CRITICAL HABITAT Qs and As

1. How can I get information about NOAA Fisheries' proposal?

Our proposal to designate critical habitat for salmon and steelhead (O. mykiss)in California is published in the Federal Register and available on the Southwest Region's website:

http://swr.nmfs.noaa.gov

To fully understand the proposal and the analysis behind it, we recommend that those wishing to comment to read the analytical documents. These include:

• A biological report describing how we mapped fish distribution, determined which areas meet the definition of critical habitat, and rated the conservation value of different areas. "Preliminary Findings of NMFS's Critical Habitat Development and Review Teams for Seven Salmon and O. mykiss Evolutionarily Significant Units in California"
• An economics report describing how we estimated the economic impact of this proposal on different areas. "Draft Economic Analysis of Critical Habitat Designation for SevenPacific Salmon and O. mykiss ESUs"
• A report describing how we considered the biological ratings and the economic impact to recommend the exclusion of particular areas based on economic impacts. "Designation of Critical Habitat for Seven Salmon and Steelhead ESUs in California: Draft 4(b)(2) Report"

2. How does the law protect threatened and endangered species?

The Endangered Species Act (ESA) protects threatened and endangered species in several ways. One of the most important is that section 7 requires all federal agencies to ensure that any actions they take, fund, or authorize are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its designated critical habitat. This requirement applies only to federal agency actions, and only to habitat that has been designated.

Another important protection provided by the ESA is that it prohibits any person from "taking" an endangered species. In most cases, agency regulations also prohibit any person from taking a threatened species. This prohibition is separate from the section 7 requirement for federal agency actions.

3. What is critical habitat?

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 (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and specific areas outside the geographical area occupied by the species at the time it is listed that are determined by the Secretary to be essential for the conservation of the species." A designation does not set up a preserve or refuge and only applies to situations where Federal funding, permits, or projects are involved. It does not apply to citizens engaged in activities on private land that do not involve a federal agency.

4. What are the physical or biological features essential to the conservation of Pacific salmon and steelhead?

The biological report, mentioned in Question 1, describes the life history of salmon and steelhead, the physical and biological features essential to their conservation, and our process for determining whether those features are present in areas occupied by the fish.

Our biologists developed a list of features (also known as primary constituent elements, or PCEs), which include sites essential to support one or more life stages (sites for spawning, rearing, migration and foraging). These sites in turn contain physical or biological features essential to the conservation of an ESU (for example, spawning gravels, water quality and quantity, side channels, forage species). For a complete description of these features, please refer to the Federal Register Notice or the biological report mentioned in Question 1.

5. How does critical habitat get designated?

The ESA requires that we designate critical habitat using the best scientific information available, in an open public process, at the time of listing or not later than one year after listing. Before designating critical habitat we must consider the economic impacts, impacts on national security and other relevant impacts of specifying any particular area as critical habitat. The Secretary of Commerce may exclude an area from critical habitat if the benefits of exclusion outweigh the benefits of designation, unless excluding the area will result in the extinction of the species concerned.

6. Why designate critical habitat now?

NOAA Fisheries designated critical habitat for 19 salmon and steelhead ESUs - including 6 of the 7 ESUs addressed in the present proposal - in February 2000. The National Association of Homebuilders challenged the designations, in particular the adequacy of the economic analysis. NOAA Fisheries sought a remand to withdraw the designations in light of a Circuit Court decision in New Mexico Cattlegrowers' Association v. U.S. Fish and Wildlife Service. In that case, the Court rejected the U.S. Fish and Wildlife Service approach to economic analysis, which was similar to the approach we had taken in the final rule designating critical habitat for the 19 ESUs. Subsequently, environmental groups sued over our lack of timely designations. NOAA Fisheries then settled with these groups and agreed to a critical habitat proposal deadline that was ultimately extended to November 30, 2004, to be followed by final designations in June 2005.

7. How did NOAA Fisheries determine the areas where the economic benefits of exclusion outweigh the benefits of designation?

We employed a cost-effectiveness approach giving priority to excluding habitat areas with a relatively lower benefit of designation and a relatively higher economic impact. As described in the biological report (Question 1), teams of federal biologists provided information regarding the benefit of designating any particular habitat area as critical habitat by describing the relative conservation value (high, medium, low) of watersheds. These were compared against economic impact data, described in the economics report (Question 1), compiled for each watershed based on the agency's section 7 consultation history in the Pacific Northwest. The cost-effectiveness approach and the results of its application are described in the section 4(b)(2) report (Question 1).

8. How much critical habitat is proposed for designation as compared with the designations in 2000?

It is difficult to compare the two because the 2000 designations were based on a descriptive designation that included all areas "occupied andaccessible" to salmon and steelhead (i.e., the designated areas were not specifically mapped). Since 2000, better information and maps have been developed by the Southwest Region. In the current proposal, we have proposed about 11,750 miles of stream for designation as well as estuarine habitat in San Francisco Bay, Humboldt Bay, and Morro Bay. Some of the proposed areas are occupied by two or more ESUs.

