachon typically catch fish in the lower three miles of the river (Quinault Indian Nation, 2008). It is reasonable to conclude that this area contains the spawning and incubation, and migration corridor essential features.
Although eulachon are currently only occasionally recorded in the Quinault River, during the late 19th and early 20th century eulachon were regularly caught by members of the Quinault Indian Tribe (Willoughby, 1889; Olson, 1936). Fish were typically taken in the ocean surf but often ascended the river for several miles (Olson, 1936). Olson (1936) reported that there was usually a large run of eulachon in the Quinault River every three or four years, and the run timing varied, usually occurring between January and April. The Washington Department of Fisheries annual report for 1960 (Starlund, 1960) listed commercial eulachon landings in the Quinault River in 1936, 1940, 1953, 1958 and 1960. The commercial catches ranged from a low of 61 kg (135 lbs.) in 1960, to a high of 42,449 kg (93,387 lbs.) in 1953.
Nearly half of the watershed lies within Olympic National Park, under the jurisdiction of the National Park Service, while the Quinault Indian reservation comprises about one third (32 percent) of the watershed, including most of the area downstream of Lake Quinault (Quinault Indian Nation and U.S. Forest Service, 1999). The U.S. Forest Service manages 13 percent of the watershed, and private landholdings comprise only 4 percent of the lands in the watershed (Smith and Caldwell, 2001).
(16) Elwha River, WA: The Elwha River mainstem is approximately 72 km (45 mi) long, and it drains 831 km  (321 mi  ) of the Olympic Peninsula. A majority of the drainage (83 percent) is within Olympic National Park (Elwha-Dungeness Planning Unit, 2005). The historical condition of the river has been altered by two major hydroelectric developments: The Elwha Dam and the Glines Canyon Dam (located just upstream of the Elwha Dam).
In 2005, eulachon were observed in the Elwha River for the first time since the 1970s (Shaffer et al., 2007). Since 2005, adult eulachon have been captured in the Elwha River every year (2006-2010) (Lower Elwha Tribe, 2010). Several of the fish captured in 2005 were ripe (egg-extruding) females, indicating that eulachon likely spawn in the Elwha River (Shaffer et al., 2007). The Elwha Dam serves as a complete barrier to upstream fish migration, and thus it is reasonable to assume that the spawning and incubation, and migration corridor essential features only extend to that point in the Elwha River. It is not known if eulachon ascended the Elwha River beyond the present site of the Elwha Dam prior to construction. However, the dam was built in an area where the Elwha River became constricted, with increased gradient and higher water velocities. Prior to dam construction this area was likely a natural passage barrier for eulachon. For this reason, the area upstream of the current Elwha Dam site was not considered for inclusion as critical habitat. As part of a comprehensive restoration of the watershed's ecosystem and its fisheries, the Elwha and Glines Canyon dams were acquired by the Federal Government in 2000 and their removal began in September 2011.
All Areas: We delineated each specific area as extending from the mouth of the river or creek (or its associated estuary when applicable) upstream to a fixed location. We delineated the upstream extent based on evidence of eulachon spawning or presence, or the presence of an impassable barrier. The boundary at the mouth of each specific area that flows directly into marine waters was defined by the demarcation lines which delineate “those waters upon which mariners shall comply with the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS) and those waters upon which mariners shall comply with the Inland Navigation Rules” (33 CFR 80.01). For those specific areas that do not have a COLREGS line delineated, the boundary at the mouth of those specific areas was defined as a line drawn from the northernmost seaward extremity of the mouth of the creek or river to the southernmost seaward extremity of the mouth (with the exception of the boundary at the mouth of the Elwha River, which was defined as a line drawn from the easternmost seaward extremity of the mouth of the river to the westernmost seaward extremity of the mouth). Our regulations state that “[e]ach critical habitat will be defined by specific limits using reference points and lines as found on standard topographic maps of the area” (50 CFR 424.12 (c)). The COLREGS lines (where defined) were chosen as the downstream extent of freshwater and estuarine critical habitat because they are a clearly defined federal standard, separating marine and inland waters, which incorporates landmarks that are found on standard topographic maps.
Occupied Areas Not Designated at This Time Back to Top
In the Pacific Ocean, we identified nearshore and offshore foraging sites as an essential habitat feature for the conservation of eulachon, and we determined that abundant forage species and suitable water quality are specific components of this habitat feature. However, we were unable to identify any specific areas in marine waters that meet the definition of critical habitat under section 3(5)(A)(i) of the ESA. Given the unknown, but potentially wide, distribution of eulachon prey items, we could not identify “specific areas” where either component of the essential features is found within marine areas believed to be occupied by eulachon. Moreover, prey species move or drift great distances throughout the ocean and would be difficult to link to any “specific” areas.
