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during normal business hours (8:30 a.m. Background DPS as a result of this listing. We to 5 p.m. Eastern time) at 888 First The notice of proposed rulemaking by propose to designate as critical habitat Street, NE., Room 2A, Washington DC cross-reference to temporary regulations 45 specific areas occupied by Atlantic 20426. (REG–161695–04) that is the subject of salmon at the time of listing that 17. From FERC’s Home Page on the this correction is under section 1301 of comprise approximately 203,781 km of Internet, this information is available on the Internal Revenue Code. perennial river, stream, and estuary eLibrary. The full text of this document habitat and 868 square km of lake is available on eLibrary in PDF and Need for Correction habitat within the range of the GOM Microsoft Word format for viewing, As published, REG–161695–04 DPS and on which are found those printing, and/or downloading. To access contains an error that may prove to be physical and biological features this document in eLibrary, type the misleading and is in need of essential to the conservation of the docket number excluding the last three clarification. species. The entire occupied range of digits of this document in the docket the GOM DPS in which critical habitat number field. Correction of Publication is being proposed is within the State of 18. User assistance is available for Accordingly, the publication of the Maine. We propose to exclude eLibrary and the FERC’s Web site during proposed rulemaking by cross-reference approximately 1,463 km of river, stream, normal business hours from FERC to temporary regulations (REG–161695– and estuary habitat and 115 square km Online Support at 202–502–6652 (toll 04), which was the subject of FR Doc. of lake habitat from critical habitat free at 1–866–208–3676) or e-mail at E8–16664, is corrected as follows: pursuant to section 4(b)(2) of the ESA. [email protected], or the On page 42538, column 2, in the DATES: Comments on this proposal must Public Reference Room at (202) 502– preamble, under the caption ‘‘For be received by November 4, 2008. Two 8371, TTY (202) 502–8659. E-mail the Further Information Contact’’, line 2, the public hearings on the proposed rule Public Reference Room at language ‘‘Amy Pfalzgraf, (202) 622– will be held in conjunction with the [email protected]. 4950 (not a‘‘ is corrected to read ‘‘Amy Atlantic salmon proposed listing rule List of Subjects in 18 CFR Part 35 Pfalzgraf (202) 622–4960 (not a‘‘. (See the notice, Proposed Endangered Status for the Gulf of Maine Distinct Electric power rates, Electric utilities, LaNita Van Dyke, Population Segment of Atlantic Salmon, Reporting and recordkeeping Chief, Publications and Regulations Branch, published in the Proposed Rules section requirements. Legal Processing Division, Associate Chief of the September 3, 2008, issue of the Counsel, (Procedure and Administration). By the Commission. Federal Register) and we will alert the [FR Doc. E8–20552 Filed 9–4–08; 8:45 am] Kimberly D. Bose, public of the locations and dates of BILLING CODE 4830–01–P Secretary. those hearings in a subsequent Federal [FR Doc. E8–20546 Filed 9–4–08; 8:45 am] Register notice. BILLING CODE 6717–01–P ADDRESSES: You may submit comments, DEPARTMENT OF COMMERCE identified by RIN 0648–AW77, by any of the following methods: National Oceanic and Atmospheric • Administration Electronic Submission: Submit all DEPARTMENT OF THE TREASURY electronic public comments via the 50 CFR Part 226 Federal eRulemaking Portal: http:// Internal Revenue Service www.regulations.gov. Follow the [Docket No. 0808061060–81062–01] instructions for submitting comments. 26 CFR Part 1 • Mail: Assistant Regional RIN 0648–AW77 Administrator, Protected Resources [REG–161695–04] Endangered and Threatened Species; Division, NMFS, Northeast Regional Proposed Critical Habitat for the Gulf Office, Protected Resources Division, RIN 1545–BE23 of Maine Distinct Population Segment One Blackburn Drive, Gloucester, MA of Atlantic Salmon 01930. Farmer and Fisherman Income • Facsimile (fax) to: 207–866–7342, Averaging; Correction AGENCY: National Marine Fisheries Attention: Dan Kircheis. Service (NMFS), National Oceanic and Instructions: All comments received AGENCY: Internal Revenue Service (IRS), Atmospheric Administration (NOAA), are a part of the public record and will Treasury. Commerce. generally be posted to http:// ACTION: Correction to notice of proposed ACTION: Proposed rule; request for www.regulations.gov without change. rulemaking by cross-reference to comments. All personal identifying information (for temporary regulations. example, name, address, etc.) SUMMARY: We, the National Marine voluntarily submitted by the commenter SUMMARY: This document corrects a Fisheries Service (NMFS), propose to may be publicly accessible. Do not notice of proposed rulemaking by cross- designate critical habitat for the Gulf of submit confidential business reference to temporary regulations Maine Distinct Population Segment information or otherwise sensitive or (REG–161695–04) that was published in (GOM DPS) of Atlantic salmon (Salmo protected information. NMFS will the Federal Register on Tuesday, July salar). We previously determined that accept anonymous comments (enter 22, 2008 (73 FR 42538) relating to the naturally spawned and several hatchery N/A in the required fields, if you wish averaging of farm and fishing income in populations of Atlantic salmon which to remain anonymous). Attachments to computing income tax liability. constituted the GOM DPS warrant electronic comments will be accepted in FOR FURTHER INFORMATION CONTACT: listing as endangered under the Microsoft Word, Excel, Word Perfect, or Amy Pfalzgraf, (202) 622–4960 (not a Endangered Species Act of 1973, as Adobe PDF file formats only. toll-free number). amended (ESA). We are required to The proposed rule, list of references SUPPLEMENTARY INFORMATION: designate critical habitat for the GOM and supporting documents, including

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the Biological Valuation, Economic of the ESA as ‘‘(i) the specific areas continues into the fall. Although Analysis, IRFA Analysis, and 4(b)(2) within the geographical area occupied spawning does not occur until late fall, Report, are also available electronically by the species, at the time it is listed the majority of Atlantic salmon in at the NMFS Web site http:// * * * on which are found those Maine enter freshwater between May www.nero.noaa.gov/prot_res/ physical and biological features (I) and mid-July (Meister, 1958; Baum, altsalmon/. essential to the conservation of the 1997). Early migration is an adaptive FOR FURTHER INFORMATION CONTACT: Dan species and (II) which may require trait that ensures adults have sufficient Kircheis, NMFS, at 207–866–7320, special management considerations or time to effectively reach spawning areas [email protected]; Mary Colligan, protections; and (ii) specific areas despite the occurrence of temporarily NMFS, at 978–281–9116; or Marta outside the geographical area occupied unfavorable conditions that occur Nammack, 301–713–1401. by the species at the time it is listed naturally (Bjornn and Reiser, 1991). * * * upon a determination by the Salmon that return in early spring spend SUPPLEMENTARY INFORMATION: Secretary that such areas are essential nearly 5 months in the river before Background for the conservation of the species.’’ spawning; often seeking cool water NMFS and the U.S. Fish and Wildlife Section 3 of the ESA (16 U.S.C. 15332) refuge (e.g., deep pools, springs, and Service (USFWS; collectively ‘‘the defines the terms ‘‘conserve,’’ mouths of smaller tributaries) during the Services’’) issued a final rule listing the ‘‘conserving,’’ and ‘‘conservation’’ as ‘‘to summer months. In the fall, female Atlantic salmon GOM DPS of Atlantic salmon as use, and the use of, all methods and select sites for spawning. Spawning endangered on November 17, 2000 (65 procedures which are necessary to bring sites are positioned within flowing FR 69459). The GOM DPS was defined any endangered species or threatened water, particularly where upwelling of in the 2000 rule as all naturally species to the point at which the measures provided pursuant to this groundwater occurs to allow for reproducing wild populations and those chapter are no longer necessary.’’ percolation of water through the gravel river-specific hatchery populations of Section 4(b)(2) of the ESA (16 U.S.C. (Danie et al., 1984). These sites are most Atlantic salmon, having historical river- 1533) requires that, before designating often positioned at the head of a riffle specific characteristics found north of critical habitat, we consider the (Beland et al., 1982b), the tail of a pool, and including tributaries of the lower economic impacts, impacts on national or the upstream edge of a gravel bar Kennebec River to, but not including, security, and other relevant impacts of where water depth is decreasing, water the mouth of the St. Croix River at the specifying any particular area as critical velocity is increasing (McLaughlin and U.S.-Canada border and the Penobscot habitat. Further, the Secretary may Knight, 1987; White, 1942), and River above the site of the former exclude any area from critical habitat hydraulic head allows for permeation of Bangor Dam. upon a determination that the benefits water through the redd (a gravel In September of 2006, a new Status of exclusion outweigh the benefits of depression where eggs are deposited). Review for Atlantic salmon in the inclusion, unless excluding an area from Female salmon use their caudal fin to United States (Status Review report) critical habitat will result in the scour or dig redds. The digging behavior was made available to the public extinction of the species concerned. also serves to clean the substrate of fine (http://www.nmfs.noaa.gov/pr/pdfs/ Once critical habitat for Atlantic sediments that can embed the cobble/ statusreviews/atlanticsalmon.pdf). The salmon in the GOM DPS is designated, gravel substrate needed for spawning 2006 Status Review report identified the section 7(a)(2) of the ESA (16 U.S.C. and reduce egg survival (Gibson, 1993). GOM DPS of Atlantic salmon as being 1536) requires that each Federal agency As the female deposits eggs in the redd, comprised of all anadromous Atlantic in consultation with and with the one or more males fertilize the eggs salmon whose freshwater range occurs assistance of NMFS, ensure that any (Jordan and Beland, 1981). The female in the watersheds of the Androscoggin action it authorizes, funds, or carries out then continues digging upstream of the River northward along the Maine coast is not likely to result in the destruction last deposition site, burying the to the Dennys River, including all or adverse modification of critical fertilized eggs with clean gravel. A associated conservation hatchery habitat. single female may create several redds populations used to supplement natural This proposed rule summarizes the before depositing all of her eggs. Female populations; currently, such information gathered and the analyses anadromous Atlantic salmon produce a populations are maintained at Green conducted in support of the proposed total of 1,500 to 1,800 eggs per kilogram Lake and Craig Brook National Fish designation, and announces our of body weight, yielding an average of Hatcheries. The most substantial proposal to designate critical habitat for 7,500 eggs per 2 sea-winter (SW) female difference between the 2000 GOM DPS Atlantic salmon in the GOM DPS (an adult female that has spent two and the GOM DPS described in the 2006 proposed for listing under ESA. winters at sea before returning to Status Review report is the inclusion of spawn) (Baum and Meister, 1971). After the Androscoggin, Kennebec, and Atlantic Salmon Life History spawning, Atlantic salmon may either Penobscot River basins. Subsequent to Atlantic salmon have a complex life return to sea immediately or remain in the 2006 Status Review report, the history that includes territorial rearing freshwater until the following spring Services proposed to list Atlantic in rivers to extensive feeding migrations before returning to the sea (Fay et al., salmon in the GOM DPS as endangered on the high seas. During their life cycle, 2006). From 1967 to 2003, (See the notice, Proposed Endangered Atlantic salmon go through several approximately 3 percent of the wild and Status for the Gulf of Maine Distinct distinct phases that are identified by naturally reared adults that returned to Population Segment of Atlantic Salmon, specific changes in behavior, rivers where adult returns are published in the Proposed Rules section physiology, morphology, and habitat monitored—mainly the Penobscot of the September 3, 2008, issue of the requirements. River—were repeat spawners (USASAC, Federal Register). Adult Atlantic salmon return to rivers 2004). This proposed rule would designate from the sea and migrate to their natal Embryos develop in the redd for a critical habitat for the GOM DPS stream to spawn. Adults ascend the period of 175 to 195 days, hatching in pursuant to section 4(b)(2) of the ESA. rivers of New England beginning in the late March or April (Danie et al., 1983). Critical habitat is defined by section 3 spring. The ascent of adult salmon Newly hatched salmon, referred to as

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larval fry, alevin, or sac fry, remain in Hutchings, 1986; O’Connell and Ash, suggest that post-smolts aggregate the redd for approximately 6 weeks after 1993; Erkinaro et al., 1998; Dempson et together and move near the coast in hatching and are nourished by their al., 1996; Halvorsen and Svenning, ‘‘common corridors’’ and that post- yolk sac (Gustafson-Greenwood and 2000; Klemetsen et al., 2003). smolt movement is closely related to Moring, 1991). Survival from the egg to In a parr’s second or third spring (age surface currents in the bay (Hyvarinen fry stage in Maine is estimated to range 1 or age 2, respectively), when it has et al., 2006; Lacroix and McCurdy, 1996; from 15 to 35 percent (Jordan and grown to 12.5 to 15 cm in length, a Lacroix et al., 2004). European post- Beland, 1981). Survival rates of eggs and series of physiological, morphological, smolts tend to use the open ocean for a larvae are a function of stream gradient, and behavioral changes occur (Schaffer nursery zone, while North American overwinter temperatures, interstitial and Elson, 1975). This process, called post-smolts appear to have a more near- flow, predation, disease, and ‘‘smoltification,’’ prepares the parr for shore distribution (Friedland et al., competition (Bley and Moring, 1988). migration to the ocean and life in salt 2003). Post-smolt distribution may Once larval fry emerge from the gravel water. In Maine, the vast majority of reflect water temperatures (Reddin and and begin active feeding they are naturally reared parr remain in Shearer, 1987) and/or the major surface- referred to as fry. The majority of fry freshwater for 2 years (90 percent or current vectors (Lacroix and Knox, (> 95 percent) emerge from redds at more) with the balance remaining for 2005). Post-smolts live mainly on the night (Gustafson-Marjanen and Dowse, either 1 or 3 years (USASAC, 2005). In surface of the water column and form 1983). order for parr to undergo smoltification, shoals, possibly of fish from the same When fry reach approximately 4 cm they must reach a critical size of 10 cm river (Shelton et al., 1997). in length, the young salmon are termed total length at the end of the previous During the late summer/autumn of the parr (Danie et al., 1984). Parr have eight growing season (Hoar, 1988). During the first year, North American post-smolts to eleven pigmented vertical bands on smoltification process, parr markings are concentrated in the Labrador Sea their sides that are believed to serve as fade and the body becomes streamlined and off of the west coast of Greenland, camouflage (Baum, 1997). A territorial and silvery with a pronounced fork in with the highest concentrations between behavior, first apparent during the fry the tail. Naturally reared smolts in 56 °N. and 58 °N. (Reddin, 1985; Reddin stage, grows more pronounced during Maine range in size from 13 to 17 cm, and Short, 1991; Reddin and Friedland, the parr stage as the parr actively defend and most smolts enter the sea during 1993). The salmon located off Greenland territories (Allen, 1940; Kalleberg, 1958; May to begin their first ocean migration are composed of both 1SW fish and fish Danie et al., 1984). Most parr remain in (USASAC, 2004). During this migration, that have spent multiple years at sea the river for 2 to 3 years before smolts must contend with changes in (multi-sea winter fish, or MSW) undergoing smoltification, the process salinity, water temperature, pH, immature salmon from both North in which parr go through physiological dissolved oxygen, pollution levels, and American and European stocks (Reddin, changes in order to transition from a predator assemblages. The physiological 1988; Reddin et al., 1988). The first freshwater environment to a saltwater changes that occur during smoltification winter at sea regulates annual marine environment. Some male parr prepare the fish for the dramatic change recruitment, and the distribution of may not go through smoltification and in osmoregulatory needs that come with winter habitat in the Labrador Sea and will become sexually mature and the transition from a fresh to a salt water Denmark Strait may be critical for North participate in spawning with sea-run habitat (Ruggles, 1980; Bley, 1987; American populations (Friedland et al., adult females. These males are referred McCormick and Saunders, 1987; 1993). In the spring, North American to as ‘‘precocious parr.’’ McCormick et al., 1998). Smolts’ post-smolts are generally located in the First year parr are often characterized transition into seawater is usually Gulf of St. Lawrence, off the coast of as being small parr or 0+ parr (4 to 7 cm gradual as they pass through a zone of Newfoundland, and on the east coast of long), whereas second and third year fresh and saltwater mixing that typically the Grand Banks (Reddin, 1985; Dutil parr are characterized as large parr occurs in a river’s estuary. Given that and Coutu, 1988; Ritter, 1989; Reddin (greater than 7 cm long) (Haines, 1992). smolts undergo smoltification while and Friedland, 1993; and Friedland et Parr growth is a function of water they are still in the river, they are pre- al., 1999). temperature (Elliott, 1991), parr density adapted to make a direct entry into Some salmon may remain at sea for (Randall, 1982), photoperiod seawater with minimal acclimation another year or more before maturing. (Lundqvist, 1980), interaction with (McCormick et al., 1998). This pre- After their second winter at sea, the other fish, birds, and mammals (Bjornn adaptation to seawater is necessary salmon over-winter in the area of the and Resier, 1991), and food supply under some circumstances where there Grand Banks before returning to their (Swansburg et al., 2002). Parr movement is very little transition zone between natal rivers to spawn (Reddin and may be quite limited in the winter freshwater and the marine environment. Shearer, 1987). Reddin and Friedland (Cunjak, 1988; Heggenes, 1990); The spring migration of post-smolts (1993) found non-maturing adults however, movement in the winter does out of the coastal environment is located along the coasts of occur (Hiscock et al., 2002) and is often generally rapid, within several tidal necessary, as ice formation reduces total cycles, and follows a direct route Newfoundland, Labrador, and habitat availability (Whalen et al., (Hyvarinen et al., 2006; Lacroix and Greenland, and in the Labrador and 1999a). Parr have been documented McCurdy, 1996; Lacroix et al., 2004, Irminger Sea in the later summer/ using riverine, lake, and estuarine 2005). Post-smolts generally travel out autumn. habitats; incorporating opportunistic of coastal systems on the ebb tide, and Critical Habitat and active feeding strategies; defending may be delayed by flood tides territories from competitors including (Hyvarinen et al., 2006; Lacroix and Methods and Criteria Used To Identify other parr; and working together in McCurdy, 1996; Lacroix et al., 2004, Proposed Critical Habitat small schools to actively pursue prey 2005); although Lacroix and McCurdy Critical habitat is defined by section (Gibson, 1993; Marschall et al., 1998; (1996) found that post-smolts exhibit 3 of the ESA (and 50 CFR 424.02(d)) as Pepper, 1976; Pepper et al., 1984; active, directed swimming in areas with ‘‘(i) the specific areas within the Hutchings, 1986; Erkinaro et al., 1998; strong tidal currents. Studies in the Bay geographic area occupied by the species, Halvorsen and Svenning, 2000; of Fundy and Passamaquoddy Bay at the time it is listed in accordance