9. What are the estimated economic impacts if the areas proposed are actually designated as critical habitat?

Our estimates reflect the total cost associated with ESA section 7 consultations rather than the incremental cost associated only with the designation of critical habitat. As soon as species are listed, federal agencies are required to ensure their actions are not likely to jeopardize the species continued existence. Once critical habitat is designated, they must ensure their actions are not likely to destroy or adversely modify critical habitat. Based on our prior consultation record, we could not detect an additional incremental impact to federal agency actions, by adding the section 7 requirements that pertain just to critical habitat.

In estimating economic impacts we considered (1) the types of federal actions affected by section 7, (2) modifications required as a result of section 7, (3) the average cost of modifications, and (4) the expected number of actions in a watershed. The annual net economic impact of both section 7 requirements (i.e., "jeopardy" and "adverse modification") is estimated to be about $84 million in the range of the 7 California ESUs. The economics report (Question 1) contains details regarding the development and application of the economic data.

10. Has the agency identified all the habitat that is needed for recovery?

At this time we have identified occupied areas for each of the seven ESUs that contain the physical or biological features that may require special management considerations or protections. Not all of these areas are proposed for designation. The ESA gives the Secretary discretion to exclude any area from critical habitat if the benefits of exclusion outweigh the benefits of designation, unless the failure to designate such areas will result in the extinction of the species. We are proposing to exclude some occupied areas because of economic impacts, but only where the exclusion would not significantly impede conservation. The Section 4(b)(2) Report (Question 1) describes in detail the process the agency followed in proposing economic exclusions.

In addition to occupied areas, we identified some unoccupied areas that may be essential for conservation and solicited information from the public on whether these, or any other unoccupied areas, are essential for conservation. We expect that ongoing recovery planning efforts will develop information that will allow us to determine whether these or additional unoccupied areas are essential for conservation. Finally, as noted below, NOAA Fisheries can revise these critical habitat designations through ESA rulemaking if recovery planning indicates that such revisions are needed.

11. Has the agency made a finding that all the areas proposed for designation are essential for conservation?

The ESA defines critical habitat as all areas occupied by the species that contain physical or biological features essential to conservation, plus unoccupied areas if the unoccupied area is itself essential for conservation. In this designation, we have identified all occupied areas, determined whether they contain the essential features, and determined whether those features may require special management considerations or protection. In addition, we considered whether currently unoccupied areas may be essential for conservation.

12. Why are riparian areas not included in the designation?

In previous critical habitat designations we did designate riparian areas. For example, in the Snake River we designated riparian areas within 300 feet of high water (58 Fed. Reg. 68543 (Dec. 28, 1993)), and in the 2000 designations we included riparian areas that provide habitat "function" (65 Fed. Reg. 7764 (Feb. 16, 2000)). In the current rulemaking, we are proposing to designate only the stream channel.

We recognize there are many actions that occur in the riparian area that may adversely modify the stream habitat. We believe the approach taken in the current proposal will provide the greatest clarity about what is actually being designated and will protect listed species' habitat. The Federal Register Notice proposing the designation identifies many of the activities that may affect the stream. The identification of streams occupied by listed fish, and the notice about what types of activities in the riparian areas may affect those streams, will assist federal agencies in ensuring their action are not likely to adversely modify critical habitat.

13. What about actions occurring upstream of designated critical habitat?

Actions occurring upstream of critical habitat may affect sediment, temperature, or large woody debris in the critical habitat downstream. As in the case of riparian areas, we believe the identification of streams occupied by listed fish, and the notice about what types of upstream activities may affect those occupied streams, will assist federal agencies in ensuring their action are not likely to adversely modify critical habitat.

14. How should local recovery planning efforts consider NOAA's proposed designation as they are developing their local recovery plans?

NOAA Fisheries' internal analyses of species distribution, watershed conservation value and economic impact from section 7 consultations should be viewed as resources for local recovery planners.

15. How can I determine which particular areas are proposed for designation or exclusion?

The Federal Register notice contains information describing specific streams contained in the proposal (including latitude and longitude identifiers) as well as maps of the areas proposed for designation. In addition, we have posted on the internet a variety of related maps, documents, and data supporting the proposal - see http://swr.nmfs.noaa.gov/salmon.htm.

16. How does this proposed designation differ from the designations in 2000?

There are several key differences, due primarily to better available information and the agency's desire to describe critical habitat with greater specificity than was used in the 2000 designations. In the present proposal we have (1) used the best available data on species distribution (which was not available in 2000) to focus the designations on eligible occupied areas rather than all areas accessible to fish; (2) conducted more rigorous biological and economic analyses using watershed-based data to assess the benefits and impacts of designating particular habitat areas; (3) linked the lateral extent of critical habitat to a stream's bankfull elevation (i.e., the streambank level at which water begins to leave the channel and move into the floodplain) rather than a less distinct area defined by riparian function (e.g., shade, sediment control); and (5) in light of a recent ESA amendment, have not proposed to designate Department of Defense lands subject to approved Integrated Natural Resource Management Plans that benefit the listed species or where impacts on national security outweigh the benefits of designation.