Special Management Considerations Back to Top
Physical or biological features meet the definition of critical habitat if they “may require special management considerations or protection.” Joint NMFS and USFWS regulations at 50 CFR 424.02(j) define “special management considerations or protection” to mean “any methods or procedures useful in protecting physical and biological features of the environment for the conservation of listed species.” We identified a number of activities that may affect the physical and biological features essential to the southern DPS of eulachon such that special management considerations or protection may be required. Major categories of such activities include: (1) Dams and water diversions; (2) dredging and disposal of dredged material; (3) in-water construction or alterations; (4) pollution and runoff from point and non-point sources; (5) tidal, wind, or wave energy projects; (6) port and shipping terminals; and (7) habitat restoration projects. All of these activities may have an effect on one or more of the essential physical and biological features via their alteration of one or more of the following: Stream hydrology; water level and flow; water temperature; dissolved oxygen; erosion and sediment input/transport; physical habitat structure; vegetation; soils; nutrients and chemicals; fish passage; and estuarine/marine prey resources.
In the following paragraphs, we describe the potential effects of certain activities on essential physical or biological features, and we summarize the occurrence of these activities in the specific areas in Table 1 below (examples of activities that may require special management considerations for each of the specific areas are listed in the Eulachon Biological Report (NMFS, 2011b)). This is not an exhaustive list of potential effects, but rather a description of the primary concerns and potential effects that we are aware of at this time and that should be considered in the analysis of these activities under section 7 of the ESA.
(1) Dams and Water Diversions: Physical structures associated with dams and water diversions may impede or delay passage of eulachon. The operation of dams and water diversions may also affect water flow, water quality parameters, substrate quality, and depth, and further compromise the ability of adult eulachon to reproduce successfully. Optimum flow and temperature requirements for spawning and incubation are unclear, but effects on water flow and associated effects on water quality (e.g., water temperature) and substrate composition may affect adult spawning activity, egg viability, and larval growth, development, and survival. Many uncertainties remain about how large-scale hydropower development (e.g., the Federal Columbia River Power System) affects eulachon habitat.
(2) Dredging: Dredging activities, which include the disposal of dredged material, may affect depth, sediment quality, water quality, and prey resources for eulachon. Dredging and the in-river disposal of dredged material may remove, and/or alter the composition of, substrate materials at the dredge site, as well as bury them at the disposal site (potentially altering the quality of substrate for use as a spawning site). In addition, dredging operations and disposal of dredged materials may result in the re-suspension and spread of contaminated sediments, which may adversely affect eulachon migration and spawning, as well as larval growth and development. The effects of dredging and disposal activities on critical habitat would depend on factors such as the location, seasonality, scale, frequency, and duration of these activities.
(3) In-water Construction or Alterations: This category consists of a broad range of activities associated with in-water structures or activities that alter habitat within rivers, estuaries, and coastal marine waters. The primary concerns are with activities that may affect water quality, water flow, sediment quality, substrate composition, or migratory corridors. Activities that may affect water quality include the installation of in-water structures (such as pilings) with protective coatings containing chemicals that may leach into the water. Activities that affect flow, sediment quality and substrate composition include those that result in increased erosion and sedimentation (such as road maintenance and construction, bridge construction, construction of levees and other flood control devices, construction or repair of breakwaters, docks, piers, pilings, bulkheads, and boat ramps) and those that directly alter substrates (such as sand and gravel mining or gravel augmentation). Activities that may affect migratory corridors include the construction of in-water structures, such as docks, piers, pilings, and ramps.
(4) Pollution and Runoff: The discharge of pollutants and runoff from point and non-point sources (including but not limited to: Industrial discharges, urbanization, grazing, agriculture, road surfaces, road construction, and forestry operations) may adversely affect the water quality, sediment quality, and substrate composition of eulachon critical habitat. Exposure to contaminants may disrupt eulachon spawning migration patterns, and high concentrations may be lethal to young fish (Smith and Saalfeld, 1955). Excessive runoff may increase turbidity and alter the quality of spawning substrates.
(5) Tidal, Wind, or Wave Energy Projects: Tidal, wind, or wave energy projects generally require energy generating equipment and supporting structures to be anchored on the bottom. However, there are a wide range of designs currently being tested and potential impacts of individual projects will vary depending on the type of unit being deployed. Projects are typically proposed for location in coastal marine waters or coastal estuaries. Some designs may result in physical structures that impede or delay passage of eulachon. In addition, construction and maintenance of these energy projects may require in-water construction or alterations, which would include the potential effects described above.