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with the provisions of [section 4 of this and recovery of Atlantic salmon, but the 10 watershed scale. Therefore, we have Act], on which are found those physical regulations prohibit designation of these a better understanding of the population or biological features (I) essential to the areas as critical habitat. status and the biology of salmon at the conservation of the species and (II) Because Atlantic salmon are HUC 10 level, whereas less is known at which may require special management anadromous, spending a portion of life the smaller HUC 12 sub-watershed considerations or protection; and (ii) in freshwater and the remaining portion scale. specific areas outside the geographical in the marine environment, it is Specific areas delineated at the HUC area occupied by the species at the time conceivable that some freshwater 10 watershed level correspond well to it is listed in accordance with the habitat may be vacant for up to 3 years the biology and life history provisions of [section 4 of this Act], under circumstances where populations characteristics of Atlantic salmon. upon a determination by the Secretary are extremely low. While there may be Atlantic salmon, like many other that such areas are essential for the no documented spawning in these areas anadromous salmonids, exhibit strong conservation of the species.’’ The for that period of time, they would still homing tendencies (Stabell, 1984). Department of the Interior and the be considered occupied because salmon Strong homing tendencies enhance a Department of Commerce provide at sea would return to these areas to given individual’s chance of spawning further regulatory guidance under 50 spawn. with individuals having similar life CFR 424.12(b), stating that the Current stock management and history characteristics (Dittman and Secretaries shall ‘‘focus on the principal assessment efforts also need to be Quinn, 1996) that lead to the evolution biological or physical constituent considered in deciding which areas are and maintenance of local adaptations, elements within the defined area that occupied. In addition to the stocking and may also enhance their progeny’s are essential to the conservation of the program managed by USFWS and the ability to exploit a given set of resources species * * * Primary constituent Maine Department of Marine Resources (Gharrett and Smoker, 1993). Local elements may include, but are not (MDMR), there are small-scale stocking adaptations allow local populations to limited to, the following: roost sites, efforts carried out by non profit survive and reproduce at higher rates nesting grounds, spawning sites, feeding organizations. Furthermore, in addition than exogenous populations sites, seasonal wetland or dry land, to stocking programs, straying from (Reisenbichler, 1988; Tallman and water quality or quantity, host species natural populations can result in the Healey, 1994). Strong homing or plant pollinator[s], geological occupation of habitat. tendencies have been observed in many formation, vegetation type, tide, and Hydrologic Unit Code (HUC) 10 Atlantic salmon populations. Stabell specific soil types.’’ (Level 5 watersheds) described by (1984) reported that fewer than 3 of Seaber et al. (1994) are proposed as the every 100 salmon in North America and Identifying the Geographical Area appropriate ‘‘specific areas’’ within the Europe stray from their natal river. In Occupied by the Species and Specific geographic area occupied by Atlantic Maine, Baum and Spencer (1990) Areas Within the Geographical Area salmon to be examined for the presence reported that 98 percent of hatchery- To designate critical habitat for of physical or biological features and for reared smolts returned to the watershed Atlantic salmon, as defined under the potential need for special where they were stocked. Given the Section 3(5)(A) of the ESA, we must management considerations or strong homing tendencies and life identify specific areas within the protections for these features. history characteristics of Atlantic geographical area occupied by the The HUC system was developed by salmon (Riddell and Leggett, 1981), we species at the time it is listed. the United States Geological Survey believe that the HUC 10 watershed level The geographic range occupied by the (USGS) Office of Water Data accommodates these local adaptations GOM DPS of Atlantic salmon includes Coordination in conjunction with the and the biological needs of the species freshwater habitat ranging from the Water Resources Council (Seaber et al., and, therefore, is the most appropriate Androscoggin River watershed in the 1994) and provides (1) a nationally unit of habitat to delineate ‘‘specific south to the Dennys River watershed in accessible, coherent system of water-use areas’’ for consideration as part of the the north (Fay et al., 2006), as well as data exchange; (2) a means of grouping critical habitat designation process. the adjacent estuaries and bays through hydrographical data; and (3) a Within the United States, the which smolts and adults migrate. standardized, scientifically grounded freshwater geographic range that the The geographic range occupied by the reference system (Laitta et al., 2004). GOM DPS of Atlantic salmon occupy species extends out to the waters off The HUC system currently includes six includes perennial river, lake, stream Canada and Greenland, where post- nationally consistent, hierarchical levels and estuary habitat connected to the smolts complete their marine migration. of divisions, with HUC 2 (Level 1) marine environment ranging from the However, critical habitat may not be ‘‘Regions’’ being the largest (avg. Androscoggin River watershed to the designated within foreign countries or 459,878 sq. km.), and HUC 12 (Level 6) Dennys River watershed. Within this in other areas outside of the jurisdiction ‘‘sub-watersheds’’ being the smallest range, HUC 10 watersheds were of the United States (50 CFR 424.12(h)). (avg. 41–163 sq. km.). considered occupied if they contained Therefore, for the purposes of critical The HUC 10 (Level 5) watersheds either of the primary constituent habitat designation, the geographic area were used to identify ‘‘specific areas’’ elements (PCEs) (e.g., sites for spawning occupied by the species will be because this scale accommodates the and rearing or sites for migration, restricted to areas within the local adaptation and homing tendencies described in more detail below) along jurisdiction of the United States. This of Atlantic salmon, and provides a with the features necessary to support does not diminish the importance of framework in which we can reasonably spawning, rearing and/or migration. habitat outside of the jurisdiction of the aggregate occupied river, stream, lake, Additionally, the HUC 10 watershed United States for the GOM DPS. In fact, and estuary habitats that contain the must meet either of the following a very significant factor limiting physical and biological features criteria: recovery for the species is marine essential to the conservation of the (a) Naturally spawned and reared survival. Marine migration routes and species. Furthermore, many Atlantic Atlantic salmon have been documented feeding habitat off Canada and salmon populations within the GOM in the HUC 10 watershed or the Greenland are critical to the survival DPS are currently managed at the HUC watershed is believed to be occupied

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based on the biological valuation of spawning habitat, spawning, egg complete for seven coastal watersheds: HUC 10 watershed (See Biological incubation and hatching, juvenile Dennys, East Machias, Machias, Valuation of Atlantic Salmon Habitat in survival during the rearing time in Pleasant, Narraguagus, Ducktrap, and the Gulf of Maine Distinct Population freshwater, and smolt migration out of Sheepscot watersheds; and portions of Segment (2008)) and best professional the rivers to the ocean are all essential the Penobscot Basin, including portions judgment of state and Federal biologists; to the conservation of Atlantic salmon. of the East Branch Penobscot, portions (b) The area is currently managed by Therefore, we identify features essential of the Piscataquis and Mattawamkeag, the MDMR and the USFWS through an to successful completion of these life Kenduskeag Stream, Marsh Stream and active stocking program in an effort to cycle activities. Although successful Cove Brook; and portions of the enhance or restore Atlantic salmon marine migration is also essential to the Kennebec Basin, including a portion of populations, or the area has been conservation of the species, we are not the lower mainstem around the site of stocked within the last 6 years through able to identify the essential features of the old Edwards Dam and portions of other stocking programs, including marine migration and feeding habitat at the Sandy River. Throughout most of those efforts by the ‘‘Fish Friends’’ this time. Therefore, as noted above, the range of the GOM DPS, however, program, where juvenile salmon could marine habitat areas are not proposed this level of survey has not been reasonably be expected to migrate to the for designation as critical habitat. conducted, and, therefore, this level of marine environment and return to that Within the occupied range of the Gulf detail is not available. Therefore, to area as an adult and spawn. of Maine DPS, Atlantic salmon PCEs determine habitat quantity for each HUC Within the range of the GOM DPS, include sites for spawning and 10 we relied on a GIS-based habitat 105 HUC 10 watersheds were examined incubation, sites for juvenile rearing, prediction model (See appendix C of the for occupancy based on the above and sites for migration. The physical Biological Valuation of Atlantic Salmon criteria. Based on our analysis, we and biological features of the PCEs that Habitat within the Gulf of Maine considered 48 of these HUC 10 allow these sites to be used successfully Distinct Population Segment (2008)). watersheds within the geographic range for spawning, incubation, rearing and The model was developed using data to be occupied. Estuaries and bays migration are the features of habitat from existing habitat surveys conducted within the occupied HUC 10s in the within the GOM DPS that are essential in the Machias, Sheepscot, Dennys, GOM DPS are also included in the to the conservation of the species. A Sandy, Piscataquis, Mattawamkeag, and geographic range occupied by the detailed review of the physical and Souadabscook Rivers. A combination of species. biological features required by Atlantic reach slope derived from contour and Occupied areas also extend outside salmon is provided in Kircheis and digital elevation model (DEM) datasets, the estuary and bays of the GOM DPS Liebich (2007). As stated above, Atlantic cumulative drainage area, and as adults return from the marine salmon also use marine sites for growth physiographic province were used to environment to spawn and smolts and migration; however, we did not predict the total amount of rearing migrate towards Greenland for feeding. identify critical habitat within the habitat within a reach. These features We are not able at this time to identify marine environment because the help to reveal stream segments with the specific features characteristic of specific physical and biological features marine migration and feeding habitat gradients that would likely represent of marine habitat that are essential for areas of riffles or fast moving water, within U.S. jurisdictional waters the conservation of the GOM DPS (and essential to the conservation of Atlantic habitat most frequently used for the specific areas on which these spawning and rearing of Atlantic salmon and are, therefore, unable to features might be found) cannot be salmon. The variables included in the identify the specific areas where such identified. Unlike Pacific salmonids, model accurately predict the presence of features exist. Therefore, specific areas some of which use nearshore marine rearing habitat approximately 73 of marine habitat were not proposed as environments for juvenile feeding and percent of the time. We relied on the critical habitat. growth, Atlantic salmon migrate model to generate the habitat quantity through the nearshore marine areas Physical and Biological Features in present within each HUC 10 to provide quickly during the month of May and Freshwater and Estuary Specific Areas consistent data across the entire DPS early June. Though we have some Essential to the Conservation of the and on existing habitat surveys to limited knowledge of the physical and Species validate the output of the model. biological features that the species uses We identify the physical and in the marine environment, we have Although we have found the model to biological features essential for the very little information on the specifics be nearly 75 percent accurate in conservation of Atlantic salmon that are of these physical and biological features predicting the presence of sites for found within the specific occupied and how they may require special spawning and rearing within specific areas identified in the previous section. management considerations or areas, and we have an abundance of To determine which features are protection. Therefore, we cannot institutional knowledge on the physical essential to the conservation of the GOM accurately identify the specific areas and biological features that distinguish DPS of Atlantic salmon, we first define where these features exist or what types sites for spawning and sites for rearing, what conservation means for this of management considerations or the model cannot be used to distinguish species. Conservation is defined in the protections may be necessary to protect between sites for spawning and sites for ESA as using all methods and these physical and biological features rearing across the entire geographic procedures which are necessary to bring during the migration period. range. This is because: (1) Sites used for any endangered or threatened species to Detailed habitat surveys have been spawning are also used for rearing; and the point at which the measures conducted in some areas within the (2) the model is unable to identify provided by the ESA are no longer range of the GOM DPS of Atlantic substrate features most frequently used necessary. Conservation, therefore, salmon, providing clear estimates of and for spawning activity, but rather uses describes those activities and efforts distinctions between those sites most landscape features to identify where undertaken to achieve recovery. For the suited for spawning and incubation and stream gradient conducive to both GOM DPS, we have determined that the those sites most used for juvenile spawning and rearing activity exists. As successful return of adult salmon to rearing. These surveys are most such, we have chosen to group sites for

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spawning and sites for rearing into one rates of both adults and newly hatched sources (Armstrong et al., 2002). Once a PCE. Therefore, sites for spawning and salmon. territory has been established, fry use a sites for rearing are discussed together Preferred spawning habitat contains sit-and-wait strategy, feeding throughout this analysis as sites for gravel substrate with adequate water opportunistically on invertebrate drift. spawning and rearing. circulation to keep buried eggs well This strategy enables the fish to In the section below, we identify the oxygenated (Peterson, 1978). Eggs in a minimize energy expenditure while essential physical and biological redd are entirely dependent upon sub- maximizing energy intake (Bachman, features of spawning and rearing sites surface movement of water to provide 1984). and migration sites found in the adequate oxygen for survival and These sites are essential for the occupied areas described in the growth (Decola, 1970). Water velocity conservation of the species because previous section. and permeability of substrate allow for without them fry emergence would not adequate transport of well-oxygenated be successful. (A). Physical and Biological Features of water for egg respiration (Wickett, 1954) 4. Freshwater rearing sites with space the Spawning and Rearing PCE and removal of metabolic waste that to accommodate growth and survival of 1. Deep, oxygenated pools and cover may accumulate in the redd during egg Atlantic salmon parr. When fry reach (e.g., boulders, woody debris, vegetation, development (Decola, 1970; Jordan and approximately 4 cm in length, the young etc.), near freshwater spawning sites, Beland, 1981). Substrate permeability as salmon are termed parr (Danie et al., necessary to support adult migrants deep as the egg pit throughout the 1984). The habitat in Maine rivers during the summer while they await incubation period is important because currently supports on average between spawning in the fall. Adult salmon can eggs are typically deposited at the five and ten large parr (age one or older) arrive at spawning grounds several bottom of the egg pit. per 100 square meters of habitat, or one months in advance of spawning activity. Dissolved oxygen (DO) content is habitat unit (Elson, 1975; Baum, 1997). Adults that arrive early require holding important for proper embryonic The amount of space available for areas in freshwater and estuarine areas development and hatching. Embryos juvenile salmon occupancy is a function that provide shade, protection from can survive when DO concentrations are of biotic and abiotic habitat features, predators, and protection from other below saturation levels, but their including stream morphology, substrate, environmental variables such as high development is often subnormal due to gradient, and cover; the availability and flows, high temperatures, and delayed growth and maturation, abundance of food; and the makeup of sedimentation. Early migration is an performance, or delayed hatching predators and competitors (Bjornn and adaptive trait that ensures adults (Doudoroff and Warren, 1965). In Reiser, 1991). Further limiting the sufficient time to reach spawning areas addition, embryos consume more amount of space available to parr is despite the occurrence of temporarily oxygen (i.e., the metabolism of the their strong territorial instinct. Parr unfavorable conditions that occur embryo increases) when temperature actively defend territories against other naturally (Bjornn and Reiser, 1991). increases (Decola, 1970). An increase in fish, including other parr, to maximize Salmon that return in early spring spend water temperature, however, decreases their opportunity to capture prey items. nearly 5 months in the river before the amount of oxygen that the water can The size of the territory that a parr will spawning, often seeking cool water hold. During the embryonic stage when defend is a function of the size and refuge (e.g., deep pools, springs, and tissue and organs are developing and density of parr, food availability, the mouths of smaller tributaries) during the the demand for oxygen is quite high, size and roughness of the substrate, and summer months. Large boulders or embryos can only tolerate a narrow current velocity (Kalleberg, 1958; Grant rocks, overhanging trees, logs, woody range of temperatures. et al., 1998). The amount of space debris, submerged vegetation and These sites are essential for the needed by an individual increases with undercut banks provide shade, reduce conservation of the species because age and size (Bjornn and Reiser, 1991). velocities needed for resting, and offer without them embryo development Cover, including undercut banks, protection from predators (Giger, 1973). would not be successful. overhanging trees and vegetation, These features are essential to the 3. Freshwater spawning and rearing diverse substrates and depths, and some conservation of the species to help sites with clean, permeable gravel and types of aquatic vegetation, can make ensure the survival and successful cobble substrate with oxygenated water habitat suitable for occupancy (Bjornn spawning of adult salmon. and cool water temperatures to support and Reiser, 1991). Cover can provide a 2. Freshwater spawning sites that emergence, territorial development and buffer against extreme temperatures; contain clean, permeable gravel and feeding activities of Atlantic salmon fry. protection from predators; increased cobble substrate with oxygenated water The period of emergence and the food abundance; and protection from and cool water temperatures to support establishment of feeding territories is a environmental variables such as high spawning activity, egg incubation, and critical period in the salmon life cycle flow events and sedimentation. larval development. Spawning activity since at this time mortality can be very These features are essential to the in the Gulf of Maine DPS of Atlantic high. When fry leave the redd, they conservation of the species because salmon typically occurs between mid- emerge through the interstitial spaces in without them, juvenile salmon would October and mid-November (Baum, the gravel to reach the surface. When have limited areas for foraging and 1997) and is believed to be triggered by the interstitial spaces become embedded protection from predators. a combination of water temperature and with fine organic material or fine sand, 5. Freshwater rearing sites with a photoperiod (Bjornn and Reiser, 1991). emergence can be significantly impeded combination of river, stream, and lake Water quantity and quality, as well as or prevented. Newly emerged fry prefer habitats that accommodate parr’s ability substrate type, are important for shallow, low velocity, riffle habitat with to occupy many niches and maximize successful Atlantic salmon spawning. a clean gravel substrate. Territories are parr production. Parr prefer, but are not Water quantity can determine habitat quickly established by seeking out areas limited to, riffle habitat associated with availability, and water quality may of low velocities that occur in eddies in diverse rough gravel substrate. The influence spawning success. Substrate front of or behind larger particles that preference for these habitats by parr that often determines where spawning are embedded in areas of higher use river and stream habitats supports a occurs, and cover can influence survival velocities to maximize drift of prey sit-and-wait feeding strategy intended to

