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DOC/NOAA RIN: 0648-AO04 Publication ID: Fall 2004 
Title: Designate Critical Habitat for 7 Evolutionarily Significant Units (ESUs) of Pacific Salmon and Steelhead in California 
Abstract: This action would designate critical habitat for 7 Pacific salmon and O. mykiss Evolutionarily Significant Units (ESUs) listed under the Endangered Species Act of 1973. The geographic area proposed for designation include riverine and estuarine habitat in California. 
Agency: Department of Commerce(DOC)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: No  Unfunded Mandates: No 
EO 13771 Designation: uncollected 
CFR Citation: 50 CFR 226   
Legal Authority: 16 USC 1533   
Legal Deadline:
Action Source Description Date
NPRM  Judicial    11/30/2004 
Final  Judicial    06/15/2005 

Statement of Need: On February 16, 2000, NMFS published final critical habitat designations for 19 ESUs, thereby completing designations for all 25 ESUs listed at the time. In considering the economic impact of the February 16, 2000, action, NMFS determined that the critical habitat designations would impose very little or no additional requirements on Federal agencies beyond those already associated with the listing of the species themselves. The National Association of Homebuilders (NAHB) challenged the designations in District Court in Washington, D.C. as having inadequately considered the economic impacts of the critical habitat designations (National Association of Homebuilders v. Evans, 2002 WL 1205743 No. 00-CV-2799 (D.D.C.)). As a result of a district court's approval of a consent decree, the 19 critical habitat designations were vacated. A subsequent complaint from a group of fishing and environmental organizations regarding our failure to designate critical habitat led to a court approved agreement (July 13, 2004) to designate critical habitat for any listed ESUs under the Northwest Region's responsibility by September 30, 2004, and for any listed ESUs under the Southwest Region's responsibility by November 30, 2004. Final critical habitat designations for all of these ESUs are due on June 15, 2005.

Summary of the Legal Basis: Sections 4(a)(3)(A) and 4(b)(6)(C)(ii) of the Endangered Species Act (ESA) require the Secretary to designate critical habitat concurrently with making a determination that a species is threatened or endangered. Section 4(b)(6)(C)(ii) requires that a final regulation designating critical habitat be published concurrently with the final regulation listing the species as threatened or endangered unless such habitat is not then determinable, in which case, the Secretary may extend the one-year period for finalizing critical habitat by one additional year. The court approved agreement mentioned in the first paragraph requires final critical habitat designations by June 15, 2005, concurrently with the deadline for final listing determinations on the 26 ESUs that were proposed for revised listing determinations and the one additional ESU that was proposed for listing. Section 4(b)(2) requires that critical habitat designation be based on the best scientific data available after taking economic impacts, impacts on national security, and any other relevant impact of specifying any particular area as critical habitat into account. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless failure to designate such area as critical habitat will result in the extinction of the species concerned.

Alternatives: Critical habitat designation is a requirement under the ESA. Alternatives can be considered during the section 4(b)(2) analysis when NMFS weighs the benefits of excluding some critical habitat with the benefits of specifying it as critical habitat. NMFS ranked different critical habitat areas as high, medium, or low value in terms of the benefits that can be expected to accrue to the salmon ESUs. One alternative is to include all habitat that has been identified as critical in the critical habitat designation. Another alternative is to exclude all the low value areas from the designation. A third alternative is to exclude a combination of all low value areas and some medium value areas.

Anticipated Costs and Benefits: NMFS has conducted an economic analysis on the proposal to designate critical habitat for the ESUs in the Region. The net economic impacts of ESA section 7 associated with the areas proposed for designation are estimated to be approximately $88,980,000. The benefits to Pacific salmon cannot be monetized easily, but critical habitat designation should contribute to the health of the species.

Risks: The principal benefit of designating critical habitat is that Federal activities that may affect such habitat are subject to consultation pursuant to section 7 of the ESA. Such consultation requires every Federal agency to insure that any action it authorizes, funds or carries out is not likely to result in the destruction or adverse modification of critical habitat. This complements the section 7 provision that Federal agencies insure that their action is not likely to jeopardize the continued existence of a listed species. Another benefit is that the designation of critical habitat can serve to educate the public regarding the potential conservation value of an area. This may focus and contribute to conservation efforts by clearly delineating areas of high conservation value for certain species.

Timetable:
Action Date FR Cite
NPRM  12/19/2000  65 FR 79328   
NPRM Comment Period End  02/20/2001    
NPRM  11/00/2004    
Regulatory Flexibility Analysis Required: Yes  Government Levels Affected: None 
Small Entities Affected: Businesses, Governmental Jurisdictions  Federalism: No 
Included in the Regulatory Plan: Yes 
Related RINs: Related to 0648-AQ77 
Agency Contact:
James H. Lecky
Director, Office of Protected Resources
Department of Commerce
National Oceanic and Atmospheric Administration
1315 East-West Highway,
Silver Spring, MD 20910
Phone:301 713-2332
Fax:301 427-2520
Email: jim.lecky@noaa.gov