In both the present proposal and past designation we have excluded Indian lands from designation due to our unique trust obligations, co-management relationships, the participation of the tribes in ongoing range-wide conservation activities, and continued respect for tribal sovereignty.

In addition, the proposed rule states that we are considering other types of exclusions that may reduce the geographic extent of the final designations, including:

1. A set of exclusions based on existing land management plans adopted and currently implemented by Federal agencies (i.e., the Northwest Forest Plan and PACFISH).
2. An exclusion of areas covered by conservation commitments by state and private landowners (e.g., approved Habitat Conservation Plans (HCPs).
3. An exclusion for intermingled non-federal lands [define] if a large part of a watershed is determined to warrant exclusion.

17. How do I comment on the proposal and when are comments due?

All comments on this proposal must be received by no later than 5 p.m. (Pacific Standard Time) on February 8, 2005. There are a number of ways to submit comments, including via:

E-mail - Send an e-mail to: critical.habitat.swr@noaa.gov. Include the docket number and RIN number from the Federal Register notice in the subject line of the message.

Federal e-Rulemaking Portal - Go to http://www.regulations.gov and follow the instructions for submitting comments. To search rules by agency select "National Oceanic and Atmospheric Administration."

Agency Web Site - Go to http://ocio.nmfs.noaa.gov/ibrm-ssi/index.shtml and follow the instructions for submitting comments.

Mail - Submit written comments and information to Assistant Regional Administrator, NMFS, Southwest Region, Protected Resources Division, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. You may also hand-deliver written comments to this address during normal business hours.

Fax - Submit comments to fax # 562-980-4027. Address fax to Assistant Regional Administrator, NMFS, Protected Resources Division.

In addition, we have scheduled four public hearings on this proposal as follows:

· January 13, 2005 from 6:30 - 9:30 pm at the North Coast Inn, 4975 Valley West Blvd., Arcata, CA 95521.

· January 19, 2005 from 6:30 - 9:30 pm at the DoubleTree Hotel Sonoma Wine Country, One DoubleTree Drive, Rohnert Park, CA 94928.

· January 20, 2005 from 6:30 - 9:30 pm at the Radisson Hotel Sacramento, 500 Leisure Lane, Sacramento, CA 95815.

· February 1, 2005 from 6:30 - 9:30 pm at the Fess Parker's DoubleTree Resort, 633 East Cabrillo Blvd., Santa Barbara, CA 93103.

18. What types of information would be most useful to NOAA Fisheries?

As noted in the proposed rule, we are particularly interested in:

1. Maps and specific information describing the amount, distribution, and use type (e.g., spawning, rearing, or migration) of salmon habitat in each ESU; as well as any additional information on occupied and unoccupied habitat areas.
2. The reasons why any habitat should or should not be determined to be critical habitat as provided by sections 3(5)(A) and 4(b)(2) of the ESA;
3. Information regarding the benefits of designating particular areas as critical habitat;
4. Information regarding the benefits of including or excluding lands covered by Habitat Conservation Plans (ESA §10(a)(1)(B) permits), Federal lands, and other lands covered by habitat conservation strategies and plans;
5. Current or planned activities in the areas proposed for designation and their possible impacts on proposed critical habitat;
6. Any foreseeable economic or other potential impacts resulting from the proposed designations, in particular, any impacts on small entities;
7. Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments; and
8. Whether specific unoccupied areas (e.g., dewatered stream reaches, areas behind dikes or above dams) not presently proposed for designation may be essential to provide additional spawning and rearing areas for an ESU.

19. What happens next?

In accordance with a court order, we must submit the final rule for publication in the Federal Register by June 15, 2005. We will hold public hearings and meetings, review all comments and any new information provided by the public and peer reviewers, and then incorporate any needed revisions into a final designation. Meanwhile, during the period between proposed and final rules, the ESA requires that each Federal agency confer with NOAA Fisheries on any agency action which is likely to result in the destruction or adverse modification of critical habitat proposed for designation.

20. Which species/ESUs are affected by this proposal?

In California, the proposal addresses 7 Evolutionarily Significant Units or "ESUs" of ESA-listed salmon and steelhead (Oncorhynchus mykiss). These include: (1) California Coastal chinook salmon; (2) Central Valley spring-run chinook salmon; (3) Northern California O. mykiss; (4) Central California Coast O. mykiss; (5) South-Central California Coast O. mykiss; (6) Southern California O. mykiss; and (7) Central Valley O. mykiss.