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minimize energy expenditure while winter, and have evolved with a series from the floodplain back to the river maximizing growth. Overall, large of physiological and behavioral (Annear et al., 2004). Lateral transport Atlantic salmon parr using river and strategies that enable them to adapt to of nutrients and organic matter from the stream habitats select for diverse the wide range of thermal conditions riparian zone to the river supports the substrates that predominately consist of that they may encounter. Parr’s optimal growth of plant, plankton, and boulder and cobble (Symons and temperature for feeding and growth invertebrate communities. Stream Heland, 1978; Heggenes, 1990; Heggenes ranges from 15 to 19 °C (Decola, 1970). invertebrates are the principal linkage et al., 1999). When water temperatures surpass 19 °C, between the primary producers and Parr can also move great distances feeding and behavioral activities are higher trophic levels, including salmon into or out of tributaries and mainstems directed towards maintenance and parr. to seek out habitat that is more survival. During the winter when These features are essential to the conducive to growth and survival temperatures approach freezing, parr conservation of the species, as parr (McCormick et al., 1998). This occurs reduce energy expenditures by spending require these food items for growth and most frequently as parr grow and they less time defending territories, feeding survival. move from their natal spawning grounds less, and moving into slower velocity (B). Physical and Biological Features of to areas that have much rougher microhabitats (Cunjak, 1996). the Migration PCE substrate, providing more suitable over- Oxygen consumption by parr is a wintering habitat and more food function of temperature. As temperature 1. Freshwater and estuary migratory organisms (McCormick et al., 1998). In increases, the demand for oxygen sites free from physical and biological the fall, large parr that are likely to increases (Decola, 1970). Parr require barriers that delay or prevent access of become smolts the following spring highly oxygenated waters to support adult salmon seeking spawning grounds have been documented leaving summer their active feeding strategy. Though needed to support recovered rearing areas in some headwater salmon parr can tolerate oxygen levels populations. Adult Atlantic salmon tributaries and migrating downstream, below 6mg/l, both swimming activity returning to their natal rivers or streams though not necessarily entering the and growth rates are restricted. require migration sites free from barriers estuary or marine environment These features are essential to the that obstruct or delay passage to reach (McCormick et al., 1998). conservation of the species because high their spawning grounds at the proper Though parr are typically stream and low water temperatures and low time for effective spawning (Bjornn and dwellers, they also use pools within oxygen concentrations can result in the Reiser, 1991). Physical and biological rivers and streams, dead-waters cessation of feeding activities necessary barriers within migration sites can (sections of river or stream with very for juvenile growth and survival and can prevent adult salmon from effectively little to no gradient), and lakes within result in direct mortality. spawning either by preventing access to a river system as a secondary nursery 7. Freshwater rearing sites with spawning habitat or impairing a fish’s area after emergence (Cunjak, 1996; diverse food resources to support growth ability to spawn effectively by delaying Morantz et al., 1987; Erkinaro et al., and survival of Atlantic salmon parr. migration or impairing the health of the 1998). It is known that parr will use Atlantic salmon require sufficient fish. Migration sites free from physical pool habitats during periods of low energy to meet their basic metabolic and biological barriers are essential to water, most likely as refuge from high needs for growth and reproduction the conservation of the species because temperatures (McCormick et al., 1998) (Spence et al., 1996). Parr largely without them, adult Atlantic salmon and during the winter months to depend on invertebrate drift for would not be able to access spawning minimize energy expenditure and avoid foraging, and actively defend territories grounds needed for egg deposition and areas that are prone to freezing or de- to assure adequate food resources embryo development. watering (Rimmer et al., 1984). Salmon needed for growth. Parr feed on larvae 2. Freshwater and estuary migration parr may also spend weeks or months in of mayflies, stoneflies, chironomids, sites with pool, lake, and instream the estuary during the summer (Cunjak caddisflies, blackflies, aquatic annelids, habitat that provide cool, oxygenated et al., 1989, 1990; Power and Shooner, and mollusks, as well as numerous water and cover items (e.g., boulders, 1966). terrestrial invertebrates that fall into the woody debris, and vegetation) to serve These areas are essential to the river (Scott and Crossman, 1973; Nislow as temporary holding and resting areas conservation of the species to ensure et al., 1999). As parr grow, they will during upstream migration of adult survival and species persistence when occasionally eat small fishes, such as salmon. Atlantic salmon may travel as particular habitats become less suitable alewives, dace, or minnows (Baum, far as 965 km upstream to spawn (New or unsuitable for survival during periods 1997). England Fisheries Management Council, of extreme conditions such as extreme Atlantic salmon attain energy from 1998). During migration, adult salmon high temperatures, extreme low food sources that originate from both require holding and resting areas that temperatures, and droughts. allochthonous (outside the stream) and provide the necessary cover, 6. Freshwater rearing sites with cool, autochthonous (within the stream) temperature, flow, and water quality oxygenated water to support growth and sources. What food is available to parr conditions needed to survive. Holding survival of Atlantic salmon parr. and how food is obtained is a function areas can include areas in rivers and Atlantic salmon are cold water fish and of a river’s hydrology, geomorphology, streams, lakes, ponds, and even the have a thermal tolerance zone where biology, water quality, and connectivity ocean (Bjornn and Reiser, 1991). activity and growth is optimal (Decola, (Annear et al., 2004). The riparian zone Holding areas are necessary below 1970). Small parr and large parr have is a fundamental component to both temporary seasonal migration barriers similar temperature tolerances (Elliott, watershed and ecosystem function, as it such as those created by flow, 1991). Water temperature influences provides critical physical and biological temperature, turbidity, and temporary growth, survival, and behavior of linkages between terrestrial and aquatic obstructions such as debris jams and juvenile Atlantic salmon. Juvenile environments (Gregory et al., 1991). beaver dams, and adjacent to spawning salmon can be exposed to very warm Flooding of the riparian zone is an areas. Adult salmon can become temperatures (> 20 °C) in the summer important mechanism needed to fatigued when ascending high velocity and near-freezing temperatures in the support the lateral transport of nutrients riffles or falls and require resting areas

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within and around high velocity waters as alewives, blueback herring, and and gradually closes through the where they can recover until they are American shad likely play an important summer, during which time salmon can able to continue their migration. role in mitigating the magnitude of migrate more successfully (Larsson, Holding areas near spawning areas are predation on smolts from predators such 1977; Hansen and Jonsson, 1989; necessary when upstream migration is as striped bass, double-crested Hansen and Quinn, 1998). not delayed and adults reach spawning cormorants (Phalacrocorax auritus), and These features are essential to the areas before they are ready to spawn. ospreys (Pandion haliaetus). The conservation of the species because a These features are essential to the migration time of pre-spawned adult delay in migration of smolts can result conservation of the species because alewives overlaps in time and space in the loss of the smolts’ ability to without them, adult Atlantic salmon with the migration of Atlantic salmon osmoregulate in the marine would be subject to fatigue, predation, smolts (Saunders et al., 2006). Given environment which is necessary for and mortality from exposure to that when alewife populations are smolt survival. unfavorable conditions, significantly robust, alewife numbers not only likely 5. Freshwater and estuary migration reducing spawning success. greatly exceed densities of Atlantic sites with sufficiently cool water 3. Freshwater and estuary migration salmon smolts, making them more temperatures and water flows that sites with abundant, diverse native fish available to predators, but the caloric coincide with diurnal cues to stimulate communities to serve as a protective content per individual alewife is greater smolt migration. The process of buffer against predation. Adult Atlantic than that of an Atlantic salmon smolt smoltification is triggered in response to salmon and Atlantic salmon smolts (Schulze, 1996), likely making the environmental cues. Photoperiod and interact with other diadromous species alewife a more desirable prey species temperature have the greatest influence indirectly. Adult and smolt migration (Saunders et al., 2006). on regulating the smolting process. through the estuary often coincides with These features are essential to the Increase in day length is necessary for the presence of alewives (Alosa spp.), conservation of the species because smolting to occur (Duston and American shad (Alosa sapidissima), without highly prolific abundant Saunders, 1990). McCormick et al. blueback herring (Alosa aestivalis), and alternate prey species such as alewives (1999) noted that in spite of wide striped bass (Morone saxatilis). The and shad, the less prolific Atlantic temperature variations among rivers abundance of diadromous species salmon will likely become a preferred throughout New England, almost all present during adult migration may prey species. smolt migrations begin around the first serve as an alternative prey source for 4. Freshwater and estuary migration of May and are nearly complete by the seals, porpoises and otters (Saunders et sites free from physical and biological first week in June. However, the time al., 2006). As an example, pre-spawned barriers that delay or prevent emigration that it takes for the smoltification adults enter rivers and begin their of smolts to the marine environment. process to be completed appears to be upstream spawning migration at Atlantic salmon smolts require an open closely related to water temperature. approximately the same time as early migration corridor from their juvenile When water temperatures increase, the migrating adult salmon (Fay et al., rearing habitat to the marine smolting process is advanced, evident 2006). Historically, shad runs were environment. Seaward migration of by increases in Na+, K+-ATPase considerably larger than salmon runs smolts is initiated by increases in river activity—the rate of exchange of sodium (Atkins and Foster, 1869; Stevenson, flow and temperature in the early spring (Na+) and potassium (K+) ions across 1898). Thus, native predators of (McCleave, 1978; Thorpe and Morgan, the gill membrane or the regulation of medium to large size fish in the 1978). Migration through the estuary is salts that allow smolts to survive in the estuarine and lower river zones could believed to be the most challenging marine environment (Johnston and have preyed on these 1.5 to 2.5 kg size period for smolts (Lacroix and Saunders, 1981; McCormick et al., 1998; fish readily (Fay et al., 2006; Saunders McCurdy, 1996). Although it is difficult McCormick et al., 2002). In addition to et al., 2006). In the absence or reduced to generalize migration trends because playing a role in regulating the abundance of these diadromous fish of the variety of estuaries, Atlantic smoltification process, high communities, it would be expected that salmon post-smolts tend to move temperatures also are responsible for the Atlantic salmon will likely become quickly through the estuary and enter cessation of Na+, K+-ATPase activity of increasingly targeted as forage by large the ocean within a few days or less smolts limiting their ability to excrete predators (Saunders et al., 2006). (Lacroix et al., 2004; Hyvarinen et al., excess salts when they enter the marine As Atlantic salmon smolts pass 2006; McCleave, 1978). In the upper environment. McCormick et al., (1999) through the estuary during migration estuary, where river flow is strong, found significant decreases in Na+, from their freshwater rearing sites to the Atlantic salmon smolts use passive drift K+-ATPase activity in smolts at the end marine environment, they experience to travel (Moore et al., 1995; Fried et al., of the migration period, but also found high levels of predation. Predation rates 1978; LaBar et al., 1978). In the lower that smolts in warmer rivers had through the estuary often result in up to estuary smolts display active swimming, reductions in Na+, K+-ATPase activity 50 percent mortality during this although their movement is influenced earlier then smolts found in colder transition period between freshwater to by currents and tides (Lacroix and rivers. Hence any delay of migration has the marine environment (Larsson, 1985). McCurdy 1996; Moore et al., 1995; the potential to reduce survival of out- There is, however, large annual Holm et al., 1982; Fried et al., 1978). In migrating smolts because as water variation in estuarine mortality, which addition, although some individuals temperatures rise over the spring is believed to be dependent upon the seem to utilize a period of saltwater migration period, smolts experience a abundance and availability of other prey acclimation, some fish have no apparent reduction in Na+, K+-ATPase reducing items including alewives, blueback period of acclimation (Lacroix et al., their ability to regulate salts as they herring, and American shad, as well as 2004). Stefansson et al., (2003) found enter the marine environment. Though the spatial and temporal distribution that post-smolts adapt to seawater flow does not appear to play a role in and abundance of predators (Anthony, without any long-term physiological the smoltification process, flow does 1994). impairment. Several studies also suggest appear to play an important role in The presence and absence of co- that there is a ‘‘survival window’’ which stimulating a migration response evolutionary diadromous species such is open for several weeks in the spring, (Whalen et al., 1999b).

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These features are essential to the ‘‘special management considerations’’ potential future Federal activities that conservation of the species because and ‘‘protection’’. ‘‘Protection’’ suggests would trigger section 7 consultation elevated water temperatures that occur actions to address a negative impact. requirements because they may affect in advance of a smolts diurnal cues to ‘‘Management’’ seems broader than the essential physical and biological migrate can result in a decreased protection, and could include active features. migration window in which smolts are manipulation of the feature or aspects of We identified a number of activities capable of transitioning into the marine the environment. The ESA regulations and associated threats that may affect environment. A decrease in the at 50 CFR 424.02(j) further define the PCEs and associated physical and migration window has the potential to special management considerations as biological features essential to the reduce survival of smolts especially for ‘‘any methods or procedures useful in conservation of Atlantic salmon within fish with greater migration distances. protecting physical and biological the occupied range of the GOM DPS. 6. Freshwater migration sites with features of the environment for the These activities, which include water chemistry needed to support sea conservation of listed species’’. The agriculture, forestry, changing land-use water adaptation of smolts. The effects term ‘‘may’’ was the focus of two and development, hatcheries and of acidity on Atlantic salmon have been Federal district courts that ruled that stocking, roads and road crossings, well documented. The effects of acidity features can meet this provision because mining, dams, dredging, and cause ionoregulatory failure in Atlantic of either a present requirement for aquaculture have the potential to reduce salmon smolts while in freshwater special management considerations or the quality and quantity of the PCEs and (Rosseland and Skogheim, 1984; Farmer protection or possible future their associated physical and biological et al., 1989; Staurnes et al., 1996; requirements (see Center for Biol. features. There are other threats to Staurnes et al., 1993). This inhibition of Diversity v. Norton, 240 F. Supp. 2d Atlantic salmon habitat including gill Na+, K+-ATPase activity can cause 1090 (D. Ariz. 2003); Cape Hatteras acidification of surface waters. the loss of plasma ions and may result Access Preservation Alliance v. DOI, However, we are not able to clearly in reduced seawater tolerance 344 F. Supp. 108 (D.D.C. 2004)). The separate out the specific activities (Rosseland and Skogheim, 1984; Farmer Arizona district court ruled that the responsible for acidification, and et al., 1989; Staurnes et al., 1996; provision cannot be interpreted to mean therefore are unable to specifically Staurnes et al., 1993) and increased that features already covered by an identify a federal nexus. cardiovascular disturbances (Milligan existing management plan must be Specific activities that may affect the and Wood 1982; Brodeur et al., 1999). determined to require additional special PCEs and associated physical and Parr undergoing parr/smolt management, because the term biological features are evaluated below transformation become more sensitive to additional is not in the statute. Rather, based on whether the spawning and acidic water, hence water chemistry that the court ruled that the existence of rearing PCE and/or the migration PCE is not normally regarded as toxic to management plans may be evidence that may require special management other salmonids may be toxic to smolts the features in fact require special considerations or protection. Specific (Staurnes et al., 1993, 1995). This is true management (Center for Biol. Diversity areas where these activities occur are even in rivers that are not chronically v. Norton, 1096–1100). acidic and not normally considered as The primary impacts of critical represented in a table following the being in danger of acidification habitat designation result from the evaluation of activities. Further (Staurnes et al., 1993, 1995). Atlantic consultation requirements of ESA evaluation of the activities listed below salmon smolts are most vulnerable to section 7(a)(2). Federal agencies must is presented in detail in section 5 of low pH in combination with elevated consult with NMFS to ensure that their Kircheis and Liebich (2007). levels of monomeric labile species of actions are not likely to result in the (a). Agriculture aluminum (aluminum capable of being destruction or adverse modification of absorbed across the gill membrane) and critical habitat (or jeopardize the Agricultural practices influence all low calcium (Rosseland and Skogheim, species’ continued existence). These specific areas proposed for designation 1984; Rosseland et al., 1990; Kroglund impacts are attributed only to the and negatively impact PCE sites for and Staurnes, 1999). designation (i.e., are incremental spawning and rearing and migration. These features are essential to the impacts of the designation) if Federal Physical disturbances caused by conservation of the species because agencies modify their proposed actions livestock and equipment associated Atlantic salmon smolts exposed to to ensure they are not likely to destroy with agricultural practices can directly acidic waters can lose sea water or adversely modify the critical habitat impact the habitat of aquatic species tolerance, which can result in direct beyond any modifications they would (USEPA, 2003). Traditional agricultural mortality or indirect mortality from make because of listing and the practices require repeated mechanical altered behavior and fitness. requirement to avoid jeopardy. mixing, aeration, and application of Incremental impacts of designation fertilizers and pesticides to soils. These Special Management Considerations or include state and local protections that activities alter physical soil Protections may be triggered as a result of characteristics and microorganisms. Specific areas within the geographic designation, and education of the public Tilling aerates the upper soil, but causes area occupied by a species may be about to the importance of an area for compaction of finely textured soils designated as critical habitat only if they species conservation. When a below the surface, which alters water contain physical or biological features modification is required due to impacts infiltration. Use of heavy farm essential to the conservation of the both to the species and critical habitat, equipment and construction of roads species that ‘‘may require special the impact of the designation is also compact soils, decrease water management considerations or considered to be co-extensive with ESA infiltration, and increase surface runoff protection.’’ It is the features and not the listing of the species. (Spence et al., 1996). Agricultural specific areas that are the focus of the The draft ESA 4(b)(2) (NMFS, 2008) grazing and clearing of riparian ‘‘may require’’ provision. Use of the Report and Economic Analysis (IEc, vegetation can expose soils and increase disjunctive ‘‘or’’ also suggests the need 2008a) describe the impacts in detail. soil erosion and sediment inputs into to give distinct meaning to the terms These reports identify and describe rivers.