(6) Port and Shipping Terminals: The operation of port and shipping terminals poses the risk of leaks, spills, or pipeline breakage and may affect water quality. Vessel ballast water management (including the introduction of competitors or parasites) may also affect water quality. In addition, activities associated with the construction, operation, and maintenance of port and shipping terminals may affect water quality, sediment quality, and prey resources for larval eulachon. For example, dredging operations and in-water and shoreline construction activities associated with the construction and operation of port and shipping terminals may result in increased erosion and sedimentation, increased turbidity, and the re-suspension of contaminated sediments.
(7) Habitat Restoration Projects: Habitat restoration activities are efforts undertaken to improve habitat, and can include the installation of fish passage structures and fish screens, in-stream barrier modification, bank stabilization, installation of instream structures (e.g., engineered log jams), placement of gravel, planting of riparian vegetation, and many other habitat-related activities. Although the primary purpose of these activities is to improve natural habitats for the benefit of native species, these activities nonetheless modify the habitat and need to be evaluated to ensure that they do not adversely affect the habitat features essential to eulachon. While habitat restoration activities would be encouraged as long as they promote the conservation of the species, project modifications in the form of spatial and temporal restrictions may be required as a result of this designation.
Unoccupied Areas Back to Top
Section 3(5)(A)(ii) of the ESA authorizes the designation of “specific areas outside the geographical area occupied at the time [the species] is listed” if these areas are essential for the conservation of the species. Regulations at 50 CFR 424.12(e) emphasize that the agency “shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.”
Nearly all of the documented historical and current presence and production of the southern DPS of eulachon comes from within the geographical area occupied by the southern DPS at the time of listing, and no new information on this subject was received during the comment and peer review process of the Proposed Critical Habitat Designation (76 FR 515; January 5, 2011). Sightings of southern DPS eulachon from creeks or rivers outside of this area have been extremely infrequent, and have consisted of very few fish (Gustafson et al., 2010). Therefore, we are not considering any unoccupied areas as critical habitat for the DPS.
|Specific area||River kilometers/ miles||Physical or biological features||Activities|
|[The river miles containing the essential physical and biological features present, and activities that may affect the essential features and necessitate the need for special management considerations or protection within each area are listed. DAM = dams and water diversions; DR = dredging and disposal of dredged material; CON = in-water construction or alterations, including channel modifications/diking; POLL = pollution and runoff from point and non-point sources; ENER = tidal energy or wave energy projects; PORT = operation of port and shipping terminals; REST = habitat restoration projects.]|
|(1) Mad River, CA||21.0/13.0||Migration, Spawning||DAM, CON, POLL|
|(2) Redwood Creek, CA||19.7/12.2||Migration, Spawning||CON, POLL|
|(3) Klamath River, CA||17.2/10.7||Migration, Spawning||DAM, DR, CON, POLL|
|(4) Umpqua River, OR||39.0/24.2||Migration, Spawning||DAM, DR, POLL|
|(5) Tenmile Creek, OR||0.4/0.2||Migration, Spawning||CON, POLL|
|(6) Sandy River, OR||20.0/12.4||Migration, Spawning||DAM, CON, POLL|
|(7) Columbia River, OR and WA||230.5/143.2||Migration, Spawning||DAM, DR, CON, POLL, ENER, PORT, REST|
|(8) Skamokawa Creek||7.8/4.8||Migration, Spawning||CON, POLL|
|(9) Grays River, WA||17.9/11.1||Migration, Spawning||DAM, DR, CON, POLL|
|(10) Elochoman River, WA||8.4/5.2||Migration, Spawning||CON, POLL|
|(11) Cowlitz River, WA||80.8/50.2||Migration, Spawning||DAM, DR, CON, POLL, PORT, REST|
|(12) Toutle River||10.5/6.6||Migration, Spawning||DAM, CON, POLL|
|(13) Kalama River, WA||12.6/7.8||Migration, Spawning||DAM, CON, POLL|
|(14) Lewis River, WA||31.1/19.3||Migration, Spawning||DAM, CON, POLL|
|East Fork, Lewis River, WA||9.2/5.7||Migration, Spawning||CON, POLL|
|(15) Quinault River, WA||4.8/3.0||Migration, Spawning||CON, POLL|
|(16) Elwha River, WA||7.6/4.7||Migration, Spawning||DAM, CON, POLL, REST|
Military Lands Back to Top
The ESA was amended by the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) to address the designation of military lands as critical habitat. ESA section 4(a)(3)(B)(i) states: “The Secretary shall not designate as critical habitat any lands or other geographi