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Agricultural practices may also quality are essential to all life stages of The increased erosion and runoff reduce habitat complexity and channel Atlantic salmon and life history caused by forestry practices and road stability through physical stream behaviors including adult migration, building can increase sedimentation alterations such as: Channelization, spawning, fry emergence, and smolt affecting sites for spawning and rearing bank armoring, and removal of large emigration (Fay et al., 2006). and may impact migration. Compared to woody debris (LWD) and riparian Fertilizer runoff can increase nutrient other forestry activities, roads are the vegetation (Spence et al., 1996). These loading in aquatic systems, thereby greatest contributor of sediment on a per effects often result in streams with stimulating the growth of aquatic algae. area basis (Furniss et al., 1991). higher width to depth ratios which If nutrient loading due to fertilizer run- Contribution of sediments by roads most exhibit more rapid temperature off is significant, resulting algal blooms frequently occurs from mass failure of fluctuations and may also be subject to may have numerous detrimental road beds (Furniss et al., 1991). Other increased embeddedness as a function impacts on multiple processes occurring forestry practices generally cause of decreased water velocity affecting within the affected aquatic ecosystem. surface erosion, creating chronic habitat use in sites for spawning, Surface algal blooms that block sunlight sediment inputs. The combined effect of juvenile rearing, and migration (Fay et can kill submerged aquatic vegetation chronic and mass erosion can cause al., 2006). important for juvenile rearing. Loss of elevated sediment levels even when a Clearing of land for agricultural submerged vegetation can lead to a loss small percentage of a watershed is practices such as livestock grazing and of habitat for invertebrates and juveniles developed by roads (Montgomery and crop cultivation typically loosens and fishes and the decomposition of dead Buffington, 1993), which can embed smoothes land surfaces, increasing soil algae consumes large quantities of cobble and gravel substrates used for mobility and vulnerability to surface oxygen, an impact which, at times, can spawning and juvenile rearing. erosion, thereby increasing result in significant oxygen depletion The most direct effect of logging on sedimentation rates in affected streams (NMFS and FWS, 2005). A reduction in stream temperature is the reduction in (Waters, 1995; Spence et al., 1996). submerged aquatic vegetation and shade provided by riparian vegetation. Increased sedimentation can have dissolved oxygen (DO) can cause both Alterations in water temperature can significant effects on Atlantic salmon direct and indirect harm to salmon by affect egg development and alter habitat by embedding substrates and affecting not only the physiological foraging behaviors of juvenile salmon in increasing turbidity in spawning and function of salmon (e.g., oxygen both spawning and rearing sites. rearing sites. Increased turbidity can deprivation) but by impacting prey Removal of riparian vegetation also reduce light penetration and result in a species and other necessary ecological affects evaporation, convection and reduction of aquatic plant communities functions sites for rearing. We conclude advection of water by altering wind used for cover and foraging in juvenile that the spawning and rearing and speed and the temperature of rearing sites. Sedimentation from migration PCEs in each HUC 10 are and surrounding land areas (Beschta et al., agricultural practices can also increase will likely continue to be negatively 1987, 1995). In general, greater effects the inputs of nutrients such as affected by agricultural practices well on stream temperatures are more phosphorus and ammonia as well as into the future, and, therefore, may apparent in smaller streams; however, contaminants such as pesticides and require special management or the magnitude of these effects is herbicides throughout a watershed. An protections which may include dependent on stream size and channel increase in nutrients can lead to increasing the riparian buffer between morphology in relation to the quantity eutrophication and potential oxygen agriculture lands and aquatic of riparian vegetation harvested depletion in surface waters. Exposure of ecosystems that contain salmon habitat (Beschta et al., 1995). Removal of contaminated sediments to anaerobic to prevent erosion and the runoff or riparian vegetation can also lead to environments (lacking oxygen) often leaching of contaminants and nutrients. increased maximum temperatures and results in the release of organically increased daily fluctuations in stream (b). Forestry bound chemicals (EPA, 2003), possibly temperatures (Beschta et al., 1987, creating a toxic environment for biotic Forestry practices influence all 1995). communities downstream of these specific areas proposed for designation Timber harvest and preparation of soil agricultural areas. and negatively impact PCE sites for for forestry practices can decrease LWD Agricultural practices can affect spawning and rearing and migration. as well as increase erosion. Removal of stream hydrology through removal of Timber harvest can significantly affect LWD and increased erosion can have vegetative cover, soil compaction, and hydrologic processes. In general, timber many harmful effects in sites for rearing, irrigation. Removal of vegetation and removal increases the amount of water spawning and migration by reducing soil compaction can increase runoff that infiltrates the soil and reaches the channel complexity, reducing in-stream which can increase the frequency and stream by reducing water losses from cover and riffle/pool frequency, intensity of flooding (Hornbeck et al., evapotranspiration (Spence et al., 1996). decreasing sediment retention and 1970). Increases in frequency and Soil compaction can decrease channel stability and reducing intensity of flood events can increase infiltration and increase runoff, and availability of microhabitats (Spence et erosion, increase sedimentation and roads created for logging can divert and al., 1996). Loss of riparian vegetation scour affecting sites for spawning and alter water flow. Logging can also can also reduce the presence of rearing. Direct water withdrawals and influence snow distribution on the overhanging banks that are frequently ground-water withdrawals for crop ground, and consequently alter the used for cover by salmon (Spence et al., irrigation can directly impact Atlantic melting rates of the snowpack 1996). We conclude that the spawning, salmon habitat by depleting stream-flow (Chamberlin et al., 1991). Through a rearing and migration PCEs in each (MASTF, 1997; Dudley and Stewart combination of these effects, logging can specific area are and will likely 2006; Fay et al., 2006). Currently, the change annual water yield and the continue to be negatively affected by cumulative effects of individual magnitude and timing of peak and low forestry practices, and, therefore, may irrigation impacts on Maine rivers is flows (Spence et al., 1996). Alteration of require special management poorly understood; however, it is hydrologic regimes may impact sites for considerations or protections which known that adequate water supply and spawning, migration and rearing. may include the use of best management

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practices that reduce erosion, support water discharge to limit inputs of morphology and accelerating runoff contributions of LWD, and limit thermal contaminants and assuring sufficient (Furniss et al., 1991), all of which can impacts. riparian buffers between development affect sites for spawning and rearing. sites and aquatic ecosystems that The construction of roads near streams (c). Changing Land-Use and support salmon habitats. can prevent natural channel Development (d). Hatcheries and Stocking adjustments, and urban roads may Changing land-use and development increase runoff of pollutants (Spence et affects all specific areas proposed for Hatcheries and stocking occur in all al., 1996). designation and negatively impact PCE specific areas proposed for designation The use of culverts and bridges can sites for spawning, rearing and and can negatively affect PCE sites for impair habitat connectivity, limiting migration. Changing land-use patterns spawning and rearing. Use of hatcheries accessibility of habitat to juvenile and include a shift from forestry and may be essential for rebuilding Atlantic adult salmon, as well as other fish and agriculture to construction of housing, salmon populations; however, without aquatic organisms (Furniss et al., 1991). commercial shopping and business proper adherence to genetic, Culverts, if not properly installed or centers, and industrial facilities. evolutionary, and ecological principles, maintained, can fragment a watershed Increased development and population the use of hatcheries could have adverse and make reaches inaccessible to growth can cause declines in water and consequences for naturally reproducing migratory fish while simultaneously habitat quality caused by increases in fish that may undermine other preventing upstream movement of erosion, reduction of riparian rehabilitation efforts. Stocking of resident fish and invertebrates. vegetation, increases in sediment juvenile Atlantic salmon that are river Conditions induced by culverts that deposition, homogenizing of habitat specific, non-river specific, or a block fish passage include high water features, and an overall reduction in combination of both, is taking place in velocities through the culvert over water quality resulting from point and many rivers within the range of the extended distances without adequate non-point source pollution. GOM DPS. Captive-reared adult brood resting areas; water depth within the Development can affect sites for stock are also being stocked back into culvert that is too shallow for fish to spawning, rearing and migration by their natal rivers in small numbers in swim; and culverts that are perched or reducing soil infiltration rates and most rivers within this range (NRC, hanging and exclude fish from entering increasing erosion. Construction of 2004). Smallmouth bass (Micropterus the culvert (Furniss et al., 1991). impervious surfaces can indirectly dolomieui) and chain pickerel (Esox Bridges, while preferred to culverts influence habitat by increasing surface niger), important non-native predators (Furniss et al., 1991), may also induce water runoff while concurrently of juvenile salmon, have also been negative ecological impacts. Poorly reducing groundwater recharge. Surface introduced throughout a large portion of runoff from developed areas can the range of the GOM DPS (Fay et al., designed bridges, like culverts, can alter increase erosion rates, carry pollutants 2006). These species, along with a host sediment transport, natural alluvial from developed areas, and increase of other native and non-native fish, may adjustments, and downstream transport flooding (Morse and Kahl, 2003), compete for food and space with of organic material, particularly large whereas a reduction in groundwater Atlantic salmon in freshwater, affecting woody debris. This alteration can affect recharge can lead to reduced summer sites for juvenile rearing and spawning. sites for spawning, rearing and baseflows, potentially reducing We conclude that the spawning and migration. available aquatic habitat (Morse and rearing PCEs in each specific area are Other in-stream activities, such as Kahl, 2003). and will likely continue to be negatively alternative energy projects, may also Development practices can redirect, affected by hatcheries and stocking, and, affect the PCEs. Because the two channelize, and/or armor stream banks therefore, may require special projects analyzed by NMFS (only one of to accommodate and protect the management considerations or which has received a preliminary development. Certain development protections. Management considerations permit from FERC) are in the early practices can clear riparian areas, or protections may include efforts that planning stages, NMFS has yet to make decreasing shade and altering thermal employ genetic and stock management specific recommendations regarding the regimes and nutrient inputs. These of Atlantic salmon such that stocked protection of Atlantic salmon habitat. practices can also remove vegetation fish do not present a genetic or Until specific plans for the projects are that would otherwise intercept rainfall competitive risk to natural populations, made available, the potential impact on and therefore reduce runoff. As more and stocking of other species that do not the critical habitat for Atlantic salmon water is carried downstream during rain introduce threats of predation, will remain uncertain, as will any events or when stream channels are competition, genetics or disease. modifications that might be requested to altered, streambed widening or scouring mitigate adverse impacts. We seek may increase. Streambed widening or (e). Roads and Road Crossings and Other comment on the potential impact of scouring can directly reduce the quality In-Stream Activities critical habitat on these activities, and and quantity of habitat available to Roads and road crossings occur in all also whether additional alternative Atlantic salmon. As a result, specific areas proposed for designation energy projects should be considered in development can lead to alterations in and negatively affect sites for spawning our analysis. physical habitat within sites for and rearing, and sites for migration. We conclude that the migration PCE spawning, rearing and migration. We Roads, which are typically built in and the spawning and rearing PCE in conclude that the spawning, rearing and association with logging, agriculture, each specific area are and will likely migration PCEs in each HUC 10 are and and development, are often negatively continue to be negatively affected by will likely continue to be negatively correlated with the ecological health of roads and road crossings into the future, affected by contaminants into the future, an area (Trombulak and Frissell, 2000). and, therefore, may require special and, therefore, may require special Road networks modify the hydrologic management considerations or management considerations or and sediment transport regimes of protection that may include applying protections which may include watersheds by accelerating erosion and best management practices that reduce improvements in the handling of waste sediment loading, altering channel sedimentation and pollution, and allow

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for unobstructed passage of juvenile and copper is known to affect a variety of Atlantic salmon which can delay or adult Atlantic salmon at road crossings. biological endpoints in fish (e.g., preclude adult salmon access to survival, growth, behavior, spawning sites and smolts from access (f). Mining osmoregulation, sensory system, and to the marine environment. Dams also Sand, gravel, cement, and some others (reviewed in Eisler, 1998)). preclude or diminish access of co- varieties of stone (e.g., slate and granite) Laboratory exposure of 2.4 micrograms/ evolved diadromous fish communities and clay are mined extensively L dissolved copper in water with that likely serve as buffers from throughout Maine and this activity can hardness 20 mg/L resulted in avoidance predators of migrating salmon (Saunders negatively affect PCE sites, behavior by juvenile Atlantic salmon et al., 2006). They can also degrade predominately those for spawning and and 20 micrograms/L dissolved copper spawning and rearing sites through rearing. Mining is known to occur in water with a hardness of 20 mg/L alterations of natural hydrologic, within 36 specific areas proposed for resulted in interrupted spawning geomorphic and thermal regimes designation. Mining of these materials migrations in the wild (Sprague et al., (American Rivers et al., 1999; Heinz in Maine occurs to the extent that Maine 1965). A combined effect of copper-zinc Center, 2002; NRC, 2004; Fay et al., is largely self-sufficient with respect to may result in a complete block of 2006). Dams are also the most these commodities (Lepage et al., 1991). migration at 0.8 toxic units (Sprague et significant contributing factor to the loss Sand and gravel mining can occur in the al., 1965). Currently metal mining does of salmon habitat connectivity within form of gravel pits and in some cases not occur within any of the specific the range of the DPS (Fay et al., 2006) can involve dredging of streambeds. areas, though recent mining exploration and have been identified as the greatest Sand and gravel mining in or adjacent within the state suggests that metal impediment to self-sustaining Atlantic to streams can affect sites for spawning mining may occur in the future. We salmon populations in Maine (NRC, and rearing by increasing fine and conclude that spawning, rearing and 2004). coarse particle deposition and elevating migration PCEs in each specific area As discussed in the economic analysis turbidity from suspended sediments may, in the future, be negatively prepared in support of this designation, (Waters, 1995). affected by metals mining and, we recognize that impacts to We conclude that the spawning and therefore, may require special hydropower operations may occur as a rearing PCE is and will likely continue management considerations or result of this designation. We solicit to be affected by sand and gravel mining protections, possibly through information on these impacts to inform into the future, and, therefore, may implementation of best management our final designation. require special management or practices (BMPs) that protect rivers and We conclude that the migration, protections through increased riparian streams from pollutants. spawning and rearing PCEs are and will buffers that protect streams from There are only two active, though likely continue to be negatively affected sedimentation. Direct mining of gravel limited, peat mining operations in by dams into the future, and, therefore, from streambeds does not currently Maine, both of which are located in may require special management occur in any of the specific areas, Washington County (USGS, 2006) in the considerations or protection through though such mining has been proposed Narraguagus River HUC 10 (HUC code dam removal or improved fish passage in the past and may be proposed in the 105000209). Although there is currently devices. future. Therefore, spawning and rearing no direct evidence that peat mining in (h). Dredging sites affected by streambed mining may other countries (i.e., Ireland, Norway) require special management or has affected Atlantic salmon, studies Dredging frequently occurs within protections, which may include have shown that peat mining can affect bays and estuaries along the coast of relocation of streambed mining water quality, wetlands, aquatic Maine and can negatively affect the operations. resources and sediment load (MASTF, migration PCEs. Dredging may occur Maine’s crystalline rocks are potential 1997). One potential effect of peat within 25 specific areas proposed for hosts to an array of metals including mining on Atlantic salmon habitat is designation in the GOM DPS and is copper, zinc, lead, nickel, molybdenum, from runoff that may have historically often a temporary activity depending on tin, tungsten, cobalt, beryllium, exacerbated depressed pH in DPS rivers the size and duration of the dredging uranium, manganese, iron, gold and (NMFS and FWS, 1999). Low pH levels project. Dredging is the practice of silver (Lepage et al., 1991) and mining are known to impair smolt migrations as removing sediment from an aquatic of these metals can negatively affect they transfer from the freshwater system and commonly occurs in sites for spawning and rearing and sites environment to the marine environment freshwater, estuarine, and marine for migration. Many metals occur (Staurnes et al., 1995; Brodeur et al., environments. Nightingale and naturally in rivers and streams and in 2001). We conclude that peat mining Simenstad (2001a) place dredging trace concentrations are considered may negatively affect PCE sites in the practices into one of two categories: the essential for proper physiological Narraguagus River HUC 10, particularly creation of new projects and waterway development of fish (Nelson et al., for migration, as depressed pH levels are deepening, or maintenance dredging for 1991). The process of mining for metals known to adversely affect migration the purpose of preserving already can introduce toxic metals into streams smolts, and, therefore, may require existing channels. Nightingale and as acid stimulation mobilizes metal ions special management considerations or Simenstad (2001a) list some examples of from metalliferous minerals (Nelson et protections through measures that why dredging might be used and al., 1991) and therefore may alter water protect rivers and streams from acid include activities such as maintaining chemistry in sites for spawning, rearing discharge of waste water or runoff. water depths, creating or expanding and migration. The most frequent metals marinas, mining gravel or sand for that are released into streams and may (g). Dams shoreline armoring, opening channels be toxic to salmon depending on their Dams occur in 40 specific areas for passage of flood flows, retrieving concentration include arsenic, proposed for critical habitat designation cement mixture ingredients, and cadmium, chromium, cobalt, copper, and negatively affect sites for spawning removing contaminated sediments. iron, lead, manganese, mercury, nickel, and rearing and sites for migration Dredging can cause a range of and zinc (Nelson et al., 1991). Dissolved PCEs. Dams obstruct migration of negative impacts to water quality in the

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affected area, particularly in sites for been shown to cause erosion to the return to Maine rivers. Escapes have migration where dredging is most likely terminal ends of fish gills. In addition been caused by storms, cage failure, to occur. Of greatest concern is the to impacting juvenile salmon, anchor failure, human error, vandalism, associated temporary increase in the suspended solids at levels of 20 mg/L and predator attacks (e.g., seals; NMFS/ water’s turbidity (the measure of and 10 mg/L have been shown to result FWS, 2005). Although there is little suspended solids in the water column). in avoidance behaviors from rainbow direct information about the effects of Increased turbidity can have adverse smelt, and Atlantic herring, respectively net-pen salmon aquaculture on wild effects upon the impacted area’s fish (Wildish and Power, 1985). We Maine salmon (NRC, 2004), potentially community that include a range of conclude that the migration PCE is and harmful interactions between wild and impacts from difficulty absorbing will likely continue to be negatively farmed salmon can be divided into oxygen from the water, altered feeding affected by dredging into the future, ecological and genetic interactions. behavior, and changes in predator-prey and, therefore, may require special Ecological interactions can occur in relationships (Nightingale and management considerations or sites for migration, resulting in Simenstad, 2001a). In addition, protections which may include time of alterations in disease transmission and increased turbidity causes reductions in year restrictions and employment of changes to competition and predation the light’s ability to penetrate the water sediment control measures. pressures, whereas genetic interactions column. Light penetration plays a (i). Aquaculture occur in spawning sites, which can central role in the level of productivity modify the timing of important life of aquatic environments, predator-prey Aquaculture occurs in four specific history events and thereby alter relationships, schooling behavior, and areas proposed for designation within fish migration (Nightingale and the range of the GOM DPS and can selection pressures and fitness. These Simenstad, 2001a). negatively affect PCE sites for spawning interactions are not mutually exclusive, Juvenile salmonids migrating through and rearing, and migration. The and the effects of each may compound and residing in estuaries are naturally influence of aquaculture on Atlantic and influence the effects of the other. capable of coping with high levels of salmon is most frequently related to the We conclude that the spawning and turbidity; however, suspended solids interactions between wild fish and fish rearing PCE and the migration PCE in introduced via dredging can produce that have escaped from aquaculture each affected HUC 10 is, and will likely material that is of the right size and facilities. Most escapes of farm salmon continue to be, negatively affected by shape to adversely affect the young occur in the marine environment and aquaculture into the future, and, salmon by inhibiting their ability to involve smolts, post-smolts and adults. therefore, may require special diffuse oxygen through their gills Escaped farmed salmon generally management considerations or (Nightingale and Simenstad, 2001a). migrate up the nearest rivers. Large protections which may include better According to Nightingale and Simenstad escapes of aquaculture fish have containment of aquaculture fish to (2001b), suspended solids in occurred in Maine and Canada and prevent escapement and enhanced concentrations of ≥ 4,000 mg/L have escaped farm salmon are known to disease and parasite control procedures.

TABLE 1—SPECIFIC AREAS WITHIN THE GEOGRAPHIC AREA OCCUPIED BY A SPECIES AND THE ASSOCIATED SPECIAL MANAGEMENT CONSIDERATIONS OR PROTECTIONS THAT MAY BE REQUIRED

HUC code Watershed name Special management considerations*

105000205 ...... Machias River ...... A F C/L H/S R Da Dr 105000204 ...... East Machias River ...... A F C/L H/S R M Da Dr 105000208 ...... Pleasant River ...... A F C/L H/S R M Da Dr 105000201 ...... Dennys River ...... A F C/L H/S R M Da Dr 105000207 ...... Chandler River ...... A F C/L H/S R M Da Dr 105000209 ...... Narraguagus River ...... A F C/L H/S R M Da Dr 105000213 ...... Union River Bay ...... A F C/L H/S R M Da Dr Q 105000203 ...... Grand Manan Channel ...... A F C/L H/S R M Da Dr Q 105000206 ...... Roque Bluffs Coastal ...... A F C/L H/S R M Da Dr 105000210 ...... Tunk Stream ...... A F C/L H/S R Da Dr 105000212 ...... Graham Lake ...... A F C/L H/S R M Da 102000202 ...... Grand Lake Matagamon ...... A F C/L H/S R Da 102000203 ...... East Branch Penobscot River ...... A F C/L H/S R 102000204 ...... Seboeis River ...... A F C/L H/S R Da 102000205 ...... East Branch Penobscot River ...... A F C/L H/S R Da 102000301 ...... West Branch Mattawamkeag River ...... A F C/L H/S R M Da 102000302 ...... East Branch Mattawamkeag River ...... A F C/L H/S R M 102000303 ...... Mattawamkeag River ...... A F C/L H/S R M 102000305 ...... Mattawamkeag River ...... A F C/L H/S R M 102000306 ...... Molunkus Stream ...... A F C/L H/S R 102000307 ...... Mattawamkeag River ...... A F C/L H/S R M Da 102000401 ...... Piscataquis River ...... A F C/L H/S R Da 102000402 ...... Piscataquis River ...... A F C/L H/S R M Da 102000404 ...... Pleasant River ...... A F C/L H/S R Da 102000405 ...... Seboeis Stream ...... A F C/L H/S R Da 102000406 ...... Piscataquis River ...... A F C/L H/S R M Da 102000501 ...... Penobscot River at Mattawamkeag ...... A F C/L H/S M Da 102000502 ...... Penobscot River at West Enfield ...... A F C/L H/S R M Da 102000503 ...... Passadumkeag River ...... A F C/L H/S R M Da 102000505 ...... Sunkhaze Stream ...... A F C/L H/S R 102000506 ...... Penobscot River at Orson Island ...... A F C/L H/S R M

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TABLE 1—SPECIFIC AREAS WITHIN THE GEOGRAPHIC AREA OCCUPIED BY A SPECIES AND THE ASSOCIATED SPECIAL MANAGEMENT CONSIDERATIONS OR PROTECTIONS THAT MAY BE REQUIRED—Continued

HUC Code Watershed Name Special Management Considerations*

102000507 ...... Birch Stream ...... A F C/L H/S R M 102000509 ...... Penobscot River at Veazie Dam ...... A F C/L H/S R M Da 102000510 ...... Kenduskeag Stream ...... A F C/L H/S R M Da Dr 102000511 ...... Souadabscook Stream ...... A F C/L H/S R M Da Dr 102000512 ...... Marsh River ...... A F C/L H/S M Da Dr 102000513 ...... Penobscot River ...... A F C/L H/S R M Da Dr 105000218 ...... Belfast Bay ...... A F C/L H/S R M Da Dr 105000219 ...... Ducktrap River ...... A F C/L H/S R Da Dr Q 105000301 ...... St. George River ...... A F C/L H/S R M Da Dr 105000302 ...... Medomak River ...... A F C/L H/S R M Da Dr 105000305 ...... Sheepscot River ...... A F C/L H/S R M Da Dr 103000306 ...... Kennebec River at Waterville Dam ...... A F C/L H/S R M Da Dr 103000305 ...... Sandy River ...... A F C/L H/S R M Da Dr 103000312 ...... Kennebec at Merrymeeting Bay ...... A F C/L H/S R M Da Dr Q 105000306 ...... Sheepscot Bay ...... A F C/L H/S R M Da Dr 105000307 ...... Kennebec River Estuary ...... A F C/L H/S R M Da Dr 104000210 ...... Little Androscoggin River ...... A F C/L H/S R M Da Dr * A = Agriculture; F = Forestry, C/L = Changing Land Use; H/S = Hatcheries and Stocking; R = Roads and Road Crossings; M = Mining; Da = Dams; Dr = Dredging; Q = Aquaculture.

‘‘Specific Areas Outside the for recovery to ensure that Atlantic GOM DPS. Franklin (1980) introduced Geographical Area Occupied by the salmon are widely distributed across the 500 as the approximate effective Species * * * Essential to the DPS such that recovery of the species is population size necessary to retain Conservation of the Species’’ not limited to one river or one sufficient genetic variation and long geographic location within the GOM term persistence of a population. The ESA 3(5)(A)(ii) further defines DPS. As explained in more detail in the Though there has been much debate in ‘‘critical habitat’’ as ‘‘specific areas Biological valuation of Atlantic salmon the literature regarding the application outside the geographical area occupied habitat within the range of the GOM of assigning a general number to by the species at the time it is listed in DPS, Appendix A, we determined that represent when populations are accordance with the provisions of all three SHRUs must fulfill the criteria sufficiently large enough to maintain [section 4 of this Act], upon a described below for the overall species, genetic variation (Allendorf and Luikart, determination by the Secretary that such the GOM DPS, to be considered 2007), the ‘‘500 rule’’ introduced by areas are essential for the conservation recovered. The three SHRUs will Franklin (1980) has not been superseded of the species’’. For the reasons stated provide protection from genetic and by any other rule and does serve as above in the discussion of specific demographic stochasticity as well as occupied areas, we delineated the useful guidance for indicating when a depensatory effects whereby a decrease population may be at risk of losing specific areas outside the geographic in the population can lead to reduced area occupied by the species using HUC genetic variability (Allendorf and survival and production of eggs and Luikart, 2007). 10 (level 5) watersheds. To determine offspring. Recovery of the GOM DPS, whether these unoccupied areas are whereby each of the three SHRUs meet We have chosen to use 500 adult essential for the conservation of the the criteria described below, also spawners (1 or 2 sea-winter salmon) in species, we: (1) Established recovery assures diversity across the geographic each SHRU as the indicator of when the criteria to determine when the species range such that fish from one SHRU populations in each of the three SHRUs no longer warrants the protections of the may be particularly well adapted to one may be at risk of losing genetic ESA (See Appendix A of Biological environment or set of conditions (e.g., variability. We used the census number valuation of Atlantic salmon habitat long migration corridors, high gradient rather than an effective population size within the range of the GOM DPS) and reaches, warm temperatures, etc.) to (Ne) primarily because determining an the amount of habitat needed to support which fish from another SHRU may not effective population size for natural the recovered population; and (2) be well adapted. populations with highly complex life determined the amount of habitat histories can be extremely difficult and currently occupied by the species Criteria highly variable from one year to the next relative to the amount of habitat As explained further in the Biological (Waples and Yokota, 2007; Reiman and necessary to achieve recovery. valuation of Atlantic Salmon Habitat Allendorf, 2001). In Atlantic salmon To establish recovery criteria, we within the range of the GOM DPS, populations, where cross-generational determined the characteristics of a Appendix A, we determined that if the breeding, iteroparity, and precocious recovered GOM DPS. We first census population (N) of adult spawners parr all contribute to the breeding established a geographic framework within any of the three SHRUs were to population, computing an effective represented by three Salmon Habitat fall below 500, the GOM DPS should be population size of the natural Recovery Units, or SHRUs, within the evaluated as threatened pursuant to the population would most likely generate DPS (see appendix A of the Biological factors set forth in the ESA. A census values with substantial error valuation of Atlantic Salmon Habitat population of 500 adult spawners surrounding the data, and therefore not within the range of the GOM DPS, within all three SHRUs also serves as be particularly useful in determining 2008). The SHRU delineations were the starting point in which to make a when the population is at risk of established to aid in developing criteria determination of recovery for the entire becoming endangered.

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Additionally, an N of 500 per SHRU considered to have had exceptionally HUC 10. In HUCs where quality and provides only a starting point from low survival, we applied the criteria dams are believed to be limiting, the which to establish criteria for delisting described above in conjunction with a functional equivalent would be less and will not necessarily be the actual Population Viability Analysis (PVA) to than the measured habitat within the number at which the DPS warrants determine how many adults would be HUC 10. The functional equivalent delisting. Geographic distribution, required in each SHRU to weather a value is used in the critical habitat population trends, and the results of similar downturn in survival while evaluation process to determine the Population Viability Analyses (PVAs) having a greater than 50-percent chance quantity of functioning habitat within are other factors that will be used in of remaining above 500 adults (see each HUC 10. It also determines the determining extinction risks to the GOM Appendix B of Biological valuation of quantity of functioning habitat within DPS (see appendix A of Biological Atlantic salmon habitat within the GOM the currently occupied range relative to valuation of Atlantic salmon habitat DPS, 2008). This analysis projected that the amount needed to support the within the GOM DPS (2008)) and the a census population of 2,000 spawners offspring of 2000 adult spawners. determination of when the GOM DPS (1000 male and 1000 female) would be warrants delisting. Furthermore, needed in each of the three SHRUs for The functional equivalent was objective, measurable criteria as the GOM DPS to weather a downturn in generated by multiplying the units of required under ESA § 4(f)(1)(B)(ii) will survival such as experienced over the habitat within each HUC 10 by the further establish thresholds for recovery time period from 1991–2006. Based on habitat quality score divided by 3 (e.g. and will be determined in a final this analysis, enough habitat is needed 1 = 0.33, 2 = 0.66, and 3 = 1; discussed recovery plan for the expanded GOM in each of the three SHRUs to support below under application of ESA section DPS. As a result, the actual number of the offspring of 2,000 spawners. Using 4(b)(2)). This value was then multiplied fish needed to warrant a delisting an average fecundity per female of 7,200 by the passage efficiency of FERC dams decision will likely be greater than 500 eggs (Legault, 2004), and male to female with turbines raised to the power of the for each SHRU based upon the ratio of 1:1, or 1000 females, and a target number of dams both within and demographics of the population leading number of eggs per one unit of habitat downstream of the HUC 10. Habitat up to the point at which a decision is (100 m2) of 240 (Baum, 1997) we quality scores were divided by 3 to made. determined that 30,000 units of habitat represent their relative values in terms Given a population size of 500 adult is needed across each SHRU (7,200 eggs of percentages such that a ‘‘1’’ habitat spawners in any SHRU as a threshold in × 1000 females/240 eggs = 30,000) to quality score has a qualitative value which the GOM DPS should be support the offspring of 2,000 spawners, roughly 33 percent of habitat that is not evaluated for listing as a threatened which represents the quantity of habitat limiting, ‘‘2’’ habitat quality score is species, we determined that a recovered in each SHRU essential to the roughly 66 percent, and a ‘‘3’’ score GOM DPS would be one that is not conservation of the species (Appendix B equals 100-percent habitat quality. We likely to become threatened, because a of Biological valuation of Atlantic consider 0.85 to represent a coarse recovered GOM DPS should not be a Salmon Habitat within the GOM DPS, estimate of passage efficiency for FERC population that teeters on the line 2008). dams with turbines based on the between a GOM DPS that is recovered, To calculate the existing quantity of findings of several studies (GNP, 1995; and a GOM DPS that is threatened. habitat across the DPS both within the GNP, 1997; Holbrook, 2007; Shepard, Therefore, for the GOM DPS to be currently occupied range and outside 1991c; Spicer et al. 1995) and therefore considered recovered, each SHRU must the occupied range, we considered the roughly equivalent to a 15 percent have a less than 50-percent chance of measured quantity of habitat within reduction in functional equivalent. The the adult spawner population falling each HUC 10 as well as the habitat’s number of dams present both within below 500 over the next 15 years (see quality to generate the habitat’s and downstream of the HUC 10 was Appendix A of Biological valuation of functional equivalent. The functional used as an exponent to account for Atlantic salmon habitat within the GOM equivalent values are a measure of the cumulative effects of dams. A full DPS). Additionally, the entire GOM DPS quantity of habitat (expressed in units review of how habitat quantities and must reflect sustainable positive where 1 unit of habitat is equivalent to habitat qualities were computed is population growth for a period of 10 2 100 m of habitat) within a HUC 10 provided in the Biological Valuation of years (or two generations) to ensure that based on qualitative factors that limit Atlantic Salmon Habitat within the population trends are substantive (see survivorship of juvenile salmon GOM DPS, 2008. Appendix A of Biological valuation of utilizing the habitat for spawning, Atlantic Salmon Habitat within the rearing and migration. The functional Table 2 represents the total amount of GOM DPS, 2008). The criteria described equivalent also accounts for dams measured habitat within the occupied above were then applied to aid in within or below the HUC 10 that would areas of each SHRU; the habitats determining whether designating any further reduce survivorship of juvenile functional equivalent for each SHRU; specific unoccupied habitat areas are salmon within the HUC 10 as they amount of habitat proposed for essential for the conservation of the migrate towards the marine exclusion; the amount of functional species by estimating the amount of environment. In HUC 10s that are not habitat (represented as functional habitat needed to support a recovered believed to be limited by qualitative equivalent) after exclusion; and the GOM DPS. factors or dams, the functional amount of habitat still needed to Using demographic data for the equivalent would be identical to the support the offspring of 2,000 adult period between 1991–2006, a period measured quantity of habitat within the spawners within each SHRU.

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TABLE 2—TOTAL HABITAT AND FUNCTIONAL HABITAT FOR OCCUPIED AREAS Among the Three SHRUs in the GOM DPS

Additional habitat needed Functional to support the SHRU Total habitat Functional Proposed habitat after offspring of units equivalent exclusion exclusions 2,000 adult spawners (i.e., 30,000 units)

Merrymeeting Bay ...... 372,639 40,001 0 40,001 0 Penobscot Bay ...... 323,740 66,263 3,205 63,058 0 Downeast Coastal ...... 61,395 29,111 0 29,111 889

In both the Penobscot and habitat for Atlantic salmon ranging from of such habitat. This designation will Merrymeeting Bay SHRUs there are the Kennebec River in south central allow Federal agencies and others to more than 30,000 units of functional Maine to the Dennys River in Eastern evaluate the potential effects of their habitat within the currently occupied Maine. Projects include (though are not activities on critical habitat to determine area to support the offspring of adult limited to) dam removals along the if ESA section 7 consultation with spawners. In the Downeast SHRU, the Kennebec, St. George, Penobscot, and NMFS is needed given the specific amount of functional habitat available to East Machias Rivers, land protection of definition of physical and biological the species is estimated to be 889 units riparian corridors along the Machias, features. Narraguagus, Dennys, Pleasant, East short of what is needed to support 2000 Application of ESA Section 4(a)(3)(B)(1) adult spawners. Nonetheless, we Machias, Sheescot, Ducktrap rivers and determined that no areas outside the Cove Brook; surveying and repair of The Sikes Act Improvement Act of occupied geographical area within the culverts that impair fish passage; and 1997 (16 U.S.C. 670a–670f, as Downeast SHRU are essential to the outreach and education efforts on the amended), enacted on November 18, conservation of the species. This is benefits of such projects. The Penobscot 1997, required that military installations because of the 61,395 total habitat units River Restoration Project is another with significant natural resources in Downeast Maine, the habitat is example of cooperative efforts on behalf prepare and implement an integrated predicted to be functioning at the of Federal and state agencies, non-profit natural resource management plan equivalent of only 29,111 units because organizations and dam owners. The (INRMP) in cooperation with the of the presence of dams or because of PRRP goal is to enhance runs of USFWS and state fish and wildlife degraded habitat features that reduce diadromous fish through the planned agencies, by November 18, 2001. The the habitats functional value. Through removal of two mainstem dams and purpose of the INRMP is to provide the restoration efforts, including enhanced enhanced fish passage around several basis for carrying out programs and fish passage and habitat improvement of other dams along the Penobscot River. implementing management strategies to anthropogenically degraded features, a These cooperative efforts can increase conserve and protect biological substantial portion of the approximate the functional potential of Atlantic resources on military lands. Because 32,000 units of non-functioning habitat salmon habitat by both increasing military lands are often protected from may be restored to a functioning state. habitat availability as well as increasing public access, they can include some of The Union River, for instance, has over habitat quality. Therefore, we do not the nation’s most significant tracts of 12,000 units of habitat, though its believe that it is essential to designate natural resources. INRMPs are to functional potential is estimated to be critical habitat outside of the currently provide for the management of natural equivalent to approximately 4,000 units occupied range. resources, including fish, wildlife, and of habitat. This is largely because of Activities That May Be Affected (Section plants; allow multipurpose uses of dams without fish passage that preclude 4(b)(8)) resources; and provide public access Atlantic salmon access to portions of the Section 4(b)(8) of the ESA requires where appropriate for those uses, Union River watershed. Dam removal or that we describe briefly and evaluate in without any net loss in the capability of improved fish passage has the potential any proposed or final regulation to an installation to support its military to restore a significant amount of the designate critical habitat, those mission. 8,000 units within the Union River activities that may destroy or adversely In 2003, the National Defense declared to be non-functioning habitat. modify such habitat or that may be Authorization Act (Pub. L. 108–136) Throughout Maine, there has been affected by such designation. A wide amended the ESA to limit areas eligible substantial effort on behalf of state and variety of activities may affect critical for designation as critical habitat. Federal agencies and non-profit habitat and, when carried out, funded, Specifically, section 4(a)(3)(B)(i) of the organizations in partnership with or authorized by a Federal agency, will ESA (16 U.S.C. 1533(a)(B)(i)) states: landowners and dam owners to restore require an ESA section 7 consultation. ‘‘The Secretary shall not designate as habitat through a combination of land Such activities (detailed in the critical habitat any lands or other and riparian protection efforts, and fish economic analysis) include, but are not geographical areas owned or controlled passage enhancement projects. Project limited to agriculture, transportation, by the Department of Defense, or SHARE, the Downeast Salmon development and hydropower. designated for its use, that are subject to Federation, watershed councils, Trout We believe this proposed critical an integrated natural resources Unlimited, and the Atlantic Salmon habitat designation will provide Federal management plan prepared under Federation, for example, have agencies, private entities, and the public section 101 of the Sikes Act (16 U.S.C. conducted a number of projects with clear notification of critical habitat 67a), if the Secretary determines in designed to protect, restore and enhance for Atlantic salmon and the boundaries writing that such plan provides a benefit

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to the species for which critical habitat The 4(b)(2) exclusion process is spawning, rearing and migration is proposed for designation.’’ conducted for a ‘‘particular area,’’ not activities and is applied in the 4(b)(2) Within the specific areas identified as for the critical habitat as a whole. This exclusion analysis, where it is weighed critical habitat for the Gulf of Maine analysis is therefore conducted at a against the economic, national security, DPS, there are three military sites, one geographic scale that divides the area and other relevant impacts to consider of which has been decommissioned and under consideration into smaller sub- whether specific areas may be excluded recently transitioned to civilian areas. The statute does not specify the from designation. (The final biological ownership. The two active military sites exact geographic scale of these value also aided in determining those within the occupied range of the DPS ‘‘particular areas.’’ For the purposes of areas currently occupied by the species include: (1) The 3,094 acre Brunswick the analysis of economic impacts, a described earlier in the proposed rule Naval Air Station in Brunswick, Maine, ‘‘particular area’’ is equivalent to a under ‘‘Identifying the Geographical of which 435 acres are within Little ‘‘specific area’’, defined as a HUC 10 Area Occupied by the Species and Androscoggin HUC 10 watershed in the (level 5) standard watershed. There are Specific Areas within the Geographical Merrymeeting Bay SHRU; and (2) the 48 ‘‘specific areas’’ (HUC 10s) occupied Area’’). Brunswick Naval Air Stations cold by the species on which are found those The variables used to develop the weather survival, evasion, resistance physical and biological features Final Biological Value include a and escape school which occupies essential to the conservation of the combination of habitat units, habitat 12,000 acres near Rangeley, Maine and species and which may require special quantity, habitat quality, and the value occupies 5,328 acres of the Sandy River management considerations or of the HUC 10 to migration of smolts HUC 10 watershed in the Merrymeeting protection. and adults. A habitat unit represents 100 m2 of Bay SHRU. We have contacted the Where we considered impacts on spawning and rearing habitat. A Department of Defense and requested Indian Tribes, we delineated particular ‘‘habitat unit’’ is used in North America information on the existence of INRMPs areas based on land ownership. Where and Europe to quantify habitat features and the benefits any INRMPs would we consider impacts on national most frequently used for spawning and provide to Atlantic salmon. If any security particular areas will be juvenile rearing (e.g., riffles and runs). INRMPs covering these sites are delineated based on lands identified by Habitat units for each HUC 10 were determined, in writing, to provide a the military as areas where critical habitat will have an impact on national calculated using the GIS based habitat benefit to Atlantic salmon, we would be prediction model described earlier in precluded from designating the Atlantic security. These areas may only account for a small fraction of a HUC 10 the proposed rule under Physical and salmon habitat within these sites, which Biological Features in Freshwater and is comprised of 9.56 km of river and watershed or, in some circumstances, may span across several HUC 10 Estuary Specific Areas Essential to the streams containing physical and Conservation of the Species. biological features in the Sandy River watersheds. Factors that were considered in determining whether or Habitat quantity is the estimate of HUC, and 0.81 km of river and streams habitat units generated by the model containing physical and biological not the benefits of exclusion outweighed the benefits of designating the particular and was calculated separately for each features in the Lower Androscoggin HUC 10. The units of habitat were then HUC. areas as critical habitat: (1) The quantity of functional habitat binned into four categories for each of Application of ESA Section 4(b)(2) proposed for exclusion relative to the the three SHRUs. A HUC 10 with no quantity of habitat needed to support a habitat was assigned a score of ‘‘0’’ and The foregoing discussion described recovered population; was considered unoccupied. HUC10’s the specific areas within U.S. (2) The relative biological value of a with the lowest 25 percent of total units jurisdiction that meet the ESA particular area to the conservation of the of habitat across the entire SHRU definition of critical habitat because species, measured by the quantity and received a ‘‘1’’ score, the middle 50 they contain the physical and biological quality of the physical and biological percent received a ‘‘2’’ score, and the features essential to the conservation of features with the particular area; upper 25 percent received a ‘‘3’’ score. Atlantic salmon that may require special (3) The anticipated conservation loss A ‘‘3’’ score represents the highest management considerations or that would be accrued through not relative habitat quantity score. This protection. Before including areas in a designating a particular area based upon method resulted in the majority of the designation, section 4(b)(2) of the ESA the conservation value of that particular habitat receiving a score of ‘‘2’’ requires the Secretary to consider the area; and representing an average habitat quantity. economic impact, impact on national (4) Whether exclusion of habitat Habitat scores outside the middle 50 security, and any other relevant impacts within the particular area, based upon percent were considered to have above of designation of any particular area. the best scientific and commercial data, average habitat quantity or below The Secretary has the discretion to would result in the extinction of the average habitat quantity. exclude any area from designation if he species concerned. Habitat quality scores were assigned determines that the benefits of exclusion to HUC 10s based on information and (that is, avoiding some or all of the Assigning Biological Value input from fisheries biologists working impacts that would result from To determine the benefits of including with the Maine Department of Inland designation) outweigh the benefits of an area as critical habitat, we assigned Fisheries and Wildlife, the MDMR, designation based upon the best a Final Biological Value to each HUC 10 NMFS, and Kleinschmidt Energy and scientific and commercial data watershed based on the quantity and Water Resource Consultants who available. The Secretary may not quality of Atlantic salmon spawning possess specific knowledge and exclude an area from designation if and rearing habitat and the migratory expertise about the geographic region. exclusion will result in the extinction of needs of the species (see Biological For each of the three SHRUs, a the species. Because the authority to valuation of Atlantic salmon habitat in minimum of three biologist with exclude is discretionary, exclusion is the GOM DPS (2008)). The Final knowledge of and expertise in the not required for any particular area Biological Value indicates each areas geographic area were asked to under any circumstances. current value to Atlantic salmon independently assign habitat scores,

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using a set of scoring criteria developed equally as important as the spawning Outside of the Federal agencies’ by Fisheries Biologists from NMFS, to and rearing habitat itself. obligation to critical habitat and project HUC 10s based on the presence and The final biological value for each modifications that may be required to quality of the physical and biological HUC 10, which is the value used in avoid destruction or adverse features essential to the conservation of weighing economic cost against the modification, the ESA imposes no the species (see Biological valuation of biological value of habitat to salmon, requirements or limitations on entities Atlantic salmon habitat within the GOM was determined by selecting the higher or individuals as result of a critical DPS (2008)). The scoring criteria ranked of the final habitat score and the final habitat designation. qualitative features including migration score of each HUC10. This Economic Impacts temperature, biological communities, approach assures the preservation of water quality, and substrate and cover, spawning and rearing habitat as well as As discussed above, economic as being highly suitable (‘‘3’’), suitable migration habitat (see Biological impacts of the critical habitat (‘‘2’’), marginally suitable (‘‘1’’) or not valuation of Atlantic salmon habitat designation result from implementation of section 7 of the ESA. Section 7(a)(2) suitable (‘‘0’’) for supporting Atlantic within the range of the GOM DPS, requires Federal agencies to consult salmon spawning, rearing and migration 2008). activities. A habitat value of ‘‘0’’ with NMFS to ensure their proposed indicates that one or more factors is Consideration of Economic Impacts, actions are not likely to destroy or limiting to the point that Atlantic Impacts to National Security and Any adversely modify critical habitat. These salmon could not reasonably be Other Relevant Impacts economic impacts may include both administrative and project modification expected to survive in those areas; a The impact of specifying any score of ‘‘1’’, ‘‘2’’ or ‘‘3’’ indicates the costs. Economic impacts may also be particular area as critical habitat occurs associated with the conservation extent to which physical and biological primarily through section 7 of the ESA. features are limiting, with a ‘‘1’’ being benefits of the designation. Once critical habitat is designated, Economic impacts were assessed for most limiting and a ‘‘3’’ being not section 7(a)(2) requires that Federal each specific HUC 10 area proposed for limiting. In HUC 10s that are and have agencies ensure any action they designation, as well as for unoccupied always been inaccessible due to natural authorize, fund or carry out (this action areas within the range of the GOM DPS. barriers, the entire HUC 10 was is called the ‘‘Federal nexus’’) is not While we are not proposing to designate automatically scored as ‘‘0’’ and likely to result in the destruction or unoccupied areas, we evaluated the considered not occupied by the species. adverse modification of critical habitat economic impacts in the event that we During the scoring process, biologists (16 U.S.C. 1536(a)(2)). Parties involved determined in the biological valuation were given the option to consider all the in section 7 consultations include process, or determine as a result of HUC 12 sub-watersheds present within NMFS or the USFWS, a Federal action public comment or subsequently each HUC 10 watershed to aid in agency, and in some cases, a private available information, that some or all of reaching a final HUC 10 watershed entity involved in the project or land the unoccupied areas were found to be score. Emphasis was placed on use activity. The Federal action agency to be essential to the conservation of the identifying whether or not the physical serves as the liaison with NMFS. Under species. For the entire range of the GOM and biological features needed for Section 7(a)(2), when a Federal agency DPS, the present value of estimated Atlantic salmon spawning and rearing proposes an action that may affect a economic impacts ranges from are present and of what quality the listed species or its critical habitat, it approximately $222 million to $259 features are. The overall habitat quality must initiate formal consultation with million, with most of the economic score for each HUC 10 was typically an NMFS (or the USFWS, as applicable) or impact resulting from impacts to average determined by the compilation seek written concurrence from the hydropower and development (IEc, of scores and comments provided from Services that the action is not likely to 2008a). The estimated economic impact the biologists. adversely affect listed species or its of designation of the occupied areas Final Habitat Values were generated designated critical habitat. Formal before economic exclusions ranges from for each HUC 10 by combining habitat consultation is a process between the approximately $165 million to $190 quantity and habitat quality scores Services and a Federal agency designed million. We solicit comment on the within each HUC 10. HUC 10s with zero to determine whether a proposed economic impacts to activities that may scores for either habitat quantity or Federal action is likely to jeopardize the be affected as a result of this quality received a zero score for Final continued existence of a species or designation, particularly hydropower Habitat Value. Combined scores were destroy or adversely modify critical activities and alternative energy then binned on a scale of one to three habitat, an action prohibited by the projects. Information received will be with the lowest 25 percent receiving a ESA. If the action is likely to destroy or considered in the development of the ‘‘1’’ score, the middle 50 percent adversely modify critical habitat, then final designation. receiving a ‘‘2’’ score, and the upper 25 the Federal agency may be required to For the designation of critical habitat percent receiving a ‘‘3’’ score. A ‘‘3’’ implement a reasonable and prudent for the GOM DPS, economic exclusions score represents the highest relative alternative (RPA) to the proposed action within the 48 occupied HUC 10s Final Habitat Value. to avoid the destruction or adverse throughout the DPS were considered by A final migration score was generated modification of critical habitat. In weighing biological value determined in based on the final habitat values and the addition, conservation benefits to the the biological valuation and the migratory requirements of adults to listed species would result when the economic cost determined in the reach spawning areas and smolts to consultation process avoids destruction economic analysis. As described earlier, reach the marine environment. We or adverse modification of its critical the Biological Values were assigned a determined the final migration score of habitat through inclusion of RPAs, or score of 1, 2, or 3, with a ‘‘1’’ being of a HUC 10 to be equal to the highest final avoids lesser adverse effects to critical lowest biological value and a ‘‘3’’ being habitat value upstream from the HUC 10 habitat that may not rise to the level of of highest biological value. Areas could as we concluded that access to adverse modification through inclusion also be assigned a biological value of spawning and rearing habitat was of harm avoidance measures. ‘‘0’’ if the physical and biological

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features in those areas were so degraded the ESA, we are to weigh dissimilar considered for exclusion, including that they were not considered essential impacts given limited time and those areas having a low biological to the conservation of salmon. Areas information. The statute emphasizes value (‘‘1’’), if the area had no dams assigned a ‘‘0’’ score were not included that the decision to exclude is both within it or below it given that in the economic exclusion analysis. As discretionary. Thus, the economic these areas are not subject to the stated above, we consider these areas to impact level at which the economic deleterious effects that dams have on be unoccupied, and we determined that benefits of exclusion outweigh the migration of adults and smolts (GNP no unoccupied areas were essential to conservation benefits of designation is a 1995; GNP 1997; Holbrook 2007; the conservation of the GOM DPS. matter of discretion and depends on the Shepard 1991c; Spicer et al. 1995). To compare economic cost with policy context. For critical habitat, the These dollar thresholds and decision biological value, we ranked the range ESA directs us to consider exclusions to rules provided a relatively simple often monetized categories provided in avoid high economic impacts, but also process to identify, in a limited amount the economic analysis (IEc, 2008a) as requires that the areas designated as of time, specific areas warranting being high (‘‘3’’), medium (‘‘2’’) or low critical habitat are sufficient to support consideration for exclusion. (‘‘1’’) economic impact. These categories the conservation of the species and to We propose to exclude three illustrate economic costs over the range avoid extinction. In this policy context, particular areas (HUC 10s) in the of the GOM DPS. The high, medium and we selected dollar thresholds Penobscot Bay SHRU due to economic low scores assigned to economic costs representing the levels at which we impact, out of a total of 48 occupied were then used to weigh economic cost believe the economic impact associated HUC 10s within the range of the GOM against the corresponding biological with a specific area would outweigh the DPS. Areas proposed for exclusion value (also scored as high, medium or conservation benefits of designating that include 1,243 km of river, stream and low) of each HUC 10. When developing area. estuary habitat and 97 sq. km of lakes criteria for comparing economic costs Given the low abundance and in all of Belfast Bay (HUC 105000218), the use of a dollar value was chosen. A endangered status of Atlantic salmon, Passadumkeag River (HUC 102000503), score of ‘‘1’’ (low economic costs) we exercise our discretion to consider and Molunkus Stream (HUC represents a cost ranging from $24,000 exclusion of specific areas based on 102000306). The combined economic to $432,000; a score of ‘‘2’’ represents a three decision rules: (1) specific areas impact of the designation in those medium economic cost ranging form with a biological value of medium (‘‘2’’) particular areas was estimated to be $432,001 to $2,810,000; and a score of or high (‘‘3’’) score were not eligible for $8,391,000 to $9,412,000 before they ‘‘3’’ represents a high economic cost exclusion regardless of the level of were considered for exclusion. The ranging from $2,810,001 to $26,300,000. economic impact, because of the estimated economic impact for the These dollar thresholds do not represent endangered status of Atlantic salmon; proposed critical habitat following an objective judgment that low-value (2) specific areas with a low biological exclusions ranges from approximately areas are worth no more than $432,000, value (‘‘1’’) were excluded if the $97 million to $120 million. The medium-value areas are worth no more economic costs were greater than estimated economic impact of the than $2,810,000, or high value areas are $432,000 (economic score of ‘‘2’’ or proposed critical habitat designation for worth no more than $26,300,000. Under ‘‘3’’); (3) specific areas were not each SHRU are in Table 3.

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

SHRU Low estimate High estimate

Downeast Coastal ...... $7,473,000 $10,488,000 Penobscot Bay ...... 17,393,100 22,346,900 Merrymeeting Bay ...... 72,520,000 87,310,000

Total ...... 97,386,100 120,144,900

National Security Bay SHRU. We have contacted these Other Relevant Impacts: Tribal Lands installations concerning the national As stated above, within the areas security impacts of designation of these The Penobscot Indian Nation and the identified as critical habitat for the GOM areas as critical habitat. If these areas are Passamaquoddy Tribe own and conduct activities on lands within the Gulf of DPS, there are three military sites, one eligible for designation (i.e., not covered Maine DPS. Activities may include of which has been decommissioned and by INRMPs that provide a benefit to the agriculture; residential, commercial, or recently transitioned to civilian GOM DPS) and any identified national ownership. The two active military sites industrial development; in-stream security impacts are determined to within the occupied range of the DPS construction projects; silviculture; water outweigh the benefits of designation, we include: (1) The 3,094 acre Brunswick quality monitoring; hunting and fishing; would exclude from the designation the Naval Air Station in Brunswick, Maine, and other uses. Some of these activities Atlantic salmon habitat within these of which 435 acres are within Little may be affected by the designation of Androscoggin HUC 10 watershed in the military sites, which is comprised of critical habitat for the Gulf of Maine Merrymeeting Bay SHRU; and (2) the 9.56 km of river and streams containing DPS of Atlantic salmon. Brunswick Naval Air Stations cold physical and biological features in the Secretarial Order 3206 recognizes that weather survival, evasion, resistance Sandy River HUC, and 0.81 km of river Tribes have governmental authority and and escape school which occupies and streams containing physical and the desire to protect and manage their 12,000 acres near Rangeley, Maine and biological features in the Lower resources in the manner that is most occupies 5,328 acres of the Sandy River Androscoggin HUC. beneficial to them. Pursuant to the HUC 10 watershed in the Merrymeeting Secretarial Order, and consistent with

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the Federal government’s trust and estuaries of all 84,058 acres of tribal may submit your comments and responsibilities, the Services must land within the areas occupied by the materials concerning this proposal by consult with the affected Indian Tribes GOM DPS also be excluded from critical any one of several methods (see when considering the designation of habitat designation based on the ADDRESSES). Copies of the proposed rule critical habitat in areas that may impact principles of the Secretarial Order and supporting documentation, tribal trust resources, tribally-owned fee discussed above. Of the 84,058 acres, including the biological valuation, lands, or the exercise of tribal rights. 26,401 acres overlap with particular economic analysis, and 4(b)(2) report, Critical habitat in such areas, unless areas being proposed for exclusion can be found on the NMFS Northeast determined to be essential to conserve a based on economic impacts. Region Web site at http:// species, may not be designated. www.nero.noaa.gov/prot_res/ Determine Whether Exclusion Will The Indian lands specifically altsalmon/. We will consider all Result in Extinction of the Species proposed for exclusion are those comments pertaining to this designation defined in Secretarial Order 3206 and Section 4(b)2 states that particular received during the comment period in include: (1) Lands held in trust by the areas shall not be excluded from critical preparing the final rule. United States for the benefit of any habitat if the exclusion will result in Indian tribe; (2) lands held in trust by extinction of the species. Our decision Classification the United States for any Indian Tribe to only propose for exclusion particular This proposed rule has been or individual subject to restrictions by areas based on economic impacts that determined to be significant for the United States against alienation; (3) had low biological value, unless dams purposes of Executive Order (E.O.) fee lands, either within or outside the were absent from the particular area, led 12866. We have integrated the reservation boundaries, owned by the to proposed exclusions only in the regulatory principles of the E.O. into the tribal government; and, (4) fee lands Penobscot SHRU. No economic development of this proposed rule to within the reservation boundaries exclusions were proposed in the the extent consistent with the owned by individual Indians. Downeast or Merrymeeting Bay SHRUs. mandatory duty to designate critical The Penobscot Indian Nation and the Given that exclusions based on habitat, as defined in the ESA. Passamaquoddy Tribe own and conduct economic impacts within the Penobscot We have determined that this action activities on approximately 182,000 SHRU were only made in areas is consistent to the maximum extent acres of land throughout the entire GOM considered to have little biological value practicable with the enforceable policies DPS. Both tribes that own lands within to Atlantic salmon, those exclusions are of the approved coastal management the GOM DPS have actively pursued or not considered to jeopardize the species’ program of the State of Maine. The participated in activities to further continued existence because those areas determination has been submitted for promote the health and continued do not diminish the functional review by the responsible State agency existence of Atlantic salmon and their equivalent below what is needed to under section 307 of the Coastal Zone habitats. The Penobscot tribe has support a recovered GOM DPS. Management Act (16 U.S.C. 1451 et developed and maintained its own We do not believe that exclusions of seq.). water quality standards that state ‘‘it is tribal lands will reduce the conservation An environmental analysis as the official policy of the Penobscot value or functional equivalent of provided for under the National Nation that all waters of the Tribe shall Atlantic salmon habitat within those Environmental Policy Act for critical be of sufficient quality to support the particular areas given the ongoing habitat designations made pursuant to ancient and historical traditional and cooperative efforts between the Tribes the ESA is not required. See Douglas customary uses of such tribal waters by and the agencies. The combined habitat County v. Babbitt, 48 F.3d 1495 (9th Cir. members of the Penobscot Nation.’’ The within the two military installations 1995), cert. Denied, 116 S.Ct. 698 Tribe is also currently participating in that contain critical habitat includes a (1996). the Penobscot River Restoration Project total of 10 km of river and stream We prepared an initial regulatory that has the intended goal of restoring habitat out of roughly 4,394 km of river flexibility analysis (IRFA) pursuant to 11 species of diadromous fish, including and stream habitat within the section 603 of the Regulatory Flexibility Atlantic salmon. The Passamaquoddy Merrymeeting Bay SHRU. These areas Act (RFA) (5 U.S.C. 601, et seq.)(IEc, Tribe has continued to maintain efforts do not further reduce the amount of 2008b). This IRFA only analyzes the to balance agricultural practices with functional habitat within the impacts to those areas where critical natural resources. In a tract of Tribal Merrymeeting Bay SHRU below the habitat is proposed and is available at land in Township 19, which accounts amount needed to support the offspring the location identified in the ADDRESSES for approximately 12 km of the 27.8 km of 2,000 adult spawners, and exclusion section. The IRFA is summarized below, of rivers and streams on Passamaquoddy of these areas would therefore not likely as required by section 603 of the RFA. land that contain physical and result in the extinction of the species. The IRFA describes the economic biological features essential to salmon, Further evaluation of the impacts of impact this proposed rule, if adopted, the tribe has established an ordinance to excluding these military sites based on would have on small entities. A govern its water withdrawals for these national security will be completed summary of the IRFA follows: lands. This ordinance states ‘‘it is upon receipt of information requested A description of the action, why it is important to the Tribe that its water from the Department of Defense. being considered, and the objectives of withdrawals at T. 19 do not adversely and legal basis for this action are affect the Atlantic salmon in any of its Public Comments Solicited contained in the preamble of this rule life stages, or its habitat,’’ and restricts We solicit comments or suggestions and are not repeated here. water withdrawals to avoid adverse from the public, other concerned After reviewing the land use activities impact on the Atlantic salmon. governments and agencies, the scientific evaluated in the economic analysis Within the occupied range proposed community, industry, or any other conducted for this action, the types of for designation, the Tribes own interested party concerning the small entities that may be impacted if approximately 84,058 acres of land proposed designation and exclusions, this rule were adopted include those within 16 HUC 10 watersheds. NMFS the biological valuation, the economic entities involved in hydropower, proposes that the rivers, streams, lakes analysis, and the 4(b)(2) report. You agriculture, and development activities.

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The total number of affected small project, we were unable to determine of designation were greater than the entities includes up to 12 dam owners who the specific affected landowners biological value of the area to the and 65 farms. There are an unknown are. In some cases, some portion of these species would reduce the quantity of number of small entities involved in landowners are likely individuals and habitat below what is needed to achieve development projects. Because impacts not business, and therefore not relevant conservation of the species. are calculated on a per acre basis and to the small business analysis, while it Critical habitat designation may not for specific projects, it is not is also likely that some of these encourage landowners to develop possible to identify specific landowners. landowners are businesses, including Habitat Conservation Plans (HCPs). We seek public comment on this topic. small businesses, that may be impacted Under section 10 of the ESA, This action does not contain any new by constraints. landowners seeking an incidental take collection-of-information, reporting, Land developers and subdividers are permit must develop an HCP to recordkeeping, or other compliance one type of small business that may be counterbalance the potential harmful requirements beyond the potential affected by constraints stemming from effects that an otherwise lawful activity economic impacts described below and the proposed critical habitat designation may have on a species. The purpose of any reporting requirements associated (IEc, 2008b). The available data suggests the habitat conservation planning with reporting on the progress and that 188 small land developers operate process is to ensure that the effects of success of implementing project in counties that overlap the 48 HUCs incidental take are adequately modifications, which do not require containing proposed critical habitat, minimized and mitigated. Thus, HCPs special skills to satisfy. Third party accounting for 97 percent of the are developed to ensure compliance applicants or permittees may also incur subdividers in the region (IEc, 2008b). with section 9 of the ESA and to meet costs associated with participating in The information available, however, is the requirements of section 10 of the the administrative process of insufficient to estimate the impacts on ESA. Neither the IRFA nor the consultation along with the permitting these entities or to identify other Economic Analysis of Critical Habitat Federal agency. potentially affected landowners (IEc, Designation for the Gulf of Maine No Federal laws or regulations 2008b). Distinct Population Segment of Atlantic duplicate or conflict with the proposed Impacts to hydropower were Salmon forecasts effects associated with rule. Existing Federal laws and estimated for small hydropower the development of HCPs. We solicit regulations overlap with the proposed producers identified by the Small comment on such impacts, particularly rule only to the extent that they provide Business Administration as those with respect to the development of protection to marine natural resources producing less than four billion HCPs by small entities. generally. However, no existing laws or kilowatt-hours annually and are likely Pursuant to the Executive Order on regulations specifically prohibit to experience impacts associated with Federalism, E.O. 13132, the Assistant destruction or adverse modification of the critical habitat designation. The Secretary for Legislative and critical habitat for, and focus on the IRFA analysis (IEc, 2008b) estimates 12 Intergovernmental Affairs will provide recovery of, Atlantic salmon. hydropower producers within the 48 notice of the proposed action and The IRFA estimates that HUCs where critical habitat is proposed request comments from the appropriate approximately 65 small farms (average may be affected with an estimated costs officials in Maine where Atlantic annual receipts of less than $750,000), accrued by these dam owners between salmon occur. or roughly nine percent of the farms $17 annually to $507,000 annually (IEc, The data and analyses supporting this across the DPS, may be affected by 2008b). proposed action have undergone a pre- critical habitat designation (IEc, 2008b). We considered and rejected the dissemination review and have been The average annual revenue of these alternative of not designating critical determined to be in compliance with farms was estimated at $76,000 (USDA habitat for any of the specific areas applicable information quality 2002 Census of Agriculture). The because such an action does not meet guidelines implementing the estimated average losses per small farm the legal requirements of the ESA. We Information Quality Act (IQA) (Section are estimated at $6,100 (IEc, 2008b). also considered not excluding any 515 of Pub. L. 106–554). Impacts to development are based on specific areas within the occupied range In December 2004, the Office of impacts to landowners associated with for reasons of economic impact given Management and Budget (OMB) issued constraints on development within a 30- the critically low abundance of the a Final Information Quality Bulletin for meter buffer of streams within the study species. We concluded, however, that Peer Review pursuant to the IQA. The area. The present value of impacts to all the quantity of habitat is less of a factor Bulletin established minimum peer development projects is estimated at limiting the abundance of the species review standards, a transparent process $94.6 million to $127 million. Section 3 than are the accessibility to the habitat for public disclosure of peer review of the Small Business Act defines small through barriers to migration and planning, and opportunities for public business as any firm that is marine survival issues. Therefore, participation with regard to certain independently owned and operated and allowing for exclusion of some specific types of information disseminated by is not dominant in its field of operation. areas that have low biological value the Federal government. The peer The U.S. Small Business Administration would not likely further reduce recovery review requirements of the OMB (SBA) has developed size standards to efforts. We also considered a more Bulletin apply to influential or highly carry out the purposes of the Small straightforward comparison of economic influential scientific information Business Act, and those size standards cost and biological value such that any disseminated on or after June 16, 2005. can be found in 13 CFR 121.201. Size areas for which the costs of designation To satisfy our requirements under the standards are expressed either in were greater than the biological value of OMB Bulletin, we obtained independent number of employees or annual receipts the area to the species would qualify for peer review of the scientific information in millions of dollars depending on the exclusion. We chose, however, to that supports the proposal to designate specific type of business. Because exclude only those areas that have a critical habitat for the GOM DPS of impacts to development projects are biological value score of ‘‘1’’ (unless the Atlantic salmon and incorporated the determined on a per acre basis and not area is without dams) because excluding peer review comments prior to by the specific type of development all of specific areas for which the costs dissemination of this proposed

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rulemaking. A Draft 4(b)(2) Report and estuaries and lakes connected to the and the following DOI, USGS 1:500,000 (NMFS, 2008) that supports the marine environment within the range of scale hydrologic unit map: State of proposal to designate critical habitat for the Gulf of Maine Distinct Population Maine: these documents are the GOM DPS of Atlantic salmon was Segment of Atlantic Salmon (GOM DPS) incorporated by reference. The also peer reviewed pursuant to the except for those particular areas within incorporation by reference was requirements of the Bulletin and is the range which are specifically approved by the Director of the Federal available on our Web site (see excluded. Within the GOM DPS, the Register in accordance with 5 U.S.C. ADDRESSES). primary constituent elements (PCEs) for 552(a) and 1 CFR part 51. Copies of the This action does not contain a Atlantic salmon include sites for USGS publication and the maps may be collection-of-information requirement spawning and incubation, sites for obtained from the USGS, Map Sales, for purposes of the Paperwork juvenile rearing, and sites for migration. Reduction Act. Box 25286, Denver, CO 80225. Copies The physical and biological features of may be inspected at NMFS, Protected habitat are those features that allow References Cited Resources Division, Office of Protected Atlantic salmon to successfully use sites Resources, 1315 East-West Highway, A complete list of all references cited for spawning and rearing and sites for in this rule making can be found on our migration. These features include Silver Spring, MD 20910, or at the Web site at http://www.nero.noaa.gov/ National Archives and Records _ substrate of suitable size and quality; prot res/altsalmon/, and is available rivers and streams of adequate flow, Administration (NARA). For upon request from the NMFS Northeast depth, water temperature and water information on the availability of this Regional Office in Gloucester, quality; rivers, streams, lakes and ponds material at NARA, call 202–741–6030, Massachusetts (see ADDRESSES). with sufficient space and diverse, or go to: http://www.archives.gov/ _ _ _ _ List of Subjects in 50 CFR Part 226 abundant food resources to support Federal register/code of Federal regulations/ibr_locations.html. Endangered and threatened species. growth and survival; waterways that allow for free migration of both adult (b) Critical habitat is designated in the Dated: August 29, 2008. and juvenile Atlantic salmon; and Maine counties and towns for the three John Oliver, diverse habitat and native fish SHRUs described in paragraphs (b)(1) Deputy Assistant Administrator for communities in which salmon interact through (b)(2) of this section. The Operations, National Marine Fisheries with while feeding, migrating, Service. textual descriptions of critical habitat spawning, and resting. for each SHRU are included in For the reasons set out in the (a) The GOM DPS is divided into paragraphs (b)(3) through (b)(6) of this preamble, we propose to amend 50 CFR three salmon habitat recovery units section, and these descriptions are the part 226 as set forth below: (SHRUs) within the range of the GOM DPS: These are the Downeast Coastal definitive source for determining the PART 226—DESIGNATED CRITICAL critical habitat boundaries. General HABITAT SHRU, the Penobscot Bay SHRU and the Merrymeeting Bay SHRU. Critical location maps are provided at the end 1. The authority citation for part 226 habitat is only being considered in of each SHRU description (paragraph continues to read as follows: specific areas currently occupied by the (b)(2) of this section) and are for general guidance purposes only, and not as a Authority: 16 U.S.C. 1533. species. Critical habitat specific areas are identified by hydrological unit codes definitive source for determining critical 2. Add § 226.217, to read as follows: (HUC) and counties within the States of habitat boundaries. § 226.217 Critical habitat for the Gulf of Maine. Hydrological units are those (1). Maine counties and towns Maine Distinct Population Segment of defined by the Department of Interior affected. Critical habitat is designated Atlantic Salmon (Salmo salar). (DOI), U.S. Geological Survey (USGS) for the following SHRUs in the Critical habitat is designated to publication, ‘‘Hydrologic Unit Maps’’ following counties and towns. include all perennial rivers, streams, Water Supply Paper (Seaber et al., 1994)

(i) COUNTIES AND TOWNS PARTIALLY OR ENTIRELY WITHIN AREAS CONTAINING CRITICAL HABITAT in the Downeast Coastal SHRU

Sub-basin County Town

Coastal Washington Han- Penobscot ...... Clifton, Eddington, Grand Falls Twp, Greenfield Twp, Summit Twp. cock. Hancock ...... Waltham, Bucksport, Dedham, Eastbrook, Ellsworth, Fletchers Landing Twp, Frank- lin, Great Pond, Hancock, Lamoine, Mariaville, Oqiton Twp, Orland, Osborn, Trenton Otis, Sullivan, Surry, T10 SD, T16 MD, T22 MD, T28 MD, T32 MD, T34 MD, T35 MD, T39 MD, T40 MD, T41 MD, T7 SD, T9 SD. Washington ...... Addison, Alexander, Baileyville, Baring Plt, Beddington, Centerville Twp, Charlotte, Cherryfield, Columbia, Columbia Falls, Cooper, Crawford, Cutler, Deblois, Dennysville, Devereaux Twp, East Machias, Edmunds Twp, Harrington, Jonesboro, Jonesport, Lubec, Machias, Machiasport, Marion Twp, Marshfield, Meddybemps, Milbridge, No 14 Twp, No 21 Twp, Northfield, Princeton, Roque Bluffs, Sakom Twp, Steuben, Trescott Twp, Whiting, Whitneyville, Wesley T18 ED BPP, T18 MD BPP, T19 ED BPP, T19 MD BPP, T24 MD BPP, T25 MD BPP, T26 ED BPP, T27 ED BPP, T30 MD BPP, T31 MD BPP, T36 MD BPP, T37 MD BPP, T42 MD BPP, T43 MD BPP.

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(ii) COUNTIES AND TOWNS PARTIALLY OR ENTIRELY WITHIN AREAS CONTAINING CRITICAL HABITAT IN THE Penobscot Bay SHRU

Sub-basin County Town

Piscataquis ...... Penobscot ...... T4 Indian Purchase Twp, Long A Twp, Seboeis Plt, Mattamiscontis Twp, Maxfield, Lagrange, Charleston, Howland, T3 R9 NWP, Edinburg, Hopkins Academy Grant Twp, Garland. Piscataquis ...... Shawtown Twp, TA R11 WELS, TA R10 WELS, TB R10 WELS, Greenville, T7 R9 NWP, Bowdoin College Grant West Twp, T4 R9 NWP, Ebeemee Twp, Moosehead Junction Twp, Lake View Plt, Brownville, Milo, Blanchard Twp, Sebec, Dover-Foxcroft, Abbot, Kingsbury Plt, Parkman, Wellington, Frenchtown Twp, Medford, Sangerville, TB R11 WELS, Katahdin Iron Works Twp, Elliottsville Twp, Shirley, Guilford, Atkinson, Beaver Cove, Williamsburg Twp, Bowdoin Col- lege Grant East Twp, Barnard Twp, Monson, Orneville Twp. Somerset ...... Squaretown Twp, Mayfield Twp, Brighton Plt, East Moxie Twp, Bald Mountain Twp T2 R3. East Branch ...... Aroostook ...... Moro Plt, T7 R5 WELS. Penobscot ...... Mount Chase, East Millinocket, Grindstone Twp, Herseytown Twp, Medway, Patten, Soldiertown Twp T2 R7 WELS, Stacyville, T1 R6 WELS, T2 R8 WELS, T3 R7 WELS, T3 R8 WELS, T4 R7 WELS, T4 R8 WELS, T5 R7 WELS, T5 R8 WELS, T6 R6 WELS, T6 R7 WELS, T6 R8 WELS, T7 R6 WELS, T7 R7 WELS, T7 R8 WELS, T8 R6 WELS, T8 R7 WELS, T8 R8 WELS. Piscataquis ...... Mount Katahdin Twp, Nesourdnahunk Twp, Trout Brook Twp, T3 R10 WELS, T4 R10 WELS, T4 R9 WELS, T5 R11 WELS, T5 R9 WELS, T6 R10 WELS, T6 R11 WELS, T7 R10 WELS, T7 R11 WELS, T7 R12 WELS, T7 R9 WELS. Mattawamkeag ...... Aroostook ...... Amity, Bancroft, Benedicta Twp, Crystal, Dudley Twp, Dyer Brook, Forkstown Twp, Moro Plt, North Yarmouth Academy Grant Twp, Oakfield, Orient, Reed Plt, Sher- man, Silver Ridge Twp, Smyrna, Upper Molunkus Twp, Webbertown Twp, Wes- ton, T1 R5 WELS, T2 R4 WELS, T3 R3 WELS, T3 R4 WELS, T4 R3 WELS, T7 R5 WELS, TA R2 WELS. Penobscot ...... Carroll Plt, Drew Plt, Herseytown Plt, Kingman Twp, Lee, Lincoln, Mattawamkeag, Mount Chase, Patten, Prentiss Twp T7 R3 NBPP, Springfield, Stacyville, Web- ster Plt, Winn, T1 R6 WELS, T4 R7 WELS, T6 R6 WELS. Washington ...... T8 R3 NBPP, T8 R4 NBPP. Penobscot ...... Aroostook ...... Benedicta TWP, Molunkus Twp, Sherman, T1 R5 WELS. Hancock ...... Amherst, Blue Hill, Bucksport, Castine, Dedham, Great Pond, Oqiton Twp, Orland, Penobscot, Surry, Verona Island, T3 ND, T32 MD, T34 MD, T35 MD, T39 MD, T40 MD, T41 MD. Penobscot ...... Alton, Argyle Twp, Bangor, Brewer, Burlington, Carmel, Charleston, Chester, Clif- ton, Corinna, Corinth, Dexter, Dixmont, Eddington, Edinburg, Enfield, Etna, Exe- ter, Garland, Glenburn, Grand Falls Twp, Hampden, Hermon, Herseytown Twp, Holden, Howland, Hudson, Indian Island, Kenduskeag, Lagrange, Lakeville, Lee, Levant, Lincoln, Lowell, Mattamiscontis Twp, Mattawamkeag, Maxfield, Medway, Milford, Newburgh, Newport, Old Town, Orono, Orrington, Passadumkeag, Plym- outh, Seboeis Plt, Springfield, Stacyville, Stetson, Summit Twp, Veazie, Winn, Woodville T1 R6 WELS, T2 R8 NWP, T2 R9 NWP, T3 R1 NBPP, T3 R9 NWP, TA R7 WELS. Piscataquis ...... Medford. Waldo ...... Brooks, Frankfort, Jackson, Knox, Monroe, Montville, Prospect, Searsport, Stockton Springs, Swanville, Thorndike, Waldo, Winterport. Penobscot Bay ...... Waldo ...... Belfast, Belmont, Brooks, Frankfort, Knox, Lincolnville, Monroe, Montville, Morrill, Northport, Searsmont, Searsport, Swanville, Waldo.

(iii) COUNTIES AND TOWNS PARTIALLY OR ENTIRELY WITHIN AREAS CONTAINING CRITICAL HABITAT IN THE MERRYMEETING BAY SHRU

Sub-basin County Town

Lower Androscoggin ...... Androscoggin ...... Auburn, Durham, Greene, Leeds, Lewiston, Lisbon, Sabattus, Wales. Cumberland ...... Brunswick, Freeport. Kennebec ...... Litchfield, Monmouth. Sagadahoc ...... Bath, Bowdoin, Bowdoinham, Richmond, Topsham. Merrymeeting Bay ...... Androscoggin ...... Livermore Falls. Franklin ...... Avon, Carthage, Chesterville, Farmington, Freeman Twp, Industry, Jay, Madrid Twp, Mount Abram Twp, New Sharon, New Vineyard, Perkins TWP, Phillips, Redington Twp, Salem Twp, Sandy River Plt, Strong, Temple, Township 6 North of Weld, Township E, Washington Twp, Weld, Wilton. Kennebec ...... Augusta, Benton, Chelsea, China, Clinton, Farmingdale, Fayette, Gardiner, Hallowell, Manchester, Oakland, Pittston, Randolph, Rome, Sidney, Vassalboro, Vienna, Waterville, West Gardiner, Windsor, Winslow. Lincoln ...... Alna, Dresden, Whitefield, Wiscasset. Sagadahoc ...... Bowdoinham, Perkins Twp Swan Island, Richmond, Woolwich.

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(iii) COUNTIES AND TOWNS PARTIALLY OR ENTIRELY WITHIN AREAS CONTAINING CRITICAL HABITAT IN THE MERRYMEETING BAY SHRU—Continued

Sub-basin County Town

Somerset ...... Anson, Athens, Bingham, Brighton Plt, Canaan, Cornville, Fairfield, Hartland, Madi- son, Mayfield Twp, Mercer, Norridgewock, Pittsfield, Skowhegan, Smithfield, Solon, Starks. Coastal Drainages East of Cumberland ...... Brunswick. Small Point. Kennebec ...... Albion, Pittston, Windsor. Knox ...... Appleton, Camdem, Cushing, Friendship, Hope, Rockland, Rockport, Saint George, South Thomaston, Thomaston, Union, Warren, Washington. Lincoln ...... Alna, Boothbay, Boothbay Harbor, Bremen, Briston, Dresden, Edgecomb, Hibberts Gore, Jefferson, Newcastle, Nobleboro, Somerville, Southport, Waldoboro, West- port Island, Whitefield, Wiscasset. Sagadahoc ...... Arrowsic, Bath, Bowdoinham, Georgetown, Phippsburg, West Bath, Woolwich. Waldo ...... Belmont, Freedom, Liberty, Lincolnville, Montville, Morrill, Palermo, Searsmont.

(2). Critical habitat boundaries. at a discharge which generally has a Washington and Hancock Counties in Critical habitat includes the stream recurrence interval of 1 to 2 years on an Eastern Maine that contain channels within the designated stream annual flood series. Critical habitat in approximately 6,039 km of perennial reaches, and includes a lateral extent as estuaries is defined by the perimeter of rivers, streams, and estuary and defined by the ordinary high-water line the water body as displayed on standard approximately 365 square km of lakes (33 CFR 329.11). In areas where the 1:24,000 scale topographic maps or the connected to the marine environment. ordinary high-water line has not been elevation of extreme high water, Within this basin 11 HUC 10s are defined, the lateral extent will be whichever is greater. considered to be currently occupied defined by the bankfull elevation. (i) Downeast Coastal SHRU. The (Figure 1) and contain critical habitat Bankfull elevation is the level at which Downeast Coastal SHRU encompasses (Figure 2). water begins to leave the channel and fourteen HUC 10 watersheds covering move into the floodplain and is reached approximately 1,847,698 acres within BILLING CODE 3510–22–P

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(ii) Penobscot Bay SHRU. The connected to the marine environment twenty-nine HUC 10 watersheds Penobscot Bay Salmon Habitat Recovery and occupies sections of Aroostook, containing a combination of perennial Unit (SHRU) includes the entire Hancock, Penobscot, Piscataquis, rivers, lakes, streams and/or estuaries Penobscot Basin and extends west as far Somerset, Waldo, and Washington connected to the marine environment as, and including the Ducktrap counties (Baum, 1983). The Penobscot that have been identified as critical watershed, and east as far as, and SHRU encompasses forty-six HUC 10 habitat (Figure 3 and Figure 4). The including the Bagaduce watershed. The watersheds embedded within six major waters in the remaining fifteen HUC 10 Penobscot Bay SHRU drains 54,942,705 sub-basins; the West Branch, East watersheds are currently unoccupied acres containing approximately 17,443 Branch, Piscataquis, Mattawamkeag, habitat and therefore not designated as km of perennial rivers, streams, and Penobscot River and Penobscot Bay. critical habitat. estuary and 1,115 sq. km of lakes Within the Penobscot SHRU, there are

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(iii) Merrymeeting Bay SHRU. The 6,651,620 acres. The Merrymeeting Bay watersheds, nine are considered Merrymeeting Bay SHRU extends west SHRU contains forty-five HUC 10 occupied and contain rivers, lakes, as far as, and including the watersheds embedded within six major streams and estuary considered to be Androscoggin and east as far as, and sub-basin which include the Upper critical habitat (Figure 5 and Figure 6). including the St. George watershed. The Androscoggin, Lower Androscoggin, The remaining thirty-six HUC 10’s are Merrymeeting Bay SHRU contains Kennebec River above Forks, Dead not occupied and do not contain critical approximately 21,002 km of perennial River, Kennebec at Merrymeeting Bay, habitat. rivers, streams and estuary and 1,372 sq. and coastal drainages east of small km of lakes that drain a land area of point. Of the forty-five HUC 10

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BILLING CODE 3510–22–C

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(3) Primary constituent elements. (vi) Freshwater rearing sites with cool, or individual subject to restrictions by Within the GOM DPS, the primary oxygenated water to support growth and the United States against alienation; constituent elements (PCEs) for the survival of Atlantic salmon parr; (iii) Fee lands, either within or conservation of Atlantic salmon include (vii) Freshwater rearing sites with outside the reservation boundaries, sites for spawning and incubation, sites diverse food resources to support owned by the tribal government; and for juvenile rearing, and sites for growth and survival of Atlantic salmon (iv) Fee lands within the reservation migration. The physical and biological parr; boundaries owned by individual features of the habitat that are essential (viii) Freshwater and estuary Indians. Within the GOM DPS, to the conservation of Atlantic salmon migratory sites free from physical and approximately 79,000 acres of tribal are those features that allow Atlantic biological barriers that delay or prevent lands in the Penobscot SHRU and 5,000 salmon to successfully use sites for access to spawning grounds needed to acres in the Downeast Coastal SHRU support a recovered population; have been identified as particular areas spawning and rearing and sites for (ix) Freshwater and estuary migration migration. These features include: that contain sites for spawning and sites with abundant, diverse native fish rearing and sites for migration and are (i) Deep, oxygenated pools and cover communities to serve as a protective proposed for exclusion from critical (e.g. boulders, woody debris, vegetation, buffer against predation; habitat. etc.), near freshwater spawning sites, (x) Freshwater and estuary migration (5) Lands owned or controlled by the sites free from physical and biological necessary to support adult migrants Department of Defense. Additionally, barriers that delay or prevent emigration during the summer while they await critical habitat does not include the spawning in the fall; of smolts to the marine environment; (xi) Freshwater and estuary migration following areas owned or controlled by (ii) Freshwater spawning sites that sites with sufficiently cool water the Department of Defense, or contain clean, permeable gravel and temperatures and water flows that designated for its use, that are subject to cobble substrate with oxygenated water coincide with diurnal cues to stimulate an integrated natural resources and cool water temperatures to support smolt migration; management plan prepared under spawning activity, egg incubation and (xii) Freshwater migration sites with section 101 of the Sikes Act (16 U.S.C. larval development; water chemistry needed to support sea 670a). Excluded from designation are: (iii) Freshwater spawning and rearing water adaptation of smolts; and (i) The 435 acres of the Brunswick sites with clean gravel in the presence (xiii) Freshwater and marine sites Naval Air Station in Brunswick, Maine of cool, oxygenated water and diverse with diverse, abundant assemblages of within the Little Androscoggin HUC 10 substrate to support emergence, native fish communities to enhance watershed in the Merrymeeting Bay territorial development and feeding survivorship as Atlantic salmon smolts SHRU. activities of Atlantic salmon fry; emigrating through the estuary. (ii) The 5,328 acres of the Brunswick Naval Air Station’s cold weather (iv) Freshwater rearing sites with (4) Exclusion of Indian lands. Critical habitat does not include occupied survival, evasion, resistance and escape space to accommodate growth and habitat areas on Indian lands. The school within the Sandy River HUC 10 survival of Atlantic salmon parr, and Indian lands specifically excluded from watershed in the Merrymeeting Bay population densities needed to support critical habitat are those defined in the SHRU. sustainable populations; Secretarial Order 3206, including: (6). Description of critical habitat. (v) Freshwater rearing sites with a (i) Lands held in trust by the United Critical habitat is designated to include combination of river, stream, and lake States for the benefit of any Indian the areas defined in the following habitats, that accommodate parr’s ability Tribe; hydrological units in the three SHRUs to occupy many niches and to maximize (ii) Lands held in trust by the United with the exception of those particular parr production; States for the benefit of any Indian Tribe areas specifically identified:

(i) DOWNEAST COASTAL SHRU. CRITICAL HABITAT, EXCLUSIONS AND EXCLUSION TYPE BY HUC 10 WATERSHEDS

Critical habitat Excluded areas [type] 1 HUC 10 code HUC 10 watershed name River, stream River, stream and estuary Lake (sq. km) and estuary Lake (sq. km) (km) (km)

Coastal Washington Han- 0105000201 Dennys River ...... 218 45 ...... cock sub-basin. 0105000203 Grand Manan Channel ...... 641 15.5 ...... 0105000204 East Machias River ...... 575 70 16 [T] 0.1 [T] 0105000205 Machias River...... 991 58 ...... 0105000206 Roque Bluffs Coastal ...... 321 1 ...... 0105000207 Chandler River...... 154 0.1 ...... 0105000208 Pleasant River...... 325 6.5 ...... 0105000209 Narraguagus River...... 573 15.5 ...... 0105000210 Tunk Stream...... 117 14 ...... 0105000212 Graham Lake...... 976 121 ...... 0105000213 Union River Bay ...... 303 18 ...... 0105000211 Bois Bubert Coastal ...... — — ...... 0105000214 Lamoine Coastal...... — — ...... 0105000215 Mt. Desert Coastal ...... — — ...... 1 Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal. — considered unoccupied at the time of listing.

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(ii) PENOBSCOT BAY SHRU. CRITICAL HABITAT, EXCLUSIONS AND EXCLUSION TYPE BY HUC 10 WATERSHEDS

Critical habitat Excluded areas [type] 1 Sub-basin HUC 10 code HUC 10 watershed name River, stream River, stream and estuary Lake and estuary Lake (km) (sq. km) (km) (sq. km)

East Branch Penobscot 0102000202 Grand Lake Matagamon ... 320 25 .5 6 [T] 0.5 [T] sub-basin. 0102000203 East Branch Penobscot 178 3 1 [T] ...... River (2). 0102000204 Seboeis River...... 418 31 ...... 0102000205 East Branch Penobscot 585 5 3 [T] ...... River (3). 0102000201 Webster Brook...... — — ......

West Branch Penobscot 0102000101 North Branch Penobscot — — ...... sub-basin. River. 0102000102 Seeboomook Lake...... — — ...... 0102000103 W. Br. Penobscot R. at — — ...... Chesuncook. 0102000104 Caucomgomok Lake...... — — ...... 0102000105 Chesuncook Lake...... — — ...... 0102000106 Nesowadnehunk Stream... — — ...... 0102000107 Nahamakanta Stream...... — — ...... 0102000108 Jo-Mary Lake...... — — ...... 0102000109 West Branch Penobscot — — ...... River (3). 0102000110 West Branch Penobscot — — ...... River (4).

Mattawamkeag River sub- 0102000301 West Branch 657 22 ...... basin. Mattawamkeag River. 0102000302 East Branch 315 12 ...... Mattawamkeag River. 0102000303 Mattawamkeag River (1) ... 192 0 .5 ...... 0102000305 Mattawamkeag River (2) ... 451 8 ...... 0102000307 Mattawamkeag River (3) ... 226 3 ...... 0102000306 Molunkus Stream ...... 0 0 438 [E] 11 [E] 0102000304 Baskahegan Stream...... — — ......

Piscataquis River sub-basin 0102000401 Piscataquis River (1) ...... 762 15 ...... 0102000402 Piscataquis River (3) ...... 382 6 ...... 0102000404 Pleasant River ...... 812 17 16 [T] ...... 0102000405 Seboeis Stream ...... 308 31 12.2 [T] 5 [T] 0102000406 Piscataquis River (4) ...... 328 30 ...... 0102000403 Sebec River...... — — ......

Penobscot River sub-basin 0102000501 Penobscot River (1) at 287 4.5 5 [T] 2.5 [T] Mattawamkeag. 0102000502 Penobscot River (2) at 474 23 .5 80 [T] 5.5 [T] West Enfield. 0102000503 Passadumkeag River ...... 0 0 583 [E] 79 [E] 0102000505 Sunkhaze Stream...... 117 0.5 ...... 0102000506 Penobscot River (3) at 205 0.5 6 [T] ...... Orson Island. 0102000507 Birch Stream ...... 105 1 15 [T] ...... 0102000509 Penobscot River (4) at 225 10 ...... Veazie Dam. 0102000510 Kenduskeag Stream...... 420 1.5 ...... 0102000511 Souadabscook Stream...... 341 5 .5 ...... 0102000512 Marsh River...... 319 3 ...... 0102000513 Penobscot River (6) ...... 514 29 ...... 0102000504 Olamon Stream...... — — ...... 0102000508 Pushaw Stream...... — — ......

Penobscot Bay sub-basin .. 0105000218 Belfast Bay ...... 177 9 ...... 0105000219 Ducktrap River...... 76 4 ...... 0105000216 Bagaduce River...... — — ...... 0105000217 Stonington Coastal...... — — ...... 0105000220 West Penobscot Bay — — ...... Coastal. 1 Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal—considered unoccupied at the time of listing.

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(iii) MERRYMEETING BAY SHRU. CRITICAL HABITAT, EXCLUSIONS, AND EXCLUSION TYPE BY HUC 10 WATERSHED

Critical habitat Excluded areas [type] 1 Sub-basin HUC 10 code HUC 10 watershed name River, stream River, stream and estuary Lake and estuary Lake (km) (sq. km) (km) (sq. km)

Kennebec River above the 0103000101 South Branch Moose River — — ...... Forks sub-basin. 0103000102 Moose River (2) above — — ...... Attean Pond. 0103000103 Moose River (3) at Long — — ...... Pond. 0103000104 Brassua Lake...... — — ...... 0103000105 Moosehead Lake...... — — ...... 0103000106 Kennebec River (2) above — — ...... The Forks. Dead River sub-basin ...... 0103000201 North Branch Dead River .. — — ...... 0103000202 South Branch Dead River — — ...... 0103000203 Flagstaff Lake...... — — ...... 0103000204 Dead River...... — — ...... Merrymeeting Bay sub- 0103000305 Sandy River...... 1215 15 .8 12 [M] 0.2 [M] basin. 0103000306 Kennebec River at 794 14 ...... Waterville Dam. 0103000312 Kennebec River at 621 22 ...... Merrymeeting Bay. 0103000310 Messalonskee Stream...... — — ...... 0103000301 Kennebec River (4) at — — ...... Wyman Dam. 0103000302 Austin Stream...... — — ...... 0103000303 Kennebec River (6) ...... — — ...... 0103000304 Carrabassett River...... — — ...... 0103000307 Sebasticook River at Pitts- — — ...... field. 0103000308 Sebasticook River (3) at — — ...... Burnham. 0103000309 Sebasticook River (4) at — — ...... Winslow. 0103000311 Cobbosseecontee Stream — — ...... Upper Androscoggin sub- 0104000101 Mooselookmeguntic Lake.. — — ...... basin. 0104000102 Umbagog Lake Drainage .. — — ...... 0104000103 Aziscohos Lake Drainage — — ...... 0104000104 Magalloway River...... — — ...... 0104000105 Clear Stream...... — — ...... 0104000106 Middle Androscoggin River — — ...... Lower Androscoggin sub- 0104000210 Little Androscoggin River .. 549 10 .5 1 [M] ...... basin. 0104000201 Gorham-Shelburne Tribu- — — ...... taries. 0104000202 Androscoggin River at — — ...... Rumford Point. 0104000203 Ellis River...... — — ...... 0104000204 Ellis River...... — — ...... 0104000205 Androscoggin River above — — ...... Webb River. 0104000206 Androscoggin River at — — ...... Riley Dam. 0104000207 Androscoggin River at — — ...... Nezinscot River. 0104000208 Nezinscot River...... — — ...... 0104000209 Androscoggin R. above L. — — ...... Andro. R. Coastal Drainages East of 0105000301 St. George River ...... 624 32 ...... Small Point sub-basin. 0105000302 Medomak River...... 318 6 ...... 0105000305 Sheepscot River...... 553 19 ...... 0105000306 Sheepscot Bay...... 220 2 ...... 0105000307 Kennebec River Estuary ... 276 3.5 ...... 0105000303 Johns Bay...... — — ...... 0105000304 Damariscotta River...... — — ...... 1 Exclusion types: [E] = Economic, [M] = Military, and [T] = Tribal—considered unoccupied at the time of listing.

[FR Doc. E8–20603 Filed 9–2–08; 4:15 pm] BILLING CODE 3510–22–P

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